' SYED SHAHBAZ ALI RIZVI, J.--This judgment shall dispose of Criminal Appeal No,709 of 2010 titled as "Abdul Ghafoor and others v. The State" filed by Abdul Ghafoor and Shahid Zaman (appellants) against their convictions and sentences and Murder Reference No,385 of 2010 titled as "The State v.
Abdul Ghafoor" transmitted by the learned trial court for confirmation or otherwise of the sentence of death awarded to Abdul Ghafoor (appellant) as both these matters have arisen out of the same judgment dated 12-3-2010 passed by the learned Addl. Sessions Judge, Gujranwala in private complaint filed by Mst. Asia Bibi against the appellants and their co-accused (since acquitted) under sections 302, 324, 148 and 149, P.P.C. Whereby Shahid Zaman (appellant) was convicted under section 337-F(iii), P.P.C. And sentenced to rigorous imprisonment for one year with Daman amounting to Rs,10,000 to be paid to the injured. Both the appellants were convicted under Sections 302(b)/149, P.P.C., as a result whereof, Abdul Ghafoor (appellant) was sentenced to death on two counts. He was ordered to be hanged by neck till death whereas, Shahid Zaman (appellant) was sentenced to imprisonment for life on two counts. He was also granted the benefit of section 382-B of the Code of Criminal Procedure. Both the appellants were also ordered to pay Rs,2,00,000 each on two counts as compensation to the legal heirs of both deceased as envisaged under section 544-A of the Code of Criminal Procedure and in default thereof to further undergo rigorous imprisonment for six months.
' The learned trial court, however, through the same judgment, acquitted Muhammad Amjad, Muhammad Asif, Rafaqat Ali, Muhammad Yousaf, Gulzar Ahmad and Mukhtar Ahmad, co-accused of the appellants while giving them the benefit of doubt.
2. The brief facts of the case, as disclosed by Mst. Asia Bibi, complainant (P.W.8) in her private complaint (Exh.PK), are that she is resident of Dera Saichan District Gujranwala and a house wife.
On 5-2-2006 at about 11.30 p.m, she along with Mst. Suriya Bibi (given up PW), Zafar Ullah (given up PW), Fida Hussain (given up PW) and Muhamad Javaid (deceased)., who was with his friends Mudassar Rasheed (deceased) and Munawar (PW-6), had come to attend Majlis at Mauza Babar.
When they, after the Majlis, were going to their houses and reached near Babar hospital, on foot, Muhammad Javaid (deceased) along with his above said friends reached there on motorcycle 125 and crossed them. There was sufficient brightness of the lights of, hospital. In their view, Muhammad Sajid (tried and convicted later), Muhammad Asif (since P.O.), Muhammad Imran (since P.0) sons of Muhammad Ashraf, Gulzar Ahmad (since acquitted), Abdul Ghafoor (appellant), Mukhtar Ahmad (since acquitted) all armed with Kalashnikovs, Muhammad Amjad (since acquitted) armed with .44 bore, Muhammad Asif (since acquitted) armed with .12 bore repeater, Shahid Zaman (appellant) armed with .12 bore pump action, Rafaqat Ali (since acquitted) armed with .44 bore, Muhammad Yousaf (since acquitted) armed with .7 MM rifle, who were sitting ambushed in the hospital, came in their front. Muhammad Yousaf raised lalkara that Javaid (deceased) be taught a lesson for the murder of Muhammad Ashraf, upon which, Sajid (tried and convicted later) and Imran (since P.0) made fires at Javaid (deceased) with their respective weapons whereas, Asif (since P.O), Gulzar (since acquitted), Abdul Ghafoor (appellant), Mukhtar (since acquitted) and Asif (since acquitted), with their respective weapons, made firing at Mudassar and remaining accused made firing at Munawar (PW-6). Muhammad Javaid and Mudassar Rasheed succumbed to the injuries at the spot whereas, Munawar, after receiving injury, fell down on the ground who was shifted to Noshehra Virkan hospital .
' The motive behind the occurrence, as disclosed by the complainant, was previous enmity of murders.
