' MALIK SHAHZAD AHMAD KHAN, J.---Muhammad Ali alias Faisal (appellant) was tried by the learned Additional Sessions Judge, Gujranwala in case F.I.R. No,01/2008, dated 1-1-2008, offence under section 302 read with 34, P.P.C., registered at Police Station Garjakh, Gujranwala for the murder of Muhammad Babar (deceased) brother of the complainant. Vide judgment dated 26-5-2008 passed by the learned Additional Sessions Judge Gujranwala, Muhammad Ali alias Faisal (appellant) has been convicted under section 302(b), P.P.C. And sentenced to death with a further direction to pay Rs,50,000 (rupees fifty thousand only) as compensation to the legal heirs of the deceased and in default whereof to further undergo imprisonment for six months. Assailing the above conviction and sentence, Muhammad Ali alias Faisal (appellant) has filed the appeal in hand, whereas, the learned trial Court has forwarded Murder Reference No,160 of 2008 for confirmation or otherwise of sentence of death awarded to Muhammad Ali alias Faisal (appellant), as required under section 374, Code of Criminal Procedure. As both these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.
2. Precisely, facts of the case, as contained in F.I.R. (Exh.PF) recorded on the basis of application (Exh.PF/1) submitted by Muhammad Afzal complainant (P.W.7), are that he was resident of Mohallah Chah Norang, Street No,4 near Naila Chowk Gujranwala. He (complainant) and his real brother Muhammad Babar were running a Welding Press. Muhammad Ali alias Faisal (appellant) son of Rehmat Ali, caste Rehmani, Mohallah Hameed Pura, Garjakh, District Gujranwala was working with them as a technician, who had taken Rs,25,000 (Rupees twenty five thousand only) as advance. He was not coming to the job for the last so many days. On 31-12-2007 at about 7/8-00 p.m. The complainant along with his brother Babar (deceased) and Muhammad Shafique son of Muhammad Siddique, caste Gujjar, resident of Mohallah Muhammad Pura, Street Khaksaran, Gujranwala and Muhammad Naeem son of Feroze Din, Caste Khokhar, Mohallah Muhammad Pura, Street Khaksaran, Gujranwala went to the house of Muhammad Ali (appellant) situated at Mohallah Hameed Pura to inquire about him (Muhammad Ali appellant). Muhammad Ali (appellant) made them sit in the house. One unknown person was already present there. Babar (deceased) asked the reason for not coming to the job but Muhammad Ali (appellant) refused to join the work or return the advance. On compelling again, Muhammad Ali (appellant) and unknown person became infuriated. Unknown person raised lalkara and expressed that Babar be taught a lesson and murdered for demanding the advance amount. Muhammad Ali (appellant), all of a sudden, brought out the pistol and started firing. The fire shots landed on various parts of Babar (deceased) who fell down on the ground. Muhammad Ali (appellant) and unknown person while brandishing pistol ran away from the spot. Babar (deceased) succumbed to the injuries at the spot. Besides the complainant, Muhammad Shafique (P.W.8) and Muhammad Naeem (given up P.W.) had witnessed the occurrence. Motive behind the occurrence, as per F.I.R., was that Babar (deceased) had demanded the return of advance money amounting to Rs,25,000 (Rupees twenty five thousand only) due to which Muhammad Ali (appellant) committed the murder of Babar (deceased), brother of complainant.
3. Khalid Hussain, S.I. (P.W.10) was posted at Police Station Garjakh, Gujranwala. On 1-1-2008, the investigation of this case was entrusted to him. He reached at the spot, inspected the dead body of Muhammad Babar (deceased), prepared inquest report (Exh.PL), injury statement (Exh.PM) and drafted application for its autopsy (Exh.PN). He took into possession blood through cotton from the spot vide recovery memo (Exh.PG). He collected three empty cartridges from the spot and took into possession vide recovery memo (Exh.PH). He took the cot into possession from the spot vide memo (Exh.PJ). He also took into possession last worn clothes of the deceased viz shalwar (P.1), qameez (P.2), vest (P.3), jersi (P.4), and socks (P.5/1-2) vide recovery memo (Exh.PC). He got prepared scaled site plan of the place of occurrence (Exh.PE and Exh.PE/1) by Masood Ahmad Bhatti Draftsman (P.W.5). On 30-1-2008 he arrested Muhammad Ali alias Faisal appellant. On 3-2-2008 Muhammad Ali alias Faisal (appellant) led to the recovery of pistol .30 bore (P.6) which was taken into possession vide recovery memo (Exh.PK). He got prepared challan and submitted before the learned trial Court.
