ABDUL SAMI KHAN, J.---Muhammad Saleem appellant was tried along with Shaukat Ali and Bahadur Ali co-accused in case FIR No.475/2008 dated 23.07.2008 for the offences under sections 302, 34 P.P.C., registered at Police Station Saddar Tandlianwala, District Faisalabad by the learned Additional Sessions Judge, Tandlianwala who vide judgment dated 31.10.2011, convicted Muhammad Saleem appellant under section 302(b), P.P.C. for the murder of Zakir deceased and sentenced him to death. He was also directed to pay compensation to the tune of Rs.300,000/- under section 544-A, Cr.P.C. to the legal heirs of the deceased, recoverable as arrears of land revenue and in default thereof to further undergo simple imprisonment for six months.
2.Muhammad Saleem appellant has challenged his conviction and sentence through Criminal Appeal No.362-J of 2011 and the learned trial court has sent a Reference under section 374, Cr.P.C. for confirmation or otherwise of death sentence of the appellant, which has been numbered as Murder Reference No.31 of 2012. Since both these matters have arisen out of judgment dated 31.10.2011, we propose to decide the same together through this single judgment.
3.The occurrence in this case was reported to the police by Zahoor Ahmad complainant through written application (Ex.PC), which was transcribed into FIR No.475/08 (Ex.PC/2) by Saleem Ullah Sub-Inspector/Duty Officer, Police Station Saddar Tandlianwala. Brief facts of the case as narrated by Zahoor Ahmad complainant in his application (Ex.PC) are that he was resident of Dabuki Wan, Police Station Gogera and was a farmer. On 22.07.2008 at about 08:00 p.m. he along with his son Zakir came to the house of Bahadur, resident of Chak No.411/GB. At about 10:30 p.m. the complainant along with his son Zakir Bahadur Ali and Wali Muhammad proceeded to the house of Zohray Khan, resident of New Abadi Chak No.411/GB in connection with some piece of work. When they reached in the agricultural land of Haji Iqbal, suddenly Saleem and Shaukat along with two unknown persons while armed with firearm weapons emerged from bushes alongside boundary of watercourse. Shaukat raised lalkara to teach a lesson to Zakir for abusing Saleem, upon which Saleem made fire shot with pistol .30 bore hitting Zakir on front of his chest. Zakir started running and then Shaukat made second fire shot which hit him on back and he fell on the ground. The complainant along with Wali Muhammad and Bahadur Ali ran from the place of occurrence to save their lives and hidden themselves in bushes. When the accused decamped from the place of occurrence, the complainant along with his companions came to see Zakir who had already succumbed to the injuries. The complainant informed his relatives about the occurrence, who also reached there.
4. After registration of FIR, investigation of the case was conducted by Muhammad Jahangir Khan Inspector (PW13) and Faiz Ahmad S.I. (PW-14) and after completion of investigation, report under section 173 Cr.P.C. was submitted before the court. At the commencement of trial, learned trial court framed charge under section 302/34, P.P.C. against the appellant and his co-accused to which they pleaded not guilty and claimed trial. To prove its case, the prosecution produced as many as fifteen witnesses during trial before the trial court and the trial court also recorded statement of one court witness. Ocular account was furnished by Zahoor Ahmad complainant (PW-6) and Wali Muhammad (PW-7); Muhammad Mansha constable (PW-10) and Muhammad Akram constable (CW-1) are attesting witnesses of recovery of pistol .30 bore (P6); Muhammad Jahangir Khan Inspector (PW-13) and Faiz Ahmad, S.I. (PW-14) are the investigating officers of this case and they testified about the investigation conducted by them. Dr.Azmat Abbas Khichi, Medical Officer (PW-1) on 22.07.2008 at about 11:30 a.m. conducted postmortem examination on the dead body of Zakir deceased and found the following injuries:-- 1.A firearm lacerated wound 1/2 cm x 1/2 cm on front of left upper chest 3 cm below the middle 1/3rd of left clavicle bone. Margins were inverted, slight burning was present. It was wound of entry.
2.A firearm wound 1-1/2 x 1-1/2 cm on back of left abdomen 5-1/2 cm away from midline with averted margins. It was wound of exit.
According to the doctor, injury No.1 was sufficient in ordinary course of nature to cause death. The injury was ante-mortem and caused by firearm weapon. Probable time that elapsed between injuries and death was about 30 to 40 minutes and between death and postmortem examination was about 8 to 12 hours. Ex.PA is the carbon copy of postmortem report of Zakir deceased. After placing on record the report of Chemical Examiner (Ex.PV) and the report of Serologist (Ex.PW), the prosecution closed its evidence. After recording statement of Muhammad Akram constable as CW-1, the learned trial court was pleased to record statements of accused under section 342, Cr.P.C. wherein they professed their innocence and pleaded false implication in the case. They did not opt to record their statements under section 340(2), Cr.P.C. nor did they produce any witness in their defence.
