' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No, 832 of 2007 filed by Asghar Ali and Muhammad Aslam appellants and Murder Reference No, 589 of 2007, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Asghar Ali and Muhammad Aslam, appellants, as both these matters have arisen out of the same judgment dated 29-5-2007, rendered by the learned Additional Sessions Judge, Bhalwal, in case F.I.R. No, 53 dated 14-2-2006, registered at Police Station Midh Ranjha, District Sargodha in respect of offences under sections 302/34/ 109, P.P.C., whereby, Asghar Ali and Muhammad Aslam, appellants were convicted under section, 302(b)/34, of P.P.C. For committing the murder of Ahmad Sher (deceased) and sentenced to death with a direction to pay the compensation amount of Rs,1,00,000 (Rupees one hundred thousand only) each to the legal heirs of deceased as envisaged under section 544-A, Cr.P.C. And in default, thereof, to suffer imprisonment for six months' S.I. Each.
Through the same judgment the learned trial court has, however, acquitted Mst. Rifat Bibi, Bukhsha and Allah Dad, co-accused while giving benefit of doubt to them.
2. Brief facts of the case as given by the complainant Massan (P.W.6) in F.I.R. (Exh.PF) are that he (complainant) was resident of Village Gullapur. He was residing at his dera and was a cultivator by profession. On 13-2-2006 at 'Sham Walla' (evening) Muhammad Aslam (appellant) from his mobile number 0333-2078827 rang Ahmed Sher (deceased) and asked him to come to him at night as he was having an important piece of work with him. Ahmed Sher (deceased) told the complainant about the call of Muhammad Aslam (appellant) and also told that he was going to meet him. At that time, Moula Bakhsh brother of the complainant was also present there. On suspicion the complainant sent his son Dawood (P.W.7) with Ahmed Sher (deceased). At about 12-30 a.m. (night) he (Dawood P.W.7) came back to the Dera and told the complainant that he (Dawood P.W.7) alongwith Ahmed Sher (deceased) and Noor Muhammad (given up P.W.) were going to the house of Muhammad Aslam (appellant) to meet him but when they reached near the house of Mohri Haral, electric bulbs were illuminating and it was a moonlit night. They saw that Muhammad Aslam, Asghar (appellants) armed with pistols and one unknown person armed with gun were sitting beside the wall of Mohri. Mst. Rifat (acquitted accused) was standing under a Mango tree and on seeing Ahmad Sher (deceased), she raised a `lalkara' that Ahmed Sher (deceased) had come on which Muhammad Aslam (appellant) made a fire shot with his pistol which hit Ahmed Sher (deceased) on the backside of his head. Unknown person made fire which hit Ahmed Sher (deceased) on the left side of his head above the ear. Asghar (appellant) made a fire shot which hit the deceased on his back whereupon Ahmed Sher (deceased) fell down. All the accused also made straight firing upon Dawood etc., but they saved themselves by taking shelter behind the wall and then they came to the Dera of complainant. On hearing about the occurrence the complainant and Moula Bakhsh, etc. Went to the place of occurrence but Ahmed Sher (deceased) had already succumbed to the injuries. It was further alleged that one day before the occurrence Ameer Machhi (P.W.10) and Ahmed (given up P.W.) were passing in front of the Taithak' of Muhammad Aslam (appellant) when they heard Bukhsha and Allah Dad (acquitted accused) instigating Asghar and Aslam (appellants) that Ahmed Sher (deceased) had developed illicit relations with Mst. Ambreen so they should murder Ahmed Sher (deceased) by taking him into confidence and they would handle the circumstances. All the accused committed the murder of Ahmed Sher (deceased) after consultation with each other.
3. The appellants were arrested on 1-4-2006 by Khuda Bukhsh, S.-I. (P.W.11). According to the prosecution case, during the course of investigation, on 2-4-2006, the appellant, Asghar Ali, led to the recovery of gun .12 bore (P-4), which was taken into possession along with two live cartridges (P.5/1-2) through memo Exh. PI. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants and their co-accused on 3-2-2007, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced eleven witnesses, during the trial. Massan (P.W.6), Dawood (P.W.7) and Noor Muhammad (P.W.8) are the witnesses of ocular account while Muhammad Ameer appeared as P.W.10 in order to prove the abetment.
