JAMES JOSEPH, J: This single judgment shall dispose of Criminal Appeal No. 285 of 2011 filed by Nazar Muhammad appellant and Murder Reference No. 109 of 2010 sent by the learned trial Court for confirmation of death sentence of appellant Nazar Muhammad son of Raza Muhammad or otherwise, as both above captioned matters have arisen out of one and the same judgment dated 18.03.2010 passed by learned Additional Sessions Judge Rajanpur in case FIR No. 479/2001 dated 26.11.2001, registered under section 302/452/148/149/109 PPC at Police Station Fazilpur, whereby the appellant Nazar Muhammad was convicted and sentenced as under: - Nazar Muhammad son of Raza Muhammad was convicted under section 302(b) PPC and sentenced to death with imposition of Rs. 200,000/- as compensation to be paid to the legal heirs of the deceased Ghulam Yasin.
02. Briefly the prosecution story, as un-folded in the FIR (Exh PH) is that on 26.11.2001 Fida Muhammad son of Ghulam Muhammad got recorded his statement that on the day of occurrence he was present at the Dera of his uncle Raza Muhammad alias Raza and on hearing the noise he came out and saw Ghulam Sarwar armed with 12 bore gun, Amir Abdullah armed with repeater 12 bore, Asghar son of Ghulam Sarwar armed with gun 12 bore, Munawar Hussain son of Akbar armed with rifle and Muhammad Ramzan armed with 'Sota' in furtherance of their common intention, assaulted upon his uncle Raza Muhammad. Amir Abdullah accused raised lalkara not to leave Raza Muhammad alive, upon which Ghulam Sarwar accused made a fire with his gun upon Raza Muhammad which landed on his chest. Asghar accused made fire with his gun which landed on his right arm (upper part). Raza Muhammad succumbed to the injuries at the spot. Amir Abdullah accused asked his companion to murder Anwar Mai wife of Ghulam Sarwar and Ghulam Yasin son of Haji Ibrahim brother of Anwar Mai, upon which accused persons entered in their house. The complainant also went there. Munawar Hussain committed murder of Ghulam Yasin in a room with fire arm injury which hit on his face. Amir Abdullah injured Anwar Mai in the courtyard. Ramzan accused also inflicted soti blow upon the head of Shagufta Bibi. Motive behind the occurrence was that one year prior at the house of Anwar Mai Raza Muhammad uncle of the complainant insulted Baqar Shah Peer-o-Murshid of Balhora tribe/caste who felt grudge in their mind and due to this grudge they in furtherance of their common intention committed murder of Raza Muhammad, Anwar Mai and her brother Ghulam Yasin at the instigation of Peer Baqar Shah.
Allegation against the present appellant is that he alongwith his co-accused persons namely Fida Muhammad, Niaz Muhammad and Ghulam Yasin in furtherance of their common intention while armed with firearms committed murder of Yaseen son of Ibrahim at the instigation of Ghulam Sarwar accused in order to retaliate the murder of Raza Muhammad father of Nazar Muhammad appellant.
03. After the registration of the case and on completion of usual investigation, Report under section 173 Cr.P.C. Was submitted before the trial Court.
04. Learned trial Court, after observing all legal formalities provided under the Criminal Procedure Code, framed the charge on 22.03.2005 against Nazar Muhammad, Fida Muhammad, Ghulam Sarwar, Niaz Muhammad and Ghulam Yasin under sections 302/34/109 PPC, to which they pleaded not guilty and demanded trial, hence, prosecution evidence was summoned.
05. The prosecution, in order to prove the guilt of the accused persons examined as many as (15) witnesses. The gist of prosecution evidence is as under:- PW-1 Doctor Muhammad Hassan Malik EDO Health Rajanpur conducted the post mortem examination upon his dead body of deceased Raza Muhammad father of the appellant as well as upon the dead body of Ghulam Yasin son of Muhammad Ibrahim and found the following injuries on the person of the deceased Ghulam Yasin: - 1- A lacerated wound slightly oval in shape measuring 1 1/4 cm x 1 cm x going deep, margins were inverted on the right side of upper part of face 1 % cm. Inner to midline of the left ear.
2. A lacerated wound 2 cm x 1 % cm x going deep on the front of forehead between the two eye brows, lower margins of the wound reached the root of nose.