5. At the end of trial, after thrashing entire evidence and evaluating the arguments advanced by learned counsel for the parties in support of their respective versions, the learned trial court found the prosecution's case against Muhammad Saleem appellant to have been proved beyond any reasonable doubt, convicted and sentenced him as mentioned and detailed above, while his co- accused Shaukat Ali and Bahadur were acquitted of the charge by the learned trial court finding the case of prosecution doubtful to their extent, hence, this appeal and connected Murder Reference before this Court.
6. Learned counsel for the appellant contend that the appellant has been falsely roped in this case; it was an unseen occurrence and the alleged eye-witnesses were not present at the spot at the time of occurrence, which is the only reason that the FIR was lodged with considerable delay of more than eight and half hours; there are lot of discrepancies between statements of prosecution witnesses recorded by the learned trial court during the trial, so the conviction and sentence of the appellant cannot be maintained on the basis of their statements; as per FIR, there are three alleged eye-witnesses of the incident including the complainant but later on Bahadur Ali was made an accused and ultimately he as well as co-accused Shaukat Ali were acquitted of the charge which facts create serious doubt in the prosecution version; the role assigned to Shaukat Ali co-accused (since acquitted) is not distinguishable from that of the appellant as one firearm injury is attributed to each of them, so the appellant also deserves acquittal on the basis of rule of consistency; even if the presence of the alleged eyewitnesses is established, the identity of the actual culprit was not possible in the absence of any source of light; the medical evidence is totally contradicting and falsifying the ocular account; no valid motive has been assigned to the appellant by the complainant for the murder of Zakir deceased; pistol 30 bore allegedly recovered from the appellant cannot be allowed to render any help to the case of prosecution, because, it is legally inconsequential; the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; thus, this appeal be accepted and the appellant be acquitted of the charge.
7. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes the submissions made by learned counsel for the appellant and submits that although FIR was registered with the delay of more than eight and half hours, yet it is not the conclusive proof of innocence of the appellant; the appellant is named in FIR with specific role of causing firearm injury to the deceased and the ocular account is duly corroborated by medical evidence as the injury attributed to the appellant was duly observed by the doctor during postmortem examination on the dead body of the deceased; the eye-witnesses were not expert enough to ascribe exact distance between the appellant and the deceased at the time of occurrence; the source of light is also duly explained by Zahoor Ahmad complainant (PTV-6) during his cross examination; apart from confidence inspiring evidence of the eye-witnesses, there is strong corroborative evidence on the file of this case in the shape of weapon of offence recovered on the pointing out of appellant, the report of Chemical Examiner (Ex.PV) and that of Serologist (Ex.PW); the presence of the appellant at the spot at the time of occurrence is not denied by the defence and the motive behind the occurrence is also mentioned in FIR (Ex.PC/2) which stood proved during trial; the complainant had no enmity with the appellant to falsely involve him in the murder of his real son and the prosecution witnesses had also no reason to falsely depose against the appellant during trial; the prosecution has successfully proved its case and there is no mitigating circumstance in favour of the appellant, so his sentence of death be maintained, appeal be dismissed and Murder Reference be answered in affirmative.
8.We have considered the arguments advanced by learned counsel for the appellant, learned Deputy Prosecutor General and learned counsel for the complainant and have also gone through the record with their able assistance.
9.The unfortunate incident in which Zakir son of Zahoor Ahmad complainant (PW-6) lost his life, as per FIR (Ex.PC/2), took place on 21.07.2008 at 10:30 p.m. in the area of Chak No.411/GB within the jurisdiction of Police Station Saddar Tandlianwala, District Faisalabad. The matter was allegedly reported to the police by Zahoor Ahmad complainant (PW-6) on the next morning i.e. 22.07.2008 at 06:45 a.m. through written application (Ex.PC), in consequent whereof FIR (Ex.PC/2) was registered on the same day at 07:05 a.m. There is a delay of eight hours and fifteen minutes in reporting the matter to the police and Zahoor Ahmad complainant, who is real father of Zakir deceased and claimed his presence at the spot, has no plausible justification for this inordinate delay particularly in the circumstances when distance between the place of occurrence and the police station is just five kilometers. In FIR (Ex.PC/2), Zahoor Ahmad complainant mentioned that he informed his relatives about the incident, who gathered at the spot, but it is very strange that he did not bother to inform the police about the occurrence till the next morning. The unnatural conduct shown by the complainant depicts about his absence from the place of occurrence and keeping in view the facts and circumstances of the case, possibility cannot be ruled out of B consideration that owing to his relationship with the deceased, he was summoned at the spot to become complainant and he moved application (Ex.PC) after examining the dead body. Even otherwise, acquittal of Shaukat Ali and Bahadur co-accused by the learned trial court itself shows that the FIR has been recorded after due deliberation and consultation and in these eventualities, the prosecution evidence itself calls for minute and careful scrutiny.
