SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Khan son of Murad, caste Khokhar, resident of Mouza Kot Ameer, Tehsil and District Chiniot, appellant, alongwith Rehmat Ullah (since acquitted) was involved in case FIR No. 148/2007, dated 16.06.2007, offence under Section 302/34, PPC, registered with Police Station Barana, Chiniot, and was tried by learned Additional Sessions Judge, Chiniot. The learned Trial Court seized with the matter in terms of judgment dated 05.04.2010 convicted and sentenced the appellant as under:--- ' Under Section 302(b), PPC, sentenced to death asTa'zir on two counts with direction to pay Rs.
2,00,000/- as compensation to each of legal heirs of both the deceased in terms of Section 544A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months.
2. Feeling aggrieved by the judgment of the learned Trial Court, the appellant has impugned the same by way of filing Crl. Appeal No. 952/2010 while the learned Trial Court forwarded Murder Reference No. 524 of 2010 for confirmation or otherwise of sentence of death inflicted upon the convict in terms of Section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned Trial Court, therefore, these are being disposed of through consolidated judgment.
3. Prosecution story as portrayed in the FIR(Exh.PB/1) lodged on the complaint (Exh.PB) of Mumtaz son of Ghulam Muhammad, caste Momin (Muslim Sheikh)/PW-4 is that he is resident of Mouza Sajjaway Wala and earns his livelihood through labour. On the intervening night of 15/16.06.2007, the complainant along with his brother Muhammad Sarfraz, Khizar Hayat son of Gama and Lateef son of Allah Ditta, all Muslim Sheikh by caste and residents of the same village, were sleeping in their residential ahata. The electric bulb was lifting. At about 2:30 a.m. (night), on the, shrieks raised by Sarfraz, the complainant along with others woke up and saw that Khan son of Murad, caste Khokhar, resident of the same village, was inflicting toka blows at the neck of his brother on left side while one unknown person, who could be identified, was standing near the cot of the complainant.
The complainant along with others tried to catch hold Khan and unknown accused person on which Khan after taking licensed gun of the complainant, while extending threats of dire consequences, made his escape. The complainant raised hue and cry on which both the accused persons went towards north-west side, however, Khizar Hayat son of Gam chased/followed them.
When said Khizar Hayat reached near the Dera of Rai Zulfiqar son of Rai Gull, caste Bhatti where Waris son of Atta Muhammad, caste Momin Sheikh, resident of Sajjaway Wala was residing alongwith his family, he overheard the report of fire shot and saw that Waris son of Atta Muhammad was raising hue and cry. In the light of bulb they saw that Mst. Kalsoom wife of Waris was stained with blood, who had sustained a fire shot made by gun 12-bore at her chest. Both the accused persons while taking shelter in the sugarcane crop on western side made their good escape. Waris and Muhammad Arif both sons of Atta Muhammad rushed towards Mst. Kalsoom, who had succumbed to the injuries. The complainant and other inhabitants of the locality saw that his brother had also succumbed to the injuries at the spot.
' Motive behind the occurrence as disclosed in the crime report was that Khan accused had suspicion that Sarfraz deceased brother of the complainant had illicit relations with his daughter Mst. Parveen while Mst. Kalsoom wife of Waris, caste Momin (Muslim Sheikh), used to exchange messages between them and this was talk of the village/town. Due to this grudge Khan accused along with his unknown accused person had committed murder of Sarfraz and Mst. Kalsoom. The complainant went to Police Station to report the matter,however, at Adda Inayat Pur, he met with Ahmed Khan, S.I. (PW-14). Who recorded his statement and after endorsing police kurvai, transmitted it to Police Station for registration of form FIR.
