' Muhammad Tariq Abbasi, J.-This judgment shall decide the above captioned Criminal Appeal and the Murder Reference, being outcome of same judgment dated 18.4.2009, passed by the learned Additional Sessions Judge, Kabinvala, District Khanewal, whereby in case FIR No, 484 dated 14.11.2004, registered under Sections 302, 392, PPC at Police Station Sadder Kabirwala, District Khanewal, Muhammad Ashfaq and Talib Hussain (hereinafter referred to as ' appellants') have been convicted and sentenced in the following terms:-- Muhammad Ashfaq
(i) Under Section 302(b). PPC to death, with compensation of Rs, 2,00,000/- payable to the legal heirs of Muhammad Saleem (deceased), in default whereof to undergo simple imprisonment for six months; and
(ii) Under Section 392, PPC to rigorous imprisonment for ten years and fine of Rs, 20,000/- in default whereof to further undergo simple imprisonment for three months.
' Talib Hussain
(i) Under Section 302(b). PPC to imprisonment for life, with compensation of Rs, 2,00,000/- payable to the legal heirs of the deceased, otherwise to undergo simple imprisonment for six months; and
(ii) Under Section 392, PPC to rigorous imprisonment for ten years and fine of Rs, 20,000/- in default whereof to further undergo simple imprisonment for three months.
' It was also directed that all the above sentences will run concurrently, with the benefit of Section 382-B, Cr.P.C.
2. The facts are that Abdul Razzaq (PW-9) made a statement Frad Biyan (Ex. PF), before the Police, contending therein that on 13.11.2004 at about 8.00 p.m., he alongwith his sons Muhammad Saleem (deceased), Muhammad Nadeem (PW-10) and another namely Muhammad Aslam (given up PW), on a tractor Registration No, 4029/MNX was coming to Bilawal; the tractor was being driven by Muhammad Nadeem (PW-10) and when reached near rube-well of Mushtaq, suddenly two unknown persons, who were armed with firearms, came in front of the tractor, whereas another unknown remained standing at a sides the accused, who came in front of the tractor, got it stopped on gun-point and demanded from the complainant and his companions, their belongings; Muhammad Nadeem (PW-10) gave Rs, 3,000/- to them and accused who was armed with rifle, asked Muhammad Saleem (deceased) to also hand over to them his belongings; Muhammad Saleem (deceased) started raising hue and cry, whereupon the said person with rifle made a fire shot, which hit. Muhammad Saleem at. Left side of shoulder and passed through and through; the other accused also started firing and thereafter all fled away; Muhammad Saleem succumbed to the injuries at the spot; many persons of the hearby locality attracted at the spot and due to darkness, the matter could not be reported to the police immediately. On the basis of the above said complainant/Fard Biyan, the case was registered through FIR (Ex. PF/1) against unknown accused. During the investigation, the appellants were found to be involved, hence challaned to the Court. They were formally charged sheeted, but denied the charge and claimed the trial, hence the prosecution evidence was summoned and recorded. The prosecution got examined as many as 15 witnesses. The material witnesses and gist of their evidence was as under:--
(i) PW-1 Dr. Muhammad Akhtar conducted post-mortem examination of the dead body of Muhammad Saleem on 14.11.2004 and prepared the post-mortem report (Ex. PA) and diagram (Ex.
PA/1). The following injuries on the dead body were noticed:--
(1) Wound of entrance. Lacerated wound 1 cm x 1 cm on the back of left chest 14 cm below the upper margin of left shoulder 9 cm from mid line. Margins were inverted.
(2) Wound of exit. Lacerated wound 5 x 2 cm on the front of right upper chest just above the medial end of right clavicle. Margins were everted.
' As per the doctor, the above said injuries were antimortem in nature, caused by fire-arm weapons and cause of death, which was within an hour.
(ii) PW-8 Sved Sikandar Ali Shah Bukhari, supervised the test identification parade dated 6.2.2006 and prepared the report (Ex. PE); during which Muhammad Ashfaq appellant was allegedly identified by the PWs.
(iii) PW-9 Abdul Razzaq complainant as well as an eyewitness narrated almost the same facts as were stated by him in the complaint (Ex. PF); he also participated in the test identification parades, during which Talib Hussain and Muhammad Ashfaq appellants were identified by him.
(iv) PW-10 Muhammad Nadeem, another eye-witness of the alleged occurrence, supported the version of the above named complainant (PW-9); he attested the memos. (Ex. PG. Ex. PH, Ex.PJ & Ex.PK), through which the blood stained earth, empties, pistol (P-4) got recovered by Talib Hussain appellant and rifle (P-6) recovered at the instance of Muhammad, Ashfaq appellant, were respectively taken into possession by the investigating officer; he also participated in the test identification parades and identified the appellants.
(v) PW-11 Muhammad Tahir narrated about extra judicial confession, allegedly made by the appellants, before him and Muhammad Hussain as well as Ashfaq (PWs).
