SIKANDAR ZULQARNAIN SALEEM, J.---This judgment shall dispose of Criminal Appeal No. 199 of 2011 filed by Muhammad Ashraf appellant against his conviction and sentence, Criminal Appeal No. 198 of 2011, filed by Nasir Mehmood appellant against his conviction and sentence and Murder Reference No. 37 of 2011, sent by the learned trial Court under section 374, Cr.P.C., for confirmation or otherwise, of the sentence of death awarded to Muhammad Ashraf and Nasir Mehmood appellants, as all these matters have stemmed out of the same judgment dated 09.02.2011, rendered by the learned Additional Sessions Judge, Sahiwal, in case FIR No. 177 dated 22.6.2009, registered under sections 302/34 PPC at Police Station Kameer District Sahiwal, whereby, Muhammad Ashraf and Nasir Mehmood appellants were convicted under sections 302 (b)/34 PPC for committing the murder of Karamat Ali (deceased) and sentenced to death with a direction to pay the compensation amount of Rs. 1,00,000/- (Rupees one hundred thousand only) each to the legal heirs of deceased as envisaged under section 544-A, Cr.P.C. And in default, thereof, to suffer imprisonment for six months S.I. Each. Both the appellants were also convicted under section 392 PPC for snatching car of the deceased and sentenced to 14 years R.I.
2. Brief facts of the case, as disclosed by Malik Bhola complainant, (PW-3) in his Fard Biyan (Ex-PE) on the basis thereof formal FIR (Ex.PE/1) was registered are that he (complainant) is resident of Bilal Town Bhatta Chowk, Lahore Cantt and is a Taxi Driver. On 21.6.2009 at 10.30 p.m. He (complainant) along with Salamat Ali (PW-6) and Muhammad Arif (PW-5) were coming from Bahawal Nagar via Arifwala by car after seeing their relatives. When they crossed bridge Dilluwala a car bearing No. 6127/LEA Honda City, Model 2006 white colour, which is being driven by his real brother Karamat Ali (deceased) as taxi was going from Sahiwal side. When they reached parallel to that car, he saw that his brother was not present at driving seat, whereupon the said car was stopped. Two boys were present in the car, who after lengthy cross talk disclosed their names as Nasir Mehmood and Muhammad Ashraf (appellants). Muhammad Ashraf appellant was driving the car. When they asked about Karamat Ali (deceased), they after hesitantly disclosed that after giving intoxication they have murdered him (Karamat Ali) with hatchet (Ex. P-6) and snatched abovesaid car. In the meantime many people gathered there including lamberdar and watchman of Chak No. 42/EB and in the presence of these people they along with the above said car were brought to Chak No. 42/EB and from the room of vacant Ihata of Muhammad Ashraf (appellant), the dead body of Karamat Ali (deceased) smeared with blood was found. Nasir Mehmood and Muhammad Ashraf appellants after obtaining above-said car on rent from Lahore have committed the murder of his deceased brother Karamat Ali to snatch it.
3. The investigation of this case was conducted by Zahoor Ahmad, S.I. (PW-09) and during the investigation, the dead body of deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under sections 161, Cr.P.C. Were recorded, the place of occurrence was inspected, blood-stained ea, th was secured, rough site-plan of the place of occurrence was prepared, the dead body was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, formal site-plan of the place of occurrence was got prepared, car of the deceased was taken into possession through recovery memo Ex. PJ, the appellants were arrested and on 22.06.2009, on 29.6.2009, Muhammad Ashraf appellant led to the recovery of hatchet (P-6) along with rope (P.7) from an Ihata which was taken into possession vide recovery memo Ex. PG, and after completion of the investigation a challan was submitted in the Court.
4. After the completion of investigation, the challan was prepared and submitted before 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 on 23.11.2009, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced nine witnesses, during the trial. Malik Bhola complainant (PW-3), Muhammad Arif (PW-5) and Salamat Ali (PW-6) are the witnesses before them the appellants had confessed their guilt. The medical evidence was furnished by Dr Muhammad Tahir Mehmood, SMO RHC Kameer (PW-1) who on 22.6.2009 conducted the postmortem examination on the dead body of Karamat Ali (deceased) while Anwar-ul-Hassan C/906 (PW-2) escorted the dead body of Karamat Ali deceased for the postmortem examination to DHQ Hospital, Sahiwal.
