' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No,657 of 2010 filed by Ali Mumtaz appellant and Murder Reference No,213 of 2010, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Ali Mumtaz appellant, as both these matters have emanated out of the same judgment dated 6-3-20:10, passed by the learned Sessions Judge, Pakpattan in case F.I.R. No, 931 dated 19-11 2009, offence under section 302 of P.P.C., Police Station Sadar, Pakpattan, whereby, Ali Mumtaz (appellant) was convicted under section 302(b) of P.P.C. For committing the murders of Mst. Zareena Bibi, Mst. Rubina Bibi and Muhammad Akram and was sentenced to death on three counts with a direction to pay the compensation amount of Rs,1,00,000 (Rupees one hundred thousand only) for each murder to the legal heirs of three deceased and in default thereof to suffer simple imprisonment for six months.
2. Brief facts of the case as given by the complainant Haji Muhammad Yasin (P.W.8) through his 'Fard Biyan' Exh. PD, on the basis of which the formal F.I.R. Exh.PD/1 was chalked out are that he (complainant) was resident of Deedar Sing and was an Imam Masjid in Addah Farid Kota On the night of 19-11-2009, the complainant and his son Ghazanfar Ali (P.W.9) went to the house of his (complainant's) daughter, Mst, Zareena Bibi (deceased) and slept in front of the room of Mst.
Zareena Bibi (deceased). At about 12-30 a.m. (night), they (P.Ws.) woke up after hearing the voice of the footsteps and saw in the light of electricity that Ali Mumtaz (appellant) armed with .30 bore pistol entered into the room of Mst. Zareena Bibi (deceased), who saw Muhammad Akram (deceased) in the room of Mst. Zareena Bibi (deceased), whereupon, he (appellant)) made fire shots with his .30 bore pistol, one after the other which landed on the left eye, left side of the neck, on the right side of chest, right side of the abdomen, right arm and left arm of Muhammad Akram (deceased). On the report of firing, Mst. Zareena Bibi (deceased) got up from the cot and then Ali Mumtaz appellant also made fire shots at Mst. Zareena Bibi (deceased) hitting her on the right side of the head. After hearing the noise of firing Shakoor Ahmad (given up P. W) and other people attracted to the spot and in the meanwhile Ali Mumtaz appellant fled away from the place of occurrence. They (P.Ws.) followed Ali Mumtaz appellant who entered in his house where, he also quarreled with his wife Mst. Rubina Bibi (deceased) and the appellant then made fire shots with .30 bore pistol hitting Mst. Rubina Bibi on the left side of face, outer side of left eye, left side of the neck and right side of the head. They (P.Ws.) tried to catch hold of the appellant but he (appellant) while making firing decamped from the spot. Muhammad Akram, Mst. Zareena Bibi and Mst. Rubina Bibi succumbed to the injuries and died at the spot.
' The motive behind the occurrence as set forth in the F.I.R. Exh. PD/1 was that the appellant forbade Muhammad Akram deceased from visiting the house of his (appellant's) Saali (sister-in-law), Mst.
Zareena Bibi (deceased) but in spite of that. Muhammad Akram deceased visited the house of Mst.
Zareena Bibi deceased therefore, the appellant committed the occurrence. It was further alleged in the F.I.R. That as wife of the appellant Mst. Rubina Bibi (deceased) reprimanded the appellant, therefore, she was also murdered by the appellant.
3. The appellant Ali Mumtaz was arrested on 1-12-2009 by Muhammad Tufail, SI (P.W.11). On 7-12- 2009, Ali Mumtaz appellant led to the recovery of Sabbal P-8, which was taken into possession vide recovery memo Exh. PG/A. On the same day. All Mumtaz appellant led to the recovery of .30 bore pistol P-10 with three live bullets P-11/1-3, which were taken into possession vide recovery memo Exh. PH, After completion of investigation, the chalian 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 appellant on 21-1-2010 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced eleven witnesses during the trial. Haji Muhammad Yasin complainant (P.W.8) and Ghazanfar Ali (P.W.9) are the witnesses of ocular account.
' The medical evidence was furnished by Dr. Muhammad Zafar Iqbal (P.W.3) and Lady Dr. Zahida Irshad Khan (P.W.4).
' Haji Muhammad Yasin complainant (P.W.9) is also the witness of recovery of Pistol .30 bore P-10 alongwith three bullets P-11/1-3 and Sabbal P-8, which were recovered on the pointation of Ali Mumtaz appellant and taken into possession vide recovery memo Exh. PG/A and Exh. PH, respectively. Muhammad Tufail, SI (P.W.11) is the Investigating Officer of the case.