3. A lacerated wound 1 % cm x % cm x skin deep on the lower part of left side of forehead touching the outer end of left eye brow.
4. A lacerated wound 1 cm x % cm on the lower part of right side of forehead, just touching the outer end of eye brow.
5. There was swelling on left upper arm and there was fracture of left humorous bone. Injury No.1 was wound of entrance and injury No.2 was wound of exit. The margins wound in injury No. 2 were everted.
According to the opinion of the doctor all the injuries were ante mortem. Injuries No. 1 & 2 were caused by fire arm and injuries No. 3, 4 & 5 were caused by blunt weapon, cause of death in this case was due to excessive haemorrhage in brain which ultimately resulted in shock and death caused by injuries No. 1 & 2 which were sufficient to cause death individually or collectively in ordinary course of nature. The probable time, which elapse between injury and death was immediate and between death and post mortem was 2 to 3 hours.
PW-2 Rab Nawaz son of Sohrab identified the dead body of deceased Ghulam Yasin deceased at the time of post mortem examination before the medical Officer.
PW-3 Muhammad Ibrahim son of Fateh Muhammad identified the dead body of Mst. Anwar at the time of her postmortem examination before the doctor.
PW-4 Dr. Aftab Ahmad Alvi, Medical Officer DHQ Hospital Rajanpur being member of medical board medically examined Nazar Muhammad alias Nazar and found four injuries upon his person. He issued MLC No. 477/MB/2001 Exh PD.
PW-5 Muhammad Sharif 562/C escorted the dead body of Mst. Anwar Mai wife of Ghulam Sarwar to the mortuary for her post mortem examination. After the post mortem examination he produced the last worn clothes of the deceased, one sealed .
Envelope and sealed phial before the IO who took the same into possession.
PW-6 Dr. Noshaba Aman (Ex-W.M.O. DHQ Hospital Rajanpur) conducted the postmortem examination on the deceased body of Mst. Anwar Bibi wife of Ghulam Sarwar and found following injuries upon her person.
A rounded lacerated wound 4 x 4 cm bone deep on the back and outside of upper part of right arm. Margins were inverted. (wound of entry) A bruise 5 cm x 3 cm on the lower and outer part of the left side of the chest.
PW-7 Hazoor Bakhsh son of Muhammad Ibrahim deposed that in his presence the accused Nazar Muhammad led to the recovery of loaded pistol 30 bore P-14 without license from his shop which was taken into possession by the police vide memo Exh PT.
PW-8 Maqsood Mai wife of Muhammad Asghar is the alleged eye witness of the occurrence deposed in support of the occurrence.
PW-9 Bashir Ahmad son of Muhammad Ibrahim is also the alleged eye witness of the occurrence who also deposed in support of the prosecution and also corroborated the statement of PW-8.
PW-10 Sajid Mehmood ASI being Moharrir of the P.S. Kept the three sealed parcels said to contain blood stained earth relating to Raza Muhammad, Ghulam Yasin and Mst. Anwar Mai deceased in the Malkhana in safe custody and then handed over the same to Rashid Ahmad 214/C for their onwards transmission in the office of Chemical Examiner Lahore intact.
PW-11 Rashid Ahmad 214/C delivered the above mentioned three sealed parcels in the office of Chemical Examiner Lahore intact.
PW-12 Ghulam Murtaza Retired Inspector being Investigating Officer of this case deposed regarding the steps taken by him during the investigation of the instant case.
PW-13 Muhammad Fayyaz-ul-Haq Inspector Anti- Corruption Muzaffargarh being I.O. Recorded statements of certain PWs u/s 161 Cr.P.C.
PW-14 Syed Irshad Hussain Shamshi Inspector/SHO got prepared scaled site plan of the place of occurrence from Fayyaz Ahmad Patwari Exh PU, Exh PU/1 & Exh PU/2. He also recorded his notes in red ink.
PW-15 Fayyaz Ahmad Girdawar Halqa prepared the scaled site plans of the place of occurrence Exh PU, Exh PU/1 & Exh PU/2.
