' Syed Shahbaz A.I Rizvi, J.--This judgment shall dispose of Criminal Appeal No. 196-J of 2010 titled as Qamar Abbas & another v. The State filed by Qamar Abbas and Azhar Hussain (appellants) against their conviction and sentence as well as Murder Reference No. 406 of 2010 titled as The State v. Qamar Abbas and another transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Qamar Abbas and Azhar Hussain (appellants) being originated from the same judgment dated 20.04.2010 passed by the learned Addl. Sessions Judge, Sangla Hill, District Nankana Sahib in case FIR No. 214 dated 04.06.2007, offence under Sections 302, 148 and 149, PPC, registered at Police Station Saddar Sangla Hill District Nankana Sahib, whereby the appellants Qamar Abbas and Azhar Hussain were convicted under Section 302(b), PPC and sentenced to death with the direction to pay Rs. 100,000/-each as compensation to the legal heirs of the deceased under Section 544-A of the Code of Criminal Procedure, 1898 and in default thereof, to undergo simple imprisonment for four months each. However, through the same judgment, the remaining accused Muhammad Boota, Muzaffar A.I, Basharat A.I, Muhammad Afzal and Mohsin alias Kaka were acquitted from the charge. Sadaqat A.I, Muhammad Akram, Bilal and Sohail were declared proclaimed offenders, by the learned trial Court.
2. The facts uncovered by Safdar Iqbal alias Muhammad Qasim, complainant (PW-7) in his complaint (Exh-PB/1) which culminated into FIR (Exh-PB) are that he (complainant) is cultivator by profession. On 04.06.2007 at about 09:15 p.m, he along with his real brother Arshad Iqbal (deceased), Sarwar Ahmad (PW-9) and Muhammad Manzoor Ahmad (PW-8), while sitting on 'Tharra' outside the 'baithak' of Sarwar Ahmad were talking with each other. The electric bulbs were lit inside and outside the 'baithak'. Suddenly Muhammad Akram (since P.0) armed with .30 bore pistol, Qamar (appellant) armed with .44 bore rifle, Azhar alias Haseenu (appellant) armed with .223 bore rifle, Afzal armed with .30 bore pistol, Muzaffar A.I armed with .12 bore gun, Basharat All armed with .44 bore pistol and Mohsin alias Kalu armed with .30 bore pistol (all acquitted) came there. Muhammad Akram raised 'lalkara' that Arshad Iqbal (deceased) be murdered. On hearing this, Arshad Iqbal rushed towards the 'baithak' but all the assailants started firing with their respective weapons. Muhammad Akram (since P.0) made a fire with his .30 bore pistol which landed on right buttock of Arshad Iqbal, Qamar (appellant) made a fire with his .44 bore rifle which hit on his (deceased's) left buttock, fire shot made by Azhar alias Haseenu (appellant) with his .223 bore rifle hit Arshad Iqbal (deceased) on his back, Muhammad Afzal made a fire shot with his .30 bore pistol which landed on right flank of deceased, Muzaffar A.I made a fire shot with his .12 bore gun which hit the deceased on his left flank, Basharat A.I made a fire shot with his .44 bore rifle which hit the deceased on left buttock, whereas Mohsin alias Kalu kept on making aerial firing and creating terror. Arshad Iqbal (deceased) became injured in the 'baithak' who after going through the inner door fell down in the Courtyard and succumbed to the injuries there. The assailants continued firing with their respective weapons. The assailants were identified by the complainant (PW-7), Manzoor Ahmad (PW-8) and Sarwar Ahmad (PW-9) in the light of bulb. During firing Mohsin on the asking of Azhar (appellant) and others made announcement in the village mosque that no body should come out of his house otherwise would be killed. After the occurrence, the assailants while making aerial firing and extending intimidations left the place. Bilal Ahmad and Sohail Ahmad remained providing guidance to the assailants who on the fateful day, in the 'baithak' of Muzaffar A.I while making consultation, were over heard and seen by Muhammad Hussain (PW-10) and Laal Khan (PW-12) and the occurrence was committed On the behest of Bilal and Sohail, accused persons (since P.0). Besides complainant, the occurrence was witnessed by Sarwar Ahmad (PW-9) and Manzoor Ahmad (PW-8).