' Muhammad Shabbir 302/C Qudrut Ullah 262/C (P.W.2), Muhammad Mansha, A.S.-I./Mohrrar (P.W.5), Muhammad Akram son of Muhammad Nawaz Muhammad Akram son of Muhammad Haneef and Ghulam Mustafa draftsman (P.W.10) are the formal witnesses.
' The prosecution also produced documentary evidence in the shape of post report of Muhammad Akram deceased Exh.PA and pictorial Viagrams Exh. PA/1 and Exh. PA/2, injury statement of Muhammad Akram deceased Exh. PA/3, Inquest report Exh. PA/4, post-mortem report of Mst.
Zareena Bibi deceased Exh. PB and pictorial diagrams Exh,PB/I and Bibi deceased Exh. PB/3, inquest report Exh.PB/4, post-mortem report of Mst. Rubina Bibi deceased Exh. PC and pictorial diagrams Exh. PC/1 and Exh. PC/2, Injury statement of Mst, Rubina Bibi deceased Exh. PC/3, inquest report Exh.
PC/4, Fard Bayan of the complainant Haji Muhammad Yasin (P.W.8) for registration of ease Exh. PD, F.I.R. Exh. PD/1, memo of possession of last worn clothes of Muhammad Akram deceased Exh. PE, memo of possession of last worn clothes of Mst. Zareena Bibi deceased Exh. PF, memo of possession of last worn clothes of Mst, Rubina Bibi deceased Exh. PG, memo of possession of iron Sabbal P-8 Exh.PG/A, memo of possession of pistol .30 bore P-10 along with three live bullets P-11/1- 3 Exh. PH, rough site plan of the place of recovery of iron Sabbal P-8 and pistol .30 bore, P-10 alongwith three live bullets P-11/1-3 Exh. PH/1, memo of possession of blood-stained earth recovered from the place of murder of Mst. Rubina Bibi (deceased) Exh. PJ, memo of possession of blood- stained earth recovered from the place of murder of Mst. Zareena Bibi (deceased) Exh. PK, memo of possession of blood-stained earth recovered from the place of murder of Muhammad Akram (deceased) Exh. PL, memo of possession of empty cartridges of .30 bore pistol Exh. PM, scaled site plan of the place of occurrence in duplicate Exh. PN and Exh. PN/1, rough site plan of the place of occurrence Exh. PO, report of Chemical Examiner of earth of Muhammad Akram (deceased) Exh. PP, report of Chemical Examiner of earth of Mst. Zareena Bibi (deceased) and report of Chemical Examiner of earth of Mst. Rubina Bibi (deceased) (both exhibited as Exit. PP/2), report of Serologist Exh. PQ, Forensic Science Laboratory report Exh. PR and closed its evidence.
5. The statement of the appellant under section 342 of Cr.P.C. Was recorded. He refuted the allegations levelled against him and professed his innocence. While answering to a question that "Why this case against you and why the P. Ws. Have deposed against you" the appellant made the following statement:-- "It is a false case. I have been roped in this case at the behest of Ali Afzal. In fact Ali Afzal is responsible for the killing of Akram, Rubina and Zareena, with the help of his companions. P.Ws. Are related inter se and they have deposed falsely against me. Rubina Bibi was my wife and the stepsister of Ghazanfar. She was not on visiting terms in the house of Yaseen and Ghazanfar. I had not even attended their couple of marriages."
' Neither the appellant make statement on oath; under section 340 (2) of Cr.P.C. Nor produced any evidence in his defence. The learned trial Court vide its judgment dated 6-3-2010, convicted the appellant under section 302(b), P.P.C. And sentenced him as mentioned and detailed above.
6. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that eye-witnesses namely Haji Muhammad Yasin complainant (P.W.8) and Ghazanfar Ali (P.W.9) have not been able to assign any valid reason for their presence at the spot at the relevant time, thus, the presence of above mentioned eye- witnesses at the spot, at the time of occurrence could not be established; that story of the complainant in the F.I.R. Was to the effect that the complainant Haji Muhammad Yasin (P.W.8) and Ghazanfar Ali (P.W.9) went to the house of Mst. Zareena Bibi (deceased) and slept in front of the room of Mst. Zareena Bibi (deceased). At about 12.30 a.m. (night), they (P.Ws.) after hearing some noise saw in the light of electricity that Ali Mumtaz (appellant) armed with .30 bore pistol entered into the room of - Mst. Zareena Bibi (deceased) where he saw Muhammad Akram (deceased) in the room of Mst. Zareena Bibi (deceased), on which, the appellant made fire shots with .30 bore pistol which landed on the left eye, left side of the, neck, chest, right side of the abdomen, right arm and left arm of Muhammad Akram (deceased) and on the right side of the head of Mst. Zareena Bibi (deceased) but while appearing before the learned trial Court the complainant changed his version altogether; that the complainant was confronted with his previous statement and the improvements made by him were duly brought on the record; that same was the case of the other eye-witness namely Ghazanfar Ali who also made dishonest improvements in his statement before the court; that there is conflict between the ocular account and medical evidence to the extent of murder of Mst. Rubina Bibi. (deceased); that the motive as alleged by the prosecution has also not been proved in this case; that so far as alleged recovery of pistol .30 bore P-10 from the possession of the appellant and positive, report of FSL is concerned, it is contended by learned counsel for the appellant that the empties were taken into possession on 19-11-2009, the appellant was arrested on 1-12-2009 the pistol was recovered on 7-12-2009 and the empties were sent to the Forensic Science Laboratory on 17-12-2009, i,e, sixteen days after the arrest of the appellant and ten days after the recovery of pistol, therefore, the alleged recovery of pistol P-10 carries no lue in the eye of law; that the prosecution serably failed to prove its case against e appellant beyond the shadow of doubt, us, this appeal be accepted and the pellant may be acquitted from the rges.
7. Learned Deputy Prosecutoreral, for the State assisted by learned counsel for the complainant opposes this appeal on the grounds that the appellant has specifically been named in the F.I.R.
With specific role; that there was no reason to falsely implicate the appellant as the appellant was 'Damad' (son-in-law) of the complainant; that presence of the complainant and other eye-witness in the house of their daughter/sister, is quite natural and the complainant has not changed his version before the court rather he explained the prosecution story; that the ocular account is fully supported by the medical evidence, which fact is evident from the post mortem reports of the deceased, that there is no material conflict between the ocular account and medical evidence to the extent of murder of Mst.
' Rubina Bibi deceased; that it is a case of single accused and substitution in such like cases is a rare phenomenon; that the motive has also been proved against the appellant; that the prosecution case is further corroborated by the evidence of recovery of Pistol P-10 and Sabbal (iron rod) which were recovered on the pointation of appellant and positive report of Forensic Science Laboratory; that there is no mitigating circumstance in this case; that the sentence of death was tightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
8. 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.
9. The detail of the prosecution case as set forth in the F.I.R. Exh. PD/1 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 he (complainant) was resident of Deedar. Singh and was an Imam Masjid in Addah Farid Kot. On the night of 19-11-2009, the complainant and his son Ghazanfar Ali (P.W.9) went to the house of his (complainant's) daughter, Mst. Zareena Bibi (deceased) and slept in front of the room. Of Mst. Zareena Bibi (deceased). At about 12.30 a.m. (night), they (P.Ws.) woke up after hearing the voice of foot-steps and saw in the light of electricity that Ali Mumtaz (appellant) armed with .30 bore pistol entered into the room of Mst. Zareena Bibi (deceased), who, saw Muhammad Akram (deceased) in the room of Mst. Zareena Bibi (deceased), whereupon, he (appellant) made fire shots with his .30 bore pistol, one after the other which landed on the left eye, left side of the neck, on the right side of chest, right side of the abdomen, right arm and left arm of Muhammad Akram (deceased). On the report of firing, Mst. Zareena Bibi (deceased) got up from the cot and then Ali Mumtaz appellant also made fire shots at Mst. Zareena Bibi (deceased) hitting her on the right side of the head. After hearing the noise of firing Shakoor Ahmad (given up P. W) and other people; attracted to the spot and in the meanwhile Ali Mumtaz appellant fled away from the place of occurrence. They (P.Ws.) followed Ali Mumtaz appellant who entered in his house where, he also quarrelled with his wife Mst. Rubina Bibi (deceased) and the appellant then made fire shots with .30 bore pistol hitting Mst. Rubina Bibi on the left side of face, outer side of left eye, left side of the neck and right side bf the head. They (P.Ws.) tried to catch hold of the appellant but he (appellant) while making firing decamped from the spot. Muhammad Akram, Mst. Zareena Bibi and Mst. Rubina Bibi succumbed to the injuries and died, at the spot.
