' ABDUL SAMI KHAN, J.---Through this appeal under section 410, Cr.P.C. Yasir Hussain, Sarfraz Ahmad, Muhammad Mubashar and Mst.Yasmin Bibi appellants have called in question the judgment dated 3-12-2009 handed down by the learned Sessions Judge, Gujrat in case FIR No,516/2008 dated 7-7-2008 for the offences under sections 302, 34 P.P.C., registered at Police Station Kunjah, District Gujrat whereby they have been convicted and sentenced as under:-- Yasir Sarfraz Ahmad, Muhammad Mubashar appellants: ' Under Section 302(b)/34, P.P.C. To death each as Ta'zir with compensation to the tune of Rs,5,00,000 each to be paid to the legal heirs of deceased under section 544-A, Cr.P.C. And in default thereof to further undergo simple imprisonment for six months each.
Mst. Yasmin Bibi: ' Under Section 302(b)/109, P.P.C. To imprisonment for life as Ta'zir with compensation to the tune of Rs,5,00,000 to be paid to the legal heirs of deceased under section 544-A, Cr.P.C. And in default thereof to further undergo simple imprisonment for six months.
' Benefit of section 382-B, Cr.P.C. Was extended in her favour.
2. The appellants have filed the instant appeal against their conviction and sentences whereas the learned trial court has sent a Reference under section 374, Cr.P.C. For confirmation or otherwise of the death sentence passed against Yasir Hussain, Sarfraz Ahmad, Muhammad Mubashar which has been numbered as Murder Reference No,517 of 2009. We propose to decide both these matters together through this single judgment.
3. The first information report (Ex.PH/1) of the occurrence which took place on the night in between 6th and 7th day of July, 2008 was registered on the statement (Ex.PH) of Shahid Abbas, which was recorded by Muhammad Azam, Sub Inspector, Police Station Kunjah, Gujrat. Brief facts of the case, as disclosed by Shahid Abbas complainant (P.W.12) in FIR (Ex.PH/1) are as under:- "The (complainant) was resident of village Kot Matta and his personal residence is at Matta Road within the area of Mangowal. In between the night of 6/7-7-2008, he along with his brothers Ijaz Ahmad aged 43 years and Fayya z Ahmad were present at the roof top of their house. They had been talking up to 02:00 a.m. (night). Thereafter he and his brother Fayyaz slept on the cot lying on the roof of the house while his brother Ijaz Ahmad slept on the cot lying on the chobara of the roof top of the house. The electric bulb of chobara was on. At about 03:30 a.m. (night) on hearing the reports of firing, he and his brother Fayyaz Ahmad woke up and saw six young persons with medium bodies armed with deadly weapons without any veil while two others had muffled their faces were present at the chobara. After becoming seriously injured from the said firing, his brother Ijaz Ahmad succumbed to the injuries. On their hue and cry, the accused threatened if anybody came near them, they would done him to death. Due to fear they went aside. After murdering Ijaz Ahmad, accused fled from the roof top towards north. Whole the occurrence was witnessed by him and his brother Fayyaz Ahmad with their own eyes. They can identify the accused if came across them. The accused after common intention and consultation entered into their house and murdered Ijaz Ahmad brother of the complainant.
4. On 7-7-2008, Shahid Abbas complainant presented application to the Station House Officer Police Station Kunjah, District Gujrat wherein he nominated Yasir Hussain, Muhammad Mubashar, Sarfraz Ahmad and Mst.Yasmin Bibi as the persons who had perpetuated the alleged offence and introduced two witnesses of Waj Takar i,e, Muhammad Anwar and Sajjad Hussain.' He also alleged a specific motive in the application that Yasir Hussain had developed illicit relations with Mst.Yasmin Bibi wife of Ijaz Ahmad deceased and when Ijaz Ahmad came to know about it, he quarreled with Yasir Hussain, who threatened him for dire consequences.
