SADIQ MAHMUD KHURRAM, J. -Ameer Sultan son of Muhammad Khan (convict) was tried by the learned Sessions Judge, Chakwal in case F.I.R No. 605 of 2022 dated 29.12.2022 registered at Police Station City Chakwal, District Chakwal in respect of offences under sections 302 and 449 P.P.C. for committing the Qatl-i-Amd of Haji Muhammad Hayat son of Dost Muhammad (deceased) . The learned trial court vide judgment dated 12.10.2023 convicted Ameer Sultan son of Muhammad Khan (convict) and sentenced him as infra: Ameer Sultan son of Muhammad Khan :- i) Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Haji Muhammad Hayat son of Dost Muhammad (deceased) and directed to pay Rs.20,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default of payment thereof, the convict was directed to undergo further six months of simple imprisonment. ii) Imprisonment for Life under section 449 P.P.C. and directed to pay Rs.50,000/- as fine; in case of default of payment thereof, the convict was directed to undergo further six months of simple imprisonment.
The convict was ordered to be hanged by his neck till death.
The convict was, however, extended the benefit available under section 382-B of Code of Criminal Procedure, 1898 by the learned trial court.
2. Feeling aggrieved, Ameer Sultan son of Muhammad Khan (convict) lodged the Criminal Appeal No.678 of 2023 assailing his conviction and sentences. The learned trial court submitted Murder Reference No.57 of 2023 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Ameer Sultan son of Muhammad Khan. We intend to dispose of the Criminal Appeal No.678 of 2023 and the Murder Reference No.57 of 2023 through this single judgment.
3. Precisely the facts necessary, as stated by Muhammad Sami Ullah (PW-10) , the complainant of the case, are as under:- "It is stated that on 29.12.2022 I was working as Munshi in under construction Danish School system at Chakwal. Haji Muhammad Hayat deceased and Muhammad Aslam were working as a Chowkidar in said school. On the mid night of 29.12.2022 at about 12:30 am. we all three persons were present at the place of occurrence and both the Chowkidars were present in the guardroom while illuminating fire and I was sleeping in the adjacent room. Meanwhile, an unknown person came there through main gate and said that he wants to reside there. Haji Muhammad Hayat and Muhammad Aslam tried to turn him out of the room, meanwhile altercation took place between them and I also attracted there. Said unknown person took wood/Danda from the burning woods and gave its many blows on the head of Muhammad Hayat, due to which he sustained injuries at his head, face and nose.Haji Muhammad Hayat fell on the ground. The said unknown person was having average height aged about 35/40 years, fled away from the place of occurrence who could be identified by me. Said person had committed access while causing injuries to the deceased.
Motive behind the occurrence was that said person forcibly intended to reside there and on refusal of the deceased he committed the occurrence.
I called at Rescue 1122 and shifted deceased, the then injured, at District Headquarter Hospital, Chakwal. Police Khidmat Centre Chakwal prepared injury statement of the deceased, the then injured. His medical examination was conducted by the doctor. Meanwhile, IO arrived at District Headquarter Hospital, Chakwal. I got recorded my oral statement which was reduced into writing by the IO as Exh.PN which was read-over to me and I signed the same.
The injured was shifted to District Headquarter Hospital Rawalpindi from the District Headquarter Hospital Chakwal. The injured was succumbed to the injuries at District Headquarter Hospital Rawalpindi.
Afterwards I alongwith IO and PFSA team visited the place of occurrence where PFSA team collected blood stained earth through cotton which was made into a sealed parcel and IO took the same into his possession through a recovery memo. IO took an electric bulb P7 into his possession vide recovery memo Exh.PO, attested by me and Muhammad Aslam PW. IO recorded our statements u/s 161 Cr.PC. He also inspected the place of occurrence and prepared rough site plan of the scene of occurrence on our pointation. On 06.01.2023, on IO alongwith draftsman visited the place of occurrence where in our presence, draftsman took rough notes on our pointation.
On 12.01.2023, I alongwith Muhammad Aslam PW was called upon in Sub Jail Chakwal and we duly identified the accused Ameer Sultan present in court during identification parade proceedings.IO recorded our statements u/s 161 Cr.PC in this regard and I nominated the accused in this case.
On 23.01.2023, accused made disclosure in pursuant whereto, he got recovered wood/Danda P8 from inside Danish School, Chakwal/place of occurrence. The same was taken into possession by the IO vide recovery memo Exh.PP attested by me and Muhammad Aslam PW. IO also recorded our statements u/s 161 Cr.PC. He also prepared site plan of place of recovery in our presence."
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 appellant namely Ameer Sultan son of Muhammad Khan was sent to face trial. The learned trial court framed the charge against the accused on 11.04.2023, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got recorded statements of fourteen witnesses.
Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) gave evidence regarding the ocular account. Aqib Javed 460/C (PW-3) stated that on 29.12.2022, he prepared the injury statement (Exh.PB) related to Haji Muhammad Hayat (then injured later deceased) and also handed over the clothes of Haji Muhammad Hayat (then injured later deceased) to the Investigating Officer of the case. Ishrat Ali 321/HC (PW-4) stated that on 29.12.2022, the Investigating Officer of the case handed over to him a sealed parcel said to contain blood stained swab, an electric bulb and the clothes of Haji Muhammad Hayat (then injured later deceased) and on 30.12.2022, the Investigating Officer of the case handed over to him the last worn clothes of the deceased and on 05.01.2023, he handed over the sealed parcel said to contain blood stained swab to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore . Muhammad Awais 711/C (PW-6) stated that on 30.12.2022, he got conducted the post mortem examination of the dead body of the deceased and received the last worn clothes of the deceased from the Medical Officer and handed them over to the Investigating Officer of the case. Musawar Hayat (PW 7) stated that on 30.12.2022, he identified the dead body of the deceased at the time of post mortem examination. Saqlain Safdar draftsman (PW 8) prepared the scaled site plan of the place of occurrence (Exh.PL). Zahid Iqbal, ASI (PW-12) stated that on 29.12.2022, he got recorded the formal F.I.R. (Exh.PN/1). Yasir Bilal, learned Magistrate (PW-13) stated that on 12.01.2023, he supervised the test identification parade proceedings held to establish the identity of the appellant and prepared his report (Exh.PR). Zahid Iqbal, ASI (PW-14) investigated the case from 29.12.2022 till 25.01.2023, arrested the appellant on 05.01.2023 and narrated the facts of the investigation as conducted by him in his statement before the the learned trial court.
6. The prosecution also got Dr. Muhammad Mudassir (PW-5) examined who on 30.12.2022 was posted as a Medical Officer at DHQ hospital Chakwal and on the same day conducted the postmortem examination of the dead body of Haji Muhammad Hayat son of Dost Muhammad (deceased). Dr. Muhammad Mudassir (PW-5) on examining the dead body of the deceased Haji Muhammad Hayat son of Dost Muhammad observed as under:- "I noted following injuries on the dead body:-
1. Swelling about 1x1 c.m on the middle of right eyelid, blackish purple in colour, right eyelid was closed.
2. Swelling about 1x1 c.m on the middle of left eyelid, blackish purple in colour, left eyelid was closed.
3. A stitched wound about 2.5 c.m in length horizentol in shape, black colour stitched on left prital
(sic) region 14 c.m away from the middle of the left ear.
4. A stitched wound about 3.5 c.m in length horisentle in shape black colour stitched on the middle of the skull, 18 c.m away from left ear.
5. Lacerated wound about 3 x 1 c.m on the middle of right of forehead, bone was exposed, 2.5 c.m above from the middle of the right eyebrow.
6. Laceration about 0.5 x 0.5 c.m on the right side of the nose, 0.5 c.m below the nasal bridge, margins were black in colour.
7. Laceration about 0.5 x 0.5 c.m on the middle inner of the lower lip, margins were blackish purple in colour.
8. Abrasion about 2 x 2 c.m circular in shape on the middle of the right cheek.
9. Swelling about 2 x 1 c.m on the middle of the left cheek.
10. Swelling about 2 x 2 c.m on the right temporal region, 2 c.m away from right eye.
OPINION.
According to my opinion, injury No.3 & 4 ante mortim in nature and were sufficient to cause death."
The prosecution also got Dr. Faraz Abid Janjua (PW-1) examined who on 29.12.2022 was posted as a Civil Medical Officer at DHQ hospital Chakwal and on the same day had medically examined Haji Muhammad Hayat son of Dost Muhammad (deceased) in an injured condition and observed the following injuries:- "DESCRIPTION OF INJURIES: 1 Right recoon eye.
2 Laceration about 0.5x0.5 c.m on right side of nose.
3. Laceration about 1x1 c.m on perital region. Bone exposed.
3 (sic) Laceration about 4x1.5 c.m on left perital region, 8 c.m above left ear, bone exposed.
4 Laceration about 3x1 c.m, bone exposed, 2 c.m above right eyebrow.
5 Swelling about 2x2 c.m with pain on right sid of forehead.
6 Laceration about 0.5x0.5 c.m in the inner side of lower lip."
7. On 05.06.2023, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Muhammad Kamran and Ghulam Murtaza as being unnecessary and on 11.09.2023, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Wajahat Husnain 409/C and Ajlal Haider 167/C as being unnecessary. On 25.09.2023, the learned Assistant Deputy Prosecutor General closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency, Lahore (Exh.PU) regarding blood stained swab .
