' MANZOOR AHMAD MALIK, J.---This judgment shall decide Criminal Appeal No,834 of 2008 (Abdul Ghaffar alias Kalu and another v. The State); Criminal Revision No,710 of 2008 (Talib Hussain v.
Muhammad Yaqoob etc.) against the acquittal of Muhammad Yaqoob and Murder Reference No,200/2008 sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Abdul Ghaffar alias Kalu (appellant), as all these three matters have arisen out of the same judgment dated 10-7-2008 passed by the learned Additional Sessions Judge, Kasur, whereby, Abdul Ghaffar alias Kalu (appellant) was convicted under sections 302(b)134, P.P.C., for the murder of Naveed Khadim (deceased), and sentenced to death with a direction to pay a compensation of Rs,1,00,000 (Rupees one lac only) to the legal heirs of the deceased as provided under section 544-A, Cr.P.C., and in default whereof he was directed to suffer six months' S.I.
Mashooq alias Shoki (appellant) was also convicted under sections 302(b)/34, P.P.C. And sentenced to imprisonment for life with a direction to pay a compensation of Rs,1,00,000 (Rupees one lac only) to the legal heirs of the deceased as provided under section 544-A, Cr.P.C., and in default whereof he was directed to suffer six months' SI. Benefit of section 382-B, Cr.P.C. Was extended to this appellant. However, benefit of doubt was extended to a co-accused of the appellants, namely, Muhammad Yaqoob who was acquitted from the charge.
2. Brief facts of the case, as given by Talib Hussain complainant (P . W . 1) in the F.I.R. (Exh.PH) which was reduced into writing on the basis of a written application (Exh.PA) are that he (complainant) and his younger brother Khadim Hussain do the business of milk and used to purchase milk from Haveli Mallianwali. His said younger brother Khadim Hussain along with his wife, mother-in-law and sister-in-law proceeded to perform Hajj, whereas, complainant was residing with Khadim Hussain's sons Naveed Khadim (deceased), Tauqeer Khadim and four daughters in his house. On the transaction of milk, differences arose between the parties and incidents of quarrel took place between them which became serious a month prior to the occurrence. On that account, Naveed Khadim (deceased) stopped visiting Haveli Malianwali. At about 4-45 a.m., in the early morning of the day of occurrence, their servant Niamat Ali came and started washing the utensils of the milk.
The complainant got awakened Naveed Khadim .(deceased) who was also standing along with the complainant in the courtyard. In the meanwhile, Abdul Ghaffar alias Kalu (appellant) while armed with .44 bore rifle, Muhammad Yaqoob (acquitted co-accused) armed with .44 bore rifle, Mashooq alias Shoki (appellant) armed with .44 bore rifle along with two unknown persons armed with firearms entered the house. Abdul Ghaffar alias Kalu (appellant) asked his co-accused to teach a lesso to Naveed Khadim (deceased) for quarrel mg with them. Abdul Ghaffar alias Kalu ppellant) fired a shot with his rifle which hit on the back of Naveed Khadim (deceased). The fire of Mashooq alias Shoki (appellant) too landed on the back of the Naveed Khadim (deceased), whereas, the fire of Muhammad Yaqoob (acquitted co-accused) landed on the right arm of the said deceased. According to the complainant, the fires made by the unknown assailants also stamped on the right arm of Naveed Khadim (deceased). The complainant has also stated in the F.I.R. That the occurrence, apart from him, was also witnessed by Muhammad Rafique, Shaukat Ali and Niamat Ali and they identified the assailants in the tubelight. As per complainant, his nephew Naveed Khadim (deceased) fell on the ground as a result of the said injuries to whom they shifted to the Lahore General Hospital on a vehicle but he breathed his last in the said hospital. As per F.I.R., the motive behind the occurrence was that the accused persons killed his nephew Naveed Khadim (deceased) on account of the quarrel which took place one month prior to the occurrence.
