SADIQ MAHMUD KHURRAM, J. Rashid son of Riaz and Saqib son of Riaz (convicts) were tried along with Riaz son of Ghulam Sarwar and Mustansar son of Riaz (both since acquitted), the co-accused of the convicts, by the learned Additional Sessions Judge, Multan in the case FIR. No. 803 of 2016 dated 11.09.2016 registered in respect of offences under sections 302,34 and 109, P.P.C. at the Police Station Cantt.Multan, District Multan for committing the Qatl-i-Amd of Muhammad Aslam son of Abdul Ghafoor and Zohaib Aslam son of Muhammad Aslam (deceased). The learned trial court vide judgment dated 19.07.2019, convicted Rashid son of Riaz and Saqib son of Riaz (convicts) and sentenced them as infra: Rashid son of Riaz :- Death on two counts under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Aslam son of Abdul Ghafoor and Zohaib Aslam son of Muhammad Aslam (deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the each deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.
The convict was ordered to be hanged by his neck till dead.
Saqib son of Riaz :- Death on two counts under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Aslam son of Abdul Ghafoor and Zohaib Aslam son of Muhammad Aslam (deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the each deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.
The convict was ordered to be hanged by his neck till dead.
Riaz son of Ghulam Sarwar and Mustansar son of Riaz, the co-accused of the convicts, were, however acquitted by the learned trial court.
2. Feeling aggrieved, Rashid son of Riaz and Saqib son of Riaz (convicts) lodged Criminal Appeal No.725 of 2019, assailing their convictions and sentences. The learned trial court submitted Murder Reference No.95 of 2019 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellants namely Rashid son of Riaz and Saqib son of Riaz.
The complainant of the case namely Sohail Aslam also filed Criminal Appeal No.839 of 2019 against the acquittal of the accused namely Riaz son of Ghulam Sarwar and Mustansar son of Riaz. We intend to dispose of the Criminal Appeal No. 725 of 2019, Criminal Appeal No.839 of 2019 and the Murder Reference No.95 of 2019 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as narrated by Sohail Aslam (PW-2), the complainant of the case are as under:- "On 11.09.2016 at about 7:30 p.m. I along with my brother Zohaib, Aslam my father. Abdul Saeed and Muhammad Jhangir were present in a plot situated just in front of the house of Dr. Hafeeza situated at Shams Colony, Multan. We were talking to each other while standing there when Rashid armed with pistol, Saqib armed with pistol and one unknown. person armed with dagger while riding on two motorcycles arrived at the place of occurrence. Rashid and Saqib accused persons raised LALKARA while saying that they will not spare them on account of taking away of their mother and sister. Thereafter. Rashid accused present in court made a shot fire with his pistol. Which hit on the right side of chest of my father Aslam (since deceased). Saqib accused present court made a short file with his pistol, which hit the right side of the belly of my brother Zohaib. We stepped forward to rescue my father and brother but the accused persons extended threat of life so as to stop us. On our hue and cry the people of locality gathered there. The accused persons on the seeing (sic) them fled away from the spot by brandishing their weapons We transported Aslam and Zohaib to the Nishtar Hospital but Zohaib succumbed to the injuries when we entered into hospital and Aslam was admitted in hospital in injured condition.
04/05 days prior to the occurrence Riaz and Mustansar accused persons present in court came in our house and demanded to get returned Naziran and Rimshah and extended threats that in case of failure they will be done to death. In response to their father said that I have no concern with your daughter and wife in any sense. Rashid and Saqib accused persons had committed murder of my brother and father on the instigation and consultation of Riaz and Mustansar accused persons. Thereafter I made an application Ex-PB to the SHO at police station, again said at Nishtar Hospital, Multan, which bears my signature and thumb impression."