' Motive behind the occurrence was that eight months prior to the occurrence, a criminal case regarding murder of Aamir alias Kala son of Muhammad Akram (since P.0) was registered against complainant (PW-7) and his brother Arshad Iqbal (deceased) who were innocent and were declared so and accused persons were having its grudge.
3. Subsequently complainant moved another application to the Incharge Investigation maintaining that Sadaqat A.I armed with pistol and Muhammad Boota armed with rifle also participated in the occurrence. He further maintained that at the time of occurrence Azhar Hussain alias Haseenu was armed with .30 bore pistol.
' The appellants Qamar Abbas and Azhar Hussain were arrested in this case on 05.07.2007 by Muhammad Younas, Inspector (PW-13), who, on 16.07.2007 while in police custody, after making disclosure got recovered .244 bore rifle (P-5) along with seven live bullets (P-6/1-7) and .30 bore pistol (P-7) along with five live bullets (P-811-5), respectively, which were taken into possession vide recovery memos Exh-PM and Exh-PO, respectively.
5. Learned trial Court after observing all the pre-trial codal formalities, charge sheeted the appellants to which they pleaded not guilty and claimed to be tried.
6. To prove its case, the prosecution produced as many as fourteen witnesses. In order to establish the ocular account, prosecution examined Safdar Iqbal, complainant (PW-7), Manzoor Ahmad (PW-8) and Sarwar Ahmad (PW-9). Manzoor Ahmad (PW-8) is also the witness of alleged recoveries of crime weapons at the instance of Qamar Abbas and Azhar Hussain (appellants).
The medical evidence was furnished by Dr. Khalid Mehmood, who, on 05.06.2007 at 12.10 p.m, conducted post-mortem examination on the dead body of Arshad Iqbal (deceased) and found, following injuries:-- "1. A fire-arm wound of entry 1 cm x 1 cm on the left back of middle chest with an exit wound 2 cm x 2 cm on the right front of middle chest.
2. A fire-arm wound of entry 1 cm x 1 cm on the right back of abdomen with an exit wound 2 cm x 2 cm on the front of right abdomen.
3. A fire wound of entry 1 cm x 1 cm on the left buttock outer side with an exit wound 2 cm x 2 cm on the left buttock inner side and then re-entered and out front of right buttock making 2 cm x 2 cm.
4. Multiple abrasions on the face."
' In his opinion, the injuries were ante mortem caused by fire-arm, Injury No. 1 individually and all collectively were sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was immediate and between death and post-mortem about fourteen to sixteen hours.
7. Muhammad Yaqoob, S.1 (PW-11) and Muhammad Younas, Inspector (PW-13) are the Investigation Officers of this case. Muhammad Riaz, Draftsman (PW-1) prepared scaled site plan (ExhPA) of the place of occurrence, whereas rest of the prosecution witnesses are formal in nature.
8. Learned Deputy District Public Prosecutor gave up Aamir Sohail and Muhammad Ehsan PWs being unnecessary and while tendering the reports of Chemical Examiner (Exh-PR), Serologist (Exh- PS) and that of Forensic Science Laboratory (Exh-PT & ExhPID, closed the case of prosecution.
9. Statements of the appellants under Section 342 of the Code of Criminal Procedure, 1898 were recorded wherein, they negated the allegations levelled against them and claimed their innocence. In reply to the question as to "Why is this case against you and why the PWs, have deposed against you", Qamar Abbas and Azhar Hussain (appellant), on the same lines, replied as under:-- "I have been falsely involved in this case due to reason that my real brother Amir was murdered prior to the instant occurrence, in which complainant Safdar Iqbal, pw Manzoor and Arshid deceased were nominated accused persons. In the said case, one Saif Ullah and Muhammad Nawaz were challaned to face the trial. Pws have deposed against me due to reason that they are closely related to the deceased that and they are also inimical towards me due to reason that in the previous murder case of Amir deceased, Pws namely Manzoor Ahmad, Safdar complainant were accused persons therein. Pws have falsely deposed against me just to secure my conviction on account of their inimicality towards me and interest towards deceased."
10. The appellants neither opted to make statements on oath as their own witnesses in disproof of the allegations levelled against them as provided under Section 340(2) of the Code of Criminal Procedure, 1898 nor did-they adduce evidence in their defence.
11. After conclusion of trial, the appellants were convicted and sentenced as mentioned above by the learned trial Court; hence the instant appeal.
