Abdus Sattar Asghar, J.--Appellant Kaleem Ullah along with co-accused Usman and Abu Bakar faced trial with regard to Qatl-iArnd of Rashid Naveed and Tariq Mehmood in case FIR No, 323/2005 dated 9.8.2005 in the offences under Sections 302/324/34 of the Pakistan Penal Code, 1860, Police Station Farid Town District Sahiwal. At the conclusion of the trial vide judgment dated 19.06.2008 learned Additional Sessions Judge, Sahiwal convicted Kaleem Ullah under Section 302(b), PPC and sentenced to death on two counts with fine of Rs, 1,00,000/- and in default thereof to undergo S. I. for six months. Co-accused Usman and Abu Bakar were acquitted of the charges.
Kaleemullah the convict has lodged this appeal against his conviction and sentences. The State has also approached this Court with Murder Reference No, 33 of 2008 seeking confirmation of death sentence awarded to the appellant. We intend to decide both the above said matters through this judgment.
2. During police investigation co-accused namely Usman and Abu Bakar were declared innocent and their names were placed in Column No, 2 of the report under Section 173, Cr.P.0 whereas Kaleemullah appellant was held guilty for inflicting fire-arm injuries to Tariq Mehmood and commission of murder of Rashid Naveed. On 23.2.2006 Tariq Mehmood injured also died therefore supplementary challan was submitted declaring the appellant guilty for the murder of both Rashid Naveed and Tariq Mehmood. Learned trial Court framed the charge against all the accused to which they pleaded not guilty and claimed to be tried.
3. Prosecution produced as many as 11 witnesses to prove the charge against the appellant. Waqas (PW-1) and Imran Ashraf (PW-2) deposed as eye-witnesses of the occurrence. Zakir Hussain HC/1176 (PW-4) is scribe of FIR Exh.PF/1. He also kept the two sealed parcels, one containing blood- stained earth and the other containing crime empties, in safe custody and on 23.8.2005 he further handed over the said parcels to Nadeem Asghar C/740 for onward transmission to the concerned offices. He was also handed over sealed parcel of rifle on 4.9.2005 for safe custody which he gave to Nadeem Asghar C/740 on 23.9.2005 for onward transmission to the office of Forensic Science Laboratory Lahore. Saeed Akhtar Bhatti Draftsman (PW-5) prepared the site-plan Exh.PG and Exh.PG/1 on 12.8.2005 on the pointation of the PWs and on the directions of the Investigating Officer.
Ahmad Hassan ASI (PW-6) partly investigated the case. Dr. Mehmood-ulHassan (PW-9) while posted at DHQ Hospital Sahiwal conducted postmortem examination on the deadbody of Rashid Naveed on 10.8.2005. He also medically examined Tariq son of Abdul Majeed (deceased) in injured condition on 09.08.2005. Tariq Mehmood injured died on 23.2.2006 and Dr. Abdul Jabbar, M.O. DHQ Hospital, Sahiwal (PW-8) conducted the post-mortem examination on his dead-body. Muhammad Younas SI (PW-10) partly investigated the case, prepared injury statement (Exh.PQ/III) and inquest report Exh.PQ/IV of Rashid Naveed deceased as well as injury statement (Exh.PP/II) of Tariq. Abdul Hamid SI (PW-11) also investigated this case. He prepared the injury statement (Exh.PK) and inquest report (Exh.PL) of Tariq Mehmood.
4. It is pertinent to note that on the application of Waqas (PW1) through counsel, learned DDA vide his statement dated 26.7.2006 gave up Muhammad Arshad (complainant) as of unsound mind as well as Abdul Malik and Muhammad Jamil recovery witnesses as unnecessary.
5. Learned DDA produced in evidence Report of Chemical Examiner (Exh.PT) relating to blood stained earth of the place of murder of Rashid Naveed, report of Chemical Examiner (Exh.PU) relating to-blood stained earth of the place where Tariq Mehmood was injured, reports of Serologist (Exh.PV) and (Exh.PW), report of Forensic Science Laboratory (Exh.PX) and closed the prosecution evidence.
6. At the conclusion of the prosecution evidence Kaleemullah accused/appellant was examined under Section 342, Cr.P.C. wherein he denied the prosecution evidence and pleaded his innocence.
In reply to question "Why this case against you and why the PWs deposed against you" he stated as under:- "It is a false case. PWs have deposed falsely due to their relationship inter-se and with the deceased persons. It was an un-witnessed occurrence which took place after sun-set when it was dark. The assailants were not known. I have been falsely implicated in this case due to enmity."
