SADIQ MAHMUD KHURRM, J.---The appellants namely Muhammad Hashim son of Manzoor Hussain and Muhammad Asim alias Pooma son of Manzoor Hussain were tried by the learned Sessions Judge, Multan, in case FIR No,225 of 2012 dated 09.07.2012 registered at Police Station Qadirpur Ran, District Multan, in respect of offences under sections 302 and 34, P.P.C. for committing Qatl-e-Amd of the complainant's brother namely Muhammad Shafique (deceased). The co-accused of the appellants namely Ahmad Khan and Muhammad Nawaz were acquitted by the learned trial court. The learned trial court vide judgment dated 28.01.2015 convicted Muhammad Hashim son of Manzoor Hussain and Muhammad Asim alias Pooma son of Manzoor Hussain and sentenced them as infra:- 1) Muhammad Hashim son of Manzoor Hussain: i) Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Shafique (deceased) and ordered to pay Rs,One Lac as compen sation under section 544-A, Cr.P.C. and in default thereof, to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Rigorous Imprisonment of three years and daman of Rs, Twenty Thousand under section F(iii)/34, P .P.C.
2) Muhammad Asim alias Pooma son of Manzoor Hussain: i) Imprisonment for life under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Shafique (deceased) and ordered to pay Rs,Fifty Thousand as compensation under section 544-A, Cr.P.C. and in default thereof, to further undergo six months of simple imprisonment. ii) Rigorous Imprisonment of three years and daman of Rs, Twenty Thousand under section F(iii)/34,P .P.C.
Both the sentences were ordered to run concurrently .
2. Feeling aggrieved, Muhammad Hashim son of Manzoor Hussain and Muham mad Asim alias Pooma son of Manzoor Hussain (convicts) lodged Criminal Appeal No,47 of 2015 against their conviction and sentences. Ishaq Ahmad, complainant, lodged Criminal Appeal No,92 of 2015 against acquittal of co-accused namely Ahmad Khan and Muhammad Nawaz, both acquitted by the learned trial court. Ishaq Ahmad, complainant, lodged Criminal Revision No CO of 2015 seeking enhancement of sentences awarded to the convicts. The learned trial court submitted Murder Reference No,19 of 2015 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellant Muhammad Hashim. We intend to dispose of the Criminal Appeal No,47 of 2015, Criminal Appeal No,92 of 2015, Criminal Revision No,60 of 2015 and Murder Reference No,19 of 2015, through this single judgment.
3. The brief facts of the prosecution case, as per the FIR (Exh.PB) and the oral statement (Exh.PB/1), got recorded by Ishaq Ahmed (PW-7) are that on 09.07.2012 at about 3.30 p.m. the deceased Muhammad Shafique along with Muhammad Ishfaq (PW-9) and Muhammad Taufiq (PW-8) were coming to their home on a wagon when at about 3.30 a.m. the wagon slowed down due to a speed breaker and at that Muhammad Hashim (appellant) armed with pistol .30 bore, Asim alias Pooma (appellant) armed with pistol .30 bore, Ahmad Khan (since acquitted) armed with rifle 8 mm and Nawaz (since acquitted) armed with a hockey , came there whereas Ahmad Khan (since acquitted) entered the wagon and brought down Muhammad Shafique (deceased) from the wagon and thereafter Muhammad Hashim (appellant) fired with his pistol which fire hit on the left thigh of Muhamma d Shafique (deceased) whereas Asim alias Pooma (appellant) also fired with his pistol which fire also hit on the left thigh of Muhammad Shafique (deceased) and Nawaz (since acquitted) gave hockey blows to Muhammad Shafique (deceased). It was further recorded that the accused fled away and the motive of the occurrence was previous scuf fle.
4. The learned trial court framed charges against the appellants on 16.01.2013 to which they pleaded not guilty and the learned trial court proceeded to examine the prosecution witnesses.