12. Learned counsel for the appellants in support of this appeal contends that the appellants have falsely been implicated in this case due to previous enmity; that the prosecution witnesses are interested and inimical who cannot be relied upon; that the delay in post-mortem examination reflects against the prosecution case and the crime report was recorded after due deliberation and consultation; that the prosecution evidence disbelieved against the acquitted co-accused is not to be believed against the appellants especially when the appeal bearing Criminal Appeal No. 1337 of 2010 against their acquittal stands dismissed by this Court; that there are contradictions in the statements of the eye-witnesses; that the eye-witnesses have improved their statements while appearing before the learned trial Court and are not trustworthy; that the medical evidence is in conflict with the ocular account; that the alleged recoveries of crime weapons at the instance of the appellants are inconsequential to the prosecution case; that the motive alleged against the appellants is double edged weapon and if it can be a reason for commission of crime, the same can also be a reason for false implication; that this appeal may be accepted and the appellants may be acquitted of the charge levelled against them.
13. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes this appeal on the grounds that the appellants are nominated in the promptly lodged FIR; that the prosecution witnesses being the residents of the same house and same vicinity where this occurrence took place are the natural witnesses; that there is no major discrepancy or improvement in the statements of the eye-witnesses; that both the appellants were found guilty not only during investigation but also by the learned trial Court; that the prosecution case is corroborated by the medical evidence; that the prosecution case is also corroborated by the recovery of crime weapons at the instance of the appellants; that the prosecution case is further supported by the evidence of motive; that the prosecution has proved its case against the appellants beyond any shadow of reasonable doubt; that this appeal may be dismissed and Murder Reference be answered in the affirmative.
14. We have heard the arguments of learned counsel for the appellants, learned Deputy Prosecutor General assisted by the learned counsel for-the complainant and also gone through the record with their able assistance.
15. We have observed that the occurrence which took place at 09.15 p.m. On 04.06.2007 was reported to the police at 10.00 p.m. And the FIR was registered at 11.00 p.m. Whereas, the distance between the place of occurrence and the Police Station is six miles but postmortem examination on the dead body of the deceased was conducted on 05.06.2007 at 12.10 p.m. i.e. With the unexplained delay of about fifteen hours after the occurrence. It is repeatedly held by the Hon'ble Courts that such unexplained. Delay is generally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the post-mortem examination of the deceased which happens usually when the complainant and police are busy in consultation and preliminary inquiry regarding the culprits in such cases of un-witnessed occurrence. Reference in this respect is respectfully made to the case of "Muhammad Riaz versus The State" (2009 P. Cr. L.
J 1022 Lahore) wherein, this Court has observed as under:-- "13. ...It is also not found correct that the F.I.R. Had been got registered with promptitude as the occurrence had allegedly taken place at about 5-00 a.m. While the post-mortem - examination was conducted at 1-00 p.m. And there is every possibility that the intervening period was consumed in concocting a story and to await for the relatives of the deceased, who were made witnesses subsequently, otherwise, they have failed to establish their presence at the spot..."
' Same view was affirmed by the Hon'ble Supreme Court of Pakistan in the case of Irshad Ahmed versus The State (2011 SCM R 1190), wherein the Hon'ble Supreme Court was pleased to observe as under:- "3. ...We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eyewitnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted..."
' We have also observed that eye-witnesses are discrepant with Muhammad Younas, Investigation Officer (PW-13) regarding the dispatch of dead body for post-mortem examination. Moreover, Manzoor Ahmad (PW-8), in his examination in chief, has maintained as under-- "...We passed the night in the Police Station and on the next morning police sent us to the Hospital at Nankana Sahib for post-mortem of dead body..." ' while during cross-examination he stated as under:-- "...FIR was registered at the Police Station. Remaining proceedings including statement of Safdar were completed in Police Station..."
' Similarly, Sarwar Ahmad (PW-9) at page No. 57 of the paper book, during cross-examination, in this context, has replied as under:-- "...When all of us alongwith the dead body reached at the Police Station, Safdar, brother of the deceased became complainant whereas Manzoor Ahmad, myself, became the witness and thereafter the FIR was got lodged by Safdar complain ant... "
' The above reproduced parts of the statements are not only discrepant with Muhammad Younas, Inspector (PW-13), Investigation Officer but also clearly reflects that the FIR was registered after due deliberation and consultation and also after procuring the witnesses while sitting at Police Station, that resulted in delay in completion of police papers necessary for post-mortem examination of the deceased.
