SADIQ MAHMUD KHURRAM, J.--The appellant namely Masrafeen was tried along with his co-accused namely Khadim Hussain (since acquitted) and Muhammad Mushtaq alias Iqbal and Muham mad Bilal (both since declared Proclaimed offenders) by the learned Additional Sessions Judge, Burewala, in case FIR No.98 of 2009 dated 14.04.2009 registered at Police Station Fateh Shah, Burewala, under Sections 302 / 301 / 148 / 149, P.P.C. for committing Qatl-i-Amd of Rasheed (deceased). The learned trial court vide judgment dated 14.3.2012 convicted the appellant Masrafeen under Section 302(b), P .P.C. and sentenced him as infra: "Life imprisonment under section 302(b), P. P. C.for committing Qatl-i-Amd of Rasheed Ahmad (deceased) and pay Rs.1 Lac as compensation under section 544-A, Cr. P. C. and in default thereof to further undergo six months of simple imprisonment."
Benefit of Section 382-B, Cr .P.C. was also been extended to the appellant.
The co-accused namely Khadim Hussain was however acquitted by the learned trial court. The other two co- accused namely Muhammad Mushtaq alias Iqbal and Muhammad Bilal were declared as Proclaimed Offenders, who absented themselves after the closure of prosecution evidence and before their examination under section 342, Cr .P.C. was recorded.
2. Feeling aggrieved, Masrafeen (convict) lodged Criminal Appeal No.277 of 2012 against his conviction and sentence.
3. Precisely the facts necessary , as divulged in the statement of Abdul Hameed (PW -5), are as under: "The deceased of the case Rasheed Ahmed was my real brother . We owned 22-Acres of land in Mauza Suldaira.
Out of the said land, 16-Acres of land was leased out to Muhammad lqbal alias Mushtaq and Muhammad Bilal accused. The remaining 6-Acres of land was cultivated by Rasheed Ahmed himself. On 12.04.2009, at about 10.00 a.m., Bilal accused came to our house and called for my brother Abdul Rasheed and took him into the land who did not come back till evening. When I rang him, his mobile was not answering. I thought that he might held (sic) been at the Dera of the chak to pass the night. On the following morning we went to the Dera but he was not found there.
I also inquired about my brother from the house of Bilal and Mushtaq but the same was also locked. I asked for their whereabouts but could not trace them. Than (sic) I ranged (sic) to my cousin s Hameed ud Din and Rasheed ud Din. I also communicated on telephone to my Chacha Shoukat Ali. I was intima ted by them that my brother was not available even at Patuki. They also came to Burewala and I along with them begin to make search for my lost brother . In the evening time on 13.04.2009 we were standing at the bus stop of Kachipaki road. When at about 10.00 p.m., a car came there bearing No.1022 of Gray colour . On the front seat, Musrafeen was sitting with driver Khadam Hussain whereas Bilal and Mushtaq accused were sitting on rear seats with some unknown person. The car came from Sahuka side and went towards Luddan. We suspected the car and we chased after hiring a taxi.
The said car wherein Musrafeen etc. were boarding could not be passed over by us hence we came back in vain.
Early on the morning on the cable there was a news that a dead body has been taken to possession by P.S. Fateh Shah from P-I link and the same was brought to THQ, hospital Burewala for postmortem examination. I along with my Chacha, and my cousins Hameed ud Din and Rasheed ud Din came to hospital and identified the dead body there which was my brother Rasheed Ahmed. I told the police, escorting the dead body that I have suspected that my brother was killed by the accused namely Mushtaq, Bilal and Musrafeen. Thus I moved the application against the said accused. Earlier to the occurrence Musrafeen had injured my brother by causing a fire shot and for the same a case was registered against him. We had to have the amount from Bilal and Mushtaq about to Rs.