4. The appellant was summoned by the learned Additional Sessions Judge, Gujranwala to face the trial. Copies of the documents, as required under section 265-C, Code of Criminal Procedure, were provided to him and formal charge was framed against him on 8-5-2008, under section 302 read with 34, P.P.C., to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as eleven witnesses, in all. Ocular account was furnished by Muhammad Afzal (P.W.7) and Muhammad Shafique (P.W.8). Medical evidence was furnished by Dr. Muhammad Imran (P.W.4). Abdul Rasheed (P.W.9) witnessed the recovery of pistol .30 bore (P.6) at the instance of appellant which was taken into possession vide recovery memo (Exh.PK). Khalid Hussain S.I (P.W.10) investigated this case and while appearing in the witness box, narrated the various steps taken by him during the course of investigation. Rest of the witnesses namely Zulfiqar Ali 1996/HC (P.W.1), Qasim Nazir 3137-C (P.W.2), Muhammad Anwar 51-C (P.W.3), Masood Ahmad Bhatti Draftsman (P.W.5), Riasat Ali 1721- HC (P.W.6) and Shahid Mehmood 3/MHC (P.W.11) are formal in nature. Learned DDPP gave up P.Ws. Haji Muhammad Ramzan, Safdar Ali, Muhammad Naeem, Abdul Ghafoor 2875-C and Muhammad Rasheed being unnecessary on the request of complainant vide statement dated 19-5-2008. He also closed the prosecution case on 23-5-2008 after tendering in evidence the reports of Chemical Examiner .(Exh.PR), Serologist (Exh.PS) and F.S.L (Exh.PT). Statement of the appellant was recorded under section 342, Code of Criminal Procedure on 23-5-2008 wherein he refuted all the prosecution allegations. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Muhammad Ali alias Faisal (appellant) replied as under:-- "It is a false case and private P.Ws. Deposed against me falsely being close relatives of the deceased as P.W.7 Muhammad Afzal was his brother and P.W.8 Muhammad Shafique was his Khalazad. The real fact has been that Babar deceased victim had assaulted my mother Fatima Bibi and attempted to commit rape with her, who raised alarm. I was attracted to the same and I made fire shots upon the deceased in grave and sudden provocation to save my mother, myself and my property. My case falls in general exception under section 100, P.P.C."
' The appellant did not appear as his own witness as provided under section 340(2), Code of Criminal Procedure nor did he produce any evidence in his defence. Hence, this appeal and murder reference.
5. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above.
6. Learned counsel for the appellant, in support of this appeal contends that the appellant has falsely been implicated in this case and true facts have been suppressed by the prosecution; that both the witnesses of the ocular account i,e, Muhammad Afzal complainant (P.W.7) and Muhammad Shafqiue (P.W.8) are chance witnesses and they-have not been able to assign any plausible reason for their presence at the place of occurrence; that as per F.I.R. The incident took place on 31-12-2007 at around 7/8-00 p.m. But the matter was reported to the police at 12:30 (night) i,e, with a delay of about 4-1/2 hours without there being any satisfactory explanation, whereas the distance between the place of occurrence and the Police Station was only two furlongs; that presence of both these witnesses is also belied from the fact that the dead-body was removed from the place of occurrence by the police and had the witnesses been present at the spot, they should have taken the deceased to the hospital; that there are contradictions between the statements of witnesses as the complainant (P.W.6) stated in his cross-examination that he (complainant) along with Babar, Naeem and Shafique gathered in his house for going towards Muhammad Ali (appellant) and that Shafique and Naeem were summoned by Muhammad Babar (deceased) through telephone,. Whereas, Muhammad Shafique (P.W:8) stated in his cross-examination that they had gathered in the Chowk of the street for going towards Muhammad Ali (appellant) and that they had gathered by chance; that in the F.I.R. It is simply stated that appellant made to sit in his house but after realizing that the dead-body was found in room which was situated in the back portion of the house, they improved their version dishonestly by stating that father of the appellant was lying sick in the baithak, therefore, Muhammad Ali appellant made them to sit in a room. Muhammad Shafique (P.W.8) was confronted with his statement recorded under section 161, Code of Criminal Procedure and the said improvement was brought on the record; that complainant has stated in his cross-examination that he and Shafique (P.W.8) were on one motorcycle and Babar and Naeem were on the other motorcycle, whereas Muhammad Shafique (P.W.8) stated in his cross-examination that he and Naeem were on one motorcycle while Babar and Afzal were on the other motorcycle which further creates doubt in the prosecution story; that had they come to the house of appellant on motorcycles then they could easily have informed the police just after the occurrence; that motive has also not been proved as there is no evidence on the record that Rs,25,000 (Rupees twenty five thousand) were given to the appellant as advance; that alleged recovery of pistol (P.6) at the instance of appellant has not been proved in accordance with law and the provisions of section 103, Code of Criminal Procedure have also been violated; that the case of prosecution is of doubtful nature and the appellant is entitled to acquittal.
7. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant, while vehemently opposing this appeal contends that there was no conscious or deliberate delay in reporting the matter to the police; that both the witnesses of ocular account have reasonably explained their presence at the place of occurrence by stating that they had come to the house of the appellant to get back the amount of Rs,25,000 (Rupees twenty five thousand only) which had been taken by the appellant as advance as he was working as technician with the complainant and Muhammad Babar (deceased); that the ocular account is fully supported by medical evidence, corroborated by recovery of pistol .30 bore (P.6) and positive report of the Forensic Science Laboratory (Exh.PT); that there is no enmity between the appellant and complainant party which could prompt the complainant or other witness to falsely depose against the appellant; that even otherwise substitution in such-like cases is a rare phenomenon as kith and kin of the deceased would not implicate an innocent person by letting off the real culprits; that it was the appellant who committed the cold-blooded murder of Muhammad Babar (deceased), he does not deserve any leniency even in the quantum of sentence.
8. We have heard learned counsel for the appellant as well as the learned Deputy Prosecutor- General, assisted by learned counsel for the complainant at a considerable length and have also gone through the record with their able assistance.
9. It is a case of two versions, one mentioned in the F.I.R. (Exh.PF) and brought on the record through the statements of Muhammad Afzal, complainant (P.W.7) and Muhammad Shafique (P.W.8) and second version is the plea taken by Muhammad Ali alias Faisal (appellant) in his statement recorded -under section 342 of the Code of Criminal Procedure. In such-like situation, firstly, the Court is required to analyze the prosecution version in order to ascertain its truthfulness or otherwise, whereas, the defence version is to be taken thereafter. In this respect, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan passed in the case reported, as "Ashiq Hussain alias Muhammad Ashraf v. State" (PLD 1994 SC 879) wherein, at page 883, the Hon'ble Supreme Court has been pleased to observe as under:-- "9. ...The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr. P.0 . , statement under section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/ rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. Is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. Believed as a whole, constitutes some offence punishable; under the Code/law, then the accused should be convicted for that offence only. In case of counterversions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the questions, viz., is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
' Reference in this respect may also be made to the case of "Amin Ali and another v. The State" (2011 SCM R 323).
' We have noted that the appellant took a specific plea in his statement recorded under section 342, Code of Criminal Procedure which was to the effect that on the night of occurrence Muhammad Babar (deceased) assaulted his mother Fatima Bibi and attempted to commit rape with her, who raised alarm, whereupon he (appellant) was attracted to the spot and made fire shots at the deceased in order to save his mother and his case falls in general exception provided under section 100, P.P.C. However, before discussing the version of the appellant we, while following the principles settled by the Hon'ble Supreme Court of Pakistan, in the aforementioned judgments, will first of all take and discuss the case of the prosecution because it is the first and foremost duty of the prosecution to prove its case against the accused.
10. The detail of the prosecution story has already been given in paragraph No,2 of this judgment, therefore, there is no need to repeat the same, however, the gist of the prosecution case is that on 31-12-2007 at about 7/8-00 p.m. Complainant along with his brother Muhammad Babar (deceased), Muhammad Shafique (P.W.8) and Muhammad Naeem (given up P.W.) went to the house of Muhammad Ali alias Faisal (appellant). One unknown person was already present there.
Muhammad Babar (deceased) asked the reason from the appellant, for not coming to the job but Muhammad Ali (appellant) refused to join the work or return the advance. On compelling again, Muhammad Ali (appellant) and unknown person became infuriated. Muhammad Ali (appellant), all of a sudden, brought out the pistol and started firing. The fire shots landed on various parts of the body of Muhammad Babar (deceased) who fell down on the ground and succumbed to the injuries at the spot.