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 and the accused were sent to face trial. The learned trial court framed the charge against the accused on 21.08.2017, which was amended on 12.03.2018, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as thirteen witnesses recorded. The ocular account of the case was furnished by Sohail Aslam (PW-2) and Abdul Saeed (PW-3). Irfan Hayat, Draftsman (PW-1) prepared the scaled site plan of the place of occurrence (Exh.PA). Muhammad Luqman (PW-4) and Muhammad Farooq (PW-5) stated that they heard Riaz son of Ghulam Sarwar and Mustansar son of Riaz, the co-accused of the convicts, both since acquitted, instigating the appellants to murder the deceased. Muhammad Akram, (PW-6) stated that on 12.09.2016, he identified the dead bodies of the deceased at the time of their post-mortem examinations and the Medical Officer also handed over the last worn clothes of the deceased to the Investigating Officer of the case after post mortem examinations. Muhammad Hanif, T/ASI (PW- 7) stated that on 11.09.2016, he got recorded the formal FIR (Exh.PG) and on the same day the Investigating Officer of the case, handed over to him sealed parcels said to contain blood stained earth and empty shells of bullets and on 06.10.2016, he handed over the said parcels to Karam Hussain, ASI for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Hanif, T/ASI (PW-7) further stated that on 05.10.2016, the Investigating Officer of the case, handed over to him a sealed parcel said to contain a pistol and on 10.10.2016, the Investigating Officer of the case, handed over to him another parcel said to contain a pistol and on 24.10.2016, he handed over the said sealed parcels to Imtiaz Hussain, ASI (PW-8) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Ayyaz 686/C (PW-10) stated that on 11.09.2016, he deposited the dead bodies of the deceased at the mortuary and received the last worn clothes of the deceased from the Medical Officer after the post mortem examinations of the dead bodies. Muhammad Ayyaz 686/C (PW-10) further stated that on 05.10.2016, the appellant namely Saqib led to the recovery of pistol (P-5) and two live bullets (P-6/1- 2) which were taken into possession through recovery memo. (Exh.PH) and on 07.10.2016, the appellant namely Rashid got recovered the motorcycle (P-9) which was taken into possession through recovery memo. (Exh.PJ) and on 10.10.2016, the appellant namely Rashid led to the recovery of pistol (P-7) and two live bullets (P-8/1-2) which were taken into possession through recovery memo. (Exh.PK). Attiya Naheed, Inspector (PW-13) investigated the case from 11.09.2016 till 27.10.2016, arrested the appellants on 26.09.2016, and detailed the facts of the investigation as conducted by her in her statement before the learned trial court.
6. The prosecution also got Dr. Muhammad Younis Ansari (PW-11) examined. who on 12.09.2016 was posted as Principal Medical Officer at Nishtar Hospital Multan and on the same day, conducted the post-mortem examination of the dead body of Muhammad Aslam son of Abdul Ghafoor (deceased). Dr. Muhammad Younis Ansari (PW-11), on examining the dead body of Muhammad Aslam son of Abdul Ghafoor (deceased) observed as under:- "External Examination: A dead body of a middle aged man, of average height and built, whitish complexion with black colored hair on the head, black mustaches, pale color, rigor mortis fully developed, P.M present over dependent parts presented with following injury: Injury No. 1: A lacerated wound of entry 1.5 cm x 1.5 cm with roasted skin with muzzle print, burning blackening, abraded collar, inverted margins on the right side of the lower chest 15 cm below right nipple and 10 cm from mid line. Injury No.2: A lacerated wound of 1.5 x 1.5 cm on the right side of abdomen, 12 cm below inferior angle of scapula, 09 cm from mid line with everted margins.
OPINION.
All the Injuries are ante-mortem in nature and is (sic) caused by firearm weapon, as the bullet shattered and lacerated the liver (on the right side). The master gland of the body, shatter the upper pole of right kidney leading to extensive and severe haemorrhage, shock (whole peritoneal cavity was full of blood) and death. Probable time between injury and death 3 to 6 hours and between death and post mortem 12 to 15 hours."
On the same day, Dr. Muhammad Younis Ansari (PW-11) , also conducted the post-mortem examination of the dead body of Zohaib Aslam son of Muhammad Aslam (deceased). Dr. Muhammad Younis Ansari (PW-11), on examining the dead body of Zohaib Aslam son of Muhammad Aslam (deceased) observed as under:- "External Examination: A dead body of a young male, lean and thin, whitish complexion with black colored hair on the scalp, black mustaches. Rigor mortis fully developed, P.M lividity present over dependent parts that is over back. Presented with following injury: Injury No.1: A lacerated wound of entry 01 cm x 01 cm on the front and on the right side of abdomen, about 05 cm from umbilicus, with inverted margins, abraded collar with muzzle print, corresponding hole on the Qameez and Buniyan present ..........................................
Opinion Injury No.1 is ante-mortem in nature and is caused by firearm weapon. The bullet penetrated the large intestine on the right side, further lacerated and shattered the inferiorvenacava in the mid line, further penetrated the lopes of small intestine on the left side and embedded itself in the muscles of the posterior abdominal wall on the left side 05 cm above iliac crust from it was recovered, hole of the peritoneal cavity was full of blood, resulting in shock and death. Probable time between injury and death 2 to 3 hours and between death and post mortem 15 to 18 hours."