5,00,000/ 6,00,000/- as a lease money and given to them for purchase of fertilizer etc. To usurp that amount my brother was killed by the accused persons with common intention. When the accused were apprehended by the police and as per instance of the accused the police got recovered a mobile and an identity card of my brother and the same was taken into possession. Identity card P 4 and the mobile Phone P-5 were got recovered as per instance of Mushtaq accused in police custody after his arrest and physical remand of the police which were taken into possession vide memo Ex.PF . I along with Hameed ud Din signed the memo as witnesses of the recovery of the articles. On that day, Muhammad Bilal accused in custody led to the recove ry of ring (P 6) made of silver belonging to Rasheed deceased which was taken into possession by the I.O. vide memo Ex. PG. 1 and Hameed- ud-Din signed the memo as the witnesses. On the same day, Musrafeen accused in police custody led to the recovery of Bugda P 7 and the same was taken into possession by the I.O. vide memo Ex. PH. I and Hameed ud Din signed the memo as the witnesses. On the same day, the blood stained earth from the place where Rasheed accused was slaughtered was taken into possession by the I.O. vide Ex.PJ along with blood stained cot. and Hameed ud Din signed the memo as the witnesses. In the hospital when I met the I.O. I moved a written application to him which is Ex. PK and the same bears my signature which is Ex.PK/1 along with my NIC number and mobile number"
4. The learned trial court framed charges against the appellant and his co-accused on 28.07.2009 to which he and they 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 as many as twelve witnesses. The evidence of Abdul Hameed (PW-5) and Hameed ud Din (PW-7) particularly with respect to Masrafeen was to the effect that they saw a car bearing No. 1022/RLE on 13.4.2009 at 10.00 p.m wherein Masrafeen (appellant), Khadim Hussain (since acquitted) and Bilal and Mushtaq (both since declared proclaimed offenders) were sitting along with an unknown person. Abdul Hameed (PW-5) also gave evidence of motive. Abdul Hameed (PW-5) and Hameed ud Din (PW-7) stated that they also witnessed the recovery of bugda (Exh.P7) allegedly got recovered by Musarafeen (appellant). Abdul Ghafoor (PW-4) is the complainant of the case who had discovered the body of the deceased out of a box Muhammad Arshad Rehman draftsman (PW-1) prepared the scaled site plan of the occurrence (Exh.P A) and another scaled site plan of the place of recovery of Bugda (butcher's knife) (Exh PB). Ghulam Rasool 1187/C (PW-2) stated that on 22.4.2009 he received blood stained earth for its onward transmission to Lahore and on 16.5.2009 he witnessed the arrest of Musarafeen (appellant) and Ashiq and a car was taken into possession by the Investigating Officer through recovery memo (Exh.PC). Muhammad Shafqat 350/HC (PW-3) stated that he received the complaint (Exh.PD) and recorded the formal FIR (Exh.PD/1). Ghulam Abbas 896-C (PW-6) stated that on 14.4.2009 he took the dead body of an unknown person to the mortuary and the postmortem was conducted on 15.4.2009 and that the medical officer handed over the last worn clothes of the deceased which were taken into possession vide recovery memo (Exh.PE) by the Investigating Officer. Farooq Ahmad (PW-8) stated that he along with Abdul Ghafoor (PW-4) discovered the dead body which was concealed in a box and he also witnessed recovery of the blood stained earth which was taken into possession vide recovery memo (Exh.PL) and the box (Exh.P8) along with two locks Exh.P9/1 and Exh.P9/2 which were taken into possession through recovery memo (Exh.PM). Yaseen (PW-9) stated that he broke the locks of box (Exh.P8) and witnessed the recovery of unknown dead body . Muhammad Rafique 392/HC (PW-10) stated that on 14.4.2009 he received a parcel said to contain earth which he on 22.4.2009 handed over to Ghulam Rasool 1187/C (PW-2). Muhammad Afzal SI (PW-11) investigated the case from 14.4.2009 till 24.5.2009 and detailed the facts of investigation before the learned trial court.