8. After the closure of prosecution evidence, the learned trial court examined appellant namely Ameer Sultan son of Muhammad Khan under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been falsely involved in the case. The appellant further stated that he had not committed the occurrence and had been made a scapegoat in the case in order to show efficiency by the police. The appellant namely Ameer Sultan son of Muhammad Khan opted not to get himself examined under section 340(2) Cr.P.C and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Sessions Judge, Chakwal convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant was that the whole case was fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statements of Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) were not worthy of any reliance. He further contended that the appellant was neither nominated in the F.I.R nor in the statements of witnesses recorded on the first day and the test identification parade proceedings as conducted were full of procedural defects and of no legal worth and value. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the appellant beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General and the learned counsel for the complainant contended that the prosecution had proved its case beyond a shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General and the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant . The learned Deputy Prosecutor General and the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) . The learned Deputy Prosecutor General and the learned counsel for the complainant further argued that the recoveries made during the investigation of the case corroborated the ocular account. The learned Deputy Prosecutor General and the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General and the learned counsel for the complainant prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General, the learned counsel for the complainant and with their assistance have perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) . These witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) claimed that they were present with the deceased on the night of occurrence and had witnessed the incident. The perusal of the prosecution evidence reveals that the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW11) failed miserably to prove their presence at the place of occurrence , on the night of occurrence.
According to the statements of the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11), the occurrence had taken place within the premises of an under- construction school and the prosecution witness namely Muhammad Sami Ullah (PW-10) was performing his duties as a Munshi for the building contractor whereas the prosecution witness namely Muhammad Aslam (PW-11) was performing his duty as a guard at the said construction site, however, both the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) did not produce any documentary evidence in support of them being appointed as they claimed. The prosecution witness namely Muhammad Sami Ullah admitted during cross-examination as under:- " I have not produced any proof to the IO that I am "Munshi" at Danish School Project, volunteered that they asked me and I told them."
It is also a fact admitted by the Investigating Officer of the case that there was no room present at the place of occurrence which was under the use of prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) on the night of the occurrence. Furthermore, the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) had also claimed that the occurrence had taken place inside the room where the deceased was present and had lit wood, however, that claim of the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) was also not verified by the Investigating Officer of the case. Zahid Iqbal, ASI (PW-14), the Investigating Officer of the case, admitted during cross-examination as under:- "In complaint it was the version of the complainant that the deceased was sitting in the room with burning woods. It is correct that in the site plan Exh.PT, no such point is mentioned ------------- It is correct that no point of alleged residence of the complainant and Muhammad Aslam eye witness is shown in the site of place of occurrence Exh.PT. Had the same been pointed out to me by the PWs I must have mentioned the same in the site plan." (emphasis supplied)
Similarly, Saqlain Safdar draftsman (PW-8) admitted during cross-examination , as under:- " I have not mentioned any other residential room near to place of occurrence; had it been so, I must had mentioned the same in my scaled site plan Exh.PL/1-2. I have not mentioned any point any room/place of occurrence where the deceased was sitting alongwith burning woods; had it been so I must had mentioned the same in my scaled site plan. I have not mentioned any point showing abode of the complainant in my scaled site plan"(emphasis supplied)
Most importantly, Zahid Iqbal, ASI (PW-14), the Investigating Officer of the case, admitted during cross-examination that according to the unscaled site plan of the place of occurrence (Exh.PT) as prepared by him, the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) were not even present inside the room where the incident had taken place.
" In the site place of occurrence Exh.PT, both the alleged eye witnesses are not shown inside the room and they were shown to be present at a distance of 16/17 feet from the deceased."