' Furthermore, the medical evidence is also discrepant with the ocular account. It is the case of the prosecution that Muhammad Akram accused (since P.0) made a fire shot with .30 bore pistol which landed on right buttock of Arshad Iqbal (deceased) but there is no entry wound on the right buttock of the 'deceased rather, as per medical evidence, a re-entry and exit wounds are available there. Similarly, both Qamar (appellant) and Basharat (since acquitted) were assigned one fire shot each on the left buttock of the deceased but as per postmortem examination report (Exh-PQ), there is only one fire-arm entry wound on the left buttock of the deceased. Dr. Khalid Mahmood (PW14), who conducted the post-mortem examination on the dead body of the deceased, also noted multiple abrasions on the face of the deceased but none of the eye-witnesses has stated anything about said abrasions in their statements recorded under Sections 154 & 161 of the Code of Criminal Procedure, 1898, respectively and before the learned trial Court.
16. We have observed that the narration furnished by the prosecution witnesses is not only discrepant but pregnant with material and dishonest improvements regarding the actual occurrence as well and even the prosecution is not consistent regarding the firearms used in the occurrence and the location of injury attributed to Qamar Abbas appellant. In the FIR (Exh-PB), it was the case of the prosecution that Azhar (appellant) was armed with .223 bore rifle and he caused an injury on the back of Muhammad Afzal (deceased) whereas, Safdar Iqbal, complainant (PW-7) and Sarwar Ahmad (PW-9) while appearing before the learned trial Court has stated that he was armed with .30 bore pistol while Manzoor Ahmad (PW-8) though claims the ability to distinguish weapons, yet has not mentioned about kind of weapon held by the assailants. The prosecution witnesses are also discrepant with each other and with the FIR as in the FIR, it was stated that the fire shot made by Qamar Abbas (appellant) hit the deceased on his left buttock whereas, Safdar Iqbal, complainant (PW7) while appearing before the learned trial Court has stated that the fire shot made by Qamar Abbas (appellant) hit the deceased on his left thigh but as per post-mortem report (Exh-PQ), there is no injury available on left thigh of the deceased while Samar Ahmad (PW-9) alleges that Qamar Abbas (appellant) caused injury on the right buttock of Arshad Iqbal (deceased). We have also observed that all the prosecution witnesses furnishing ocular account, Safdar Iqbal, complainant (PW-7), Manzoor Ahmad (PW-8) and Sarwar Ahmad, (PW-9) have made material dishonest improvements in their earlier statements qua the actual occurrence recorded by the police under Sections 154 & 161 of the Code of Criminal Procedure, 1898, respectively. They were duly confronted with their previous statements and the improvements made by them were brought on record. Safdar Iqbal, complainant (PW-7) has stated as under:-- "I did not get recorded in my first statement before the police that Azhar to have fired with .30 bore pistol; volunteered I was in state of shock. It is incorrect to suggest that my volunteer portion is false. I had got recorded Azhar accused to be armed with rifle .223 before in my statement Ex.PB/1. I did not get record in my statement Ex.PB/1 that at the time of occurrence accused Boota and Sadaqat were also present at the place of occurrence. I have not got recorded in my statement Ex.PB/1 as well as statement Ex.PB/1 that the accused persons namely Muzaffar, Mohsin, and Azhar etc. Had made announcement in the mosque; volunteered that on asking of Muzaffar and Azhar, Mohsin made announcement in the mosque. It is incorrect to suggest that my volunteer portion is false. I have got recorded in my statement Ex.PB/1 and Ex.PB/2 that after the occurrence, I after scaling over the wall proceeded towards Police Station, (confronted with the above said both the statements where it is not so recorded). It is incorrect to suggest that because I have not seen the occurrence, therefore, after due consultation and deliberation, I kept on making different statements."
