Ch. Abdul Aziz, J. Through the instant appeal Muhammad Sibtain (appellant) called in question the vires of judgment dated 30.05.2018 passed by learned Additional Sessions Judge, Talagang (Chakwal) arising out of case FIR No.75/2016 dated 01.04.2016 under Sections 302 & 34 PPC registered at Police Station Saddar Talagang, District Chakwal, whereby he was convicted under Section 302(b) PPC and sentenced to suffer life imprisonment with direction to pay Rs.5,00,000/- as compensation to the legal heirs of Arshad Mehmood (deceased) under Section 544-A, Cr.P.C. and in default thereof to further undergo six months S.I. Benefit of Section 382-B Cr.P.C., however, was extended to the appellant
2. Succinctly stated the case of prosecution as unveiled by Haji Akbar Khan (PW.6) in F.I.R (Exh.PE) is to the effect that he is resident of Rehman Abad and agriculturist by profession; that Arshad Mehmood is his paternal cousin and brother-in-law (sala); that the marriage of his close relative, namely, Iqrar son of Altaf was being solemnized and almost all members of his brotherhood used to assemble in the function every night; that Arshad Mehmood did not attend the marriage function on the night of 31.03.2016 upon which Muhammad Farooq and Duraiz Khan went to his house for inquiring about his absence; that at about 9:30 p.m. when they reached the courtyard of Arshad Mehmood, Muhammad Sibtain on hearing their conversation hurriedly came out from the house while having hatchet in his hand and decamped therefrom; that Muhammad Sibtain was identified by the complainant and other witnesses in the light of the torch; that they entered into the room and saw Arshad Mehmood having injury on his head from which blood was oozing out, whereas his wife Mst. Fazilat Bibi was standing alongside the cot; that on seeing them, Mst. Fazilat Bibi became perturbed and could not offer any reasonable answer about the injury on the skull of her husband; that they took Arshad Mehmood to THQ Hospital Talagang in injured condition from where he was referred to DHQ Hospital Rawalpindi for treatment; that when they crossed Chakri on motorway Arshad Mehmood succumbed to the injuries and he was taken back to THQ Hospital Talagang; that on many occasions Arshad Mahmood told the complainant and Duraiz Khan that Mst. Fazilat Bibi had illicit liaison with Sibtain and despite warning she did not mend her ways; that he had strong suspicion that Sibtain and Mst.Fazilat Bibi had committed murder of Arshad Mehmood so as to tie matrimonial knot.
3. On 01.04.2016 Mansoor Mazhar SI (PW.13) after receiving information about the occurrence reached THQ Hospital Talagang where Haji Akbar Khan (PW.6) got recorded his oral statement/Fard Bian (Exh.PG). He inspected the dead body of Arshad Mehmood, drafted application for postmortem examination (Exh.PA) and inquest report (Exh.PB). He dispatched the complaint (Exh.PG) to police station which was reduced into formal FIR (Exh.PE). He also received MLC (Exh.PM) of Arshad Mehmood. Thereafter he proceeded to the place of occurrence, collected blood through cotton vide memo Exh.PJ. He also secured torch (P.4) through recovery memo Exh.PH. He prepared rough site plan (Exh.PN). On 05.04.2016 he arrested Mst. Fazilat Bibi (since acquitted) and during interrogation in presence of PWs she made disclosure and led to the recovery of sleeping pills (P.6) from her house which I.O. took into possession through recovery memo Exh.PK. On the same day, Muhammad Sibtain (appellant) was arrested and during the course of interrogation disclosed about the weapon of offence which he used in the occurrence and accordingly got recovered hatchet (P.5) which was taken into possession through recovery memo Exh.PL. He recorded statements of the witnesses under section 161 Cr.P.C. Thereafter, on conclusion of investigation, report under section 173 Cr.P.C was submitted in the court whereupon, the trial of the case was held.
