Syed Shahbaz Ali Rizvi, J: - This judgment shall dispose of Criminal Appeal No.292-J of 2011 titled as Sarfraz alias Safu etc. v. The State filed by Sarfraz alias Safu, Arif Ali, Abdul Razzaq and Umar Hayat alias Umri against their convictions and sentences as well as Murder Reference No.293 of 2010 titled as The State v. Sarfraz alias Safu 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 20.03.2010 passed by the learned Addl. Sessions Judge, Faisalabad in case FIR No.1529 dated 04.12.2007, offence under Sections 302, 460, 324 and 34 PPC, registered at Police Station Saddar District Faisalabad, whereby the appellants were convicted under Section 302(b)/34 PPC and sentenced to death for the murder of Mazhar Iqbal (deceased) with the direction to pay Rs.1,00,000/- each as compensation to the legal heirs of deceased as envisaged under Section 544-A of the Code of Criminal Procedure, 1898 and in default thereof, to undergo simple imprisonment for six months each. They were further convicted under Sections 324/34 PPC and sentenced to rigorous imprisonment for ten years each with fine of Rs.25,000/- each and in default of payment of fine, to further undergo simple imprisonment for three months each. They were also convicted under Section 337-F(i) PPC and sentenced to rigorous imprisonment for one year each with the direction to pay Rs.10,000/- each as daman to Shahzad Ahmad, injured (PW-9).
The appellants were also convicted under Section 337-D, PPC and sentenced to rigorous imprisonment for ten years with Arsh i.e. 1/3rd of Diyat amount for the year 2007-08 to be paid by all the appellants in equal share. They were further convicted under Section 460 PPC and sentenced to death with the direction to pay Rs.1,00,000/- each as compensation and in default thereof to undergo simple imprisonment for six months each. As the accused after committing house breaking by night had also attempted to commit murder of Shahzad Ahmad, injured (PW- 9), they were also sentenced to rigorous imprisonment for ten years with fine of Rs.25,000/- each and in default thereof to undergo simple imprisonment for three months. For causing injury No.1 to Shahzad Ahmad, injured (PW-9), they were sentenced to rigorous imprisonment for one year each with the direction to pay Rs.10000/- each as Daman to the injured. They were further sentenced to rigorous imprisonment for ten years for causing injury No.2 to Shahzad Ahmad with the direction to pay Arsh i.e. 1/3rd of Diyat for the year 2007-08 to be paid by the appellants in equal share. They were also convicted under Section 394 PPC and sentenced to rigorous imprisonment for four years each with fine of Rs.10,000/- each and in default thereof to further undergo simple imprisonment for one month each. They were also convicted under Section 411 PPC and sentenced to pay fine of Rs.5000/- each. All the sentences awarded to the appellants were ordered to run concurrently and they were also awarded the benefit of Section 382 B of the Code of Criminal Procedure, 1898.
2. Brief facts of the case, as disclosed by Safdar Iqbal, complainant (PW-5) in his statement (Exh- PA) on the basis of which formal FIR (Exh-PA/1) was registered, are that he is resident of Chak No.215/R.B Mohallah Usman Town and has established a grocery shop. On 03.12.2007 at about 11.30 p.m, he along with his family members was sleeping in the residential room of his house. His brother Shahzad Ahmad (PW-9) and his paternal cousin Muhammad Akram (given up PW) came home after work and on their call, he (complainant) opened the outer gate and they entered the house. He was closing the main gate when four persons armed with firearms forcibly entered the house. His brother Mazhar Iqbal was sleeping with his family in the upper storey. The accused persons, on gun point, confined all the persons in one room. All the accused had muffled their faces and were of middle age, one was tall whereas, the other three were of average height. The accused persons snatched a .12 bore repeater gun, two pistols and one .7 MM rifle from them. Two accused with muffled faces stood guard and the other two started searching the house. The marriage of his brother Adeel was to be held on 15.12.2007 and due to said marriage, cash amount, gold ornaments, clothes etc. and all other material were available in the house. The accused persons collected all the articles and when they were about to go with the articles, his brother Mazhar Iqbal tried to resist, upon which, the accused persons became annoyed and started firing.
One fire hit Mazhar Iqbal (deceased) on left side of his forehead and second fire hit on right side of his chest.
