Sadiq Mahmud Khurram, J.--The appellant namely Ghulam Hassan son of Muhammad Akram was tried by the learned Additional Sessions Judge, Pindigheb (Attock) in case FIR No. 65 of 2017 dated 23.02.207 registered at Police Station Pindigheb, District Attock in respect of offences under sections 302 and 449, PPC for committing the Qatl-i-Amd of Khatoon Bibi wife of Muhammad Ismail (deceased). The learned trial Court vide judgment dated 07.06.2017 convicted Ghulam Hassan son of Muhammad Akram (convict) and sentenced him as infra: Ghulam Hassan son of Muhammad Akram: i) Death under Section 302(b), PPC as Tazir for committing Qatl-i-Amd of Khatoo n Bibi wife of Muhammad Ismail (deceased) and directed to pay Rs.500,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to unde rgo simple imprisonment for six months. The convict was ordered to be hanged by his neck till dead. ii) Life imprisonment under Section 449, PPC and directed to pay fine of Rs.100,000/- and in case of default thereof, the convict was further directed to undergo simple imprisonment for three months.
2. Feeling aggrieved, Ghulam Hassan son of Muhammad Akram (convict) lodged Criminal appeal No. 728-J of 2017 against his conviction and sentence through jail. The learned trial Court submitted Murder Reference No. 59 of 2017 under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Ghulam Hassan son of Muhammad Akram. We intend to dispose of the Criminal appeal No. 728-J of 2017 and Murder Reference No. 59 of 2017 through this single judgment.
3. Precisely the necessary facts of the prosecution case, as divulged in the oral statement (Exh. PE) of Khatoon Bibi (then injured later deceased ) are that on the night of occurrence she was sleeping with her children when the appellant at about 11.00 p.m. knocked her door asking her to come with him, howe ver on her refusal, the appellant broke the door, dragged Khatoon Bibi (then injured later deceased) on to the street and then after taking out a pistol fired at her repeatedly hitting her on right arm, right leg and chest. Mst. Khatoon Bibi succumbed to the said injuries subsequently on the same night i.e. 23.02.2017.
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 namely Ghulam Hassan son of Muhammad Akram was sent to face trial. The learned trial Court framed the charge against the accused on 17.04.2017, to which the appellant pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got as many as thirteen witnesses examined. Muhammad Bilal (PW-7) gave evidence regarding the ocular account. Sheraz Ali Khan, (PW-8) stated that the statement of Khatoon Bibi (Exh.PE) was recorded in his presence and he also attested the same by putting his signatures (Exh.PE/2).
Muhammad Aslam (PW-9) and Masood Ahmad (PW-11) stated that they saw the appellant namely Ghulam Hassan in the street and were told by Khatoon Bibi (deceased ) that she had been injured by the appellant. Ali Aksar 675/HC (PW-1) stated that on 23.02.2017 he received two sealed parcels said to contain blood stained earth and four empties which on 02.03.2017 he handed over to Muhammad Tufail, SI (PW-12) for their onward transmission to the Punjab Forensic Science Agency , Lahore and further stated that on 10.03.2017 he received a sealed parcel said to contain a pistol which on 19.03.2017 he handed over to Muhammad Tufail, SI (PW-12) for their onward transmission to the Punjab Forensic Science Agency , Lahore. Adil Bashir 1816/C (PW-2) stated that on 06.07.2017 the appellant namely Ghulam Hassan got recovered a mobile phone (P1), wallet (P-2), identity card (P-3), cash amount (P-4) and key ring (P-5) were taken into possession through recovery memo. (Exh.P A). Salma Noreen 1596/C (PW-3) stated that on 23.02.2017, Khatoon Bibi (deceased) ) was examine d by the Medical Officer and on the same day post mortem examination of the dead body of the deceased was also conducted. Muhammad Pervez, ASI (PW-4) stated that on 23.02.2017 he recorded the statement of Khatoon Bibi (deceased ) (Exh.PE) and sent the same for the' registration of the FIR. Bashir Ahmad, draftsman (PW-5) prepared the scaled site plan of the occurrence (Exh.PF) and (Exh.PF/1). Muhammad Yaseen (PW-10) stated that on 23.02.2017, the Investigating Officer took into possession blood stained earth, four crime empties (P-10/1 - 4), broken bangles (P-11), an iron pipe (P-13) and broken pieces of wood of door (P-12). Muhammad Yaseen (PW-10) Further stated that on 10.03.2017 the appellant namely Ghulam Hassan led to the recovery of pistol (P-14) and two live bullets (P-15/1- 2). Munawar Khan, ASI (PW-13) recorded the formal FIR (Exh.PS). Muhammad Tufail, SI (PW-12) investigated the case from 23.02.2017 till 21.03.2017, arrested the accused on 06.03.2017 and narrated the facts of the investigation conducted in his statement before the learned trial Court.
