' SYED SHAHBAZ ALI RIZVI, J.--This judgment shall dispose of Criminal Appeal No,827 of 2010 titled as Muhammad Usman v. The State filed by Muhammad Usman (appellant) against his convictions and sentences, Criminal Appeal No,931 of 2010 titled as Sajjad Masih and others v. The State and others filed by Sajjad Masih, Yousaf Masih and Muhammad Usman (appellants) against their convictions and sentences and Murder Reference No,258 of 2010 titled as The State v. Sajjad Masih and others transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellants, being originated from the same judgment dated 5-4-2010 passed by the learned Addl. Sessions Judge, Kasur in case FIR No,291 dated 21-12-2006 offence under Sections 302, 460, 395, 114, P.P.C., registered at Police Station Theh Shaikham District Kasur, whereby the appellants were convicted and sentenced as under: - "32. ......................
(i) They are convicted and sentenced under section 302(b) read with section 34, P.P.C. To death each, for committing Qatl-i-amd of Muhammad Arif. They shall also pay Rs,50,000 eachas compensation under section 344-A, Cr.P.C. To the legal heirs of the deceased which shall be recovered as arrears of land revenue and in default of payment or recovery thereof, they shall undergo SI for one year each.
(ii) They are further convicted and sentenced under section 460, P.P.C. To undergo RI for ten years each with a fine of Rs,10,000 each; in case fine is not paid they shall further undergo SI for six months each.
(iii) They are further convicted and sentenced under section 39/, P.P.C. To undergo RI for ten years each with a fine of Rs,10,000 each; in case fine is not paid they shall further undergo SI for six months each."
' The sentences of imprisonment were ordered to run concurrently. The appellants were also extended the benefit of section 382-B of the Code of Criminal Procedure, 1898.
' The learned trial Court, however, through the same judgment acquitted Irshad Qamar and Abdul Ghafoor while giving them the benefit of doubt. It is pertinent to mention here that initially, Muhammad Usman (appellant) filed Crl. Appeal No,827 of 2010 alone and thereafter, he again filed Crl. Appeal No,931 of 2010 along with Sajjad Masih and Yousaf Masih (appellants). In this view of the matter, Crl. Appeal No,931 of 2010, to the extent of Muhammad Usman (appellant), is disposed of being superfluous.
2. Brief facts of the case, as disclosed by Muhammad Asghar, complainant (P.W.2) in his statement (Exh-PG) on the basis of which formal FIR (Exh-PG/1) was registered, are that he is cultivator by profession. On 21-12-2006 at about 10.15 p.m., he along with his sons Muhammad Arif (deceased), Mubarak Ali (P.W.3), Ijaz Ahmad son of Muhammad Shafi (given up P.W.) and Javaid Iqbal (given up P.W.) was present in his house. Ijaz Ahmad and Javaid Iqbal (given up P.Ws.) had come to him as guests. His sons and Javaid Iqbal etc. Were watching television CD in the room of flour grinding machine (Aata Chaki). His son Mubarak Ali (P.W.3) came out to urinate when three persons armed with firearms having black colour sheets (Chaddar) over them, caught hold of Mubarak Ali at gun point and took him in the room of flour grinding machine and made his sons and Ijaz Ahmad etc. Keep their hands up and picked out Rs,415, National Identity Card and mobile phone from the pockets of Ijaz Ahmad. His son Muhammad Arif resisted whereupon, ore of the unknown accused persons made fire shots with his firearm at his son Muhammad Arif (deceased) in his (complainant's) presence and in the presence of Mubarak Ali (P.W.3) and his guests Ijaz Ahmad etc. Which landed on his right flank and went through from left armpit. The accused persons have committed the murder of his son due to resistance during dacoity and fled away from the spot.