' Similarly, Manzoor Ahmad (PW-8) also made following dishonest improvements in his statement:- - "...I had got recorded in my statement before the police that at the time of occurrence we were sitting on two Charpaies, one was occupied by Arshad deceased whereas remaining PWs were sitting on other charpai (confronted with Ex.DA where it is not so recorded). I have got recorded in my statement before the police that the accused persons had came at the place of occurfence from eastern side, (confronted with Ex.DA where it is not so recorded) I had got recorded in my statement before the police that Afzal accused fired at the deceased which hit on his right flank (confronted with Ex.DA where it is not so recorded) I had got recorded in my statement before the police that Azhar has asked at the time of occurrence that announcement in the speaker of the Mosque be made (confronted with Ex.DA where it is not so recorded) I have got recorded in my statement before the police that Boota and Mohsin accused went towards Mosque while resorting to aerial firing (confronted with Ex.DA where it is not so recorded) I have got recorded in my statement before the police that Mohsin accused had made announcement in the Mosque (confronted with Ex.DA where it is not so recorded) I have got recorded in my statement before the police that Arshad deceased had asked that the accused persons had killed him and that we should save ourselves (confronted with Ex.DA where it is not so recorded) I have got recorded in my statement before the police that we rushed towards inside of the house and Arshad had followed us. (confronted with Ex.DA where it is not so recorded) I have got recorded in my statement before the police that we had asked Safdar to report the police regarding the occurrence as there was a police picket at village Tittranwala and thereafter we helped him in scaling over the wall (confronted with Ex.DA where it is not so recorded).
' Likewise, Sarwar Ahmad (PW-9) made the following dishonest improvements in his statement:-- "...I had got recorded in my statement before the IO that at the time of occurrence, Arshad deceased was sitting on a separate cot whereas we were sitting at another cot (Confronted with Ex.DB where it is not so recorded) I had got recorded in my statement before the I.O. That Arshad deceased was facing towards west and the accused persons came from eastern side (confronted with Ex.DB where it is not so recorded). I had got recorded in my statement before the police that Azhar made a fire shot which hit on the back of Arshad deceased (confronted with Ex.DB where it is not so recorded). I had got recorded in my statement before the police that Qamar made a fire shot which hit on the right buttock of Arshad deceased (confronted) with Ex.DB where it is not so recorded). I had got recorded in my statement before the police that Arshad after sustaining the fire-arm injuries asked to us to run as he had sustained fire-arm injuries (confronted with Ex.DB where it is not so recorded). I had got recorded that after sustaining injuries by Arshad deceased we rushed ahead to deceased whereas he followed us (confronted with Ex.DB where it is not so recorded). I had got recorded in my statement before the I.0 that Azhar had asked to make an announcement to the Mosque that they had murdered Arshad and any person who comes out of his house would be killed (confronted with Ex.DB where it is not so recorded). I had got recorded in my statement before the I.0 that the accused persons Mohsin and Boota had made announcement in the Mosque (confronted with Ex.DB where it is not so recorded). I had got recorded in my statement before the I.O. That we got Safdar scaled over the wall of back side of my house in order to inform the police at police picket established at village Tittranwala (confronted with Ex.DB where it is not so recorded). I had got recorded in my statement before the police that Safdar came back after reporting the matter to the police and that after about 45 minutes police came at the spot (confronted with Ex.DB where it is not so recorded). I had got recorded in my statement before the I.0 that police had collected the blood stained from the Tharra, from inside the Bhatik and from my Courtyard (confronted with Ex.DB where it is not so recorded)..."
' Such like discrepancies and dishonest improvements are sufficient to make the statements of eye-witnesses untrustworthy and able.
Reference in this respect is made to the case of Khalid Javed and another v. The State (2003 SCM R 1419) wherein, the Hon'ble Supreme Court of Pakistan, at page 1438, was pleased to observe as under:-- "18. ...In this behalf it may be observed that according to administration of criminal justice a witness who makes glaring contradictions, omissions and improvements in his Court statement qua the statement recorded by him before the police either as per the contents of the F.I,R. If he is complainant or if he is a witness and his statement is recorded under Section 161, Cr.P.C. Such witness is to be considered to be wholly unreliable witness and it is not advisable to place explicit reliance upon his evidence..."
' Similar view was also taken by the Hon'ble Supreme Court of Pakistan in the cases of Farman Ahmed v. Muhammad Inayat and others (2007 SCM R 1825), Akhtar A.I and others v. The State (2008 SCM R 6) and Muhammad Rafique and others v. The State and others (2010 SCM R 385).
' Another important aspect noticed by us that creates doubt about the presence of Safdar Iqbal, complainant (PW-7) and Manzoor Ahmad (PW-8) at the scene of occurrence is that admittedly, both witnesses had been the nominated co-accused of Arshad Iqbal (deceased) in the motive FIR of Aamir deceased, brother of Qamar Abbas (appellant) but none of the assailants has been alleged to attempt to cause hurt to either of the two PWs. We are of the view that had the appellants been the assailants with the alleged motive, Safdar Iqbal, complainant (PW-7) and Manzoor Ahmad (PW-8) would also have been the target.