' The complainant further alleged in the private complaint that she was to go to police station to report the matter, the police came at the spot. She produced a written application for registration of the case to the police, upon which, case FIR No,60 dated 6-2-2006 under sections 302, 324, 148 and 149, P.P.C. Was registered at Police Station Noshehra Virkan against the above named accused persons. The police investigated the case and arrested the accused. The complainant and eyewitnesses joined the investigation. Meanwhile, the police demanded huge bribe from her, upon which, the complainant asked them that she is a poor woman and not in a position to pay bribe.
Thereafter, the police connived with the accused party after taking huge bribe, let off some accused persons whose arrest was not shown in the file and some accused had been declared innocent. Feeling aggrieved with the police investigation, the complainant filed private complaint.
3. Abdul Ghafoor and Shahid Zaman (appellants) were arrested in this case on 26-3-2006 by Mushtaq Ahmad, SI (CW-2). On 29-3-2006, Shahid Zaman (appellant), while in police custody, after making disclosure, got recovered .12 bore gun (P-8) which was taken into possession vide recovery memo Exh-PF. On the same day, Abdul Ghafoor (appellant), while in police custody, after making disclosure, got recovered. Kalashnikov (P-9) which was taken into possession vide recovery memo Exh-PG. After completion of investigation, report under Section 173 of the Code of Criminal Procedure was submitted before the learned trial court.
4. The learned trial court after recording the cursory statements of the complainant and her witnesses in the private complaint summoned the accused persons. Accused persons namely, Shahid Zaman, Muhammad Asif son of Muhammad Yousaf, Rafaqat, Muhammad Yousaf, Gulzar Ahmad, Abdul Ghafoor and Mukhtar Ahmad appeared before the learned trial court. The learned trial court, after observing the legal formalities, framed the charge against the above named accused persons on 20-2-2007. Later on, Muhammad Amjad accused was arrested and produced before the learned trial court. The learned trial court, on 10-11-2008, framed charge against him. The appellants along with their co-accused (since acquitted) pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced as many as eight witnesses during the trial whereas, Muhammad Qayyum SI (retired), Mushtaq Ahmad SI and Muhammad Aslam SI appeared as Court Witnesses. Munawar Hussain (PW-6) and Mst. Asia Bibi, complainant (PW-7) furnished the ocular account of the prosecution. Muhammad Nadeem (PW-5) is the witness of recovery of .12 bore gun (P-8) and Kalashnikov (P-9) allegedly recovered at the instance of Shahid Zaman and Abdul Ghafoor (appellants), respectively.
' The medical evidence was furnished by Dr. Nawazish Ali (PW-2), who conducted the postmortem examination on the dead bodies of Mudassar Rasheed and Muhammad Javaid (deceased persons) and Dr. Ghulam Mustafa (PW-3), who medically examined Munawar . Hussain (PW-6). Dr. Nawazish Ali (PW-2) on 6-2-2006 at about 9.20 p.m., conducted the postmortem examination on the dead body of Mudassar Rasheed and found the following injuries on his person:-- "(1) A lacerated wound about 1 cm x 1 cm with inverted margins going deep on- outer side of left thigh upper part about 13 cm below anterior iliac crest i,e, inlet.
(2) A lacerated wound with everted margins about 2 cm x 0.5 c.m. On upper inner quadrant of left buttock.
(3) A lacerated wound with inverted margins about 2 cm x 2 cm on inner and front upper of right thigh about 11 cm below and right to root of penis.
(4) A lacerated wound with everted margins on outer side of right thigh about 1 cm below the right iliac crest i,e, out let of injury No,3.
(5) A lacerated wound about 8 x 5 cm with tendon and bone exposed back of right lower leg (through and through).
(6) A lacerated wound 8 c.m. x 1 cm on outer side of right foot (through and through).
(7) A lacerated wound about 3 cm x 0.5 cm with everted margins on inner side of right foot.
(8) A lacerated wound about 5 cm x 5 cm on the planter surface of right foot with everted margins."
' The doctor was of the opinion that all the injuries were ante-mortem and caused by firearm.
Death occurred due to injuries Nos.1 and 3 femoral vessel and haemorrhage shock. Probable duration between injury and death was within half an hour and between death and postmortem examination was 20 to 24 hours approximately. He also produced carbon copy of postmortem report (Exh-PB) along with diagrams (Exh-PB/1 and Exh-PB/2).