' The motive behind the occurrence as set forth in the F.I.R. Exh. PD/1 was that the appellant forbade Muhammad Akram deceased from visiting the house of his (appellant's) 'Saali ' (sister-in-law), Mst.
Zareena Bibi (deceased) but in spite of that Muhammad Akram deceased visited the house of Mst.
Zareena Bibi deceased, therefore, the appellant committed the-occurrence. It was further alleged in the F.I.R. That as wife of the appellant Mst. Rubina Bibi (deceased) reprimanded the appellant, therefore, she was also murdered by the appellant.
10. The case of prosecution as narrated in the F.I.R. Was highly improbable. Haji while Muhammad Yasin complainant (P.W.8) has stated in the F.I.R. Exh. PD/1 that on the night of occurrence, i,e, 19-11- 2009 he (complainant) alongwith his son namely Ghazanfar Ali (P.W.9) slept outside the room of Mst. Zareena Bibi deceased and at about 12.30 a.m. (night) they woke up on hearing the voice of footsteps of the appellant. He further stated that Muhammad Akram deceased was in the room of Mst. Zareena Bibi deceased and as the appellant had already forbidden Muhammad Akram deceased from visiting the house of his Saali (sister-in-law), Mst. Zareena Bibi deceased and because he saw Muhammad Akram deceased in the room of Mst. Zareena Bibi deceased, therefore, he (appellant) committed the occurrence. It is highly improbable that when the real fathei and brother of Mst. Zareena Bibi deceasea were sleeping out side the room of Mst. Zareena Bibi deceased then her paramou Muhammad Akram would come and ente the room of the deceased. Even otherwi the story of the prosecution as mentioned the F.I.R. Exh.PD/1 does not appeal common sense because the occurrence too place in the winter season, i,e, 19-11-2009 at about 12.30 a.m. (night) and it is not probable that the complainant Haji Muhammad Yasin (P.W.8) and his son Ghazanfar Ali (P.W.9) would sleep in the courtyard during the cold night of winter season. We have also perused the site plan of the place of occurrence in which other rooms apart from the room of occurrence have been shown and no reason for sleeping of the eye-witnesses in the courtyard during the winter season has been mentioned in the F.I.R. It is also noteworthy that the story of cite prosecution mentioned in the F.I.R. Was in conflict with the medical evidence because according to the said story the appellant committed the occurrence giving firearm injuries on the person of his wife Mst. Rubina Bibi deceased. It was not alleged in the F.I.R. That the appellant used any sharp-edged weapon but according to the medical evidence furnished by Lady Dr. Zahida Irshad Khan (P.W.4) two injuries attributed to the appellant, on the person of Mst.
Rubina Bibi deceased were caused by sharp-edged weapon. The aforementioned eye-witnesses were aware of all the weaknesses mentioned above, in the prosecution case, therefore, while appearing before the learned trial Court they completely changed the prosecution story. Haji Muhammad Yasin complainant (P.W.8) while making his statement before the learned trial Court has stated that on 18-11-2009 he received a phone call from his daughter Mst. Zareena Bibi deceased who complained that Ali Mumtaz appellant was vexing her and had also thrashed his wife Mst. Rubina Bibi deceased and she requested them (P.Ws.) to come for his reformation. He (complainant), thereafter alongwith Ghazanfar Ali (P.W.9) went to the house of Mst. Zareena Bibi deceased where he called Ali Mumtaz appellant and tried to make him understand. He further stated that they (P.Ws.) also called Muhammad Akram deceased and Shakoor (given up P.W), whereupon, a dispute arose between the appellant and Muhammad Akram deceased and Shakoor (given up P.W.). Ali Mumtaz appellant took out a pistol from his Nepha and committed the murder of Muhammad Akram deceased and Mst. Zareena Bibi deceased. He further improved his statement by stating that Ali Mumtaz appellant committed the murder of Mst. Rubina Bibi deceased with the help of firearm, as well as, with the help of Sabbal (iron rod) and caused two injuries on the head of Mst. Rubina Bibi deceased with the help of Sabbal (iron rod). Similarly Ghazanfar Ali (P.W.9) also changed his version while making his statement before the learned trial Court and stated an altogether different story from the one A which he narrated before the police in his statement. Exh. DA. Both the above mentioned eye-witnesses were confronted with their previous statements and improvements made by them were duly brought on the record. The relevant parts of the statements of aforementioned eyewitnesses at Pages Nos. 24, 25 and 28 of the paper-book read as under: - Haji Muhammad Yasin (P.W.8)