6. The prosecution also got examined Dr. Muhammad Ashgar (PW-12) who was posted as Medical Officer at THQ, Hospital, Burewala and on 15.04.2009 had conducted the postmortem examination of Rasheed Ahmad (deceased). Dr . Muhammad Ashgar (PW -12) while examining Rasheed Ahmad (deceased) observed as under:-- "INJURIES:
1. An incised wound 10 x 3 cm going deep inside the skull cavity .
2. An incised wound on left side of jaw with broken and fractured mandible. 20 cm x 5 cm started from left side of chin extending to left ear going inside the face and skull.
3. An incised wound (cut) on neck started from right side of neck +back side (right of back) extending from front side to left side. 25 cm x 3 cm. All neck (except a small on back and left side of neck) was cut.
4. An incised wound on right shoulder 5 cm x 2 cm muscle deep (on top area)
5. An incised wound on front of left shoulder 10 cm x 2 cm (muscle deep)
6 An incised wound on left wrist, (back of left wrist) 5cm x 2 cm muscle deep.
7. An incised wound on front side + lateral side (outer side) of right knee 7 cm x 4 an skin and muscle deep.
I also noted that the neck was cut, only small area was intact. No ligature mark was found. It was a body of stout person and decomposition was started THORAX: Walls, ribs, cartilages were pale and healthy and putrefaction was in progress. Plura, right and left lungs were pale and healthy . Larynx and trachea were cut at the level of shoulder . Pericardium and heart pale and healthy and both sides empties. Blood vessels were pale and healthy .
OPINION: "After conducting postmortem examination, I was of the opinion that death occurred due to injury No.3 + contributing injury Nos.1 and 2 causing sever loss of blood and hemorrhage and damage to spinal cord and brain.
Injuries were more than sufficient to cause death in ordinary course of nature. All the injuries were anti-mortem and caused by sharp edge weapon.
Probable time that elapsed between injuries and death immediate whereas between death and postmortem was two to seven days."
7. On 11.11.2010, the learned DDPP gave up PW Rasheed-ud-Din being unnecessary and then on 3.2.201 1 the learned DDPP gave up PWs Muhammad Yousaf and Tanvir being unnecessary . On 9.2.201 1 the learned DDPP gave up PWs Rabnawaz 766/C and Niamat Ali 79/C2 as being unnecessary . On 29.9.201 1 the learned DDPP closed the prosecution evidence after tendering the report of Serologist bearing No. 870 (Exh.PV), the report of Serologist bearing No. 1669 (Exh.PW) and the report of Chemical Examiner bearing No.1564 (Exh.PU) .
8. After the closure of prosecution evidence the learned trial court examined Masrafeen (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 gave the following reply: "I am innocent. I have no knowledge or concern about the alleged occurrence as stated in the present case. The PWs have implicated me in this case entirely on the basis of suspension created in their minds due to previous litigation between the deceased and me, despite the fact that a compromise effected between deceased and me and we were living amicably and in a friendly manner . The PWs have badly failed to connect me with alleged occurrence.The evidence advanced by the PWs does not show my presence or participation in any way with the murder of Rashid Ahmad deceased. My implication in this case is just for one reason that Rashid Ahmad deceased had got registered a criminal case vide FIR No.283/08 which ended in a compromise. Both the PWs are related inter se with the deceased, so, they have deposed falsely against me."
Neither the appellant opted to get himself examined under Section 340(2), Cr.P.C. nor adduced any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Burewala, convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false. 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 Abdul Hameed (PW-5) and Hameed ud Din (PW-7) are not worthy of reliance as being bereft of proof. He also argued that the medical evidence was not supportive of the prosecution case. He also contended that Abdul Hameed (PW-5) and Hameed ud Din (PW-7) examined by prosecution were related to the deceased and interested. 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 Deputy Prosecutor General along with the learned counsel appearing on behalf of Abdul Hameed (PW-5) contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned counsel further argued that the deceased died as a result of act of the appellant.