4. During trial the prosecution, in order to prove its case against the appellant produced thirteen witnesses including Haji Akbar Khan (PW.6) and Duraiz Khan (PW.7) who furnished the evidence of coming across (waj takkar), Dr. Malik Muhammad Zubair M.O. (PW.12) medically examined injured Arshad Mehmood through MLC (Exh.PM), whereas Dr. Kamran Hussain (PW.1) conducted autopsy of Arshad Mehmood through postmortem examination report (Exh.PC) and Mansoor Mazhar SI (PW.13) investigated the case.
5. After the conclusion of prosecution evidence, the learned trial court examined the appellant under section 342 Cr.P.C. The appellant refuted the allegations against him and pleaded his innocence. The appellant neither appeared under section 340(2) Cr.P.C. nor produced any defence evidence. After the completion of trial, the appellant was convicted and sentenced by the learned trial court as afore-stated, hence, the instant criminal appeal.
6. The learned counsel for the appellant contends that the prosecution failed to prove its case against the appellant beyond reasonable doubt; that the prosecution evidence has been disbelieved to the extent of acquitted co-accused, thus the superstructure of conviction cannot be raised on the same set of evidence against the appellant; that in fact the incident went unseen and the witnesses of coming across were subsequently planted for giving strength to the prosecution case; that Haji Akbar Khan and Duraiz Khan (PWs 6 & 7) miserably failed to prove their acclaimed presence at the spot; that the medical evidence is also in conflict with the ocular account and besides that the recovery of weapon statedly affected from the appellant is also not believable due to various flaws; that in the given circumstances neither the medical evidence supports the prosecution case nor there is any other corroboration and that in the given circumstances the conviction awarded to the appellant is to be set aside.
7. On the other hand learned law officer assisted by learned counsel for the complainant argued that the case in hand is arising out of a promptly lodged FIR in which the appellant is specifically named as the main culprit; that the detail of occurrence in this case was furnished by the witnesses who had no previous enmity with the appellant and otherwise properly explained their presence at the spot; that the appellant was previously known to the eyewitnesses, thus there was no chance of mistaken identity; that the corroboration, if any, can well be sought from the duly proved motive and recovery of weapon affected from the appellant and that since the prosecution successfully proved its case against the appellant to the hilt hence the conviction awarded to him calls for no interference.
8. Arguments heard and record perused.
9. A wade through the record reveals that the incident which gave birth to the instant case, took place on the night of 31.03.2016. According to case of prosecution, Haji Akbar Khan (complainant/PW.6) along with Duraiz Khan (PW.7) was attending an ongoing marriage function of a close relative namely Ikrar S/o Altaf Hussain. At about 09.30 p.m. both of them noticed the absence of Arshad Mehmood (deceased) and out of curiosity proceeded to his house for ascertaining the reasons of such non-attendance. When both the PWs reached the courtyard of the house belonging to Arshad Mehmood (deceased), suddenly Muhammad Sibtain (appellant) came out from one of the rooms while having hatchet in his hands. The PWs identified Muhammad Sibtain (appellant) in the light of a torch whereafter he had a swift escape from the spot. Upon entering the room, both the PWs found Arshad Mehmood (deceased) laying on a cot while having a wound on his skull from which the blood was oozing out whereas Mst. Fazilat Bibi, the wife of Arshad Mehmood was also standing beside the cot in a confused state of mind. As per prosecution case, Arshad Mehmood was immediately shifted to THQ Hospital Talagang wherefrom he was referred to DHQ Hospital Rawalpindi on account of his precarious condition but he took last breath in the midway.
10. After having perused the record of case with utmost circumspection, it is noticed that the case of prosecution mainly hinges upon the following evidence:-
1. Deposition of Haji Akbar Khan and Duraiz Khan (PW.6 & PW.7) who claimed to have witnessed Muhammad Sibtain (appellant) coming out from the room in which Arshad Mehmood (deceased) was laying on a cot in injured condition.
2. Evidence of Shaukat Hussain (PW.9) who statedly saw Muhammad Sibtain (appellant) and Mst.
Fazilat Bibi (since acquitted) sitting on same cot in the house of deceased shortly before the occurrence.
3. The motive set-out by the prosecution according to which an extra-matrimonial affair between Muhammad Sibtain (appellant) and Mst. Fazilat Bibi was canvassed as driving force behind the occurrence.