3. After completion of investigation, the challan was prepared and submitted against the appellant and Muhammad Yaqoob (acquitted co-accused). The learned trial Court, after observing the required legal formalities, as provided under the Code of Criminal Procedure, framed a charge on 12-4-2007 against Muhammad Yaqoob under sections 148/452/149/302, P.P.C., whereas, charge was framed against -both the appellants on 31-7-2007 under the same provisions of law, to which, they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has produced 13 witnesses, during the trial, whereas, Muhammad Azam, Inspector appeared as CW1. The appellants, along with Muhammad Yaqoob (acquitted co-accused), were examined under section 342 of the Code of Criminal Procedure. The appellants neither produced any evidence in defence nor opted to depose on Oath as provided under section 340(2) of the Code of Criminal Procedure. In an answer to the question "why this case against you and why the P. Ws. Have deposed against you", Abdul Ghaffar alias Kalu (appellant), in his statement recorded under section 342 of the Code of Criminal Procedure, stated as under:-- "The motive was false and same was not proved in the investigation as well as during the course of investigation and evidence. I have been declared innocent during all the investigations. The P.Ws.
Are inter se and related to the deceased. Niamat P.W. Is the servant of the complainant party/deceased. Talib Hussain P.W./complainant is the maternal uncle of the deceased. Rafique P.W. Is also related to the deceased/complainant party and all the P.Ws. Cited as witnesses later on. I have been involved in this case due to party friction in the locality. In fact the deceased was of bad character and notorious person and has enmity with Ramzan alias Kali and others. It was a blind murder and occurrence took in the darkness of the night. I am innocent".
' Whereas, in answer to the same question, Mashooq alias Shoki (appellant), has stated as under:-- "The motive was false and same was not proved in the investigation as well as during the course of investigation and evidence. I have been declared innocent during all shows that it is a computer typed the investigations. The P.Ws. Are inter se and related to the deceased. Niamat P.W. Is the servant of the complainant party/ deceased. Talib Hussain P.W./ complainant is the maternal uncle of the deceased. Rafique P.W. Is also related to the deceased/ complainant party and all the P.Ws. Cited as witnesses later on. I have been involved in this case due to party friction in the locality. In fact the deceased was of bad character and notorious person and has enmity with Ramzan alias Kali and others. It was a blind murder and occurrence took in the darkness of the night. I am innocent".
' However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellants, as detailed above and acquitted Muhammad Yagoob (acquitted co-accused).
5. Canvassing acquittal, learned counsel for both the appellants, in support of this appeal, contend that both the appellants have falsely been implicated in this case; that the occurrence in this case took place in the dark hours of the night and in fact it was an unwitnessed occurrence as none of the witnesses was present at the spot and there was no reason for the presence of Talib Hussain complainant (P.W.l), Muhammad Rafique (P.W.2) and Niamat Ali (P.W.3) at the spot at such an early time of the day; that the matter was reported to the police much later than 6-00 a.m. As mentioned in the F.I.R.; that the perusal of the written application (Exh.PA), on the basis whereof, formal F.I.R. (Exh.PH) was registered, application and it does not appeal to reason that at such early hours of the day, rather during dark hours, any computer operator/typist would be available around the premises of the hospital to get the application typed and printed, therefore, it can easily be presumed that the said application, which has been typed by an expert, was not typed at the time as alleged by the complainant; that from the circumstances, it can safely be concluded that the same was typed after deliberation and consultation much after 6-00 a.m.; that the motive set up in. The F.I.R. Was to the effect that a quarrel took place between the parties one month prior to the occurrence but no details of the said quarrels were given by the complainant either in the F.I.R. Or before the learned trial Court; that even no witness in this regard was produced before the learned . Trial Court; that the complainant has admitted in his cross-examination that he was not a party to the quarrel of motive but did not disclose as to how he came to know about the same; that there was an allegation against both the appellants that they were armed with .44 bore rifles and made firing from the same; that the claim of the prosecution that two crime empties of .44 bore were recovered from the spot is negated from the report of Forensic Science Laboratory (Exh.PP) wherein it is mentioned that two crime empties which were delivered in the said office were of 7.62 mm bore and not of .44 mm bore; that no firearm was recovered from either of the appellants; that both the appellants were declared innocent during the course of investigation conducted by Muhammad Azam Inspector (CW1) which was verified by the concerned SP and DIG Sheikhupura Region; that along with the appellants, Muhammad Yaqoob (acquitted co-accused) was also implicated and