5. The Prosecution/complainant in order to prove its case got recorded statements of as many as twelve witnesses.
Ishaq Ahmed (PW-7) appeared as a complainant of the case. Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9) are the eye-witnesses of the occurrence. Raja Muhammad Iqbal draftsman (PW-1) prepared the scaled site plan of the place of occurrence (Exh.P A). Sagheer Hussain 828/C (PW-2) stated that on 31.07.2012 Zia Ullah Moharrir (PW-3) handed over to him sealed parcels said to contain earth and empties for their onward transmission to Forensic Science Laboratory and on 05.09.2012 Zia Ullah Moharrir (PW-3) handed over to him two parcels said to contain pistols for their onward transmission. Waseem Akram ASI (PW-4) registered the formal FIR (Exh.PB).
Muhammad Bilal (PW-5) identified the dead body and witnessed the recovery of last worn clothes of the deceased taken into possession through recovery memo. (Exh.PC). Abdul Ghaf far 3339/C (PW-6) stated that he escorted the dead body for its post mortem examination and also received the last worn clothes of the deceased. Bashir Ahmad SI (PW-11) investigated the case from 09.07.2012 till 07.09.2012 and detailed the facts of the investigation in its statement before learned trial court. Mazhar Hussain Inspector (PW-12) investigat ed the case on 29.04.2013 and detailed the facts of the investigation in its statement before learned trial court.
6. The prosecution also got examined Dr. Shabbir Ahmed (PW-10), who was posted as Medical Officer and, on 09.07.2012 and conducted the postmortem examination of the deceased Khawar Abbas and issued the postmortem report (Ex.PH). He observed as under:-- "A young man of age 26/27 years lying on the table wearing Shalwar and Bunya n wet with blood, looking pale.
Rigor mortis developed on upper parts of the body . Post mortem staining present. Eye and mouth were opened(sic).
INJURIES:
1. A lacerated wound on lateral side of left leg 1 cm x 1/2 cm in size. Margins inver ted and blackening 15 cm below left iliac crest.
2. A lacerated wound 2 cm 1/2 cm on the back of left thigh.
3. A lacerated wound 1 x 1/2 cm on with inverted margins on the left side of chest 15 cm above the left iliac crest.
4. A lacerated wound 1 cm x 1/2 cm on chest 3 cm below the Injury No,3
5. A lacerated wound on left cheek.
6. A lacerated wound on left ear .
7. A lacerated wound on left writs joint 3 cm x 2 cm OPINION: In my opinion, fire arm injury No,3 causin g raptures of small and large intestines and abdominal vessels leading to severe haemorrhage and causing the death. The probable time between death and post mortem was seven hours."
7. On 22.10.2014 the learned DDPP gave up PW Muhammad Fayyaz being unnecessary . On 24.11.2014 the learned DDPP closed the prosecution evidence after tendering the reports of Serologist (Exh.PM) and the reports of Chemical Examiner (Exh.PL) and the reports of Forensic Science Laboratory (Exh.PN).
8. After the closure of prosecution evidence, the learned trial court examined Muhammad Hashim son of Manzoor Hussain and Muhammad Asim alias Poona son of Manzoor Hussain appellants under section 342, Cr.P.C. who both denied their involvement in the occurrence and claimed that they had been implicated in the case due to previous enmity . Neither of the appellants opted to get himself examined under Section 340(2), Cr.P.C. however got examined four witnesses in their defence and produced copies of fifteen FIRs as Exh DO to Exh DCC.
9. On the conclusion of the trial, the learned Sessions Judge, Multan, convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsel for the appellant specifically 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 Ishaq Ahmed (PW-7), Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9) are not worthy of reliance as being chance witnesses. He also argued that the medical evidence was not supportive of the prosecution case. He also contended that witnesses 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 District Public Prosecutor 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 counsels further argued that the deceased died as a result of injuries suffered at the hands of the appellants. They further contended that the medical evide nce also corroborated the statements of Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9). 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 offenders with the innocent in this case. Lastly , they prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellants and Deputy District Public Prosecutor along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial carefully .