3. Sajjad Masih, Yousaf Masih and Muhammad Usman (appellants) who were arrested in some other case, were also arrested in this case on 15-1-2007, after the identification parade, by Liaqat Ali, SI (since dead). Muhammad Usman (appellant), on 25-1-2007, while in police custody, after making disclosure, got recovered .30 bore pistol (P-1) which was taken into possession vide recovery memo Exh-PA. On the same day i,e, 25-1-2007, Yousaf Masih (appellant), while in police custody, after making disclosure, got recovered .30 bore pistol (P-2) which was taken into possession vide recovery memo Exh-PB. Sajjad Masih (appellant), on 25-1-2007, while in police custody, after making disclosure, got recovered .30 bore pistol (P-7) which was taken into possession vide recovery memo Exh-PM. After completion of investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court. The learned trial court after observing all the pre-trial codal formalities, framed the charge against the appellants and their co-accused (since acquitted) to which they pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, produced as many as fourteen witnesses during the trial. The ocular account, in this case, was furnished by Muhammad Asghar Khan, complainant (P.W.1) and Mubarak Ali (P.W.2). Javaid Iqbal (P.W.4) got recorded his examination in chief but later on, was given up being won over by the accused. Nazir Ahmad 167/C (P.W.1) and Muhammad Nawaz 201/C (P.W.10) are the witnesses of alleged recoveries of crime weapons at the instance of the appellants.
' The medical evidence was furnished by Dr. Zulfiqar Ahmad (P.W.8) who, on 22-12-2006 at 09.30 a.m., conducted the post mortem examination on the dead body of Muhammad Arif (deceased) and noted the following injuries:-- "(1) An entry wound 1/2 x 1/2 cm, circular in shape with inverted and abraded margins outer side of left arm 10 cm below top of shoulder. A bullet was recovered from tissues on inner side of the arm under this injury.
(2) An entry wound 1/2 x 1/2 cm on front of chest on anterior axillary border 2 cm below armpit.
(3) An exit wound 3/4 x 1/2 cm right side of chest in middle at the level of 8th rib. It was exit of injury No .
2. "
' He was of the following opinion:-- "In my opinion the deceased died due to excessive haemorrhage and shock caused injury to both lungs, heart and liver under injury No,2 which was sufficient to cause death in ordinary course of nature. Both injuries 1 and 2 were ante-mortem in nature and were caused by firearm. Injury No,3 was exit wound of injury No,2. Probable time that elapsed between injury and death was declared immediately and that between death and post mortem examination was declared 12 hours approximately..."
' Mr. Faisal Jamil, Judicial Magistrate (P.W.13) supervised the Identification Parade. Liaqat Ali, S.I. Who was the Investigation Officer of this case had died, therefore, Munawar Beg, ASI (P.W.12) furnished secondary evidence. Muhammad Nasrullah, Draftsman (P.W.9) prepared the scaled site plan (Exh- PL) of the place of occurrence whereas, rest of the witnesses are formal in nature.
5. Learned Deputy District Public Prosecutor gave up Javaid Iqbal (P.W.4) being won over by the accused whereas, Muhammad Riaz SI being dead. He also gave up Muhammad Aslam, Ijaz, Isa constable, Shabbir Ahmad, Arshad, Zahid Iqbal and after tendering in evidence report of Chemical Examiner (Exh-PV), report of Serologist (Exh-P.W.), report of Forensic Science Laboratory (Exh-PX), certified copy of order dated 14-10-2009 passed in FIR No,762/2006 (Exh-PY), certified copy of the order passed in case FIR No,94/2007 (Exh-PZ), certified copy of order dated 14-10-2009 passed in case FIR No,78/2007 (Exh-PAA), certified copy of report under section 173 of the Code of Criminal Procedure, 1898 in case FIR No,274/2006 along with remand paper of accused Irshad and copy of charge framed against accused (Exh-PBB), certified copies of FIRs Nos.757/2006 (Exh-PCC), 293/2006 (Exh-PDD), 26/2007 (Exh-PEE), 27/2007 (Exh-PFF), 771/2007 (Exh-PGG), 21/2007 (Exh-PHH), 759/2007 (Exh-PJJ), 32/2007 (Exh-PKK) and 28/2007 (Exh-PLL) closed the prosecution case.