' The medical evidence was furnished by Dr. Waqar Hameed (P.W.1), whereas, Khuda Bakhsh, S.-I.
(P.W.11) is the Investigating Officer of this case.
' Noor Muhammad, HC/1137 (P.W.2), Anar Khan C/1412 (P.W.3), Muhammad Riaz C/1788 (P.W.4), Muhammad Mumtaz, Revenue Patwari (P.W.5) and Allah Bakhsh (P.W.9) are the formal witnesses.
' The prosecution also produced documentary evidence in the shape of copy of postmortem report of the deceased Exh.PA, pictorial diagram Exh.PA/1, injury statement Exh.PB, inquest report of the deceased Exh.PC, memo of possession of last worn clothes of the deceased, Exh.PD, scaled site plan of the place of occurrence in duplicate Exh.PE and Exh.PE/1, F.I.R. Exh.PF, memo of possession of blood-stained earth Ex. PG, rough site plan of place of occurrence Ex. PH, memo of possession of gun 12 bore P.4 along with two cartridges P5/1-2, Exh. PI, rough site plan of place of recovery of gun P.4, Exh.PI/l.
5. The statements of appellants under section 342, Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to question "Have you anything else to say? " Asghar Ali appellant replied as under:- Asghar Ali appellant "According to 'the complainant party one unknown person fired at the deceased. The deceased party has many enemies and the occurrence took place during night time and there was no source of light. "
' In response to the above-said question, Muhammad Aslam appellant stated as under:-- Muhammad Aslam appellant "I am innocent and it was also concluded by all the Police Officers that I did not fire at the deceased".
' The appellants did not , opt to make statements on oath, under section 340(2), Cr.P.C., however, Asghar appellant produced evidence in his defence in the shape of certified copy of F.I.R. No, 236 of 2001, Police Station Midh Ranjha, Exh. DD, Certified copy of F.I.R. No, 452 dated 25-9-1998 under section 393/427, P.P.C. Of Police Station Midh Ranjha Exh. DE, its index Exh.DE/l, certified copy of F.I.R.
No, 396 dated 22-10-2006 under sections 324/452, P.P.C., Police Station Midh Ranjha, Exh. DF, certified copy of F.I.R. No, 406 dated 2-11-2000 under sections 324/148/149, P.P.C. Police Station Midh Ranjha Exh. DG, certified copy of F.I.R. No, 202 dated 29-10-1985 under section 307/34 P.P.C. Police Station Midh Ranjha Exh.DH, certified copy of F.I.R. Dated 15-6-1989 under sections 307/148/ 149, P.P.C. Police Station Midh Ranjha Exh. DI, certified copy of F.I.R. No, 122 dated 19-6-1989 under section 14-20/65 A.O. Police Station Midh Ranjha Exh. DJ, certified copy of F.I.R. No, 24 dated 4-3-1994 Police Station Midh Ranjha Exh. DK, certified copy of F.I.R. No, 344 dated 1997 under sections 302/148/149, P.P.C. Police Station Midh Ranjha Exh.DM, certified copy of F.I.R. No, 76 dated 2-5-1983 under sections 379/411, P.P.C. Police Station Midh Ranjha Exh. DN, certified copy of F.I.R. No, 222/1985 under section 10/18 Hadood Zina Ordinance Police Station Midh Ranjha Exh. DO, certified copy of F.I.R. No, 53 dated 5-3-2007 Police Station Midh Ranjha Exh.DP and F.I.R. No,305 dated 22-7-1987 under section 302/34, P.P.C. Police Station Midh Ranjha Exh.DQ, showing the criminal history of the complainant and his family members and closed his defence evidence.
6. The learned trial Court vide judgment dated 29-5-2007, while acquitting co-accused Bakhsha, Allah Dad and Mst. Riffat, found Muhammad Aslam and Asghar Ali appellants guilty and convicted and sentenced them as mentioned and detailed above.