' I had made statement before the police. Thanedar wrote it. I had stated before the Thanedar that Zarina had phoned me and Ghazanfar (confronted with Exh. PD wherein not so recorded). I had also stated the time of this phone call at 04.00 p.m. (confronted with Exh.PD, wherein not so recorded). I had also told the Thanedar that by phone call Zarina Bibi told us that Ali Mumtaz had thrashed his wife Rubina. (Confronted with Exh PD, wherein not so recorded). Volunteers, I do not know if Thanedar wrote it or not. I told the Thanedar that I and Ghazanfar tried to make Ali Mumtaz understand for reforming himself. Volunteers, I do not know if it was inked or not. (Confronted with Exh.PD, wherein not so recorded). I told the police that there was exchange of invectives with Mumtaz. Volunteers, I do not know if it was inked or not. (Confronted with Exh.PD, wherein not so found). I mentioned in my statement before Thanedar that Ali Mumtaz brought out pistol from his Nefa. Volunteers, I do not know whether it was written or not. (Confronted with Exh.PD, wherein not so recorded). I had stated before the police that after firing by Ali Mumtaz at Akram, Zareena Bibi rebuked him (Confronted with Exh.PD, wherein not so recorded). I stated before the police that Ali Mumtaz fired two shots at Rubina Bibi, which hit her head on the left temporal area and right side of the face. (Confronted with Exh.PD, wherein the multiple fires are mentioned, but the locale as the left side of the face on the exterior side of the left eye and on the right side of the head and on the left side of neck in the front are not). I also stated before the police that Ali Mumtaz caused 2/3 sabbal blows on the head of Rubina Bibi. (Confronted with Exh.PD wherein not so recorded). I also stated before the police that the accused decamped by crossing over the wall near the manger.
(Confronted with Exh.PD, wherein not so recorded and only the decamping is mentioned). I stated before the police that the accused was liquor addict and a debauch. (Confronted with Exh.PD, wherein not so recorded).
Ghazanfar An (P.W.9)
' I made statement before the police. I stated before the police that my sister Zarina phoned me that Ali Mumtaz vexing her and upon this, I and my father went to her house. (Confronted with Exh.DA, wherein not so recorded). I had stated before the police that there was a brawl between Akram and Ali Mumtaz and they had exchange of hot words. (Confronted with Exh.DA, wherein not so recorded). I had mentioned in my statement the locale of injuries. (Confronted with Exh.DA, wherein not so recorded). I had mentioned in my statement that Ali Mumtaz quarreled with Rubina and also detailed the locale of injuries and the shots fired by Ali Mumtaz. (Confronted with Exh.DA, wherein not so recorded). I had stated before the police that Zarina Bibi intervened and Ali Mumtaz fired at her. (Confronted with Exh.DA, wherein not so recorded as to quarrel to locale of injuries). I had mentioned before the police the reason behind the occurrence. (Confronts with Exh.DA, wherein not so recorded).
It is evident from the perusal of statements of the above-mentioned witnesses that they made dishonest improvements in their statements on material particulars of the case. It is by now well- settled law that a witness who makes dishonest improvements on material C aspects of the case in order to strengthen his case is not worthy of reliance. In the case of "Akhtar Ali and others v. The State" (2008 SCM R 6) while discussing the evidence of a witness who made dishonest improvements in his statement the Hon'ble Supreme Court of Pakistan observed as under:-- "It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, 'therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest east serious doubt on the veracity of such witness. See Hadi Bakhsh's case PLD 1963 Kar.
805."
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Rafigue and others v. The State and others (2010 SCM R 385) wherein it was held that if a witness makes improvement on material aspects of the case then he is not worthy of reliance. It is, therefore, not safe to rely upon the evidence of the above mentioned eye-witnesses who made dishonest improvements in their statements before the court in order to overcome the weaknesses in the prosecution case.
11. Insofar as medical evidence is concerned, as mentioned earlier, there was conflict between the prosecution story as set forth in the F.I.R. Exh.PD/1 and the medical evidence of the prosecution. It was mentioned in the F.I.R. That on the night of occurrence Ali Mumtaz appellant made fire shots one after the other which landed on the left side of the face, near left eye, on the left side of neck and on the right side of head of Mst. Rubin Bibi deceased. Lady Dr. Zahida Irshad Khan (P.W.4) conducted post-mortem examination on the deadbody of Mst. Rubina Bibi deceased and found the following injuries on her person:--
(1) A lacerated wound with brunt murled margins, going deep on left cheek, 5 cm away from nose.
It could be entrance wound.