a specific allegation of causing firearm injuries was also attributed to him on the right arm of Naveed Khadim (deceased) but he was acquitted from the charge by the learned trial Court and no appeal against his acquittal has been preferred either by the State or on behalf of the complainant, rather, the said acquittal has been assailed through Criminal Revision No,710 of 2008 (Talib Hussain v. Muhammad Yaqoob etc.) but no revision petition is competent against the acquittal of an accused, therefore, the same is liable to be dismissed; that the statements of Talib Hussain complainant (P.W.1), Muhammad Rafique (P.W.2) and Niamat Ali (P.W.3), which have been disbelieved qua Muhammad Yaqoob (acquitted co-accused), cannot be believed to the extent of the appellants until and unless the same are corroborated by some other independent piece of evidence which is very much lacking in this case; that the Investigating Officer of the case, namely, Shaukat Ali S.-I. (P.W.12) has admitted in his cross-examination that no eye-witness met him in the hospital when the written application (Exh.PA) was presented to him for registration of the case, whereas, it is the case of the complainant in the F.I.R. That he was present in the hospital along with the other witnesses; that Niamat Ali (P.W.3) has admitted in his cross-examination that the appellants were at a distance of three feet from the deceased but as per Postmortem Report, there was no blackening around the wounds of the deceased which is a major conflict between the ocular account and the medical evidence; that even the place of occurrence, as per Site Plan (Exh.PF) is not visible from the place where Muhammad Rafique (P.W.2) was standing which shows that he did not witness the occurrence; that as the occurrence has taken place in dark hours of the day, therefore, identification of the assailants at that time was not possible; that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt and they are entitled to acquittal. Learned counsel for Mashooq alias Shoki (appellant) further adds that the said appellant has been implicated in this case merely because he is brother-in-law of Abdul Ghaffar alias Kalu (appellant); that although as per recovery memo Exh.PB, two crime empties of .44 bore were taken into possession from the spot but according to the report of the Forensic Science Laboratory (Exh.PP) only two crime empties of 7.62 mm bore were delivered in the office of the FSL for comparison, whereas, allegation against the appellants was that they made firing upon the deceased with .44 bore rifles.
6. While opposing this appeal, the learned D.P.G., assisted by the learned counsel for the complainant, contends that there was no conscious or deliberate delay on the part of the complainant in reporting the matter to the police because it is mentioned in the F.I.R. That Naveed Khadim (deceased) was taken to the General Hospital, Lahore in the injured condition where he died and the matter was reported to, the police in the said hospital without any loss of time because the incident took place at 4.45 a.m. And the police was informed through a written application at 6-00 a.m.; that no inference can be drawn from a computer typed application; that the appellants are named in the F.I.R. With specific allegation of causing firearm injuries on the person of Naveed Khadim (deceased) who died as a result of such injuries; that, in order to prove its case, the natural eye-witness account in the form of statements of Talib Hussain complainant (P.W.1), Muhammad Rafique (P.W.2) and Niamat Ali (P.W.3) has been brought on the record; that statements of these witnesses inspire confidence and despite cross-examination the defence could shake nothing from the testimonies of these witnesses; that the P. Ws. Had no enmity with the appellants to falsely depose against them during the trial; that the witnesses have also reasonable explained their presence at the spot at the relevant time of occurrence because Talib Hussain complainant (P.W.1) residing in the same house where the occurrence took place and Muhammad Rafique (P.W.2) is resident of the house which is situated in front of the house of the deceased at a distance of about ten feet whereas Niamat Ali (P.W.3) is the servant of the complainant, therefore, presence of these witnesses at the spot is not improbable because it has come on the record that the complainant was doing the business of milk; that the ocular account in this case is fully corroborated by the medical evidence; that the prosecution has also proved motive against the appellants; that the appellants cannot get any benefit from the acquittal of Muhammad Yaqoob (acquitted co-accused) as the complainant has filed a revision petition against his acquittal which may be converted into the appeal; that opinion of the police is not binding on the Courts; that the witnesses, who are rustic villagers, cannot be expected to give exact distance between the assailants and the victim and non-existence of blackening around the wounds of the deceased is not helpful to the appellants as the incident took place in the month of January which is the peak of winter and people use warm clothes; that, even otherwise, in such like cases substitution is a rare phenomenon; that the prosecution has proved its case against the appellants beyond any shadow of doubt and that the appeal filed by the appellants against their convictions and sentences be dismissed.