' On the same day at about 10.15 p.m., he also conducted postmortem examination on the dead body of Muhammad Javaid (deceased) and noted the following injuries on his person:-- "(1) A lacerated wound about 1 cm. x 1 cm within inverted margins into going deep on left side of abdomen about 7 cm. Below umbilicus and 2 cm left to mid line.
(2) A lacerated wound about 2.5 cm x 2 cm. On back of left lumber region about 7 cm left to mid line i,e, outlet.
(3) A lacerated wound about 1 cm x 1 cm with inverted margins on front of right leg about 9 cm below the right knee i,e, inlet.
(4) A lacerated wound about 2 cm x 0.5 cm. With everted margins on outer side of right leg."
' In the opinion of the doctor, the injuries were ante-mortem and caused by firearm. Death occurred under injury No,1 due to haemorrhagic shock and injuries to major blood vessels of abdomen. Probable duration between injuries and death was within half an hour and between death and postmortem was 20 to 24 hours. He produced carbon copy of postmortem report (Exh- PC) along with diagrams (Exh-PC/1 and Exh-PC/2).
' Dr. Ghulam Mustafa, SMO, RHC Noshera Virkan (PW-3), on 6-2-2009, medically examined Munawar (PW-6) and found following injuries on his person:-- "(1) Lacerated wound 1/3 x 1/3 cm anterior going on upper end of right forearm on Posterior surface.
Edges were inverted.
(2) Lacerated wound 4 x 3 cm continuous injury No,1 on anterior medial surface of right forearm edges outward.
(3) Lacerated wound 2 x 1/2 cm x muscle deep on right maxilla.
(4) Lacerated wound 1-1/2 x deep going on left forearm, upper lateral surface.
(5) Lacerated wound 1/3 x 1/3 x deep going on medial surface of left forearm."
' In the opinion of the doctor, injury No,3 was occurred with blunt weapon whereas, rest were caused with firearm. Duration of injuries was half to one hour. He produced medico-legal report (Exh-PA).
' Muhammad Qayyum, retired S.I. (CW-1), Mushtaq Ahmad SI (CW-2) and Muhammad Aslam SI (CW-3) are the Investigating Officers of this case. Masoos Ahmed Bhatti, Draftsman (PW-1) prepared the scaled site plan of the place of occurrence whereas, rest of the witnesses are formal in nature.
6. The statements of the appellants along with their co-accused (since acquitted) under Section 342 of the Code of Criminal Procedure were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case against you and why PWs have deposed against you?", Abdul Ghafoor (appellant) replied as under:- "I have been falsely involved in this case Muhammad Ashraf my uncle was murdered by the complainant party due to previous enmity. All the PWs are inter se related to each other and they have deposed falsely against me. I have been involved due to my relationship with my co- accused."
' Shahid Zaman (appellant), to the said question, also replied almost on the same lines.
7. The appellants neither opted to make statements on oath as provided under section 340(2) of the Code of Criminal Procedure in disproof of the allegations levelled against them nor did they produce any evidence in their defence.
8. The learned trial court vide its judgment dated 12-3-2010, found the appellants guilty, convicted and sentenced them as mentioned and detailed above.
9. Learned counsel for the appellants contends that the appellants have falsely been implicated in this case; that Mst. Asia Bibi, complainant (PW-8) is the chance witness as she could not explain her presence at the place of occurrence at the relevant time; that Munawar Hussain (PW-6) injured witness of this case is also not reliable as he made dishonest improvements in his previous statement duly confronted by the defence and brought on the record; that there is delay in conducting the postmortem examination on the 'dead bodies of the deceased persons which is suggestive of the fact that the FIR was not registered at the time mentioned therein; that the medical evidence is in conflict with the ocular account; that the recovery of crime weapons at the instance of the appellants is inconsequential as no report of the Forensic Science Laboratory is available on the record; that motive is always considered a double edged weapon and if it can be a reason for commission of crime, the same could be a reason for false implication of the appellants; that the prosecution has failed to prove its case beyond doubt rather it is full of doubts and it is, by now, established proposition of law that benefit of doubt is to be extended to the accused as a matter of right; that this appeal may be accepted, the appellants: may be acquitted of the charge and Murder Reference be answered in the negative.
10. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant maintained that the complainant is mother of Muhammad Javaid (deceased), therefore, there is no chance that she will let off the real culprit of the murder of her son and implicate the appellants falsely in this case; that Munawar Hussain (PW-6) is the injured eye-witness, therefore, he is the most natural witness of the occurrence; that he has no enmity with the appellants for their false implication in this case; that the prosecution case gets full support from the medical evidence; that the prosecution case is further corroborated by the recoveries of crime weapons at the instance of the appellants; that the motive is also proved by the prosecution; that the prosecution has proved its case beyond any reasonable doubt and remained successful in discharging its duty to prove the same. Lastly, argued that the judgment .Passed by the learned trial court does not require any interference by this Court which is well reasoned and the appellants deserve no leniency as they have ruthlessly murdered the deceased persons and injured Munawar Hussain (PW-6); that this appeal may be dismissed and the Murder Reference be answered in the affirmative.
11. We have heard the arguments of learned counsel for the appellants, learned Deputy Prosecutor General assisted by learned counsel for the complainant and also gone through the record with their able assistance.
12. We have observed that according to the prosecution case, the occurrence took place at 11.30 p.m. On 5-2-2006 and the matter was reported to the police through a written application of the complainant who is mother of Muhammad Javaid (deceased) at 01.00 a.m. On 6-2-2006 at a place near Chak Doni while the FIR was registered at 1.20 a.m. On the same night but when we have observed the postmortem reports (Exh-PB and Exh-PC) of both the deceased persons Muhammad Javaid and Mudassar Rasheed which reveals that the postmortem examination on the dead body of Mudassar Rasheed (deceased) was conducted at 09.20 p.m. On 6-2-2006 while the postmortem examination on the dead body of Muhammad Javaid (deceased) was conducted on the same day at 10.15 p.m. And the duration between the death and postmortem examination declared by Dr. Nawazish Ali, SMO THQ Hospital, Kamoke (PW-2) is between 20 to 24 hours. This delay in postmortem examinations coupled with the medical examination of injured witness Munawar Hussain (PW-6) without any police docket and injury statement at 02.45 a.m. On 6-2- 2006 cast serious doubt about the veracity of the registration of FIR at the given time as it has become common phenomenon that in cases in which the assailants are unknown, the police keep pending the registration of FIR for preparation of police papers to be provided to the Medical Officer required for conducting the postmortem examination on the dead body of the deceased after procuring the availability of the witnesses and the complainant and further for the fabrication of the prosecution story after the preliminary inquiry, consultation and some times legal advice. It is repeatedly held by the Hon'ble courts that such unexplained delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination of the deceased which happens only when the complainant and police are busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Hence, we are of the view that in the instant case the presence of the witnesses at the scene of occurrence at the relevant time is doubtful. In this regard, we have fortified our view by the case of "Muhammad Riaz v. The State" (2009 PCr.LJ 1022 Lahore) wherein, this Court has observed as under:-- "13. ...It is also not found correct that the F.I.R. Had been got registered with promptitude as the occurrence had allegedly taken place at about 5-00 a.m. While the post-mortem examination was conducted at 1-00 p.m. And there is every possibility that the intervening period was consumed in concocting a story and to await for the relatives of the deceased, who were made witnesses subsequently, otherwise, they have failed to establish their presence at the spot..."
' Same view was affirmed by the Hon'ble Supreme Court of Pakistan in the case of Irshad Ahmed v.
The State (2011 SCM R 1190), wherein the Hon'ble Supreme Court was pleased to observe as under:-- "3. ...We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eyewitnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted..."
13. To prove the case against 'the appellants and their co-accused, the prosecution has produced Munawar Hussain (PW-6) and Mst. Asia Bibi, complainant (PW-8) to furnish the ocular account.
Learned trial court has disbelieved both these witnesses to the extent of Muhammad Amjad, Muhammad Asif, Rafaqat Ali, Muhammad Yousaf, Gulzar Ahmad and Mukhtar Ahmad co-accused of the appellants (since acquitted) which fact necessitates the independent and strong corroboration to the testimony of both the abovementioned witnesses to be believed to the extent of present appellants due to which we also feel that the reappraisal of their evidence requires extra care and caution. We have observed the evidence of these two eye-witnesses with more care because of our observations given in the preceding paragraph as well. The perusal of postmortem reports (Exh-PB and Exh-PC) reflects that death of both the deceased persons was not instantaneous or immediate and duration between injuries and death given by Dr. Nawazish Ali (PW-2) is within half an hour who, during his cross-examination, has also maintained that death of Mudassar Rasheed (deceased) was caused due to loss of blood and if injuries Nos.1 and 3 on the person of Mudassar Rasheed had been tied with a cloth, his life could have been saved. Similarly, the above mentioned duration between infliction of injuries on the person of Muhammad Javaid (deceased) and his death and locale of injuries on his body shows that after receiving, the injuries, he survived for a certain period and his death was not immediate. In this view of the matter, we feel that had the prosecution witnesses Munawar Hussain (PW-6) and given up PWs namely, Mst.