Muhammad Mansha, ASI (PW-4) on the receipt of written complaint (Ex. PE) chalked out formal FIR (Ex. PE/1) while Muhammad Saeed Akhtar, Draftsman (PW-7) prepared scaled site plans (Ex. PK and PK/1).
Zahoor Ahmad, S.I. (PW-9) is the Investigating Officer of the case while Azadar Hussain (PW-8) received sealed parcels for keeping in the Malkhana for safe custody and handed over the same to Muhammad Ilyas C/914 for onward transmission to the office of Chemical Examiner.
6. The statements of appellants under Section 342 of the Code of Criminal Procedure, were recorded by the learned trial court on 06.12.2010. They refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case against you and why the PWs have deposed against you?" Muhammad Ashraf appellant replied as under:- "It is blind murder. Day, time and place of occurrence are shrouded in mystery hence an un- witnessed occurrence committed by unknown culprits alleged extra judicial confession is inadmissible before the police under Articles 38, 39, 40 of the Qanoon-e-Shahadat Order and the same is joint in nature. There is no evidence of administering intoxicant to the deceased. The dead body was recovered by the 1.0. Lying in a vacant Ihata and similarly the recoveries were made from the same place. There is admission on the part of 1.0. That the deceased was never seen alive in our company thus there is no evidence to connect me with the commission of offence. I am innocent and have been falsely involved due to suspicion as the real culprits which were not traceable."
In reply to the above said question, Nasir Mehmood appellant replied as under:-- "It is blind murder. Day, time and place of occurrence are shrouded in mystery hence an un- witnessed occurrence committed by unknown culprits alleged extra judicial confession is inadmissible before the police under Articles 38, 39, 40 of the Qanoon-e-Shahadat Order and the same is joint in nature. There is no evidence of administering intoxicant to the deceased. The dead body was recovered by the 1.0. Lying in a vacant Ihata and similarly the recoveries were made from the same place. There is admission on the part of 1.0. That the deceased was never seen alive in our company thus there is no evidence to connect me with the commission of offence. I am innocent and have been falsely involved due to suspicion as the real culprits which were not traceable."
They neither opted to make statements on oath as envisaged under section 340(2) Cr.P.C., nor produced any evidence in their defence.
7. Upon the conclusion of trial the learned trial court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, they were convicted and sentenced as mentioned and detailed above. Hence, the present appeals and the connected Murder Reference before this Court.
8. Learned counsel for the appellants, in support of this appeal, contends that prosecution has miserably failed to bring the guilt home against the convicts by producing trustworthy and convincing evidence; that it is doubtful that the FIR was got registered with promptitude as claimed by the prosecution as neither Noor-ul-Hassan, ASI who allegedly recorded the statement of the complainant at Adda 34/EB nor Khan Muhammad, C/834 who took the complaint (Ex.PE) to Police Station for registration of the case were produced to prove the said facts; that it was an un- witnessed occurrence as none of the witnesses had seen the appellants committing the murder of Karamat Ali deceased; that the whole case of prosecution against both the appellants is based on circumstantial evidence which consists of (i) extra judicial confession allegedly made by the appellants before PW-3 Malik Bhola (complainant), PW-5 Muhammad Arif and PW-6 Salamat Ali,
(ii) recovery of the dead body of Karamat Ali deceased, (iii) evidence of recovery of hatchet (P-6)
(iv) recovery of car and (v) medical evidence; that no reliance can be placed on the evidence of extra judicial confession as PW-3 Malik Bhola and PW-5 Muhammad Arif are real brothers of Karamat Ali deceased while PW-6 is their Behnoi, so their statements cannot be relied upon without independent corroboration .Which is very much lacking in this case; that the Investigating Officer Zahoor Ahmad, S.I. (PW-9) did not prepare any recovery memo of the dead body on the pointing out of the accused as such discovery of dead body on the pointation of the appellants was highly doubtful as the prosecution failed to bring on record any memo about the seizure of dead body on the pointation of appellants; that recovery of hatchet (P.6) is of no use to the prosecution as it was allegedly effected on 29.6.2009 after about eight days of the occurrence and it is not expected from the appellants that they would have kept the said hatchet intact in order to produce the same before the police for creating evidence against them and even otherwise the said recovery had been effected in violation of Section 103, Cr.P.C. As public witnesses were not joined in the recovery proceedings; that it is settled law that the medical evidence may confirm the ocular evidence with regard to seat of injury, its duration, nature of injury and kind of weapon used for causing such injury but it cannot connect the accused with the commission of crime, until and unless there is some other evidence, therefore, this piece of evidence is of no avail to the prosecution; that the prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt; thus, both these appeals be accepted and the appellants may be acquitted from the charge.