6. The statements of the appellants and their co-accused (since acquitted), under Section 342 of the Code of Criminal Procedure, 1898, were recorded. They refuted the allegations levelled against them and professed their innocence. In reply to a question that as to "Why this case has been lodged against you and why the P. Ws. Have deposed against you?", the appellants replied as under:- Sajjad Masih: "The P.Ws. Are interested witnesses. They have deposed falsely against me. The police in collusion with the complainant party had entangled me in this case just to show their performance. I did not participate in the occurrence. Even I was not present at the alleged place and time of occurrence.
The whole story is concocted and false one. My Khala Mst. Rani Bibi was admitted in DHQ Hospital Kasur for delivery purpose. On 20-1-2007 I and my mother were looking her after in the hospital where my Khala remained admitted for about more than a week. I was arrested from DHQ Hospital, Kasur when I was present there as attendant for my Khala."
Yousaf Iyfasih: "The P.Ws. Are interested witnesses. They have deposed falsely against me. The police in collusion with the complainant party had entangled me in this case just to show their performance. I did not participate in the occurrence. Even I was not present at the alleged place and time of occurrence.
The whole story is concocted and false one."
Muhammad Usman: ' The P.Ws. Are interested witnesses. They have deposed falsely against me. The police in collusion with the complainant party had entangled me in this case just to show their performance. I did not participate in the occurrence. Even I was not present at the alleged place and time of occurrence.
The whole story is concocted and false one. I was memorizing/learning the Holy Quran by heart at Madrassa Faiszan-e-Madinah Mandi Jhabran Hafizabad Road, Sheikhupura during the days of occurrence. I have memorized seven Parahs of Quran-e-Pak."
7. The appellants neither opted to appear as their own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 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 5-4-2010, found the appellants guilty, convicted and sentenced them as mentioned above.
9. Learned counsel for the appellants, inter alia, contends that the appellants have falsely been implicated in this case; that the appellants are not nominated in the FIR and the same was registered against unknown accused persons; that the prosecution witnesses have improved their statements; that the prosecution gave up Javaid Iqbal (P.W.4) despite the fact that his examination in chief was recorded and he was a material witness; that the medical evidence is in conflict with the ocular account; that the alleged recoveries are planted one; that the proceedings of the Identification Parade were not conducted as per rules; that the prosecution remained fail to prove its case against the appellants; that this appeal may be accepted, convictions and sentences of the appellants may be set aside, they may be acquitted and Murder Reference be answered in the negative.
10. Conversely, learned Deputy Prosecutor-General assisted by learned counsel for the complainant vehemently opposes the contentions raised by the learned counsel for the appellants and, inter alia, maintains that though the appellants arc not nominated in the crime report yet they have been correctly identified during the Identification Parade; that no mala fide on the part of the complainant and other witnesses has been pointed out by learned counsel for the appellants; that the ocular account produced by the prosecution is fully corroborated by the medical evidence that is further corroborated by the evidence of recovery of crime weapons and the snatched articles at the instance of the appellants; that the prosecution has proved its case against the appellants beyond any reasonable doubt; that this appeal may be dismissed and 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 scanned the record with their assistance.