(vi) PW-12 Sved Naveed Raza Bukhari supervised the test identification parade proceedings dated 14.5.2005 and prepared the report (Ex.PM), during which Talib Hussain appellant was identified by the PWs.
(vii) PW-14 Falak Sher SI investigated the case; he arrested Muhammad Ashfaq appellant, who was a proclaimed offender in the case and sent him to the jail for test identification parade; he presented application (Ex.PE) to the learned Sessions Judge; Khanewal for test identification parade, which was held on 6.2.2006; he obtained physical remand of the above named accused, who got recovered rifle (P-6), which was taken into possession through (Ex.PK); he recorded statement. Under Section 161 Cr.P.C. Of the relevant witnesses at relevant stages.
(viii) PW-15 Zafar Ullah Khan, Inspector also investigated the case; recorded statement (Ex. PF) of the complainant; prepared injury statement (Ex. PB) and inquest report (Ex. PC) of the deceased; drafted rough site-plan (Ex. PO) of the spot; secured last worn clothes (P-1, P-2 & P3) of the deceased through Memo (Ex.PD); collected blood stained earth from the spot and took it into possession through Memo (Ex. PG); secured two empties of .7mm rifle and three empties of .30 bore pistol vide Memo (Ex. PH); got drafted the scaled site-plans (Ex. PN, Ex. PN/1 & Ex. PN/2) from the draftsman; arrested Talib Hussain appellant and sent him to the jail for test identification parade, which was held on 14.5.2005; obtained physical remand of the above named appellant, who got recovered 30 bore pistol (P-4), which' was secured through Memo (Ex. PJ); recorded statements under Section 161, Cr.P.C. Of the concerned witnesses at relevant stages were tendered in evidence as Ex. PQ, Ex. PR & Ex.PS respectively and case, for the prosecution was closed, whereafter the appellants were examined under Section 342, Cr.P.C.; and they took the following stance:-- 'Muhammad Ashfaq - "I was arrested by the police much earlier and was kept at police station for so many days but on record my arrest was deferred. During this, I was shown to the complainant and other PWs, on so many days and later on fake and fictitious proceedings of identification proceedings were introduced to create a fake piece of evidence against me. All the recovery proceedings are fake and fictitious. I never led to the recovery of rile etc. It has been planted to strengthen the prosecution case.
' PWs are related interse and interested. They are under influence/pressure of our deadly against political, personal opponent namely Rao Jamshed Ali Lumberdar Bilawalpur and Union Nazim, permanent political figure. Said Rao. Jamshed Ali Lumberdar falsely got me involved in this case during investigation to satisfy his personal grudge. So in this state of affairs, I was falsely involved in this case and PWs deposed falsely against me.
' Actually, it was a blind occurrence. Neither the PWs were present at the time of occurrence nor they have witnessed the occurrence. These witnesses were later on introduced after cofning to know about the occurrence. I have no concern with his occurrence. I have not committed this occurrence."
' Talib Hussain - "It is a false case. I have been involved in this case due to enmity. All the witnesses are related interse and have deposed against me falsely. Actually it was a blind occurrence taking place in the darkness of night. The culprits could not be identified during the occurrence. I was implicated in this case without any cogent evidence and simply on the basis of suspicion. I was arrested by the police under pressure of the complainant party, kept in police unlawful custody for a sufficient time, shown to the witnesses and got identified by the PWS during identification parade.
I am absolutely innocent."
' Both did not opt to lead any evidence in their defence or make statements under Section 340(2), Cr.P.C. Ultimately the learned trial Court pronounced the impugned judgment, in the above mentioned terms and consequently, the matters in hand.
4. The learned counsel for the appellants has argued that it was a blind occurrence, which was not seen by anyone, but with mala fide, while concocting false story and evidence, the 'appellants were involved and implicated; the prosecution had badly failed to establish . The case and prove the charge against the appellants as per the prescribed criteria, but the learned trial Court had failed to consider the said fact and as such the impugned judgment towards conviction and sentence of the appellants is not acceptable under the law. It has been prayed that by accepting the appeal, the appellants may be acquitted of the charge.
5: Conversely, the learned Deputy Prosecutor General, assisted by the learned counsel for the complainant has vehemently opposed the appeal, while supporting the impugned judgment to be well-reasoned and call of the day.