11. The occurrence in this case took place inside a room of the house of the appellant on 31-12-2007 at 7/8-00 p.m., situated at Mohallah Hameedpura within the territorial jurisdiction of Police Station Garjakh whereas, the matter was reported to the police and the formal F.I.R. Was lodged on 1-1- 2008 at 12:30 (night) i,e, with the delay of about 4-1/2 hours, whereas the distance between the place of occurrence and the police Station was only two furlongs. It was so mentioned in the F.I.R.
(Exh.PF) that Muhammad Babar (deceased) succumbed to the injuries at the spot. The dead body was also dispatched to the mortuary by the police from the house of the appellant, so it is not the case of the prosecution that any time was consumed while taking the deceased to the hospital. No plausible or convincing reason has been given by the prosecution for the abovementioned delay in reporting the matter to the police. We have noted that the complainant (P.W.7) has stated during his cross-examination that on the night of occurrence he A (complainant) along with the deceased and P. Ws. Went to 2008 SCMR 6), at page 12, was pleased to observe as 'under:- "5. ...It is also an admitted fact that the F.I.R. Was lodged by the complainant after considerable delay of 10/11 hours without explaining the said delay. The F.I.R. Was also not lodged at police station as mentioned above. 10/11 hours delay in lodging of F.I.R. Provides sufficient time for deliberation and consultation when complainant had given no' explanation for delay in lodging the F.I.R..."
' Similar view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of "Nazeer Ahmad v. Gehne Khan and others" (2011 SCM R 1473) wherein, the delay of seven hours in lodging the F.I.R. Was considered to be a ground which adversely reflected on the credibility of prosecution version. Similarly in the case of "Mehmood Ahmad and 3 others v. The State and another" (1995 SCM R 127), the Hon'ble Supreme Court of Pakistan has discarded the prosecution evidence, inter alia, on the ground that there was delay of two hours in lodging the F.I.R. And it was held that the same could be attributed to consultation, taking instructions and calculatedly preparing the report.
12. The .Ocular account was furnished by Muhammad Afzal complainant (P.W.7) and Muhammad Shafique (P.W.8). The story narrated by the above mentioned witnesses in their statements before the police was highly improbable. They claimed that on the night of occurrence the complainant (P.W.7) along with Muhammad Babar (deceased) and P.Ws. Went to the house of the appellant in order to take back the amount of Rs,25,000 (Rupees twenty. Five thousand only) but we have noted that the dead-body of Muhammad Babar (deceased) as per site plan (Exh.PE) was lying in a room which was situated in the back portion of the house of the appellant. It does not appeal to common sense that instead of demanding the amount of loan from the appellant while standing in the street or at the most in the baithak of his house which as per site plan (Exh.PE) was adjacent to the street, the deceased and eyewitnesses went to a room which was in the back portion of the house of the appellant. The Investigating Officer Khalid Hussain (P.W.10) has stated that dead-body of Muhammad Babar (deceased) was lying in a room which was adjacent to the Veranda. He further stated that there was a baithak, then deori and then Veranda and dead-body was present in a room behind that Veranda. The relevant portion of his statement at page Nos.29 and 30 of the paper book is reproduced hereunder:- "Dead body was present in the room adjacent to Veranda. Another cot was present in that room.
Some household articles might have been present there but I did not note any other specific thing.
There is a Baithak, then Deori and then Veranda of this house. The room where dead body was present was behind that Veranda."
' No reason whatsoever was mentioned in the F.I.R. (Exh.PF) for going of the deceased and P.Ws. In the said room which was situated in the back portion of the house of the appellant. The complainant Muhammad Afzal (P.W.7) and Muhammad Shafique (P.W.8) after realizing the above- mentioned weakness in the prosecution case while appearing in the witness box before the learned trial Court have made improvements in their statements by stating that father of the appellant was lying sick in the baithak, therefore, they (P.Ws.) went to the abovementioned room.
As mentioned earlier, no such reason was mentioned in the F.I.R. (Exh.PF) that father of the appellant was lying sick in the baithak, therefore, the deceased along with P.Ws. Went to the It is evident that the abovementioned witnesses made dishonest improvements in their statements before the trial Court in order to room of occurrence. Similarly no such reason was given by Muhammad Shafique (P.W.8) in his statement before the police (Exh.DA). He was confronted with his previous statement and the improvement made by him was duly brought on record. Relevant portion of his statement at page No,25 of the parer book is reproduced here under:-- "I had mentioned before the police that father of the accused was lying in Baithak (confronted with Exh.D.A not so recorded)". strengthen their case. It is by now well-settled law that when a witness improves his version to strengthen the prosecution case, his evidence cannot be relied upon. Reference in this context, inter alia, may be made to the case of Akhtar Ali and others v. The State (2008 SCM R 6) wherein Hon'ble Supreme Court observed as under:-- "5. ...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 cast serious doubt on the veracity of such witness..."