4. The medical evidence furnished by Dr. Zubair (PW.12) and Dr. Kamran Hussain (PW.1) as well as the recovery of hatchet (P5) statedly effected from Muhammad Sibtain (appellant) during investigation.
5. The recovery of hatchet effected from the Muhammad Sibtain (appellant) and the recovery of tablets got recovered in pursuance of disclosure made by Mst. Fazilat Bibi which statedly were used for intoxicating Arshad Mehmood (deceased) for his assassination.
11. From an in-depth analysis of record, it surfaced that the occurrence leading to the death of Arshad Mehmood took place on 31.03.2016 at about 09.30 p.m. The perusal of column No.4 of first information report (Exh.PE) reveals that police station Saddar Talagang though was connected with the crime scene by a metal road of 15 kilometers but still the details of the incident were imparted to police through oral statement (Exh.PE) of Haji Akbar Khan (PW.6) on the following morning at about 09.00 a.m. The complaint (Exh.PE) after twenty minutes of its completion was transcribed into formal F.I.R. If correctly calculated, there is a delay of about 12-hours noticed in the registration of F.I.R. thus, the prosecution was legally obliged to satisfactorily explain it for providing strength to the hypothesis about the truth of its contents. Apparently, the complainant Haji Akbar Khan (PW.6) was well cognizant of discharging the burden of addressing the delay in registration of F.I.R. and accordingly came forward with the stance that Arshad Mehmood (deceased) was firstly taken to THQ Hospital Talagang from where he was dispatched to DHQ Hospital Rawalpindi due to his critical medical condition. Such explanation turned out to be fragile enough and did not help the cause of prosecution for addressing the delay in registration of F.I.R. Admittedly, Haji Akbar Khan (PW.6) was having a mobile phone in his possession at the eventful time which he could conveniently use for intimating the police about unfortunate incident but he opted not to use it, for the reasons not disclosed by him. The aforementioned omission gains more significance when seen in the context that Haji Akbar Khan (PW.6) requisitioned a vehicle at the crime scene through a call made from his own mobile phone for shifting Arshad Mehmood (deceased) to hospital as is evident from the following extract of his deposition:- "From the place of occurrence, we had gone to THQ Hospital, Talagang. I had summoned a car at the place of occurrence through phone."
The question of pivotal importance arises that if at all, due to some reasons, Haji Akbar Khan (PW.6) could not inform the police about the occurrence, still he could do the needful after reaching THQ Hospital Talagang but surprisingly nothing as such was done by him. Haji Akbar Khan (PW.6) without offering any reason candidly conceded that the task of intimating the police about the crime was performed on the following morning at about 06.00 a.m. Without a speck of reluctance, it can be concluded that the enormous delay of 12 hours in the registration of F.I.R. remained unexplained, a fact which sheds doubt upon the truth of accusations set-out by the prosecution.
Besides that, the delay of 12-hours further reflects upon the possibilities that Haji Akbar Khan and Duraiz Khan (PW.6 & PW.7) acquired knowledge about the incident much after its happening, thus, were clueless about the identity of the perpetrator. The fact that crime scene was situated at an isolated place and had no electricity connection, further gives vent to the possibility that occurrence remained unwitnessed and the complainant after acquiring knowledge about it consumed the duration of 12-hours in knitting a false story. Guidance in this regard can be sought from the case reported as Mst. Asia Bibi v. The State and others (PLD 2019 Supreme Court 64) wherein the Supreme Court of Pakistan held as under:- "There is no cavil to the proposition, however, it is to be noted that in absence of any plausible explanation, this Court has always considered the delay in lodging of FIR to be fatal and castes a suspicion on the prosecution story, extending the benefit of doubt to the accused. It has been held by this Court that a FIR is always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime; thus, it has a significant role to play. If there is any delay in lodging of a FIR and commencement of investigation, it gives rise to a doubt, which, of course, cannot be extended to anyone else except to the accused. Furthermore, FIR lodged after conducting an inquiry loses its evidentiary value. [see: Iftikhar Hussain and others v. The State (2004 SCM R 1185)]. Reliance in this behalf may also be made to the case titled as Zeeshan @ Shani v. The State (2012 SCM R 428) wherein it was held that delay of more than one hour in lodging the FIR give rise to the inference that occurrence did not take place in the manner projected by prosecution and time was consumed in making effort to give a coherent attire to prosecution case, which hardly proved successful. Such a delay is even more fatal when the police station, besides being connected with the scene of occurrence through a metaled road, was at a distance of 11 kilometers from the latter. In the case titled as Noor Muhammad v. The State (2010 SCM R 97) it was held that when the prosecution could not furnish any plausible explanation for the delay of twelve hours in lodging the FIR, which time appeared to have been spent in consultation and preparation of the case, the same was fatal to the prosecution case. In the case titled as Muhammad Fiaz Khan v. Ajmer Khan (2010 SCM R 105) it was held that when complaint is filed after a considerable delay, which was not explained by complainant then in such situation it raises suspicion as to its truthfulness."
