SADIQ MAHMUD KHURRAM, J.---The appellant namely Rab Nawaz son of Manzoor Hussain was tried along with co-accused Khizar Hayat (since acquitted) by the learned Addl. Sessions Judge, Kabirwala, in case FIR No. 308 of 2011 dated 18.08.201 1 registered at Polic e Station City Kabirwala, District Khanew al under Sections 302., 324, 34, P.P.C. along with one Khizar Hayat on of Manzoor Hussain (since acquitted) for committing the Qatl-i-Amd of Mazhar Hussain (deceased), maternal uncle of the complainant. The learned trial court vide judgment dated 26.3.2012 convicted Rab Nawaz (convict) and sentenced him as infra: i) Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Mazhar Hussain (deceased) and 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) Ten years Rigorous imprisonment under section 324, P .P.C. with a fine of Rs. 50000/ iii) Rigorous imprisonment for 10 years as Tazir under section 337D, P .P.C. and directed to pay Arsh equal to 1/3rd of the Diyat to be paid to the Injured Muhammad Hayat. The amount of fine was ordered to be recovered as land revenue in case of default of payment of Arsh.
2. Feeling aggrieved, Rab Nawaz (convict) lodged Criminal appeal No. 82-J of 2013 against his conviction and sentence. Irshad Ahmad, complainant lodged Criminal Appeal No.570 of 2012 against acquittal of co-accused namely Khizar Hayat (since acquitted) by the learned trial court. The learned trial court submitted Murder Reference No.47 of 2012 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellant Rab Nawaz. We intend to dispose of the Criminal Appeal No.82-J of 2012, Criminal Appeal No. 570 of 2012 and Murder Reference No.47 of 2012, through this single, judgment.
3. The brief facts of the prosecution case, as per the oral statement (Exh.PG) made by Irshad Ahmad (PW 8) and reduced into writing by Asghar Ali SI (PW-12), are that on 18.8.201 1 maternal uncle of Irshad Ahmad (PW-8), namely Mazhar Hussain (deceased) and Muhammad Hayat (PW-10) were returning, to their home on a motorcycle. It was further recorded in the oral statement (Exh.PG) that when they reached near "Maqbool Wali" mill situated on kakarhatta Rabnawaz appellant and Khizar Hayat co-accused (since acquitted) came from the back on their motorcycle, the motorcycle was being driven by Khizar Hayat (since acquitted ). It was further recorded in the oral statement (Exh.PG) that Rabnawaz appellant and Khizar Hayat (since acquit ted) deboarded their motorcycle and took out their own pistol 30 bore and Rabnawaz appellant made three fires on the person of Mazhar Hussain deceased hitting him on his chest, neck and right hand who died as a result of the said injuries at the spot. It was further recorded in the oral statement (Exh.PG) that Khizar Hayat (since acquitted) fired at Muhammad Hayat (PW- 10) which fires hit on his left hip and left foot injuring him seriously . It was further recorded in the oral statement (Exh.PG) that Jafar Hussain (PW-9) and Bashir Ahmad (given up) witnessed the whole occurrence whereas the accused fled away from the spot. It was further recorded in the oral statement (Exh.PG) that the motive of occurrence was that a few days ago Mazhar Hussain had an altercation with the accused.
4. The learned trial court framed charges against the appellants on 15.11.201 1 to which 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 twelve witnesses. Irshad Ahmad (PW-8), Jafar Hussain (PW-9) and Muhammad Hayat (PW-10) gave evidence regarding the ocular account. Raja Muhammad Iqbal draftsman (PW-1) prepared the scared site plan (Exh.P A) of the place of occurrence. Muhammad Iqbal 192/HC (PW-2) stated that on 9.9.201 1 he received two parcels from Asghar Ali SI ( PW-12) which he gave to Muhammad Ali 670/c (PW-4) on 11.9.201 1. Zulfiqar Ali 809/c (PW-4) stated that on 23.9.201 1 he took two sealed parcels said to contain pistol .30-bore to the Forensic. Science Laboratory . Muhammad Aslam ASI ((PW -6)) recorded the formal FIR (Exh.PG/1) after receiving the complaint Exh.PG sent by Asghar Ali SI (PW-12).