10.The prosecution case against the appellant is based on ocular account, medical evidence, motive and the recovery of pistol .30 bore, allegedly effected from him. Firstly we would like to weigh the ocular account offered by Zahoor Ahmad complainant and Wali Muhammad in the form of statements made before the learned trial court as PW-6 and PW-7 respectively. We have scrutinized their statements and observed that although they attributed the role of causing firearm injury on the chest of Zakir deceased to the appellant, yet we are afraid that their statements are not free of material discrepancies so as to rely upon the same. The version of Zahoor Ahmad complainant (PW-6) from the very beginning was that as soon as his son Zakir sustained firearm injuries, he died at the spot and same was the stance of Wali Muhammad (PW-7), but Dr. Azmat Abbas Khichi (PW-1)while conducting postmortem examination on the dead body of the deceased observed otherwise as according to him, there was a duration of 30/40 minutes between receipt of injuries and the time of death of the deceased. The prosecution is handicapped in answering the question that if Zahoor Ahmad complainant (PW-6) and Wali Muhammad (PW-7) were present at the spot, then why they did not shift the deceased while he was in injured condition to any nearby hospital so as to save his life. This, of course, raises suspicion qua the presence of alleged eyewitnesses at the spot at the time of occurrence. Zahoor Ahmad complainant (PW-6) failed to mention any source of light in which he and Wali Muhammad (PW-7) identified the assailants, not only in FIR (Ex.PC/2) but his examination-in-chief is also silent in this regard, whereas it is admitted position of the case that the occurrence took place at 10:30 p.m. and darkness had prevailed at that time. Same is the position of Wali Muhammad (PW7) who too did not mention the source of light at the place of occurrence. It was only once stated by Zahoor Ahmad complainant (PW-6) during his cross-examination that he and the other alleged eye- witness identified the appellant in the light of bulbs of a "Gatta" factory, but the scaled site plan (Ex.PB) as well as the unsealed site plan (Ex.PS) do not show any such factory near the place of occurrence and the same (Ex.PB and Ex.PS) also do not disclose the availability of any source of light at the spot. On the other hand, the distance between the assailants and the deceased was 6 karam (33 feet), whereas distance between the alleged eye-witnesses and the deceased was 10 karam (55 feet) and as per scaled site plan (Ex.PB), Zahoor Ahmad complainant (PW-6) and Wali Muhammad (PW-7) were at a distance of 7 karam (about 38/39 feet) from the assailants when they allegedly identified them. We are unable to understand as to how Zahoor Ahmad complainant (PW-6) and Wali Muhammad (PW-7) successfully identified the appellant from such a considerable distance that too in the darkness of night. There is yet another fact which creates serious doubt about the presence of Zahoor Ahmad complainant (PW-6) and Wali Muhammad (PW-7) at the spot at the time of occurrence as according to the version of Zahoor Ahmad complainant (PW-6) and Wali Muhammad (PW-7), Muhammad. Saleem appellant made fire shot with pistol .30 bore at Zakir deceased from a distance of 6 karam (33 feet) which hit him on front of chest and this injury, though, was observed by Dr. Azmat Abbas Khichi (PW-1) during postmortem examination on the dead body of the deceased, but he (PW-1) also observed burning around this injury and he (PW-1) categorically stated that this injury has been caused from a distance of about 3 feet. Similarly, the injury attributed to Shaukat Ali co-accused (since acquitted) was observed by the doctor (PW-1) as an exit wound which also falsify the version of Zahoor Ahmad complainant (PW-6) and Wali Muhammad (PW-7). These glaring contradictions create doubt in the prosecution story set forth in the FIR at one hand and also leads a way to observe by us on the other hand that the eye-witnesses were not present at the spot.
11. Apart from the above, we have observed that as per narrations of FIR (Ex.PC/2), there are three eye-witnesses of the occurrence i.e. Zahoor Ahmad complainant, Bahadur Ali and Wali Muhammad, but later on, the prosecution transposed said Bahadur Ali as an accused in this case.