In reply to question "Have you anything else to say" he stated as under: "I am innocent. Complainant Muhammad Arshad had refused to support the false version of the prosecution and therefore he has been withheld and not produced by the prosecution. The prosecution has deviated from their version given in the FIR which speaks volume about the concocted and twisting version of the prosecution. The motive has not been proved and in fact the respectables have given clean chit to me in earlier case and Imam Masjid Nazir Ahmad Alvi has testified my innocence."
The appellant neither made his statement on oath under Section 340(2), Cr.P.C. nor produced any defence witness. However statement of Waqas PW (Exh.DA) and statement of Tariq Mehmood (deceased) the then injured (Exh.DB) under Section 161, Cr.P.C. were brought on the record.
7. It is argued by learned counsel for the appellant that the appellant is falsely implicated in this case due to previous animosity; that it was an un-witnessed occurrence which took place after the sun set when it was dark; that the assailants of the occurrence were not known; that the complainant did not appear in the witness box; that the prosecution gave up the complainant on the pretext that he was of unsound mind without producing any medical or legal evidence in this regard; that Muhammad Arshad complainant through his supplementary statement after deliberations and consultations with connivance of the police introduced material improvements with regard to attribution and weapon of offence qua the appellant; that Waqas (PW1) and Imran Ashraf (PW-2) the alleged eye-witnesses did not witness the occurrence and also failed to furnish any natural or probable reasons for their presence at the time and place of occurrence; that the case advanced by the eye-witnesses is contrary to the prosecution version as set-forth in the FIR; that the appellant was arrested by the police on the same. night of occurrence but his arrest was shown after 12 days of the occurrence; that the alleged recovery of weapon of offence from the appellant is false, fabricated and planted; that the investigation of this case was conducted dishonestly; that the post-mortem examination of Rashid Naveed (deceased) was conducted with inordinate delay rendering the prosecution case doubtful; that medical evidence is at variance to the ocular account; that statements of the eye-witnesses cannot be read in corroboration to the FIR or supplementary statement not proved by the complainant; that the alleged statement under Section 161, Cr.P.C. of Tariq Mehmood (deceased) was neither proved as a dying declaration nor put to the appellant as an incriminating material during his statement under Section 342, Cr.P.0 therefore the same has no evidentiary value; that the prosecution evidence is full of material inconsistencies and doubts; that the prosecution has failed to bring the guilt home to the accused beyond any doubt through reliable ocular account; that corroborative evidence is also untrustworthy; that the learned trial Court fell in grave error convicting the appellant on the basis of wholly unreliable ocular account therefore the order of conviction and sentence is perverse, untenable, liable to set, aside and the appellant is entitled to acquittal.
8.On the other hand learned DPG for the State assisted by learned counsel for the complainant contended that the appellant is specifically nominated in the promptly lodged FIR pertaining to day-light occurrence which took place at 5:45 p.m. in the month of August with particular attribution of causing fire-arm injuries to Rashid Naveed and Tariq Mehmood resulting into their death: that the eye-witnesses are residents of the same locality having no preyious animosity with the appellant; that the eye-witnesses have also furnished natural and probable reason of their presence at the time and place of occurrence; that the weapon of offence .222-bore rifle recovered at the instance of the appellant has been duly matched with the empties collected by the Investigating Officer from the place of occurrence; that delay in conducting the post-mortem examination of Rashid Naveed if any has no adverse effect on the prosecution case; that the motive alleged to the appellant has been safely proved by the prosecution that the prosecution has established the complicity of the appellant for causing premeditated and willful double murder of two innocent persons; that substitution is rare phenomenon and no reason is advanced by the appellant to falsely implicate him by letting off the actual culprits; that the parties are residents of the same 'locality and known to each other having previous animosity therefore identification of the appellant was not doubtful; that there is no perversity, misreading or non- reading of evidence in the impugned judgment of conviction and sentence awarded to the appellant; that the learned trial Court evaluating the reliable ocular account corroborated by medical evidence and recoveries has rightly. convicted and sentenced the appellant in accordance with law.
9. We have given patient hearing to the learned counsel for the parties a.nd perused the record carefully with their able assistance.