06. The prosecution has given up PWs Abdul Jabbar 518/C, Kalo son of Iqbal, Razzaq, Mst. Shagufta, Ghulam Sarwar son of Khawja Muhammad, Ghulam Muhammad, Abdu Hameed, Riaz Ahmad, Ahmad Yar, Ghulam Murtaza, Muhammad Hussain, Fayyaz Hussain, Mazhar Abbas son of Ghulam Sarwar, Irshad Hussain, Ghulam Mustafa, Ijaz Hussain, Ghulam Mustafa son of Atta Muhammad, Ghulam Murtaza, Niaz Ahmad, Abdul Sattar, Allah Yar, Inayat Ullah, Ghulam Hussain, Hazoor Bakhsh, Ghulam Yasin son of Fateh Muhammad and Fida Muhammad being un-necessary. Learned law officer also tendered certain reports in evidence and closed the prosecution case on 16.02.2010.
07. After the closure of prosecution case, statement of the appellant was recorded under section 342 Cr.P.C. Who refuted the allegations so leveled against him in prosecution evidence. He opted to produce defence evidence, however, did not opt to appear as a witness under section 340(2)
Cr.P.C. In reply to question "Why this case against you? The appellant Nazar Muhammad replied as under: - "I am innocent. In fact Syed Baqir Shah is Peer-o-Murshid of Balhora by caste. In a meeting, he was insulted by Raza Muhammad deceased. Muhammad Baqir Shah and his followers felt in their disgrace. Hence, they planned to kill Raza Muhammad on the asking of Syed Baqir Shah, therefore, on the instigation of above said Baqir Shah, Aamir Abdullah, Ghulam Sarwar, Asghar, Munawar Hussain and Muhammad Ramzan, all of them armed with fire-arm weapons launched an attack upon Raza Muhammad deceased on 26.11.2001 at about 7.00 a.m. After this, Amir Abdullah, Muhammad Hussain and Muhammad Ramzan went to house of Anwar Mai to kill her and Ghulam Yasin in the presence of Shagufta Mai, Mazhar Abbas and Ghulam Sarwar, who had witnessed the occurrence. In this occurrence Shagufta Bibi was given soti blow by Muhammad Ramzan on her head. Fida Muhammad who was present on the place of occurrence and saw the whole occurrence, went to the police station. He got registered a case FIR No. 479/2001 dated 26.11.2001 against the aforementioned accused persons. During the investigation we were held guilty and the aforementioned accused persons were found innocent in collusion with police. We were unlawfully confined. Police was party to the complainant and thereby we were deprived fair treatment and investigation."
08. In his defence evidence the appellant has produced Mst. Shagufta Tabasum alias Babi daughter of Ghulam Sarwar as DW-1 and closed his defence evidence.
09. After conclusion of the trial, learned trial court convicted Nazar Muhammad appellant with above stated sentence through judgment dated 18.03.2010, hence, this appeal and murder reference.
10. It is contended by learned counsel for the appellant that the judgment of the learned trial court is against the law and facts on the file and is liable to be set-aside; that the prosecution has not been able to prove its case against the appellant as there are major discrepancies and contradictions in the prosecution evidence; that the evidence produced by the prosecution is self- contradictory and un-reliable; that the PWs produced by the prosecution were not present at the scene of occurrence as their names are not mentioned in the FIR; that infact the accused party is complainant of the FIR who, in connivance with the police, were let-off and the appellant and others were made scapegoat in the present case; that the evidence produced by the prosecution is not in-line with the medical evidence. Lastly it is prayed that the appeal filed by the appellant be accepted.
11. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant has vehemently controverted the arguments advanced by the learned counsel for the appellant by maintaining that the prosecution has successfully proved its case against the appellant by producing reliable, trustworthy and cogent evidence; that the claim of the PWs is very well supported by the medical evidence as well as by the recoveries; that the impugned judgment passed by the learned trial court has been delivered after thorough evaluation of the prosecution evidence in its true perspective, therefore, the judgment passed by the learned trial court does not call for any interference by this court, hence, prayed for the dismissal of the appeal filed by the appellant.