No plausible' justification has been advanced by the prosecution as to why Bahadur Ali was transposed from being an eye-witness to an accused and in this eventuality, possibility cannot be ruled out of consideration that said Bahadur Ali was not supporting the case of prosecution.
12.Insofar as medical evidence is concerned, keeping in view our discussion in the preceding paragraph, we are of the considered view that medical evidence is in direct conflict with the ocular account, because, according to the alleged eye-witnesses, the deceased sustained two firearm injuries whereas medical evidence in this case disclosed that only one firearm injury was received by the deceased while the other was an exit wound. Similarly the doctor (PW-1) observed burning around the injury sustained by Zakir deceased during the occurrence, whereas according to the prosecution case, this injury was caused from a distance of 33 feet. Even otherwise medical evidence is only a supportive piece of evidence. It cannot disclose the name of the accused in any manner whatsoever that who has caused the injuries to the deceased person. It is settled law that medical evidence can only corroborate weapon used during the occurrence but it cannot describe the faces of assailants and is not sufficient to convict an accused in a murder case. Reference in this respect may be made to the case of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others"
(PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCM R 1410) and "Altaf Hussain v.
Fakhar Hussain and another" (2008 SCM R 1103). In the absence of trustworthy and confidence inspiring ocular account, medical evidence does not bear any significance.
13.As per prosecution version, the deceased had extended abuses to the appellant prior to the incident due to which the appellant and his co-accused murdered him. We have observed that the prosecution case is absolutely silent in this regard and it even does not disclose the name of any witness in whose presence the deceased had abused the appellant. Mere mentioning in FIR (Ex.PC/2) that the deceased had extended abuses to the appellant which led to this unfortunate occurrence is not enough to connect him with the alleged occurrence.
14.We are conscious of the fact that during investigation of this case, the investigating officer has shown the recovery of pistol .30 bore (P6) allegedly effected from the appellant vide memo Ex.PQ.
In this regard, neither crime. 'empty was collected by the investigating officer during spot inspection nor pistol 30 bore (P6) was sent to the Forensic Science Laboratory to adjudge whether it was in working condition or not and also whether it was the same weapon with which the deceased was done to death. In the absence of report of the Forensic Science Laboratory, the recovery of pistol .30 bore (P6) becomes inconsequential and does not render any help to the case of prosecution.
15.Apart from the above, Bahadur Ali and Shaukat Ali co-accused of the appellant, particularly Shaukat Ali accused who had been duly named by Zahoor Ahmad complainant (PW-6) in FIR (Ex.PC/2) and was given specific role of causing firearm injury on the back of Zakir deceased, have already been acquitted by the learned trial court. Neither complainant nor the State opted to prefer appeal against the acquittal of said accused and judgment of learned trial court to that extent has attained finality. In the circumstances when the evidence to the extent of acquitted co- accused has already been disbelieved by the learned trial court, it cannot be believed against the appellant until and unless the same is supported by any independent corroborative piece of evidence which is very much lacking in this case as we have not been able to find out any such evidence on the record. Reliance can be placed on the case reported as "Ghulam Sikandar and another v. Mamraz Khan and others" (PLD 1985 SC 11), wherein, at page 23, the learned Apex Court has been pleased to hold as under:-- "It is often said that the principle falsus in uno falsus in omnibus is not applicable in Pakistan. The same principle has been described in some cases, slightly differently; namely, that the testimony of an eye-witness should not be treated as indivisible although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is hall-mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad v. Crown (1) propounded by late Chief Justice Muhammad Munir that, where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused..................
The Hon'ble Supreme Court of Pakistan, in case of "Iftikhar Hussain v. The State" 2004 SCM R 1185 has been pleased to hold as under:-- It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e. sifting of grain out of chaff i.e. if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the Superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758).............
In case of "Akhtar Ali and others v. The State" 2008 SCM R 6 at page 12 of the judgment, the following principles have been highlighted by the learned Apex Court:-- It is a settled law that eye-witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration. See Ghulam Muhammad's case (PLD 1987 SC 32), Sheral alias Sher Muhammad's case (1999 S MR 697) and Ata Muhammad's case (1995 SCMR 599). It is also a settled law that credibility of the ocular evidence is not divisible. See Faiz Bakhsh's case (PLD 1959 PC 24), Nadia 's case (42 Cr.L.J. 53), Muhammad's case (PLD 1954 FC 84), Sher Bahadar's case (1972 SCMR 651) and Muhammad Afsar's case (PLD 1954 FC 171). It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, is credibility becomes doubtful on the well known principle of criminal jurisdiction that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses. See Hadi Bakhsh's case (PLD 1963 Kar. 805).