10.FIR (Exh.PF/1) in this case was recorded on 09.08.2005 at 8:20 P.M. on the basis of application (Exh.PF) lodged by Muhammad Arshad Complainant (given up). In the FIR it was alleged that Kaleem Ullah appellant with his co-accused Usman and Abu Bakar (both acquitted) all armed with pistols came to the complainant's grocery shop when he along with his brother Tariq Mehmood (deceased) and Wages PW were present there; that Kaleemullah (appellant) demanded Rs, 60000/- but Tariq Mehmood (deceased) refused to pay whereupon the appellant fired a pistol shot which hit on the neck of Tariq Mehmood who got injured and fell down on the ground; that thereafter all the three accused decamped towards the east; that Rashid Naveed nephew of the complainant and Imran PW were coming towards the shop whereupon Kaleemullah (appellant), Usman and Abu Bakar fired one shot each at Rashid Naveed hitting different parts of his body who receiving the said injuries fell down on the ground and succumbed to the injuries at the spot.
11.In the supplementary statement under Section 161, Cr.P.C. recorded on the same night the complainant Muhammad Arshad introduced a different version stating that at the time of occurrence Kaleemullah was armed with rifle .222 bore and the other two co-accused namely Usman and Abu Bakar were armed with pistols; that Kaleemullah fired a shot with .222-bore rifle at Tariq Mehmood and further fired two shots at Rashid Naveed resulting into his death and that he along with Waqas witnessed the occurrence; that at the time of lodging the application for registration of the FIR he was confused and perturbed and could not mention the weapon of offence the appellant was armed with.
12.Muhammad Arshad complainant despite introducing two versions of the incident did not appear in the witness box. Learned DDA on the application of Waqas P.W. through his statement dated 26.7.2006 gave up Muhammad Arshad complainant as of unsound mind. Alleged insanity of the complainant Muhammad Arshad is not proved through any expert medical evidence or any legal proof. Therefore reason advanced by the prosecution for non-producing the complainant is not acceptable rather his non-appearance in the witness box is understandable. A safe inference can be drawn in this regard that the complainant willfully introducing two versions of the occurrence failed to appear in the witness box to avoid cross-examination from the defence side.
Prosecution therefore withheld the material witness without any cogent reason rendering its case doubtful. Reliance be made upon Khalid Javed and another vs. The State (2003 SCM R 1419).
13.In this case complainant did not appear to prove his application (Exh.PB) on the basis whereof FIR (Exh.PB/1) was registered or his supplementary statement under Section 161, Cr.P.C, however prosecution advanced supplementary version with the help of the statements of Waqas (PW-1) and Imran Ashraf (PW-2).
14.Wagas (PW-1) the alleged eye-witness stated that Kaleemullah (appellant) fired a shot with .222-bore rifle at Tariq Mehmood which hit on his neck who fell down in injured condition and thereafter all the accused ran towards the east in the street and in the meanwhile responding to hue and cry Rashid Naveed a police employee on leave along with Imran Ashraf PW attracted to the spot in running position whereupon Kaleemullah (appellant) fired shots with his rifle .222-bore at Rashid Naveed which hit on the right side and back side of the chest near the right shoulder who fell down on the ground and succumbed to the injuries at the spot. It is pertinent to mention that the injuries to Rashid Naveed specifically attributed to the appellant were not particularly mentioned by the complainant in his supplementary statement. Waqas (PW-1) was confronted with his statement under Section 161, Cr.P.C. (Exh.DA) where the seats of injuries were not mentioned. It is therefore obvious that PW-1 introduced unauthorized improvement in his examination-in-chief. It was categorically suggested to him that he was not present at the time and place of occurrence. Although he denied the suggestion, however admitted that he was employed in Atlas Textile Mills Sheikhupura which is at a distance of 250 K.Ms from the place of occurrence. He volunteered that about one year prior to the occurrence he had left the job from the said Mills and that he had mentioned so before the police that he was jobless and had left the service in the Mills. Confronted with his statement under Section 161, Cr.P.C. (Exh.DA) wherein it was not so recorded. He has not produced any legal proof with regard to leaving the job in the said Mills before the occurrence.
15. Prosecution has alleged that Tariq Mehmood (deceased) during his injured condition while admitted in the hospital had 'made a statement under Section 161, ' Cr.P.C. to the Investigating Officer Muhammad Younas S. I. (PW-10). The said statement of the deceased was never brought on the judicial record, however the same is available on the record as Exh.DB which reveals that the deceased Tariq Mehmood in his said statement has not alleged presence of Waqas (PW1) at the time and place of occurrence. Besides it will be expedient to reproduce hereunder relevant part of cross-examination upon Waqas (PW-1), which reads below: "Rashid deceased had come to the village a few minutes prior to the occurrence. I do not know whether at that time Tariq Mehmood had already been injured or not because I was inside the shop. Deceased Tariq was hit in the shop. Rashid Naveed (deceased) had suffered injury at the distance of 100 feet from the said shop on eastern side.
