SADIQ MAHMUD KHURRAM, J.---The appellant namely Haq Nawaz son of Ameer was tried by the learned Additional Sessions Judge, Mianchannu, District Khanewal, in case FIR No,403 of 2011 dated 23.09.2011 registered at Police Station Saddar Mianchannu, District Khanewal in respect of offences under Sections 302, 376, 365-B and 34, P.P.C. for committing the Qatl-i-Amd of Muhammad Sharif (deceased), brother of the complainant and abducting Mst. Kausar Bibi. The learned trial court vide judgment dated 30.08.2014 convicted Haq Nawaz (convict) and sentenced him as infra: i) Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Sharif (deceased) and directed to pay Rs,3 Lac as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased. The convict was ordered to be hanged by his neck till dead. ii) Imprisonment for life under section 365-B, P.P.C. with a fine of Rs,50,000/- and in default of payment of fine directed to undergo Simple Imprisonment for six months."
The appellant was, however, acquitted of charge under section 376, P.P.C. by the learned trial Court.
2. Feeling aggrieved, Haq Nawaz son of Ameer (convict) lodged Criminal Appeal No, 345 of 2014 against his conviction and sentence. The learned trial court submitted Murder Reference No,70 of 2014 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellant Haq Nawaz son of Ameer. We intend to dispose of the Criminal Appeal No,345 of 2014 and Murder Reference No,70 of 2014, through this single judgment.
3. Precisely the facts necessary, as divulged in the statement of Zawar Hussain (PW-2) are as under:-- "On 23.9.2011 at about 5.00 p.m., I along with M. Yousaf, Siddique, who are my relative were coming on motorcycle towards my chak No,94/15L while M. Sharif deceased and Kousar Bibi on another motorcycle were also coming with me, the said motorcycle bearing. No,5501/ VRN, after having met with our relatives..
Muhammad Sharif deceased and Kousar Bibi were ahead of us for about distance of 02-Kanals. When we reached near chak No,94/More, suddenly two motor bikes arrived there duly driven by Haq Nawaz accused and second bike by three unknown accused persons. Accused Haq Nawaz struck his motorcycle with the motor bike of Sharif deceased who fell down with his motorcycle. Haq Nawaz raised lalkara that Kousar Bibi be abducted.
At this Sharif deceased scuffled with accused Haq Nawaz. Accused Haq Nawaz gave blow of pistol 30-bore to Sharif who became injured. During this resistance of Sharif deceased, accused Haq Nawaz made a fire shot with his pistol which hit at the left side of the chest of Sharif deceased through and through and Sharif deceased fell down on the ground. Then I along with Siddique and Yousaf stepped forward to rescue the deceased Shariif but the accused threatened us of dire consequences. All the said four accused persons abducted Kousar Bibi forcibly for zina bil-jabar on motorcycle of Haq Nawaz and fled away from the spot towards chak No,94/15L.
One of the shoes of Kousar Bibi and the motor bike of deceased Sharif remained at the spot.I along with the PWs witnessed the occurrence within my view. We did not go near the deceased due to threats of accused persons. When we reached near the Sharif, he succumbed to injuries at the spot. I appointed Yousaf and Siddique near the dead body of Sharif for protection and went back to the Police Station/Chowki Jindiali Bangla.
The motive behind the occurrence is that the accused Haq Nawaz had an evil eye on Kousar Bibi who along with other co-accused persons in furtherance of their common intention, committed Qatl-i-Amd of my brother Sharif and abducted Kousar Bibi for zina bil-Jabar."
On the written application (Ex.PB), formal FIR (Ex.PB/1 ) was got recorded by Muhammad Latif SI (PW-8).
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant was sent to face trial. The learned trial court framed charges against the appellant on 22.02.2012 to which he pleaded not guilty and; the learned trial court proceeded to examine the prosecution witnesses.