7. We have heard learned counsel for the parties, have given consideration to their respective arguments and have also scanned the record with their able assistance.
8. This unfortunate incident, wherein, Naveed Khadim (deceased) lost his life, as per F.I.R. (Exh. PH), took place on 16-1-2007 at about 4-45 a.m. In the house of Naveed Khadim (deceased) within the jurisdiction of Police Station Mustafabad, District Kasur, the matter was allegedly reported to the police by Talib Hussain complainant (P.W.1) at about 6-00 a.m. In the General Hospital, Lahore through a written application (Exh.PA), the formal F.I.R. Was registered at about 7-00 a.m. While the distance between the place of occurrence and the Police Station was about 01 kilometer.
9. So far as argument of the learned counsel for the appellants that both the appellants were declared innocent during the course of investigation conducted by Muhammad Azam Inspector (CW1) which was verified by the concerned SP and DIG Sheikhupura Region is concerned, we are afraid that this argument has no force because it is now settled by the Hon'ble Supreme Court of Pakistan that opinion of the police qua guilt or innocence of the accused persons is not admissible in evidence and the case shall be decided on the basis of evidence available on the record. In this regard reliance is placed on a judgment of the Hon'ble Supreme Court of Pakistan in the case of MUHAMMAD AHMAD (MAHMOOD AHMED) AND ANOTHER V. THE STATE (2010 SCM R 660), wherein, at page 676, while sending copies of the judgment to the Registrars of all the four High Courts in the country for its circulation amongst all the learned Presiding Officers within their respective jurisdictions for their guidance and compliance, the learned Apex Court has been pleased to hold as under:-- "37. Before we part with this judgment, we would like to bring on record our concern and our displeasure about the manner in which the trial in question had been conducted. The learned trial Judge allowed matters to come on record which were not admissible in evidence. We were pained to find that during the course of cross-examination of prosecution witnesses and the examination of defence witnesses', questions were allowed soliciting the opinion of the police officers about the guilt or innocence of some of the accused persons under trial. It appears to us that not only the learned cross-examiner but even the learned trial Judge was ignorant of even the basic provisions of law of evidence which prescribed that the witnesses could only state facts i.e, what they had themselves seen or heard or perceived through any of their senses and that the opinions or beliefs or impressions of third person were, as a general rule, irrelevant and, therefore, inadmissible. As a necessary exception to this rule what had been made admissible in evidence, besides the facts, were opinions but only of experts and that also on a point of foreign law or of science, or art, or as to the identity of handwriting or finger impressions (section 59 of the Qanun-e-Shahadat, 1984). It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such-like impressions of the Investigating Officers to creep into the evidence was not curbed then the same could lead to disastrous consequences. If an accused person could be let off or acquitted only because the Investigating Officer was of the opinion that such an accused person was innocent then why could not, on the same principle, another accused person be hanged to death only because the Investigating Officer had opined about his guilt. It may be added that the provisions of sections 155, 156, 157 and 174 of the Criminal Procedure Code permit a police officer only to investigate a case. 'Investigation' stands defined by the provisions of section 4(1)(1) of the said Code in the following terms:- "Investigation includes all the proceedings under this Code for the Collection of Evidence conducted by a police officer" (emphasis and underlining has been supplied).