7. On 28.02.2019, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Muhammad Usman and Muhammad Jehangir as being unnecessary. On 04.05.2019, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Muhammad Imran 2015/C as being unnecessary. On 02.07.2019, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh. P.U.) relating to the blood-stained earth and the report of the Punjab Forensic Science Agency, Lahore (Exh. P.T) regarding the comparison of the empty shells of bullets collected from the place of occurrence and the pistols recovered from the appellants.
8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Rashid son of Riaz and Saqib son of Riaz, 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, they replied that they had been involved in the case falsely and were innocent. The appellants namely Rashid son of Riaz and Saqib son of Riaz, opted not to get themselves examined under section 340(2) Cr.P.C. and did not adduce any evidence in their defence.
9. At the conclusion of the trial, the learned Additional Sessions Judge, Multan convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsel for the appellants precisely is that the 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 appellants further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellants also submitted that the recoveries of the motorcycle (P-9), the pistol (P-5) and two live bullets (P-6/1-2), the pistol (P-7) and two live bullets (P-8/1-2) were full of procedural defects, of no legal worth and value, and were the result of fake proceedings. The learned counsel for the appellants also argued that the appellants had been involved in the occurrence only on suspicion. The learned counsel for the appellants finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellants namely Rashid son of Riaz and Saqib son of Riaz. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further contended that the medical evidence also corroborated the statements of Sohail Aslam (PW-2) and Abdul Saeed (PW-3). The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recoveries of the motorcycle (P-9), the pistol (P-5) and two live bullets (P-6/1-2), the pistol (P-7) and two live bullets (P-8/1-2) and the report of Punjab Forensic Science Agency, Lahore (Exh. P.T.) also corroborated the ocular account. The learned Deputy Prosecutor General along with h the learned counsel for the complainant, further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeal. The learned counsel for the complainant also argued that the Criminal Appeal No.839 of 2019, assailing the acquittal of Riaz son of Ghulam Sarwar and Mustansar son of Riaz by the learned trial court, also merited acceptance.
12. We have heard the learned counsel for the appellants, the learned counsel for the complainant, the learned Deputy Prosecutor General and perused the record with their able assistance .
13. The whole prosecution case revolves around the statements of the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), the eye-witnesses of the occurrence. The relationship of the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), with the deceased, is on record. Muhammad Aslam (deceased) was the father of Zohaivb Aslam (deceased) and also the father of Sohail Aslam (PW-2), and the paternal cousin(mamoozad) of the prosecution witness namely Abdul Saeed (PW-3). The prosecution witness namely Sohail Aslam (PW-2) , during cross-examination, explained as under: "Aslam deceased was son of Ghaffoor. Mst. Zainab was firstly married to Ghaffor who was our grandfather and when after the death of said Ghaffor she married with Habib Ahmad. It is correct that Jhangir is son of Habib. It is correct that Ameer Bakhsh, Haqnawaz and Abdul Rehman are real brothers of Mst. Zalnab Abdul Saeed PW is son of Ameer Bakhsh. Usman and Luqman PWs are the real sons of Haqnawaz Akram PW is son of Abdul Rehman." (emphasis supplied)
It is also an admitted aspect of the prosecution case that the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), were not the residents of the place of occurrence or any place near the same. According to the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), the occurrence took place in a vacant plot of land situated in front of the house of Dr. Hafeezan situated at Shamas Colony Multan. The prosecution witness namely Sohail Aslam (PW-2) initially admitted that the place of occurrence was at a distance of 7 to 8 kilometres from his house, whereas the house of the prosecution witness namely Abdul Saeed (PW-3) was 3/4 houses away from the house of Muhammad Luqman (PW-4), which house of Muhammad Luqman (PW-4) itself was at a distance of one kilometer from the house of the prosecution witness namely Sohail Aslam (PW-2). The prosecution witness namely Sohail Aslam (PW-2), during cross- examination, stated as under:- "The distance between my house and the place of occurrence is about 07 to 08-kilometers. .....................................
