MUJAHID MUST AQEEM AHMED, J.:- As a consequence of trial conducted in case F.I.R. No.01 dated 02.01.201 1 under Section 302 P.P.C. of Police Station Bhalwal, District Sargodha lodged at the instance of Muhammad Aslam (PW.14) for Qatl-e-Amd of his brother Sultan Ahmad Ranjha, Advocate, the learned Additional Sessions Judge, Sargodha found Muhammad Irfan and Mudassar Hayyat, appellants guilty of the offence and resultantly vide judgment dated 29.8.2013 Muhammad Irfan, appellant was convicted under Section 302(b) P.P.C. and sentenced to death, whereas Mudassar Hayyat, appellant was convicted under Section 302/34 read with Section 109 P.P.C. and sentenced to suffer imprisonment for life. Each of the appellants was also directed to pay Rs.1,00,000/- compensation to legal heirs of the deceased and in default thereof to suffer six months S.I. in terms of Section 544- A Cr.P.C.
2. Feeling aggrieved of the above-noted conviction and sentence, Muhammad Irfan, appellant has filed Criminal Appeal No.1293 of 2013 while Mudassar Hayat, appellant has assailed his conviction and sentence by way of Criminal Appeal No.1294 of 2013. The learned trial Court has also approached this Court through Murder Reference No. 427 of 2013 in terms of Section 374 Cr.P.C. seeking confirmation of sentence of death imposed on Muhammad Irfan, convict. All these three matters emanating from the same judgment are being disposed of together through this single judgment.
3. Sultan Ahmad Ranjha, Advocate was murdered on 02.01.201 1 at 8.35 p.m. in front of door of his house situated at Street No. 4 of Ashraf Colony , Bhalwal and the matter was reported by his brother Muhammad Aslam, complainant (PW-14) at the police station where the above-noted F.I.R. (Ex.PF) was registered at 9.00 p.m. on same date against unknown person. The complainant stated in the F.I.R. that the deceased was a practicing lawyer of Tehsil Courts, Bhalwal, was contesting election as candidate for President of Tehsil Bar Association for the year 2011 and in this connection he called the complainant and Mudassar Hayat, Advocate (appellant) for election campaign as a result of which on the fateful day and time, he (complainant) along with Amjad Hayat (PW. 14) and Mudassar Hayat (appellant) reached the house of the deceased in a car. The complainant alleged that when they reached in street of deceased they saw, in the light of car and a street light that an unknown young man wearing "shalwar kameez ", was talking harshly with Sultan Ahmad. Before the PWs. could approach them, said unknown person fired a shot with his .30 bore pistol at Sultan Ahmad hitting left side of his head. Sultan Ahmad fell down and instantly died while the assailant fled away from the spot. The complainant claimed to identify the assailant on his appearance before him.
4. Dr. Naveed Sattar PW.16 performed autopsy on the dead body of Sultan Ahmad on 2.1.2011 at 11.00 p.m. and found a lacerated wound with inverted margins 1 cm x 1 cm x going into, on back and left side of head 7 cm from left ear. Blackening was present. On dissection, the doctor recovered a bullet from cranial cavity and sealed the same into parcel. The post mortem examiner opined that death had occurred due to haemorrhage and shock under the effect of this injury which was sufficient to cause death in ordinary course of nature. The injury was ante mortem and inflicted by firearm. Probable time between injury and death was immediate and between death and post mortem was two hours and 25 minutes. He proved post mortem report Ex.PJ and diagram of injuries Ex.PJ/1.
5. After registration of case, investigation was initiated by Aman Ullah Sub Inspector (PW.19) who reached the spot and conducted formal investigation. During spot inspection he took into possession a crime empty of .30 bore (P.7) vide memo Ex.PH. He tried to trace the accused but could not get any clue till 14.4.201 1 when investigation was transferred from him to Muhammad Saqlain Shah, Inspector/S.H.O. (PW .20).