4. After registration of the case, the Investigating Officer visited the place of occurrence. Firstly he inspected the dead-body of Sarfraz deceased, prepared his injury statement (Exh.PM), drafted inquest report (Exh.PN) and handed over the dead-body to Shahid Abbas C/1789 (PW-13) for escorting it to mortuary for autopsy. He also secured blood-stained earth (Exh.PC) and prepared rough site plan of the place of murder of Sarfraz deceased (Exh.PU). Thereafter the Investigating Officer visited the place of murder of Mst. Kalsoom Bibi, prepared her injury statement (Exh.PS), drafted inquest report (Exh.PR) and dispatched the dead-body to mortuary for autopsy through Muhammad Qasim 81/C (PW-1). From the spot he took into possession blood-stained earth vide recovery memo. Exh.PJ and prepared rough site plan of the place of murder of Mst. Kalsoom Bibi (Exh.PV). After the postmortem examination, last worn clothes of Sarfraz deceased shalwar (P-11), vest (P-12) along with bedding rolls (P-13), pillow (P-14), blanket (P-15) and cot (P-16) were produced before the Investigating Officer, which were secured vide recovery memo. Exh.PT. Last worn clothes of Kalsoom Bibi deceased, dopatta (P-1), brazier (P-2), dohray (P-3/1-2), shalwar (P- 4), qameez (P-5) alongwith cot (P-6), all bloodstained, were taken into possession vide recovery memo. Exh.PA. On 29.06.2007, the Investigating Officer arrested the appellant and from his possession recovered gun .12-bore (P-7) along with two live cartridges (P-8/1-2), which he tookinto possession vide recovery memo. Exh.PD. During the course of investigation, in pursuance of disclosure on 05.07.2007, the appellant led to the recovery of toka (P-10) from his residential room situated at village Sajawalay Wala, which was taken into possession vide recovery memo. Exh.PH.
On reaching the Police Station the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned. On the direction of the Investigating Officer and on the pointation of the PWs, on 30.06.2007, Jamil Akhtar, Draftsman (PW-5) took rough notes of the places of murder of both the deceased and thereafter prepared scaled site plans (Exh.PE and Exh.PE/1 of Sarfraz deceased and Exh.PF and Exh.PF/1 of Mst. Kalsoom deceased), which were made part of the file. The Investigating Officer also recorded the statements of the prosecution witnesses under Section 161, Cr.P.C.
5. During the course of investigation, having found the appellant guilty, the Investigating Officer prepared report under Section 173, Cr.P.C. While placing his name in column No. 3, and .Sent the same to the 'Court of Sessions en-routed through the Illaqa Magistrate as provided under Section 190(2), Cr.P.C. On 12.11.2007, the learned Additional Sessions Judge, Chiniot, formally charge-sheeted the appellant to which he pleaded not guilty and claimed trial. Prosecution in 'order to substantiate its case produced as many as fourteen (14) prosecution witnesses while statement of Muhammad Akram 6079/HC was recorded as CW-1.
6. Ocular account in this case consists of the statements of Mumtaz (PW-4)/complainant, Latif (PW-6),Muhammad Waris (PW-7) and Muhammad Arif (PW-8). On_ presentation of complaint, Muhammad Akram 6079/HC (CW1) had chalked out formal FIR while Jamil Akhtar, Draftsman (PW- 5) had prepared scaled site plan of the place of occurrence. Investigation in this case was carried out by Ahmed Khan, S.I.(PW-14).(PW-10) had conducted post-mortem examination on the dead- body of Sarfraz deceased and observed following injuries on his person:-, Incised wound 25 cm x 3 cm on the left upper side of neck and face underneath bones and soft tissues were cut.
(2) Incised wound 30 cm x 3 cm on the left side of neck and chin below injury No. 1, underneath muscles bones and soft tissues were cut.
(3) Incised wound 32 cm x 10 cm on the left side of neck below injury No. 2, underneath bones joints, trachea esophagus were cut.
(4) Incised wound 26 cm x 5 cm on the left side of neck, just above the claricular area, underneath soft tissues, trachea, oesophagus, blood vessels and bones were cut."
' After conducting the post-mortem examination , the doctor rendered the following opinion:--- "Death in my opinion was due to hemorrhage, shock and injury to the vita,1 vessels, soft tissues ofthe neck, injuries to the spinal cord, vertebrae, trachea, esophagus resulting from injuries No. 1, 2, 3 and 4 which were sufficient to cause death in ordinary course of nature and were fatal. All injuries were anti-mortem and were caused by sharp-edged weapon.