5. The prosecution in order to prove its case got recorded statements of twelve witnesses. Zawar Hussain (PW- 2) and Muhammad Yousaf (PW-3) gave evidence regarding the ocular account. Talib Hussain (PW-1) identified the dead body of the deceased and also witnessed the taking into possession the last worn clothes of the deceased vide recovery memo (Exh.PA). Muhammad Amin 368/C (PW-4) stated that on 07.10.2011 Muhammad Ashraf (PW-6) handed over to him two parcels said to contain blood stained earth and empties, which he took to the office Chemical Examiner, Lahore, and on 18.10.2011 took another parcel to the Chemical Examiner Lahore and on 26.10.2011 took a sealed parcel said to contain pistol to Office of Punjab Forensic Science Agency. Safarash Ali 885/C (PW-5) stated that on 24.4.2011 he escorted the dead body of the deceased for post mortem and after the same the Doctor handed over to him the last worn clothes of the deceased. Raja Usman Yousaf Draftsman (PW-9) stated that he prepared the scaled site plan of the place of occurrence (Exh.PP). Muhammad Abbas SI (PW-10) recorded the supplementary statement of the complainant that there was only one accused at the place of occurrence. Khalid Ishaq, Judicial Magistrate (PW-11) stated that on 12.10.2011 he recorded the statement of Kausar. Bibi under section 164, Cr.P.C (Exh.PQ). Muhammad Latif SI (PW-8) investigated the case from 23.09.2011 till 12.10.2011 and detailed the facts of his investigation in his statement before the learned trial Court.
6. The prosecution also got examined Dr. Muhammad Akbar CMO (PW-12) who was posted at THQ Hospital, Mianchannu and on 24.09.2011 conducted the postmortem examination of dead body of Muhammad Sharif (deceased) and prepared the post mortem report (Exh.PV). Dr. Muhammad Akbar CMO (PW-12) while examining Muhammad Sharif (deceased) observed as under: "Injury No,1: Fire arm wound 0.75cm x 0.75cm with inverted margins on front of left chest 7cm above and medial to left nipple going deep downwards, backwards and towards the right side. Blackening was present around the wound (wound of entry).
Injury No,2: Fire arm wound 0.8 cm x 0.8 cm with everted margins on back of right chest. 3.5 cm behind right axilla, going deep upwards, forwards and to the left side (wound of exit).
Injury No,1 was through and through with injury No,2.
Injury No,3: Lacerated wound 8cm x 2 cm x bone exposed on right side of head, 04cm above right ear.
Remarks by the Medical Officer: After complete external and internal examination of the dead body, I gave of the opinion that the cause of death in this case was hemorrhage and shock resulted by injury Nos, 1 and 2, inflicted by some fire arm weapon.
Injuries were ante-mortem and were sufficient to cause death in ordinary course of nature. Probable time between injury and death was immediate and between death and post mortem was six to seven hours approximately."
Probable time elapsed between injuries and death was fifteen minutes while during death and postmortem examination it was about six hours."
7. On 20.08.2014, the learned ADPP closed the prosecution evidence after tendering the reports of Serologist (Exh.PS), the report of Chemical Examiner (Exh.PR), report of DNA test (Exh.PT) and the report of Punjab Forensic Science Agency (Exh.PU).
8. After the closure of prosecution evidence, the learned trial court examined Haq Nawaz, appellant; under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he stated that he had been falsely involved and, the occurrence was committed by the in-laws and other relatives of Mst. Kausar Bibi. The appellant opted not to get himself examined under Section 340(2), Cr.P.C. however adduced a copy of the judgment passed by the learned trial court in case FIR No,23 of 2013 registered at Police Station Saddar Mianchannu dated 12.01.2013 under section 302, P.P.C. as (Exh.DA) as evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Mianchannu, convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsel for the appellants precisely is that whole case is invented and untrue.
That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. He further contended that the statements of Zawar Hussain (PW-2) and Muhammad Yousaf (PW-3) are not worthy of reliance as being chance as well as highly inimical witnesses. He also argued that the medical evidence was not supportive of the prosecution case. He also argued that the recoveries were result of fake proceedings. He finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
11. On the other hand, learned Additional Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. They further submitted that there was no untoward delay in lodging the FIR. Learned counsel further argued that the deceased died as a result of injuries suffered at the hand of the appellant. They further contended that the medical evidence also corroborated the statements of Zawar Hussain (PW-2) and Muhammad Yousaf (PW-3).