Muhammad Yaseen 458/C (PW-7) stated that on 18.8.201 1 he took the complaint (Exh.PG) and handed over the same to Muhammad Aslam ASI ((PW -6)) and further stated that on 5.9.201 1 he witnessed the arrest of Rabnawaz (appellant) and co-accused Khizar Hayat (since acquitted) and they were driving a motorcycle, which motorcycle (P1) was taken into possession through recovery memo. (Exh.PII). Noor Muhamm ad 536/HC (PW-11) stated that on 13.9.201 1 he received two parcels said to contain pistols which he handed over to Zulfiqar Ali 809/c (PW-3) for his onward transmission to Forensic Science Laboratory . Asghar Ali SI (PW-12) conducted the investigation of the case.
6. The prosecution also got examined Dr. Muhammad Waseem Hayat (PW-5) who was posted as Medical Officer at THQ Hospital, Kabirwala, and on 1.8.8.201 1 conducted the post-mortem examination of "INJURIES: An entrance lacerated wound lx1 cm inverted margins on the left side of face just lateral to angle of mouth surrounded by tatoating (sic) on the left side of the face up to neck.
2 An exit lacerated wound margins evened on the right side of the neck 5 cm below the right ear .
3 An entrance wound 1x1 cm lacerated wound 2 cm from the left nipple slightly outward 12 cm from the midline on the left side of the chest. Margin inverted.
4. An exit wound 1 cm x 1 cm on the right lateral side of chest. 17 cm from right nipple. 21 cm from, the midline on the chest.
5. A lacerated exit wound 4 cm x 1.5 cm blacking present evened margins present on the upper part of gluteal region on the back.
6. A lacerated entrance wound 2 cm x 1.5 cm on the upper part of gluteal region on the back.
7. An entrance wound I cm x 2 cm inverted margins blackening present just below the right gluteal fold.
8. An exit lacerated wound 1 cm x 1 cm oval in shape everted margins on the lateral aspect of right thigh 18 cm from right anterior iliac spine.
9. An entrance wound 1 cm x 1 cm inverted margins on the lateral aspect of left buttock.
10. An exit wound I cm x 1 cm everted margins 1 1 cm from Injury No.9.
11. An. entrance lacerated wound 1.5 cm x 1.5 cm on the palmar aspect of right thumb base close to wrist joint.
12. An exit wound 1.5 cm x 1.5 cm in the dorsum of right hand along with fracture of multiple Meta carpal bones.
13. An abrasion 2 cm x 2 cm on the anterior aspect of right knee joint.
OPINION: 'After complete external and internal post-mortem examination I was of the opinion that above mentioned injuries were ante mortem caused by fire arm weapon sufficient in ordinary course of nature to cause death due to haemorrhage and shock.
Probable time elapsed between injuries and death was fifteen minutes while during death and postmortem examination it was about six hours."
Dr. Muhammad W aseem Hayat (PW 5) also examined Muhammad Hayat (PW -10) and observed as under: INJURIES.
1. An entrance lacerated wound 3 cm x 2 cm on the left side of buttock.
2. An entrance wound 3 cm x 3 cm on the lateral aspect of left foot heel.
7. On 9.12.201 1, the learned DPP gave up PW Shahid Tanvir 1191/c being unnecessary . The learned DDPP closed the prosecution evidence on 15.3.2012 after tendering the reports of Serologist (Exh.PS), the report of Chemical Examiner (Exh.PQ) and the report of Punjab Forensic Science Agency (Exh.PR).
8. After the closure of prosecution evidence, the learned trial court examined Rabnawaz, 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 some unknown assailants.