6. Arguments advanced by both the sides have been heard and the record has been consulted.
7. Admittedly, at the time of reporting the matter to the Police through Ex.PF, nobody was named as an accused. The appellants were involved on the basis of circumstantial evidence. The settled principle/criteria for such like cases is that all the circumstances A should be connected in such a manner that they should make a continuous chain, one end of which should touch the dead body, whereas the other around neck of accused. Missing of even a single ring would break the chain and fatal for the prosecution. In this regard, reference may be made, to cases "The State versus Manzoor Ahmad" (PLD 1966 Supreme Court 664), " Asadullah and another versus the State and another" (PLJ 1999 SC 1018), "Ch. Barka Ali versus Major Karam Elahi Zia and another" (1992 SCM R 1047), "Sarfraz Khan versus The State" (1996 SCM R 188), "Altaf Hussain' versus Fakhar Hussain and another" (2008 SCM R 1103) and "Ibrahim and others versus The State" (2009 SCM R 407). Herein below, it would be evaluated whether the case has been established as per the above mentioned criteria or otherwise.
8. This prosecution story is that one Habib while nothing foot prints had informed the complainant that the same were of the appellants, hence the complainant through a supplementary statement had nominated them. Firstly the above named person, who had informed, had not appeared in the witness box and secondly the supplementary statement does not have any legal value, hence the above said story could not be given any importance in view of dictum laid down by the Hon'ble Supreme Court of Pakistan in cases Falak Sher alias Sheru versus The State (1995 SCM R 1350), Khalid Javed and another versus the State (2003 SCM R 1419) and Muhammad Rafique and others versus The State and others (2010 SCM R 385). Relevant portion of case Falak Sher (Supra) reads as under:-- "18. The learned counsel for the State insisted that in supplementary statement recorded by S.I.
Muhammad Ayub on same day the complainant had disclosed name of the appellant. The supplementary statement of the complainant be read as part of the F.I.R. The contention is devoid of force. It may be observed that F.I.R. Is the document which is entered into 154, Cr.P.C. Book maintained, at the police station at the complaint of informant. It brings the law into motion. The police under Section 156, Cr.P.C. Starts investigation of the case.
19. Any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report not read as part of it."
9. The second stance of the prosecution is that during test identification parade proceedings dated 14.5.2005 and 2.6.2006, Talib Hussain and Muhammad Ashfaq appellants were respectively identified by PW-9 and PW-10. As stated above, when the appellants were already named by the complainant, through a supplementary statement, made on the next day of the occurrence, then the proceedings of the test identification parade were immaterial. Furthermore, as per Falak Sher SI/Investigating officer (PW-14), Muhammad Ashfaq appellant was a proclaimed offender in the case, hence after his arrest, test identification parade was having no legal consequence. During evidence of Abdul Razzaq complainant (PW-9), it came on the record that after arrest of the appellants, the PWs had been visiting the Police Station and telling the complainant the progress of the investigation. The above said .Fact has also made the proceedings of test identification parade immaterial, especially when the Magistrate (PW-12) had categorically stated that according to him, the appellants were shown to the PWs, before the test identification parade. The PW-10 had specifically contended that he was having sound suspicion that the appellants had committed the occurrence. He during this statement got recorded on 14.11.2004 under Section 161, Cr.P.C., which was brought on the record as Ex.DC, had categorically nominated the appellants towards commission of the alleged occurrence. The said fact had also made the above mentioned test identification parade proceedings useless.
10. Sequel of the above discussion is that the prosecution has failed to make out the chain and establish the case as per the above ' mentioned principle/criteria and as such the charge against the appellants is doubtful and it is unsafe to maintain their conviction on the basis of such type of evidence because it is bounden duty of the (prosecution prosecution to prove its case against the accused beyond any shadow of doubt. It is an axiomatic and universally recognized principle of law that conviction must be based on unimpeachable evidence and certainly of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. We are fortified by the dictum laid down in the cases ."Muhammad Khan and another versus The State" (1999 SCM R 1220) and Muhammad Akram versus The State (2009 SCM R 230). In the case Muhammad Khan (Supra) Hon'ble Supreme Court of Pakistan, has held as under:-- "It is an axiomatic and universally is recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore; imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to reply on the ocular evidence which has been molded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct respective".
11. It is well settled principle of law that if a simple circumstance creates reasonable doubt in a prudent mind about guilt of an accused, then he will be entitled to such benefit not as a matter of grace or concession, but as of right. In this regard, reference may be made to the case "Tariq Pervaiz vs. The. State" (1995 SCM R 1345). This view has further been fortified in the case of "Ayub Masih vs. The State" (PLD 2002 SC 1048), whereby it has been directed that while dealing with a criminal case, the golden principle of law "it is better that ten guilty persons be acquitted, rather than one innocent person be convicted" should always be kept in mind.
12. Resultantly, the above captioned Criminal Appeal No, 91/2010 is accepted, the impugned judgment is set aside and the , appellants namely Muhammad Ashfaq and Talib Hussain are acquitted of the charge, while extending them the benefit of doubt. Both are in custody, hence be released forthwith, if not required to be detained in any other matter. The disposal of the case property shall be as directed by the learned trial Court. As a consequence, Murder Reference No, 136/2009 is, answered in negative and death sentence awarded by the learned trial Court to Muhammad Ashfaq appellant is not confirmed.