MANZOOR AHMAD MALIK, J.---This judgment shall decide Criminal Appeal No.3914 of 2009 titled as "Muhammad Arshad and 3 others v. The State" and Murder Reference No.8 of 2010 titled "The State v. Muhammad Arshad and 3 others" as both these matters have arisen out of the same case i.e. F.I.R. No.623/2006 dated 9-11-2006, offence under section 364, P.P.C. (later on offence under section 302, P.P.C. Was added) registered at Police Station Saddar Gujranwala District, Gujranwala.
2. Muhammad Arshad, Muhammad Younas, Shams Din and Ahmad Ali appellants) have tiled Criminal Appeal No.391-J of 2009 against the judgment dated 28-9-2009, whereby, after having been tried by the learned Additional Sessions Judge, Gujranwala in the above mentioned case for murder of Muhammad Ilyas (deceased), they were convicted and sentenced as under:- "47. Prosecution has proved the commission of offence by all the accused persons under section 302(b) read with section 34, P.P.C. And I convict all the accused accordingly as under:- "The accused Muhammad Arshad, Muhammad Younus, Ahmad Ali and Shams Din are convicted under section 302(b) read with section 34, P.P.C. and SENTENCE each of them TO DEATH AND TO PAY Rs.1,00,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. In order of succession which be recovered from the convict as arrears of land revenue and in default of payment/recovery thereof as aforesaid convicts shall suffer further R.I. For SIX MONTHS. All the above named convicts be hanged by their necks till their death."
The learned trial Court has sent Murder Reference No.8 of 2010 for confirmation or otherwise of the sentence of death awarded to Muhammad Arshad, Muhammad Younus, Shams ud Din and Ahmad Ali (convicts) as required under section 374, Code of Criminal Procedure.
3. Precisely, facts of the case, as contained in F.I.R. (Exh.PB/1) recorded on the basis of written application (Exh.PB) of Muhammad Abbas complainant (P.W.8) are that he was resident of mohollah Kulband Kallar Abadi. On 5-11-2006 at about 7-00 a.m. Complainant along with his brother Muhammad Ilyas were sitting in their house, Arshad Amin son of Khushi Muhammad caste Mehar resident of Kallar Abadi called his brother and asked him to come out. Complainant along with his brother Muhammad Ilyas came out where Shamas Din son of Nazir Ahmad caste Mehar, Younus son of Bashir Ahmad caste Mehar, Ahmad Ali son of Ghulam Rasool caste Warraich residents of Kallar Abadi were standing who asked complainant's brother that they had some work and took him with them. Till evening complainant's brother did not come back on which complainant along with inmates got worried and went in his search who could not meet them. The complainant side also asked from the above four named persons about the whereabouts of complainant's brother but they dillydallied the matter. The complainant had suspicion that Muhammad Arshad, Shamas Din, Younus and Ahmad Ali had murdered his brother.
4. On 9-11-2'006, Muhammad Yousuf, SI (P.W.12) was posted at Police Station Saddar Gujranwala as Incharge Investigation and on the same day, investigation of this case was entrusted to him. He went to the place of occurrence where deceased was abducted and interrogated complainant side and prepared laugh site plan of the place of abduction (Exh.PJ). Thereafter, he received information that dead body of Muhammad Ilyas was lying near the Patrolling Post near the bank of canal. He went to the place where the dead body was lying which was identified by Muhammad Abbas and Hadayat Ullah P.Ws. He inspected dead body of Muhammad Ilyas, prepared application for post mortem examination, (Exh.PK), injury statement (Exh.PL) inquest report (Exh.PM) and dispatched the dead body under the escort of Sarfraz Ahmad 256/C (P.W.4) for post mortem examination. He prepared rough site plan (Exh.PN) of the place from where the dead body was recovered and took into possession sack (P.5) in which dead body was kept and one lead bullet vide recovery memo. (Exh.PC). The I.O. Added offence under section 302, P.P.C. Read with section 34, P.P.C. On 10-11-2006, he recorded the supplementary statement of Muhammad Abbas complainant. He arrested Muhammad Arshad, Muhammad Younus, Shamas Din and Ahmad Ali (appellants) on 17-11-2006 and interrogated them. On the same day, Ahmad Ali, Shamas Din and Muhammad Younus (appellants) made disclosure and Ahmad Ali (appellant) got recovered pistol (P.1) from his residential house which was taken into possession vide recovery memo. (Exh.PE).