The probable time that elapsed between injuries and death was immediate, and between death and postmortem examination was 10-12 hours (approx)."
' On the same day Dr. Qamar Sultana Bhatti, WMO (PW-11) conducted autopsy on the dead-body of Mst. Kalsoom Bibi and observed following injuries on her person:--- "(1) A lacerated fire-arm wound (entrance) with inverted edges 5 cm x 5 an in front of chest between two breast humps lying slide to the mid sternal line, 9 cm from the claricular point, 6 cm from the left nipple, 11 cm from the right nipple.
(2) A wound of exit 0.5 cm x 0.5 cm lying on the right side of lower back i.e. On the lumber area 8 cm from the right iliac crest, 5 cm from the mid axilliary.
(3) A wound of exit 0.5 cm x 0.5 cm lying on the right lumber region 4 cm below the injury No. 2."
' After the post-mortem examination the doctor opined as under:--- "Cause of -death in my opinion is injury No. 1 which lead to massive hemorrhage resulting in severe shock which led ultimate death. In ordinary course of nature, injury No. 1 is sufficient to cause death in this case which is by fire-arm. All injuries are anti-mortem and caused by fire-arms., Time.
Between injury and death was within 15-20 minutes. Time between death and post-mortem was 12 hours and 25 minutes approximately."
' Statements of rest of the prosecution witnesses are formal in nature.
7. Vide his statement recorded on 01.04.2009, learned DDPP gave up Khizar Hayat Abdullah Imtiaz and Manzoor, PWs, being unnecessary.
8. The appellant was also examined under Section 342, Cr.P.C. Wherein he opted neither to produce defence evidence, nor he opted to appear as his own witness in terms of Section 340(2), Cr.P C. In disproof of the allegations levelled against him in the prosecution evidence. While replying to the question why this case against him and why the PWs deposed against him, the appellant made the following deposition:-- "All the PWs belong to same class and they are tedants of Karim Bhatti and Zulfiqar Bhatti who are landlord of the area within the jurisdiction of police station Barana. I was also the tenant of Karim Bhatti a little bit ago and I had to pay Rs. 3,00,000/- to Karim Matti who kept me under bounded labour and due to above-said reason, I was falsely implicated by the complainant in connivanceof Karim Bhatti. PWs gave their false evidence dueto duress put upon them by Karim Bhatti."
9. In the light of arguments advanced from both sides learned Trial Court after evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt against the appellant, resulting into his conviction in the afore-stated terms.
10. Learned counsel for the appellant while opening his arguments submitted that the impugned judgment has been recorded by the learned Trial Court in a slipshod manner without adverting to real facts of the case and material brought forth on record. Learned counsel contended that the occurrence in the instant case had taken place at odd hours of the intervening night of 15/16.06.2007 at 2:30 a.m. While the matter was reported to the police after due deliberations and consultations at 5:55 a.m. Further contended that the plausibility of the prosecution version qua ocular account as contained in the statements of the PWs is highly improbable, which does not appeal to reason. It was argued that although the complainant and Latif (PW-6) claim that they had identified the accused in the light of electric bulb, however, real brother of the appellant (Rehmat Ullah), who admittedly was resident of the same area, was mentioned as unknown.
Learned counsel submitted that according to prosecution own version the occurrence had taken place in two independent phases, however, the same was culminated into single crime report although the complainant had not seen the mode and manner of second phase of the occurrence.
Further submitted that Khizar Hayat was the most natural witness, who allegedly had chased the accused towards second phase of occurrence, however, his evidence was withheld by the prosecution, which is hit by Article 129(g) of Qanun-e-Shahadat Order, 1984. As far as medical evidence is concerned, learned counsel submitted that the post-mortem examination in respect of both the deceased was conducted with a delay of about 12 hours. It was argued that Parveen Bibi due to which the unfortunate occurrence had taken place, was not associated during the course of investigation. Learned counsel submitted that though gun (P-7) was recovered from the appellant, however, in absence of report of Forensic Science Laboratory, the same straightaway becomes inconsequential. Moreover, the reports of Chemical Examiner/Serologist with regard to toka, after twenty one (21) days of the occurrence, are devoid of legal credence. Further submitted that on the same set of evidence, Rehmat Ullah, co-accused has already been acquitted of the charge by the learned Trial Court and no appeal against his acquittal was preferred by the complainant. Finally contended that the prosecution has badly failed to substantiate its case as such the appellant deserves his clean acquittal from the charge.