6. The prosecution got examined Dr. Shaghufta Jabeen (PW-06), who on 23.02.20 17 was posted at THQ Hospital Pindigheb and on the same day at about 2.00 a.m. (night) examined Khatoon Bibi (then injured later deceased and observed as under: "I examined the injured lady at 02:00 am (night). She was brought with the histo ry of fire-arm, socked (sic) with bleeding containing holes corresponding to injuries. On general appearance, she was a young lady, well-oriented, time, place and person and profuse bleeding from wound, looking pale and in miserable condition. I found following injuries on her body:-
1. A lacerated wound about 1 1/2 cm x 1.5 cm, muscle deep situated on right cheek.
2. A fire-arm wound of about 1 cm x 1 cm going deep with inverted margins. Neither any blackening or burning was seen. The wound was situated on upper 1/3 of the right arm on frontal aspect. It was an entry wound.
3. A fire-arm wound of about 11/2 x 11/2 cm with averted margins situated on inner aspect of right arm in upper 1/3 portion (exit wound).
4. A fire-arm wound of about 11/2 cm x 11/2 cm with inverted margins with blackening and burning around the margins situated between the right armpit (entry wound).
5. A lacerated path way of about 2 1/2 cm x 11/2 cm muscle deep with blackening and burning just before the Injury No. 04.
6. A fire-arm wound of about 3 cm x 2 1/2 cm going deep with inverted margins, blackening and burning was present. It was situated on left side of chest on lateral and lower aspect of the ribcage (entry wound).
7. A fire-arm wound of about 11/2 cm x 1 cm with inverted margins going deep situated on upper 1/4th of thigh in lower femoral area.
8. A fire-arm wound of about 11/2 cm x 11/2 cm with everted margins going deep situated on right gluteal region (wound of exit of Injury No. 07).
The injured was referred to Holy Family Hospital Rawalpindi for the purpose of treatment. All of the injuries were kept under observation and there was no possibility of fabrication thereof and the probable duration of injuries were 02 to 03 hours approximately The MLC No. 43/2017 Exh. PG is in my ow: handwriting and bears my signatures.
The pictoria presentations Exh.PG/1 and the injury statement Exh.P(also bears my signatures and stamp."
Dr. Shaghufta Jabeen (PW-06), on the same day at about 1.50 p.m conducted the post mortem examination of the dead body of Khatoor Bibi (deceased), observed the same injuries as mentioned in the Medic( legal examination Certificate and further opined as under: "In my opinion, all the injuries were anti mortem caused b,) fire-arm except the Injury No. 01. Death was occurred due to injury to main blood vessel of chest and abdomen. Moreover , vital organ liver and lung was also injured.
Death was occurred due to server internal bleeding causing hemorrhagic shock which is sufficient to cause death in ordinary course of nature. The time between injury and death was 06 to 08 hours approximately and between death and postmortem was within 06 to 07 hours."
7. On 06.06.2017, the learned ADPP gave up PWs Muhammad Tufail, Muhammad Ibrahim, Sher Ahmad, Muhammad Kamran, Muhammad Safdar and Faheem Ahmad 1390/HC as being unnecessary , tendered the report of Punjab Forensic Science Agency , Lahore (Exh.PT) regarding the blood stained earth and the report of Punjab Forensic Science Agency , Lahore (Exh.PU) regarding the comparison of pistol and empties and closed the prosecution evidence .