12. We have heard the arguments advanced by the learned counsel for the parties and perused the record.
13. The details of prosecution story, as mentioned in the FIR (Exh PH) has already been given in the preceding paragraphs of this judgment which was got lodged by Fida Muhammad, who during the course of investigation, was also found to be involved in the instant case but was acquitted by the learned trial court through the impugned judgment. No appeal against the acquittal of Fida Muhammad (complainant) was filed from the prosecution side. It would be pertinent to mention here that initially the FIR was promptly lodged against accused persons Amir Abdullah, Ghulam Sarwar, Muhammad Ramzan, Munawar Hussain and Ghulam Asghar with their respective roles for committing the murder of Raza Muhammad, Ghulam Yasin son of Ibrahim and Mst. Anwar Mai. The accused persons nominated in the FIR were declared innocent during the course of investigation and where released under section 169 Cr.P.C. On 14.12.2001. Where-after the appellant including Fida Muhammad son of Ghulam Muhammad, Ghulam Sarwar alias Mangla son of Ghulam Husain, Niaz Muhammad son of Raza Muhammad and Ghulam Yasin son of Fateh Muhammad were found to be involved in the present occurrence, however, a private complaint was filed against the acquitted accused but the same was dismissed for non-prosecution as the complainant party of the FIR i.e. Appellants etc. Were arrested and sent to judicial lock up, therefore, the complaint was dismissed due to non-prosecution.
14. In order to prove the ocular account the prosecution examined Mst. Maqsood Mai (PW-8). She while making her examination-in-chief before the court took a different stance as mentioned in the FIR Exh PH and stated as follows: - "About seven years ago at about morning time I was present in the house of Anwar Bibi. Yasin deceased came from outside in the house and then made firing on the person of his sister Mst.
Anwar Bibi. After firing Yasin deceased wanted to go out and he was dragged inside the house by Yasin. Fida Muhammad, Nazar Muhammad and Niaz Muhammad accused. He was taken inside the room. Then all the accused persons Yasin, Nazar, Niaz and Fida Hussain inflicted sota blows on the person of Yasin deceased. After then Nazar accused made a fire on the person of Yasin deceased and he died then and there. As I was witnessing the occurrence, the accused threatened me with dire consequences and asked me to keep mum. After hearing the threat I entered into the room due to fear and cannot tell what happened afterwards."
15. It is clear from the above mentioned examination-in-chief that no detail of occurrence has been given while recording her statement before the court. There is no mention of any weapon of offence which was being held by the appellant. Neither she has specifically mentioned that which part of the deceased was hit due to fire made by the appellant. Further she has also not narrated the fact that the injuries caused by the remaining accused persons i.e. Fida Muhammad, Ghulam Sarwar, Niaz and Ghulam Yasin son of Fateh Muhammad (since acquitted) hit which part of the body of the deceased. Although according to this PW besides appellant, aforementioned four accused persons inflicted injuries with their respective 'Sotas' on the person of the deceased Yasin but perusal of post mortem examination report reveals that besides two firearm injuries on the person of deceased Yasin there were three wounds on the person of the deceased to have been caused by a blunt weapon which, of-course, does not tally with the accused persons as they were four in number (besides appellant) and all of them gave 'Sota' blows on the person of the deceased. In this eventuality there must have been at least four or more than four blunt weapon injuries on the person of the deceased which, in this case, is not present. This fact reflects contradiction between the medical and ocular evidence produced by the prosecution.
16. During cross examination in a question put to her she replied as follows: - "I had stated before the police that Nazar accused had fired at Yasin as a result of which he died."
This portion of her statement was duly confronted with her statement recorded u/s 161 Cr.P.C.
Before police (Exh DA) where it was not so recorded. She further admitted it as correct that Mst.
Shagufta Mai was present in the house. It has further not been denied by her that she in the days of occurrence was residing at Faizabad which is at a distance of 10/12 k.m. Away from the place of occurrence. Further it has been admitted that she is wife of Muhammad Asghar who was nominated as one of the principal accused person of the FIR. Although she had tried to explain her presence at the spot by stating that she came to get 'Taveez' for his son but it has not come on record as to from whom she had to take the aforementioned 'Taveez'. Neither this fact borne out from the result of investigation carried out by PW-11. It is highly improbable that she came to the house on the fateful day when her son was just one month old. Even otherwise the stance of her getting 'Taveez' for her son was not taken by her during the course of her examination-in-chief rather the explanation was given on the asking of defence side but still the prosecution has to stand on its own legs and has to prove his case beyond all shadow of doubts. Another fact which has created some doubt on the authenticity of the deposition made by this PW is that her name was not mentioned as PW in the FIR. Meaning thereby she was not present at the relevant time.
Thus it is concluded that according to the prosecution's own case PW-8 was not residing at the place of occurrence or close to it rather she is residing to a distant place, so she is definite a chance witness.