5. After registration of the FIR, the investigation of the case was conducted by Muhammad Azam, Sub-Inspector/I.O. (P.W.17) and after completion of investigation, the report under section 173, Cr.P.C. Was submitted in the learned trial Court. The learned, trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants under sections 302, 34, 109, P.P.C. On 5-1-2009, to which they pleaded not guilty and claimed trial.
6. In order to substantiate its version at trial, the prosecution produced seventeen witnesses before the learned trial Court. Shahid Abbas complainant (P.W.12) and Fayyaz Ahmad (P.W.14) are the, witnesses of ocular account, whereas Muhammad Anwar (P.W.5) and and Sajjad Hussain (P.W. 8) are the witnesses of Waj Takar. Muhammad Azam, Sub Inspector (P.W.17) is the Investigating Officer of the case. In his statement, Muhammad Azam Sub-Inspector (P.W.7) has stated about different steps taken by him during the investigation of this case postmortem examination on the dead body of Ijaz Ahmad son of Ghulam Qadir and found the following injuries:- "1. A firearm lacerated wound of entry measuring 1 x 1 cm on right side of back of chest 18 cm on the right lateral side of the virtibal column. Edges of inverted of this wound. Blackening was present around this wound. This entry wound correspond to the entry marks on vest.
(2) A firearm wound of exit measuring 2 x 2 cm on upper of left nipple. Edges were evened.
(3) A firearm wound of entry measuring 1 x 1 cm on occipital area of skull 10 cm from the right ear.
Edges of this wound were inverted, blackening was present. There was no corresponding exit wound of this entry.
8. According to the opinion of the doctor, death occurred due to damage of vital organs i,e, heart and brain causing massive hemorrhage and shock. All injuries were ante-mortem in nature and were caused by firearm weapon. Probable time that elapsed between injuries and death was immediate and between death and postmortem was 10 to 16 hours. The post mortem report of Ijaz Ahmad deceased is Exh.PK.
9. After tendering in evidence the report of Chemical Examiner Exh.PS, report of Serologist Exh.PT and the report of Forensic Science Laboratory Exh.PU, the prosecution closed its evidence.
10. The appellants in their statements recorded under section 342, Cr.P.C. Professed their innocence and pleaded their false implication in this case. In reply to a question, "Why this case against you and why P.Ws. Have deposed against you" the appellants stated as under:-- Yasir Hussain appellant:- "As a matter of fact 1 have been implicated in a blind murder on the asking and behest of Raza.
Matta group. There are two rival groups in Mangowal i,e, Raza Matta group and Walayat Butt group. They have criminal propensities and litigation including murder case against each other Raza Matta group had the suspicion that 1 am informer of Walayat Butt group against them.
Because of this reason I have been roped in an unseen occurrence of Ijaz Ahmad deceased. Ljaz Ahmad deceased was employed/business partner of Raza Matta group. Ijaz Ahmad deceased also had criminal litigation. He was a womanizer and contracted Jour marriages. Because of this reason, he had enmity with different people of the locality and was murdered due to his nefarious activities."
Sarfraz Ahmad appellant:-- "As a matter of fact co-accused Yasir Hussain was my friend. Prior to the present occurrence he developed relations with Mst. Yasmin co-accused (Wife of Ijaz deceased). Both of them wanted to marry after removing Ijaz Ahmad deceased from scene. For this purpose both of them chalked out a plan and persuaded me and co-accused Mubashar to join hands with them in consideration of money to which I and Mubashar agreed. On the day of occurrence Yasir Hussain co-accused called us and we gathered at the Baithak of Yasir Hussain co-accused. After midnight time Mst.