One fire shot hit Shahzad, injured (PW-9) on upper side of his back. Mazhar Iqbal (deceased) succumbed to the injuries at the spot whereas, Shahzad was shifted to hospital. Accused persons while making firing along with looted property gold ornaments, clothes and licensed firearms fled away from the spot.
None was nominated in the FIR and the present appellants were implicated in this case after the test Identification parade.
3. The appellants were arrested by the police in another case. Sarfraz alias Safu (appellant) at the time of his arrest was having a .12 bore repeater gun (P-3) along with four live cartridges (P-4/1-4) and a .30 bore mouser (P-5) which were taken into possession vide recovery memo Exh-PF.
Similarly, at the time of arrest of Arif Ali (appellant) a .30 bore mouzer (P-7) along with six live bullets (P-9/1 6) and a .30 bore pistol (P-8) along with five live bullets (P-10/-5) were recovered from him which were taken into possession vide recovery memo Exh-PG. At the time of arrest of Abdur Razzaq, a .30 bore pistol (P-11) along with five live bullets (P-13/1-5) and a .12 bore Carbine (P-12) along with one live cartridge (P-14) were recovered which were taken into possession vide recovery memo Exh-PH. After the Identification Parade conducted on 06.03.2008, all the appellants were arrested in this case on 12.03.2008 by Ghulam Safdar, S.I. (since dead). Sarfraz alias Safu (appellant) while in police custody, after making disclosure, got recovered one mobile phone Nokia 2600 (P-19) and National Identity Card (P-20) which were taken into possession vide recovery memo Exh-PM. On the same day, Umar Hayat alias Umri (appellant) while in police custody, after making disclosure, got recovered .30 bore pistol (P15), .7MM rifle (P-16), mobile phone Nokia 1110 (P-17) and one National Identity Card (P-18) which were taken into possession vide recovery memo Exh-PL. Abdur Razzaq (appellant), on the same day i.e. 19.03.2008, while in police custody, after making disclosure, got recovered mobile phone Nokia 6080 (P-21) which was taken into possession vide recovery memo Exh-PN. On the same day, Arif Ali (appellant), while in police custody, after making disclosure, got recovered mobile phone Nokia 1110 (P-22) which was taken into possession vide recovery memo Exh-PQ. 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, charge sheeted the appellants to which they pleaded not guilty and claimed to be tried.
4. The prosecution, in order to prove its case, produced as many as sixteen witnesses during the trial. The ocular account, in this case, was furnished by Safdar Iqbal, complainant (PW-5) and Shahzad Ahmad, injured (PW-9). Waseem Abbas (PW-12) furnished the evidence of Wajj Takkar.
Shahzad Ahmad, injured (PW-9) and Ahmad Khan, ASI (PW-6) are the witnesses of alleged recovery of different articles and crime weapons at the instance of the appellants.
The medical evidence was furnished by Dr. Muhammad Naeem (PW-7) and Dr. Jamil Safdar (PW- 14). Dr. Muhammad Naeem (PW-7), on 04.12.2007 at 11.00 a.m., conducted the post mortem examination on the dead body of Mazhar Iqbal (deceased) and noted the following injuries: - "1. A fire arm wound of entry 3 x 2 c.m. in size with inverted and abraded margins/downward in shape with tattooing present around the wound on left side of face, on left side of fore head, brain matter was coming out of the wound, 1 c.m. above left eye brow and 6 c.m. from midline.
2. A fire arm wound of entry with inverted and abraded margins 1 x 1 c.m. in size on front of right chest oval in shape with tattooing present on front of right chest 7 c.m. from right nipple and 6 c.m. from midline.
3. An abrasion 3 x 2 c.m. in size on right tample just close to right eye."
He was of the following opinion: - "The death occurred in this case due to neurological damage caused by injury No.1 as well as due to haemoragic shock caused by injury No.2, both were inflicted by fire arm, antimortem and could cause death individual as well as collectively in ordinary course of nature.
Probable time that elapsed between injury and death was immediate and between death and post mortem was within about 24 hours."
Dr. Jamil Safdar (PW-14), on 04.12.2007, medically examined Shahzad Ahmad, injured (PW-9) and noted following injuries on his person: - "1. A fire-arm grazing wound 1.5 cm x 1 cm on the back of lower part of neck in the mid-line of back of chest. Injury was skin-deep.
2. A fire-arm entry wound 0.5 cm x 0.5 cm at the lateral side of left side of chest."
Both the injuries were kept under observation. Injury No.1 was declared as Jurrah Ghayr Jaifah Damiah whereas, injury No.2 was declared as Jurrah Ghayr Jaifah.