Shamas Din (appellant) also got recovered .30 bore pistol (P.2) from his residential house which was taken into possession vide recovery memo. (Exh.PF). Similarly, Muhammad Younus (appellant) got recovered .30 bore pistol (P.3) from the house of Shamas Din which was taken into possession vide recovery memo. (Exh.PG). On 18-11-2006, Masood Ahmad Bhatti Draftsman (P.W.1) visited the place of occurrence and took rough notes and prepared scaled site plan (Exh.PA and Exh.PA/1) and delivered to the I.O. On 23-11-2006. The Draftsman also visited the place from where the dead body of Muhammad Ilyas (deceased) was recovered and prepared scaled site plan (Exh.PA-2/3). On 20- 11-2006, Muhammad Arshad (appellant) made disclosure and got recovered "Toka" (P.4) from the residence of Shamas Din which was taken into possession vide recovery memo. (Exh.PH). The I.O.
Sent the appellants to judicial lockup on 26-11-2006 by the order of Illaqa Magistrate. During the course of investigation, all the four accused were found involved. The I.O. Got prepared report under section 173, Cr.P.C. Against the appellants on 3-12-2006.
5. The appellants were 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 them and formal charge under sections 302, 364 and 34, P.P.C. Was framed against them on 10-3-2007 to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as twelve witnesses, in all. Evidence of last seen was furnished by Shabbir Hussain (P.W.9). Muhammad Safdar 1860/HC (P.W.6) witnessed the recovery of .30 bore pistols at the instance of Muhammad Younas, Ahmad Ali and Shamas Din (appellants) whereas Iftikhar Ahmad (P.W.10) witnessed the recovery of Toka at the instance of Muhammad Arshad (appellant). Medical evidence was furnished by Dr. Jamil Ahmad Mirza (P.W.5). Muhammad Yousuf SI (P.W.12) 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 are formal in nature. Learned DDPP gave up Zafar Iqbal ASI, Hadayat Ullah, Altaf and Shabbir Hussain son of Bashir (P.Ws.) being unnecessary vide statement dated 4-6-2009. Learned DDPP tendered in evidence report of Chemical Examiner (Exh.PP), report of Serologist (Exh.PQ) and that of Forensic Science Laboratory (Exh.PR) and closed the prosecution evidence vide statement dated 23-6- 2009. Statements of the appellants were recorded under section 342, Code of Criminal Procedure on 8-7-2009 wherein they refuted all the prosecution allegations levelled against them. To a question as to why the case was registered against him and why the prosecution witnesses had deposed against him. Muhammad Younus (appellant) replied as under:-- "It is a blind murder and based on suspicion. Complainant and P.Ws. Deposed against me just to black mail me and to get money. Mere on suspicion and on the asking of police, complainant involved me in this false case. P.Ws. Are closely related to the complainant and on asking of the complainant they deposed against me. Deceased Muhammad Ilyas was vagabond person having enmity with a large number of peoples in the locality and an unknown person might have killed him due to personal grudge. I have no connection whatsoever with the offence."
Ahmad Ali and Shamas Din (appellants) deposed on the same lines. Muhammad Arshad (appellant) while deposing on the same lines made the following addition:-- "Further more 2/3 months prior to the occurrence some altercation took place and matter was patched up. I have no enmity with the deceased."
The appellants did appear as their own witness in disproof of the prosecution allegations as provided under section 340(2), Code of Criminal Procedure. However, they opted to produce evidence in their defence but they did not produce any evidence in their defence and closed the same vide separate statements dated 13-7-2009.
6. After conclusion of the trial, the learned trial Court convicted and sentenced the appellants as detailed above. Hence, this appeal and murder reference.