12. We have observed that initially, Muhammad Asghar Khan, complainant (P.W.2) got registered crime report (Exh-PG/1) through his statement (Exh-PG) with the stance that three unknown persons having black Chadar over them, committed the occurrence inside the room of flour machine and snatched Rs,415, National Identity Card and a mobile phone from the pockets of Ijaz Ahmad (given up P.W.) and on resistance shown by Muhammad Arif, one of unknown accused made fires upon him which landed on his right flank and exited from the left arm pit but subsequently, through an application dated 16-1-2007 submitted by complainant Muhammad Asghar Khan (P.W.2), two other persons residents of the same place namely, Irshad Qamar and Abdul Ghafoor (since acquitted) were implicated but when the prosecution produced Muhammad Asghar Khan, complainant (P.W.2), Mubarak Ali (P.W.3) and Javaid Iqbal (P.W.4) who was subsequently given up, they made dishonest and flagrant improvements regarding the actual incident to make up the inconsistencies between the medical evidence and narration available in the crime report, to furnish more probable story and to implicate more persons. The improvements regarding the most material and relevant facts of the occurrence made by Muhammad Asghar Khan, complainant (P.W.2) were duly got confronted by the defence which read as under: - "... I have not got recorded in Exh.PG the names of Sajjad, Yousaf and Usman being armed with fire arms. I have got recorded in Exh.P.G that the accused snatched money from the pockets of P.W.
Javed Iqbal, Mubarak and Arif. (Confronted with Exh.P.G where the names of said P.Ws. Are not recorded). I got recorded in Exh.P.G that they also looted Mobile set phone and I.D. Card from deceased Arif (confronted with Exh.P.G where it is not so recorded. However it is recorded that from their pockets Rs,450 and I.D and mobile phone were snatched). I got recorded in Exh.P.G that deceased Arif from the other door of the room made his escape towards outside and he raised alarm (confronted with Exh.P.G that on account of his alarm, the fourth accused namely Irshad Qamar armed with fire who was guarding while standing outside, the house, rushed into the house) (confronted with Exh.P.G where it is not so recorded). I have not got recorded in Exh.P.G that deceased Arif over powered accused Usman and then accused Irshad Qamar fired at the deceased which instead hit the left shin of accused Usman. The reason for not recording the said fact is that I was not in my senses at that time and I.O. Obtained my signatures on blank paper. I got recorded in Exh.P.G that when accused Yousaf fired from his pistol which hit left upper arm of the deceased (confronted with Exh.P.G where it is not so recorded). I got recorded in Exh.P.G that the said fire shot was made by accused Sajjad which hit the deceased below his left armpit and went out through his right flank. I have not got recorded that as a result of the injuries suffered by the deceased, he fell down on the cot and succumbed to the injuries instantaneously. The reason for not recorded the said fact was that I was not in senses at that time. I got recorded in my statement Exh.P.G that during the grappling chaddars of accused persons fell off as a result of which I and other P.Ws. Identified them in the light of electric bulb (confronted with Exh.P.G where it is not so recorded) I got recorded in Exh.P.G that the incident took place at the behest of accused Abdul Ghafoor. (confronted with Exh.P.G where it is not so recorded)...I got recorded in Exh.P.G that fire of Yousaf accused hit on the left shoulder of my deceased son (confronted with Exh.P.G where it is not so recorded). It is correct that I have not got recorded in Exh.P.G that third fire shot was made by accused Sajjad Masih which hit the deceased below his left armpit..."
' Similarly, Mubarak Ali (P.W.3) also made dishonest improvements which read as under:-- "...I got recorded in my statement before the I.O. That the three accused persons also looted mobile set phone, I.D card from deceased Muhammad Arif (confronted with Exh.D.B where it is not so recorded, but it is recorded that the accused persons snatched Rs,450, mobile phone and identity card from all of us). I got recorded in my statement Exh.D.B that where upon the fourth accused Irshad who was while standing outside regarding the incident, came inside, forthwith Arif caught hold of accused Usman then Irshad accused fired at Arif which instead hit the shin of accused Usman. (confronted with Exh.D.B where it is not so recorded). I got recorded that my deceased brother Arif while making resistance ran away towards the door where two dacoits caught hold of him near the room meant for tithering the cattles, and that my father then also came at the place of occurrence, and one dacoit fired at my deceased brother Arif which instead hit on the leg of other dacoit whereas the third dacoit at once took us out of the room from the iron gate and fired at Arif deceased which landed on the right flank of Arif...I got recorded in Exh.D.B that accused Yousaf Masih fired which hit left upper arm of Arif (confronted with Exh.D.B where it is not recorded).