They further contended that the medical evidence also corroborated the statements of Abdul Hameed (PW-5) and Hameed ud Din (PW-7). They further argued that the recovery of Bugda (Exh.P-7) from Masrafeen appellant, also corroborated the circumstantial evidence available. They contended that the appellant had enmity with the deceased and there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real of fenders with the innocent in this case. Lastly , they prayed for the rejection of appeal.
12. I have heard the learned counsel for the appellant, learned Deputy Prosecutor General and the learned counsel appearing on behalf of Abdul Hameed (PW-5) and with their assistance perused the record and evidence detailed during the trial carefully .
13. The whole prosecution case revolves around the statements of Abdul Hameed (PW-5) and Hameed ud Din (PW-7). Their evidence with respect to Masrafeen ( appellant) in total was to the effect that on 13.4.2009 at 10.00 p,.m , they i.e. Abdul Hameed (PW-5) and Hameed ud Din (PW-7) had seen a car bearing No.1022/RLE wherein Masrafeen (appellant), Khadim Hussain (since acquitted) and Bilal and Mushtaq (both since declared proclaimed offenders) were sitting along with one unknown person. They did not witness the deceased sitting alone with the abovementioned accused in the said car. The trial court has already acquitted Khadim Hussain. I have queried the learned Deputy Prosecutor General as well as the learned counsel appearing on behalf of Abdul Hameed (PW-5) regarding the filing or otherwise of an appeal against acquittal of the said *co-acc used, who have stated that the acquittal of Khadim Hussain co-accused (since acquitted) had attained finality as neither the State nor the complainant or Abdul Hameed (PW-5) or any other aggrieved person had filed any appeal against the acquittal of Khadim Hussain co-accused (since acquitted). The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant, can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The condition for relying upon the same set of witnesses as against the convict but rejecting them as against the acquitted co-accused is that such evidence must get independent corroboration on materal particulars. The august Supreme Court of Pakistan in its binding judgment passed in the case of Imtiaz alias Taj v. The State (2018 SCMR 344) has enunciated the principle that if the witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person, attributed a similar role, unless testimony of such witnesses receives independent corroboration qua the other accused person. I am unable to find any independent corroboration against the appellant and I am unable to distinguish the case of the appellant from the case of Khadim Hussain co- accused (since acquitted). I am thus satisfied that the evidence of Abdul Hameed (PW-5) and Hameed ud Din (PW- 7) cannot be relied upon for convicting Masrafeen (appellant) and is to be rejected outright to his extent as there is no distinction in their statements with respect to the roles of Khadim Hussain co-accused (since acquitted) and Masrafeen (appellant).
14. I have further carefully scrutinized the statements of Abdul Hameed (PW-5) and Hameed ud Din (PW-7). Abdul Hameed (PW-5) during his cross-examination admitted that Hameed ud Din (PW-7) and Rasheed ud Din ( given up) reached Burewala on 14.4.2009 at about 9.00/10.00 a.m. at his dera in the village. Hameed ud Din (PW-7) stated that Rasheed deceased was his paternal cousin and he, Hameed ud Din (PW-7) was resident of Kot Sardar .
This totally fragments the prosecution case as against the appellant whereby the same witness Abdul Hameed (PW-5) had stated that he along with Hameed ud Din (PW-7) and Rasheed ud Din (given up PW) had seen the appellant riding a car on 13.4.2009 at about 10.00 p.m. It was not possible, as by his own admission, Hameed ud Din (PW-7) and Rasheed-ud-Din (given up PW) arrived on 14.4.2009. Furthermore during cross-examination Abdul Hameed (PW-5) admitted that if one was boarding in a car and the lights of car were on then the person sitting in the car cannot be identified by anyone standing in front of the car, which was the case as against Masrafeen (appellant) that he had been recognized sitting in a car along with the other co-ac cused. After this admission this witness cannot be believed that he actually saw the appellant in the said car. In view of the above I am of the considered opinion that had the said witnesses being truthful witnesses and had they witnessed whatever they stated before the police and the learned trial court then these contradictions would not have cropped up in their testimony . These self negating and contradictory statements of the witnesses reflect that the witnesses are not truthful and they are supporting the afterthought, fabricated and concocted story meant to create incriminating evidence to strengthen the case of unwitnessed occurrence against the appellant . The august Supreme Court of Pakistan in the case of Imran alias Dully and another v. The State and others (2015 SCMR 155) at page 164 has held as under:- By now, it is a consistent view that when any case rests entirely on circumstantial evidence then, each piece of evidence collected" provide all links makin g out one straight chain where on one end its noose fit in the neck of the accused and the other end touches the dead body . Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and in that event conviction cannot be safely recorded and that too on a capital charge.