The prosecution witness namely Muhammad Sami Ullah (PW-10) also claimed that he handled the deceased in an injured condition but still, his clothes were not stained with blood. In this manner, it is proved on record that the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) could not prove their presence at the place of occurrence, on the night of occurrence
14. We have also noted that according to the statements of prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) , the occurrence took place at about 12.30 a.m (night) on 29.12.2022, however, both the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) did not mention that there was any light source available at the place of the occurrence in the light of which they were able to not only witness the occurrence but also to note the features of the then unknown accused person. The learned counsel for the complainant has rightly pointed out that Zahid Iqbal, ASI (PW-14) took into possession an electric bulb (P-7) from the place of the incident, proving that there was indeed sufficient light available to enable the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) to witness the occurrence , however, is unable to explain the failure of both the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) in claiming that such an electric bulb (P-7) was present at the place of occurrence and also lit when the occurrence had taken place. Even Zahid Iqbal, ASI (PW-14) admitted during cross- examination that Muhammad Sami Ullah (PW-10), in his oral statement (Exh.PN) ,had not mentioned that there was any electric bulb or any other light source available at the place of occurrence. Zahid Iqbal, ASI (PW-14) admitted during cross-examination as under:- "It is correct that in complaint Exh.PN, Sami Ullah complainant did not disclose any source of light at the time of occurrence. " (emphasis supplied)
Zahid Iqbal, ASI (PW-14) also admitted during cross-examination that according to the unscaled site plan of the place of occurrence (Exh.PT) as prepared by him, he had not shown any electric bulb installed inside the room where the occurrence had taken place. Zahid Iqbal, ASI (PW-14) was further proved to have made a false statement with regard to the availability of the electric bulb (P-7) at the place of occurrence when during cross-examination he claimed that the electric bulb (P-7) had been installed in a veranda next to the room where the occurrence took place, however, admitted that such a veranda had not been mentioned in the unscaled site plan (Exh.PP/1) regarding the recovery of the piece of wood (P-8), which piece of wood (P-8) was also recovered from the same room where the occurrence had taken place.Zahid Iqbal, ASI (PW-14), stated during cross-examination as under:- " Room of alleged occurrence was without any bulb, volunteered that I have shown bulb at point No.6 in the veranda adjacent to the room of occurrence. I have correctly prepared site plan of place of recovery Exh.PP/1. It is correct that neither veranda nor source of light is available in the site plan of place of recovery Exh.PP/1. " (emphasis supplied)
Then the recovered electric bulb (P-7) was never sent to Punjab Forensic Science Agency, Lahore for analysis to prove whether the same was even in working condition or otherwise. These facts of the prosecution case prove that Zahid Iqbal ASI, (PW-14) made a failed attempt to show the availability of a light source at the place of occurrence , however, failed miserably in his endeavour.
15, We have also noted with grave concern and disquiet that the alleged eye witnesses, namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) made no effort either to save the deceased or to apprehend the accused. It is unnatural and unbelievable that the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW11) did not even move a limb to protect the deceased. According to the statement of the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) when the appellant came to the place of occurrence he was not armed even any weapon and had picked up the wood from the very room where the incident took place. It is strange and rather unbelievable that the accused still succeeded to inflict so many injuries to the deceased in the presence of the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW11). The prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) did not act in any manner to save the life of Haji Muhammad Hayat (deceased). It is vexing to imagine that in what circumstances the accused succeeded in inflicting so many injuries to Haji Muhammad Hayat (deceased) in the presence of the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) , without facing any resistance from either the deceased or the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) . During the whole episode , the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) kept watching the accused and did not interfere at all. No person with ordinary prudence would believe that the witnesses would remain watching the proceedings as mere spectators for as long as the occurrence continued without doing anything to rescue the deceased or apprehend the assailant. The allowance of prosecution witnesses to the assailant speaks loudly that if the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) had been present at the place of occurrence, they would have definitely intervened and prevented the assailant. It only proves that the deceased was at the mercy of the assailant and no one was there to save him. Such behaviour, on the part of the witnesses, runs counter to natural human conduct and behaviour. Article 129 of the Qanun-e- Shahadat, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We, thus, trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat, 1984, that the conduct of the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11), as deposed by them, was opposed to the common course of natural events, human conduct and that the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) had not witnessed the occurrence. The august Supreme Court of Pakistan has enunciated binding principles for the appreciation of evidence in such circumstances. Reliance is placed on the case of "Zulifqar Ali v. The State" (2021 SCMR 1373) wherein the august Supreme Court of Pakistan observed as under:- "Though the human response/reaction, in a sudden crisis, particularly one striking awe and terror, cannot be gauged or assessed with any degree of empirical certainty as fear impacts differently upon faculties of the onlookers, nonetheless, despite maximum latitude, in the given scenario, it really appears hard for the appellant who operated with impunity in the face of heavy presence of the witnesses; deceased being herself "a young female with average-built" could not be expected a static target offering no resistance. Razor (P-13), commonly used by the barbers, given its moving handle instead of a fixed grip, is an instrument to be managed with some difficultly against a moving object; it risks the handler more than the intended target and as such unless the victim is stunned as a stone, a possibility beyond contemplation for the witnesses standing nearby to foil the attempt; they included three able-bodied males in their youth; their inaction is mindboggling and explanation far from being plausible, circumstances that in retrospect insinuate their absence at the scene"
Reliance is placed on the case of Pathan v. The State (2015 SCMR 315) at page 317 wherein the august Supreme Court of Pakistan observed as under:- "The causing of such large number of injuries one after another to the deceased with scissors must have consumed reasonable time due to the pause in between the first injury and the last one but all the three P.Ws. including the son with a strong stature and built remained as silent spectators. They did not react or showed any response when the accused was causing the injuries. No man on the earth would believe that a close relative would remain silent spectator in a situation like this because their intervention was very natural to rescue the deceased but they did nothing nor attempted to chase the accused and apprehend him at the spot."