Habib Ahmad, Jhangir, both the deceased as well as myself live in one house. It is a closed street and our house at the last of the street. The house of Faroo Basti Langrial is at about distance of one kilometer from our house. The house of Luqman is at a distance of about half kilometer after passing through 02/03 streets. The house of Abdul Saeed is near the house of Luqman at a distance of 03 to 04 houses from each others." (emphasis supplied)
After admitting during cross-examination that his house was at a distance of as many as 7/8 kilometres from the place of occurrence, the prosecution witness namely Sohail Aslam (PW-2) changed his version and stated that his house was situated on the back side of the house of Dr. Hafeezan, the house in front of which the occurrence had taken place in a vacant plot of land. This claim of the prosecution witness namely Sohail Aslam (PW-2) that his house was on the back of the house of Dr. Hafeezan was badly exposed to be a false claim during the cross-examination of Irfan Hayat, draftsman (PW-1), who in his cross-examination, gave the complete details of the houses which were present near and around the place of occurrence and also admitted that the house of the prosecution witness namely Sohail Aslam (PW-2) was not near or around the place of occurrence. Irfan Hayat, draftsman (PW-1), during cross-examination , stated as under:- "The place of occurrence in (sic) an open plot situated in front of house of Dr.Hafizan. House of the Dr.Hafizan is in the southern side of the street and alleged place of occurrence is on the northern side of the street. Width of the street is 18-20 feet but I have not shown the width of the street in the scaled site plan. In eastern side of alleged place of occurrence there was only one house of Bashir Anjum. According to scaled site plan there is no house in the western side of alleged place of occurrence. There is no house on the eastern side of house of Dr. Hafizan and a vacant plot is lying in western side of house of Dr. Hafizan. ...................
It is correct that towards the east and west sides of the Dr. Hafizan house, all are vacant plots. There is a small street lies towards the south, which is about 8-10 feet wide but I have not mention (sic) its width in Exh.PA. I did not observe that there is second way of entrance in the street from minor Muzafarabad."
We ourselves have also perused the scaled site plan of the place of occurrence (Exh.PA) as prepared by Irfan Hayat, draftsman (PW-1) and the rough site plan of the place of occurrence (Exh.PP) as prepared by Attiya Naheed, Inspector (PW-13) and find that the house of the prosecution witness namely Sohail Aslam (PW-2) is not marked in the same. We have alsowith concern that the other prosecution witness namely Abdul Saeed (PW-3) also made a failing attempt to prove himself as a resident of an area around the place of occurrence, however, he too failed. The prosecution witness namely Sohail Aslam (PW-2) during cross-examination stated that the house of the prosecution -witness namely Abdul Saeed (PW-3) was at quite a distance from the place of occurrence and during cross-examination stated as under:- "The house of Dr. Hafizan is at a distance of half mile plus 02 Bighas from the house of Abdul Saeed and the house of Usman and Luqman."
Moreover, during cross-examination of the prosecution witness namely Abdul Saeed (PW-3) it was also brought on record that he changed his residence as stated by him in his statement recorded under section 161, of the Code of Criminal Procedure, 1898 (Exh,DA) and gave a different place of residence in his statement before the learned trial court. During cross-examination, the prosecution witness namely Abdul Saeed (PW-3) stated as under:- "I am resident of Gulshan Iqbal Colony Qasim Balla, Multan. My statement was recorded under Sec. 161, Cr.P.C, by the I.O. wherein I stated my residential address as stated before this Hon'ble Court today. Gulshan Iqbal Colony is at a distance of half mile from the house of Aslam deceased.
I have not stated before the police that I am resident of Shams Colony. Confronted with Ex-DA where it is so recorded."
The above-referred portions of the cross-examination of the prosecution witnesses reflect that the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (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 Sohail Aslam (PW-2) and Abdul Saeed (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. The prosecution witnesses, namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), though realizing that they were not the residents of the place of occurrence, did not even attempt to provide any reason for their arrival at the place of occurrence. The prosecution witness namely Sohail Aslam (PW-2) admitted during cross-examination that it was his routine to stay at home after arriving back to his house at about 5/6.00 p.m every day. During cross-examination, Sohail Aslam (PW-2) stated as under:- "I used to go at the shop at about 09:00 a.m. My labouer (sic) time is limited upto 05/06:00 p.m. We received the amount of labour on weekly basis on every Thursday. After arriving at home I used to remain at house till the next morning. I am occasionally saying the prayers at shop in the mosque and at home in the mosque of Mohallah. "
Similarly, the prosecution witness namely Abdul Saeed (PW-3) also admitted that he was a Rikshaw driver and after returning to his house at about 2.30 p.m., he did not leave his house. Abdul Saeed (PW-3) during cross-examination stated as under:- "I has engaged my Rickshaw only school time. I used to pick the students at 08:00 a.m. from their houses, dropped in the school and then took them back to their houses at about 2:30 p.m. Rest of the time I used to spend in my house. " (emphasis supplied)
The above replies of the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) prove that admittedly the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) had no reason to be present at the place of occurrence and also they made no effort to explain as to why on the night of occurrence, at about 7.30 p.m., they were present in a vacant plot of land for no reason at all. We have thus reached at an irresistible conclusion that the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), failed to prove, any reason for leaving their houses on the day of occurrence and their arrival at the place of occurrence and the same remained unproved, entailing failure of the prosecution witnesses to prove the reason for their departure from their residences and their subsequent arrival 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 Sohail Aslam (PW-2) and Abdul Saeed (PW-3), had arrived at the place of occurrence and the failure to prove any reason for the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), to have proceeded from their houses to the place of occurrence and their presence at the place of occurrence has vitiated our trust in the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (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 place of occurrence, but on the day of occurrence stated to be present near the spot as they were 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, 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 eye-witnesses 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."