17. In order to corroborate the testimony of PW-8, the prosecution examined Bashir Ahmad PW-9 who narrated almost the same facts as mentioned by PW-8. However, while making his examination-in-chief he stated that all the four accused persons inflicted 'Sotas' blow on the person of Yasin deceased. Nazar Muhammad deceased made a fire shot upon the person of Yasin due to the said injury Yasin died then and there. He further stated that due to the fear at the hands of accused persons he went out and came to his house as he was threatened of dire consequences by the accused persons. However, during cross examination he admitted as follows: - "During the days of occurrence I was resident of Faiz Abad which is situated at a distance of 10/12 kilometers from the place of occurrence."
In another question put to him by the defence he answered as follows: - "Mst. Maqsood Mai P.W is wife of my real brother Muhammad Asghar who is also resident of the same place."
He further submitted that Mst. Anwar Mai deceased was his real sister.
18. From the deposition made by PW-9 in his examination-in-chief, it is clear that he also did not describe the detail of occurrence rather a general allegation of inflicting of 'Sotas' blows by four accused persons and making of firearm injury by the appellant has been levelled by him. It is further clear from the above mentioned deposition that he too has also not mentioned what kind of weapon or firearm was being held by the appellant and as to which part of the deceased fire made by the appellant was hit. Further he has not described infliction of injuries by 'Sotas' blows by the acquitted accused persons. Even otherwise he is also real brother of the accused Muhammad Asghar, who was nominated as one of the principle accused in the FIR and he too has not been able to prove his presence satisfactorily at the time and place of the occurrence. Only explanation given by him about his presence at the place of occurrence for getting 'Taveez' for the son of Mst.
Maqsood Mai but he was unable to describe that as to whom the desired 'Taveez' was to be obtained as admitted by him he was not the resident of the place of occurrence, therefore, he too was definitely a chance witness. Reliance is placed on the case law titled as "RUSTAM ALI AND ANOTHER VS. THE STATE" (2004 CrLJ 643) wherein their lordships were pleased to hold as follows: - "Khushi Muhammad as per his showing is the resident of Karowal. The said place according to him is at a distance of 2/ 2 1/2 kilometers from the place of occurrence. So, he was not resident of that place and rather of another one. Similarly Abdul Majid PW is the resident of village Daulu-Bheelo.
The same according to him is at a distance of about 3 1/2-4 kilometers. He too, thus was not the resident of the place of occurrence or close to it and rather to a distant place. So they both definitely were the chance witnesses."
19. Investigation in the instant case was carried out by Ghulam Murtaza (PW-12). He from the initial stage of the occurrence till the end concluded that the accused persons nominated in the promptly lodged FIR were innocent whereas appellant alongwith complainant of the FIR Fida Muhammad and others were found involved in the present case. However, while making his examination-in-chief he failed to bring on record as to what was the circumstance and which evidence was produced before him on the basis of which he released the nominated accused persons under section 169 Cr.P.C. He further did not bring on record as to whether he conducted the investigation from the locality where the occurrence took place and did not verify the occurrence from any person from the locality. However, during cross examination he in a question put to him replied as follows: - "It is correct that Mst. Shagufta was injured in this occurrence and when I visited the spot she was present there and I also recorded her statement under section 161 Cr.P.C."
He further admitted it as correct while replying to a question put to him in the following manner: - "It is correct that when I visited the spot on the first day at 8.10 a.m. 26 persons were present among whom Mst. Maqsood Mai and Bashir Ahmad witnesses were not present."
He further admitted it as correct while replying to another question in the following manner:- "It is correct that both these witnesses are not resident of the place of occurrence. They are resident of Faiz Abad which is at a distance of 5/6 Kilometer from the spot. Mst. Maqsood Mai and Bashir Ahmad had voluntarily appeared before me and I recorded their statements."
20. From the above mentioned deposition it has further made clear that the PWs introduced by the prosecution were not the resident of the place of occurrence and even they were not present at the time when the IO visited the spot for the first time immediately after the occurrence, thus it has further been cleared that the PWs of the instant case are chance witnesses and they have failed to prove their presence at the spot satisfactorily, therefore, the evidence produced by the aforementioned PWs is not worth of reliance.