Yasmin co-accused called on Yasir Hussain co-accused that. Ijaz Ahmad (deceased) had slept as she had administered sleeping pills to him. At this I, Mubashar, Yasir and unknown companion of Yasir Hussain armed with firearms went to the house of Ijaz Ahmad deceased with the help of Yasmin co-accused where Ijaz Ahmad deceased was sleeping with his brothers. Co-accused Yasir Hussain and Mubashar fired at Ijaz Ahmad who died and thereafter we fled away from the place of occurrence. Yasmin co-accused had provided Rs,70,000 to Yasir Hussain accused which he in turn supplied to us. Same was my version before the police during investigation. My conscience pricks me, therefore, I am disclosing these facts before this court. I beg apology."
Muhammad Mubashar appellant:- "As a matter of fact I am permanent resident of Lahore and has been falsely roped by the police in this case. I have no concern and motive to commit murder of Ijaz Ahmad deceased. Ijaz Ahmad deceased also had criminal litigation. He was womanizer and contracted four. Marriages. Because of this reason he had enmity with different people of the locality and was murdered due to his nefarious activities."
Mst.Yasmin Bibi appellant:- "As a matter of fact I have been roped in this case by the brothers of the deceased just to deprive me from the share of assets and money left by Ijaz Ahmad deceased. After the occurrence false piece of evidence has been created against me. Even my children were snatched by the brothers of the deceased. Before me deceased contracted three marriages with the consent of his parents.
He contracted love marriage with me secretly without the consent of his parents and the information of my marriage with the deceased as received by the parents of the deceased after the birth of my female child. Parent and brothers of the deceased disliked my marriage with the deceased because deceased was Jat by caste and I am Terkhan by caste and just to ward off the above grudge I have been roped in this case by the complainant party."
11. The appellants neither opted to record their statements under Section 340(2), Cr.P.C. In disproof of allegations leveled against them by the prosecution nor opted to produce evidence in their defence.
12. Upon completion of trial, after hearing learned counsel for the parties, learned trial Court vide judgment dated 3-12-2009, proceeded to convict and sentence the appellants as mentioned in paragraph No,1 above.
13. Learned counsel for the appellants contends that the impugned judgment is against law and facts of the case. The appellants are innocent and they have been falsely involved in this case by the complainant on the basis of ulterior motives and mala fide intentions. The appellants are not named in the FIR, which was lodged with a considerable delay of two hours and they have been implicated in the instant case through supplementary statement of the complainant. The appellants and the alleged eye-witnesses are residents of the same vicinity where Ijaz Ahmad deceased was murdered and this fact raises alarms about the presence of the eye-witnesses at the spot at the time of occurrence, because, had they been present at the spot at the relevant time, they would have straightway nominated the accused in the first information report. The postmortem examination on the dead body of the deceased was conducted with a considerable delay of more than twelve hours, which shows that the matter was not reported to the police at the time given in the FIR, rather the police was informed about the incident at a belated stage. It was an unseen occurrence and neither appellants nor the alleged eye-witnesses were present at the place of occurrence at the relevant time. The alleged eye-witnesses are related, chance and inimical witnesses and their testimony is not above-board. They have made dishonest improvements in the prosecution case which speaks volume of falsity on their part. There are glaring contradictions between the medical evidence and the ocular account. The whole episode has been fabricated just to deprive Mst.Yasmin Bibi from her share in the. Inheritance of Ijaz Ahmad deceased being his widow. The statements of the prosecution witnesses are full of contradictions and discrepancies which are fatal to the prosecution's case. The motive as set up by the complainant in his supplementary statement is also not proved. The recovery of Pistols allegedly effected from Yasir Hussain and Sarfraz Ahmad appellants has been planted just to strengthen the prosecution case and the same are of no help to the case of prosecution. The prosecution has miserably failed to prove its case against the appellants beyond any shadow of, doubt. Learned counsel prays for acquittal of the appellant from the charge. The defence has placed reliance upon PLD 2011 SC 796 and 2013 SCM R 383.