Further reliance is placed on the case of "Shahzad Tanveer v. The State" (2012 SCMR 172) at page- 176 wherein the august Supreme Court of Pakistan observed as infra:- "It is also more strange that none of the P.Ws. dared to physically intervene in order to save the victim or apprehend the accused at the spot."
Reliance is also placed on the case of "Liaquat Ali v. The State" (2008 SCMR 95) at page 97 wherein the august Supreme Court of Pakistan observed as under: "He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful."
16. It was indeed an unfortunate incident wherein Haji Muhammad Hayat (deceased) suffered injuries and later lost his life however, the fact remains that the name of the assailant was not mentioned in the oral statement (Exh.PN) as got recorded by Muhammad Sami Ullah (PW-10) to Zahid Iqbal, ASI (PW-14) , the Investigating Officer of the case and the formal F.I.R (Exh.PN/1) was lodged against an unknown accused person. The prosecution witnesses namely Muhammad Sami Ullah (PW10) and Muhammad Aslam (PW-11) stated that on 12.01.2023 they had identified the appellant during the test identification parade proceedings held to establish the identity of the appellant. Facts which establish the identity of any person whose identity is relevant are, by virtue of Article 22 of the Qanun-e-Shahadat,1984, always relevant. The term 'identification' means proving that a person before the Court is the very same that he is alleged, charged or reputed to be. Identification is almost always a matter of opinion or belief. With regard to a criminal offence, identification has a two-fold object: first, to satisfy the investigating authorities, before sending a case for trial to court, that the person arrested, but not previously known to the witnesses, was the one of those who committed the crime; second, to satisfy the court that the accused was the real offender concerned with the crime. Identification proceedings are therefore as much in the interest of the prosecution as in the interest of the accused. An identification parade is held in the course of investigation of an offence for the purpose of enabling the witnesses to identify the persons who are concerned with the offence; they are not held merely for the purpose of identifying persons irrespective of their connection with the offence; the witnesses are explained the purpose of holding these parades and are asked to identify the persons who are concerned in the offence. But it is obvious that if before the court a witness pointed to a stranger and stated that he was the offender, there would be no guarantee of the truth of his assertion. Consequently, in order to have some assurance of truth, a test identification is held , that is to say, the witness at an earlier stage is confronted with the alleged offender, not standing alone but mixed with a number of innocent persons of the same age-group and of similar build and features. That is to say, it is to give credence to the evidence of a witness who does not know the accused from before, subsequent to the commission of the offence, that a test identification is held, since, without it, the evidence of the witness concerned would have little value. Of course, the substantive evidence, i.e., evidence on which alone the court can base its order of conviction or acquittal, is that given by the witness before the court, but the value of deposition of a witness of having identified the accused in the act of the crime is of little consequence. Before the Court can accept such identification as sufficient to establish the identity of the accused, it is very necessary that there be reliable corroborative evidence, and the corroborative evidence which the Court is entitled to accept in such cases is that of a test identification parade conducted with due precautions. In short, a test identification is designed to furnish evidence to corroborate the evidence which the witness concerned tenders before the court. But of all evidence of fact, evidence about the identification of a stranger is perhaps the most elusive, and the Courts are generally agreed that the evidence of identification of a stranger based on a personal impression, even if the veracity of the witness is above board, should be approached with considerable caution, because a variety of conditions must be fulfilled before evidence based on the impression can become worthy of credence. As mentioned above, the name of the assailant was not mentioned in the oral statement (Exh.PN) of Muhammad Sami Ullah (PW-10) and the F.I.R (Exh.PN/1) was lodged against an unknown accused person. The august Supreme Court of Pakistan in the case of Mian SOHAIL AHMED and others Vs. The State and others (2019 SCMR 956) has enunciated guiding principles for the appreciation of evidence regarding the test identification parade and the statements of the witnesses participating in the same. The august Supreme Court of Pakistan in the case of Mian SOHAIL AHMED and others Vs. The State and others (2019 SCMR 956) has held as under:- "13. In the late 1960s, the courts around the world12, began to set the standard for reviewing eyewitness identification evidence.13 Reliability and credibility of the witness was termed as the linchpin in determining the admissibility of identification testimony.14 US Supreme Court in the case of Manson v Brathwaite15, UK Court of Appeal (Criminal Division) in Regina v. Turnbull and Another,16 New Jersey Supreme Court in State v Madison17 and Oregon Supreme Court in State v.
Classen18 settled the following factors for assessing the reliability of the witness:
(1) the opportunity of the witness to view the suspect at the time of the crime;
(2) the witness's degree of attention;
(3) the accuracy of the witness's prior description of the suspect;
(4) the level of certainty demonstrated at the confrontation (seeing the accused in court); and
(5) the time between the crime and the confrontation (seeing the accused in court).