6. On 8.5.201 1 Muhammad Aslam (complainant) alongwith Khalid Saif Ullah, Manzoor Ahmad (PWs.5&7) and Muhammad Afzal (given up) appeared before Muhammad Saqlain Shah, Inspector/I.O. (PW.20) and made statements to the effect that on 7.5.201 1 at 9.00 p.m. Khalid Saif Ullah and Manz oor (PWs.5 & 7) had visited the Dera of Mudassar Hayat, appellant for booking of Harvester Machine, where Mudassar Hayat, appellant was present. They still had not entered the "Baithak " when they saw Mudassar Hayat and Muhammad Irfan, appellants when the latter was saying to the former that he (Mudassar Hayat) had got murdered Sultan Ahmad Ranjha from him (Irfan) and whenever he (Irfan) saw the widow and children of Sultan Ahmad his conscious pricked him and he felt very perturbed and ashamed. On hearing these words the P.Ws. did not meet Mudassar Hayat and returned to tell this story to the complainant. On these lines the investigation proceeded. The complainant also joined investigation and stated about extra judicial confession made by Mudassar Hayat, appellant before the witnesses and also produced Muhammad Ameer (PW.6) who had last seen the appellant Mudassar Hayat with an unknown person on a motor cycle (without any registration number or other particulars) in the street of the deceased on the day of occurrence prior to his murder. Thus the investigator arrested Muhammad Irfan, appellant 10.5.2011 who, during investigation, on the same day got recovered a motorcycle vide memo Ex.PM and also a pistol (P.5) alongwith five live bullets (P.6/1-5) vide Memo Ex.PE. On the same date, the investigator produced Muhammad Irfan before concerned Illaqa Magistrate where he made confession. The I.O. also got conducted his identification parade on 12.5.2011. Meanwhile, on 11.5.2011 he also arrested Mudassar Hayat, appellant, who, while in custody on 20.5.2011, got recovered license of .30 bore pistol and registration book of motor cycle which articles had allegedly been used by Irfan, appellant during the occurrence. After completion of investigation the appellants were challaned to Court.
7. At trial, on denial of the appellants having committed the occurrence, charge was framed against them and the prosecution produced as many as 21 P.Ws. out of which Muhammad Aslam, complainant and Amjad Hayat (PWs.14 & 15) provided ocular account of the occurrence. P.W. 14 has also testified about extra judicial confession of Mudassar Hayat, appellant. Dr. Naveed Sattar (PW.16) proved medical evidence, Khalid Saif Ullah and Manzoor Ahmad (PWs. 5 & 7) provided evidence of over-hearing confessional conversa tion of appellants, Muhammad Ameer Ahmad (PW.6) provided evidence of last seen, Aman Ullah S.I. and Muhammad Saqlain Shah, Inspector (PWs. 19 &20) proved their investigation and Mumtaz Ahmad Moghal, Magistrate (PW. 21) proved identification parade. Rest of witnesses were formal in nature. After close of prosecution evidence, the appellants were examined under Section 342 Cr.P.C. wherein they denied the prosecution evidence and claimed innocence.
Mudassar Hayat, appellant further claimed that the complainant had involved him in order to usurp property of his widow sister . Mudassar Hayat, appellant in response to the question, "Why this case against you and why PWs. have deposed against you?, replied as under: "I was shown as eye witness in the F.I.R. lodged by the complainant and was also witness of seizure of blood stained earth from the spot but five months after the occurrence, I was falsely involved in this case, when I asked the complainant to return the property of the deceased to my sister and her children."
At close of trial the appellants were convicted and sentenced as noted above.
8. Learned counsel for the appellants has vehemently argued that it was an unse en occurrence. Later on just to usurp property of sister of Mudassar Hayat, who was widow of the deceased, the complainant in connivance with the police who had failed to trace out real culprits for more than four months, Mudassar Hayat appellant, originally cited as eye-witness, was arrayed as accused by involving his clerk Muhmm ad Irfan, appellant as principal accused. It has been emphatically main tained that evidence of last seen, extra judicial confession of Mudasar Hayat and judicial confession of Muhammad Irfan have been fabricated in this case. The recovery of motor cycle, .30 bore pistol at the instance of Muhammad Irfan, appellant is planted one and as such cannot be used as corroborative piece of evidence but learned trial Court in spite of noticing the discrepancies in evidence and improvements made by the witnesses and the negative report of Forensic Science Laboratory in respect of .30 bore pistol purportedly recovered at the instance of Muhammad Irfan, recorded conviction and sentence against the appellants by ignoring golden princ iple of criminal jurisprudence that prose cution case should be proved beyond shadow of doubt and benefit of doubt is to be extended in favour of accused.