9. On the other hand, learned Deputy Prosecutor General for the State vehemently opposes this appeal on the grounds that that there is no mitigating circumstance in this case; that the prosecution has proved the evidence of extra judicial confession by producing PW-3 Malik Bhola complainant, PW-5 Muhammad Arif and PW-6 Salamat Ali, before whom the appellants had confessed that after administering intoxication to Karamat Ali deceased, they had murdered him in order to snatch the car; that recovery of hatchet (P.6) and rope (P.7) from Haveli of Muhammad Ashraf appellant was effected from Chak No. 42/EB where Karamat Ali deceased was murdered and on pointation of both the appellants, dead body of the deceased was recovered; that the sentence of death was rightly awarded to the appellants and the same may be maintained, appeals may be dismissed and Murder Reference be answered in the affirmative.
10. <b>We have heard the arguments of learned counsel for the appellants and the learned Deputy Prosecutor General and also gone through the record with their able assistance 11.No doubt FIR under section 154, Cr.P.C. Is always treated to be a corner stone of the prosecution case to establish guilt against culprits involved in the crime. Any doubt in lodging of FIR and commencement of investigation give rise to a benefit in favour of accused and FIR lodged after conducting an inquiry loses its evidentiary value. The occurrence in the present case according to the prosecution had taken place on 21.6.2009 at 10.30 p.m. Within the area of Chak No. 42/EB, 12 k.m.
Towards South-West from Police Station Kameer District Sahiwal, whereas, the matter was claimed to be reported by Malik Bhola complainant (PW-3) through Fard Biyan Ex. PE, recorded by Noor-ul- Hassan, ASI (not produced) at Adda 34/EB on 21.6.2009 at about 11.50 p.m., on the basis whereof, formal FIR (Ex. PE/1) was recorded by Muhammad Mansha, ASI (PW-4) on 22.6.2009 at 12.15 a.m.
(night) under sections 302/34 PPC. It is doubtful that the FIR was got registered with promptitude as claimed by the prosecution as neither Noor-ul-Hassan, ASI who allegedly recorded the statement of the complainant at Adda 34/EB nor Khan Muhammad, C/834 who took the complaint (Ex. PE) to Police Station for registration of the case were produced to prove the said facts. Hence, the FIR cannot be used as a corroborative piece of evidence to the ocular account and the prosecution evidence has to be seen with utmost care and caution.