11. As against above, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant with the submissions that it is a double murder case; wherein the appellant is duly named as sole proprietor of the occurrence, who had inflicted injuries on the person of Sarfraz and Mst. Kalsoom Bibi deceased. Learned counsel for the complainant submitted that the prosecution witnessesviz.
Mumtaz (PW-4), Latif (PW-6), MuhammadWaris (PW-7) and Muhammad Arif (PW-8) fully substantiated the prosecution case by giving minute details of the occurrence. Contended that the PWs being inmates of the house are most natural witnesses of the occurrence. It was argued that the medical evidence is in line with the ocular account and Dr. Mushtaq Bashir (PW-10) and Dr. Qamar Sultana Bhatti (PW-11) had observed injuries on the person of both the deceased caused by sharp-edged weapon and gun, which coincide with the ocular account. Learned counsel contended that recovery of gun (P-7) and toka (P-10) from the appellant further substantiates the prosecution case. Moreover, respective reports of Chemical Examiner and Serologist with regard to toka further establish link of the appellant with the occurrence. It was vigorously argued that the appellant had committed the occurrence with strong motive and the prosecution witnesses being closely related to both the deceased, had noto falsely substitute the appellant in place of real culprit(s), and even the appellant had not advanced any defence plea. Further stated that the appellant was found guilty during the course of investigation as such his name was placed in column No. 3 of the report prepared under Section 173, Cr.P.C. It was finally argued that the appellant is sole proprietor of committing murder of two innocent persons, hence, learned Trial Court while appreciating the prosecution evidence in its true perspective and advancing cogent reasons, rightly convicted the appellant and inflicted capital punishment.
12. We have heard the arguments advanced from both sides and perused the record with the able assistance of learned counsel for the appellant, learned counsel for the complainant, as well as, learned Deputy Prosecutor General and gone through, the record available on file.
13. It is very unfortunate occurrence in which two innocent persons were done to death in a very reckless/brutal manner at dark hours of night. According to prosecution version on the intervening night of 15/16.6.2007 the complainant was sleeping in his residential ahata along with Sarfraz, Latif (PW-6) and Khizar Hayat (given up PW) when at about 2:30 a.m. The complainant woke up and saw that the appellant was inflicting toka blows on the neck of Sarfraz and subsequently he took gun of the complainant and reached the residence of Muhammad Waris (PW-7) where he made fire shot upon Mst. Kalsoom Bibi, which landed at her chest and then he along with his co-accused made their good escape. The prosecution version mainly banks upon ocular account, medical evidence, recov ry of gun and toka, motive, as well as, investigation.
14. In order to evaluate the contentions raised by learned counsel for both sides, we have minutely scrutinized the record available on file, as well as, the evidence led by the prosecution in order to assess whether conviction and sentence recorded by the learned Trial Court can be maintained in light of material brought forth on record.
15. As far as ocular account in this particular case is concerned the same consists of statements of the complainant, who appeared during the course of trial as PW-4, Latif (PW6), Muhammad Waris (PW-7) and Muhammad Arif (PW-8). Bare perusal of the crime report reveals that it is not the claimof the complainant at the second phase of the occurrence and as such to that extent his statement is nothing but hearsay. As far as the first phase of occurrence is concerned, it is claim of the complainant that he along with Latif (PW-6) and Khizar Hayat (since given up) had seen the appellant while committing the murder of his real brother while inflicting repeated blows of toka.