We have also noted that the names both the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) were neither mentioned in column No.4 nor at page 4 of the inquest report (Exh.PL/1) prepared with regard to Zohaib Aslam (deceased) and were also bot mentioned in column No.4 nor at page 4 of the inquest report (Exh.PN/1) prepared with regard to Muhammad Aslam (deceased) as being the witnesses who were present near the dead bodies at the time of preparation of the inquest reports (Exh.PL/1 and PN/1). This fact also evidences the absence of the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) at the place of occurrence, at the time of occurrence.
14. Compounding further the matter is the fact, that none of the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), in their statements recorded by the Investigating Officer of the case or in their statements recorded by the learned trial court, stated that there existed any light source which was lit at the place of occurrence, at the time of occurrence, which could have enabled the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) to have witnessed the occurrence and observe the details thereof. In their statements before the learned trial court, the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) stated that the occurrence had taken place at about 7.30 p.m., on 11.09.2016.
Recognizing this error, the prosecution witness namely Sohail Aslam (PW-2) during cross- examination went on to claim that there was source of light available at the place of occurrence in shape of electric bulbs installed for the purpose of playing cricket, however, admitted that at the time of occurrence, no match was being played. It was further claimed by the prosecution witness namely Sohail Aslam (PW-2) that the electricity for lighting the bulbs was being provided by Bashir Anjum and residents of other houses near the place of occurrence. Sohail Aslam (PW-2), during cross-examination, claimed as under:- "The flush (sic) lights were arranged in the said plot (alleged place of occurrence) and people are playing cricket in the said flesh lights, The lights were on but there was no match. When I and other witnesses reached at the spot the lights were on. We remained there for about one hour and during this period the lights remained on. The supply of electricity was from the MEPCO lines directly as well as from the houses of the inhabitants. Bashir Anjum, Butt and other houses provided the lights. The lights provided by the household of the street were installed on their outer door and not in the plot. "
The falsity of the above referred statement of Sohail Aslam (PW-2) is exposed when the scaled site plan of the place of occurrence (Exh.PA) as prepared by Irian Hayat, draftsman (PW-1) and the rough site plan of the place of occurrence (Exh.PP) as prepared by Attiya Naheed, Inspector (PW- 13) are perused. A perusal of the scaled site plan (Exh.PA) and the rough site plan (Exh.PP) of the place of occurrence, installation of no such electric bulbs at the place of occurrence, has been mentioned in the same, which source of light could have allowed the witnesses to make a positive identification of the assailants, despite the fact that as per prosecution's own claim, the occurrence had taken place during dark hours of the night. Furthermore, the Investigating Officer of the case, did not take into possession any such source of light which was available and lit at the place of occurrence, at the time of occurrence , which could have enabled the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) to observe the occurrence. Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, not only did not observe or took into possession any source of light which was available and lit at the place of occurrence, at the time of occurrence but also admitted that she had to arrange for light source at the time of her visit to the place of occurrence , on the night of occurrence, as none was available there. Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, during cross-examination, stated as under:- "We obtained the head lights from the persons from the locality at place of occurrence and also taken along with our own search lights. My subordinates had already arranged the lights at the spot before my arrival there."
Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, also stated that according to the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) told her that they were at a distance of as many as 24 feet from the place where the deceased had suffered the injuries. Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, during cross- examination, stated as under:- "The witnesses who saw the occurrence were standing at a distance of about 24 feet from the place I recovered the blood stained earth of deceased persons."
There is no evidence available on record that the prosecution witnesses namely Sohail Aslam (PW- 2) and Abdul Saeed (PW-3) possessed such faculties which could have enabled them to witness the occurrence from such a huge distance and that too in the dark. The failure of the prosecution to prove the presence of any source of light and also lit at the place of occurrence has condemnatory consequences for the prosecution. The prosecution witnesses failed to establish the fact of such availability of any light source and in the absence of their ability to do so, we cannot presume the existence of such a light source on our own. The absence of any light source has put the whole prosecution case in the murk. Reliance is placed on the case of "Gulfam and another v.
The State" (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place at about 11.45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised"
Reliance is also placed on the case of "Hameed Gul v. Tahir and 2 others" (2006 SCMR 1628) wherein the august Supreme Court of Pakistan observed as under:- "Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence.