12. Admittedly, there is no ocular evidence in this case and it was an un-witnessed occurrence. The whole case of prosecution against both the appellants is based on circumstantial evidence which consists of (i) extra judicial confession allegedly made by the appellants before PW-3 Malik Bhola (complainant), PW-5 Muhammad Arif and PW-6 Salamat Ali, (ii) recovery of dead body of Karamat Ali deceased, (iii) evidence of recovery of hatchet (P-6) (iv) recovery of car and (v) medical evidence. Since the case hinges on the circumstantial evidence, therefore, utmost care and caution is required to reach at a just conclusion of the case. It is settled by now that in such like cases every chain should be linked with each other as its one end touches the dead body while the other end goes to the neck of the accused and if any chain link is missing then its benefit should be given to the accused. In this regard, guidance has been sought from the judgments of the learned Apex Court of the country. In The State v. Manzoor Ahmad (PLD 1966 Supreme Court 664), the Hon'ble Supreme Court of Pakistan, at page 680, has been pleased to observe as under:- <i>.........It is no doubt true that in a case resting wholly on circumstantial evidence the Court must, as observed by Wills in his Treatise on Circumstantial Evidence, remember that the 'processes of inference and deduction are essentially involved-- frequently of a delicate and perplexing character---liable to numerous causes of fallacy'. Mere suspicion will not be sufficient to justify conviction. Before the guilt of the accused can be inferred merely from inculpatory circumstances those circumstances must be found to be incompatible with the innocence of the accused and 'incapable of information upon any other reasonable hypothesis than that of his guilt'. It is also equally well settled that the circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, Le. a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured up by pre-conceived notions. But once the circumstances have been found to be so established they May well furnish a better basis for decision than any other kind of evidence.......................</i> The above view was reiterated in the case of Asadullah and another v. State and another (1999 SCM R 1034). In Ch. Barkat Ali v. Major Karam Elahi Zia and another (1992 SCM R 1047) at page 1055, it was held as under:-- ......Law relating to circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See Siraj Vs. The Crown (PLD 1956 FC 123) In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused." In Sarfraz Khan v. The State (1996 SCM R 188), at page 191, it was observed as under:-- 7............. <i><b>it is well-settled that circumstantial evidence should be so inter-connected that it forms such continuous chain that its one end touches the dead body and other neck of the accused there by excluding all the hypothesis of his innocence.......</i></b> In Altaf Hussain v. Fakhar Hussain and another (2008 SCM R 1103), at page 1105, while discussing the impact of circumstantial evidence, the learned Apex Court has been pleased to observe as under:- <i>"........ Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of .One link will destroy the entire chain."</i>
13. First of all, we would like to discuss the extra-judicial confession allegedly made by the appellants before PW-3 Malik Bhola (complainant), PW-5 Muhammad Arif and PW-6 Salamat Ali.
We are well-conscious of the fact that conviction can be based on extra judicial confession when it is corroborated by other reliable evidence. However, extra judicial confession being regarded as a weak type of evidence by itself, utmost care and caution has to be exercised in placing reliance on such confession. In the instant case we are not inclined to believe this piece of evidence for the reasons, firstly, PW-3 Malik Bhola and PW-5 Muhammad Arif are real brothers of Karamat Ali deceased while PW-6 Salamat Ali is their Behnoi, so their statements cannot be relied upon without independent corroboration which is very much lacking in this case, secondly, from the narration of facts given by the PWs in their statements, the alleged extra-judicial confession made by the appellants, appears to be a joint one, thirdly, it has come on record that all the PWs produced in this case are residents of District Lahore which is at a distance of about 200 k.m. From Chak No. 42/EB, Tehsil Arifwala District Pakpattan Sharif and all the witnesses have not given any specific reason for their coming to Arifwala and even PW-3 Malik Bhola complainant and PW-5 Muhammad Arif have failed to disclose the names of their relatives with whom they had stayed at Arifwala, fourthly, except the PWs neither statements of any police official nor from the people who had gathered there and before whom the appellants had made extra-judicial confession were recorded and they were produced during the trial. Even otherwise, no role whatsoever has been ascribed to any of the appellant in said extra judicial confession. Apart from the above, there is no eyewitness of the occurrence. Even otherwise, the deceased was never seen alive in the company of the appellants by anyone else. PW-7 Muhammad Saeed Akhtar, Draftsman during the cross- examination admitted that he did not mention the names and roles of the accused in the scaled site plans Ex. PK and PK/1, as the PWs did not disclose the same to him. It is also important to mention here that it is the prosecution case that the police had broken the outer lock of the Haveli and thereafter also broke the lock of the room falling inside the Haveli wherein dead body of Karamat Ali deceased was lying, but there is nothing on the record that the said lock were taken into possession by the polite which also makes the story of prosecution doubtful. It is true that extra judicial confession must be proved by evidence of a very high and un-impeachable character but we are of the opinion that there is no evidence of that character in the circumstances of this case.