It is interesting to note that these factors were drawn from earlier judicial rulings and not from scientific research.19 The scientific research refutes the notion that memory is like a video recording, and that a witness needs only to replay the tape to remember what happened. Human memory is far more complex. The memory is a constructive, dynamic, and selective process. The process of remembering consists of three stages: acquisition-"the perception of the original event"; retention-"the period of time that passes between the event and the eventual recollection of a particular piece of information"; and retrieval-the "stage during which a person recalls stored information".20 The process of memory retention and retrieval may be affected by a number of factors. The scientific literature divides those variables into two categories: system and estimator variables.21 System variables are factors like lineup procedures which are within the control of the criminal justice system and in our jurisprudence are referred to as the Test Identification Parade.
Whereas Estimator variables are factors related to the witness - like distance, lighting, or stress - over which the legal system has no control.22 Our courts have marginally attended to this aspect of witness reliability before placing reliance on the identification evidence (see above). The scientific research23 establishes that the following non-exhaustive list of "estimator variables" negatively affect the memory process:- i. Stress: Even under the best viewing conditions, high levels of stress can diminish an eye-witness' ability to recall and make an accurate identification. It may be noted "while moderate levels of stress improve cognitive processing and might improve accuracy, an eye-witness under high stress is less likely to make a reliable identification of the perpetrator."24 ii. Weapon Focus: When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. "Weapon focus" can thus impair a witness' ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration.25 iii. Duration: The amount of time an eye-witness has to observe an event may affect the reliability of an identification. There is no minimum time required to make an accurate identification, however, a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure." iv. Distance and Lighting: A person is easier to recognize when close by, and that clarity decreases with distance. We also know that poor lighting makes it harder to see well. Thus, greater distance between a witness and a perpetrator and poor lighting conditions can diminish the reliability of an identification. v. Witness Characteristics: Characteristics like a witness' age and level of intoxication can affect the reliability of an identification. Children between the ages of nine and thirteen who view target- absent lineups are more likely to make incorrect identifications than adults8 vi. Characteristics of Perpetrator: Disguises and changes in facial features altered between the time of the event and the identification procedure affects the accuracy of an identification. vii. Memory Decay: Memories fade with time and memory decay "is irreversible"; memories never improve. As a result, delays between the commission of a crime and the time an identification is made can affect reliability.30 The scientific research referred to above has not only appeared in the peer reviewed journals but also has been considered "credible" by various courts in different jurisdictions. New Jersey Supreme Court in State v. Henderson32 observed that "virtually all of the scientific evidence" that had emerged in recent decades "reveals that an array of variables can affect and dilute memory and lead to misidentifications." Also see State v. Lawson33.
14. The laws of evidence maintain that in order for the court to take judicial notice of scientific facts they must be part of the general knowledge of men or must be agreed upon by reputable men in a particular field of science beyond reasonable dispute.34 For judges to determine the degree of consensus on a particular scientific fact they may refer to any reputable and recognized reference sources.35 The House of Lords in Regina (Quintavalle) v. Secretary of State for Health36 held that the laws have to be construed in the light of contemporary scientific knowledge and in order to give effect to a plain parliamentary purpose, the statute may be held to cover a scientific development not known when the statute was passed. This Court can take judicial notice of the credible scientific development under Article 112, Qanun-e-Shahadat, 1984.
The question is can we shut our eyes to credible scientific research and development, which has already been recognized and acknowledged by the courts in various other jurisdictions. If scientific research can help and assist the court in understanding and appreciating evidence more fully and more meaningfully, the risk of miscarriage of justice stands minimized. Therefore, the courts don't shy away from scientific developments but instead reach out and embrace them.
Reliance on scientific research and the factors evolved by science to assess the reliability and credibility of the eye-witness can improve the quality of identification evidence and as a consequence the quality of justice. Our jurisprudence had already travelled in this direction and now credible scientific research by providing us additional factors or "estimator variables" (which are not exhaustive) has provided additional factors to certify the credibility and reliability of the eye-witness and as a result the veracity and probative value of the identification evidence."