12. While dilating upon the prosecution case, it is found to be mainly structured upon the depositions of Haji Akbar Khan and Duraiz Khan (PW.6 & PW.7) who were related with Arshad Mehmood (deceased) as brothers-in-law (Behnoi). Admittedly, none out of them witnessed the actual incident and they simply claimed to have seen Arshad Mehmood (deceased) coming out from the room wherein the crime scene was situated. The evidence of both the witnesses pertains to the event of coming across (waj takkar) the acceptance of which is urged by the prosecution on the principle of res gestae. There is a pressing need to elaborate the term res gestae, which is defined in Black's Law Dictionary Tenth Edition as under:- "The res gestae embraces not only the actual facts of the transaction and the circumstances surrounding it, but the matters immediately antecedent to having a direct casual connection with it, as well as acts immediately following it and so closely connected with it as to form in reality a part of the occurrence."
The rule of res gestae is legally recognized in our country through Article 19 of Qanun-e-Shahadat Order, 1984 which for reference sake is reproduced hereunder:-
19. Relevancy of facts of forming part of same transaction. Fact which though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different time and places.
Illustration (a)
A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by- standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
In order to attain legal admissibility and credibility the event of res gestae must be so closely connected with the main occurrence so as to form one common transaction and there must not be any circumstance bisecting them from each other. The evidence of res gestae loses credibility if there is noticeable delay between the two events because the longer is the duration between them, greater is the possibility that these events are severed from each other on account of their genesis. Besides that, the event of res gestae must have close nexus with the main occurrence in reference to the nature of offence, identity of the culprit, the place and the time where it occurred.
The concept of res gestae was elaborated by this Court in a case reported as Zaka Ullah v. The State (2021 PCr.LJ 1). The relevant extract from the said judgment is reproduced below for ready reference:- "Bare look of Article 19 and the Illustration annexed therewith leads to the inference that an evidence/circumstance to attain the status of res gestae must be connected with the fact in issue in the manner so as to form same transaction. Such facts must be incidental and explanatory to the main occurrence and can even be arising out of acts or from words, performed or uttered by someone immediately after the event in question. The event of res gestae must also be closely connected with the fact in issue in term of proximity of time. The afflux of some delay between the fact in issue and the event canvassed as res gestae will separate them from each other giving rise to a possibility so as to be part of some other transaction."
Above all, the event of res gestae must be brought on record spontaneously and without lapse of any unnecessary delay. Though in the instant case, the incident of homicide and event of res gestae occurred in close proximity of time with each other but the fact remains that the detail of these two episodes was reported to police with an unexplained delay of 12-hours. The standard of proof for accepting the res gestae involves stringency of appraisal so as to exclude all the hypotheses of fabrication through consultation. In the instant case, it is already mentioned above that the F.I.R, mainstay of which is event of res gestae, was registered with enormous delay of 12- hours for which not even a frail explanation was offered. Due to this reason, the stance of both the PWs namely Haji Akbar Khan and Duraiz Khan (PW.6 & PW.7) is found surrounded amidst doubt. In the case reported as Sunil v. State of Kerala (2020 KER 401) while evaluating the evidence of witnesses narrating the event of res gestae, the court observed as under:- "As far as evidence of PWs.1 to 4 is concerned, the principle of res gestae appears to be not applicable. The statement, of course, must have been made contemporaneously with the acts which constitute the offence for at least immediately thereafter. In this case, the facts are different.