Therefore, in the circumstances of the case, no reliance can be placed on the extrajudicial confession allegedly made by the appellants before PW-3 Malik Bhola, PW-5 Muhammad Arif and PW-6 Salamat Ali.
14. As far as recovery of dead body is concerned, the prosecution has not produced any evidence to show that the Ihata where from dead body of Karamat Ali deceased was recovered was possessed or owned by Muhammad Ashraf appellant or any of his relative. PW-7 Muhammad Saeed Akhtar, Draftsman during the cross-examination admitted that he did not verify the revenue record in order to verify the ownership of the vacant Ihata from where the dead body of Karamat Ali deceased was allegedly recovered and he had mentioned that the said vacant Ihata was allegedly owned by Ashraf accused on the asking of the police and the PWs. PW-9 during the cross-examination admitted that he allegedly recovered the dead body of Karamat Ali deceased from a vacant Ihata situated in Chak No. 42/EB, but none of residents of the said place was associated from where the dead body was allegedly recovered. Even otherwise, in the site plan (Ex.
PL), inspection note (Ex. DC) and scaled site plans (Ex.PK), it has not been mentioned that the dead body of the deceased was recovered on the pointing out of the accused. PW-7 Muhammad Saeed Akhtar, Draftsman (PW-7) during the cross-examination admitted that according to the PWs none of the accused persons pointed out the place of recovery of dead body. PW-7 Muhammad Saeed Akhtar, Draftsman during the cross-examination admitted that the Ihata from where the dead body was allegedly recovered is an abandoned Ihata and nobody was residing there. Even otherwise, the Investigating Officer Zahoor Ahmad, S.I. (PW-9) did not prepare any recovery memo of taking into possession of the dead body on the pointing out of the accused as such discovery of dead body on the pointation of the appellants was highly doubtful as the prosecution failed to bring on record any memo about the disclosure of appellants before witnesses or to bring on record any memo about the seizure of dead body on the pointation of appellants coupled with the fact that memo was prepared for recovery of blood stained earth from the place of occurrence but the same has not mentioned about the recovery of dead body of deceased on pointation of appellant and the prosecution did not corroborate this piece of evidence through any independent piece of evidence. Reliance is placed on "Abdul Mateen v. Sahib Khan and others" (PLD 2006 Supreme Court 538), the relevant portion is reproduced as under:- <i>"..........The learned High Court had also after scanning the evidence on record came to the conclusion that discovery of dead body on the pointation of respondent was highly doubtful as the prosecution failed to bring on record any memo about the disclosure of respondent before witnesses or to bring on record any memo about the seizure of dead body on the pointation of respondent coupled with the fact that memo was prepared for recovery of blood stained earth from the place of occurrence but the same has not mentioned about the recovery of dead body of deceased on pointation of respondent accused and the prosecution did not corroborate this piece of evidence through any independent piece of evidence."</i>
15. As far as the recovery of hatchet (P.6) from both the appellants is concerned, no doubt the report of the Serologist (Ex. PO) shows that human blood was found on the said weapon but to prove the said recovery, Muhammad Arif appeared as (PW-5) alongwith Zahoor Ahmad, S.I. (PW-9) who had not stated in their statements that the hatchet (P.6) was stained with blood. According to recovery memo Ex. PG hatchet P.6 allegedly recovered by the I.O. Was not blood stained. Hence, reports of Serologist (Ex. PO) and that of Chemical Examiner (Ex. PN) are inconsequential and of no use to the prosecution. Moreover, it was allegedly effected on 29.6.2009 after about eight days of the occurrence and it is not expected from the appellants that they would have kept the said hatchet intact in order to produce the same before the police for creating evidence against them.
Even otherwise, the said recovery had been effected in violation of Section 103, Cr.P.C. As public witnesses were not joined in the recovery proceedings. Moreover, the said hatchet was sent to the Chemical Examiner on 10.7.2009 which was received in the office of Chemical Examiner on 20th July, 2009 and there was little possibility of detecting of blood on the said hatchet even after the passage of about one month. So the recovery of hatchet (P.6) is of no use for the prosecution.