The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along."
Reliance is also placed on the case of "Basar v. Zulfiqar Ali and others" (2010 SCMR 1972) wherein the august Supreme Court of Pakistan observed as under:- "7. It is also alleged by the prosecution that the witnesses had identified the culprits on torch lights.
The complainant and P. Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.
8. Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt."
Reliance is also placed on the case of "Azhar Mehmood and others v. The State" (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:- "It has straightaway been noticed by us that OM occurrence in this case had taken place after dark and in the FIR. no source of light at the spot had been mentioned by the complainant.
Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case."
Reliance is also 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 witnessed 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 officer."
15. We have also noted with disquiet I that despite the fact that the occurrence took place at about 07.30 p.m. on 11th September, 2016, the post-mortem examinations of the dead bodies of the deceased were conducted after much delay at about 05.00 p.m. on 12th September, 2016.
According to Dr. Muhammad Younis Ansari (PW-11), he on 12.09.2016 at about 05.00 p.m conducted the post-mortem examination of the dead body of Muhammad Aslam son of Abdul Ghafoor and the post-mortem examination of the dead body of Zohaib Aslam son of Muhammad Aslam (deceased) i.e., after about 16.5 hours of the occurrence. Dr. Muhammad Younis Ansari (PW-11) also noted developed rigor mortis at the time of conducting the post-mortem examinations of the dead bodies of both the deceased. 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 Taylor, 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."
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-MORTEM CHANGES AND TIME SINCE DEATH", from page 351 to page 352 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (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.
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. 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.
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.
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.
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 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 associated 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."
No explanation was offered to justify the said delay in conducting the post-mortem examinations of the dead bodies. Not only the post-mortem examinations of the dead bodies were delayed by as many as 16.5 hours, but the police papers were also handed over to Dr. Muhammad Younis Ansari (PW-11) at about 05.00 p.m. on 12th September, 2016. Dr. Muhammad Younis Ansari (PW-11) stated during cross-examination as under:- "It is correct that dead bodies were received to me at 05:00 PM on 12.09.2016 along with the police papers."
There is no evidence on record that the Medical Officer was not available at the hospital which caused delay as, according to the prosecution witness namely Muhammad Akram (PW-6), it were the doctors who shifted the dead bodies from the casualty ward to the mortuary. Muhammad Akram (PW-6) during cross-examination admitted as under:- "Doctors took the dead bodies from Ward to the mortuary."
Even the prosecution witness namely Muhammad Ayaz 68/C (PW-10) admitted during cross- examination as under:- "I handed over the police papers to Doctor at about 05:00 PM on 12.09.2016." (emphasis supplied)
The inordinate and unexplained and substantial delay in the post-mortem examinations of the dead bodies and submission of the police papers to the Medical Officer clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellants escaping from the place of occurrence had not seen the occurrence and were not present at the time of occurrence and the delay in the post-mortem examinations was used to procure their attendance and formulate a dishonest account of the occurrence, after consultation and planning. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post-mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative. to involve any person.The august Supreme Court of Pakistan in the case of "Khalid alias Khalidi and 2 others v.
The State" (2012 SCMR 327) has held as under: "The incident in the instant case took place at 2.00 a.m, FIR. was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR. was not lodged at the given time".
The august Supreme Court of Pakistan in the case of "Mian SOHAIL AHMED and others v. The State and others" (2019 SCMR 956) has held as under: "According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR. was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution"
The august Supreme Court of Pakistan in the case of "Muhammad Rafique alias Feeq v. The State"
(2019 SCMR 1068) has held as under: "More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police. to the medical officer, all reports prepared by the Investigating Officer are also to be handed over in order to assist in the examination of the deadbody."
10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the Investigating Officer are also to be handed over to the said medical officer to assist his examination of the dead body.
11. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has to provide justifiable reasons therefor, which in the present case is strikingly wanting."
16. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon that the recovery of the pistol (P-5) and two live bullets (P-6/1-2) from the appellant namely Saqib, the recoveries of the motorcycle (P-9), the pistol (P-7) and two live bullets (P-8/1-2) from the appellant namely Rashid and the report of Punjab Forensic Science Agency, Lahore (Exh.
P.T.) and have submitted that the said recoveries from the appellants offered sufficient corroboration of the ocular account of the occurrence as furnished by prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3). The recovery of the pistol (P-5) and two live bullets (P-6/1-2) from the appellant namely Saqib and the recoveries of the motorcycle (P-9) and the pistol (P-7) and two live bullets (P-8/1-2) from the appellant namely Rashid cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the said recoveries, which action of her was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898 and therefore the evidence of the recoveries cannot be used as incriminating evidence against the appellants, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. 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."