' This then clearly indicates that the job of the Investigating Officer is only to collect evidence and to place the same before the competent Court. Therefore, whatever expertise, if at all, could be claimed by an Investigating Officer, would be vis-a-vis his field of operation, namely, collection of evidence. Could his opinion ever become admissible in the medico-legal matters which is the area reserved for medical doctors or with respect to archeological matters to determine whether an item was or was not an antique or about hand-writing or foot-prints or finger-prints or to find out whether a painting was the actual work of a renowned painter or a fake? If the answer be in the negative, which it has to be, then how come he could be considered an expert and his opinion becoming admissible vis-a-vis the guilt or innocence of an accused person? It may be added that in the last 110 years since the Code of Criminal Procedure had been in existence in its present form, not once had it been authoritatively declared that an Investigating Officer was an expert in the matter of determining the guilt or innocence of accused persons whose opinion was admissible for the purpose, under the law of evidence. The prohibition contained in section 161, Cr.P.C. And in section 172 of the said Code regarding inadmissibility of the statements recorded by an Investigating Officer under the said section 161 or the case diaries prepared by him under the said section 172, would further clarify the said proposition. Reference may also he made to a judgment of the Lahore High Court, authored by one of us which is reported as Haji Muhammad Hamid v. The State (PLD 1992 Lahore 214)". (emphasis supplied).
10. It has vehemently been argued by learned counsel for the appellants that Talib Hussain complainant (P.W.1) got registered the F.I.R. In this case through a written application (Exh.PA) which was allegedly presented by the complainant to the police at 6-00 a.m. In the General Hospital, Lahore, but at such early hours of the day, when sunrises around 7-00 a.m., there was no occasion for the complainant to get typed the written application (Exh.PA) through a computer. In this context, certain portions of the cross-examinations of Talib Hussain complainant (P.W.1) and Niamat Ali (P.W.3) are relevant. Talib Hussain (P.W.1) has stated that "I got written the application for registration of case from one Dr.Niamat. I narrated the whole facts to Dr.Niamat and he thereafter wrote down the same. He read over the said application to me. The said Dr.Niamat is not a P.W. Of this case". Whereas, Niamat Ali (P.W.3) has stated in his cross-examination that "The application for registration of case was got written by P.W. Talib Hussain from one educated male person. Amanat Ali wrote the application. When the application for registration of the case was being written the police was busy in making the plan/map. P.W. Chaudhary Talib Hussain was dictating the application for registration of the case. Ch. Talib Hussain is illiterate person. P.W.
Amanat is resident of Mustafa Abad also. Amanat Ali also came hospital but after our reaching there".
11. We have perused the written application (Exh.PA) which has been typed on a computer and its format suggests that it, was typed by a person who appears to be an expert in preparation of such like applications. As per record, the said application was presented to the police at about 6-00 a.m.
In the General Hospital, Lahore. If version of Talib Hussain complainant (P.W.1) and Niamat Ali (P.W.3) regarding this application is taken into consideration then it becomes clear that this application was got typed from somewhere else at some different time and not at the time as stated by the complainant because before 6-00 a.m. In the month of January, the computer operator/typist, especially around the General Hospital, Lahore, are normally not available.
12. Another circumstance of the case is that as per Received Death Certificate (Exh.PM) of the Lahore General Hospital, Naveed Khadim(deceased) was received dead in Hospital on 16-1-2007 at 5-25 a.m. The dead body was handed over to Bashir Ahmad Constable No,992 (P.W.5) by Shaukat Ali S.-I. (P.W.12) for taking the same to the DHQ Hospital, Kasur, for postmortem examination. The said Bashir Ahmad Constable No,992 (P.W.5) has admitted in the cross-examination that "I brought the dead body of the deceased in an ambulanceWe did not stay in the way from General Hospital, Lahore till D. H.Q. Hospital Kasur. I departed from the General Hospital, Lahore at 6-00 a.m." If distance between DHQ Hospital, Kasur and Lahore General Hospital, which at the most would be about 50 kilometers, is taken into consideration then it can safely be presumed that the dead body of Naveed Khadim (deceased) reached DHQ .Hospital Kasur before 8-00 a.m. But perusal of the Postmortem Report (Exh.PG) shows that the postmortem examination on the dead body of the deceased was conducted by Dr.Saleem-ur-Rehman (P.W.8) at about 4-00 p.m. In the DHQ Hospital, Kasur. The above mentioned facts show that the matter was reported to the police not at 6-00 a.m. As claimed by the complainant. Therefore, in such a situation, chances of deliberation and consultation on the part of the prosecution cannot be ruled out.