9. Conversely, learned Law officer assisted by learned counsel for the complainant has forcefully argued that in this exceptional case, prosecution has succeeded to bring on record guilt of the appellants by leading evidence of last seen, (circumstantial evidence), extra judicial confession of Mudassar Hayat, judicial confession of Muhammad Irfan, telephonic data of both the appellants collected by the investigating officer coupled with the correct identification of Irfan, appellant in identification test parade. Medical evidence and recovery of .30 bore pistol and motor cycle can also be safely relied upon as corroborative piece of evidence and as such the trial court has rightly convicted and sentenced the appellants.
10. Learned counsel for the parties have been heard at length and record perused with their assistance.
11. Before discussing the matter , it may be mentioned that both the parties are closely related inter se inasmuch as Muhammad Aslam (PW.14) and Muhammad Afzal (given up) are real brothers of the deceased. Khalid Saif Ullah (PW.5) is their "Mamoon Zad" and also brother-in-law of the complainant. Amjad Hayat (PW.15) is real brother of Khalid Saif Ullah. Muhammad Ameer (PW.6) is "Mamoon Zad" of wife of Muhammad Afzal and thus close relative of the complainant party . Mudassar Haya t, appellant is brother-in-law of the deceased and as such also relative of the complainant and other witnesses.
12. There is no denial that Sultan Ahmad, Ranjha, Advocate was murdered on 2.1.2011 at 8.30 p.m. in front of his house situated in Street No. 4 of Ashraf Colony, Bhalwal and the F.I.R. was got lodged by Muhammad Aslam, P.W.
14, real brother of the deceased at 9.00 p.m., against an unknown person giving his description as of young age wearing Shalwar and shirt. As per complainant's version in the F.I.R., on the asking of the deceased he alongwith Amjad Hayat and Mudassar Hayat visited house of the deceased and they were still at few paces away from his house when they saw an unknown accused person talking in harsh style with the deceased and before the witnesses could reach them, the unknown person fired a shot with his pistol at the deceased which hit on his temporal region resulting in his instant death and the assailant made good his escape. As noted above, initially the investigation was carried out by Aman Ullah Sub Inspector (PW.19) but without any clue of the culprit(s) till 14.4.2011 when the investigation was transferred from him. At trial, during cross-examination he conceded that various persons such as Muhammad Iqbal Pathan, Ishrat Perveen, Muhammad Saleem, Iqbal and Imran were joined in investigation as suspects for their involvement in this case at the behest of the complainant of this case.
This shows that admittedly no clue had been discovered regarding the culprits during his investigation.