Be that as it may, it is pertinent to mention that if Waqas PW-1 was inside the shop it was not possible for him to witness the subsequent part of the occurrence i,e, firing upon Rashid Naveed deceased which allegedly took place from Point No, 1 shown in the site-plan (Exh.PG). The shop is shown as Point No,
6. Bare perusal of the site-plan Exh.PG makes it crystal clear that Point No, 1 is not visible from Point No,
6. Contrary to the version of Waqas (PW-1) his presence is shown at Point No, 9 which is situated in thoroughfare (Bazaar) at a distance of 22 feet from the shop. In the site- plan his presence is also shown at Point No,
5. However in his statement he has not alleged his presence in any of the two points i,e, Point No, 9 and Point No,
5. Nutshell of the above discussion is that presence of Waqas (PW-1) at the alleged time and place of occurrence is highly doubtful. His testimony therefore lacking intrinsic value and inherent worth cannot be safely relied upon.
16.Imran. Ashraf (PW-2) the other alleged eye-witness deposed that on 9.8.2005 at about 5:30/5,45 P.M. Kaleemullah appellant armed with rifle .222-bore, Usman and Abu Bakar both armed with pistols .30 bore went to the shop of Tariq Mehmood and demanded Rs, 60,000/-from Tariq Mehmood and Muhammad Arshad but Tariq Mehmood refused; that thereafter Kaleemullah fired at Tariq Mehmood with his rifle .222-bore which hit on the neck of Tariq Mehmood who fell down while in injured condition; that he and Rashid Naveed who was police employee and was on leave were running towards the shop on the report of firing and noise of the complainant party and tried to catch hold of Kaleemullah; that accused Kaleemullah fired two shots with his rifle .222-bore at Rashid Naveed which hit on the right side of chest and second shot hit on the back side of the chest near the right shoulder; that Rashid Naveed succumbed to the injuries and the accused fled away with their respective weapons. Facing the cross-examination Imran Ashraf (PW-2) stated that when the fire was made he and Rashid Naveed were coming out of the mosque after offering Asar prayers; that there were many persons who offered Asar prayers in the Mosque; that he did not know the name of Imam Masjid who led the prayer; that the mosque is situated towards the north from the chowk where Rashid Naveed was murdered and may be at the distance of 100 feet from the chowk; that `Namazi' did not come at the spot with them after hearing the fire shots; that Rashid Naveed who was posted at Lahore as constable had come to the village 4/5 days prior to the occurrence. He denied the suggestion that it was an unseen occurrence which took place at night time and that he was not present at the time and place of occurrence.
17.In the site-plan Exh.PG presence of the said witness Imran Ashraf is shown at Point No, 4 which is towards the north of Point No, 1 where Rashid Naveed allegedly received the injuries and died at the spot. Point No, 6 is the shop where Tariq Mehmood allegedly received injuries. Bare perusal of the site-plan (Exh.PG) makes it crystal clear that Point No, 6 is not visible from Point No, 4.
Statement of Imran Ashraf (PW-2) with regard to the occurrence relating to arrival of the appellant at the shop of Tariq Mehmood and firing a shot upon him therefore is totally immaterial as the said part of the occurrence could not be witnessed by him. He himself stated that they heard the report of fire-shot while coming out of the mosque. The mosque is not shown in the site-plan (Exh.PG). In the site-plan Point No, 5 is shown as the place where co-accused Usman and Abu Bakar intercepted Muhammad Arshad and Waqas PW on the gun point. It is neither so alleged by Waqas (PW-1) nor by Imran Ashraf (PW-2) in their examination-inchief. While facing cross-examination Imran Ashraf categorically stated that the police came to the spot at about 8:30 p.m. and that he did not make any statement to the police at the spot. He was categorically suggested by the defence that he had not made any statement to the police at the spot because he was not present at the time and place of occurrence. Although he denied the suggestion, however his admission that he had not made any statement to the police at the spot makes his presence at the time and place of occurrence doubtful.
18.Careful appraisal and comparative analysis of the testimonies of Waqas (PW-1) and Imran Ashraf (PW-2) therefore makes it crystal clear that both are chance witnesses have failed to establish any natural or probable reason of their presence at the time and place of alleged occurrence. Admittedly they are related witnesses. Their testimonies lacking intrinsic value and inherent worth cannot be relied upon.