Mr. Muhammad Kazim Awan, Special Judicial Magistrate (PW-13) supervised the proceedings of Identification Parade. Zafar Iqbal, SI (PW-15) is the Investigation Officer of this case and Akbar Ali Nizami, Draftsman (PW-8) prepared scaled site plan of the place of occurrence whereas, rest of the witnesses are formal in nature.
5. Learned Deputy District Public Prosecutor gave up Babar Iqbal, Muhammad Akram, Farooq Ahmad and Muhammad Aslam 960/HC PWs being unnecessary and after tendering in evidence report of Chemical Examiner (Exh-PAA), report of Forensic Science Laboratory (Exh-PBB) and that of Serologist (Exh-PCC), closed prosecution evidence.
6. The statements of the appellants, 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 against you and why the PWs have deposed against you?, Sarfraz alias Safu (appellant) deposed as under:- "I was arrested in Case FIR No.1528/07 in the beginning of January 2008 just on suspicion. Beside me about 20 other persons were also arrested as suspects including Arif and Abdul Razzaq my co- accused. After arrest the accused subjected me to severe physical torture and pressurized to make confession. As I was innocent, I did not make any confession. The police also demanded Rs.1,00,000/- as illegal gratification for my release, which I could not adhere to owing to which the police firstly on 15.02.2008 involved us in a false Case FIR No.153/08 U/S 399/402 PPC, which was found false and I was acquitted from this case on 31.07.2009. The police in connivance with the complainant party made out marks in my hair on backside of my ears and the police also drew my photographs just to show them to the witnesses in order to facilitate them in my identification.
On 22.03.2008 I moved an application before the learned Illaqa Magistrate for getting me medically examined as the police had subjected me to severe physical torture for pressurizing me to make confession. My application was accepted and I was medically examined by Dr. Khurram Suhail Rana and Dr. Muhammad Ikran Rana and M.L.C issued by them fully supports my version. I have been falsely involved in this case. I never made any extra-judicial confession. Nothing, whatsoever, was recovered from me and a false recovery has been planted upon me."
In response to same question, Abdul Razzaq and Arif Ali (appellants) relied on the reply made by Sarfraz alias Safu (appellant) whereas, Umar Hayat Umri (appellant) replied as under: - "I have been involved in this case falsely. In fact, on 01.03.2008 I was taken out from District Jail, Faisalabad and on account of a so called extra-judicial confession and after getting me identified in a so called identification parade I was booked in this false case, whereas, I have no concern, whatsoever, with the alleged occurrence."
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 20.03.2010, found the appellants guilty, convicted and sentenced them as mentioned above.
9. Learned counsel for the appellants contends that the appellants have falsely been implicated in this case; that admittedly, the FIR was registered against the unknown accused persons and no one was nominated; that the prosecution witnesses have made dishonest improvements in their previous statements; that the proceedings of the Identification Parade are doubtful and cannot be relied upon; that the evidence of Wajj Takkar furnished by Waseem Abbas (PW-12) is also not reliable; that the medical evidence is in conflict with the ocular account; that the recovery of stolen articles is dubious; that the recovery of crime weapons at the instance of the appellants is inconsequential; 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 are not nominated in the FIR yet they have correctly been identified during the proceedings of Identification Parade; that the prosecution case is corroborated by the evidence of Wajj Takkar; that the prosecution case is also corroborated by the medical evidence which is further corroborated by the recoveries effected at the instance of the appellants; that no reason for false implication of the appellants has been pointed out by the defence; 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. To substantiate its case, through the ocular account, the prosecution has produced Safdar Iqbal, complainant (PW-5) and the injured witness Shahzad Ahmad (PW-9) but the statements of these witnesses reflect that the same are pregnant with the dishonest improvements. According to the crime report, the matter was reported to the police after the delay of about two hours and forty-five minutes wherein, the complainant has narrated that the accused persons remained with muffled faces during the occurrence but when he appeared before the learned trial court as PW-5, he improved upon his previous statement by deposing that during the scuffle at the place of occurrence between the culprits and the witnesses, the masks of the culprits were removed. It is surprising that the witnesses of Wajj Takkar who are residents of the same street, as per prosecution case, had seen the culprits while leaving the house of the complainant but the evidence of Wajj Takkar was not made part of the FIR and it cannot be believed that having heard the firing by the culprits and seen them while leaving the place of occurrence, the neighbours would not have narrated whatever they had seen, to the complainant prior to the registration of the case. Safdar Iqbal, complainant (PW-5), not only made the supra mentioned improvements but he also made other material improvements in his statement as got confronted by the defence during the cross examination including the description of stolen property especially qua the mobile phones and National Identity Cards of the prosecution witnesses. Such like dishonest improvements are sufficient to make the statements of eyewitnesses untrustworthy and unreliable.