Although PW1 witnessed the occurrence on 07.11.2012 at 08.30 p.m., he lodged Ext.P1 F.I.R, before police on 08.11.2012 at 02.00 p.m. He had taken the injured to hospital along with PWs 2 and 4. They had interacted together. Thereafter, PW1 lodged Ext.P1 F.I.R, before police. In view of the above circumstances, it is very difficult to hold that the alleged declaration was simultaneous with the incident or substantially contemporaneous either during or immediately before or after the occurrence."
For adjudging the intrinsic worth of the evidence given by Haji Akbar Khan and Duraiz Khan (PW.6 & PW.7) the applicability of res gestae is not to be seen in isolation from other circumstances of the case rather is to be adjudged in conjunction with other factors like the delay in registration of F.I.R., credibility of the witnesses and the legal shortcomings arising out of their statements made during trial. It is already mentioned above that there is a noticeable delay of 12-hours in reporting the crime to the police and such time span was sufficient for the witnesses to knit a story even about an incident they never witnessed. Firstly, it is observed that both the witnesses badly failed to substantiate the reason which prompted them to visit the house of Arshad Mehmood (deceased) at the odd hours of night. For clarity of proposition, it is being mentioned that the witnesses went to the house of deceased out of curiosity after noticing his absence from an ongoing marriage ceremony of their close relative. It was incumbent upon the prosecution to prove that in fact there was a marriage function but this onus was not discharged in any manner. Though according to prosecution case, marriage ceremony of Ikrar s/o Altaf was going on but admittedly none from his family appeared before the trial court for endorsing the claim of the witnesses. Beyond everything, even the veil was not lifted from the nature of this marriage function like music night, nikah or valima etc. The failure of prosecution to prove the truth of ongoing marriage function left both the PWs with no reason to visit the house of deceased in the dark hours of night, rendering their depositions as of chance witnesses. Secondly, Haji Akbar Khan and Duraiz Khan (PW.6 & PW.7) admitted in unequivocal terms that the house of Arshad Mehmood (deceased) was situated in the suburbs of the village at an isolated place, having no electricity connection. For proving the identity of Muhammad Sibtain (appellant) as the assassin in an occurrence having taken place in the dark pitched night, prosecution was essentially required to prove the source of light for excluding the possibility of mistaken identification. Proving of light source in a nighttime felony is not a statutory requirement but a rule of caution followed inflexibly in every criminal case for proving beyond shred of any doubt the identity of the criminal. It is the light which enables a witness to notice the lineament and physiognomy of the culprit and darkness leaves a witness clueless for ascertaining the identity of the culprit. Haji Akbar Khan (PW.6) described the torch as source of light for identifying Muhammad Sibtain (appellant) at the eventful time. The torch is always regarded as a weak source of light in a night time homicide incident for identifying the culprit. In the case reported as The State v. Hakim Ali and 3 others (1996 PCr.LJ 231) the frailty of torch as a source of light in a night time of occurrence was highlighted which for reference sake is referred hereunder:- "Evidence relating to identification of accused in the torch light has always been treated as weak piece of evidence by superior Courts. It was held by a Division Bench of this Court in the case of Muhammad and others v. The State 1968 PCr.LJ 590 that the identification of the assailants by witness on dark night through his torch may lead to the possibility of mistaken identity and particularly in view of the previous enmity existing between the parties. In Suwali v. The State 1982 PCr.LJ 808, a Division Bench of this Court declared identification by flash of torch as highly suspicious. In the case of the State v. Fazal Muhammad and another 1970 PCr.LJ 633 it was held that the identification of the accused in the light of torch was never considered as sufficient piece of evidence."