I got recorded in Exh.D.B that accused Sajjad Masih fired which hit left armpit and went through right flank. (confronted with Exh.D.B where it is not so recorded). I correctly recorded in Exh.D.B that the fire hit on the right flank of Arif and went across from the left armpit. It is incorrect that in order to bring the ocular account in line with the medical evidence, I intentionally with legal advise changed the version with mala fide. I got recorded in my Exh.D.B that grappling took place between the parties. It is incorrect that I have not mentioned any grappling between the parties in Exh.D.B. I got recorded in Exh.D.B that during the grappling the Chaddars of the assailants fell down so we all identified them in the light of electric bulb and tubelight (confronted with Exh.D.B where it is not so recorded)..."
' Moreover, it has also been noticed that Mubarak Ali (P.W.3), during his cross examination, has stated as under:-- "...It is correct that when I got recorded my statement before the I.O. 20/21 persons from both side were present. I have not got recorded in my statement in my statement before the I.O. That accused Sajjad Masih, Yousaf Masih and Usman armed with fire arms caught me on gun point. As my brother was murdered therefore, I felt the necessity to get recorded this fact before this court..."
The above reproduced reason given by Mubarak Ali (P.W.3) for making improvements in his statement reflects adverse to the prosecution case and leads us to infer that the prosecution witnesses made intentional and dishonest improvements.
The perusal of supra mentioned parts of the statements of both the eyewitnesses clearly reveals that they have made flagrant improvements in their statements regarding the most material features of the actual incident like number of accused, infliction of firearm injuries to the deceased by more than one unknown accused, effort of deceased to flee away, snatching of money and identity Card from Ijaz, given up P.W. (when both P.Ws. Were being confronted with their earlier statements at this point, learned trial court has wrongly mentioned as "However, it is recorded that from their pockets..." but the original text of Exh-PG/1 is as under:- {{URDU TEXT}} Underlining is ours ' It is clearly discernible from the Urdu text that only from the pockets of Ejaz Ahmad, the amount, mobile phone and Identity Card were picked.), witnessing the faces of culprits by the witnesses, place of sustaining injury by the deceased, sustaining of firearm injury by Muhammad Usman (appellant) during the incident at the hands of Irshad Qamar co-accused (since acquitted) and seat of entry wound sustained by the deceased etc. That has changed the complexion of the whole incident. Moreover, during the cross examination complainant Muhammad Asghar Khan (P.W.2) has furnished a reason for his improved statement that at the time of getting his statement (Exh-PG) recorded, he was not in senses but in this regard, no evidence is available on record to prove the fact that Muhammad Asghar Khan, complainant (P.W.2) remained under a shock or out of senses when he got recorded the crime report. In this regard, the Hon'ble Supreme Court of Pakistan has provided guidance through the observation given in the case of Khalid Javed v. The- State (2003 SCM R 1419) wherein, the Apex Court was pleaded to observe as under: - "14. ...It may be noted that for changing his version from FIR Exh.P.O to the version incorporated in supplementary statement Exh.D/B the complainant had claimed allowance on account of his disturbed mental condition but without proving medically through expert evidence, therefore, it would be dangerous and against the interest of justice to accept his explanation without legal proof."
Hence, we are of the view that the above mentioned material and dishonest improvements made by the eye-witnesses render the ocular account furnished by the prosecution, seriously doubtful and unreliable. Reference in this respect is respectfully made to the case of Muhammad Rafique and others v. The State and others (2010 SCM R 385) wherein, at page 396, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "24. ...This Court in the case of Saeed Muhammad Shah v. State 1993 SCM R 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State 2003 SCM R 1419 while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence."