14. On the other hand learned Deputy Prosecutor-General assisted by the learned counsel for the complainant contends that the matter was reported to the police with sufficient promptitude and there is no element of consultations and deliberations. The occurrence was reported to the police in a manner as it took place. The complainant cannot be held responsible for the delay in conducting postmortem examination, because, he cannot force the doctor to conduct the postmortem of the deceased expeditiously. The appellants were nominated in this case immediately after the complainant came to know about their involvement in the commission of murder of his brother Ijaz Ahmad deceased. They were duly identified by the witnesses during the course of identification parade conducted by Muhammad Aslam Panjutha, Civil Judge (P.W:13).
False implication of the appellants in this case by the complainant or their substitution in lieu of real culprits is a rare phenomena. Relation inter se is no ground to disbelieve the confidence inspiring evidence of the prosecution witnesses. Apart from confidence inspiring ocular account, there is strong evidence of witnesses of Waj Takar i,e, Muhammad Anwar (P.W.5) and Sajjad Hussain (P.W.8). Sarfraz Ahmad appellant has admitted in his statement under section 342 Cr.P.C.
That he along with other appellants murdered Ijaz Ahmad deceased on the asking of Mst.Yasmin Bibi appellant who had developed illicit relations with Yasir Hussain appellant. The eyewitnesses were present at the place of occurrence at the relevant time and they have proved their presence while recording their statements before the learned trial court. All the prosecution witnesses are consistent on each and every material point. There are some minor contradictions which cropped up due to passage of time and are not fatal to the prosecution's case. The empties taken into possession by the investigating officer from the place of occurrence and recovery of weapons of offence i,e, pistols .30 bore from Yasir Hussain and Sarfraz Ahmad appellants have been proved through reliable and trustworthy witnesses as the report of F.S.L. To the extent of weapons recovered from Yasir Hussain and Muhammad Mubashar appellants is positive, because, empties recovered from the spot matched with the weapons recovered from them. The medical evidence is in line with the ocular account. The prosecution has successfully proved its case against the appellants and the learned trial court has rightly convicted and sentenced them. Learned counsel for the complainant prays that the convictions and sentences of the appellants be maintained to meet the ends of justice.
15. We have considered the arguments advanced by learned counsel for the appellants, learned Deputy Prosecutor, General and learned counsel for the complainant and have also gone through the entire record with their valuable assistance.
16. The incident in the present case according to the prosecution was alleged to have taken place at 03:30 a.m. (night) within the area of Mangowal 6 miles towards West from Police Station Kunjah, District Gujrat and the matter was reported by Shahid Abbas complainant (P.W.12) through his statement (Ex.PH) on the basis of which formal FIR (Ex.PH/1) was chalked out by Muzafar Iqbal, Sub- Inspector/Duty Officer (P.W.16) on the next morning at 05:30 a.m. Although as per FIR, the incident was reported to the police just after one and half hours, but the fact remains that the appellants are not named and no specific role to any of the appellants has been attributed by the complainant therein.