They further argued that the recovery of pistol 30 bore (Exh.P -8) from Haq Nawaz, appellant, also corroborated the ocular account. They contended that the appellant had motive to do away with the deceased and there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, they prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant, learned Additional Prosecutor General and the counsel for the complainant and with their assistance perused the record and evidence recorded during the trial carefully.
13. The whole prosecution case revolves around the statements of Zawar Hussain (PW-2) and Muhammad Yousaf (PW-3). These witnesses namely Zawar -Hussain (PW-2) and Muhammad Yousaf (PW-3) were related to each other. Their relationship with the deceased is also on record. Zawar Hussain (PW-2) admitted during his cross-examination that Muhammad Yousaf (PW-3) was his paternal cousin (Phoophizad) whereas the other ,witness Muhammad Siddique (not produced) was his; maternal cousin (Mamoonzad). Zawar Hussain (PW-2) further stated in his cross-examination that the witnesses namely Muhammad Yousaf (PW-3) and Muhammad Siddique (not produced) and himself were not the residents of the place of occurrence and were resident of chak No,49/15-L which was at a distance of 5-6 kilometers away from the place of occurrence which was chak No,93/15-L. It is an admitted position that none of the prosecution witnesses namely Zawar Hussain (PW-2), Muhammad Yousaf (PW-3) and Muhammad Siddique (not produced) had their residences or their houses at the place of occurrence. They were all "chance witnesses". We have also perused the scaled site plan (Exh.PP) as prepared by Raja Usman Yousaf draftsman (PW-9) and un-scaled site plan of the place of occurrence (Exh.PM) as prepared by Muhammad Latif SI (PW-8) and find that neither any house nor any shop belonging to the three eye-witnesses is marked in the same. A perusal of the above mentioned site plans (Exh.PP and Exh.PM) also reveals that the occurrence had not taken place on the road as claimed by the eye-witnesses but has rather taken place in the cotton crop of one Javaid. The blood stained earth as well as the empty was also taken into possession from the said cotton crop belonging to the said Javaid Muhammad Latif SI (PW-8) admitted during cross-examination that when he reached the place of occurrence, the dead body of the deceased was lying in the cotton crop and it was taken into possession from the said cotton crop. It was further admitted by Muhammad Latif SI (PW-8) that he had collected the blood stained earth from the cotton crop and the empty was also lying in the said cotton crop. He also stated that neither the dead body was lying on the road nor he found any blood on the said road. This has laid bare the claim of the eye-witnesses that the occurrence had taken place on a road. During the investigation of the case and during the trial the said Javaid never joined the said proceedings. A perusal of the above mentioned site plans (Exh.PP and Exh.PM) reveals that the place of occurrence was surrounded by the cotton crop of Javaid, Ghaffar and Muhammad Shafi. As mentioned above, Muhammad Latif SI (PW-8) Investigating Officer did not join into investigation the said Javaid, Ghaffar and Muhammad Shafi. Furthermore the claim of the three eye-witnesses namely Zawar Hussain (PW 2), Muhammad Yousaf (PW-3) and Muhammad Siddique (not produced) was that at the time of occurrence they were travelling on a motorcycle together. The said motorcycle under the use of the said three eye-witnesses was never produced before the Investigating Officer. We have also observed that at the time of first visit of the place of occurrence the Investigating Officer namely Muhammad Latif SI (PW-8) did not find any motorcycle as being under the use, of the said three eye-witnesses at the spot. The said motorcycle under the use of the three eye-witnesses was neither produced before the Investigating Officer during the investigation nor before the learned trial Court. In absence of physical proof of the reason for the presence of the witnesses at the crime scene the same cannot be relied upon. In this respect reliance is placed on the case of Muhammad Rafia v.
State (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the occurrence, but on the day of occurrence stated to be present near the spot as they were working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of Nasrullah alias Nasro. v. The State (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:-- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."