Suriya Bibi, Zafar Ullah and Fida Hussain, been present at the scene of occurrence, they would have, at least, attempted to remove them towards the hospital but the prosecution case is silent about any such effort and both the deceased remained lying where they sustained injuries. Moreover, the open eyes of Mudassar Rasheed (deceased) while open eyes and mouth of Muhammad Javaid (deceased) reflected in the postmortem report also confirms that the dead bodies of both the deceased persons remained unattended by any near and dear one like prosecution witnesses' for a considerable period of time. The injured Munawar Hussain (PW-6) was taken to hospital by some police official whose name, admittedly, is not known to the Investigating Officer, the Medical Officer and injured himself and after the medical examination of the injured witness at RHC Noshehra Virkan, when he was referred to DHQ Hospital, Gujranwala, even at that time, the presence of any private person is not established on record, which shows that the complainant Mst. Asia Bibi (PW- 8) and alleged given up eye-witnesses were not present at the relevant time at the scene of incident. The circumstances of the case also reflect that the injured PW Munawar Hussain was shifted to hospital RHC Noshehra Virkan through some police official of the local police even prior to the arrival of the Investigating Officer at the place of occurrence after having wireless message which is transpired from the fact that the injured was medically examined without any application or the police docket and this fact has been admitted by the Investigating Officer Muhammad Aslam, SI (CW-3) confirmed by the statement of Dr. Ghulam Mustafa (PW-3).
' It is relevant to note that the reason for being present at the scene of occurrence given by both the witnesses is that they were returning towards their residence at Dera Saichan when deceased persons and injured were assaulted by the accused persons including the appellants after attending a "Majlis" but surprisingly both of the abovementioned witnesses remained unable to name the person at whose place the "Majlis" was held. They could not even name any other person who attended the "Majlis" besides them. Similarly, more astonishingly, both the witnesses remained attending said "Majlis" for hours but could not disclose the name of any speaker who addressed the said "Majlis". Another fact in this regard clearly unbelievable is that both the deceased were armed at the time of incident with lethal firearm weapons taken into possession by Muhammad Aslam, SI (CW-3) during his first site inspection through the recovery memos as is evident from the evidence available on record and these circumstances cast serious doubts about the stance of their returning after attending the "Majlis" when the occurrence took place.
According to the ocular account, the accused persons made firing when they were on eastern side of the victims i,e, from one side but the perusal of the statement of Dr. Nawazish Ali (PW-2) explains that the injuries on the person of deceased persons were received from both sides i,e, left and right.
Similarly, the recovery of motorcycle of Muhammad Javaid (deceased) from point-K of scaled site plan (Exh-PA) which is situated at a distance of 80 feet from points A & B which is the place where Mudassar Rasheed and Muhammad Javaid (deceased persons) sustained injuries and died, also the distance between point-C which is the place where Munawar Hussain injured (PW-6) sustained injury and points A & B also reflect that the manner of occurrence was different from the manner narrated by both the eye-witnesses as according to the witnesses, the injuries were received by all the three persons when they were on the motorcycle together while the distance between the motorcycle, the deceased and the injured witness shows that the motorcycle was left by the victims prior to sustaining injuries on their person which is further confirmed by the fact that according to Muhammad Aslam SI (CW-3) "Motorcycle was in its accurate condition G without any mark of bullet." The seat of injuries on the person of the deceased and the injured witness are also on the lower part of their bodies and had they been sitting on the motorcycle at the time of receiving injuries, the motorcycle would have been hit by some bullet and similarly had the injured person received injuries in moving condition of the motorcycle, there would have been some damage to the body of the motorcycle by fall on the road as well.