7. Learned counsel for the appellants, in support of this appeal contends that the appellants have falsely been implicated in this case, that admittedly there is no direct evidence so far as murder of Muhammad Ilyas (deceased) is concerned; that the appellants have been acquitted of the charge under section 364, P.P.C. And no appeal against their acquittal has been filed either by the complainant or by the State; that even the very identification of the dead body has not been established as Dr. Jamil Ahmad Mirza (P.W.6) who conducted post mortem on the dead body of Muhammad Ilyas (deceased) observed that head and neck, both upper limbs and both lower limbs at the level of knee were cut away; that the doctor further observed that the dead body was identified by Ghulam Abbas and Hadayat Ullah and he (doctor) had neither asked any identification mark nor had they told him; that even the complainant while appearing before the learned trial Court stated that his brother Muhammad Ilyas was taken away by the appellants on 5-11-2006 at 7-00 a.m. And did not come back till evening whereas the incident was allegedly reported to the Police at 1-05 a.m. (night) on 9-11-2006 and there is no explanation for this inordinate delay in reporting the matter to the Police; that no motive was alleged against the appellants in the F.I.R.; that Shabbir Hussain (P.W.9) who furnished the evidence of last seen also cannot be relied as he stated in his cross examination that he was not related to the complainant whereas the complainant stated in his cross-examination that Shabbir Hussain (P.W.9) was his father-in-law; that recoveries of pistol .30 bore (P.1) at the instance of Ahmad Ali (appellant), which was taken into possession vide recovery memo (Exh.PE), pistol .30 bore (P.2) at instance of Shamas us Din (appellant) which was taken into possession vide recovery memo (Exh.PF) and pistol (P.3) at the instance of Muhammad Younas, which was taken into possession vide recovery memo (Exh.PG) are inconsequential as report of Forensic Science Laboratory (Exh.PR) is simply to the effect that the pistols were in working order; that similarly recovery of toka (P.4) at the instance of Muhammad Arshad (appellant) is also inconsequential as according to the post mortem examination report (Exh.PD) death of Muhammad Ilyas (deceased) occurred due to irreversible haemorrhagic shock due to injury to abdominal arota, consequent upon injury No.1, which was caused by some firearm weapon and was sufficient to cause death in ordinary course of nature; that the dead body was not recovered at the pointation of any of the appellants as the Investigating Officer (P.W.12) stated during the course of cross-examination that he was informed about the dead body by the complainant side however, he could not tell the name of that person; that viewing from all angles, the prosecution case is full of doubts and the appellants under the circumstances are entitled to the benefit of doubt not as a matter of grace but as of right.
8. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that the complainant or the other witnesses of prosecution have absolutely no enmity against any of the appellants for their false implication in this case and even no such enmity was suggested to them during their cross- examination; that Muhammad Ilyas (deceased) was called by Muhammad Arshad (appellant) from his house and thereafter he was taken away by all the appellants on the pretext of some work; that Muhammad Ilyas (deceased) was seen lastly alive in the company of appellants by Shabbir Hussain (P.W.9) and Altaf (P.W. Since given up); that the prosecution case is corroborated by the recovery of weapons of offence i.e. Pistols and toka allegedly at the instance of the appellants; that the appellants were found involved during the course of investigation; that the evidence produced against the appellants forms a continuous chain and no link is missing; that the prosecution has successfully brought home guilt against the appellants to the hilt and there is no merit in this appeal; that the appellants committed brutal murder of the brother of the complainant and as such do not deserve any leniency even in the quantum of their sentence.
9. We have heard learned counsel for the appellants as well as the learned Deputy Prosecutor- General for the State assisted by learned counsel for the complainant at a considerable length and have also gone through the record very minutely.