13. So far as the identification of the accused persons is concerned, we have observed that according to crime report (Exh-PG/1), all the three accused persons had concealed their identity by wrapping Chadar around them but through the dishonest improvements made by both the eye- witnesses, they maintained that during the grappling, Chadar of the appellants fell down due to which they were identified by the witnesses in the light of electric bulb and tube light but the fact remains that no features or any description of the culprits, in the statements of the witnesses recorded under Sections 154 and 161 of the Code of Criminal Procedure, 1898 has been given by them. Even their statements are silent about the presence of acquitted accused Irshad Qamar at the scene of occurrence who was even previously well acquainted with all the eye-witnesses being resident of the same place, that persuades us to hold that the culprits were not seen by the witnesses at the relevant time which also renders the identification of all the three appellants by the witnesses during the Identification Parade held under the supervision of Mr. Faisal Jamil, Judicial Magistrate, Kasur in District Jail, Kasur, doubtful. Muhammad Asghar Khan, complainant (P.W.2), during his cross examination, has also admitted as under:-- "...It was in my notice that accused Sajjad, Yousaf and Usman were arrested by the police, on 24-12- 2006, rather they were arrested on 22-12-2006 ...The police apprised me about the said arrest at my house. I had not tried to verify the said statement of the police. We went to the Police Station after about 3-4 days from 22-12-2006. At that time the accused persons were present in lock up of Police Station Sadar Kasur with muffled faces. Volunteered that their laces were not shown to us..."
Learned Judicial Magistrate Faisal Jameel (P.W.13) also admitted that he correctly recorded in paragraph No,11 of the proceedings of Identification Parade (ExhPU) that all the accused raised objection before him that the witnesses had already seen them in the police lock up. Moreover, learned Judicial Magistrate while appearing before the learned trial court as P.W.13, during his cross-examination, has also admitted that none of the prosecution witnesses assigned any role to any of the accused persons at time of Identification Parade which has also been admitted by Muhammad Asghar Khan, complainant (P.W.2) during his cross-examination. Although, the appellants, as per proceedings report (Exh-PU), had been correctly picked up by the eye-witnesses yet the said identification has been made without assigning them any role allegedly played by the appellants during the occurrence which is sufficient to declare the test Identification Parade good for nothing. Guidance in this respect is respectfully sought from the esteemed judgments of Hon'ble Supreme Court of Pakistan in the cases of Wahid lqbal and others v. The State and others (2002 SCM R 588), Sirajul-Haq and another v. The State (2008 SCM R 302), Nazir Ahmad v.
Muhammad lqbal and another (2011 SCM R 527) and Muhammad Fayyaz v. State (2012 SCM R 522).
In the case of Muhammad Fayyaz supra, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:-- "3. ...After his arrest the appellant was put to a test identification parade and although he had been correctly picked up by the eyewitnesses yet indisputably such identification had been made without any reference to the role allegedly played by the appellant during the incident in issue. The law is by now settled that evidentiary value of such an identification in a test identification parade is next to nothing..."
' It has also been noticed by this Court that according to improved stance of both the eye- witnesses Muhammad Asghar Khan, complainant (P.W.2) and Mubarak Ali (P.W.3), Irshad Qamar, accused (since acquitted) made fire towards Muhammad Arif (deceased) which hit on the shin of Muhammad Usman (appellant) but during the whole trial, no evidence regarding the sustaining of firearm injury by Muhammad Usman (appellant) could be brought on record. Similarly, the prosecution remained confused regarding the place where the deceased sustained injury and died as is evident from the initial and improved statements of witnesses discrepant with the site plan (Exh-PL). The crime report (Exh-PG/1) reveals that the occurrence took place inside the room of flour machine but the statement of Muhammad Asghar Khan, complainant (P.W.2) and Mubarak Ali (P.W.3) transpires that the deceased sustained injuries outside the room but the cot on which the dead body was lying was available inside the room not of flour machine and blood was also taken from underneath the said cot. This uncertain, wavering and discrepant prosecution evidence is suggestive of untruthfulness of prosecution story. Moreover, Irshad Qamar, accused stands acquitted by the learned trial court by extending him benefit of doubt and being satisfied, Muhammad Asghar Khan, complainant (P.W.2) has not filed any appeal against his acquittal that persuades us to hold that since no cogent, strong and independent corroboration is available, the ocular account which is already disbelieved qua the co- accused, cannot be relied upon against the appellants.