To carry a conviction on a capital charge it is essential that the courts should deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon and very minute and narrow examination of the same is necessary to secure the ends of justice. It is imperative for the prosecution to provide all links in chain, where one end of the same touches the dead body and the other , neck of the accused. The present case is of such a nature that many links are missing in the chain. It would not be wrong to observe that in this particular case, it can be said that there is no link, what to talk about a chain. The august Supreme Court of Pakistan in the case of Fiaz Ahmad v . The State (2017 SCMR 2026 ) has observed at page 2030 as under:-- It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however , if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same.
15. Learned Deputy Prosecutor General as well as the learned counsel appearing on behalf of Abdul Hameed (PW-5) have also relied upon the recovery of bugda (Exh.P7), from Masrafeen, appellant. However , Abdul Hameed (PW-5) stated that the said bugda (Exh.P7) was got recovered from the house of co-accused Bilal and Mushtaq (proclaimed offenders) which was placed under a cot in the second room of their house. Similarly , Hameed ud Din (PW-7) also stated that the said bugda (Exh.P7) was recovered from the house of Bilal and Masrafeen appellant was not a resident of the said house. The said recovery of the Bugda (Exh.P7) cannot be believed as the same was neither made from a place which belonged to Masrafeen (appellant) nor was under his exclusive possession.
Muhammad Afzal SI (PW-11), the Investig ating Officer of the case, did not join any witness of the locality during the recovery of said bugda (Exh.P7) which was in clear violation of section 103, Cr.P.C. and cannot be used as incriminating evidence saint Masrafeen (appellant), being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others v . The State (2017 SCMR 898 ) at page 901 has held as under:- "For the above mentioned recovery of weapons the prose-cution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard."
16. Learned Deputy Prosecutor General as well as the learned counsel appearing on behalf of Abdul Hameed (PW-5) have also relied upon the motive which the alleged Masrafeen (appellant) had for commission of the offence. As per Abdul Hameed (PW-5) Masrafeen (appellant) had injured his brother by causing a fire shot in the year 2008 and for the same a case was registered against Masrafeen (appellant). I have noticed that the evidence with respect to the above motive was not supported by any other witness during the trial of the case. Furthermore Abdul Hameed (PW-5) during his cross-e xamination admitted that the said occurr ence with respect to the motive, which dated as far as 25.2.2008, had already been settled and a compromise had already been effected between the deceased and. Masrafeen (appellant). 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."
17. The only other piece of evidence left to be considered 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 with respect to Masrafeen (appellant) have been disbelieved and discarded, therefore, the conviction of appellant 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."
18. Considering all the above circumstances, I entertain serious doubt in my mind regarding the involvement of Masrafeen, 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 person 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 reaso nable 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."
19. For what has been discussed above, Criminal Appeal No. 277 of 2012 filed by Masrafeen (appellant) is accepted and the conviction and sentences of the appellant awarded by the learned trial court through the impugned judgment dated 14.3.2012 are hereby set-aside. Masrafeen (appellant) is ordered to be acquitted. The appellant is present on bail as the sentence of the petitioner had already been suspended by this Court, therefore, his surety shall stand discharged from his liability and the bail bonds submitted by the appellant are hereby cancelled.