The prosecution witness namely Muhammad Ayyaz 686/C (PW-10) during cross examination, admitted as under:- "I.O did not direct any police official to join any private respectable person of the locality in recovery proceedings."
Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, during cross-examination, stated as under:- "On all the three occasions of the recovery some inhabitant were there but I don't know the number.
I have not associated any respectable from the volunteered that there was one house of Muhammad Ramzan who refused to join. I have not mentioned this fact in my daily diary."
Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, also admitted that though the recovery of the pistol (P-5) and two live bullets (P-6/1-2) from the appellant namely Saqib and the recoveries of the motorcycle (P-9) and the pistol (P-7) and two live bullets (P-8/1-2) from the appellant namely Rashid were made from the same vicinity, however, on different days. It was also admitted that the rooms from where the alleged recoveries were made were all open and were not locked. Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, during cross- examination stated as under:- "It is correct that I prepared recovery memos. of recoveries of pistol motorcycle and other pistol is of 05.10.2016, 07.10.2016 and 10.10.2016.
"All the three places of recoveries with little distance from each other are situated in the same vicinity. Ali these places are not in the garden. The garden is on other side. In fact the house from where the recoveries were effected is on a side of the garden. I don't know the number of persons were residing in the house at that time. The house was unlocked. The room from where the alleged recoveries were effected too unlocked. Volunteered that the inhabitants of house were residing at that time." (emphasis supplied)
It was not explained by Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, that when she had visited the same place on 05.10.2016 for the purpose of the recovery of the pistol (P- 5) and two live bullets (P-6/1-2) from the appellant namely Saqib then why she did not observe the presence of the motorcycle (P-9) and the pistol (P-7) and two live bullets (P-8/1-2), which articles were shown to had been recovered on 07.10.2016 and 10.10.2016, respectively. Moreover, the exclusive possession of the appellants over the recovered articles could also not be proved.
Therefore the evidence of the recovery of the pistol (P-5) and two live bullets (P-6/1-2) from the appellant namely Saqib and the recoveries of the motorcycle (P-9) and the pistol (P-7) and two live bullets (P-8/1-2) from the appellant namely Rashid cannot be used as incriminating evidence against the appellants, 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 v. The State (2017 SCMR 898) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions. of section 103, Cr.P.C. had flagrantly been violated in that regard."
Moreover, Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, arrested the appellants namely Rashid and Saqib on 26.09.2016; however the empty shells of the bullets taken into possession from the place of occurrence were sent to Punjab Forensic Science Agency, Lahore on 06.10.2016 when there was no reason for keeping the empty shells, which were taken into possession on 11.09.2016, at the Police Station and not sending them to the office of Punjab Forensic Science Agency, Lahore till after the appellants had been arrested. In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. P.T) has no evidentiary value as the possibility of fabrication is apparent. Reliance is placed on the case of Muhammad Amin v. The State and another (2019 SCMR 2057) wherein the august Supreme Court of Pakistan has held as under:- "Interestingly, two empty cartridges (P-4/1-2) were secured from the place of occurrence by the Investigating Officer Akhtar Ali, SI (PW12) on the night of 11.10.2012, but the same were sent to the office of Punjab Forensic Science Agency on 23.01.2013 i.e. after arrest of the appellant in this case.
In these circumstances, the positive report of F.S.L. is of no avail to the prosecution and is inconsequential."
With regard to the recovery of motorcycle (P-9) from the appellant namely Rashid, it is observed that the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) did not mention either the registration number or even the make or the colour of the motorcycle which was allegedly used by the appellants to arrive at the place of occurrence , therefore, the recovery of the motorcycle (P-9) cannot be used as proof of any fact in issue or any relevant in fact.
17. The learned Deputy Prosecutor General and the learned counsel for the complainant have 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 Sohail Aslam (PW-2) and Abdul Saeed (PW-3), was that before the occurrence, Riaz and Mustansar (both since acquitted), the co-accused of the appellants, instigated the appellants to murder the deceased as a revenge for not returning two women namely Naziran (also referred to as Najma) and Rimsha. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. Both the women namely Naziran (also referred to as Najma) and Rimsha, neither joined the investigation of the case nor the prosecution produced them before the learned trial court in Support of the alleged motive. Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, during cross-examination, admitted as under:- "I had tried my best to join Mst.Najma and Mst.Rimsha in investigation but both could not be located despite best efforts"
The prosecution witnesses did not even make an effort to provide ftny details regarding the dispute over the women namely Naziran (also referred to as Najma) and Rimsha. It was not even brought on record that when the said women namely Naziran (also referred to as Najma) and Rimsha were abducted , if indeed they were, and with whom they were residing at the time of occurrence and who had refused to return them. The failure of Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, to join Naziran (also referred to as Najma) and Rimsha in the investigation of the case reflects poorly on the prosecution case. It is not even proved whether any women namely Naziran (also referred to as Najma) and Rimsha even existed regarding whom the motive of the occurrence was alleged. The prosecution witnesses 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 appellants namely Rashid and Saqib to have committed the Qatl-i-Amd of the deceased namely Muhammad Aslam son of Abdul Ghafoor and Zohaib Aslam son of Muhammad Aslam. There is an evocative muteness in the prosecutions case with regard to the minutiae of the motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. 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."