19.Muhammad Younas SI (PW-10) first Investigating Officer of this case deposed that Kaleemullah appellant was arrested by him on. 4.9.2005 and got recovered weapon of offence rifle .222-bore (Exh.P.9) which was taken into possession through recovery memo. (Exh.PH). Contrary to the above, Waqas (PW-1) in his cross-examination has categorically stated that house of Kaleemullah accused is situated at a distance of 1 1/2 or 2 Acres towards the south from the place of occurrence and that police came and apprehended the accused Kaleemullah from his Haveli on the day of occurrence and was taken to the Police Station on the same day. It therefore makes crystal clear that, the investigation in this case was conducted dishonestly. In the circumstances safe inference can be drawn that alleged recovery of rifle -.222-bore (P.9) and empties could be the result of plantation and fabrication and thus are highly doubtful. Report of Forensic Science Laboratory (Exh.PX) with regard to the matching of the alleged empties with the alleged rifle .222-bore therefore becomes inconsequential and of no avail to the prosecution.
20.Occurrence allegedly took place at 5:30/5:45 p.m. on 9.8.2005 whereas post-mortem examination of Rashid Naveed was conducted the next day on 10.8.2005 at 9.00 a.m. Dr. Mehmood- ul-Hassan (PW-9) in his post-mortem report (Exh.PQ) has categorically observed the probable duration between death and post-mortem examination as about 12 hours meaning thereby the occurrence had taken place at about 8/9.00 p.m. in the dark time. The doctor in the post-mortem report (Exh.PQ) has also mentioned the time of death at 8.00 p.m. on 9.8.2005. In the inquest report of Rashid Naveed (Exh.PQ/4) time of his death is also mentioned as 9.00 p.m. on 09.08.2005. It therefore falsifies the prosecution version that the occurrence took place in the evening at 5:30/5.45 p.m. It also establishes doubts with regard to the presence of the alleged eye-witnesses at the time and place of occurrence and lead us to draw safe inference that it was an unwitnessed occurrence which took place in the dark hours of the night. Besides it is also pertinent to mention that twelve hours delay in conducting the post-mortem examination without assigning any sufficient reason therefore adversely reflects on the credibility of the prosecution version. Medical evidence therefore is at variance to the ocular account. Mere availability of the injuries on the person of the deceased is no evidence with regard to complicity of the appellant.
Reliance is made upon The State vs. Muhammad Sharif and others (1995 SCM R 635), Nazir Ahmad vs. Gehna Khan and others (2011 SCM R 1473) and Muhammad Sharif vs. The State (2012 SCM R 419).
21.Learned DPG at this stage has vehemently contended that MLC (Exh.PP) dated 9.8.2005 of Tariq Mehmood the then injured shows the time and date of his arrival in the hospital at 6.20 p.m. on 9.8.2005. We are afraid if the above entry could be of any use to the prosecution. Perhaps notes in the next three columns of the said MLC have escaped the sight of the learned DPG for the State which bear number and date of police docket i,e, case FIR No, 323/2005 dated 9.8.2005 and the number and name of the Constable i,e, Nadim Asghar C/740. Prosecution case is that FIR in this case was registered at 8:20 p.m. Be that as it may, how the injured Tariq Mehmood could be brought to the hospital by said Constable through police docket at 6:30 p.m. bearing FIR No, 323 of 2005. It therefore reflects serious manipulations in preparation of the MLC and the investigation of this case. Material inconsistencies and contradictions in this regard are certainly fatal to the credibility of the prosecution case.