13. 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 Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9),the eye-witnesses of the case. Both the witnesses are not only related to each other but also to Ishaq Ahmed (PW-7) and the deceased Muhammad Shafique as brothers. During the cross-examination it was admitted by Ishaq Ahmed (PW-7) that Muhammad Taufiq (PW-8) was not only his paternal cousin but also his uterine brother . Similarly , the deceased Muhammad Shafique was brother of all the witnesses namely Ishaq Ahmed (PW-7), Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9). They , by their own admission, were chance witnesses . Ishaq Ahmed (PW-7) admitted during cross-examination that they were residents of 4 kilometers away from the place of occurrence. The deceased was their real brother and had he been injured in their presence then it is not possible that they would not have taken him to hospital. It is also the claim of Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9) that they had indeed escorted the deceased, then injured, to the hospital and had telephonically told about the occurrence to the complainant Ishaq Ahmed (PW-7). However , it is also a fact that no blood stained clothes of these witnesses namely Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9) were taken into the possession during the investigation of the case. Bashir Ahmed SI (PW-11), who otherwise showed extraordinary interest in the case, did not take the clothes of the eye-witnesses, which were stained with blood, into possession and if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased had been done, the same would have provided the strongest corroboration to the testimony of the eye- witnesses. This omission attacks at the roots of the case of the prosecution and lays bare 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. We have also noticed with great concern that despite the fact that the deceased was the real brother of the complainant Ishaq Ahmed (PW-7), Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9) even then Ishaq Ahmed (PW-7), Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9) neither identified the dead body 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.P1) by Bashir Ahmed SI (PW-11). Another reason to discard the evidence of Ishaq Ahmed (PW- 7), Muhammad Taufiq (PW-8) and Muham mad Ishaq (PW-9) is that were not mentioned as being present near the dead body at the time of preparation of the inquest report (Exh.P1) by Bashir Ahmed SI (PW-11). Furthermore, a perusal of the inquest report (Exh.PI) reveals that at the time of preparation of the same, the eyes and mouth of the deceased were open. If three brothers were present at that time then it is impossible that they would have left the eyes and mouth of the deceased open. Even at the time of post mortem examinat ion by Dr. Shabbir Ahmed (PW- 10) the eyes and mouth of the deceased were observed as open. In this respect reliance is placed on the case of Zahir Yousaf and another v. The State and another (2017 SCMR 2002 ) wherein the august Supreme Court of Pakistan has held as under:-- "We have also noted that as per the inquest report (Exh.PG) eyes of Ghulam Sarw ar (deceased) were open which makes the presence of the witnesses of ocular account at the time of occurrence doubtful because had they been present there they would have closed eyes of deceased who was their close relative."
As mentioned above, the dead body of the deceased was got identified by Fayyaz Ahmad and Muhammad Bilal (PW-5) and they were also mentioned in column No,4 of the inquest report as being the ones who identified the dead body . We have also noted with great concern that in the said inquest report (Exh.PI) the persons who were present near the dead body were named as Muhammad Shahbaz and Riaz Ahmad. Had the witnesses namely Ishaq Ahmed (PW-7), Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9) 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.
Hence, 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. In this respect reliance is placed on the case of Muhamm ad Rafiq 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 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."
4. We have also noted with grave conce rn that all the three witnesses namely Ishaq Ahmed (PW-7), Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9) made blatant and dishonest improvem ents to their earlier statements.
The improvements were made with respe ct to the reason for being, present at the place of occurrence, role of the appellants, roles attributed to the co-accused and other details. As all the three witnesses namely Ishaq Ahmed (PW-7), Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9), were duly confronted with their previous statements, hence their credit stands impeached and they cannot be relied upon. The august Supreme Court of Pakistan in the case of Muhammad Ashraf v. State (2012 SCMR 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, are satisfied that the evidence of Ishaq Ahmed (PW-7), Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9) has no intrinsic worth and is to be rejected out rightly . The august Supreme Court of Pakistan in a recent case reported as Muhammad Mansha v. The State (2018 SCMR 772 ) has enunciated the following principle:-- "Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in Order to strengthen the prosecution case then his testimony is not worthy of credence".