10. This incident was reported to the Police by Muhammad Abbas complainant (P.W.8) on 9-11-2006 through a written application (Exh.PB) who narrated that on 5-11-2006 at about 7-00 a.m. He along with his brother Muhammad Ilyas were sitting in their house, Arshad Amin (appellant) called his brother and asked him to come out. Complainant along with his brother Muhammad Ilyas came out where Shamas Din, Younus and Ahmad Ali (appellants) were standing who asked complainant's brother that they had some work and took him with them. Till evening, complainant's brother did not come back on which complainant's side got worried and went in his search. They asked from the appellants about the whereabouts of Muhammad Ilyas but they dillydallied the matter. At the end of the F.I.R. The complainant expressed suspicion that the appellants had murdered Muhammad Ilyas. Dead body of Muhammad Ilyas was recovered from the bank canal near the patrolling post and offence under section 302, P.P.C. Was added in the F.I.R. Thereafter the complainant got recorded his supplementary statement on 10-11-2006 alleging therein that Muhammad Ilyas was lastly seen alive in the company of the appellants by Shabbir Hussain (P.W.9) and one Altaf (P.W. Since given up).
11. As discussed in the preceding paragraph the case was registered with the allegation of kidnapping/abducting Muhammad Ilyas in order to murder. The appellants were also charged under section 364, P.P.C. But acquitted of the said charge. Relevant portion of the impugned judgment is reproduced as under:--- "46. In this case accused persons have also been charged under section 364, P.P.C., evidence led by the prosecution as discussed above, in this case relevant statement is statement of P.W.8 who has deposed that Arshad one of the accused called upon his deceased brother when both of them were present in their house and on the call of accused Arshad complainant along with his deceased brother came out, all the accused persons there took the deceased with them on the pretext of some work and without resistance or ever uttering a single word deceased left with them.
As in this case for abduction, one should be compelled by force or by any deceitful means to go from any place can be said to have abducted a person but in this case the accused simply asked the deceased in presence of his brother for some work. Hence offence under section 364, P.P.C. Is not proved against the accused."
No appeal against acquittal of the appellants from the charge under section 364, P.P.C. Has been preferred either by the complainant or by the State meaning thereby that the prosecution was satisfied by the verdict of the learned trial Court so far as the charge of abduction is concerned.
12. Now we take up the charge of murder against the appellants. Since there is no direct evidence and prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead-body and other neck of the accused. But if chain link is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the apex Court of the country reported as "Ch. Barkat Ali v. Major Karam Elahi Zia and another"
(1992 SCMR 1047), "Sarfraz Khan v. The State" (1996 SCMR 188) and "Asadullah and another v. The State" (1999 SCMR 1034). In the case of Ch. Barkat Ali (supra), the august Supreme Court of Pakistan, at page 1055, observed as under:-- "...Law relating to circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See 'Siraj v. The Crown (PLD 1956 FC 123)... In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused'.
In the case of Sarfraz Khan (supra), the august Supreme Court of Pakistan, at page 192 held as under:-- "7. ....It is well-settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence....".
Further reliance in this context is placed on the case of "Altaf Hussain v. Fakhar Hussain and another" (2008 SCMR 1103) wherein, at page 1105 if was held by the Hon'ble Supreme Court as under:- "7. ...Needless to emphasise that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain."
Keeping in view the guidelines given by the Hon'ble Supreme Court of Pakistan, we would discuss the evidence, produced by the prosecution in this case.
13. As per F.I.R. (Exh.PB/1) Muhammad Ilyas brother of the complainant was taken away by the appellants on 5-11-2006 at 7-00 a.m. And did not come back till evening whereas the incident was reported to the Police at 1-05 a.m. (night) on 9-11-2006. In view of the above, there is a delay of about four days in reporting the matter to the Police, which has not been explained in the F.I.R. And this inordinate delay in reporting the crime to the Police cast doubts upon the veracity of prosecution case.
14. The evidence of last seen was furnished by Shabbir Hussain (P.W.9) who stated that on 5-11- 2006 he along with Altaf (P.W. Since given up) was going from Kaller Abadi to Ferozewala Pul Nehr Chhichhar Wali and they witnessed the deceased in the company of the appellants. The complainant stated during his cross-examination that Shabbir Hussain (P.W.9) and Altaf (P.W.