Thirdly it is noticed that Haji Akbar Khan and Duraiz Khan (PW.6 & PW.7) only had a momentary glimpse of Muhammad Sibtain (appellant) but found Mst. Fazilat Bibi (co-accused) present in the room in a nervous state of mind while having previous knowledge of the extra-matrimonial affairs between the two. Despite that, Haji Akbar Khan and Duraiz Khan (PW.6 & PW.7) made no effort to apprehend Mst. Fazilat Bibi at the spot rather left her behind unattended while proceeding to THQ Hospital Talagang along with Arshad Mehmood. Such conduct runs contrary to the natural response which even an ordinary and rusty human is expected to demonstrate. Above all, both the PWs were disbelieved to the extent of Mst. Fazilat Bibi (co-accused) and resultantly she was acquitted by the trial court. Though, criminal appeal No.931-2018 was preferred before this Court by Haji Akbar Khan (PW.6) but it met the fate of dismissal. It will wholly be unjust to place explicit reliance upon the statements of same set of witnesses for maintaining conviction of appellant who were disbelieved to the extent of his co-accused. Unambiguously, the acquittal of Mst. Fazilat Bibi left a dent upon the credibility of the two witnesses as according to accusations, she was active participant of the crime. In the case reported as Altaf Hussain v. The State (2019 SCMR 274) the evidence of PWs who were disbelieved to the extent of one set of accused was also discarded against the convict with the following observation:- "It is well settled by now that if a set of witnesses is disbelieved to the extent of some accused the same cannot be believed to the extent of remaining accused facing the same trial without there being any independent and strong corroboration."
Fourthly, it is noted from MLC (Exh.PM) that Arshad Mehmood (deceased) was brought to THQ Hospital Talagang in injured condition at 12.12 a.m. on 01.04.2016 by Mubaraz Khan s/o Fazal Khan.
Admittedly, aforementioned Mubaraz Khan was related with Arshad Mehmood (deceased) and Mst. Fazilat Bibi (since acquitted) as father in law and father respectively. Even while appearing in the dock, Dr. Malik Muhammad Zubair (PW.12) admitted in clear terms that deceased was brought to hospital by none other than Mubaraz Khan as is evident from the following extract of his cross- examination:- "It is correct that Arshad Mehmood was brought by Mubaraz Khan s/o Fazal Khan, who was his father-in-law according to the record."
The question arises that if at all, Haji Akbar Khan and Duraiz Khan (PWs 6 & 7) shifted Arshad Mehmood to THQ Hospital in injured condition having knowledge about the involvement of Mst.
Fazilat Bibi in the crime then why they let Mubaraz Khan incorporate his name in the MLC as the person accompanying the victim. The answer to this query was neither offered during arguments nor is found discerning from record, which otherwise is in eternal silence on the point. Indeed, the aforementioned fact badly reflects upon the truth of deposition offered by Haji Akbar Khan and Duraiz Khan (PWs 6 & 7) and in fact gives an undeniable clue about their absence from the spot.
Last but not the least, it is observed that while appearing in the dock, Haji Akbar Khan and Duraiz Khan (PWs 6 & 7) realizing the importance of lacuna emerging from the MLC (Exh.PM) wherein Mubaraz Khan was mentioned as attendant, a most unlikely person to be named as such, thus, they made material improvement in this regard. It is further observed that Haji Akbar Khan (PW.6) made addition in his court statement to address shortcoming emerging from MLC by saying that upon their arrival to THQ they saw Mst. Fazilat Bibi and her father Mubaraz Khan sitting in the room of the doctor. The aforementioned improvement was duly attended by the defence and both the witnesses were accordingly confronted with their police statements in which no reference was made to this event. The Supreme Court of Pakistan while embarking upon such issue held in the case reported as Ibrar Hussain and others v. The State and another (2007 SCMR 605) as under:- "It is settled law that person making contradictory statements cannot be held worthy and credence as law laid down by this Court in Muhammad Shafique Ahmad's case PLD 1986 SC 471. It is a settled law that witness making improvements and changing version as and when suited according to the situation then such type of improvements were found deliberate and dishonest, therefore, cause serious doubt on the veracity of such witness." Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Naeem Inayat v. The State (2010 SCMR 1054)."