17. To prove the ocular account prosecution had produced two eyewitnesses i,e, P.W.12 Shahid Abbas complainant and P.W.14 Fayyaz Ahmed, who both are the real brothers of Ijaz Ahmad deceased, meaning thereby, both these witnesses are not only related inter se., but also with the deceased. Shahid Abbas complainant (P.W.12) in his examination in chief narrated the occurrence almost in a same mode and manner as alleged in FIR (Ex.PH/1), however, he made certain improvements in his examination in chief. He specifically stated in his examination in chief that he as well as other eye witness Fayyaz Ahmad (P.W.14) identified the male accused in the light of bulb of chobara, but it is very astonishing to note that none of them was nominated by him in the first information report. Similarly, in cross examination Shahid Abbas complainant (P.W.12) admitted that Ijaz Ahmad deceased had contracted fourth marriage with Mst.Yasmin Bibi appellant without the consent of his parents and as such they were not at visiting terms with him. He also admitted that his brother Ijaz Ahmad deceased and Mst.Yasmin Bibi appellant were residing in the, house where Ijaz Ahmad was murdered. Although he has tried his best to establish his presence at the place of occurrence, but it is natural conduct of every human howsoever clever he is that truth always slips out of his mouth. At one hand, this witness admitted that due to solemnization of marriage by Ijaz Ahmad deceased with Mst.Yasmin Bibi out of caste, his family was not at visiting terms with him and on the other hand, he claimed that he as well as his wife and three other wives of Ijaz Ahmad deceased along with their children were residing in five marlas house where he was murdered. A careful perusal of the statement of P.W.12 Shahid Abbas complainant reveals that he has made certain improvements in order to prove his presence at the spot at the time of occurrence. Similarly, Fayyaz Ahmad (P.W.14) in his examination in chief recorded by the learned trial Court claimed that he had identified Yasir Hussain, Sarfraz Ahmad and Muhammad Mubashar appellants at the spot, but quite astonishingly this witness failed to tell his brother/complainant Shahid Abbas (P.W.12) the names of assailants who had murdered their real brother Ijaz Ahmad deceased. This unnatural conduct shown by Shahid Abbas complainant (P.W.12) and Fayyaz Ahmad (P.W.14) has raised considerable suspicion about their presence at the spot at the time of occurrence. On the other hand, during cross examination the defence has successfully brought on record that both the alleged eye-witnesses i,e, Shahid Abbas complainant (P.W.12) and Fayyaz Ahmad P.W.14) were resident of village Kot Matta situated at a distance of three kilometers from the place of occurrence. As already discussed above, it is an admitted fact that relation between Ijaz Ahmad deceased and his family had become strained after his marriage with Mst.Yasmin Bibi and they had been residing at Mangowal for the last about 9/10 years from the date of murder of Ijaz Ahmad deceased: Thus, we are of the definite view that Shahid Abbas complainant (P.W.12) and Fayyaz Ahmad (P.W.14) were not present at the spot at the time of occurrence and in fact it was an unseen murder committed by some unknown culprits. Their testimony does not inspire confidence and in this regard, reference is made to the case of Nadeem alias Nanha alias Billa Sher v. The State (2010 SCM R 949), wherein the apex Court has observed as below:-- "The complainant P. W. 4 and Muhammad Afzaal P. W. 5 are chance witnesses as they should not normally be present at the place of occurrence and it is difficult to rely upon their, statements being chance and highly interested witnesses."
18. Another piece of evidence produced by the prosecution against the appellants is the statements of witnesses of Waj Takar. Muhammad Anwar (P.W.5) and Sajjad Hussain (P.W.8) have furnished the evidence of Waj Takar. Both these witnesses are residents of village Kot Matta and in their statements recorded by the learned trial Court, both have claimed that on the eventful night at about 03:45 a.m. They were going to Gujrat, however, in their cross examination both of them admitted that while going from Gujrat to Kot Matta, short of Mangowal, a passage directly goes to Kot Matta. It does not appeal to our mind that a person would choose a long route instead of short one that too during the darkness of night to reach his destination. Muhammad Anwar (P.W.5) and Sajjad Hussain (P.W.8) in their statements before the learned trial Court have not given any plausible justification in this regard. Thus, in our humble view Muhammad Anwar (P.W.5) and Sajjad Hussain C (P.W.8) could not prove their claim that they had confronted with the appellants just after fifteen minutes of the occurrence.
19. During arguments, learned counsel for the complainant has vehemently argued that Yasir Hussain, Sarfraz Ahmad and Muhammad Mubashar appellants were successfully identified by the eye-witnesses during the course of identification parade, which was conducted in the supervision of Mr. Muhammad Aslam Panjutha, the then learned Civil Judge, Gujrat (P.W.13). Since both the alleged eye-witnesses i,e, Shahid Abbas complainant (P.W.12) and Fayyaz Ahmad (P. W.14) have specifically admitted in their statements before the learned trial Court that they identified Yasir Hussain, Sarfraz Ahmad and Muhammad Mubashar appellants on the night of occurrence, so in such a situation, the identification parade has got no value in the eyes of law and that cannot be used against the appellants as a corroborate piece of evidence. Even otherwise, both the eye- witnesses failed to attribute any role played by the appellants during the occurrence. It is settled ' law that identification of an accused by the P. Ws. Without ascribing role is of no value. Reliance can easily be placed upon the cases of Siraj-ul-Haq and another v. The State (2008 SCM R 302), Nazir Ahmad v. Muhammad labal and another (2011 SCM R 527) and Muhammad Fayyaz v. The State (2012 SCM R 522).