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 Addl. Sessions Judge, Kabirwala, 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 Irshad Ahmad (PW 8), Jafar Hussain (PW-9) and Muhammad Hayat (PW-10) 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 Deputy 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 Irshad Ahmad (PW 8), Jafar Hussain (PW-9) and Muhammad Hayat (PW-10) They further argued that the recovery of pistol .30 bore (Exh.P-1) from Rabnawaz, 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 of fenders with the innocent in this case. Lastly , they prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellants, learned Deputy 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 Irshad Ahmad (PW 8), Jafar Hussain (PW-9); and Muhammad Hayat (PW-10). These witnesses namely Irshad Ahniad (PW-8), Jafar Hussain (PW-9) and Muhammad Hayat (PW-10) were related to each other . Their relationship with the deceased is also on record.
Irshad Ahmad (PW-8) revealed during his cross-examination that Muhammad Haya t (PW-10) was his real maternal uncle whereas Bashir Ahmad (not produced) was his cousin. Irshad Ahmad (PW-8) further stated in his cross- examination that the witnesses namely Jafar Hussain (PW-9) and Muhammad Hayat (PW-10) were not the residents of the place of occurrence and Malik Bashir (not produced) was resident of 15-16 kilometers from the place of occurrence, Jafar Hussain (PW-9) was clerk working at Multan, Muhammad. Hayat (PW-10) was a resident of Hussain Abbad which was at a distance of half kilometer from the place of occurrence and the deceased as well as. Muhammad Hayat (PW-10) resided in the same house. Similarly Jafar Hussain (PW-9) during his cross-examination stated that he work ed as a clerk at Multan however on the fateful day he had not gone there due to summer vacation and also revealed that the house of Irshad Ahmad (PW-8) was in front of his house whereas the house of Malik Bashir (given up) was at a distance of fifteen-sixteen kilometers from his residence.
Muhammad Hayat (PW-10) during cross-examination stated that he was working at Tahir Sweet Mart situated at Kabirwala City opposite to Ammar Hotel . It is an admitted position that none of the PWs namely Irshad Ahmad (PW-8), Jafar Hussain (PW-9). and Muha mmad Hayat (PW-10) had their residence s or their houses at the place of occurrence. They were all "chance witnes ses". We have also perused the scaled site plan (Exh. PA.) as prepared by Raja Muhammad Iqbal draftsman (PW-1) and unsealed site plan of the place of occurrence Exh.PO) as prepared by Asghar Ali, S.I. (PW-12) and find that neither any house nor any shop belonging to the three eye- witnesses is shown. A perusal of the above mentioned site plans (Exh.PO and Exh.P A) also reveals that there were no fruit sellers or shops selling eatables shown in the same. In absence of physical proof of the reason for the presence of the witnesses at the crime scene the same cannot be relied upon.
14. Learned Deputy Prosecutor General and the counsel for the complainant has stressed upon the factum of the matter being reported to the police at the civil hospital with promptitude. We have carefully and minutely perused the record/ We find that the statement of Irshad Ahmad (PW-8) was reduced into writing as (Exh.PG) by Asghar Ali SI (PW-12) at 5.50 PM on 18.8.201 1. We have noted with grave concern that as per the post-mortem report (Exh.PB) as prepared by Doctor Muhammad Waseem Hayat M.O. THQ Hospital Kabirwala reveals that the postmortem of the dead body had already been conducted at 5.30 pm, that is prior to the registration of FIR (Exh.PG/1) and even prior to the recording the statement of Irshad Ahmad (PW-8) by Asghar Ali, S.I. (PW-12) exhibited as PG. This documentary proof produced and relied by the prosecution itself shatters the whole case of the prosecution. This proves conclusively that firstly post-mortem examination was conducted then after consultation and complete inquiry narrative was developed and recorded as (Exh.PG). The prosecution has totally failed to examine this bizarre error in recording the time of the oral statement of Irshad Ahmad (PW -8).