15. We have also observed that as per Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9) the incident of firing at the deceased Muhammad Shafique happened when the wagon in which they were riding was stopped. We have carefully perused the whole record and no such wagon was taken into possession during the investigation of the case. Furthermore, neither the driver of the wagon nor the conductor or even the passengers were examined during the investigation of the case. It is further an admitted aspect of the case that no one, other than the related witnesses who were allegedly travelling in the wagon at that time, was examined during the investigation or the trial of the case as witness. Furthermore it is not on record at all as to how, the accused came to know about the travelling plans of the complainant party . The Investigating Officer was under a binding duty to collect evidence and his failure has to be taken as a circumstance belying the prosecution case. The purpose of trial is the discovery of truth. As long as men keep lying the only causality would be the reality . The prosec ution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher v. The State (2010 SCMR 949) wherein it has been observed as under:- "....further that no independent witness of the locality where the incident took place, a 'Bazar' joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt."
16. We have also observed that as per Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9), fire at Muhammad Shafique (deceased) was allegedly made by the accused when the deceased was taken out from the wagon. Muhammad Shafique (deceased) had received two entry wounds of firearm. Dr. Shabbir Ahmed Medical Officer (PW-10) had observed injury No,1, which was on the lateral side of the left leg (its exit wound was observed as injury No,2) and Injury No,3, which was on the left side of the chest (its exit wound was observed as Injury No,4) as being the wounds caused by a firearm. Muhammad Taufiq (PW-8) during cross-examination stated that the appellant Muhammad Hashim had made pistol fires from the distance of three feet at the flank of the deceased.
Had this been the position blackening would have been observed at the time of post mortem on the body of Muhammad Shafique (deceased). Contra ry to this, when Dr. Shabbir Ahmed, Medical Officer, (PW-10) conducted post mortem on the body of the deceased Muhammad Shafique, he did not observe any blackening present on Injury No,3. It is trite that if a fire is made from a distance of three feet, then blackening on the wound should be observed. This circumstance also proves the absence of Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9) at the crime scene at the time of occurrence. In such a case the ocular account is to be rejected as being contrary to the medical evidence. Reliance is placed on Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812 ) wherein it has been observed as infra:-- "It is a settled law that blackening appears on the dead body in case the decea sed has received injuries at a distance of 4 feet according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali's case 1980 SCMR 889, Bagh Ali's case 1983 SCMR 1292 , Sain Dad's case 1972 SCMR 74 and Zardshad's case 1969 SCMR 644. "
Another aspect of the case is that while getting recorded his statement (Exh.PB/1) Ishfaq Ahmad (PW-7) had mentioned only one injury and that too on the left thigh of the deceased. There was no mention of any firearm injury , having been suffered by the deceased on the left side of his chest. This conclusively proves that the witnesses had not actually seen the occurrence otherwise such an inaccuracy could not have surfaced in their evidence. Had the eye-witnesses been present at the spot at the time of occurrence, they would not have committed such a colossal mistake regar ding the number of injuries received by the deceased at the hands of the present appellants. There could have been a mistake if the injuries were many in number and the witness had stated one or two injuries less or more. However , in this case there were only two firearm entry wounds and even then the main entry wound, the cause of death, on the person of the deceased was missed. Furthermore, it was recorded in the oral statement (Exh.PB/1 ) that Muhammad Hashim (appellant) fired with his pistol which fire hit on the left thigh of Muhammad Shafique (deceased) whereas Asim alias Pooma (appellant) also fired with his pistol which fire also hit on the left thigh of Muhammad Shafique (deceased). However , Dr. Shabir Ahmed, Medical Officer (PW-10) only observed one injury on the left leg of the deceased and injury No,2; which was on the left thigh, was declared to be an exit wound. Hence, no reliance can be placed on the statements of these eyewitnesses. Reliance is placed on the case of Muhammad Hussain v. The State (2008 SCMR 345) wherein the august Supreme Court of Pakistan has held as under: 'Only one fire-arm injury was attributed to Muhammad Hussain petitioner but according to the post-mortem report there was another injury on the person of deceased caused with blunt weapon. Complainant party having not been able to establish the charge against co-accused Muhammad Akmal and Mst. Shafqat Perveen by any solid evidence, as such we are of the view that petitioner should have been equally treated. The manner of commission of incidence, on the face of record, does not seem to be natural and probable"
Reliance is also placed on the case of Irfan Ali v. The State (2015 SCMR 840) wherein the august the august Supreme Court of Pakistan has held as under:- "True that Falsus In Uno Falsus In Omnib us principle has not been acted upon by the courts in this country and it has been held time and again that evidence of a witness is divisible, however , pre-condition is that evidence of the same set of witnesses may be rejected against some of the accused and it can be relied upon with regard to the other set of the accused, provided it is getting strong independent corroboration from unimpeachable source while recording conviction on a capital charge. It shall be kept in mind that medical evidence based on the opinion of Medico-Legal Officer is mere opinion of expert and is confirmatory in nature and not corroboratory except those observations of the Medico-Legal Officers based on physical examination which serves as a corroboratory piece of evidence. In the present case, the medical evidence is entirely inconsistent with the ocular account therefore, it has denuded the ocular account of its credibility ."