13. The investigation against the appellants was started in the light of statements made by Khalid Saif Ullah and Manzoor Ahmad, PWs. 5 & 7 and in this regard the prosecution has collected in its bag evidence of last seen, provided by Muhammad Ameer , extra judicial confession by Mudassar Hayat, appellant before the complainant, judicial confession of Irfan before Mumta z Ahmad Mughal, learned Magistrate (PW.21) followed by identification parade and recoveries at the instance of the appellants coupled with medical report. We would like to discuss these pieces of evidence one by one: Khalid Saif Ullah appeared at trial as PW. 5 and deposed that he alongwith Manzoor Ahmad, PW.7 visited Dera of Mudassar Hayat, appellant located at a distance of 10/12 kilometers from their residence for hiring harvester machine. They parked their motor cycle on the bank of canal and went to the Dera where Mudassar and Irfan were sitting in `Bhaithak " and talking about murder of Sultan. On this they (PWs.) became attentive and instead of entering the `Bhaithak " stopped outside and over-heard the conversation of Muhammad Irfan principal accused with his co-accused Mudassar Hayat to the effect that former had murdered Sultan Ahmad Ranjha at the latter's instance. They returned to complainant' s house without any casual meeting/sitting with Mudassar Hayat. For the purpose of better understanding above version of Khalid can be split into two parts out of which first one is plan whereas the second one is more than mysterious. First part may comprise on the version that he alongwith Manzoor Ahmad went to the Dera of Mudassar Hayat located at a distance of 10/12 kilometers from their residence to book his harvester machine. This part of the statement is plain. Although it is not easily digestible that one would go upto 10/12 kilometers to fetch a harve ster machine which is easily available almost in every village but keeping in view his above-noted relationship, one may think that he might have considered it appropriate to hire harvester machine of his such close relative. But the style next adopted by these PWs. 5 and 7 in the second part of their version is more than mysterious and makes the whole story doubtful. There is no explanation available on record as to why the P.Ws. chose to park their motor cycle alone on bank of canal at night time (9.00 p.m.) and did not straight away go to the Dera on motor cycle. It isequally strange, rather unnatural and not easily believable that they did not call out Mudassar or any other inmate before entering into the Dera informing their arrival. The next one is most mysterious and rather horrible part of their version. Instead of entering the `Baithak" they stopped near the window to over-hear the conversation allegedly of the appellants. Admittedly, by that time, none had raised even a little finger about involvement of Mudassar or Irfan in the present case. Then what on earth had compelled these PWs. to enter the Dera in such a mysterious style. P.W. 7 while under cross-examination disclosed that they went towards window of the `Baithak Dab-e-Paoon" (pin drop silence). This part of the stance taken by these P.Ws. is more than improbable and unnatural which makes the whole story unacceptable. Such testimony cannot be accepted as gospel truth in a case of capital charge and resultantly we discard the same from consideration.
14. Another link of extra judicial confession has been narrated by P.W. 14, complainant who deposed that on 7.5.2011 after sharing of above information by P.Ws. 5 and 7 with him, he alongwith his brother Muhammad Afzal (given up) visited Dera of Mudassar Hayat appellant and appellant also came there and in weeping style confessed that he had committed mistake by commission of murder of Sultan Ahmad Ranjha through Muhammad Arfan, appellant and he begged pardon from them. The testimony of complainant in this regard is not readily believable for the simple reason that PWs. 5 and 7 have left Dera of Mudassar Hayat, appellant during late hours of night and thereafter they purportedly met the complainant and subsequently the complainant alongwith other P.Ws. visited the Dera of Mudassar Hayat. Neither any time of such visit has been stated by the P.W. nor it is believable that at odd hours of night he will visit Dera of murderer of his brother. Even otherwise Mudassar Hayat in his extra judicial confession has not given details of the occurrence and as such this story cannot be treated as confession made by an accused. So testimony of P.W. 14 in this regard is discarded. In a case reported as Nasir Javaid v. The State (2016 SCMR 1144) it has been laid down that extra judicial confession can be concocted easily, therefore, it was always looked at with doubt and suspicion. It can be taken as corroborative of charge if in the first instance it rang true and then found support from other evidence of unimpeachable character. If other evidence lacked such attribute such confession had to be excluded from consideration.
15. The prosecution introduced another set of witnesses i.e. Muhammad Amir Ahmad (PW. 6) and Gulzar Ahmad, (given up) to produce evidence of last seen. Muhammad Ameer , PW deposed that on 2.1.201 1 at 7/8.00 p.m. he alongwith Gulzar Ahmad, visited house of the deceased in order to obtain a chit to get diesel on credit from his petrol pump situated in the area of Khan Muhammad Wala and while going to his house, in Street No. 4 of Ashraf Colony , they saw Mudassar Hayat, appel lant on motor cycle alongwith another unknown pillion rider. After getting favour from the deceased they were proceeding back and again saw Mudassar Hayat sitting on the motor cycle.