14. As far as the medical evidence is concerned, keeping in view our observations regarding the ocular account, the medical evidence, a corroboratory piece of evidence, is not sufficient to establish the guilt of tale appellants as it is by now well settled law that medical evidence may confirm the ocular account with regard to the seat and nature of injury, the kind of weapon used in the occurrence but it would not itself identify the face of culprit. Reference in this respect may be made to the c of Muhammad Tasaweer v. Hafiz ulkarnain 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 Qamar Shah and another v. The State (2009 SCM R 1410) and Altaf Hussain v. Fakhar Hussain and another (2008 SCM R 1103). Even otherwise, the medical evidence furnished by the prosecution was discrepant with the crime report (Exh-PG/1) and the statements of witnesses recorded by the Investigation Officer under Section 161 of the Code of Criminal Procedure, 1898 due to which both Muhammad Asghar Khan, complainant (P.W.2) and Mubarak Ali (P.W.3) made dishonest improvements as discussed above.
15. As regards the alleged recoveries of crithe weapons at the instance of the appellants and positive report of the Forensic Science Laboratory (Exh-PX), we have noticed that the crime empties were taken into possession from the place of occurrence on 22-12-2006 and the same were sent to the office of Forensic Science Laboratory on 16-2-2007 i,e, after about one month of the arrest of the appellants in this case i,e, on 15-1-2007 and after about twenty days of alleged recoveries of crime weapons at the instance of the appellants i,e, 25-1-2007 and it is by now well settled proposition of law that if the crime empties are sent to the Laboratory after the arrest of the appellants, it is not safe to rely upon the positive report of the Forensic Science Laboratory.
Moreover, .30 bore pistols were allegedly recovered from all the appellants and Irshad Qamar, accused (since acquitted) but as per said report, only one .30 bore pistol was sent to the Laboratory which further makes the said report doubtful.
As regards the recovery of National Identity Card of Muhammad Arif (deceased) and mobile phone Nokia, we have noticed that Muhammad Asghar Khan, complainant (P.W.2) in crime report (Exh-PG/1) has disclosed that the accused snatched Rs,415, National Identity Card and mobile phone from the pockets of Ijaz Ahmad (given up P.W.) whereas, the National Identity Card allegedly recovered at the instance of Sajjad Masih (appellant) is of Muhammad Arif (deceased). Similarly, no description, make or model of mobile phone is mentioned in the FIR. Moreover, we have disbelieved the ocular account and the conviction cannot be based solely on the evidence of recovery as the same is corroboratory in nature.
16. It is an established principle of law that prosecution 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 view of all discussed above, the prosecution remained fail to discharge its responsibility of proving the case against the appellants beyond the shadow of a reasonable doubt. It is by now well settled law that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, that is sufficient to give benefit of the same to the accused, whereas, the instant case as discussed in the preceding paragraphs, is replete with 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.'
' 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 artificia. 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."
17. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellants beyond the shadow of any reasonable doubt, therefore, we accept Criminal Appeal No,827 of 2010 filed by Muhammad Usman (appellant) and Criminal Appeal No,931 of 2010 filed by Sajjad Masih and Yousaf Masih, set aside their convictions and sentences recorded by the learned trial court and acquit them of the charges levelled against them by extending them the benefit of doubt. They are in custody, be released forthwith if not required in any other case.
18. Murder Reference No,258 of 2010 is answered in the NEGATIVE and the sentence of death of Sajjad Masih, Yousaf Masih and Muhammad Usman (convicts) is NOT CONFIRMED. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.