Since given up) used to meet him till the recovery or dead body oftently. Testimony of Shabbir Hussain (P.W.9) is not worthy of reliance as in the opening sentences of his cross-examination he stated that Muhammad Ilyas (deceased) was not his relative. He further stated that Abbas P.W.
Was his Mohalladar whereas Muhammad Abbas complainant (P.W.8) had stated in his cross- examination that Shabbir Hussain (P.W.9) was his father-in-law. Moreover it is the case of the complainant in the supplementary statement as well as before the learned trial Court that Shabbir Hussain (P.W.9) informed him on 10-11-2006 that he and Altaf (P.W. Since given up) had seen the deceased lastly alive in the company of the appellants on 5-11-2006. There is nothing on record as to what prevented P.W.9 from informing the complainant about the evidence of last seen prior to 10-11-2006 when he was Mohallandar/relative of the complainant and met him in routine. Following portion of cross-examination of P.W.9 is relevant which is reproduced here under:-- "Distance between my house and house of the complainant is about three acres. In routine I meet the complainant daily, alternative days or occasionally. Prior to the occurrence, about two days ago, the complainant met me along with Afzal Kumhar."
At another place in his cross-examination Shabbir Hussain (P.W.9) stated as under:-- After the occurrence on 5/6-11-2006 I met Muhammad Abbas complainant near my house. At that time Abbas complainant was alone".
Yet at another place of his cross-examination P.W.9 stated as under:- "On receiving the information for abduction of the deceased, when I along with the other person went to the police station, on that day, Police did not record my statement. On the day, when the dead body was found, on the same day we went to the police station to report about abduction of the deceased. Abbas complainant informed me about the kidnapping of the deceased on the day when dead body of the deceased was found at about 10/11-00 a.m."
The above extracts from the cross-examination of Shabbir Hussain (P.W.9) suggest that Muhammad Abbas complainant (P.W.8) remained in contact with Shabbir Hussain (P.W.9) prior to making supplementary statement. But the evidence of last seen was introduced later on 10-11-2006 in order to strengthen the prosecution case.
15. There is another aspect of the case. As per prosecution evidence on 5-11-2006 at about 7-00 a.m., the appellants called Muhammad Ilyas (deceased) from his house and took him along with them on the pretext of some work and thereafter, Muhammad Ilyas (deceased) went missing. The matter was reported to the police on 9-11-2006 at 1-00 a.m., when the dead body of Muhammad Ilyas (deceased) was recovered from the canal. The matter was reported to the police after about four days from the time, when Muhammad Ilyas (deceased) went missing. The evidence qua last seen of the deceased in the company of the appellants was furnished by Shabbir Hussain (P.W.9).
Dr Jamil Ahmad Mirza (P.W.5) conducted postmortem examination on the dead body of Muhammad Ilyas (deceased) on 9-11-2006 at 3-30 p.m. And according to his opinion, the probable duration between the injuries and death was stated as immediate and the probable duration between the death and post mortem examination was stated as 3 to 5 days and as such, the exact time of the murder of Muhammad Ilyas (deceased) is not known. It cannot be safely held that the time and date of death of Muhammad Ilyas (deceased) coincides with the time and date of the deceased lastly seen alive in the company of the appellants as given by Shabbir Hussain (P.W.9). It is by now well settled law that evidence of last seen of the deceased with the accused, should be in close proximity to the time and place of death, therefore, the abovementioned evidence of the complainant Shabbir Hussain (P.W.9) cannot be considered as the last seen evidence.