15. Learned Deputy Prosecutor General and the counsel for the complainant laid great stress on the fact that Muhammad Hayat (PW-10) was injured in the occurrence. The august Supreme Court of Pakistan has repeatedly held that the stamp of injuries on the person of a witness can be a proof of their presence at the place of occurrence, however , it can never be held that they also will tell truth. It has been held that the facts which an injured witness narrates are not to be implicitly accepted rather they are to be attested and appraised on the principles applied for the appreciation of evidence of any prosecution witness regardless of him being injured or not. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Nazir Ahmad v. Muhammad lqbal and another (2011 SCMR 527) where at page 534 the august Supreme Court of Pakistan was pleased to hold as under: "It is settled law that injuries of P. W. are only indication of his presence at the spot but are dot affirmative proof of his credibility and truth".
Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Amin Ali and another v. The State (2011 SCMR 323) where .the august Supreme Court of Pakistan was pleased to hold that presence of injuries does not stamp a witness to be a truthful one. However , we find that prosecution has failed to even establish that Khizar Hayat (PW-10) was injured in the present occurrence or otherwise. In this respect we have perused the medico legal certificate (Exh.PE) relating to Muhammad Hayat as prepared by Doctor Muhammad Waseem Hayat (PW-5). No entry has been made in the column relating to the brief history as given by the patient in the said medico legal certificate (Exh.PE). Had Muhammad Hayat (PW-10) known the identity of the assailants he would definitely have mentio ned their names and no reason existed for him in not doing so. We have further perused the medico legal certificate (Exh. PE) as prepared by the Doctor Muhammad Waseem Hayat (PW- 5) and find that no opinion was given regarding the nature of injuries. Furthermore a perusal of medico legal certificate (Exh. PE) as prepared by the Doctor Muhammad Waseem Hayat (PW-5) reveals that the probable time of duration of injuries has also not been mentioned. We have also gone through the statement of Dr. Muhammad Waseem Hayat (PW-5) as recorded by the learned trial court and there too no opinion was given about the probable duration of injuries. We have also observed that the injuries as observed by Doctor (PW-5) do not find mention that whether any bleeding was present or not. When no time for the duration of injuries has been mentioned by the medico legal officer then it cannot be said with certainty that the injuries were received during this occurrence or otherwise. The benefit of doubt in this respect has to be extended to the accused. Lastly but not least we have also observed that as per the oral statement (Exh.PG) got recorded by Irshad Ahmad (PW-8), he made the same at the Civil Hospital, Kabirwala. Irshad Ahmad (PW-8) while appearing before the learned trial court stated that they shifted Mahzar Hussain deceased and Muhammad Hayat (PW-10) to THQ Hospital Kabirwala and thereafter the Investigating Officer reached there on coming to know about the occurrence. This statement is opposed to the record because the oral statement (Exh.PG) was recorded as 5.50 p.m. whereas the medico legal certificate (Exh. PE) as prepared by the Doctor Muhammad Waseem Hayat (PW-5) mentions the date and time of arrival of Muhammad Hayat (PW-10) as 5.30 p.m. and the name and number of police constable as Asghar Ali, S.I.