This incident of last seen was told by these witnesses to the complainant on 8.5.2 011. From cross-examination of Muhammad Ameer , PW it is established that his residence is situated at 16 kilometers from the place of occurrence and thus he is also a chance witness and his presence at the scene of occurrence on the fateful date and time is not established. Although he claimed that he asked from the deceased about Mudassar Hayat who told that Mudassar did not visit him in those days, then why this P.W. did not tell the deceased or even to the complainant or the investigator before 8.5.201 1 about presence of Mudassar in the street on the day of occurrence. Likewise he claimed that on his return he again met Mudassar in the street but the P.W. did not consider it appropriate to even shake hand with Mudassar and share the conversation of deceased about him (Mudassar). This conduct of the P.W. is strange and makes his version doubtful. Even otherwise he has not ascribed any role to Mudassar Hayat qua the instant occurrence. No registration number , make, colour of motor cycle has been given by this witness and as such this omission on his part disqualifies him to be treated as a witness of last seen.
16. The prosecution has produced P.W. 14/complainant and P.W. 15 Amjad Hayat to establish ocular account and identification parade of Muhammad Irfan, appellant during test identification parade. P.W. 14 complainant in his examination in chief deposed that on 2.1.2011 he alongwith P.W. 15 in car (without mentioning its registration number or other necessary details) was proceeding towards residence of the deceased and on his way he also picked Mudassar Hayat, appellant, at 8.35 p.m. he alongwith these witnesses reached near the house of deceased and saw that the deceased was arguing with an unknown person of young age wearing Shalwar and shirt, whose name, the complainant later on came to know to be Muhammad Irfan, appellant at the time of identification parade. Muhammad Irfan fired with .30 bore pistol which hit on left side of head and the appellant succeeded to escape. On 12.5.2011 he joined identification parade in Distt. Jail Shahpur and identified Muhammad Irfan, appellant to be said unknown. He in concluding para of his statement deposed that Mudassar, appellant has committed the instant offence to get control of petrol pump of deceased situated at Khan Muhammad Wala. At trial, he also stated about motive. But in the F.I.R. we have noticed that no motive was attributed at all. During cross-examination, he admitted that in F.I.R. he had introduced Mudassar Hayat as a prosecution witness. He also conceded that at initial stage of investigation, he named various persons including Irfan, Iqbal, Imran as perpetrators of the occurrence. Amjad P.W. 15 in his examination in chief has narrated the occurrence in line with testimony of P.W.
14. He also claimed that during test identification parade, he correctly identified Muhammad Irfan, appellant. During cross-examination he conceded that his residence is situated at 15 kilometers from the place of occurrence. It is worth mentioning that he is cultivator by profession and purportedly he alongwith the complainant and Mudassar Hayat appellant was invited by the deceased to join his election campaign for the office of President of Tehsil Bar Association Balwal. He is a chance witness and it cannot be readily accepted that he can play any role in election campaign of the deceased. As such his presence at the scene of occurrence at the relevant time is not believable. His testimony is also pregnant with dishonest improvements.
This witness has not narrated the date of identification parade and in the last line of his cross-examination he conceded that he has touched Muhamm ad Irfan appellant as the "accused" and he had not assigned any role played by him before the Magistrate/PW .21. Even otherwise the complainant in the F.I.R. and P.W. 15 in his statement under Section 161 Cr.P.C. have not given the features of Muhammad Irfan, appellant and thus it is not readily believable that they would correctly capture his fleeting features during night time occurrence and after a lapse of 4 /2 months they would correctly identify him. It has been held in Ghulam Hussain and others v. The State (2005 YLR 405) that while evaluating identification parade it should be kept in mind that memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened between the occurrence and the proceedings should be viewed with suspicion. Therefore, an1 identification parade, to inspire confidence must be held at the earliest possible opportunity after the occurrence and further that a test identification, where the possibility of the witness having seen the accused persons after arrest cannot be ruled out, is worth nothing at all. In the case titled Muhammad Yaqoob and another v. The State (1989 PCrLJ 2227) (Lahore) it has been held that evidence offered through identification parade is not a substantive piece of evidence but is only corroborative of the evidence given by the eye witnesses at trial and where possibility that police had got accused identified by witnesses prior to identification parade the same lost its worth. In the case titled Azhar Mehmood and others v. The State (2017 SCMR 135) the Hon'ble Supreme Court has held that when accused persons were identified during test identification parade without reference to any role played individually by them in the incident, such test identification parade was of no evidentiary value. PW. 21 Mumtaz Ahmad Mughal, Magistrate deposed that on 12.5.2011 he supervised identification parade held in Shahpur Jail, Sargodha and P.Ws. 14 and 15 correctly identified Muhammad Irfan, appellant and he proved his report Ex.PU. During cross-examination he conceded that in his report he has noted down that the witnesses had told the role of Muhammad Irfan, appellant but he has not given the nature of role which was described by the witnesses. The omission on the part of the witnesses and the Magistrate qua specific role of Muhammad Irfan in this occurrence is fatal to the prosecution case to bring home guilt against Muhammad Irfan, appellant. As such the ocular account and identification parade are not having any potential to bring home the guilt of the appellants for commission of the instant occurrence.