Even otherwise it is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable, then motive and recovery have no evidentiary value and lost their significance.
18. The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead bodies of the deceased by Dr. Muhammad Younis Ansari (PW- 11) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution, in this case, have been disbelieved and discarded by us, therefore, the appellants' conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled "Hashim Qasim and another v. The State"
(2017 SCMR 986) has enunciated the following principle of law: "The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."
The august Supreme Court of Pakistan, in its binding judgment titled "Naveed Asghar and 2 others v. The State" (PLD 2021 SC 600) has enunciated the following principle of law: "31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstanal evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person.
32. Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners."
19. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of appellants namely Rashid son of Riaz and Saqib son of Riaz 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 v. The State" (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that There should be many circumstances creating doubt. If there is 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 Pakistan Najaf Ali Shah v.
The State (2021 SCMR 736) in which it has been observed 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 earlier judgments of this Court has categoricdlly 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)." 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 eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
20. For what has been discussed above Criminal Appeal No.725 of 2019 lodged by the appellants namely Rashid son of Riaz and Saqib son of Riaz is allowed and the conviction and sentence of the appellants awarded by the learned trial court through the impugned judgment dated 19.07.2019 are hereby set-aside. Rashid son of Riaz and Saqib son of Riaz (appellants) arre ordered to be acquitted by extending them the benefit of the doubt. Rashid son of Riaz and Saqib son of Riaz (appellants) are in custody and are directed to be released forthwith if not required in any other case.
21. The complainant of the case namely Sohail Aslam (PW-2) filed Criminal Appeal No.839 of 2019 against the acquittal of the accused namely Riaz son of Ghulam Sarwar and Mustansar son of Riaz.
We have observed that the learned trial court rightly acquitted the said accused. Riaz son of Ghulam Sarwar and Mustansar son of Riaz, both since acquitted, were alleged to had instigated their co-accused to murder the deceased for the reason that two women namely Naziran (also referred to as Najma) ,and Rimsha had been abducted, however, they were not being returned, but as discussed above, the very fact that two women namely Naziran (also referred to as Najma) and Rimsha had been abducted could not be proved. When the reason for Riaz son of Ghulam Sarwar and Mustansar son of Riaz, both since acquitted, to have instigated their co-accused could not be proved then their prompting could also be not. It is important to note that according to the established principle of the criminal administration of justice once an acquittal is recorded in favour of accused facing criminal charge he enjoys double presumption of innocence, therefore, the courts competent to interfere in the acquittal order should be slow in converting the same into conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or perverse. The said principle has been enunciated by the august Supreme Court of Pakistan in the judgment reported as Muhammad Inayat v. The State (1998 SCMR 1854) wherein it has been held as under: "The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same, and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
The august Supreme Court of Pakistan in the case of "Mst. Sughran Begum and another v. Qaiser Pervaiz and others" (2015 SCMR 1142) has held as under: "On acquittal, an accused person earns two fold innocence particularly, in the case when there are concurrent findings to that effect by the trial Court and the Court of First Appeal (High Court), is the bedrock principle of justice. In a case of acquittal, the standard and principle of appreciation of evidence is entirely different from that in a case of conviction. Unless the concurrent findings of the two Courts below are found perverse, fanciful, arbitrary and are based on misreading and non-reading of material evidence causing miscarriage of justice, the Supreme Court would not lightly disturb the same because on reappraisal, another view might be possible therefore, sanctity is attached under the law to such concurrent findings in ordinary course."
Pursuant to the discussion made and conclusions arrived at above, the Criminal Appeal No.839 of 2019, lodged by the complainant of the case namely Sohail Aslam, assailing the acquittal of the accused namely Riaz son of Ghulain Sarwar and Mustansar son of Riaz (both since acquitted by the learned trial court), is hereby dismissed.
22. Murder Reference No.95 of 2019 is answered in Negative and the sentences of death awarded to Rashid son of Riaz and Saqib son of Riaz are Not Confirmed.