7. Learned counsel for the appellants, in support of this appeal, contends that the occurrence took place during the odd hours of night and prosecution has failed to establish any source of light; that F.I.R. In this case also has not been lodged with promptitude as claimed by the complainant himself; that postmortem examination on the dead body of the deceased was conducted at 2-00 p.m. On the following day whereas Masson complainant (P.W.6) claimed that he lodged the report at Police Station after two hours of the occurrence, i.e, 2-00 a.m. On 14-2-2006; that opening paragraph of F.I.R. (Exh.PF) reads as follows:-- {{URDU TEXT}} ' and as the complainant has himself stated in the F.I.R. That on yesterday evening he was told by the deceased about the phone call of the appellant, therefore, all these facts clearly suggest that the occurrence being unseen at a place quite far away from the place of abode of the complainant was not reported by the complainant immediately as the same was unseen and it was in fact reported to the police on the following morning; that on account of suspicion the prosecution story was concocted and, thereafter, the F.I.R. Was lodged; that the complainant is not the eye-witness of the occurrence; that both the eye-witnesses, i.e, Dawood (P.W.7) and Noor Muhammad (P.W.8) produced by the prosecution have failed to establish their presence at the place of occurrence; that they can safely be termed as chance witnesses; that the prosecution did not bring any circumstance on record to justify their presence/ accompanying the deceased at the time of occurrence; that the eye-witnesses frankly conceded that their place of abode was situated at a distance of 1-1/2 k.m. From the place of occurrence; that Khuda Bukhsh, S.-I. (P.W.11), Investigating Officer has stated that in fact the witnesses resided at a place situated at about three miles from the place of occurrence; that taking into consideration the facts brought on the record by the prosecution in entirety, it can safely be inferred that the story of joining the deceased by the two witnesses and their presence at the scene of occurrence has later on been concocted by the complainant in order to make out a case against the accused persons; that the prosecution has failed to connect the appellant with the offence by any corroborative piece of evidence; that as far as recovery of weapon of offence from Asghar Ali appellant is concerned, the same does not connect him with the commission of offence as there is no report of Forensic Science Laboratory, besides the same was recovered in violation of section 103, Cr.P.C.; that as far as Aslam -appellant is concerned, nothing incriminating was recovered on his pointation; that the motive always has been considered as a double edged weapon and even otherwise after discarding and disbelieving the story of conspiracy by the learned trial Court, the evidence of motive also falls on the ground which cannot be used against the appellants; that it is well-settled proposition of law that medical evidence is always considered supportive evidence but that too in the present case does not support the prosecution version as according to the Medical Officer, Dr.Waqar Hameed (P.W.1), who conducted the postmortem examination on the dead body of Ahmad Sher deceased, possibility of one gun shot was not ruled out as all the injuries received by the deceased were on his backside; that it was established on record that a single gun shot was fired from a long distance which clearly belies the prosecution stance that three fire shots were made at the deceased; that the complainant's version of receiving phone call by the deceased whereby he was called at the place of occurrence also has not been established on the record as no call data was produced by the prosecution during the course of investigation or even at the stage of trial: that in the absence of any call data or recovery of phone set either from the appellant, or from the deadbody of the deceased, the prosecution story does not inspire confidence; that even otherwise, it is against the normal human conduct that a father would send his two young sons at the odd hours of night at a place where he suspects danger to them; that the prosecution miserably failed to prove its case against the appellants beyond the shadow of doubt, thus, this appeal be accepted and the appellants may be acquitted from the charge.
8. Conversely, the learned Deputy. Prosecutor-General, for the State, assisted by learned counsel for the complainant opposes this appeal on the grounds that the F.I.R. In this case was .Edged with promptitude in which specific allegation of making firing by the appellants has been levelled; that the police station is at a distance of 19 k.Ms. From the place of occurrence and the F.I.R. Has been registered within two hours which clearly suggests the presence of the eye-witnesses at the spot; that place of occurrence is a thoroughfare and the eye-witnesses are residents of the locality and they have no enmity to falsely involve the appellants in this case; that the recovery of gun at the instance of Asghar appellant further strengthens the prosecution case; that motive was not seriously contested by the opposite party and as such the same is to be deemed to have been proved; that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellants and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
9. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance.