Admittedly the PWs were having gun with them but they did not make any attempt to apprehend the appellant at the time of commission of offence. They never showed any sort of resistance, which prima facie reveals that their conduct at the relevant time is but unnatural especially when the assailant was nobody but a person from the same village and previously known to them. In such-like circumstances mere abstaining of prosecution witnesses to show reaction does not appeal to reason. Another aspect of this case is that the appellant was stated to be accompanied by one unknown person, who was also present at the time of occurrence. The unknown person was subsequently disclosed as real brother of the appellant, who too was resident of the same 'village.
Surprisingly if the appellant wain identified during the course of occurrence what was the reason that his real brother was not identified by the PWs when it is not claim of the prosecution that he was hiding himself at the relevant time or having muffled face. Moreover, while scrutinizing the prosecution evidence available on record we have noticed that the complainant at the time of making his statement, at one stage, stated that when the accused lifted gun, he woke up. Relevant portion of his statement is reproduced as under:--- "When accused lifted my gun I woke up."
16. Presence of gun .12-bore, which was subsequently used in the second phase of the occurrence, was stated to be in the .Name of the complainant. In all eventualities gun .12-bore is more lethal weapon as compared to Toka. It is not the prosecution case that the barrel of gun was empty or the appellant while taking away the gun had injected cartridges from his own pocket. However, it is the claim of the prosecution that the fire shots made from the gun had hit Mst. Kalsoom Bibi. If the prosecution case is to be taken in tow it clearly reflects that the gun was already having cartridges and it was charged by the appellant while using the same. However, one thing is admitted that neither owner of the gun (Mumtaz/complainant) nor Knizar Hayat, who claims to have chased the accused towards the house of Muhammad Waris (PW-7), had opted to interfere rather they allowed him to kill Mst. Kalsoom Bibi. Another aspect of the case is that whole prosecution case is silent qua toka. It is not the prosecution case that when the appellant had taken away gun with him towards the second phase of the occurrence 'Whether he had thrown away toka in the way or it was still in his possession.
' As far as presence of Latif (PW-6) at the place of occurrence at the relevant time is concerned, it has come in the evidence of the complainant that PW-6 was a married person having grown up children aging 15-20 years. We have scrutinized the whole material available on record and failed to locate even a single circumstance from where it could be gathered that under what compelling circumstances Latif (PW6) had stayed overnight with the complainant particularly whenit is not the prosecution case that he used to sleep in the residential ahata of the complainant in routine.
17. According to prosecution version Khizar Hayat was the only prosecution witness, who had seen both phases of the occurrence. Therefore, he was the most natural and star witness of the occurrence, however, surprisingly his evidence was withheld by the procecution for the reasons best known to it, which creates flaw in the link of story of the prosecution. Non-production of such an independent witness by the prosecution itself is hit by the dictum of law laid down in the case of LAL KHAN v. THE STATE (2006 SCM R 1846) which is reproduced as under:--- "Art. 129(g).Criminal trial.Withholding natural witness.Presumption. Act of withholding of most natural and a material witness of occurrence would create an impression that had such witness been brought into witness-box, he might net have supported the prosecution. Prosecution, in such eventuality must not be in a position to avoid the consequence."
18. Now we dilate upon the statements of Muhammad Waris (PW-7) and Muhammad Arif (PW-8).
According to their statements, when the appellant along with his brother had reached their house, they woke up and at that time the appellant was armed with gun while Rehmat Ullah co-accused (since acquitted) was armed with soti. There is nothing on record whether the appellant was armed with gun and toka simultaneously or he was only in possession of gun. If it was so then why his brother (since acquitted) had opted to accompany him with soti instead of taking toka, which was more lethal and useful for an assailant. There is also nothing on record whether the accused had entered into the house of PW-7 by scaling over walls or by opening door and similarly the prosecution case is silent that by using what passage the accused made their good escape. Close scrutiny of statements of these prosecution witnesses reveals that the mode and manner of occurrence as disclosed in their testimony straightway does not appeal to reason.
19. As far as the aspect of identifying the accused by the prosecution witnesses at the relevant time is concerned, according to prosecution version, the PWs had witnessed the occurrence in the bulbs installed on the respective places of occurrence of both the murders but it is an admitted fact that those were not taken into possession by the Investigating Officer at the time of spot inspection.