14. A chance witness, in legal sense, is the one who claims to be present at the place of occurrence at the time of occurrence though his presence there was a sheer chance as in ordinary course of business. We have carefully scrutinized the statements of Zawar Hussain (PW 2), Muhammad Yousaf (PW-3), the eye-witnesses of the case. They, by their own admission, were chance witnesses. While presenting the written application (Exh.PB) for registration of FIR, the reason given by Zawar Hussain (PW-2) for being present at the place of occurrence was that he along with the witnesses and the deceased were returning to their houses after meeting with their relatives. During cross-examination Zawar Hussain (PW-2) explained that on the day of occurrence he had gone to one Abdul Rehman to talk about proposals regarding the marriage between the daughter of Abdul Rehman with the son of Siddiqui (given up PW) and the daughter of Sharif deceased with the son of Abdul Rehman. As is evident from the perusal of the record, neither Abdul Rehman nor Siddique nor the son of Siddique nor the daughter of Abdul Rehinan joined the investigation of the case or appeared as witnesses during the trial. The reason, as given by the eye-witnesses for their presence at the spot, is not on the improbable but also unproved. Furthermore, if the marriage proposal has to be discussed between the daughter of the deceased Sharif and son of Abdul Rehman then there was no reason for Kausar Bibi to accompany her brother-in-law, the deceased It was admitted by Zawar Hussain (PW-2) during cross-examination that before leaving for the house of Abdul Rehman wife of the deceased Zarina Bibi was present at the house of the deceased. If the wife was present, then what was the reason for the sister-in-law of the deceased namely Kausar Bibi to accompany her brother-in-law Zawar Hussain (PW-2) also admitted during cross-examination as under:-- "It is correct that in the days of this occurrence Mst. Kausar Bibi had been living with her parents."
Zawar Hussain (PW-2) stated during cross-examination that Mst. Kausar Bibi was the daughter of Allah Ditta and sister-in-law of the deceased. Zawar Hussain (PW-2) further admitted during cross-examination as under: "I even not having [sic] the terms with Allah Ditta son of Kalu to the extent of participating in marriage parties or funeral ceremonies."
It is strange that if Zawar Hussain (PW-2) was not even on visiting terms with the father of Mst. Kausar Bibi, then how Mst. Kausar Bibi was allowed to accompany him along with his brother and other relatives.
Furthermore Muhammad Yousaf (PW-3) during cross-examination stated as under: "We went to the house of Abdul Rehman for floating proposal of rishta. Allah Ditta, the father of Kausar Bibi was present in his house on that day, but we did not take him with us for the purpose of floating rishta. Mahar, the husband of Kausar Bibi was also not taken by us. Zafar, father-in-law of Kausar Bibi was also not with us on that day for the aforesaid purpose."
It is strange that in presence of elder male relatives, Kausar Bibi who was within the prohibited degree of the deceased was allowed to accompany him on a motorcycle to seek marriage proposals of relatives who were not directly related to her. We are of considered view that the witnesses have failed to establish the reason for their presence at the place of occurrence at the time of occurrence.
15. We have also noticed with great concern that despite the fact that the deceased was the real brother of the complainant Zawar Hussain (PW-2) and cousin of Muhammad Yousaf (PW-3) and Siddique (given up PW) even then Zawar Hussain (PW-2), Muhammad Yousaf (PW-3) and Siddique (given up PW) neither identified the dead body of the deceased at the time of post mortem examination nor they were mentioned as being present near the dead body at the time of preparation of the inquest report (Exh.PL) by Muhammad Latif SI (PW-8). As mentioned above, the dead body of the deceased was got identified by Talib Hussain (PW-1) and Muhammad Iqbal (not produced) and they were also mentioned in column No,4 of the inquest report (Exh.PL) as being the ones who identified the dead body. We have also noted with great concern that in the said inquest report (Exh.PL) the persons who were present near the dead body were named as Mushtaq Ahmad and Muhammad Hanif (both not produced as witnesses). Had the witnesses namely Zawar Hussain (PW-2) and cousin of Muhammad Yousaf (PW-3) and Siddique (given up PW) been present, then their names would have found mention in the above mentioned documents. It is trite that men may lie but documents do not. This omission attacks at the roots of the case of the prosecution and denudes the untruthful and false claim of the said witnesses to have been present at the place of occurrence at the time of occurrence. The witnesses were under an onus to provide convincing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptable. However the statements made by the said eye-witnesses have failed to receive any independent corroboration or support. These witnesses have failed to prove their presence at the spot at the time of occurrence.