17. As per version of Muhammad Suqlain Shah, Inspector/ P.W. 20 he arrested Muhammad Irfan, appellant on 10.5.2011 from a place near Dera of Mudassar Hayat appellant and interrogated him and secured from his possession motor cycle C.D. 70. vide memo Ex.PM. and on his disclosure also recovered .30 bore pistol with five live bullets from his residential house situated in Chak No. 6/N.B. vide memo Ex.PE.
Thereafter on the same date he produced Muhammad Irfan, appellant with muffled face before Illaqa Magistrate Bhalwal who recorded his confession on the same day. Mr. Mumtaz Ahmad Mughal, Magistrate entered appearance as PW.21 to prove confessional statement of Muhammad Irfan, appellant Ex.P.T. During cross- examination, the learned Magistrate frankly conceded that he had not mentioned in the proceedings that he removed hand cuffs before or during recording of his statement. He further conceded that in Ex.PT in initial proceedings of recording confessional statement of the appellant he has marked presence of Suqlain Shah, Inspector/S.H.O. and ADPP and when the appellant was re-summoned for recording his confession, he recorded the presence "As Before". This shows the casual manner with which the learned Magistrate had recorded confessional statement. The Hon'ble Supreme Court in a case titled Azeem Khan and another v.
Mujahid Khan and others (2016 SCMR 274) observed as under: "Keeping in view the High Court Rules, laying down a binding procedure for taking required precautions and observing the requirements of the provision of section 364 read with section 164 Cr.P.C. by now it has become a trite law that before recording confession and that too in crimes entailing capital punishment, the Recording Magistrate has to essentially observe all these mandatory precautions. The fundamental logic behind the same is that, all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shed out and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection is to be given after the first warning is administered. At the expiry of that time, Recording Magistrate has to administer the second warning and the accused shall be assured that now he was in the safe hands. All police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Court and beyond the view of the accused. After observing all these legal requirements if the accused person is willing to confess, then all required questions formulated by the High Court Rules should be put to him and the answers given be recorded in the words spoken by him......"
We have observed that Muhammad Irfan, appellant was not arrested till 10.5.201 1 but immediately on the day of his arrest he purportedly after leading to recovery of motor cycle and firearm declared to make a confessional statement. It has come on record that the said appellant did not himself appe ar before the police under the command of his "conscious" rather on spy information, was arrested in conse quence of raid, then it is not understandable as to how immediately after his arrest on spy information he decided to make confession. This is a strong circumstance to view the whole confession proceedings with doubt and thus not acceptable as gospel truth.