13. Occurrence in this case took place in the house of Naveed Khadim (deceased). It is complainant's own case that the complainant and his younger brother Khadim Hussain do the business of milk. His younger brother Khadim Hussain along with his wife and mother-in-law had gone to perform Hajj, whereas, complainant was residing with Khadim Hussain's sons Naveed Khadim (deceased), Tauqeer Khadim and four daughters. We have noted that in the Postmortem Report (Exh.PG) age of Naveed Khadim (deceased) is mentioned as 20/21 years, therefore, it does not appeal to common sense that the complainant would live in the house of his brother Khadim Hussain leaving his own family. It has come on record through the statement of Niamat Ali (P.W.3) that the house of complainant is at a distance of about one kilometer from the place of occurrence, therefore, in our view presence of Talib Hussain complainant (P.W.1) at the spot at the relevant time of occurrence is not free from doubt.
14. Incident in this case allegedly took place on 16-1-2007 at about 4-45 a.m. And on the said date, time of sunrise is around 7-00 a.m., therefore, identification of the assailants at such an early hour of the day is not an easy task. Though Muhammad Rafique (P.W.2) has stated that his house is situated in front of the house of the deceased at a distance of about ten feet but he has not been able to show any plausible reason for his presence at the spot at such an early time of the day i.e, 4-45 a.m. When still darkness prevails. To justify his presence at the spot, in his examination-in- chief, this witness has stated that "About one year and two months ago, at about 4-45 a.m. I along with Shaukat P. W. Were standing in front a gate of Khadim Hussain" but he has not assigned any reason for his standing in front of the gate of Khadim Hussiin at 4-45 a.m. In the month of January.
However, in his cross-examination, he has stated that he used to walk early in the morning. But he has not stated that the said Shaukat also used to walk with him. Shaukat did appear before the learned trial Court but was given up on the application submitted by the complainant through his learned counsel which is evident from the interim order dated 9-6-2008 passed by the learned Additional Sessions Judge, Kasur and the said order is available at page 57 of .The Paper Book. It appears to be highly improbable that one will go to morning walk at 4-45 a.m. In the month of January when the Fajjar prayer is offered around 6-00 a.m. Naveed Khadim (deceased) was his paternal nephew, therefore, he is declared as an interested and chance witness.
15. So far as testimony offered by Niamat Ali (P.W.3) is concerned, we have noted that he is not a resident of the place of occurrence and has claimed to be the servant of the complainant for the last about 10/11 years. He has also claimed that at the time of occurrence, he was washing utensils of milk at the spot. We have gone through the statement of Investigating Officer of the case, namely, Shaukat Ali S.-I. (P.W.12) who inspected the spot and took into possession various articles through different memos but there is no mention of taking into possession of any utensils from the spot. We have gone through the Site Plan (Exh.PF) but there is no mention of availability of utensils at the spot. The said Site Plan was prepared by Muhammad Nasrullah, Draftsman (P.W.7) and while appearing before the learned trial Court this witness has not made any mention qua existence of utensils at the spot. From the above narration of facts, it appears that Niamat Ali (P.W.3) has too failed to prove his presence at the spot at the time of occurrence, therefore, he is also declared as a chance witness.
16. There is another important aspect of the case. Talib Hussain complainant (P.W.1) has stated in the F.I.R. (Exh.PH) that in the house of Khadim Hussain, where the occurrence took place, Khadim Hussain's two sons, namely, Naveed Khadim (deceased), Tauqeer Khadim and four daughters were also residing. In his cross-examination, complainant has admitted that "I, Naveed deceased, and his four minor sisters, his younger brother Tauqeer were present, when the accused persons came there". Whereas, it has come on record through cross-examination of Niamat Ali (P.W.3) that "The children of Khadam Hussain are consisting of four daughters and two sons. The deceased was one of the two sons. The age of the deceased was 17/18 years. While the age of other son is about 12 years. One of the sister is elder than younger brother while the other two daughters are younger to him". Therefore, the best evidence in this case was the statements of undisputed inmates of the house where this occurrence took place but none of them was examined by the prosecution before the learned trial Court.