10. The occurrence in this case took place on 14-2-2006 at 12-5 p.m. The detail of the prosecution case has already been given in para No, 2 of this judgment, therefore, there is no need to repeat the same, however, the gist of the prosecution case is that on the evening of 13-2-2006 Ahmad Sher (deceased) received a phone call on his mobile phone from the mobile of phone number 0333-2078827, of Muhammad Aslam appellant, who asked Ahmad Sher (deceased) to come to him as he had some important piece of work with him. Ahmad Sher deceased told the complainant that he was going to Muhammad Aslam appellant. Masson complainant (P.W.6) felt suspicion about the abovementioned telephone call, therefore, he asked his other son namely Dawood (P.W.7) to accompany Ahmad Sher (deceased) to the house of Muhammad Aslam (appellant). At about 12-30 a.m. (night), Dawood (P.W.7) came back and told the complainant that he and his paternal cousin Noor Muhammad (P.W.8) and Ahmad Sher (deceased) were going towards the house of Muhammad Aslam appellant and when they reached near the house of Mohri Haral, the electric bulb were illuminated and there was also the light of moon and they saw that Muhammad Aslam and Asghar Ali appellants, both armed with pistols along with an unknown companion who was armed with gun were standing on the corner of the house of Mohri Harral near a wall, while. Mst. Riffat accused (since acquitted) was standing under a mango tree. Dawood (P.W.7) further told that on seeing them Mst. Riffat accused (since acquitted) shouted that Ahmad Sher (deceased) had come, whereupon, Muhammad Aslam appellant made a fire shot at Ahmad Sher (deceased) which landed on the backside of his head. Second fire shot was made by unknown accused person which landed on the left side of the head, above the left ear of Ahmad Sher (deceased). Then Asghar Ali appellant made a fire shot which landed on the back of the chest of Ahmad Sher (deceased). Muhammad Aslam and Asghar Ali appellants, thereafter, also made ineffective firing at Dawood (P.W.7) and Noor Muhammad (P.W.8), who took shelter behind the wall of the house of one Zafar. It was further alleged that the appellants alongwith their co-accused committed the murder of Ahmad Sher (deceased) as they suspected that Ahmad Sher (deceased) had illicit relations with Mst. Ambreen, daughter of Bakhsha accused (since acquitted).
11. It is evident from the perusal of record that occurrence took place near the house of the appellants and this fact was brought on the record during the cross-examination of Massan complainant (P.W.6) who has stated that the occurrence took place at a distance of some karams from the house of the accused persons, where Mst. Ambreen used to live. The eye witnesses namely, Dawood (P.W.7) and Noor Muhammad (P.W.8) are not residents of the locality where this occurrence took place. Dawood (P.W.7) has admitted during his cross-examination that his `Dera' was at a distance of 1:05 k.Ms. From the place of occurrence. Similarly, the Investigating Officer namely, Khuda Bakhsh, S.-I. (P.W.11) has also stated during his cross-examination that the Dera' of complainant was at a distance of 3 miles from the place of occurrence. The presence of abovementioned eye-witnesses at a far off place from their residence at the odd hours of night i.e, 12-5 a.m. Is highly improbable. The reason given by the complainant for presence of the abovementioned eye-witnesses at the spot at the relevant time does not appeal to common sense. He (complainant Masson P.W.6) has stated in the F.I.R. That on the evening of 13-2-2006 Ahmad Sher (deceased) received a phone call on his mobile phone from the mobile phone No, 0333-2078827 of Muhammad Aslam appellant, who asked Ahmad Sher (deceased) to come on that night as he had some important piece of work with him. The complainant has himself stated that he felt suspicion about the said call, therefore, it is not understandable that even then why did he allow his son Ahmad Sher (deceased) to go to the house of accused persons at the odd hours of night (11-00 p.m.). He (complainant) did not bother to ask his deceased son as to what was that important piece of work which Muhammad Aslam appellant had to discuss with him at the odd hours of night. No mobile phone data of any mobile number of Muhammad Aslam appellant or of Ahmad Sher deceased has been brought on the record to substantiate the abovemuitioned prosecution story. We have also noted that no mobile phone set was found in the clothes or near the dead body of Ahmad Sher (deceased) at the time of inspection of the deadbody, by the I.O. As per inquest report Exh.PC. Similarly no mobile phone set was recovered from Muhammad Aslam appellant during his physical remand. The prosecution case as set forth in the as well as, in the statement of Massan complainant (P.W.6) was that Ahmad Sher deceased received telephone call on the evening of 13-2-2006. As it was the month of February, therefore, it means that Ahmad Sher deceased received telephone call from Muhammad Aslam appellant at around 5-00 p.m., whereas, the occurrence took place at 12-5 a.m. (night). It does not appeal to a prudent mind that the accused persons kept on waiting for almost 7 hours for Ahmad Sher (deceased) while standing armed in the village Abadi.