' Even otherwise it does not appeal to the mind of a prudent person that a man who is sick would lie in the baithak of his house which is adjacent to the street and meant for guests, instead of lying in his bedroom. Moreover there are material contradictions in the statements of eyewitnesses namely Muhammad Afzal complainant (P.W.7) and Muhammad Shafique (P.W.8). We have noted that Muhammad Afzal (P.W.7) has stated in his cross-examination that he, Babar (deceased) Naeem (given up P.W.) and Shafique (P.W.8) had gathered in his house for going towards Muhammad Ali appellant, whereas Muhammad Shafique (P.W.8) has stated during his cross-examination that they (P.Ws.) had gathered in the Chowk of the street for going towards Muhammad Ali (appellant).
Muhammad Afzal (P.W.7) has stated during his cross examination that Muhammad Shafique (P.W.8) and Naeem (given up P.W.) were summoned by Muhammad Babar through telephone whereas Muhammad Shafique (P.W.8) has stated during his cross examination that they (P.Ws.) had gathered by chance when Babar told them to go to the house of Muhammad Ali (appellant).
Muhammad Afzal (P.W.7) has stated that he and Muhammad Shafique (P.W.8) were on one motorcycle whereas Babar (deceased) and Naeem (given up P.W.) were on the other motorcycle when they had set out from their house for going towards the house of the appellant, whereas Muhammad Shafique (P.W.8) had stated that he and Naeem (given up P.W.) were on one motorcycle while Muhammad Babar (deceased) and Muhammad Afzal (P.W.7) were on the other motorcycle. We have also noted that the distance between the appellant and the deceased has been mentioned as five feet in the site plan (Exh.PE). The same distance between the appellant and the deceased at the time of occurrence has been mentioned by Muhammad Afzal (P.W.7) during his cross-examination but Dr Muhammad Imran (P.W.4) has specifically stated in his examination in chief that there was no blackening around the wounds of entries on the person of Muhammad Babar (deceased). We have also noted that there was no burning or tattooing around the wounds of entries, therefore, ocular account of prosecution is not supported by the medical evidence furnished by Dr. Muhammad Imran (P.W.4).
13. As there is delay in reporting the matter to the police, the story narrated by the above- mentioned eye-witnesses about the presence of dead-body in a room which was situated in the back portion of the house of the appellant is not convincing, the prosecution witnesses made dishonest improvements in their statements in order to strengthen their case, there are material contradictions in the statements of the eyewitnesses and the evidence of prosecution witnesses is in conflict with the medical evidence, therefore, it is not safe to rely upon the testimonies of the above-mentioned eye-witnesses.
14. The motive, according to the prosecution case was that Muhammad Ali alias Faisal (appellant) took an amount of Rs,25,000 (twenty five thousand only) from the complainant party which was given to him as advance and Muhammad Babar (deceased) when demanded the said amount from the appellant, hot words were exchanged and thereafter the appellant committed the murder of Muhammad Babar (deceased). We have noted that Muhammad Afzal complainant (P.W.7) while appearing before the learned trial Court has mentioned his occupation as labourer but during his cross-examination he stated that he was running a Welding Press. He did not mention his profession as a businessm an and as such his evidence is self-contradictory. No receipt or document about the delivery of above-mentioned amount to the appellant has been brought on the record and the prosecution has not produced any independent witness in presence of whom the said amount was handed over to the appellant. Even this fact was not brought on the record as to whether Muhammad Afzal complainant (P.W.7) or Muhammad Babar (deceased) handed over the above mentioned amount of Rs,25,000 (Rupees twenty five thousand only) to the appellant. No register or note book of the alleged Welding Press of the complainant and Muhammad Babar (deceased) have been brought on the record by the prosecution to establish any entry in respect of above mentioned amount of loan which was allegedly given to the appellant by the complainant party. It cannot be held merely on the oral assertion of the complainant party that an amount of Rs,25,000 (twenty five thousand only) was in fact paid to the appellant. We are, therefore, of the view that the motive as alleged by prosecution has not been proved in this case.
15. So far as recovery of pistol .30 bore (P.6) at the instance of appellant and positive report of Forensic Science Laboratory (Exh.PT) are concerned, we are of the view that an accused cannot be convicted on the basis of mere alleged recovery of weapon of offence in absence of any reliable and convincing direct or circumstantial evidence. Even otherwise, the evidence of recovery is only of corroborative in nature and conviction of the appellant cannot be sustained merely on the basis of said piece of evidence.