(PW-12). The said medico legal certificate also.bears the name and thumb impression of Muhammad Hayat (PW- 10). This proves that it was Asghar Ali, S.I. (PW-12) who had brought Muhammad Hayat (PW-10) to the Civil Hospital Kabirwala and Irshad Ahmad (PW-8) was not present there. We have further observed that Asghar Ali, SI (PW-12) who was present at the THQ failed to record the statement of Muhammad Hayat (PW-10) at that time Asghar Ali, SI (PW-12) stated that he recorded the statements of four witnesses on 23.8.201 1, five days after the occurrence. During cross [Vol.XXXVII examination Asghar Ali (PW-12) admitted that he had not recorded the statement of Muhammad Hayat (PW-10) Jafar Hussain (PW-9) and Bashir given up PW on the first day despite the fact that they were present in the THQ. Similarly , Muhammad Hayat (PW-10) stated that although he was conscious and became unconscious at the hospital and remained admitted in Nishtar Hospital for four days, however , Asghar Ali SI (PW-12) never met him at the Nishtar Hospital. The failure of Asghar Ali (PW-12) to record the statements of Jafar Hussain (PW-9) and Muhammad Hayat (PW-10) till 23rd August of 2011 cannot be taken lightly . There is not only failure on part of Asghar Ali SI (PW-12) in recording the statements under section 161, Cr.P.C. but a total absence of any reasonable explanation for non-recording of the same. As we have already observed that Asghar Ali (PW-12) was present at the civil Hospital along with Muhammad Hayat (PW-10), therefore only one conclusion can be drawn and that is that Muhammad Hayat (PW-10) had nothing to tell. He had not been able to identify the accused and subsequently made a dishonest and doctored statement. We have also observed that Irshad Ahmad (PW-8) during cross-examination stated that the accused were residing at a distance of fifteen sixteen kilometers from the place of occurrence and we are at a loss to understand as how these accused came to know about the travelling plans of the complainant party . The august Supreme Court of Pakistan in the case of Abdul Khaliq v . The State (1996 SCMR 1553 ) has held as under: It is a settled position of law that late recording of 161, Cr. P. C. statement of a prosecution witness reduces its value to nill unless there is plausible explanation for such delay".
The august Supreme Court of Pakistan in the case of Muhammad Khan v. Maula Bakhsh (1998 SCMR 570) has held as under: "It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr. P.C. is recorded with delay without offering any plausible explanation.
The august Supreme Court of Pakistan in the case of Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550 ) at page 571 has held as under: "In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. In this case unsatisfactory explanation which is not substantiated can be acquitted with no explanation".
We have been unable to find any plausible explanation for delay in recording the statement of Muhammad Hayat PW-10). Only one inference can be drawn and that is that Muhammad Hayat (PW-10) who was step brother of Mazhar Hussain deceased and a residen t of two kilometer from Kookarhatta road, is not a truthful witness. The reasons as mentioned by us above also have persuaded us to reject his evidence as entirety as we are holding that he remained unable to prove him being injured in the instant case and he is found not to be truthful.
16 We have also observed that Asghar Ali, SI (PW-12) collected the blood-stained earth only from the place where Mazhar Hussain deceased received injuries whereas no blood stained earth was taken into possession with respect to place where Muhammad Haya t (PW-10) received the injuries during the occurrence. Muhammad Hayat (PW-10) during cross-examination stated that he produced the blood stained clothes to Asghar Ali, SI (PW-12), however , made a following statement during cross-examination.
"I produced blood stained clothes to the Investigating Officer but I do not know the place where Irshad PW produce my clothes to the Investigating Officer".
Contrary to this Asghar Ali (PW-12) did not support the assertion of Muhammad Hayat (PW-10). Asghar Ali (PW- 12), who otherwise showed J extraordin ary 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, the same would have provided the strongest corroboration to the testimony of the eyewitnesses. 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 a 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.
17. We have also observed that as per the statements of Irshad Ahmad (PW 8), Jafar Hussain (PW-9) and Muhammad Hayat (PW-10) the occurrence took place on a busy road. During the cross-examination Irshad Ahmad (PW-8) admitted that at the time of occurrence the "bazar" was open, people were present and traffic was plying at that time. Similarly , Jafar Hussain (PW-9) during cross-examination also stated that at the time of occurrence the "bazar" was open, people were present and traffic was plying at that time, however , Asghar All (PW-12) did not record the statement of any of the witnesses who were not related during the investigation of the case. The purpose of trial is the discovery of fact. The prosecution failed to produce even a single witness whose shop or house has been shown in the scaled site plan (Exh. PA) or unsealed site plan of the place of occurrence (Exh.PO).
This circumstance has also persuaded us to disbelieve the prosecution evidence. The guidance is sought from the binding decision 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 doubtfull. 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."
18. We have noted with grave concern that all the three witnesses namely Irshad Ahmad (PW-8), Jafar Hussain (PW-9) and Muhammad Hayat (PW-10) made dishonest and blatant improvements to the statements while appearing before the trial court. The witnesses made these blatant improvements through their statements in order to bring it in line with the medical evidence. During the cross-examination conducted on the three witnesses namely Irshad Ahmad (PW-8), Jafar Hussain (PW-9), and Muhammad Hayat (PW-10) they were confronted with the said improvements to their statements. The witnesses were doing the same as they had failed to observe the occurrence and had not mentioned three entry wounds in their statements during the investigation of case, so when they appearing before the learned trial court they improve the number of fires from three to "many shots". As they were confronted with their previous statements, hence their credit stand impeach 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 improvement's introduced by witnesses and rejected their evidence. We thus are satisfied that the evidence of Irshad Ahmad, (PW-8), Jafar Hussain (PW-9) and Muhammad Hayat (PW-10) M has not worth and is to be rejected outright. The august Supreme Court of Pakistan in the case of 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 strengthened the prosecution case then his testimony is not worthy of credence".
19. We have also observed that on the deep analysis or oral statement (Exh.PG) as recorded reveals that Irshad Ahmad (PW-8) Irshad Ahmad (PW-8), Jafar Hussain (PW-9) and Muhammad Hayat (PW-10) had not mentioned any reason for them to be present at the N place of occurrence at the time of occurrence. As per the said statement (Exh.PG) Muhammad Hayat and Mazhar Hussain were going to their home. Asghar Ali SI (PW-12) during cross- examination admitted that no reason was mentioned by the complainant Irshad Ahmad (PW-8) tor his visit to the place of occurrence.
20. Learned Deputy Prosecutor General along with the learned counsel for the complainant have laid much stress that Rabnawaz (appellant) had the motive to do away with the deceased. Only Irshad Ahmad (PW-8) made a statement regarding the motive of occurr ence, however , it had not details. Irshad Ahmad (PW-8) admitted during cross-examination that he did not mention the place of altercation, time of 0 alterc ation and the reason of the said altercation during the whole investigation of the case. Similarly Asghar Ali SI (PW-12), during cross-examination candidly admitted as under: "It is correct that throughout the investigation the complainant party/PWs have no given the details i.e. when, where, at which time, in whose presence, on what reason an altercation took place between accused persons and Mazhar Hussain deceased. I had also not probed this motive part of the prosecution story".
21. Learned Deputy Prosecutor General along with the learned counsel for the complainant have also relied upon the recovery of .30-bore pistol. (Exh. P1) from Rabnawaz, appellant. A perusal of the report of Forensic Science Laboratory , Punjab (Exh. PR) reveals that P five crime empties of .30 bore and two pistols of .30 bore were received on the same day that is 14.12.201 1. 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-em pties had been received by the Forensic Science Laboratory together on one and the same day".
22. 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 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."
23. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Rab Nawaz 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."
24. For what has been discussed above Criminal Appeal No.82-J of 2013 filed by Rabnawaz appellant is accepted and the conviction and sentences of the appellant' awarded by the learned trial court through the impugned judgment dated 26.3.2012 are hereby set-aside. Rabnawaz appellant is ordered to be acquitted. He is directed to be released forthwith if not required in any other case.
25. Pursuant to the discussion made and conclusions arrived at above, the Criminal Appeal No. 570 of 2012 filed by Irshad Ahmad, complainant against acquittal of co-accused namely Khizar Hayat (since acquitted) by the learned trial court is hereby dismissed.
26. Murder Reference is answered in Negative and the death sentence of Rabnawaz appellant is Not Confirmed .