Even otherwise, if at all, Mubaraz Khan managed incorporation of his name in the MLC by using his good offices with the doctor, the complainant should have stoutly agitated this issue from the very inception of the case but nothing as such was done. The foregoing omission sheds light upon the truth behind the deposition of Dr.Muhammad Zubair Malik (PW.12) and the contents of MLC (Exh.PM). As necessary consequence, the presence of Mubaraz Khan in the hospital as a person who brought Arshad Mehmood (deceased) to hospital in injured condition leaves no doubt that Haji Akbar Khan and Duraiz Khan indeed acquired knowledge about the incident much after it occurred.
13. I have also given a due thought to the deposition of Shaukat Hussain (PW.9) who claimed to have seen Muhammad Sibtain (appellant) and Mst. Fazilat Bibi (since acquitted) sharing one common cot just 30 minutes before the occurrence in the same house under the rooftop of which Arshad Mehmood (deceased) endured fatal injury. Shaukat Hussain (PW.9) was admittedly nephew not only of the deceased but also of Haji Akbar Khan and Duraiz Khan (PWs 6 & 7). Despite acquiring knowledge about the actual occurrence, neither he went to the police station nor to the hospital and even opted not to disclose the detail of such an important event to the complainant before the registration of the F.I.R. On this score alone, the evidence of Shaukat Hussain (PW.9) is not worth reliance and even otherwise, he was not considered credible enough for awarding conviction to Mst. Fazilat Bibi who was acquitted by the trial court.
14. According to the prosecution case, Muhammad Sibtain (appellant) was arrested on 05.08.2016 and four days thereafter he led to the recovery of hatchet (P.5) in the presence of Pervaiz Iqbal (PW.11) and Manzoor Mazhar SI (PW.13). Though according to the report of PFSA (Exh.PU) the hatchet (P.5) was found stained with human blood but no effort whatsoever was made to establish its nexus with the DNA of Arshad Mehmood (deceased). I am not oblivious of the fact that the hatchet was dispatched to the office of PFSA and by that time Arshad Mehmood (deceased) was laid in the grave for eternal rest. The bloodstained clothes of the deceased were available with the police and the needful could be done easily. In the given circumstances, it cannot be held with certainty that the blade of hatchet was having the blood of none other than Arshad Mehmood (deceased).
Even otherwise, recovery of hatchet could be used for corroboration if the evidence of Haji Akbar Khan and Duraiz Khan had inspired confidence. I have also attended to the recovery of tablets (P6) on the disclosure and pointation of Mst.Fazilat Bibi (since acquitted) effected on 05.04.2022 as is evident from the recovery memo (Exh.PK). According to the theory of crime advanced by the prosecution, these tablets were somehow administered to Arshad Mehmood (deceased) before his assassination. The weakness of such story stands exposed from the fact that Mst.Fazilat Bibi was arrested on 05.04.2016 whereas according to the report of Exh.PT, these tablets reached the office of PFSA on 04.04.2016. I have no doubt in my mind that the prosecution case so far as it relates to the recovery of tablets (P.6) is preposterous in nature and is not worth reliance, more importantly when Mst. Fazilat Bibi had earned acquittal from the trial court.
15. It is time tested principle of law that the conviction must be based on unimpeachable, trustworthy and reliable evidence and any doubt arising in prosecution case is to be resolved in favour of the accused as burden of proof is always on prosecution to prove its case beyond shred of any ambiguity. Likewise, it is also an established principle of law and equity that it is better to acquit ten guilty persons rather than to convict an accused on deficient prosecution evidence on the basis of sentiments and emotions alone. While holding so, guidance can be sought from the observation of the Supreme Court of Pakistan expressed in case reported as Ayub Masih v. The State (PLD 2002 Supreme Court 1048), which for advantage sake is reproduced hereunder:- "...The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".
16. The nutshell of the above discussion is to the effect that the prosecution miserably failed to prove its case against the appellant beyond any iota of doubt. In such circumstances, this Court is under no compulsion to uphold conviction awarded to the appellant on such scanty evidence.
Resultantly, while allowing Criminal Appeal No.564 of 2018, the conviction and sentence of Muhammad Sibtain (appellant) are set aside and he is acquitted of the charge. He is on bail. His sureties stand discharged from bail bonds.