16. So far as recoveries of pistol .30 bore (P.1) at the instance of Ahmad Ali (appellant), which was taken into possession vide recovery memo. (Exh.PE), pistol .30 bore (P.2) at instance of Shamas Din (appellant) which was taken into possession vide recovery memo. (Exh.PF) and pistol (P.3) at the instance of Muhammad Younas, which was taken into possession vide recovery memo (Exh.PG) are inconsequential as report of Forensic Science Laboratory (Exh.PR) is simply to the effect that the pistols were in working order. Similarly recovery memo. (Exh.PH) of toka (P.4) allegedly at the instance of Muhammad Arshad (appellant) shows that the same was recovered from the baithak of Shamas Din (appellant). This recovery was witnessed by Iftikhar Ahmad (P.W.10) and Shabbir Hussain son of Bashir Ahmad. Said Shabbir Hussain son of Bashir Ahmad was not produced before the learned trial Court and was given up being unnecessary whereas Iftikhar Ahmad (P.W.10) in his cross-examination stated as under:- "...House of Arshad was consisted of two rooms, one Bathik. I never went to the house of Arshad prior to that day. I was aware about house of Arshad. Towards eastern side, was the house of Kumhar, situated from house of Arshad. Outer door of Bathik was closed. Family members were present in the house. I along with police entered in the house. We made search in the Bathik straight-away. In that Bathik there was one Palang, two cots, show case, Sofa and T.V. The Toka was under the show case. I did not see whether Toka was wrapped with anything or open. I am illiterate.
The residents of locality, 5/6 gathered there. We left P.S. At 2-30, 3-00 and reached at the spot of recovery within half an hour. It took one hour in recovery proceedings. 'We remained inside the house for 15/20 minutes and then came to P.S. Police recovered Toka, prepared parcel and get my thumb impression, One, over parcel. Nothing else was done by me..."
The above extract of the cross-examination conducted upon Iftikhar Ahmad (P. W.10) suggests that according to this witness the recovery of toka was effected from the house of Muhammad Arshad (appellant) whereas in his examination-in-chief this witness has stated that recovery was effected from the house of Shamas Din (appellant). Even otherwise according to the post mortem examination report (Exh.PD) death of Muhammad Ilyas (deceased) occurred due to irreversible haemorrhagic shock due to injury to abdominal arota, consequent upon injury No.1, which was caused by some firearm weapon and was sufficient to cause death in ordinary course of nature. It is well settled by now that evidence of recovery is merely a corroborative piece of evidence and relevant only if the other pieces of evidence inspire confidence, which is not the situation in this case.
17. Recovery of dead body of Muhammad Ilyas (appellant) also does not advance the case of the prosecution because it was neither recovered at the instance of any of the appellants nor is there anything on the record to the effect that any of the appellants pointed out the place where Muhammad Ilyas (deceased) was allegedly done to death. The complainant during the course of cross-examination stated as under:-- "The state of dead body was so bad that besides the family members, no one could identify him.
He was identified by his known body marks."
Dr. Jamil Ahmad Mirza (P.W.5) who conducted post mortem examination on the dead body in his cross-examination stated as under:-- "If the body remains emerged in water for some time like in weeks the features of the body remain identifiable but they become swollen, but in this case the neck, legs and incomplete arms were cut away; so the identification was done by the persons mentioned in the relevant columns and no other test was performed or advised for identification of the body like DNA etc. Both the identifiers whose names were mentioned in the relevant columns and called in the mortuary room for identification, where the dead body was lying on the table. The dead body was identified by these two persons, however, it is correct that I have not asked the persons any identification marks neither they have told me."
Therefore, the very identification of the dead body of Muhammad Ilyas (deceased) remained shrouded in mystery.
18. The medical evidence is only a supporting piece of evidence and relevant only if the other evidence inspires confidence. The medical evidence may confirm the ocular evidence with regard to the receipt of the injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on "Ata Muhammad and another v. The State" (1995 SCMR 599).
19. Sequel of the above discussion is that the prosecution case is doubtful in nature and the appellants are entitled to the benefit of doubt not as a matter of grace but as 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."
20. For the foregoing reasons, this appeal is allowed and conviction and sentence awarded to the appellants vide judgment dated 28-9-2009 passed by the learned Additional Sessions Judge, Gujranwala are hereby set aside. The appellants are acquitted of the charge of murder of Muhammad Ilyas (deceased) levelled against them while extending them benefit of doubt. They are in jail and be released forthwith if not required in any other case.
21. Murder Reference No.8 of 2010 is answered in the NEGATIVE and the sentences of death awarded to Muhammad Arshad, Muhammad Younas, Shamas-ud-Din and Ahmad Ali (convicts) are NOT CONFIRMED.