22.Learned Law Officer has also laid much emphasis on his argument that statement of Tariq Mehmood (deceased) Exh.DB recorded under Section 161, Cr.P.C. by the Investigating Officer during hie admission in the hospital on 4.9.2005 clearly implicate Kaleemullah (appellant) for causing fire-shot injuries with rifle on his neck as well as for causing two fire-shots with rifle to Rashid Naveed (deceased). In this regard suffice to say that the same cannot be termed as a dying declaration. Neither it was ever proved by the prosecution as dying declaration of the deceased Tariq Mehmood nor put to the appellant in his statement under Section 342, Cr.P.C. Therefore the same cannot be termed as an incriminating material against the appellant and is of no avail to the prosecution. However the same can be used by the Court in the benefit of the accused/appellant. Reliance be made upon Muhammad Fayyaz vs. The State (2012 SCM R 522). In the said statement of Tariq Mehmood (Exh.DB) he has mentionedn about only two witnesses present at the time and place of occurrence i,e, his mother and one Abdul Shakoor besides Muhammad Arshad complainant. Prosecution has failed to produce the said Muhammad Arshad complainant, Abdul Shakoor and mother of Tariq Mehmood. Non-production of the said eyewitnesses also leads us to draw an inference against the prosecution rendering its case doubtful. It is also pertinent to mention that Tariq Mehmood died on 23.2.2006 about 6 1/2 months of the occurrence which allegedly took place on 8.9.2005. Postmortem examination on his dead- body Was conducted by Dr. Abdul Jabbar (PW-8) on 24.2.2006. He found healed scars present on front neck and back upper right chest of the deceased. Final opinion was deferred till the report of the Histo-pathologist. After receiving the said report (Exh.PN) he formulated following opinion:-- "In my opinion, the cause of death in this case was that deceased suffered from fire-arm injury to cervical spine area vide MLC No, 1044/05 MH dated 9.8.2005. He suffered from quadreparesis vide hospital record provided by Neurosurgical Unit-I Lahore General Hospital Lahore. In my opinion the autopsy findings, MLC Report No, 1044/05 MH dated 9.8.2005, Bacteriologist Report No, 107/2006 dated 4.3.2006 and treatment note were consistent with death due to hypostatic pneumonia in a person with quadreparesis and paraplegia resultant from fire arm injury to the cervical spine."
He was subjected to cross-examination by the defence counsel. It will be expedient to reproduce the same which reads below:-- The injured was medically examined on 9.8.2005 according to the death certificate the deceased Tariq had died on 23.2.2006 at Aziz Fatima Trust Hospital, Faisalabad. Tariq remained alive for about 6 1/2 months. There is no record available with me today to ascertain as to in which hospital Tariq remained admitted during the period and who has treated him. Witness has volunteered that record will be available in the hospital. Due to the prolong treatment and seriousness of injuries, complications developed due to which lungs were affected and cause of death of the result of failure of lungs. It is correct that the injury on the person of Tariq was not direct cause of death. It was the result of post-operation complications."
Although it is alleged by the prosecution that Tariq Mehmood remained admitted in various hospitals from the date of occurrence till his death, however fact remains that record of any of the hospitals is not produced in evidence. Doctor (PW-8) in his cross-examination admitted it correct that injury to the deceased .was not direct cause of death and it was result of post-operation complications. Therefore chances negligence in treatment and post-operation care of Tariq Mehmood deceased cannot be ruled out.
23.In this case prosecution has alleged particular motive that Kaleemullah appellant demanded Rs, 60,000/- which Tariq Mehmood (deceased) refused to pay. No independent evidence is brought on the record to establish that after settling the previous dispute in Punchayat the appellant had ever demanded any expenses or harassed the complainant party before the occurrence. Therefore, motive alleged by the complainant is not established through any reliable speck of ocular or documentary evidence.
24. Nutshell of the above is that the ocular account produced by the prosecution in this case in the shape of related and chance witnesses failing to furnish any natural or probable reason of their presence at the time and place of occurrence lacking intrinsic value and inherent worth cannot be safely relied upon. Alleged recoveries are highly doubtful and untrustworthy. Medical evidence produced by the prosecution is at variance, to the ocular account. Motive alleged against the appellant is not established with any reliable evidence. Material eye-witnesses are not produced and willfully withheld by the prosecution for the reasons best known to them.
25. It is cardinal principle of criminal law that prosecution remains under heavy burden to prove the charge against the accused beyond any shadow of doubt. In the instant case prosecution has failed to bring the guilt home to the appellant beyond any reasonable doubt. For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts. Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit. Reliance be made upon Iftikhar Hussain and others vs. The State (2004 SCM R 1185).
26. The impugned conviction and sentence is not based on any reliable, trustworthy and confidence inspiring ocular account. In the attending circumstances, learned trial Court while convicting and sentencing the appellant under Section 302(b) of the Pakistan Penal Code, 1800 erred in law as well as in fact. Therefore conviction and sentence of the appellant is untenable and liable to set aside.
27.For the above reasons, this appeal is allowed, conviction and sentence awarded to the appellant by the learned Additional Sessions Judge Sahiwal vide judgment dated 19.06.2008 is set- aside and he is acquitted of the charge given benefit of doubt. He shall be released from jail forthwith if not required in any other criminal case.
28. Death sentence is not confirmed and Murder Reference is answered in the negative.