18. The investigator purportedly recovered motor cycle and .30 bore pistol at the instance of Muhammad Irfan, appellant immediately after his arrest on 10.5.201 1 and before his production on the same date before the Magistrate for recording judicial confession and then sending him to judicial lock up for identification parade. In the F.I.R. or the statements of the witnesses no description of motor cycle, its registr ation number , colour , make has been given as such this recovery cannot be used as corroborative piece of evidence. The report of Forensic Science Laboratory qua recovery of .30 bore pistol and crime empty secured from the scene of occurrence, on the date of occurrence, is negative and as such this piece of evidence is also of no use to the prosecution to corroborate the ocular account. Reliance is placed on case law reported as Muhammad Azhar alias Jajja v. The State (2016 SCMR 1928 ). As per testimony of Dr. Naveed Sattar , PW. 16, Sultan Ahmad has died unnatura l death as a result of fire arm injury but the prose cution could not lead confidence inspirin g ocular account to bring home guilt of the appellant. The evidence of extra judicial confession of Mudassar Hayat, appellant, judicial confession of Irfan, identification parade have already been discarded. It is well settled principle of law that medical evidence can indicate nature of injuries/cause of death of a person but it cannot hint towards the perpetrator of offence. (2017 SCMR 135 supra relied). So this medical evidence cannot be used as corroborative piece of evidence.
19. The crux of the above discussion is that this is night time occurrence, none of the appellants is named in the F.I.R. as accused, the features of unknown assailant have not been given in the F.I.R., during initial investigation the complainant named various persons as suspects of the instant occurrence and this fact itself lead to the conclusion that the complainant and the P.Ws. have wavering stance against different persons for different motives for commission of the instant occurrence . The present set of accused/appellants has been introduced after about 4/2 months of the occurrence. Mudassar Hayat, eye witness of the occurrence has been transposed as accused and Muhammad Irfan as the principal accused. In the F.I.R. no motive has been attributed against any one. The complainant in his statement before the Court has attributed motive against Mudassar Hayat accused that he wanted to take control of petrol pump of the deceased. During trial no evidence has been led by prosecution to establish motive part of the occurrence. It is not readily believable that one would ruin family life of his young sister only to get temporary management of petrol pump. In our rural background the brothers and other elders of the family for the whole life look after the interest, welfare and betterment of their sisters/daughters in the houses of their in-laws and commission of such offence by such close relative is highly improbable. Presence of P.W. 15 at the scene of occurrence on the date and time of occurrence has been disbelieved. The evidence of confession of Irfan and extra judicial confession of Mudassar Hayat, appellant and identification parade stood discarded. The last seen testimony of P.W. 6 Muhammad Ameer that too introduced at belated stage inspires no confidence.
Although it has come on record that the investigator got mobile phone data of both the appellants relating to the relevant period but the same attempt also is of no help to the prosecution as it has not been established that these mobile phone numbers were in their use. Even otherwise as admitted by Irfan, appellant that he was clerk/servant of Mudassar Hayat, appellant who also happens to be an Advocate by profession, as such any telephonic communication of the two appellants inter se in this eventuality is not a strange phenomenon nor can be used as corroborative piece of evidence. The recovery of motor cycle at the instance of Muhammad Irfan, appellant is inconsequential as none of the witnesses has given its particulars for its use in the instant case.
Similarly as per report of Forensic Science Laboratory crime empty recovered from the scene of occurrence has been found not wedded with the pistol recovered at the instance of Muhammad Irfan, appellant. There is no corroborative piece of evidence. It is settled principle of law that it is not necessary that there should be many circumstances creating doubts. Rather a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right. Reliance in this regard may be placed on Tariq Pervez v. The State (1995 SCMR 1345), Muhammad Akram v. The State (2009 SCMR 230) and Azhar Mahmood and others v. The state (2017 SCMR 135). Consequently, we have come to irresistible conclusion that the prosecution has failed to bring home guilt of the appellants and we hold accordingly .1
20. Resultantly , Cr. Appeals No. 1293 of 2013 and Cr. A. No. 1294 of 2013 are accepted, conviction and sentences awarded to both the appellants are set aside and they are acquitted of the charge of qatl-e-Amd. Muhammad Irfan, appellant is in jail. He be released forthwith if not required to be detained in any other case. Mudassar Hayat, appellant is on bail after suspension of his conviction and sentence by this Court. He is discharged of his bail bonds.
21. As a sequel of above discussion, Murder Reference No. 427 of 2013 is answered in negative. Sentence of death awarded to Muhammad Irfan, convict is not confirmed.