17. We have also observed that, as it is evident, the occurrence took place at night time and the witnesses namely Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9) did no mention any source of light in which they had identified the accused. Muhammad Bashir , S.I. (PW-11), 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 assailants. The prosecution failed to establish the fact of such availability of a light source and in absence of their inability to do so, we cannot presume the existence of such a light source. We have perused the scaled site plan of the place of occurrence (Exh.PA) and the unsealed site plan prepared (Exh.PJ) by Bashir Ahmad, SI (PW-11) and no light source is either reflected or mentioned in any of the two i,e, the scaled site plan of the place of occurrence (Exh.P A) and the unsealed site plan (Exh.PJ). We are constrained to hold that the prosecution witnesses namely Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW- 9) miserably failed to prove that they had identified them appellants at the spot at the time of occurrence or indeed could have identified then, at the place of occurrence at the time of occurrence in absence of any 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."
18. Learned Deputy District Public Prosecutor and learned counsel for the complainant have relied on the promptitude in registration of FIR as being proof of presence of eye-witnesses. We have observed that as per Bashir Ahmad SI (PW-11) he came to the hospital after hearing the message from the "Rescue 15" at about 3/3.30 night. He further admitted during the cross-examination that it was the first information given to him about the occurrence which in information was received through Zia Ullah Inspector/S.H.O. This Investigating Officer, in order to further the case of prosecution, did not investigate the information as received at the office of "Rescue 15" and "1122". During the course of trial Shahid Iqbal HC/679 (DW-1) produced the register of "Rescue 15" and also produced a copy of rapat No,15387 (Exh.DL) dated 09.07.2012. This witness was not cross-examined either by the learned DDPP or by the learned counsel for the complainant. A perusal of said rapat No,15387 (Exh.DL) reveals that the occurrence was reported by one Mazhar Abbas resident of Riazabad Pull and the Operator who had received the call was Latif 3131/C at 2.58 a.m. The said Mazhar Abbas was never joined in the investigation by the Investigating Officer. It is further recorded in the said rapat No,15387 (Exh.DL ) that the then injured Muhammad Shafique (deceased) was being taken to Nishtar Hospital, Multan. The case of prosecution is further denuded by the admissions made by Muhammad Taufiq (PW-8) during cross-examination. Muhammad Taufiq (PW-8) during cross-examination stated that Ishaq Ahmed (PW-7) had accompanied him on his journey back from Multan. This witness was further confronted with his previous statement recorded under section 161, Cr.P.C. (Exh.DB) wherein it was recorded that Ishaq Ahmad (PW-7), complainant, was with them inside the wagon. Furthermore, we have noted that Ishaq Ahmad (PW-7) during cross-examination stated that police had already reached Nithtar Hospital, Multan, before his arrival there and he became the complainant of the case after, narration of the occurrence by Muhammad Taufiq (PW-8) and Muhammad Ishfaq (PW-9). This shows that the Investigating Officer kept waiting for Ishaq Ahmed (PW-7) in order to not only procure the attendance of fake witnes ses, but also to develop sham narrative of the FIR. Ishaq Ahmed (PW-7) also admitted that the oral statement (Exh.PB/1) was read over to him and he signed the same in token of its correctness, however , made numerous improvements to the same during the trial diluting its worth. This witness further submitted during cross-examination that if Muhammad Taufiq (PW-8) stated in his statement that Ishaq Ahmed (PW-7) was accompanying him, then he had told a lie. Furthermore, had all these three witnesses been present there, then the error in the number of injuries received by their brother namely Muhammad Shafique (deceased) would not have cropped up. This has left no doubt in our minds that the witnesses were not present at the place of occurrence at the time of occurrence and proves that the said oral statement reduced into writing as Exh.PB/1 is just a compromised and a bogus document.