' In the case of MUHAMMAD AFZAL alias ABDULLAH and others v. THE STATE and others (2009 SCM R 436), the Hon'ble Supreme Court of Pakistan at pages 443 and 444 has held as under:-- "After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be ' Similarly, in the case of ABDUL MATEEN V. SAHIB KHAN and others (PLD 2006 Supreme Court 538), at page 543, the following dictum was laid down by the Hon'ble Supreme Court of Pakistan:-- "It is a settled law that, even if recovery is believed, it is only corroborative. When there is no evidence on record to be relied upon, then there is nothing which can be corroborated by the recovery as law laid down by this Court in Saifullah's case 1985 SCM R 410".
' Similar view was taken by the Hon'ble Supreme Court of Pakistan, in the cases of MUHAMMAD YAQUB v. THE STATE (1971 SCM R 756), and NEK MUHAMMAD and another v. THE STATE (PLD 1995 Supreme Court 516).
16. Now coming to the version of the appellant. The statement of appellant has already been reproduced in paragraph No,5 of this judgment. As we have already discarded the prosecution evidence, G therefore, while scrutinizing the statement of the appellant this Court has to accept or reject the said statement in toto. According to the appellant, on the night of occurrence Muhammad Babar deceased assaulted his mother Fatima Bibi and attempted to commit rape with her, who raised alarm, whereupon he (appellant) was attracted to the spot and made fire shots at the deceased in order to save his mother, thus in such situation, the appellant had the right of private defence which also extends to cause death 'of the assailant as provided under section 100 of P.P.C. Which is reproduced hereunder:-- `100. When the right of private defence of the body extends to causing death.---The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-- Firstly. ................................................................
Secondly. ...........................................................
Thirdly. An assault with the intention of committing rape; Fourthly. ............................................................
Fifthly. ...............................................................
Sixthly.................................................................
' It is evident from the perusal of section 100 (thirdly) P.P.C. That in the case of an assault with the intention of committing rape, the right of private defence will extend to the voluntary causing the death of the assailant. The case of the appellant, therefore, squarely falls within the four corners of general exception as provided under section 100 (thirdly) P.P.C. It is by now well-settled law that if the prosecution evidence is disbelieved by the court, then the statement of an accused is to be accepted or rejected as a whole. It is legally not possible to accept the inculpatory part of the statement of the appellant and to reject the exculpatory part of the same statement. Reference in this context may be made to the case of "Muhammad Asghar v. The State" (PLD 2008 SC 513). The relevant paragraph of the said judgment at page 520 is reproduced hereunder for ready reference:-- "8. ...It is settled law by now that a statement of an accused recorded under section 342, Cr.P.C. Is to be read in its entirety, is to be accepted or rejected as a whole and reliance should not be placed on that portion of the statement which goes against the accused person. Reference can be made to the case of Shabbir Ahmad v. The State PLD 1995 SC 343 and The State v. Muhammad Hanif and 5 others 1992 SCM R 2047. It has been held by this Court in the judgment reported as Waqar Ahmad v. Shaukat Ali and others 2006 SCM R 1139, that prosecution is bound to establish its own case independently instead of depending upon the weaknesses of the defence, and the assertion of the accused in his statement under section 342, Cr.P.C. Was not sufficient to establish the prosecution case regarding guilt of the accused and such statement of the accused could be accepted in toto in the absence of any other prosecution evidence. In the case in hand, the High Court should have either accepted appellant's statement in its entirety or rejected it altogether, but it had misdirected itself while choosing a portion of the statement, which went against the appellant, and convicting him.
17. It is also by now well-settled law that if there is a single circumstance which creates doubt regarding the prosecution case, then 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 doubts about the prosecution story. In the case of "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."
18. In the light of above discussion, we have come to this irresistible conclusion that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept Criminal Appeal No,618 of 2008 filed by Muhammad Ali alias Faisal (appellant), set aside his conviction and sentence awarded by the learned trial Court vide its judgment dated 26-5-2008 and acquit him of the charge by extending him the benefit of doubt. Muhammad Ali alias Faisal (appellant) is in custody, he be released forthwith if not required in any other case.
19. Murder Reference No,160 of 2008 is answered in the NEGATIVE and the sentence of death of Muhammad Ali alias Faisal (convict) is NOT CONFIRMED.