20. Coming to the medical evidence furnished by Dr. Aamer Khaleel Upal (P.W.15), who had conducted postmortem examination on the dead body of Ijaz Ahmad deceased. According to Dr.Aamer Khaleel Upal (P.W.5) Ijaz Ahmad deceased sustained as many as three firearm injuries on his person out of which two injuries were entry wounds while the third injury was an exit wound. We have observed with great care that Shahid Abbas (P.W.12) and Fayyaz Ahmad (P.W.14) in their statements under sections 154 and 161, Cr.P.C. As well as in their statements recorded by the learned trial Court did not assign any injury to any of the appellants rather a general allegation has been leveled that after hearing the noise of firing, they woke up and saw the appellants standing near the cost of Ijaz Ahmad deceased. We are conscious of the fact that medical evidence is merely a supportive piece of evidence which only indicates the number and seat of injuries and the kind of weapon used, but it does not disclose the real culprit of the occurrence, therefore, in the absence of trustworthy or reliable ocular account, the medical evidence cannot be allowed to support the prosecution case.
21. As far as the recovery of Pistols .30 bore from Yasir Hussain and Sarfraz Ahmad appellants is concerned, although crime empties were recovered by the investigating officer from the place of occurrence and positive report of the Forensic Laboratory is also available on record, yet the fact which requires our consideration is that Yasir Hussain and Sarfraz Ahmad appellants were arrested by the investigating officer in this case on 17-7-2008, while the crime empties were received in the Office of Forensic Science Laboratory on 2-8-2008 i,e, after sixteen days of the arrest of appellants.
So, possibility cannot be ruled out that the crime empties transmitted to the Office of F.S.L. Were secured from the Pistols which were later on planted upon the appellants on 4-8-2008. In this way, the recovery of alleged weapons of offence from Yasir Hussain and Sarfraz Ahmad appellants does not render any help to the case of the prosecution and has become inconsequential.
22. Now adverting to the evidence of motive, it is significant to point out here that no motive has been alleged by the prosecution in the first information report (Ex.PH/1) of the incident. However, in his supplementary statement Shahid Abbas complainant (P.W.12) stated that Yasir Hussain appellant had developed illicit relations with Mst.Yasmin Bibi widow of Ijaz Ahmad deceased and when Ijaz Ahmad came to know about it, he quarreled with Yasir Hussain appellant, who threatened him for dire consequences. Allegedly Iftikhar Ahmad (P.W.4) had seen Yasir Hussain appellant while in compromising position with Mst.Yasmin Bibi appellant and according to him, he intimated the same to Ijaz Ahmad deceased on 1-7-2008. According to Iftikhar Ahmad (P.W.4), a quarrel also took place between Yasir Hussain appellant and Ijaz Ahmad deceased, but surprisingly neither Yasir Hussain appellant nor the deceased reported the matter to the police.