We have scrutinized the statements of the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) who appeared before the learned trial court and had joined the test identification parade proceedings held to establish the identity of the assailant, in light of the said judgment. Judges hearing a case should be aware of the dangers inherent in the identification of strangers by witnesses who have seen them very briefly. Not only it is an admitted fact that the assailant was not named in the oral statement (Exh.PN) of Muhammad Sami Ullah (PW-10) but it is also an admitted fact that no detailed features of the accused were mentioned in the oral statement (Exh.PN) of Muhammad Sami Ullah (PW-10) or in the statements recorded under section 161 of the Code of Criminal Procedure, 1898 of the witnesses. We ourselves have perused the oral statement (Exh.PN) of Muhammad Sami Ullah (PW-10) and it is apparent from the perusal of the same that it is bereft of any detailed description of the accused. Zahid Iqbal, ASI (PW-14) also admitted during cross-examination that no detailed features of the accused had been mentioned by the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) and stated as under:- "It is correct that no specific features of the accused i.e. height, colour, apparent physical condition and age is mentioned in complaint Exh.PN"
Matching the description in the first information report of the accused is the starting point towards the identification of the unknown accused. In this case, no such information was made available prior to the holding of the test identification parade proceedings held with regard to the appellant.
Yasir Bilal, Magistrate (PW-13), who got conducted the test identification parade proceedings on 12.01.2023 with regard to the appellant and prepared his report (Exh.PR) did not mention any features of the dummies which were being used during the test identification parade proceedings.
It is, therefore, uncertain how the appellant was hauled and lined-up for the identification parade without Yasir Bilal, Magistrate (PW-13) first matching the description of the accused given by the witnesses with the appellant and the dummies to be used. Selection of the suspects, without any correlation with the description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential. As such the test identification parade held on 12.01.2023 loses its authenticity and has no value in the eyes of law. Reliance is placed upon a binding judgment of the august Supreme Court of Pakistan in the case titled Muhammad Afzal alias Abdullah v. The State and others (2009 SCMR 436) wherein it has been held as under: ". Absence of such details in the report/F.I.R. militates against bona fides of the prosecution and greatly mars evidentiary value of the test identification parade. It is well-settled that when description by appearance of the accused is not given in the report/F.I.R. and specific role is not attributed to him, his identification in Court for the first time, in the absence of strong corroboratory evidence, is not safe to be relied upon because by the passage of time memory fades and possibility that an accused might not have been mistakenly picked out is augmented.."
Reliance is also placed on the case of Mian SOHAIL AHMED and others Vs. The State and others (2019 SCMR 956) wherein it has been held as under:- "The Test Identification Parade ("TIP") (Ex/PN) which was conducted by the Special Judicial Magistrate (PW-13) on 13.6.2006 is fraught with several infirmities diminishing its probative and evidentiary value. Brief description of the two unknown persons (later on identified as the appellants) in the first information report mentions their height, bodily size and colour of the skin.
TIP proceedings are silent regarding the description of the unknown accused given by the complainant in the report. TIP can only commence, once suspects matching the description in the crime report or in the statements of the witnesses under section 161, Cr.P.C. have been arrested.
Matching the description in the first information report is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellants were hurled and lined-up for the identification parade without the Magistrate first matching the description given by the complainant. Selection of the suspects, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential. This is just a shade apart from cases where there is no description of the accused in the FIR, the effect being the same, casting doubts on the credibility of the test identification parade. See State/Government of Sindh v.
Sobharo (1993 SCMR 585), Muhammad Afzal alias Abdullah v. State (2009 SCMR 436), Sabir Ali alias Foji v. State (2011 SCMR 563) and Muhammad Abdul Hafeez v. State of A.P. (AIR 1983 SC 367)".
17. Another matter of concern for us is that while holding the test identification parade proceedings, Yasir Bilal, Magistrate (PW-13) did not mention the date since when the accused had been arrested and sent to the judicial lock up for the purpose of holding of test identification parade proceedings.
As mentioned above, the august Supreme Court of Pakistan in the case of "Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No. 259 of 2018" reported as PLJ 2019 SC (Cr.C) 153 has mentioned the necessities and precautions which are to be punctiliously followed while holding the test identification parade proceedings and one of the necessity is as under:- "(d) the Magistrate, supervising the identification proceedings, must verify the period, if any, for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report about the proceedings;"
We ourselves have examined the report (Exh.PR) as prepared by Yasir Bilal, Magistrate (PW-13), who got conducted the test identification parade proceedings on 12.01.2023 with regard to the appellant and find that Yasir Bilal, Magistrate (PW-13) did not mention the date since when the accused had been sent to the Jail for the purpose of test identification parade proceedings. All these facts open up the possibility that the accused was exposed to be viewed by the witnesses prior to the holding of the test identification parade proceedings, rendering the whole proceedings irrelevant with regard to establishing the identity of the appellant.
18. The fact which completely denudes the sham nature of the Test Identification Parade Proceedings (Exh.PR) held to establish the identity of the appellant is the admission of the prosecution witness namely Muhammad Aslam (PW-11) that he had already seen the appellant at the police station on the day of his arrest. The prosecution witness namely Muhammad Aslam (PW-11) stated during cross-examination, as under:- "It is correct that after registration of this case, I had been going to PS and even I remained in contact with IO of the case throughout the investigation of this case. It is correct that on the day of arrest of the accused, I went to the PS and I saw him there while in custody. "(emphasis supplied)
19. We have also noted that Muhammad Sami Ullah (PW-10) also claimed during cross- examination that he had named the appellant on the very night when the incident had taken place and if it was so, then there was no need to hold Test Identification Parade Proceedings.