Hence, the prosecution case is squarely hit by the dictates of the superior Courts of the country laid down in the cases of BASHIR 'AHMED alias MANNU v. THE STATE (1996 SCM R 308) and NAZEER AHMAD v. GEHNE KHAN and others (2011 SCM R 1473). In the case of BASHIR AHMED alias MANNU v. THE STATE (1996 SCM R 308) while dealing the issue it was held as under:--- '"Bulb in the light of which eye-witnesses were shown to have seen the occurrence was not taken into custody by the police and the presence of electricity at that place had been concocted."
20. As far as medical evidence in this case is concerned, the same has been substantiated through thestatements of Dr. Mushtaq Bashir (PW-10), who had conducted post-mortem examination on the dead-body of Sarfraz deceased and Dr. Qamar Sultana Bhatti (PW-11), who had conducted autopsy on the dead-body of Mst. Kalsoom Bibi. Admittedly the occurrence had taken place at 2:30 a.m, while according to statement of Dr. Mushtaq Bashir (PW-10), he had conducted post-mortem examination on the dead-body of Sarfraz at 1:30 p.m. i.e. After 11 hours of the occurrence. Similarly it has come in the statement of Dr. Qamar Sultana Bhatti (PW-11) that she conducted post-mortem examination on the dead-body of Mt. Kalsoom Bibi at 5:40 p.m. i.e. After more than fourteen hours of the occurrence. The reasons for delayed post-mortem examination also create suspicion in the mind of the Court that the prosecution story is belied of authenticity and is not inspiring confidence regarding its genuineness, whereas both the medical officers stated that they conducted post- mortem examinations soon after receipt of police papers and they further observed that death in both the cases was immediately and 15-20 minutes while the time elapsed was 11 hours and fourteen hours respectively. In suchlike situation, the august Supreme Court of Pakistan has evaluated the prosecution evidence with suspicion and in two recent judgments has taken serious note of delayed postmortem examination while extending ale benefit of doubt on this score alone.
In the case of Irshad Ahmed v. The State (2011 SCM R 1190), the august Supreme Court of Pakistan has observed as under:--- "S. 302.Qatl-e-amd.Post-mortem examination. , Delay in post-mortem examination is generally suggestive of a real possibility that time was consumed by police in procuring and planting eyewitnesses and in cooking up a story for prosecution before reparing police papers for getting a post. Mort em examination of dead-body conducted".
' In the case titled Khalid alias Khalidi and 2 others v. The State (2012 SCM R 327), it has been held as under:--- "Incident took place at 2-00 a.m. FIR was recorded at 4/5 a.m., doctor medically examined injured person at 4 a.m. But conducted post-mortem examination of deceased at 3:00 p.m. i.e. After about ten hours, such facts showed that F.I.R. Was not lodged at the given time."
21. According to prosecution version the instant occurrence had taken place with specific motive as the appellant had suspicion that Sarfraz deceased had developed illicit relations with Mst. Parveen daughter of the appellant while Mst. Kalsoom Bibi used to pass on their messages and acted as a messenger. However, neither during the course of investigation no during the course of trial an iota of evidence was brought forth on record in order to substantiate the motive. So much so Mst.
Parveen was not associated.During the course of investigation. There is no cavil to this proposition that the crime can be committed with a motive or without a motive and there is no hard and fast rule that if the motive is alleged it is incumbent upon the prosecution to prove the same and even in absence of motive conviction can be recorded provided the prosecution case is established through direct and cogent evidence. However, at the same time it isalso consistent view of the superior Courts of the country that when a definite motive is alleged and the same is not proved, the prosecution has to suffer. While taking guidance from number of judgments of the superior Courts, we are of the considered view that in such a situation it is incumbent upon the Courts to scrutinize the ocular evidence with due care and caution. Respectful reliance in this regard is placed on the ratio decided of august Supreme Court of Pakistan in Noor Muhammad's case (2010 SCM R 97); wherein following principle was laid down:-- "S. 302(b).Qatl-i-Amd.Appraisal of evidence.Motive. When motive is alleged but not proved, then ocular evidence is required to be scrutinized with great caution."