19. Learned Deputy District Pubic Prosecutor and learned counsel for the complainant have also relied upon the recoveries made from the appellants. We have observed that the police did not associate any residents of the locality in the investigation for the purpose of recovery . The said recovery proceedings were conducted in violation of section 103 of Cr.P.C. and thus are hit by the exclusionary rule of eviden ce and cannot be considered.
Furthermore, the arrest of the appellants was shown as on 13.08.2012, however , Ishaq Ahmed (PW-7) stated that the accused were arrested after two weeks of the occurrence. The occurrence took place on 09.07.2012 and by no stretch of imagination two weeks can be extended to mean 13.08.2012. This proves that the appellants were kept in illegal custody and as a consequence any recovery attributed to them cannot be considered. As we have disbelieved the ocular account in this case, hence the evidence of recovery would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only corroborative piece of evidence and if the ocular account is found to be unreliable then any recovery will have no evidentiary value and lose its significance. 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 prosecution 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."
20. Learned Deputy District Public Prosecutor and learned counsel for the complainant have also relied upon the evidence of motive, and submitted that it corroborated the ocular account. The learned trial court itself has rejected the evidence of motive and declared the same to be bereft of proof. The motive of the occurrence, given in the oral statement (Exh.PB/1), was a previous scuffle. No details of said previous scuffle were mentioned in the oral statement (Exh.PB/1). There is no mention as to the time when said previous scuffle took place nor any reason as to why the said previous scuffle had taken place nor the witnesses who had witnessed the said previous scuffle. A tainted piece of evidence cannot corrob orate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v . The State ( 2016 SCMR 2021 ) 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."
21. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Hashim son of Manzoor Hussain and Muhammad Asim alias Pooma son of Manzoor Hussain, appellants, 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 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. "
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. If 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 be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
22. For what has been discussed above, Criminal Appeal No, 47 of 2015 filed by Muhammad Hashim son of Manzoor Hussain and Muhammad Asim alias Pooma son of Manzoor Hussain appellants, is accepted and the conviction and sentences of the appella nts awarded by the learned trial court through the impugned judgment dated 28.01.2015 are hereby set-aside. Muhammad Hashim son of Manzoor Hussain and Muhammad Asim alias Pooma son of Manzoor Hussain appella nts are ordered to be acquitted. Muhammad Hashim, appellant No,1 is directed to be released forthwith if not required in any other case. The sentence of Muhammad Asim, appellant No,2 was suspended by this Court vide order dated 28.09.2017. As he is on bail, therefore, his surety stands discharged from his liability .
23. Pursuant to the discussion made and conclusions arrived at above, Criminal Appeal No,92 of 2015 , filed against acquittal of co-accused namely Ahmad Khan and Muhammad Nawaz (since acquitted), is hereby dismissed. Furthermore, Muhammad Hashim son of Manzoor Hussain and Muhammad Asim alias Pooma son of Manzoor Hussain have been acquitted of the charge while extending him benefit of doubt, therefore, there remains no question for enhancing their sentence. Criminal Revision No,60 of 2015 , seeking enhancement of sentences awarded to the convicts, is without any merit which is also dismissed.
24. Murder Reference is answered in the Negative and the death sentence of Muhammad Hashim son of Manzoor Hussain appellant is Not Confirmed .