(2) A lacerated wound going deep measures 2 x 2 cm with everted margins on back of left ear. It could be exit wound.
(3) A lacerated wound measured 4 x 1.5 cm, on left side of forehead 1.4 cm away left eyebrow. The wound was bone exposed and could be caused by sharp edged weapon.
(4) A lacerated bone exposed wound, measuring 5 x 1.5 cm, on right side of top of head. It could be caused by sharp edged weapon.
It is evident from the perusal of record that injury attributed to the appellant on the left side of neck of Mst. Rubina Bibi deceased i,e, Injury No 2 was an exit wound, whereas, the firearm injuries attributed to the appellant near the left eye and on the right side of the head, as per medical evidence, were not caused by any firearm and the same were inflicted by sharp-edged weapon.
As the prosecution story narrated in the F.I.R. (Exh.PD/1) was in conflict with the medical evidence, therefore; Haji Muhammad Yasin complainant (P.W.8) made dishonest improvements while making his statement before the court by stating that the appellant inflicted two injuries with the help of Sabbal (iron rod) on the person of Mst. Rubina Bibi (deceased). He was confronted with his previous statement and the improvements made by him were duly brought on the record which has already been reproduced in the preceding paragraph. Ghazanfar Ali (P.W.9) has stated that the appellant inflicted two blows with the help of Sabbal (iron rod) on the person of Mst. Rubina Bibi deceased but his evidence was in conflict with the story of the prosecution mentioned in the F.I.R.
Exh. PD/1.
12. Insofar as the recovery of pistol .30 bore P-10 is concerned, we have noted that the occurrence in this case took place on 19-11-2009 and six crime-empties were taken into possession from the spot on the said day vide memo Exh. PH. The appellant was arrested in this case on 1-12-2009. Pistol .30 bore P-10 was recovered from the possession of the appellant on 7-12-2009 and as per, report of Forensic Science Laboratory Exh.PR the crime empties were deposited in the office of Forensic Science Laboratory on 17-12-2009, i,e, after ten days of the recovery of pistol P-10. It means that pistol (P-10) and crime empties were kept together at the police station, therefore, chances of fabrication empties from the said pistol cannot be ruled out, therefore, it is not safe to rely upon the alleged recovery of pistol P-10 from the possession of appellant and positive report of Forensic Science Laboratory Exh. PR.
' Insofar as the alleged recovery of Sabbal (iron rod) is concerned, we have noted that it is not mentioned in the recovery memo Exh.PG/A that Sabbal (iron rod) P-8 was stained with blood. There is no report of Chemical Examiner or that of Serologist to establish that Sabbal (iron rod) P-8 was stained with human blood, thus, the recovery of Sabbal (iron rod) P-8 from the possession of appellant is also inconsequential.
13. The motive behind the occurrence as set forth in the F.I.R. Exh. PD/1 was that the appellant forbade Muhammad Akram deceased from visiting the house of his (appellant's) Saali (sister-in- law) Mst. Zareena Bibi deceased but in spite of that Muhammad Akram deceased visited the house of Mst. Zareena Bibi deceased, therefore, the appellant committed the occurrence. It was further alleged in the F.I.R. That as wife of the appellant Mst. Rubina Bibi deceased reprimanded the appellant, therefore, she was also murdered by the appellant. The prosecution witnesses while making their statements before the learned trial Court changed their version regarding the motive part of the occurrence by stating that in fact the appellant was keeping lustful eye on Mst. Zareena Bibi deceased. It was also alleged that he (appellant) was a liquor addict and a debauched he also used to quarrel with his wife Mst. Rubina Bibi deceased. The story narrated by the above mentioned, witnesses about the motive was altogether different from the one which was mentioned in the F.I.R. Exh. PD/1, therefore, it is not safe to rely upon the evidence of rosecution witnesses qua the motive part of the occurrence.
14. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against Ali Mumtaz appellant 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 serious 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."
15. In the light of above discussion, we are of the view that the prosecution has failed to prove it case against the appellant beyond the shadow of doubt, therefore, we accept Criminal Appeal No,657 of 2010 filed by Ali Mumtaz appellant, set aside his conviction and sentence recorded by the learned Sessions Judge, Pakpattan vide judgment dated 6-3-2010 and acquit him of the charge by extending him the benefit of doubt. Ali Mumtaz appellant is in custody, he be released forthwith if not required in any other case.
16. Murder Reference No, 213 of 2010 is answered in the NEGATIVE and the sentence of death of Ali Mumtaz; (convict) is NOT CONFIRMED.