Another astonishing fact observed by us is that like-wise the witnesses of Waj Takar i,e,, Muhammad Anwar (P.W.5) and Sajjad Husssain (P.W.8), Iftikhar Ahmad (P.W.4) is also not a resident where Ijaz Ahmad deceased was murdered and he too belongs to Kot Matta, the village of Shahid Abbas complainant (P.W.12) and Fayyaz Ahmad (P.W.14). It is quite apparent in this case that the introduction of motive through supplementary statement of the complainant is an afterthought effort to involve Mst.Yasmin Bibi appellant in this case, because, we have found logical reasons for her false implication in this case. It has established on record that Ijaz Ahmad deceased was the owner of movable as well as immovable properties and reasonable amount was lying in his bank account. Shahid Abbas complainant (P.W.12) has admitted in his cross examination that he applied for obtaining succession certificate regarding movable assets of the deceased including cash Rs,19,00,000 lying in the bank. He also admitted that the deceased was owner of two shops in Mangowal and contrary to this fact, he (complainant), Fayyaz Ahmad (P.W.14) as well as their father had no such property in Mangowal, therefore, possibility cannot be ruled out that the complainant party had fabricated a false story of illicit relations of Yasir Hussain appellant with Mst.Yasmin Bibi appellant in order to grab the movable and immovable property of the deceased and to deprive his widow (Mst.Yasmin Bibi) from her legal sharai share.
23. Now adverting to the admission allegedly made by Sarfraz Ahmad appellant. In this regard, we may observe here that the law is quite settled on the point that it was none else-but the prosecution who has to prove the guilt of an accused by standing on its own legs and mere admission on the part of an accused is not sufficient to fasten rope around his neck as well as the necks of his co-accused, onus to prove the guilt of an accused lies with the prosecution which is to be proved through cogent, reliable and confidence inspiring evidence. The apex Court of the country has held in number of judgments that it is the prosecution which is required to prove its case against the accused beyond any shadow of doubt and the defence version is to be taken into consideration after evaluating the prosecution evidence to find out whether the same inspires confidence or not? In this regard, we have been fortified by an illustrious pronouncement of the Hon'ble Supreme Court of Pakistan in the case reported as Ashiq Hussain v. The State (PLD 1994 SC 879), wherein, at page 883, the learned apex Court of the country has been pleased to observe as under:-- "The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eyewitnesses and the probability of the story told by them, and then examine the statement of the accused under section 342 of Cr.P.C., statement under section 340(2) and the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr. P. C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of contraventions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
' The learned counsel for the appellants is quite justified to place its reliance on 2013 SCM R 383, wherein at Page 384, Hon'ble Supreme Court of Pakistan has been pleased to hold as under:- "After hearing the learned counsel for the appellant and the learned Additional Prosecutor- General, Punjab appearing for the State and having gone through the record of the case with their assistance it has straightaway been observed by us that both the learned courts below had rejected the version of the prosecution in its entirety and had then proceeded to convict and sentence the appellant on the sole basis of his statement recorded under section 342, Cr.P.C. Wherein he had advanced a plea of grave and sudden provocation. It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR 1139). The law is equally settled that the statement of an accused person recorded under section 342, Cr. P. C. Is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the _evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v.
Sher Khan and others (PLD 1991 SC 520), Muhammad Tashfeen and others v. The State and others (2006 SCMR 577) and Faqir Muhammad and another v. The State (PLD 2011 SC 796). It is unfortunate that the. Lahore High Court, Lahore had failed to apply the said settled law to the facts of the case in hand.
24. After having looked into the prosecution case from all angles, we have noted that the case to the extent of the appellants is of doubtful nature and the conviction and sentences of the appellants on the basis of such type of shaky and unreliable evidence cannot be maintained. It is settled by the Apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram v. The State (2009 SCM R 230), wherein, at page 236, the Hon'ble Supreme Court of Pakistan, held as under:-- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 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".
(emphasis. J supplied)
25. 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. 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 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. So, after considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, this appeal filed by Yasir Hussain, Sarfraz Ahmad, Muhammad K Mubashar and Mst.Yasmin Bibi appellants is allowed, the impugned judgment is set aside and the appellants are acquitted from the charge. They are behind the bars. They shall be released forthwith if not required to be detained in any other case.
26. Murder Reference (M.R. No,517 of 2009) is answered in the negative and death sentence of Yasir Hussain, Sarfraz Ahmad and Muhammad Mubashar is not confirmed.