16. Likewise, according to the recovery memo Ex. PJ, car No. 6127/LEB was taken into possession by PW-9 from the maize crop of one Munir Ahmad resident of Chak No. 42/EB. But said Munir Ahmad was not joined in the recovery proceedings. Zahoor Ahmad, S.I. (PW-9) during the cross- examination admitted that according to the rough site plan (Ex. PL), scaled site plan (Ex. PK) and first inspection note (Ex. DC), Car No. 6127/LEB was not taken into possession on the pointing out of any accused whereas as per above said documents, Ex. PL, Ex. PK and Ex. DC, the Car 'No. 6127/LEB was taken into possession by Zahoor Ahmad, S.I. (PW-9) from a street of Chak No. 42/EB, but none of residents of the said place was associated from where the car was allegedly recovered. Even otherwise, there is nothing on the record to show as to when, from where, in whose presence and who had hired the said Taxi Car. PW-7 Muhammad Sae.Ed Akhtar, Draftsman during the cross- examination admitted that according to the PWs the Car No. 6127/LEB was taken into possession from point No. 3 which is situated in the street in front of that vacant Ihata and according to the PWs the Car LEB/6127 was not taken into possession on the pointing out of any of the accused persons. On the other hand, PW-5 Muhammad Arif during the cross-examination admitted that police took into possession the car No. 6127/LEA at Pull Dillawala. He also stated that car No. LEA/6127 was not the ownership of his brother Karamat Ali deceased. In this view of the matter, the prosecution has also failed to corroborate this piece of evidence through any independent piece of evidence.
17. Now we would like to discuss the medical evidence brought on record through Dr. Muhammad Tahir Mehmood, SMO (PW-1). He conducted postmortem examination on the dead body of Karamat Ali deceased and noted antemortem injury on his body. The prosecution has also brought on record the postmortem report (Ex. PA) and report of Chemical Examiner (Ex. PB). But it is settled law that the medical evidence may confirm the ocular evidence with regard to seat of injury and its duration, nature of injury and kind of weapon used for causing such injury but it cannot connect the accused with the commission of the crime, uptill and until there is some other evidence, therefore, this piece of evidence is of no avail to the prosecution. In this regard reference is invited to the case reported as Ghulam Mustafa and another v. State (2009 SCM R 916), wherein, at page 527, the Hon'ble Supreme Court of Pakistan, has been pleased to observe as under:-- '................. However, it is settled law that the medical evidence can only establish the type of weapon used, the seat of injury and the time elapsed between receipt of injury and the medical examination. It can never be a primary source of evidence for the crime itself but is only corroborative of the same .........
18. It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that charges so imputed against the accused have not been proved beyond reasonable doubt, then the accused becomes entitled for his release by getting benefit of doubt in the prosecution case. In such situation the Court has no jurisdiction to abridge such right of the accused. To ascertain as to whether accused is entitled to the benefit of doubt the Court can conclude on considering agglomerated effect of the evidence available on record as held in the cases of "Safdar Ali v. The Crown" (PLD 1953 FC 93) and "Muhammad Luqman v. The State" (PLD 1970 SC 10). We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond the shadow of doubt. It is by now well settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubts about the prosecution story. In `Tariq Pervez v. The State' (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:- 5.........The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.
The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of 'Muhammad Akram versus The State' (2009 SCM R 230), at page 236, observed as under:- 13...............It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 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."
19. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against both the appellants beyond the shadow of doubt, therefore, we accept Criminal Appeal No. 199 of 2011 filed by Muhammad Ashraf appellant and Criminal Appeal No. 198 of 2011 filed by Nasir Mehmood appellant, set aside their convictions and sentences recorded by the learned Additional Sessions Judge, Sahiwal vide judgment dated 09.02.2011, and acquit them of the charge by extending them the benefit of doubt. They are in custody, they be released forthwith if not required in any other case.
20. Murder Reference No. 37 of 2011 is answered in the Negative and the sentences of death passed by the learned trial court against Muhammad Ashraf and Nasir Mehmood appellants are Not Confirmed.