16. We have also observed that Mst. Kausar Bibi was not produced as a witness in this case till she remained alive. Learned counsel for the appellant has pointed out that the complainant was directed to produce Mst.
Kausar Bibi as a witness on numerous occasions but he failed to do the same. Furthermore we have noticed that Zawar Hussain (RW-2) during cross-examination submitted that he did not known whether Mst. Kausar Bibi was alive or had passed away at the time of recording of the said statement. Zawar Hussain (PW-2) also denied that the case of murder of Mst. Kausar Bibi was registered at Police Station Saddar Mianchannu wherein her uncles and her brother were the accused. He further denied that the said case was got lodged by Allah Ditta father of Mst. Kausar Bibi. The matter of fact is that the said witness namely Mst. Kausar Bibi was not produced as a witness during the trial. Illustration (g) of the Article 129 of the Qanun-e-Shahadat Order, 1984 allows the courts to presume that evidence which could be and is not produced would, if produced, be un-favourable to the person who withholds it. We, thus, are drawing a presumption under Article 129 of the Qanun-e-Shahadat Order, 1984 that had this witness namely Mst. Kausar Bibi appeared before the court, she would have deposed against the statements of Zawar Hussain (PW-2) and Muhammad Yousaf (PW-3) and that was the reason for not producing her before the learned trial court as a witness.
17. We have also observed that the time of occurrence as mentioned by Zawar Humsain (PW-2) was just after the call of Maghrib prayers. Whereas Muhammad Yousaf (PW-3) stated that the occurrence had taken place at Assar time and further stated during cross-examination that the sun had set at about 1/1.30 hours after the Assar prayer and the occurrence had not taken place at about the Maghrib prayers time or after the same.
These statements reveal that both the witnesses namely Zawar Hussain (PW-2) and Muhammad Yousaf (PW-3) contradicted each other as to the time of occurrence. The prosecution case was further dented by the statement by Muhammad Latif SI (PW-8) who stated that the sun had set when the occurrence had taken place and further stated that the occurrence had not taken place at "Assar waila". If the occurrence had taken place after the sun had set as stated by Muhammad Latif SI (PW-8) then it was incumbent upon the prosecution to prove that sufficient light was present at the place of occurrence at the time of occurrence for the witnesses to make a positive identity of the assailant. Muhammad Latif SI (PW-8) during his investigation did not take into possession any article so as to prove that sufficient light was present at the place of occurrence at the time of occurrence for the witnesses to make a positive identity of the assailant. Zawar Hussain (PW-2) had claimed that they had witnessed the occurrence from a distance of one kanal (90x50 feet) in absence of any claim that a source of light was available at the crime scene. The prosecution failed to establish the fact of such availability of light source and is absence of their inability to do so, we cannot presume the existence of such a light source.
Reliance is placed on the case of Gulfam and another v. The State (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:-- "Courts below had incorrectly presumed that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot."
Furthermore at the time of presenting the written application (Exh.PB) as well as in the statements before the learned trial Court both the eye-witnesses namely Zawar Hussain (PW-2) and Muhammad Yousaf (PW-3) claimed that there were three other accused besides the appellant present at the place' of occurrence, However, during the course of trial prosecution produced Muhammad Abbas SI (PW-10) who stated as under: "On 06.3.2013, 1 was posted at P.S. Saddar Mianchannu as S.I. On the same day, Zawar son of Baaq Ali, the complainant of this case, got recorded his supplementary statement under section 161, Cr.P.C. stating that actually on the day of this occurrence, single accused was present at the spot and that no unknown person or other person was present during the occurrence."
This witness Muhammad Abbas SI (PW-10) was produced by the prosecution itself and his testimony remains unchallenged. If indeed Zawar Hussain (PW-2) had made such a statement as deposed to by Muhammad Abbas SI (PW-10), then no worth can be attached to the statements of Zawar Hussain (PW-2) and Muhammad Yousaf (PW-3).