It is, by now, well established proposition of law that if a witness improves his statement, he is not worthy of reliance or any credence. Reference in this respect is made to the case of Khalid Javed and another v. The State (2003 SCM R 1419) wherein, the Hon'ble Supreme Court of Pakistan, at page 1438, was pleased to observe as under: - "18. ...In this behalf it may be observed that according to administration of criminal justice a witness who makes glaring contradictions, omissions and improvements in his Court statement qua the statement recorded by him before the police either as per the contents of the F.I.R. if he is complainant or if he is a witness and his statement is recorded under section 161, Cr.P.C. such witness is to be considered to be wholly unreliable witness and it is not advisable to place explicit reliance upon his evidence..."
Similar view was also taken by the Hon'ble Supreme Court of Pakistan in the cases of Farman Ahmed v. Muhammad Inayat and others (2007 SCM R 1825), Akhtar Ali and others v. The State (2008 SCM R 6) and Muhammad Rafique and others v. The State and others (2010 SCM R 385).
There is another important aspect of the matter that the complainant Safdar Iqbal (PW-5) implicated one Pervaiz Masih in this case after two days of the occurrence as an accused which is evident from his own statement during cross examination and that rebuts his dishonestly improved stance about catching sight of the faces of culprits during the occurrence because had he seen them, he would not have implicated a wrong person, Pervaiz Masih in this case.
So far as the statement of Shahzad Ahmad, injured (PW-9) is concerned, according to his own version, he remained in hospital for 7/8 days and thereafter, he came back to his house but neither the Investigation Officer went to the hospital to record his statement nor he himself immediately got recorded his statement on his arrival back home. His statement, under Section 161 of the Code of Criminal Procedure, 1898, was recorded on 12.12.2007 i.e. after nine days of the occurrence without any reasonable explanation and such circumstances persuade us to hold that the statement of a witness recorded with a considerable and unexplained delay is not worthy of reliance. In this regard, reference is made to the case of Rahat Ali v. The State (2010 SCM R 584) wherein, the Hon'ble Supreme Court of Pakistan was pleased to observe as under: - "9. ...Thus there is inordinate delay of silence of P.W.2 which creates doubt about his veracity. Delay of 24 hours, 4 days and 15/20 days in reporting the matter to the police or recording the statement of witnesses by the police has been found adversely affecting the veracity of witnesses as held in the cases of Muhammad Sadiq v. The State PLD 1960 SC 223, Sahib Gul v. Ziarat Gul 1976 SCM R 236 and Muhammad Iqbal v. State 1984 SCM R 930, respectively. It has also been observed by this Court that delay in recording the statement without furnishing any plausible explanation is also fatal to the prosecution case and the statement of such witness was not relied upon in the case of Syed Muhammad Shah v. State 1993 SCM R 550..."
Furthermore, it is well settled that the injuries available on the person of a witness may be a proof of his presence at the scene of occurrence but the same cannot be considered as the stamp of his truthfulness. We may also refer here the case of Amin Ali and another v. The State (2011 SCM R 323) wherein, the Hon'ble Supreme Court of Pakistan, at page 331, was pleased to observe as under: - "12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses..."
13. As far as the veracity of test Identification Parade is concerned, we have observed that it is clearly discernable from the narration of crime report that the eyewitnesses had not seen the faces of the culprits, so, the identification of the appellants by the eyewitnesses is not worthy of credence.
Moreover, the statement of Mr. Muhammad Kazim Awan, Special Judicial Magistrate (PW-13) also reflects as under: - "...On my asking the accused Sarfraz stated that before sending me the police of P.S Sadar kept him in their custody for one month at the P.S and then they made his hair cut and also made a hair cut mark above his right ear, so that he could be identified. The accused Abdul Razzaq also stated the same story. Accused Arif also stated the same story. I checked the hair cutting of the accused persons and found the visible marks of hair cut, therefore, the identification parade was postponed upto 06.03.2008. I made a Note in this respect, which Ex:PR/3...