12. According to the statements of prosecution eye-witnesses, Muhammad Aslam and Asghar Ali (appellants) both were armed with pistols at the time of occurrence whereas an unknown accused person was armed with .12 bore gun. Both the appellants were assigned the role of making one fire shot each on the person of Ahmad Sher deceased with the help of their respective pistols, but no pistol was recovered from the possession of both the appellants during their physical remand rather a .12 bore gun P-4 was allegedly recovered from Asghar Ali appellant. As mentioned earlier, it was never the case of prosecution that Asghar Ali appellant was armed with .12 bore gun at the time of occurrence. We have noted that Dr. Waqar Hameed (P.W.1) recovered two metallic bodies, one from the scalp cavity and other from the left lung of Ahmad Sher deceased at the time of his postmortem examination; ' He has further stated in his examination-inchief (page 17 of the paper book) that after the postmortem examination he handed over the postmortem report along with a sealed bottle which contained two metallic foreign bodies to Muhammad Riaz Constable. We have noted that the said metallic foreign bodies were neither sent to the Forensic Science Laboratory for their comparison with the gun P-4 nor the same were exhibited in evidence by the prosecution. On perusal of the police record we have further noted that the said metallic bodies were pellets which were taken into possession by the I.O. Vide Memo dated 14-2-2006 but the said memo was not exhibited in evidence, apparently for the reason that the recoveries of pellets from the head and lung of Ahmad Sher deceased did not support the prosecution case because as per prosecution case the appellants did not make fire shots with .12 bore gun rather they made fire shot with pistols on the head and on the backside of the chest of Ahmad Sher deceased. As recovery memo of pellets dated 14-2-2006 has not been exhibited in evidence, therefore, we cannot place any reliance on the said memo, however, it was established through the evidence of Dr. Waqar Hameed (P.W.1) that two metallic bodies were handed over to Muhammad Riaz Constable (P.W.4) and as the prosecution did not produce the said metallic bodies in evidence, therefore, an adverse inference within the meaning of Article 129(g) of Qanun-e-Shahadat, 1984 is to be drawn against the prosecution that had the above mentioned two metallic bodies been produced in evidence then the said evidence would have been unfavourable to the prosecution. We may refer here the case of The State v. Abdul Khaliq and others (PLD 2011 SC 554). Relevant part of the said judgment at Pages No, 588 and 589 is reproduced hereunder for ready reference:-- "As regards the other submission of Ch. Aitzaz Ahsan, learned senior Advocate Supreme Court, that the statement under section 164, Cr.P.C. Of those witnesses who have not been examined by the prosecution is not a substantive piece of evidence and cannot be used for any purpose in the case, including to support the plea of the defence, suffice it to say that admittedly in this case the Magistrate before whom the statements were recorded has appeared as a witness and has produced in evidence, inter alia, the statements of Ghulam Fareed, father of the complainant and Ghulam Nabi which were duly exhibited. In an answer to a question by the defence counsel, the Magistrate in unequivocal terms stated that Ghulam Nabi appeared before him and stated that on the day of occurrence he was not in the village, rather had gone to meet the relatives at Dera Ismail Khan and returned after two days when he learnt about the incident; these statements have been produced by the prosecution in the evidence itself as aforestated, the contents are also proved by the Magistrate, who recorded it; though ordinarily the opposite side can use such a document to its advantage which has been produced by the other side and the party producing it in evidence is bound by the fall out thereof, however, when the statement is under section 164, Cr.P.C. Of a person, who is not produced, it cannot be considered as a substantive piece of evidence, but at the same time the criminal court in order to administer safe justice, in consonance and in letter and spirit of section 162(2), Cr.P.C. May use such statement not as evidence, but to aid it, the said statement thus can be looked into, for drawing the presumption under Article 129(g) of QSO, 1984, because Ghualm Nabi was the star witness of the prosecution, who throughout remained in touch with the alleged events, he was allegedly present at the time of panchayat, the occurrence and even went along with the prosecutrix to register the case in which he is specifically named, as a witness, but was given up by the prosecution not being won over, but as unnecessary. The court, thus, for the propose (s) of drawing a presumption for withholding the best evidence under the said Article could examine the statement and make up its mind in this context. Had Ghulam Nabi been examined by the prosecution, the defence would have validly confronted him with his statement to create a vital dent in the prosecution version, and it seems that in order to avoid the repercussions and consequences thereof, he was given up. Adverse presumption of withholding the father of the prosecutrix could likewise be validly drawn ."
' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of Riaz Ahmad v. The State (2010 SCM R 846) and Khalid alias Khalidi and 2 others v. The State (2012 SCM R 327).
13. There is no corroboration of the prosecution case by the recoveries of weapons of offence from the appellants. As discussed earlier, according to the prosecution case, both the appellants were armed with pistols at the time of occurrence, but no pistol was recovered from the possession of Muhammad Aslam appellant. Similarly, no pistol was recovered from the possession of Asghar Ali appellant and instead a gun .12 bore (P.4) has been alleged to be recovered on the pointation of said appellant. No empty was recovered from the place of occurrence whereas two metallic foreign bodies which were recovered from the body of Ahmad Sher deceased were never sent to the Forensic Science Laboratory for their comparison with gun (P.4). In absence of any wedding report of empty or metallic bodies recovered from the body of Ahmad Sher deceased, the alleged recovery of gun (P.4) on the pointation of Asghar Ali appellant is of no avail to the prosecution.
14. According to the prosecution case the motive behind the occurrence was that the accused suspected that Ahmad Sher deceased had illicit relations with Mst. Ambreen daughter of Bakhsha accused (since acquitted). The prosecution evidence qua motive mainly revolved around the statement of Muhammad Arneer (P. W.10) who has stated that on 12-2-2006, he alongwith Ahmad (given up P.W.), overheard the appellants and their co-accused namely, Allah Dad and Bakhsha (both since acquitted) who were sitting in the baithak' of Muhammad Aslam appellant where Bakhsha accused (since acquitted) asked the appellants to kill Ahmad Sher (deceased) as he had developed illicit relations with Mst. Ambreen (daughter of Bakhsh). The evidence of abovementioned witness of abetment/motive namely Muhammad Ameer (P. W.10) has already been disbelieved by the learned trial Court and resultantly Bakhsha and Allah Dad who were accused of abetment and motive have been acquitted by the learned trial Court. No appeal against their acquittal has either been filed by the State or by the complainant as admitted by the Deputy Prosecutor-General for the State, as well as, by the learned counsel for the complainant and as such the decision qua acquittal of abovementioned co-accused has attained finality. We are, therefore, of the view, that the prosecution evidence qua motives which has already been disbelieved against co-accused (since acquitted) specially Baksha, cannot be believed against the appellants.
15. Insofar as the medical evidence furnished by the prosecution is concerned it is by now well- settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the occurrence. Reference in this respect may be made to the case of Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 Supreme Court 53).
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of Mursal Kazmi ailas Wamar Shah v. The State (2009 SCM R 1410) and Altaf Hussain v. Fakhar Hussain and another (2008 SCM R 1103).
16. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond the shadow of doubt. It is by now well-settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created doubt about the prosecution story. In Tariq Pervez v. The State (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-
5. The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
' The Hon'ble Supreme Court of Pakistan while reiterating the. Same principle in the case of Muhammad Akram v. The State (2009 SCM R 230), at page 236, observed as under:-
13. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
17. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt, therefore, we accept the Criminal Appeal No,832 of 2007 filed by Muhammad Aslam E and Asghar Ali appellants, set aside their conviction and sentence and acquit them of the charge by extending them the benefit of doubt.
They are in custody, they be released forthwith if not required in any other case.
' Murder Reference No, 589 of 2007 is answered in the NEGATIVE and the sentence of death of Muhammad Aslam and Asghar Ali (convicts) is NOT CONFIRMED.