' Similarly, the witnesses are not only discrepant with the site plan regarding their place of presence during the occurrence but they have also made dishonest improvements about the same fact which renders their presence further doubtful.
' In the circumstances of case in hand, we are of the view that the occurrence of this case was un- witnessed and the unexplained delay of post-mortem examination also indicates that the FIR was registered with ante timing. Keeping in view all discussed above, we are of the firth opinion that the ocular account that does not carry judicial certainty is not to be relied upon as is held by the Hon'ble Supreme Court of Pakistan in the case of Basharat v. The State (1996 SCJ 215) at page 270 as under: "9. ...There is no judicial certainty or circumstantial guarantee about the presence of the eye- witnesses on the spot. On the other hand, there are cogent reasons to doubt that the eyewitnesses were present on the spot and seen the occurrence. So, there is no option but to exclude the ocular evidence from consideration."
17. So far as the motive part of the occurrence is concerned, it has been noticed that the same is not denied by the defense, however, the defense has taken the same enmity as a reason for false implication of the accused persons but have not substantiated the same with any evidence, however, being a double edged weapon the motive in this case cannot be given much importance.
18. Though, having guidance from the esteemed judgment passed by the august Supreme Court of Pakistan in the case of Muhammad Jam ii versus Muhammad Akram and others (2009 SCM R 120) that when the direct evidence has been disbelieved by us, the conviction cannot be based on the basis of mere corroboratory pieces of evidence like motive, recovery etc. Yet even the perusal of evidence qua the alleged recovery of crime weapons reveals that the same is inconsequential and not reliable. As per FIR, Azhar (appellant) was armed with .223 bore rifle but .30 bore pistol was allegedly recovered from him during the investigation. So far as the supplementary statement made by the complainant according to which he has deviated from his earlier statement (Exh- PB/1) maintaining that Azhar Hussain (appellant) was armed with .30 bore pistol, is concerned, we are of the view that it is not of much importance keeping in view the observations made by the august Supreme Court of Pakistan while passing the esteemed judgments in the cases of Khalid Javed and another v. The State (2003 SCM R 1419) and Noor Muhammad v. The State (2008 SCM R 1556). Furthermore, only two crime empties of .30 bore pistol were taken into possession from the place of occurrence on 04.06.2007. The appellants were arrested in this case on 05.07.2007 and the crime empties were dispatched to the office of Forensic Science Laboratory on 14.07.2007 i.e. After one month and ten days of the occurrence and nine days after the arrest of the appellants which makes the recovery proceedings as doubtful. Even the complainant made dishonest improvement in this regard and while appearing before the learned trial Court, he stated that the appellant was armed with .30 bore pistol. In this view of the matter, positive report' of Forensic Science Laboratory to the extent of said pistol is doubtful and it is not safe to rely upon the same. So far as the alleged recovery of .44 bore rifle at the instance of Qamar Abbas (appellant) is concerned, we have noticed that as per report of Forensic Science Laboratory (Exh-PT), the same was without firing block due to which test firing could not be conducted. In this situation, the alleged recovery of .44 bore rifle at the instance of Qamar Abbas (appellant) is inconsequential and not helpful to the prosecution. The discrepancy in statements of witnesses qua the arrest of both appellants also create doubt regarding the probity of the recovery. The discrepancy in statements of witnesses qua the arrest of both the appellants also creates doubt regarding the probity of the alleged recovery of crime weapons at the instance of the appellants.
19. It is, by now, well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained fail to discharge its responsibility of proving the case against the appellants. It is by now well settled law that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused, whereas, the instant case is replete with circumstances which have created serious doubts about the prosecution story. In the case of 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 v. The State (2009 SCA/IR 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 SCM R 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."
20. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellants beyond the shadow of any reasonable doubt, therefore, we accept Criminal Appeal No. 196-J of 2010 filed by Qamar Abbas and Azhar Hussain (appellants), set aside their conviction and sentence recorded by the learned trial Court and acquit them from the charge levelled against them by extending them the benefit of doubt. They are in custody, be released forthwith if not required in any other case.
21. Murder Reference No. 406 of 2010 is answered in the NEGATIVE and the sentence of death of Qamar Abbas and Azhar Hussain (convicts) is NOT CONFIRMED.