8. After the closure of prosecution evidence, the learned trial Court examined the appellant namely Ghulam Hassan son of Muhammad Akram 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 replied that he was innocent and had been falsely involved in the case. The appellant namely Ghulam Hassan son of Muhammad Akram opted not to get himself examined under Section 340(2) of the, Cr .P.C. and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Pindigheb (Attock) 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 and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant, further contended that the story of the prosecution mentioned in the F.I.R., on the face of it is highly improbable. Learned counsel for the appellant further contended that the statements of the witnesses were not worthy of reliance. The learned counsel for the appellant also submitted that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity . The learned counsel for the appellant 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 contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. He further contended that the medical evidence also corroborated the statement of Muhammad Bilal (PW-7) and the dying declaration of Khatoon Bibi (deceased ). He further argued that the recovery of pistol (P- 14) from Ghulam Hassan son of Muhammad Akram (appellant) also corroborated the ocular account. He contended that there was no occasion for the prosecution witness, who was related to the deceased, to substitute the real offender with the innocent in this case.
Lastly , he prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant and learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully .
13. According to the prosecution story , the occurrence took place on night of 22.02. 2017 at about 11.00 p.m. on the street in the area Dhok Haleem which was at a distance of 26 kilometers from the police station. The formal FIR (Exh.PS) was registered on the statement (Exh.PE) made by Khatoon Bibi (then injured later deceased). The said statement (Exh.PE) made by Khatoon Bibi (then injured later deceased) was recorded by Muhammad Pervez, ASI (PW-4) who stated in his statement (examination-in-chief) that on 23.02.2017 after getting information, he reached the THQ Hospital Pindigheb along with Salma Noreen 1596/LC (PW-3) and Tauqeer Haider 2138/C (not produced), where Khatoon Bibi (then injured later deceased) was present in the emergency room and he recorded her statement (Exh.PE) which was reduced into writing and sent the same for registration of FIR. Before giving a conclusive finding regarding the legal worth of such statement of the deceased, we deem it appropriate to have a look on the law relevant on the subject. Such a statement is relevant under the provision of Article 46 of Qanun-e- Shahadat Order , 1984. Dying declaration, generally , stands for the statement of a person who is in expectation of his death and relates to the causes of his death. Such a statement is admissible in evidence though its maker does not appear in the witness box so as to provide an opportunity of cross- examination to an accused facing the charge of his murder . The admissibility of the dying declaration is an exception to the general rule which makes inadmissible the hearsay evidence. Dying declaration can be made basis for awarding conviction provided it is free from the menace of prompting and tutoring and is proved to have been made by none other than the deceased himself. The paramount reason of attaching importance and credibility to such a statement is the presumption that a dying person seldom lies. For recording of dying declaration no hard and fast rules are laid down, however , a wade through the provisions of the Police Rules, 1934 reveals that a procedure and brief guidelines are provided in chapter-25, Rule 21 which are being reproduced below for advantage sake: "25.21. Dying declarations.-(1) A dying declaration shall, whenever possible, be recorded by a Magistrate.
(2) The person making the declaration shall, if possible, be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement.
(3) If no magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case.
(4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers.
(5) A dying declaration made to a police officer should, under Section 162, Code of Criminal Procedure, be signed by the person making it." From above, it can be gathered that preferably such a statement is to be recorded either by a Magistrate or in the presence of a gazetted police officer and in absence thereof in front of two or more unconcerned reliable witnesses. However , if neither of the above mentioned persons are available, only then such a statement can be recorded in the presence of two or more police officers. The perusal of the record reveals that the Investigating Officer made no effort to procure the attendance of any unconnected witness, though it could easily be done from the concerned hospital. In the instant case, Khatoon Bibi (deceased) was brought to hospital in injured condition on 23.02.2017 at about 1.15 a.m.(as per Muhammad Pervaiz ASI PW-4) and later succumbed to her injuries at about 6.30 a.m. During period, she was provided with extensive medical treatment. It has not been mentioned in the statement of Khatoon Bibi (Exh.PE) that how and by whom she was brought to the hospital in the injured condition and reached the said hospital after about two hours of the occurrence. Muhammad Bilal (PW-7), the eye witness of the case and son of the deceased, in his statement before the learned trial Court got recorded that his mother was shifted in an injured condition to THQ Hospital Pindigheb where she succumbed to the injuries when she was on the way to the Rawalpindi Hospital. Muhammad Bilal (PW-7), by his own admission, remained present with his mother from the time of occurrence till her death,however he has not uttered a single word in his statement regarding the recording of any statement of Khatoon Bibi, deceased in the hospital by Muhammad Pervez, ASI (PW-4). Khatoon Bibi, deceased remained alive and admitted in the hospital for a considerable time, however , her purported statement (Exh.PE) was not attested by any official working at the hospital. Furthermore Muhammad Pervez, ASI (PW-4) stated in his statement (examination-in- chief) that on 23.02.2017 after getting information, he reached the THQ Hospital Pindigheb along with Salma Noreen 1596/LC (PW-3) and Tauqeer Haider 2138/C (not produced), where Khatoon Bibi (then injured later deceased) was present in the emergency room and he recorded her statement (Exh.PE) however Salma Noreen 1596/LC (PW-3) also failed to mention the recording of any such statement of Khatoon Bibi while appearing as a witness in the case.. Furthermore, Muhammad Pervez, ASI (PW-4) during cross-examination stated that at the time of recording the statement of Khatoon Bibi (Exh.PE) the Woman Medical Officer Dr. Shaghufta Jabeen, (PW-6) was also present, however as mentioned above, the said Dr. Shaghufta Jabeen, (PW-6) never . attested the document (Exh.PE). Furthermore, while appearing as a prosecution witness Dr. Shaghufta Jabeen, (PW-6) never stated that the statement of Khatoon Bibi, deceased was recorded in her presence. This aspect of the matter is like the final nail in the coffin of the prosecution so far as it covers the dying declaration. These aspects of the prosecution evidence are sufficient on their own to reject the evidence with regard to the dying declaration (Exh.PE) of Khatoon Bibi. Another prosecution witness namely Sheraz Ali Khan (PW-8) stated that he was present at the time of recording of the statement of Khatoon Bibi, deceased (Exh.PE) and he also attested the same by putting his signatures (Exh.PE/2). It is quite puzzling as to why Sheraz Ali Khan (PW-8) was made to sign the document (Exh.PE) when it had been thumb marked by the deceased herself as suggested by the prosecution. Furthermore, Muhammad Bilal (PW-7) did not mention in his statement before the learned trial Court that Sheraz Ali Khan (PW-8) had either reached at the place of occurrence or even at the THQ hospital Pindigheb. The presence of Sheraz Ali Khan (PW-8) at the hospital is hence not proved. The deceased remained in hospital for a considerable time, during which there was sufficient time for the investigating officer to record the dying declaration through a Magistrate which exercise was not done.
14. Another aspect of the case is that whether Khatoon Bibi was in full contro l of all her faculties while her statement was being recorded at 2.00 a.m. the lack of which would necessarily give rise to the conclusion that the said statement was not lucid. Dr. Shaghufta Jabeen (PW-06), who on 23.02.2017 was posted at THQ Hospital Pindigheb and on the same day at abou t 2.00 a.m. (night) examined Khatoon Bibi (then injured later deceased) and observed as under: "I examined the injured lady at 02:00 am (night). She was brought with the histo ry of fire-arm, socked (sic) with bleeding containing holes corresponding to injuries. On general appearance, she was a young lady, well-oriented, time, place and person and profuse bleeding from wound, looking pale and in miserable condition. I found following injuries on her body:-
1. A lacerated wound about 1 1/2 cm x 1.5 cm, muscle deep situated on right cheek.
2. A fire-arm wound of about 1 cm x 1 cm going deep with inverted margins. Neither any blackening or burning was seen. The wound was situated on upper 1/3 of the right arm on frontal aspect. It was an entry wound.
3. A fire-arm wound of about 1/1/2 x 11/2 cm with averted margins situated on inner aspect of right arm in upper 1/3 portion (exit wound).
4. A fire-arm wound of about 11/2 cm x 11/2 cm with inverted margins with blackening and burning around the margins situated between the right armpit (entry wound).
5. A lacerated path way of about 2 1/2 cm x 11/2 cm muscle deep with blackening and burning just before the Injury No. 04.
6. A fire-arm wound of about 3 cm x 2 1/2 cm going deep with inverted margins, blackening and burning was present. It was situated on left side of chest on lateral and lower aspect of the ribcage (entry wound).
7. A fire-arm wound of about 11/2 cm x 1 cm with inverted margins going deep situated on upper 1/4th of thigh in lower femoral area.
8. A fire-arm wound of about 11/2 cm x 11/2 cm with everted margins going deep situated on right gluteal region (wound of exit of Injury No. 07)."
A perusal of the injuries observed by Dr. Shaghufta Jabeen (PW -6) on the person of Khatoon Bibi reveals that she was bleeding profusely . While conducting the post mortem examination of the deceased Dr. Shaghufta Jabeen (PW-6) observed as under :- "On examination of thorax walls, ribs and cartilages were damaged. Pleurage was injured, lower portion of the left lung (only single lobe) was damaged. Blood vessels are totally damaged in the chest area as the whole chest area was filled with blood. Rest of the organs were found healthy .
Abdomen: Walls were healthy but on opening, whole of the cavity was filled with blood, peritoneum was mildly damaged.
Diaphragm at the site of the injury was damaged. Panereas was mildly injured. The liver was damaged (left lobe). " The condition in which the organs of Khatoon Bibi were found by Dr. Shaghufta Jabeen (PW-6) in itself sufficiently proves that Khatoon Bibi deceased was no condition to make a lucid statement. Furthermore, Dr. Shaghufta Jabeen, (PW -6) during cross examination admitted as under: "It is correct that I have mentioned in MLC Exh. PG that the injured (since deceased) at the time of examination was in the position of shock, volunteered the term shock refers to different stages and she was actually in the initial stage of the shock with respect to name, place and person."
Considering the peculiar circumstances of this case, injuries on the person of Khatoon Bibi (deceased) and their nature, we are of the view that she was neither able to make statement nor had indeed made the statement (Exh.PE) before Muhammad Pervez, ASI (PW-4). The document (Exh.PE), the dying declaration of Khatoon Bibi is proved to be a result of fabrication. Such feature of the case raises further questions over the veracity and correctness of the dying declaration as well as the opinion of the doctor (Exh.PD/1), according to which the deceased was fit to make statement at the relevant time. According to well settled principles laid down for the appraisal of dying declaration, such a statement is to be appraised like the testimony of any other witness.
Likewise, we have not been able to trace any explanation from the perusal of the record that as to why the statement of the deceased (Exh.PE) was not recorded in the presence of the doctor as it does not bear his signatures. It needs no mention that for a dying person, a doctor is like nothing less than an angel and the last ray of hope for him in his capacity as a savior of his life. In this backdrop, a doctor can be the best person to endorse the dying declaration as it is expected from a dying person to tell the whole truth to the doctor . In somewhat similar circumstances, the Hon'ble Supreme Court of Pakistan expressed in the case of Mst. Zahida Bibi v. The State (PLD 2006 Supreme Court 255) to the following ef fect:- "The rule of criminal administration of justice is that the dying declaration like an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell a lie. This is a matter of common knowledge that in such circumstances in preference to any other person, a doctor is most trustworthy and reliable person for a patient to depose confidence in him with the expectation of sympathy and better treatment to disclose the true facts."
15. We have also noted that no source of light, which could have been available at the place of occurrence at the time of occurrence allowing the witnesses, Muhammad Bilal (PW-7) to identify the assailant, was taken into possession by the Investigating Officer namely Muhammad Tufail, SI (PW-12) despite the fact that as per prosecution's own claim the occurrence had taken place during the night at about 11.00 p.m. Muhammad Tufail, SI (PW-12), the Investigating Officer of the case, 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 neither the witnesses produced any such source of light during the investigation of the case or during the trial through which source they could have identified the assailant in the dead of the night. Moreover , according to the prosecution evidence, the deceased was injured at an open place belonging to one Abdul Raheem which was about 80 feet from the house of the deceased .The prosecution failed to establish the fact of such availability of light source and in absence of their ability to do so, we cannot presume the existence of such a light source. Reliance is placed on the case of "Azhar Mehmood and others v. The State" (2017 SCMR135) wherein the August Supreme Court of Pakistan observed as under: "The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnesse d by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating of ficer.
Reliance is placed on the case of "Arshad Khan v. The State" (2017 SCMR 564) wherein the August Supreme Court of Pakistan observed as under: "The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnesse d by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating of ficer."
16. The prosecution has also relied on the statements of Muhammad Aslam (PW-9) and Masood Ahmad (PW-11) who stated that they saw the appellant namely Ghulam Hassan in the street and were told by Khatoon Bibi (deceased ) that she had been injured by the appellant. These witnesses had not witnessed the occurrence by themselves. Muhammad Aslam (PW -9) admitted in his cross examination as under: "It is correct that I was sleeping at that time. It is correct that I got up after hearing the noise of firing."
Similarly , Masood Ahmad (PW-11) also admitted in his cross examination that he was attracted to the place of occurrence after hearing the sound of firing. Both these witnesses had not witnessed the occurrence. Furthermore, the only eye witness of the occurrence namely Muhammad Bilal (PW-7) had not mentioned in his statement before the learned trial Court that Masood Ahmad (PW-11) was present at the place of occurrence. There evidence is of no bearing and does not progress the case of prosecution against the accused in any manner .
17. Learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence, given in the statement (Exh.PE), was that the appellant wanted to establish illicit relations with the deceased. No further details of the said motive were mentioned in the statement (Exh.PE). There is a haunting silence with regard to the minutiae of motive alleged in the written application (Exh.PE). More over during the investigation of the case or the trial, no evidence was produced to support the motive of the occurrence. Failure of the prosecution to produce any evidence in support of the motive institutes that the appellant had no motive to commit the occurrence. We have thus reached a conclusion that the prosecution remained unable to establish any motive. A tainted piece of evidence cannot corroborate 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."
18. Learned Deputy Prosecutor General has also relied upon the recovery made from the appellant. The recovery of the pistol (Exh.P-14) from the appellant Ghulam Hassan cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said Pistol (Exh.P-14) from the appellant which was in clear violation of Section 103 Cr.PC and therefore cannot be used as incriminating evidence against the 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 vs. 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."
19. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement, of Ghulam Hassan son of Muhammad Akram (appellant) in the present case. It is settled principle of law that for giving benefit of doubt it is not necessa ry that there should be so many circum stances 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 vs. 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 a 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. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221 ), Muhammad Akram v .The State ( 2009 SCMR 230 ) and Muhammad Zaman v .The State ( 2014 SCMR 749 )."
Reliance is also placed on the judgment of the august Supreme Court of Pakista n "Muhammad Akram vs. 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 circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
20. For what has been discussed above, Criminal Appeal No. 728-J of 2017 lodged by Ghulam Hassan son of Muhammad Akram (appellant) is accepted and the conviction and sentences of the appellant awarded by the learned trial Court through the impugned judgment dated 07.06.2017 are hereby set-aside. Ghulam Hassan son of Muhammad Akram (appellant) is ordered to be acquitted. Ghulam Hassan son of Muhammad Akram (appellant) is directed to be released forthwith if not required in any other case.
21. Murder Reference is answered in Negative and the death sentence of Ghulam Hassan son of Muhammad Akram is Not Confirmed.