21. Admittedly according to the prosecution's own story and as admitted by the aforementioned PWs one Mst. Shagufta Mai was present at the place of occurrence who also sustained injuries during the occurrence but was not produced by the prosecution and was given up, from where an inference can easily be drawn that had she been produced before the Court, she would not have supported the prosecution story.
22. The medical evidence in the instant case was furnished by PW-1 Dr. Muhammad Husain Milk which has already been discussed in the preceding paragraph of this judgment and to our mind the medical evidence produced by the prosecution is in conflict with the ocular account produced by the prosueciton.PW-1 has further strengthened the deposition made by the aforementioned PW that on the same day he medically examined Mst. Shagufta Bibi daughter of Ghulam Sarwar aged about 19 years and in this regard he also issued MLC Exh PE which bore his signature. He also signed injury statement Exh PE/1.
23. In order to prove the recovery of pistol P-12 from the possession of the appellant, the prosecution produced Hazoor Bakhsh PW-7 who while making his examination-in-chief deposed as follow:- "After 4/5 days of the occurrence, exactly not remember, the accused Nazar Muhammad present in the court while in police custody led to the recovery of loaded pistol 30 bore P-14."
However, Ghulam Murtaza PW-12 I.O. Made a total different statement while maintaining his examination-inchief and stated as follows: - "On 11.12.2001 I arrested Nazar Muhammad, Ghulam Yasin son of Fateh Muhammad as accused against whom evidence had been collected. On 12.12.2001 I obtained physical remand of Nazar Muhammad and Yasin. On the same date, Nazar Muhammad accused while in police custody led to the recovery of pistol 30 bore P-14 the weapon of offence."
It is clear from the aforementioned deposition that the occurrence in the present case is stated to have taken place on 26.11.2001 and if according to the PW-7 the recovery was effected after 4/5 days of the occurrence, then the deposition made by him is not in line with the I.O which proves that nothing was recovered from the possession of the petitioner. Infact the same was planted besides the fact that this PW-7 was not the resident of the place of recovery and was the real brother of the deceased Yasin. Thus the recovery of weapon of offence is doubtful and report of Forensic Science Agency seems to be a maneuvered document and is also not worth of reliance.
Reliance is placed on the case law titled as "GHULAM AKBAR and another versus THE STATE" (2008 SCM R 1064).
24. Coming towards the stance taken by the appellant while recording his statement recorded under section 342 Cr.P.C., his stance was corroborated by Mst. Suagufta Tabbasum DW-1 who while appearing before the court stated that she was present at the place of occurrence and also sustained injuries. She categorically supported the version mentioned in the FIR Exh PH.
25. Further another important feature which would be pertinent to mention here and is of great significant of this case is that Mst. Maqsood Mai PW-8 and Bashir Ahmad PW-9 while making their examination-in-chief before the court did not falsify the facts mentioned in the FIR Exh PH. This situation has further strengthened the stance of the appellant which is supported by the evidence of injured PW whose presence otherwise has been admitted by the prosecution to be present at the time and place of occurrence, therefore, it is observed that the plea taken by the appellant is more plausible than the plea taken by the PWs. In view of the above we are of the considered view that the prosecution case is replete with infirmities and discrepancies. The independent eye- witnesses have not been produced. The two eye-witnesses produced are related to the deceased and inimical to the appellant and their presence at the scene of occurrence stands belied by the circumstances and facts of the case. Further the evidence produced by the prosecution is stiffed with so many discrepancies and contradictions and it is settled principle of law that in order to give the benefit of doubt many circumstances are not required rather a single circumstance creating doubt in the prudent mind would be sufficient to extent the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on the case of "AYUB MASLH versus THE STATE"
(PLD 2000 Supreme Court 1048) wherein their lordship were pleased to hold as follows: - "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."
26. For what has been discussed above, we are of the considered view that the prosecution has miserable failed to prove its case against the appellant beyond any shadow of doubt, thus the impugned judgment dated 18.03.2010 passed by learned trial court in case FIR No. 479/2001 dated 26.11.2001, registered under section 302/452/148/149/109 PPC at Police Station Fazilpur, is set-aside.
The appeal filed by the appellant bearing No. 285 of 2011 is allowed and the appellant Nazar Muhammad is acquitted of the charge. He be released forthwith if not required in any other criminal case or proceedings.
Murder Reference No. 109 of 2010 is answered in negative. Death sentence awarded to Nazar Muhammad appellant is not confirmed.