On my asking accused Sarfraz alias Saffu stated that before coming to District Jail he had been in police custody for one month, where the complainant had been beating him. His photographs were also drawn there and now the hair cut marks made by the police have been vanished..."
On the other hand, Shahzad Ahmad (PW-9), during cross examination, has also admitted that the local police also handed over to him the snaps of the accused and these aspects of this case reflect maneuvering by the Investigation Officer and the complainant to manipulate the incriminating evidence against the appellants that renders the probity of such testimony doubtful.
No reliance can be made upon the evidence of such identification of the appellants that does not carry any judicial certainty.
14. As regards the evidence of Wajj Takkar furnished by Waseem Abbas (PW-12), we have observed that admittedly, the prosecution witnesses have maintained that Waseem Abbas (PW-12), was neighbour of the complainant and that it was he along with others who took Shahzad Ahmad, injured (PW-9) to the hospital after the occurrence and he remained there in the hospital till 03.00/03.30 a.m. and during the process of shifting the injured to hospital and being available there till the above mentioned time is a fact that transpires that he must have interacted with his neighbour Safdar Iqbal, complainant (PW-5) prior to the registration of case, but the crime report carries nothing about this material fact of Wajj Takkar evidence furnished by Waseem Abbs (PW- 12). Moreover, Waseem Abbas (PW-12) is discrepant with the Investigation Officer Zafar Iqbal, S.I (PW-15) as according to him, he joined the investigation and got recorded his statement at the place of occurrence when the police arrived there. Zafar Iqbal, SI (PW-15), during his cross examination, remained confused and self discrepant regarding the recording of statement of Waseem Abbas (PW-12) as he has maintained as under: - "...The witnesses namely Wasim and Farooq did not appear before me. Volunteers that they joined the investigation after change of investigation from me. I have not recorded statements of PWs, again stated that I recorded the statements of Wasim and Farooq PWs on 04.12.2007. PWs namely Wasim and Farooq were present at the spot when I prepared rough site plan Ex:PY. They told me that they have seen the accused while fleeing away. I have not mentioned this fact in Ex:PY. I have not mentioned the cattle-shed of Wasim and Farooq PWs in Ex:PY. It is correct that the names of Wasim and Farooq PWs are not mentioned anywhere in rough site plan Ex:PY. The investigation of this case remained in my hand from 04.12.2007 to 08.01.2008..."
We have also noticed that though Waseem Abbas (PW-12) has given the description of culprits in his statement yet his statement is silent about the weapons and looted property carried by the culprits. It seems that the evidence of Waseem Abbas (PW-12) is fabricated by the prosecution just to fortify its case against the appellants but, in our view, the same carries no credence.
15. As far as the evidence of alleged recovery of stolen property as well as the crime weapons at the instance of the appellants is concerned, we have noticed that no detailed description of stolen articles is given in the crime report. Even the same fact is not brought on record by the complainant through his supplementary statement and he disclosed the detail of the stolen articles, for the first time, before the learned trial court by making dishonest improvements in his statement. Even no memo of identification of the stolen articles was prepared at the time of alleged recovery as to the fact that the recovered articles were the same which were snatched during the occurrence.
Similarly, the alleged recovery of crime weapons at the instance of the appellants is inconsequential as the report of Forensic Science Laboratory (Exh-PBB) available on record is only to the extent of the working condition of the crime weapons allegedly recovered at the instance of the appellants.
There is another important aspect of this case that Zafar Iqbal SI (PW-15) secured foot prints of four culprits with the help of foot tracker and took the same into possession vide recovery memo ExhPE but after the arrest of the appellants, the same molds were not sent for comparison to the concerned Laboratory which reflects adverse to the probity of the prosecution case against the appellants. The prosecution also withheld the evidence of foot tracker that also leads us to infer against the prosecution case.
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 the instant case, 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, the same 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 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."
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.292-J of 2011 filed by Sarfraz alias Safu, Arif Ali, Abdul Razzaq and Umar Hayat alias Umri (appellants), 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.293 of 2010 is answered in the NEGATIVE and the sentence of death of Sarfraz alias Safu, Arif Ali, Abdul Razzaq and Umar Hayat alias Umri (convicts) is NOT CONFIRMED.