To fortify the above view, guidance has also been sought from the case of "Ghulam Mustafa and another v. State" 2009 SCM R 916, wherein, at page 529, the learned Apex Court of the country, has been pleased to hold as under:-- ".......... In our jurisdiction it is by now well established that the legal maxim falsus in uno falsus in omnibus is not a universal principle to be applied in all criminalcases. However, according to settled case law there are exceptions and if evidence on the record warrants a doubt in the credibility of such witnesses than indeed their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. In this connection reference can be made to the case of Muhammad Nawaz v. State (1969 SCMR 132), Shafoo v. State (1968 SCMR 719) and Allah Ditta v.
State (PLD 2002 SC 52)
In the present case, neither ocular account hold credence nor the same could find corroboration from anyindependent corner.
16. The learned counsel for the complainant has vociferously argued that the appellant has admitted his presence at the spot at the time of occurrence. In this regard, law is quite settled that it is none else but the prosecution who has to prove the guilt of an accused by standing on its own legs and mere admission on the part of an accused is not sufficient to fasten rope around his neck.
Onus to prove the guilt of an accused solely lies with the prosecution which is to he proved through cogent, reliable and confidence inspiring evidence. The Apex Court of the country has held in number of judgments that it is the prosecution which is required to prove its case against the accused beyond any shadow of doubt and the defence version is to be taken into consideration after evaluating the prosecution evidence to find out whether the same inspires confidence or not?
In this regard, we have been fortified by an illustrious pronouncement of the Hon'ble Supreme Court of Pakistan in case reported as "Ashiq Hussain v. The State" (PLD 1994 SC 879), wherein, at page 883, the learned Apex Court of the country has been pleased to observe as under:- "The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342 of Cr.P.C., statement under section 340(2) and the defence evidence. If the Court disbelieves / rejects / excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of contraventions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz, is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
The above view was affirmed by the Hon'ble Supreme Court of Pakistan in case of "Azhar legal v.
State" (2013 SCM R 383), wherein at Page 384, the Apex Court was pleased to hold as under:-- <i>"After hearing the learned counsel for the appellant and the learned Additional Prosecutor- General,Punjab appearing for the State and having gone through the record of the case with their assistance it has straightaway been observed by us that both the learned courts below had rejected the version of the prosecution in its entirety and had then proceeded to convict and sentence the appellant on the sole basis of his statement recorded under section 342, Cr.P.C. wherein he had advanced a plea of grave and sudden provocation. It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR 1139). The law is equally settled that the statement of an accused person recorded under section 342, Cr. P. C. is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad Tashfeen and others v. The State and others (2006 SCMR 577) and Faqir Muhammad and another v. The State (PLD 2011 SC 796). It is unfortunate that the Lahore High Court, Lahore had failed to apply the said settled law to the facts of the case in hand.
17. As a result of above discussion, we have come to an irresistible conclusion that the case of the prosecution against the appellant is of doubtful nature and his conviction and sentence cannot be maintained on the basis of such type of shaky and unreliable evidence. It is settled law that not many circumstances creating doubt in the prosecution story are required to acquit an accused rather single circumstance creating doubt is enough to extend benefit of same to the accused which too not as a matter of grace but as a matter of right. In the case of "Sher Bahadur and another v. The State" (1972 SCM R 651) the August Supreme Court of Pakistan has held as under:-- "(a) Penal Code (XLV of 1860), S. 302---Father and son injured with shot-guns by five persons--- Father succumbing to injuries and evidence of son as regards three accused disbelieved by trial court and High Court---Prudence, in circumstances, held, required that evidence of son being one by interested witness should have been accepted as against remaining two accused only if corroborated by some other reliable evidence".
Similarly in the case titled "Arif Hussain and another v. The State" (1983 SCM R 428), the august Supreme Court of Pakistan has laid down the . following principle:-- 302---Murder---Evidence--Benefit of doubt---Prosecution case not free from doubt---Charges not brought home to accused in manner required under law---Accused was given benefit of doubt and acquitted."
It is also well settled by now that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as "Muhammad Akram v. The State" (2009 SCM R 230), wherein, at page 236, the Hon'ble Supreme Court of Pakistan, held as under:-- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
(emphasis supplied)
The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored L while dispensing justice in accordance with law.
18. For the above reasons, this appeal is allowed and Muhammad Saleem appellant is acquitted from the charge of committing murder of Zakir deceased. He is behind the bars and shall be released forthwith if not required to be detained in any other case. Murder Reference is answered in