14. Now specifically and exclusively coming to the statement' of Munawar Hussain injured (PW-6) who is the only injured witness of the occurrence who survived. We are of the view that the firearm injuries available on his person are sufficient to prove his presence at the scene of occurrence but these injuries cannot stamp his statement with truth as is repeatedly held by the Hon'ble Courts of the country. The statement of injured Munawar Hussain (Exh-DA) was recorded under section 161 of the Code of Criminal. Procedure by Muhammad Aslam SI (CW-3), the; Investigating Officer of this case, in the hospital after obtaining permission from the Medical Officer through a written application as stated by CW-3 but the same statement only during the trial was denied by Munawar Hussain (PW-6) because according to Exh-DA, the injured and both deceased were on foot, the assailants were unknown and no specification of weapons or attribution of injuries was given. The defence got all the relevant and material contents of the said statement confronted during the cross-examination which transpires that he has made flagrant and dishonest improvements in his statement regarding all material aspects of the narrated occurrence including the reason of the deceased persons and himself for being present at the place of occurrence at the relevant time, the nomination of the accused persons, specification of the weapons and even the specific attribution to the accused persons including the appellants of injuries to the deceased persons and himself and he has also made improvements in his cursory statement (Exh-DB) got recorded by him in connection with the private complaint before the learned trial court. So, such statement cannot be relied upon as is held by the Hon'ble Courts of the country. In the case of "Akhtar Ali and others v. The State" (2008 SCM R 6), the Hon'ble Supreme Court of Pakistan was pleased to observe 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 cast serious doubt on the veracity of such witness..."
' Seeking guidance from the supra referred judgment, we are of the opinion that the statement of such like witness loses its creditability and is not safe to rely upon.
' The presence of Mst. Asia Bibi, complainant (PW-8), mother of the deceased Muhammad Javaid at the relevant time at the place of occurrence is doubtful as discussed above and similarly the statement of Munawar Hussain (PW-6) is not reliable because of his being dishonest witness and as such the veracity of his statement is also doubtful and we are of the view that the ocular account produced by the prosecution is not trustworthy and confidence inspiring.
15. Insofar as the medical evidence is concerned, as we already have discussed above, the postmortem examination on the dead bodies of Mudassar Rasheed and Muhammad Javaid (deceased persons) was conducted with a considerable delay of more than twenty hours. Even otherwise, it is by now well settled law that medical evidence may confirm the ocular evidence with regard to the seat and nature of injury, the kind of weapon used in the occurrence but it would not itself identify the accused. Reference in this respect may be made to the case of Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of Mursal Kazmi alias oamar Shah and another v. The State (2009 SCM R 1410) and Altaf Hussain v. Fakhar Hussain and another (2008 SCM R 1103).
16. So far as recoveries of .12 bore pump action gun (P-8) and Kalashnikov (P-9) allegedly recovered at the instance of Shahid Zaman and Abdul Ghafoor (appellants), respectively are concerned, the same have become inconsequential because of non-availability of the report of Forensic Science Laboratory, therefore, we are of the opinion that the same is of no help to the prosecution.
17. So far as the motive behind the occurrence is concerned, it is by now well established proposition that the same is a double edged weapon and cuts both ways. If it can be a reason for commission of crime, the same could be a reason for false implication of an accused. In the instant case, we feel that possibility cannot be ruled out that the same has become the motive for false implication of the appellants and their co-accused (since acquitted) in this case after preliminary inquiry, consultation and legal advice.
18. 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 established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained fail to discharge its responsibility of proving the case against the appellants. 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."
' In Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the Hon'ble Apex Court has been pleased to observe as under:-- "....It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
' 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."
19. 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 Criminal Appeal No,709 of 2010 filed by Shahid Zaman and Abdul Ghafoor (appellants), set aside their conviction and sentence recorded by the learned Addl. Sessions Judge, Gujranwala vide judgment dated 12- 3-2010 and acquit them from the charge under sections 302(b), 337-F(iii) and 34, P.P.C. By extending them the benefit of doubt. Abdul Ghafoor (appellant) is in custody, be released forthwith if not required in any other case whereas, Shahid Zaman (appellant) is on bail, his bail bond is discharged and surety is released.
20. Murder Reference No,385 of 2010 is answered in the NEGATIVE and the sentence of death of Abdul Ghafoor (convict) is NOT CONFIRMED.