22. Next piece of evidence available with the prosecution is recovery of gun and toka from the appellant. Admittedly the Investigating Officer had not collected any crime empty from the place of murder of Mst. Kalsoom Bibi deceased and even after recovery of gun from the appellant; the same was not transmitted to the office of Forensic Science Laboratory. As far as recovery of toka (P-10) and reports of Chemical Examiner/Serologist (Exh.PW/1 and Exh.PX/1) in this regard are concerned, there is no cavil to the proposition that the occurrence had taken place on 16.06.2007 while the toka was stated to be recovered on 05.07.2007 after nineteen days of the occurrence, which shatters the possibility of the prosecution version being true. Reference in this regard can be made to the dictum of law laid down in the cases of Abbas Ali v. The State (1998 PCr.LJ 943) and Muhammad Riaz v. The94State (2009 PCr.LJ 1022). Moreover, in the case of BASHIR AHMED alias MANNU v. THE STATE (1996 SCM R 308), the august Supreme Court of Pakistan had held that recovery of blood-stained chhuri after five days of the occurrence was not reliable.
23. As far as contention of learned counsel for the complainant that the appellant had not advanced any defence plea is concerned, it is settled principle of law that the prosecution has to stand on its own legs, whereas, the defence has to show only glimpse. Moreover, the prosecution cannot take any benefit of weakness of defence plea. In the case of Shamir alias Shamla v. The State (PLD 1958 Supreme Court 242), it has been held that even if the accused does not lead to prove plea of innocence but accused version receiving support to the extent of being reasonably possible from prosecution evidence, accused is entitled to his acquittal. Moreover, in its ratio decided in the case of Shera Masih and another v. The State (PLD 2002 Supreme Court 643) the august Supreme Court of Pakistan had held as under:--- "Defence plea of the accused even if is not supported by any evidence direct or circumstantial and is discarded being improbable, still it will not be a circumstance to prove the guilt of an accused and the prosecution has to establish its case by standing on its own legs."
24. From the facts and circumstance's narrated above, we are persuaded to hold that the prosecution has badly failed to substantiate its case against the appellant with regard to presence of the prosecution witnesses at the place of occurrence at the relevant time, delayed post-mortem examinations on the dead-bodies of the deceased, the fact that the motive remained unproved, coupled with the fact that out of two accused persons, Rehmat Ullah was extended the premium of innocence by the learned Trial Court and no appeal against his acquittal was filed before this Court, which create serious dents in the prosecution version and in such-like situations it becomes incumbent upon the Court to extend the benefit of doubt in favour of the accused. Furthermore, to extend the benefit of doubt so many circumstances are not required rather one circumstance which creates reasonable doubt in the veracity of the prosecution version is sufficient for the purpose, not as a matter of grace rather as a matter of right. Respectful reliance in this regard is placed on the ratio undecided august Supreme Court of Pakistan in the case of TARIQ PERVAIZ v.
THE STAM (1995 SCM R 1345); wherein following principle was laid down:--- "Art 4. Benefit of doubt, grant of For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."
' Similarly in the case titled ARIF HUSSAIN AND ANOTHER v. THE STATE (1983 SCM R 428), the august Supreme Court of Pakistan had further held as under:--- ' Prosecution case not free from doubt. Charges not brought home to accused in manner required under law. Accused given benefit of doubt and acquitted."
' Similar view was affirmed in the case of Muhammad Akram v. The State (2009 SCM R 230).
' Moreover, it is golden principle of law that the Court ought to let off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultant while setting aside the conviction and sentence recorded by the learned Trial Court in terms of judgment dated 05.04.2010, Crl.
Appeal No. 952 of 2010 filed by Khan/appellant is accepted in toot as a consequence whereof he is ordered to be acquitted of the charge and he is directed to be released forthwith, if not required in any other Case.
25. Murder Reference No. 524 of 2010 forwarded by the learned Trial Court for confirmation of sentence of death inflicted upon Khan/convict fails, which is answered in negative. Death sentence is not con firmed.