17. The complainant has alleged a specific motive against the appellants which was to the effect that a quarrel of the complainant party took place with the accused persons one month prior to the occurrence, but no details of the said quarrel were disclosed, rather, the complainant has admitted in his cross-examination that "quarrel took place in haveli Malwayyan Wali on a dispute over money regarding milk of the amount of Rs,30,000. I was not included in the said quarrel". Even no witness regarding the said quarrel was examined by the prosecution. In the circumstances we are of the view that the prosecution has not been able to prove the motive.
18. Medical evidence in this case has been furnished by Dr. Saleem-ur-Rehman (P.W.8) who conducted the postmortem examination on the dead body of the deceased and prepared Postmortem Report (Exh.PG) qua existence of four firearm entry wounds but it is settled law that the medical evidence may confirm the ocular evidence with regard to seat of injury, its duration, nature and kind of weapon used for causing such injury but it cannot connect the accused with the commission of the crime, in absence of any other evidence, therefore, this piece of evidence is of no avail to the prosecution.
19. It is further noted that there was an allegation against both the appellants that they were armed with .44 bore rifles and made firing from the same. It was claim of the prosecution that two crime empties of .44 bore were recovered from the spot through recovery memo (Exh.PB) but the same is negated from the report of Forensic Science Laboratory (Exh.PP) wherein it is mentioned that two crime empties, which were delivered in the said office, were of 7.62 mm bore and not .44 mm bore coupled with the fact that no firearm was recovered from either of the appellants.
20. There is yet another aspect of the case. It has been noted that along with the appellants, Muhammad Yaqoob (acquitted co-accused) was also arrayed as an accused and a specific allegation of causing firearm injuries was also attributed to him on the right arm of Naveed Khadim (deceased). During the course of investigation .44 bore rifle was allegedly recovered from him but he was acquitted from the charge by the learned trial Court. His case is at par with the present appellants. Although his acquittal has not been challenged before this Court through an appeal but Criminal Revision No,710 of 2008 (Talib Hussain v. Muhammad Yaqoob etc.) was filed on behalf of the complainant to assail the said acquittal and request of the learned counsel for the complainant for its conversion into the appeal against acquittal of the said Muhammad Yaqoob cannot be entertained as the same is time-barred. Therefore, the evidence of all the three witnesses, namely, Talib Hussain complainant (P.W.1), Muhammad Rafique (P.W.2) and Niamat Ali (P.W.3), which has been disbelieved qua Muhammad Yaqoob (acquitted co-accused), can only be believed to the extent of the appellants if it is corroborated by an independent piece of evidence but that corroboration is very much lacking in this case because motive was alleged against all the accused persons including Muhammad Yaqoob who was acquitted by the learned trial Court.
Moreover, motive has not been believed by us and no firearm was recovered from either of the appellants.
21. It is a settled and universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. In AYUB MASIH V. THE STATE (PLD 2002 Supreme Court 1048), at page 1056, while quoting a saying of the Holy Prophet (PBUH) that 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent", and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', the learned Apex Court of our country has been pleased to observe as under:-- ' It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P. B . U. H.) that the "mistake of Qazi(Judge) in releasing a criminal is better than his mistake in punishing an innocent". (emphasis supplied)
22. After considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, this appeal is allowed, the conviction and sentence awarded to the appellants through the impugned judgment is set-aside and the appellants are acquitted from the charge by extending them benefit of doubt. Mashooq alias Shoki (appellant) is on bail. He is present in Court in person and is discharged of his bail/surety bonds, whereas, Abdul Ghaffar alias Kalu (appellant) is behind the bars and shall be released forthwith if not required to be detained in any other case. For afore- referred reasons, Criminal Revision No,710 of 2008 (Talib Hussain v. Muhammad Yaqoob etc.) is hereby dismissed.
' Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED.