1. SADIQ MAHMUD KHURRAM, J. Muhammad Siddique son of Muhammad Rafique (convict) was tried along with Zahoor Ahmad, Abdullah, Pappu, Aslam, Sadiq, Allah Diwaya and Abdul Hameed alias Meedoo, the co-accused of the convict (all since acquitted) by the learned Additional Sessions Judge, Lodhran in the case instituted upon the private complaint titled "Muhammad Shahid Vs. Muhammad Siddique and seven others" (relating to F.I.R. No. 357 of 2019 dated 05.05.2019 registered at Police Station Saddar Lodhran District Lodhran) in respect of offences under sections 302, 148, 149 and 109 P.P.C. for committing the Qatl-i-Amd of Muhammad Ashraf son of Muhammad Hanif (deceased). The learned trial court vide judgment dated 17.02.2021, convicted Muhammad Siddique son of Muhammad Rafique (convict) and sentenced him as infra: Muhammad Siddique son of Muhammad Rafique: Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Ashraf son of Muhammad Hanif (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased namely Muhammad Ashraf son of Muhammad Hanif (deceased); in case of default thereof, the convict was directed to undergo further simple imprisonment for six months.
2. The convict was ordered to be hanged by his neck till dead.
3. Zahoor Ahmad, Abdullah, Pappu, Aslam, Sadiq, Allah Diwaya and Abdul Hameed alias Meedoo, the co-accused of the convict, were acquitted by the learned trial court.
2. Feeling aggrieved, Muhammad Siddique son of Muhammad Rafique (convict), lodged the Criminal Appeal No.98 of 2021 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.04 of 2021 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant, namely Muhammad Siddique son of Muhammad Rafique. We intend to dispose of the Criminal Appeal No. 98 of 2021 and the Murder Reference No.04 of 2021 through this single judgment.
3. Precisely , the necessary facts of the prosecution case, as stated by Muhammad Shahid (PW-2), the complainant of the case, are as under:- "Stated that my real uncle namely Muhammad Ayub convicted in case FIR No.361/19, u/s 302 PPC, PS City, Lodhran and was confined in New Central Jail, Bahawalpur . On 05.05.2019 at about 07:00/08:00 AM, my father Muhammad Ashraf was on his own motorcycle bearing registration No. 3624 LDK and I was alongwith Allah Rakha and Muhammad Akram on another motorcycle and were going to Basti Punnu Wala, Mouza Lalay Wala to fields of Muhammad Ayub for threshing wheat crops. When we reached at Chah Badal Wala, Mouza Lalay Wala we were ahead from my father , suddenly accused persons namely Muhammad Saddique, Zahoor Ahmed, Abdullah, Pappu and Muhammad Aslam armed with pistol 30-bore reached near Chah Badal Wala. The accused persons stopped my father on gun point near Chah Badal Wala. On hue and cry of my father , we reached at the spot and saw that accused Zahoor made a lalkara to teach a lesson to Muhammad Ashraf for supporting his brother Muhammad Ayub and bhabhi Mst. Hamidan Bibi in previous case FIR No.361/19, PS City, Lodhran. I tried to rescue my father Muhammad Ashraf with the help of other PWS but accused persons threatened us if we came near they would killed us Within our view accused Muhammad Saddique present before the court made fire with his pistol 30-bore which hit on the right side of head of my father and made second fire which landed on the right side of chest of my father , my father fell down on earth from his motorcycle. Accused Muhammad Saddique made third fire with pistol 30-bore but fire was missed. After that accused Muhammad Saddique put out another pistol 30-bore from his nepha and made fourth fire which hit on the left side of chest of my father . The accused Zahoor present before the court made fire with pistol 30-bore which hit on the right side of mouth of my father and made second fire which hit on the right thigh of my father . Accused Abdullah present before the court made fire shot with pistol 30-bore which landed on the right side of belly of my father and made second fire which hit on left armpit on left shoulder of my father . Accused Pappu made a fire shot with his pistol 30-bore which landed on the right knee of my father and second fire shot which hit on the finger of right hand of my father . Accused Muham mad Aslam made fire shot with pistol 30 bore which hit on the upper lip of my father , second fire shot landed on left side of the upper lip of my father . He also made third fire shot which landed on left side of belly of my father . All the accused persons made repeatedly fires which hit on the different parts of body of my father and my father succumbed to the injuries at the spot. All the accused persons killed my father on the abetment of accused namely Muhammad Sadiq, Allah Diwaya and Abdul Hameed alias Meedu. After that all the accused persons fled away to the western side of place of occurrence by riding their motorcycles upon seeing the other respectables of the locality .
4. Motive behind the occurrence is that my paternal uncle Muhammad Ayub contracted love marriage with Mst.
5. Hamidan Bibi d/o Ghulam Qadir ten years prior to the occurrence and Abdul Ghafoor brother of the accused Muhammad Saddique, had been murdered by anyone but my real uncle Ayub was convicted and confined in New Central Jail. Bahawalpur . My father , Muhammad Ashraf (since deceased) pursued this murder case. Due to this grudge all the accused persons killed my father . Police recorded my statement as well as statements of PWs.
6. Police did not recorded (sic) our statements as we narrated. Police did not investigate the case properly and not arrested all the accused persons except Saddique and Aslam upon which I filed complaint Exh.PB which also bears my thumb impression Exh.PB/1. All the accused persons are real culprits, they committed the murder of my father Muhammad Ashraf. They be punished in accordance with law ."
4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Muhammad Shahid Vs. Muhammad Siddique and seven others" (relating to F.I.R. No. 357 of 2019 dated 05.05.2019 registered at Police Station Saddar Lodhran District Lodhran) in respect of offences under sections 302, 148, 149 and 109 P.P.C. for committing the Qatl-i-Amd of Muhammad Ashraf son of Muhammad Hanif (deceased). The learned trial court framed the charge against the accused on 17.02.2020, to which the accused pleaded not guilty and claimed trial.
5. The complainant of the case in order to prove its case got statements of as many as ten witnesses recorded.
7. The ocular account of the case was furnished by Muhammad Shahid (PW-2) and Muhammad Akram (PW-3). Khalil Ahmad (PW-1) stated that on 05.05.2019 he identified the dead body of the deceased at the time of its post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the police officer in his presence. Haider Aziz, JFS (PW-4) stated that on 05.05.2019, he prepared four sealed parcels containing empty shells recovered from the place of occurrence and the swabs taken from the dead body and handed over the said parcels to Abid Hussain, SI (PW-9). Qaisar Ameer , 83/HC (PW-5) stated that on 05.05.2019, he got recorded the formal F.I.R (Exh.PG) and on the same day Abid Hussain SI (PW-9) , the Investigating Officer of the case , handed over to him various parcels said to contain the blood stained earth , empty shells , swabs taken from the dead body of the deceased , for keeping them in safe custody and on 07.05.2019, he handed over the said parcels to Abid Hussain, SI (PW-9) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore and that on 12.06.2019, Abid Hussain, SI (PW-9) handed over the said sealed parcels said to contain a pistol and another pistol said to contain a magazine, which on 24.06.2019, he handed over both the parcels to Abid Hussain SI (PW-9) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Syed Hassan Abbas, Patwari (PW-6) prepared the scaled site plan of the place of occurrence (Exh.PH). Muhammad Imran 655/C (PW-7) stated that on 05.05.2019, he escorted the dead body of the deceased to the hospital for post mortem examination and also received the last worn clothes of the deceased from the Medical Officer, which clothes he handed over to the Investigating Officer of the case. Muhammad Iqbal 776/C (PW-8) stated that on 12.06.2019, the appellant namely Muhammad Siddique got recovered two pistols (P-10 and P-11) along with a magazine (P12) and one live bullet (P-13), which were taken into possession by the Investigating Officer of the case vide recovery memo (Exh.PI). Muhammad Iqbal 776/C (PW-8) further stated that on 12.06.2019, Muhammad Aslam (since acquitted), the co-accused of the appellant, got recovered a motorcycle.
8. Abid Hussain SI (PW-9) investigated the case from 05.05.2019 till 24.06.2019, arrested the appellant on 30.05.2019 and detailed the facts of the investigation conducted by him in his statement before the learned trial court.
6. The learned trial court also examined Zubair Ahmad, SI (CW-1) as a court witness who stated that he investigated the case from 22.06.2019 to 11.08.2019 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
7. The learned trial court also examined Dr. Ali Hassan (PW-10), who on 29.05.2019 was posted as Medical Officer at DHQ, Lodhran and on the same day conducted the post mortem examination of the dead body of the deceased, namely Muhammad Ashraf son of Muhammad Hanif. Dr. Ali Hassan (PW-10) on examining the dead body of the deceased namely Muhammad Ashraf son of Muhammad Hanif, observed as under:- "DESCRIPTION OF INJURIES Injury No. 1.
9. A lacerated wound of size about 03 CM X 01 CM. present on right side of skull approx.. 03 cm above right ear, the margins of wound were inverted, burn marks were present around wound and skull bone was shattered/fractures (entry wound).
10. Injury No.2.
11. A lacerated wound of size about 07 CM X 03 CM, present on left side of skull approx.. 05 cm above & posterior to left ear, the margins of wound were averted. The brain matter was oozing from wound and skull bone was shattered/fractures (exit wound). Clotted blood was present Injury No.3.
12. A lacerated wound of size about 1.25 CM X 01.25 CM, present approx. 02 cm above left upper lip, the margins of wound were inverted, burn marks were present around wound (Entry wound). The wound was going deep Injury No.4.
13. A lacerated wound of size 08 CM X 03 CM. present on occipital region of skull, the margins of wound were everted, the brain matter was oozing from wound. Skull bone was shattered/fractures (Exit wound). Clotted blood was present.
14. Injury No.5.
15. A lacerated wound of size approx 01 CM X 01 CM, present on right side of chest approx. 03 cm above right nipple, the margins of wound were inverted, burn marks were present around wound (entry wound). Right lung was lacerated. The wound was going deep.
16. There was a lacerated wound of size approx 1 Cm X 1 CM present on left side of chest approx 02.5 cm above left nipple, the margins of wound were inverted, burn marks were present around wound (entry wound). The left lung and heart were lacerated. The wound was going deep.
17. Injury No.6.
18. There was a lacerated wound of size approx 1 Cm X 1 CM present on left side of abdomen approx 07 CM away and above umbilicus, the margins of wound were inverted, burn marks were present around wound (entry wound).
19. The wound was going deep. The intestine was lacerated/punctured.
20. Injury No.7.
21. There was a lacerated wound of size approx 01 Cm X 1 CM present in left axilla, the margins of wound were inverted, burn marks were present around wound (entry wound). The left lung was lacerated. The wound was going deep.
22. Injury No.8.
23. There was a lacerated wound of size approx 1.5 Cm X 1.5 CM present on middle finger of right hand, bone was exposed and fractures. Clotted blood was present. The finger was partially amputated.
24. Injury No.9.
25. There was a lacerated wound of size approx 1 Cm X 1 CM present on anterior aspect of right thigh (mid), the margins of wound were inverted, burn marks were present around wound (entry wound). The wound was going deep.
26. Injury No.10.
27. There was a lacerated wound of size approx 1 Cm X 1 CM present on inner aspect of left thigh 7 cm above knee, the margins of wound were inverted, burn marks were present around wound (entry wound). The wound was going deep.
28. Injury No.1 1.
29. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on back approx at level of thoraco-lumber spine on right side, the margins of wound were everted, the blood was oozing from wound, vertebra fractures (Exit wound)
30. Injury No.12.
31. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on back approx 04 cm away from injury No.11 on left side, the margins of wound were everted, the blood was oozing from wound (Eat wound).
32. Injury No. 13.
33. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on back approx 04 cm below from injury No 12, the margins of wound were everted, the blood was oozing from wound (Exit wound).
34. Injury No.14.
35. There was a lacerated wound of size approx 1 Cm X 1 CM present on right side of abdomen approx. 10 cm away and above umbilicus, the margins of wound were Inverted, burn marks were present around wound (Exit wound).
36. The wound was going deep. The intestine and liver were lacerated/punctured.
37. Injury No.15.
38. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on back approx. 04 am above from injury No. 12. the margins of wound were everted, the blood was oozing from wound (Exit wound).
39. Injury No.16.
40. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on back approx. 06 cm above from injury No.15, the margins of wound were everted, the blood was oozing from wound (Exit wound)
41. Injury No.17.
42. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on posterior aspect of right thigh middle.
43. The margins of wound were everted, Clotted blood was present (Exit wound)
44. Injury No.18.
45. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on posterio r aspect of left thigh middle, the margins of wound were everted, Clotted blood was present (Exit wound).
46. Injury No.19.
47. There was a lacerated wound of size approx 1.5 Cm X 1.5 CM present on right side of face approx 03 cm below from injury No.1, the margins of wound were inverted, the burn marks were present around wound, and mandible bone was fractured (Entry wound).
48. Injury No.20.
49. There was a lacerated wound of size approx 1 Cm X 1 CM present on upper aspect of right knee, the margins of wound were inverted, the burn marks were present around wound (Entry wound) The wound was going deep.
50. Injury No.21.
51. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on posterior aspect of right knee, the margins of wound were everted, Clotted blood was present (Exit wound.
52. FINAL OPINON.
53. After receiving the report of histopathology , toxicology report and radiology report, l am the opinion of that the patient had multiple firearm injuries and the death of patient was due to excessive blood loss (hemorrhage) in ordinary course of nature injury No.1 to 5 are collectively as well as separately are suf ficient to cause death."
8. On 12.11.2020, the learned counsel for the complainant gave up the witnesses namely Allah Rakha and Muhammad Nawab as being unnecessary . On 27.01.2021, the learned counsel for the complainant gave up the prosecution witness, namely Sher Afzal 201/C as being unnecessary and closed the prosecution evidence after tendering the reports of the the Punjab Forensic Science Agency , Lahore (Exh.PR, Exh.PS, Exh.PT and Exh.PU).
9. After the closure of prosecution evidence, the learned trial court examined the appellant, namely Muhammad Siddique son of Muhammad Rafique under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant, namely Muhammad Siddique son of Muhammad Rafique, opted not to get himself examined under section 340(2) Cr .P.C, and did not adduce any evidence in their defence.
10. At the conclusion of the trial, the learned Additional Sessions Judge, Lodhran convicted and sentenced the appellant as referred to above.
11. The primary contention of the learned counsel for the appellant is that the whole case is fabricated and false.
54. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statements of the prosecution witnesses namely Muhammad Shahid (PW- 2) and Muhammad Akram (PW-3) were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the appellant beyond the shadow of doubt.
12. On the other hand, the learned Deputy Prosecutor General contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. He 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 statements of Muhammad Shahid (PW-2) and Muhammad Akram (PW-3). He further argued that the recovery of the pistols (P-10 and P-11) from the appellant namely Muhammad Siddique son of Muhammad Rafique also corroborated the ocular account. He further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly , the learned Deputy Prosecutor General prayed for the rejection of appeal as lodged by the appellant namely Muhammad Siddique son of Muhammad Rafique.
13. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully .
14. The whole prosecution case revolves around the statements of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), the eyewitnesses of the occurrence. The relationship of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), with the deceased is on record. Muhammad Ashraf (deceased) was the real father of Muhammad Shahid (PW-2), and brother in-law (Behnoi) of the prosecution witness namely Muhammad Akram (PW-3). It is also an admitted aspect of the prosecution case that the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW- 3), were not the residents of the place of occurrence or any place near the same. According to the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), the place of occurrence was at a distance of about 18/19 kilometres from the places of their residences. The prosecution witness namely Muhammad Shahid (PW -2), during cross-examination explained as under:- "Basti Hussain Abad is 18/19 kilometers away from the place of occurrence . My as well as house of Akram PW is situated at Basti Hussain Abad where as house of Allah Rakha PW is situated near to court premises.
55. It is correct that neither I nor any of my PW ownes (sic) any property , busin ess or have any residence in surroundings of the place of Occurrence." (emphasis supplied).
56. Similarly , Muhammad Akram (PW -3), during cross-examination explained as under:- "I have no house, business or any landed property near to the place of occurrence . My house is 17/18 kilometer away from the place of occurrence." (sic)
57. The above-referred portions of the cross-examination of the prosecution witnesses reflects that the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. We have also noted that instead of providing any reason for their presence at the place of occurrence, at the time of occurrence, both the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) candidly admitted that they had no reason for proceeding towards the place of occurrence or being present at the place of occurrence and also admitted that it was not even their routine to have travelled to the place of occurrence. The prosecution witness namely Muhammad Shahid (PW-2) admitted during cross-examination as under:- "It was not our daily routine to pass through the place of occurrence."
58. Similarly , the prosecution witness namely Muhammad Akram (PW -3) during cross-examination stated as under:- "I per chance were passing through from place of occurrence. Even Allah Rakha and Shahid PWs were also not regular visitor of the alleged place of occurrence and they were also by chance passing through the place of occurrence. Ashraf deceased was also having no business at or around the place of occurrence." (emphasis supplied)
59. We have also noted with disquiet that though, it was claimed by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) that they had gone to the place of occurrence on a motorcycle, however , during the course of the investigation, as well as before the learned trial court, the said motorcycle, allegedly used by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) to arrive at the place of occurrence, was not produced. According to the prosecution evidence, Abid Hussain SI (PW- 9), the Investigating Officer of the case, visited the place of occurrence after the occurrence and remained there for a considerable time. During the course of his stay at the place of occurrence, Abid Hussain, SI (PW-9), the Investigating Officer of the case, did not take into possession the motorcycle allegedly used by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) to arrive at the place of occurrence along with the other recoveries, though there was no occasion for the said motorcycle not to have been present at the place of occurrence or not being taken into possession by the Investigating Officer during his visit to the place of the occurrence, if the same was available. The prosecution witness namely Muhammad Shahid (PW-2) in his statement before the learned trial court stated as under:- "I was alongwith Allah Rakha and Muhammad Akram on another motorcycle and were going to Basti Punnu Wala, Mouza Lalay W ala "
60. The said motorcycle, which was used by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), was not produced during the entire period of investigation nor was produced before the learned trial court even though the case was instituted upon a private complaint and in that manner , the complainant of the case had all the opportunity to produce the said motorcycle before the learned trial court as proof. The non-production of the motorcycle, used by the prosecution witnesses namely Muhammad Shahid (PW- 2) and Muhammad Akram (PW-3), to arrive at the place of occurrence and the failure of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) as well as the Investigating Officer of the case to produce the same before the learned trial court leads to only one conclusio n and that being that no such motorcycle was available. Abid Hussain, SI (PW-9), the Investigating Officer of the case, during cross-examination admitted as under:- "Except the motorcycle of the deceased no other motorcycle was found at the place of alleged occurrence."
61. Had the motorcycle been used by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) to arrive at the place of occurrence, then the same must have been available at the place of occurrence, at the time of arrival of Abid Hussain, SI (PW-9), the Investigating Officer of the case and the same would necessarily have been taken into possession by Abid Hussain, SI (PW-9), the Investigating Officer of the case but it was not. During the trial it was proved that a false claim was made by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) that they had arrived at the place of occurrence on a motorcycle. The very inception of the prosecution case is therefore put in doubt. Reliance in this regard is placed on the case of "Muhammad Ali Vs. The State" (2015 SCMR 137) wherein the august Supreme Court of Pakistan has held as under:- "The Investigating Officer during the cross-examination has admitted that the 'Dala' was not present when he visited the spot and he had not taken into possession the said 'Dala' during investigation. So the story introduced by the eyewitnesses that they were travelling on the 'Dala' when the incident took place is not supported by any connecting material."
62. In this manner , the eye witnesses namely Muhammad Shahid (PW-2) and Muha mmad Akram (PW-3), not only failed miserably to establish the reason for their arrival and presence at the place of occurrence, at the time of occurrence but also the mode through which they came to arrive at the place of occurrence. The prosecution was under a bounden duty to establish that the occurrence had indeed taken place when the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) had proceeded to and arrived at the place of the occurrence and the failure to prove any reason for the prosecution witnesses namely Muhammad Shahid (PW- 2) and Muhammad Akram (PW-3) to had proceeded to the place of occurrence and the failure to prove the mode through which they came to arrive at the place of occurrence, has vitiated our trust in the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) . In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698 ) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometre 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 "Usman alias Kaloo v. State" (2017 SCMR 622), wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant Ghulam Farid and Manzoor Ahmed witnesses in the said case, who were all residents of some other houses and were not the inmates of the house wherein the occurrence had taken place and therefore the said eyewitnesses ,being chance witnesses , were declared not worthy of reliance. 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."
15. We have also noted that according to the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), the accused had been threatening them personally not to pursue the proceedings of the case F.I.R No. 361 of 2019. The prosecution witness namely Muhammad Shahid (PW-2) , during cross- examination stated as under:- "Whenever I came to pursue the case FIR No 361/19 of my uncle the accuse d Allah Dewaya, Hameed, and Sadiq threatened me. We never told the fact to the police prior to the registration of this case regarding the threats advanced by the accused persons to us." (emphasis supplied)
63. Similarly , the prosecution witness namely Muhammad Akram (PW -3) during cross-examination stated as under:- "Whenever I came to pursue the case FIR No. 361/19 of my close relative Ayub the accused persons Allah Dewaya, Hameed and Sadiq threatened me."
64. Not only the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) claimed that the accused had been threatening them personally for pursuing the proceedings of the case F.I.R No. 361 of 2019 but also stated that the deceased had no connection whatsoever with the proceedings of the case F.I.R No. 361 of 2019 and neither he was pursuing the case of Muhammad Ayyub, the pater nal uncle of Muhammad Shahid (PW-2) . The prosecution witness namely Muhammad Shahid (PW-2), during cross-examination admitted as under:- "It is correct that my father was not nominated as accused in the above mentioned murder case. It is also correct that my father was not even witness of any party in said murder case . My father has not involvement in abduction and court marriage of Hameedan Bibi. Abduction of Hameedan Bibi took place ten years ago. It is correct that there was no criminal litigation between my deceased father and accused persons. Volunteered they used to restrain my father from pursuing the murder case of Abdul Ghafoor . Accused of case FIR No.361/19 were not been pursued by my deceased father" (emphasis supplied)
65. In these circumstances, the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) should have been the prime targets of the assailants. Furthermore, according to the prosecution evidence, the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) were in clear view, at a meagre distance, from the assailants and unarmed whereas the accused were allegedly armed with various firearm weapons and the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW- 3) also claimed that they tried to intervene and get the deceased released from the clutches of the accused.
66. Neither there was any dearth of ammunition nor that of intent and opportunity on part of the appellant or his co- accused for not doing away with the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), their main adversaries, who at the time of occurrence, were present at the place of occurrence and there did not exist any obstacle in the line of the sight of the accused and the place where the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) were present which could have precluded the assailants from observing the presence of the prosecution witness es namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3). In this scenario, it is hard to believe that the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) would have been shown the courtesy of being not fired at all, when the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) should have been the prime targets of the assail ants . In the midst of firing by so many accused persons, the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) did not receive even a single scratch on their bodies during the whole incidence. If the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) had been present in the sight of the assailants, then they would not have been spared.
67. Blessing the prosecution witnesses namely Muhammad Shahid (PW-2) and Muha mmad Akram (PW-3) with such an incredible consideration and showing them such favour , the persons with whom the assailants had a direct dispute with, is implausible and opposed to the natural behaviour of any accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive, they would depose against the accused, even then the appellant and his co-accused did not cause any injury to them. Such behav iour, on part of the accused as deposed by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) runs counter to natural human conduct and behaviour . Article 129 of the Qanun-e-Shahadat Order , 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order , 1984, that the conduct of the assailants, as deposed to by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) was opposed to the common course of natural events and human conduct. Hence, we are holding that the prosecution witnesses namely Muhamm ad Shahid (PW-2) and Muhammad Akram (PW-3) did not witness the occurrence. The august Supreme Court of Pakistan in its binding judgments has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them, notwithstanding being within the range of their firing, would reveal that the said witnesses had not witnessed the occurrence. The august Supreme Court of Pakistan in case Tariq Mehmood v. The State and others (2019 SCMR 1 170) has observed as under: "First sight cannot escape preponderance of evidence, however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report."
68. The august Supreme Court of Pakistan in case Rohtas Khan v. The State (2010 SCMR 566) at page 571 observed as under: "The alleged motive was against the complainant, but it is noted that the appellan t did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P .Ws. were not present at the place of occurrence."
69. The august Supreme Court of Pakistan in the case of Muhammad Farooq & another v. The State (2006 SCMR 1707 ) at page 1712 held as under:- "Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased."
70. We are also guided by the binding judgment of the august Supreme Court of Pakistan passed in the case of Mst.
71. Rukhsana Begum & others v . Sajjad & others ( 2017 SCMR 596 ) where at page 601 it was observed as under:- "Another intriguing aspect of the matter is that, according to the F.I.R., all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye witness. The site plan positions would show that, he and the other P.W.s were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story . Such behavior , on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition."
16. We have also been quite distressed by the fact that though it was claimed by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) that they were present at the place of occurrence and had witnessed the same, however none of them attempted to take Muhammad Ashraf (deceased), who then was in an injured condition, to the hospital and according to the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) kept bleeding at the place of occurrence for as long as one and half hour . The prosecution witness namely Muhammad Akram (PW -3) during cross-examination stated as under:- "Ashraf deceased was my behnoi. We did not try to shift Muhammad Ashraf to some clean place. Ashraf remained lying at the place of occurrence in injured condition for one/one and half hour . None of us tried to shift him to hospital, Volunteered police shifted him to hospital. Firing continued for three minutes. Even we did not try to remove motorcycle from the person of Muhammad Ashraf." (emphasis supplied).
72. Similarly , the prosecution witness namely Muhammad Shahid (PW -2) during cross-examination admitted as under:- "Deceased remaining lying at the place of occurrence till the arrival of police. We did not attend the deceased .
73. When police arrived there they shifted the dead body . Police shifted the dead body of deceased on a cot.
74. Deceased was lying on the earth when police arrived there. One leg of deceased was under the motorcycle.
75. Neither we nor any inhabitant of the area tried to place the then injured at any clean place. Likewise we did not try to remove motorcycle from the body of injured.
76. Neither we nor any other person tried to shift then injured to any hospital. It is correct that services of Rescue 1122 are available in Lodhran. (emphasis supplied)
77. This failure of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) to take Muhammad Ashraf (deceased) to the hospital for as many as 1 1/2 hours clearly establishes the fact that they were not present there, otherwise Muhammad Ashraf (deceased) would not have been left bleeding at the place of occurrence. This conduct of the witnesses wherein they made no effort to take the then injured Muhammad Ashraf (deceased) to the hospital also convincingly establishes that the said witnesses were not present. The august Supreme Court of Pakistan in the case of "Abdul Jabbar alias Jabbari v. The State" (2017 SCMR 1155) has observed as under: "The Medico-legal Certificate issued in respect of Manzoor Ahmed deceased when he was alive shows that the injured victim was brought to the hospital not by the above mentioned eye-witnesses but by a police official which showed that in all likelihood the said eye-witnesses had been procured and planted in this case at some subsequent stage."
78. The august Supreme Court of Pakistan in the case of "Zaheer Sadiq v. Muhammad Ijaz and others" (2017 SCMR 2007 ) has observed as under: "The conduct of both these witnesses is also highly improbable as they did not try to shift Muhammad Sadiq (deceased) or Muhammad Sadiq (injured) to the hospital prior to the arrival of the Police."
79. The prosecution witnesses also admitted that they did not accompany the dead body of the deceased to the hospital and the same was shifted to the hospital by the police authorities. The prosecution witness namely Muhammad Akram (PW -3) during cross-examination admitted as under:- "Neither I nor complainant and Allah Rakha accompanied the dead of deceased."
80. This fact also proves that had the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) been present at the place of occurrence, then they would also have accompanied the dead body to the hospital. Reliance is also placed on the case of "Muhammad Sharifan Bibi vs. Muhammad Yasin and others" ( 2012 SCMR 82 ) wherein the august Supreme Court of Pakistan held as under:- "Their presence becomes further doubtful as none of them accompanied Abdul Latif deceased to the hospital for postmortem examination."
81. Moreover , according to the statement of Abid Hussain, SI (PW-9), the Investigating Officer of the case, at the time of preparation of the inquest report, he found that the mouth of the dead body was open. Abid Hussain, SI (PW-9), the Investigating Of ficer of the case, during cross-examination, stated as under:- "Mouth of the dead body was opened when it examined even eyes were in semi opened condit ion. As per column No.22 & 23 of inquest report nothing is mentioned to be present in surroundings of the place of presence of dead body ." (emphasis supplied)
82. The stance set up by the prosecution in the present case was that the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) were present at the time of the death of the deceased and had remained with the dead body . The mouth and eyes of the deceased were found open at the time of preparation of the inquest report (Exh.PK), thus, if the witnesses were present then, at least after the death, as is a consistent practice of such close relatives, they would have closed the eyes and mouth of the deceased on his expiry . Thus, the open eyes and mouth of the deceased force a hostile interpretation against the prosecution's version regarding the presence of the prosecution witnesse s namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) at the place of occurrence, at the time of occurrence. This fact by itself indicates that none was present with the deceased till his death. The august Supreme Court of Pakistan in the case of "MUHAMMAD RAFIQUE alias FEEQA vs. The State" ( 2019 SCMR 1068 ) has held as under: "What has further irked this Court is that in column No. 9 of the Marg Report (Ex.PW9/1), and even in the Post Mortem Report (Ex.PW -10/A), the mouth of the deceased has been stated to be open, which clearly indicates that the dead body was not attended to by his close relatives after being pronounced dead. However , the stance set up by the prosecution in the present case is that Arshad Ali - the brother , and Nazir Ahmad - the uncle of the deceased Muhammad Azam were present at the time of his death, and remained with him, even thereafter . Thus, the said posture of the deceased raises an adverse inference against the prosecution's version regarding the presence of the said persons at the place and time of occurrence."
83. We have also noted that both the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) were neither mentioned in column No.4 nor at page 4 of the inque st report (Exh.PK) as being the witnesses who were present near the dead body at the time of preparation of the inquest report (Exh.PK). This fact also evidences the absence of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW -3) at the place of occurrence, at the time of occurrence.
17. Another aspect of the case raising our doubt over the presence of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) at the place of occurren ce, at the time of occurrence, is the fact that they never reported the matter to the police and Abid Hussain SI (PW-9), the Investigating Officer of the case, himself reached at the place of occurrence and received the written application (Exh.D.A.) of the prosecution witness namely Muhammad Shahid (PW-2). Both the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) admitted this fact that neither they attempted to report the matter to the police nor , as mentioned above, made any effort to take the deceased to any hospital. The prosecution witness namely Muhammad Shahid (PW -2) during cross-examination admitted as under:- "Neither I nor any of my PWS visited police station to convey information regarding the occurrence to police. Volunteered someone might have informed the police through call. I as well as my witnesses were having mobile phones in our possession. Neithe r I nor my witnesses made any phone call to police at 15 or to rescue 1122." (emphasis supplied).
84. Similarly , Muhammad Akram (PW -3) during cross-examination admitted as under:- "None of us tried to visit police station to inform police. Neither I nor any other PW made any phone call to police or Rescue 1 122."
85. This utter failure of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) to report the matter to the police and their total inaction in this regard eviden ces the fact that they had not witnessed the occurrence and were informed about the same only subsequently . The august Supreme Court of Pakistan has already enunciated the principle of law that when the F.I.R of the case is not lodged at the Police Station, a conclusion can be drawn that the F.I.R. had been registered after pondering and inquiry at the spot. The august Supreme Court of Pakistan in the case of "Abdul Jabbar alias Jabbari v. The State" (2017 SCMR 1155) has observed as under: "An F.I.R. in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the F .I.R. had been chalked out after deliberations and preliminary investigation at the spot."
18. Another aspect drawing our serious concern is the fact that the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) made blatant improvements to their previous statements. The prosecution witness namely Muhammad Shahid (PW-2) was cross-examined in this regard and the learned trial court observed as under:- "I got recorded in FIR that Saddique accused present before the court made fire with his pistol 30-bore which hit on the right side of head of my father and the second fire landed on right side of chest of my father . Confronted with Exh.DA (complaint) where it is not recorded. I got recorded in Exh.DA that third fire of Muhammad Saddique when missed he put out another pistol from his nepha and made fourth fire which hit on left side of the chest of deceased. Confronted with Exh.DA where it is not recorded. I got recorded in application Exh.DA that Zahoor accused made fire shot which hit on right side of mouth of deceased, and his second fire shot hit on right thigh of deceased. Confronted with Exh.DA where it is not recorded. I got recorded in application Exh.DA that accused Abdullah made fire shot with pistol 30-bore on right side of belly of my deceased father whereas his second fire shot hit on left armpit and on left shoulder of deceased. Confronted with Exh.DA where it is not recorded. I got recorded in Exh.DA that first fire of Pappoo accused landed on right knee of the deceased whereas second fire hit on the fingers of right hand of deceased. Confronted with Exh.DA where it is not recorded. I narrated in application Exh DA that first fire of Aslam hit on the upper lip of my father , second fire made by Aslam landed on left side of upper lip of my father . Confronted with Exh DA where it is not recorded. I got recorded in Exh.DA that Aslam made another fire shot on left side of belly of deceased. Confronted with Exh.DA where it is not recorded. I got recorded in Exh.DA that Aslam accused was also present at the place of occurrence at the time of occurrence. Confronted with Exh. DA where it is not recorded. I did not mention in Exh.DA that Aslam accused was the abettor behind this occurrence. Confronted with Exh.DA it is so recorded. I got recorded in application Exh.DA that I alongwith other PWs tried to save the deceased by intervening. Confronted with Exh.DA where it is not recorded. It is incorrect to suggest that I made dishonest improvements in my statement as well as in private complaint just to strengthen the prosecution case."(emphasis supplied).
86. Similarly , Muhammad Akram (PW-3) was also duly confronted with his previous statement during cross examination and the learned trial court observed as under:- "I got recorded in my statement that Saddique accused present before the court made fire with his pistol 30-bore which hit on the right side of head of Muhammad Ashraf and the second fire landed on right side of chest of Muhammad Ashraf. Confronted with Exh.DB (complaint) where it is not recorded. I got recorded in Exh.DB that third fire of Muhammad Saddique when missed he put out another pistol from his nepha and made fourth fire which hit on left side of the chest of deceased. Confronted with Exh.DB where it is not recorded . I got recorded in my statement Exh DB that Zahoor accused made fire shot which hit on right side of mouth of deceased, and his second fire shot hit on right thigh of deceased. Confro nted with Exh.DB where it is not recorded. I got recorded in my statement Exh.DB that accused Abdullah made fire shot with pistol 30-bore on right side of belly of deceased whereas his second fire shot hit on left armpit and on left shoulder of deceased.
87. Confronted with Exh.DB where it is not recorded. I got recorded in Exh.DB that first fire of Pappoo accused landed on right knee of the deceased whereas second fire hit on the fingers of right hand of deceased. Confronted with Exh.DB where it is not recorded. I narrated in my statement Exh.DB that first fire of Aslam hit on the upper lip of Muhammad Ashraf, second fire made by Aslam landed on left side of upper lip of Muhammad Ashraf. Confronted with Exh. DB where it is not recorded. I got recorded in Exh.DB that Aslam made another fire shot on left side of belly of deceased. Confronted with Exh.DB where it is not recorded. I got recorded in application Exh.DB that I alongwith other PWS tried to save the deceased by intervening. Confronted with Exh.DB where it is not recorded."
88. (emphasis supplied)
89. The above referred portions of the cross-examination of the prosecution witness es namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) clearly reflect that the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) introduced the above-mentioned blatant improvements in their statements.
90. By improving their previous statements, the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) impeached their own credit. Article 151 of the Qanun-e-Shahadat Order 1984 provides as under:- "151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party , or, with the consent of the Court, by the party who calls him:
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit;
(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;"
91. As the prosecution witnesses namely Muhammad Shahid (PW-2) and Muham mad Akram (PW-3) introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence their credit stands impeached and the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) cannot be relied upon on, being proved to have deposed with a slight, intended to mislead the court. The august Supreme Court of Pakistan in the case of "Muhammad Ashraf Vs. 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 the prosecution witnesses namely Muhammad Shahid (PW- 2) and Muhammad Akram (PW-3) has no intrinsic worth and is to be rejected outrig htly. The august Supreme Court of Pakistan in a recent case reported as "Muhammad Mansha Vs. 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".
92. The august Supreme Court of Pakistan in the case reported as Muhammad Arif Vs. The State (2019 SCMR 631) has enunciated the following principle: "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge."
93. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of "Amin Ali and another Vs. The State" (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of injured witnesses and held as under:- "11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recover ed from wound No.1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body . The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound.
94. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer , the P.W.15 had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. have shown one exit wound as entry wound.
95. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance. From the above position it is manifest that the ocular testimony is in conflict with the medical evidence. Thus, the deceased and injured did not receive the injuries in the manner , as alleged by the prosecution.
13. From the above evidence of the P. Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence."
19. We have already mentioned that along with the appellants their co accused namely Zahoor Ahmad, Abdullah, Pappu, Aslam, Sadiq, Allah Diwaya and Abdul Hameed alias Meedoo (all since acquitted) were also tried. The learned trial court acquitted the above mentioned Zahoor Ahmad, Abdullah, Pappu, Aslam, Sadiq, Allah Diwaya and Abdul Hameed alias Meedoo, the co-acc used of the appellant. We have queried the learned Deputy Prosecutor General regarding the filing or otherwise of an appeal against the acquittal of the said co-accused of the appellant, who has stated that the acquittal of Zahoor Ahmad, Abdullah, Pappu, Aslam, Sadiq, Allah Diwaya and Abdul Hameed alias Meedoo had attained finalit y as neither the Sate nor any aggrieved person had assailed the acquittal of Zahoor Ahmad, Abdullah, Pappu, Aslam , Sadiq, Allah Diwaya and Abdul Hameed alias Meedoo,the co-accused of the appellant. The question for determination before this Court now is that whether the evidence of the prosecution witnesses, which has been disbelieved qua the acquitted co-accused of the appellant, can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of the same offence, is now a settled proposition. The august Supreme Court of Pakistan has held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should be that "the testimony of one detected in a lie was wholly worthles s and must of necessity be rejected." If a witness is not coming out with the whole truth, then his evidence is liable to be discarded as a whole, meaning thereby that his evidence cannot be used either for convicting the accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles:- "The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony .
96. The very fact that there is a whole chapter , numbered XW, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XW titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments.
97. Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country . A court of law cannot permit something which the law expressly forbids.
21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society . Our judicial system has suffered a lot as a consequence of the above-mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury ."
98. Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. We have scrutinized the statements of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), the eye witnesses of the occurrence. Muhammad Shahid (PW-2) in his statement recorded by the learned trial court stated as under:- "The accused Zahoor present before the court made fire with pistol 30-bore which hit on the right side of mouth of my father and made second fire which hit on the right thigh of my father . Accused Abdullah present before the court made fire shot with pistol 30-bore which landed on the right side of belly of my father and made second fire which hit on left armpit on left shoulder of my father . Accused Pappu made a fire shot with his pistol 30-bore which landed on the right knee of my father and second fire shot which hit on the finger of right hand of my father . Accused Muhammad Aslam made fire shot with pistol 30 bore which hit on the upper lip of my father , second fire shot landed on left side of the upper lip of my father . He also made third fire shot which landed on left side of belly of my father . All the accused persons made repeatedly fires which hit on the different parts of body of my father and my father succumbed to the injuries at the spot. All the accused persons killed my father on the abetment of accused namely Muhammad Sadiq, Allah Diwaya and Abdul Hameed alias Meedu.. (emphasis supplied)
99. Similarly , Muhammad Akram (PW -3), in his examination in-chief stated as under:- "The accused Zahoor present before the court made fire with pistol 30-bore which hit on the right side of mouth of Muhammad Ashraf (since deceased) and made second fire which hit on the right thigh of Muhammad Ashraf (since deceased). Accused Abdullah present before the court made fire shot with pistol 30-bore which landed on the right side of belly of Muhammad Ashraf (since deceased) and made second fire which hit on left armpit on left shoulder of Muhammad Ashraf (since deceased). Accused Pappu made a fire shot with his pistol 30-bore which landed on the right knee of Muhammad Ashraf (since deceased) and second fire shot which hit on the finger of right hand of Muhammad Ashraf (since deceased). Accused Muhammad Aslam made fire shot with pistol 30-bore which hit on the upper lip of Muhammad Ashraf (since deceased), second fire shot landed on left side of the upper lip of Muhammad Ashraf (since deceased). He also made third fire shot which landed on left side of belly of Muhammad Ashraf (since deceased). All the accused persons made repeatedly fires which hit on the different parts of body of Muhammad Ashraf (since deceased) and said Muhammad Ashraf (since deceased) succumbed to the injuries at the spot. All the accused persons killed Muhammad Ashraf (since deceased) on the abetment of accused namely Muhammad Sadiq, Allah Diwaya and Abdul Hameed alias Meedu. After that all the accused persons fled away to the western side of place of occurrence by riding their motorcycles upon seeing the other respectables of the locality ." (emphasis supplied)
100. Both the prosecution witnesses namely Muhammad Shahid (PW-2) and corroborative piece of evidence and if the ocular account is found to be deceased by Zahoor Ahmad, Abdullah, Pappu and Aslam (all since acquitted), however , both the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) were found to have made false statements with regard to Zahoor Ahmad, Abdullah, Pappu and Aslam (all since acquitted), the co-accused of the appellant. We are unable to find any independent corroboration of the prosecution case against the appellant and we are unable to distinguish the case of the appella nt from the case of the acquitted co-accused namely Zahoor Ahmad, Abdullah, Pappu and Aslam, as the prosecut ion evidence with regard to the appellant and with regard to their co-accused namely Zahoor Ahmad, Abdullah, Pappu and Aslam (all since acquitted), is similar . We find no reason to believe the statements of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) with regard to the appellant in the absence of any reason to do so.
101. This lying on the part of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) with regard to Zahoor Ahmad, Abdullah, Pappu and Aslam ( all since acquitted), the co-accused of the appellant, has vitiated our trust in them. We are thus satisfied that the evidence of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) has no worth and deserves outright rejection.
102. Reliance in this regard is placed on the case of "Tariq Vs. The State" (2017 SCMR 1672 ) wherein the august Supreme Court of Pakistan has held as under:- "So the conviction of the appellant can only be sustained if there is independent corroboration to the said witnesses who had been disbelieved to the extent of majority of the accused which presently is lacking because the motive asserted by the prosecution indicates that there was enmity of murder between the parties and the said enmity , being double edge, could be reason for false implication of the appellant."
103. Reliance in this regard is also placed on the case of MUNIR AHMED and others Vs. the State and others (2019 SCMR 2006 ) wherein the august Supreme Court of Pakistan has held as under: - "Loss of precious lives, within a family fold, though on rocks, confirmed by the witnesses including the one with a stamp of injury , notwithstanding, there are certain intriguing aspects, haunting the prosecution, in the totality of circumstances, a hugely large number of assailants, including the unknown, being the most prominent. In the face of indiscriminate firing, a case unambiguously put forth by the prosecution, receipt of single shot by each deceased as well as the injured belies the hypothesis of massive indiscriminate firing by each member of unlawful assembly comprising no less than 26, the unknown included; from amongst the volley of assailants, precision attribution, in an extreme crisis situation, is a feat, beyond human capacity , it sans forensic support as well; quite a few from amongst the array were let off at investigative stage, on the basis of an affidavit sworn by no other than the injured himself; prosecution's dilemma is further compounded by acquittal of four accused, framed through the same set of evidence by the Trial Court; a severer blow came from the High Court that acquitted all others except the petitioners. The petitioners, though distinctly assigned single shot qua the decease d and the injured, nonetheless, are identically placed with those by now, off the hook. Inclusion of the unknown, eight in numbers, if factually correct was certainly not without a purpose; if at all, they were there, the petitione rs and other known members of the family had no occasion to carry out the assault without being out of mind. Notwithstanding the magnitude of loss of lives, the totality of circumstances, unambiguously suggest that the occurre nce did not place in the manner as is alleged in the crime report; argume nt that number of assailants has been hugely exaggerated, as confirmed by the acquittals of the co-accused with somewhat identical roles, though without specific attributions, is not entirely beside the mark and in retrospect calls for caution. It would be unsafe to maintain the convictions. Consequently , Jail Petitions are converted into appeals and allowed; impugned judgment is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case."
104. Reliance is also placed on the case of SAFDAR ABBAS and others Versus The STATE and others (2020 SCMR 219 ) wherein the august Supreme Court of Pakistan has held as under: - "Petitioners' father , namely , Charagh co-accused is assigned multiple club blows to Muhammad Bukhsh deceased; same is charge against Muzaffar co-ac cused; remainder of the accused, though assigned no harm to the deceased, nonetheless, are ascribed effective roles to the PWs; they are closely related being members of the same clan and in the totality of circumstances given the accusation, their roles cannot be bifurcated without nullifying the entire case. Motive cited in the crime report is non-specific; investigative conclusions were inconsistent with the case set up by the complainant. Recoveries are inconsequen tial. Complainant abandoned his case against the acquitted co-accused after failure of his petition seeking leave to appeal in the High Court. In this backdrop, no intelligible or objective distinction can be drawn to hold the petitioners guilty of the charge in isolation with their co-accused. Prosecution evidence, substantially found flawed, it would be unsafe to maintain the conviction without potential risk of error. Criminal Petition No.955-L/2016 is converted into appeal and allowed, impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case."
20. We have also observed that Dr. Ali Hassan (PW-10) opined that at the time of the postmortem examination of the dead body of the deceased, rigor mortis was fully developed. Before proceeding any further , it would be advantageous to mention here that rigor mortis is a term which stands for the stiffness of voluntary and involuntary muscles in human body after death. It starts within 2 to 4 hours of death and fully develops in about 12-hours in temperate climate. Similarly , the reverse process with which rigor mortis disappears is called algor mortis. In support of duration required to develop rigor mortis, an extract from "The Principles And Practice Of Medical Jurisprudence" by Alfred Swaine T aylor , MD , is being referred hereunder:- "In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor mortis usually commences within 2 to 4 hours of death. It reaches a peak in about 12 hours and starts to disappear after another 12 hours. The cadaver becoming limp some 36 hours after death."
105. Likewise, Dr. S. Siddiq Husain in Chapter-V of his book "Forensic Medicine and Toxicology", observed that in temperate climate the rigor mortis completes in 8 to 12 hours. Similarly , William Carroll in his research article titled as "An Examination of Muscle Function" , has declared a similar duration for rigor mortis to develop. In Chapter 15 'POST -MOR TEM CHANGES AND TIME SINCE DEATH", from page 351 to page 352 of Rai Bahadur Jaising P.
106. Modi's A Textbook of Medical Jurisprudence and T oxicology (26th Edition 2018), it has been discoursed as under:-: "Rigor mortis generally occurs, while the body is cooling. It is in no way connected with the nervous system, and it develops even in paralyzed limbs, provided the paralyzed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.
107. Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away .
108. Rigor mortis first appears in the involuntary muscles, and then in the voluntary . In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertrophy , and its relaxation or dilatation, atrophy or degeneration. The left chambers are affected more than the right. Post-mortem delivery may occur owing to contraction of the uterine muscular fibres.
109. In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence. However , according to H.A. Shapiro this progress of rigor mortis from proximal to distal areas is apparent only, it actually starts in all muscles simultaneously but one can distinguish the early developing and fully established stage, which gives an indication of the time factor .
110. Time of Onset.- This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop.
111. Duration-In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor morts is 24 10 48 hours in winter and 18 to 36 hours in summer . According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the the longest forty hours." In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early , it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associat ed findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles. If on examination, the body is stiff, the head cannot be fixed towards the chest, then in all probability , the death might have occurred six to twelve hours or so more before the time of examination."
112. The occurrence statedly took place at about 7:00/8:00 a.m. on 05.05.2019 whereas Dr. Ali Hassan (PW-10) conducted the post mortem examination of the dead body of the deceased on 05.05.2019 at 1:00 p.m. Dr. Ali Hassan (PW -10), during cross-examination stated as under:- "Rigor mortis on the person of deceased were fully developed . It took three to four hours to start the process of development of rigor mortis. It takes 12 to 14 hours in complete/full development of rigor mortis" (emphasis supplied)
113. The development of complete rigor mortis on the body of the deceased in the month of April, contradicts the time of occurrence deposed by the witnesses. In the month of April, development of rigor mortis within such short span of time as suggested by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW- 3) was implausible and the occurrence does not appear to have taken place at the point of time mentioned by the witnesses. The August Supreme Court of Pakistan in the case of "Noor Ahmad vs. The State and others" (2019 SCMR 1327 ) has held as under: "Occurrence statedly took place at 10.00 a.m. whereas the autopsy was conducted at 5.00 p.m. development of complete rigor mortis on the body of a young lady in hot weather , belies point of time of assault given in the crime report".
114. The August Supreme Court of Pakistan in the case of Asad Rehmat vs. The State and others" (2019 SCMR 1156) has held as under: "Occurrence, statedly , took place at 2.00 p.m., autopsies started 4.30 p.m., concluded at 9.00 p.m. Muhammad Hayat was examined first; the medical officer noted rigor mortis. Same is the case with other corpses. In the month of March , development of rigor mortis within such short span of time is mind boggling; occur rence does not appear to have taken place at the point of time mentioned in the crime report."
115. In the aftermath of the above-discussio n, we are swayed to hold that time of occurrence as deposed by the prosecution witnesses namely Muhamm ad Shahid (PW-2) and Muhammad Akram (PW-3) is not free from uncertainty , proving their absence.
21. The learned Deputy Prosecutor General has also relied upon the recoveries of the pistols (P-10 and P-11) made from the appellant and the report of the Punjab Forensic Science Agency , Lahore (Exh.PU) and has submitted that the said recoveries of the pistols (P-10 and P-11) from the appellant offered sufficient corroboration of the ocular account of the occurrence as furnished by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3). The recovery of the pistols (P-10 and P-11) from the appellant namely Muhammad Siddique cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the pistols (P-10 and P-11) from the appellant namely Muhammad Siddique, which action of his was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898. The prosecution witness namely Muhammad Iqbal 776/C (PW -8) admitted during cross-examination as under:- "No inhabitant of the vicinity of place of recovery joined investigation.
116. Owner of the place of recovery was not summoned by the investigating officer at the time of recovery . Place of recovery was not barren place rather were fields."
117. Similarly , Abid Hussain, SI (PW-9), the Investigating Officer of the case, admitted during cross-examination as under:- "No inhabitant of the vicinity was associated into my proceedings. Adjacent to the place of recovery there was some agricultural fields. It is correct that place of recovery is not owned and possessed by the accused Muhammad Saddique. Place of recovery is an open place." (emphasis supplied)
118. The provisions of section 103 Code of Criminal Procedure, 1898, unfortunately , are honoured more in disuse than compliance. To appreciate it better , this section is being reproduced:- "103.--(1) Before making a search. under this chapter , the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do."
119. Moreover , as mentioned above, Abid Hussain, SI (PW-9), the Investigating Officer of the case also admitted that the recovery of the pistols (P-10 and P-11) was made from a place which was open to easy public access. In this manner , it was proved on record that the prosecution failed to prove that the appellant had exclusive possession of the weapons recovered from him. Therefore, the evidence of the recovery of the pistols (P-10 and P-11) from the appellant namely Muhammad Siddique cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and 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."
120. Even otherwise, it is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.
22. The 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 as stated by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) was that Muhammad Ayub, the paternal uncle of Muhammad Shahid (PW-2), contracted marriage with Mst. Hamidan Bibi daughter of Ghulam Qadir , ten years prior to the occurrence and Abdul Ghafoor , the brother of the appellant namely Muhammad Siddique, was murdered and Muhammad Ayub, the paternal uncle of Muhammad Shahid (PW-2) was convict ed and confined in Central Jail, Bahawalpur for the said murder whereas, Muhammad Ashraf (deceased) used to pursue the case of Muhammad Ayyub, which annoyed the accused and led to the murder of Muhammad Ashraf (deceased). We have scrutinized the statements of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) and find that they failed to prove the motive as alleged. The prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), as mentioned above, stated that the deceased had no connection whatsoever with the proceedings of the case F.I.R No. 361 of 2019 and neither he was pursuing the case of Muhammad Ayyub, the paternal uncle of Muhammad Shahid (PW-2). Accordin g to the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), the accused had been threatening them personally not to pursue the proceeding s of the case F.I.R No. 361 of 2019 and in these circumstances, the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) should have been the prime targets of the assailants but in the midst of firing by so many accused persons, the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) did not receive even a single scratch on their bodies during the whole occurrence, denuding the fact that the motive of the occurrence as given by them was incorrect. The prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased, against whom the accused had no grudge. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise 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."
121. It is also an admitted rule of appreciation of evidence that motive is only a corroborative piece of evidence and if the ocular account is found to be unreliable, then motive alone has no evidentiary value and loses its significance.
23. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Muhammad Siddique son of Muhammad Rafique in the present case. It is a settled principle of law that for giving the benefit of the 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 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 )."
122. Reliance is also placed on the judgment of the august Supreme Court of Pakista n Najaf Ali Shah Vs. the State (2021 SCMR 736 ) in which it has been observed in paragraph No.13 of page 236 as infra: "9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer . As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer ." Benjamin Franklin, who was one of the leading figures of early American history , went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer ." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner . This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345 ) and Ayub Masih v. The State (PLD 2002 SC 1048 )."
123. The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eyew itnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
24. For what has been discussed above, the Criminal Appeal No.98 of 2021 lodged by Muhammad Siddique son of Muhammad Rafique (appellant) is allowed and the conviction and sentence of the appellant namely Muhammad Siddique son of Muhammad Rafique awarded by the learned trial court through the impugned judgment dated 17.02.2021 are hereby set-aside . Muhammad Siddique son of Muhamma d Rafique (appellant) is ordered to be acquitted by extending him the benefit of doubt. Muhammad Siddique son of Muhammad Rafique (appellant) is in custody and is directed to be released forthwith, if not required in any other case.
25. Murder Reference No.04 of 2021 is answered in Negative and the sentence of death awarded to Muhammad Siddique son of Muhammad Rafique is Not Confirmed .