18. We have also observed that Dr. Muhammad Akbar (PW-12) during cross-examination opined that there was no possibility that at the time of occurrence the assailant and the deceased were facing each other and further opined that there was no possibility that the said injury could have been caused during the scuffle between the deceased and the assailant. Dr. Muhammad Akbar (PW-12) further opined that there were no corresponding holes on the shirt of the deceased, therefore, it could be presumed that the deceased was not wearing the shirt at the time of received the said injury. These opinions are directly in contrast to the ocular account. The opinion of Medical Officer is to be given precedence over the statements of witnesses.
19. Learned Additional Prosecutor General along with the learned counsel for the complainant have laid much stress that Haq Nawaz (appellant) had the motive to do away with the deceased. The motive behind the occurrence as mentioned by Zawar Hussain (PW-2) was that as under:-- "The motive behind the occurrence is that Haq Nawaz had an evil eye on Kousar Bibi who along with other co- accused persons in furtherance of their common intention, committed Qatl-i-Amd of my brother Sharif and abducted Kousar Bibi for zina bil Jabar."
During the investigation of the case as well as the trial Kausar Bibi did not appear as a witness as long as she remained alive. Furthermore, Muhammad Latif SI (PW-8), the Investigating Officer of the case, admitted, during, cross-examination as under:-- "I have not investigated the motive of this occurrence. Neither I recorded the statement of any person regarding motive nor any version appeared before me to prove the motive."
Similarly, Muhammad Yousaf (PW-3) did not depose any thing with regard to the motive of the case. Except for Zawar Hussain (PW-2) prosecution did not produce evidence of any other person to establish the motive of the case. Even otherwise Kausar Bibi was withheld as a witness and was not produced before the court till she remained alive which proves that had she appeared before the learned trial Court she would have deposed against the prosecution case. We are convinced in our mind that the prosecution has miserably failed to establish motive of the occurrence. A tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan in the case of Muhammad Javed v. The State (2016 SCMR 2021) has held as under:-- "The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case."
20. Learned Deputy Prosecutor General along with the learned counsel for the complainant have also relied upon the recovery of 30-bore pistol (Exh.P8) from Haq Nawaz, appellant. A perusal of the report of Forensic Science Laboratory, Punjab (Exh. PU) reveals that one crime empty of 30 bore and one pistol of 30 bore were received at Punjab Forensic Science Agency on the same day that is 15.12.2011. The august Supreme Court of Pakistan has declared inconsequential any recovery when the weapon and the crime empties are sent together for analysis. The august Supreme Court of Pakistan in the case of Nasrullah alias Nasro v. The State (2017 SCMR 724) at page 727 has held as under.-- "The alleged recovery of a pistol from the appellant's possession during the investigation was legally inconsequential because the report of the Forensic Science Laboratory brought on the record shows that the recovered pistol and the secured crime-empties had been received by the Forensic Science Laboratory together on one and the same day".
21. The only other piece of evidence left to be considered by us is the medical evidence but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore, the appellant's conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled "Hashim Qasim and another v. The State" (2017 SCMR 986) has enunciated the following principle of law:-- "The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."
22. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Haq Nawaz son of Ameer, appellant, in the present case. It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent mind is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of Muhammad Mansha v. The State (2018 SCMR 772) has enunciated the following principle:-- "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muhammad Akram v. The State (2009 SCMR 230) in which it has been observed in paragraph No,13 of page 236 as infra:-- "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 circumstances which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would fie entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
23. For what has been discussed above Criminal Appeal No,345 of 2014 filed by Haq Nawaz son of Ameer appellant is accepted and the conviction and sentences of the appellant awarded by the learned trial court through the impugned judgment dated 30.08.2014 are hereby set-aside. Haq Nawaz son of Ameer appellant is ordered to be acquitted. He is directed to be released forthwith if not required in any other case.
24. Murder Reference is answered in Negative and the death sentence of Haq Nawaz son of Ameer appellant is Not Confirmed.