Muhammad Sami Ullah (PW-10), during cross-examination, stated as under:- " Police recorded my two statements; one was recorded at D.H.Q Hospital whereas the second one was recorded in PS City, Chakwal. Both my statements were recorded on 29.12.2022. My statement which was recorded in the PS was in relation of identification of the accused"(emphasis supplied)
20. We have also noted that while appearing before the learned trial court , the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) did not state that it was the appellant who had committed the crimes and merely stated that an unknown accused person was the assailant. It will be advantageous to reproduce the relevant portion of the examination in-chief of the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) as recorded by the learned trial court. The prosecution witness namely Muhammad Sami Ullah (PW-10) got recorded as under:- "It is stated that on 29.12.2022 I was working as Munshi in under construction Danish School system at Chakwal. Haji Muhammad Hayat deceased and Muhammad Aslam were working as a Chowkidar in said school. On the mid night of 29.12.2022 at about 12:30 am. we all three persons were present at the place of occurrence and both the Chowkidars were present in the guardroom while illuminating fire and I was sleeping in the adjacent room. Meanwhile, an unknown person came there through main gate and said that he wants to reside there. Haji Muhammad Hayat and Muhammad Aslam tried to turn him out of the room, meanwhile altercation took place between them and I also attracted there. Said unknown person took wood/Danda from the burning woods and gave its many blows on the head of Muhammad Hayat, due to which he sustained injuries at his head, face and nose.Haji Muhammad Hayat fell on the ground. The said unknown person was having average height aged about 35/40 years, fled away from the place of occurrence who could be identified by me. Said person had committed access while causing injuries to the deceased.
Motive behind the occurrence was that said person forcibly intended to reside there and on refusal of the deceased he committed the occurrence." (emphasis supplied)
The prosecution witness namely Muhammad Aslam (PW-11), stated in his examination in chief as under:- "It is stated that on 29.12.2022 I was working as Chowkidar in under construction Danish School System at Chakwal, whereas PW Sami Ullah was working as Munshi there. Haji Muhammad Hayat deceased was also working as Chowkidar with me in said school. On the mid night of 29.12.2022 at about 12:30 a.m. We were present in the guardroom/place of occurrence where fire was blazing.
Meanwhile, an unknown person came there through main gate and said that he wants to reside there. Haji Muhammad Hayat and I tried to turn him out of the room, whereupon our altercation took place with the said person. Sami Ullah complainant also attracted to the scene of occurrence and witnessed the occurrence. Said unknown person took wood/Danda from the burning woods and gave many blows thereof on the head of Muhammad Hayat, due to which he sustained injuries on his head, face and nose. Haji Muhammad Hayat fell on the ground. The said unknown person having average height, aged about 35/40 years, fled away from the place of occurrence, who could be identified by me. Said person had committed access while causing injuries to the deceased.
Motive behind the occurrence was that said person forcibly intended to reside there and on refusal of the deceased he committed the occurrence." (emphasis supplied)
This failure of the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) to identify the appellant present inside the learned trial court at the time of the recording of the statements of the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) and their continued reference to the accused as "said unknown person" militates against the whole prosecution case against the appellant. The prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) continued to state that some unknown person had inflicted injuries upon the deceased and never pointed towards the appellant , present in the learned trial court during the recording of the statements of the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) that it was he, who had committed the crimes. This aspect of the prosecution case completely denudes the bereft nature of the prosecution evidence against the appellant.
21. The learned Deputy Prosecutor General and the learned counsel for the complainant, have submitted that the recovery of the Piece of wood (P-8) offered sufficient corroboration of the statements of the prosecution witnesses namely Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11). Regarding the recovery of the Piece of wood (P-8) from the appellant , the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said Piece of wood (P-8) from the appellant which was in clear violation of section 103 Code of Criminal Procedure, 1898. The provisions of section 103 Code of Criminal Procedure, 1898, unfortunately, are honoured more in disuse than compliance. To appreciate it better, section 103 Cr.P.C 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."
Therefore, the evidence of the recovery of the Piece of wood (P-8) from the appellant cannot be used as incriminating evidence against the appellant, being evidence that was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard."
Moreover, the piece of wood (P-8) was recovered on 23.01.2023 from the same room where the occurrence had taken place on 29.12.2022. Zahid Iqbal, ASI (PW-14), the Investigating Officer of the case had already visited the place of occurrence on 29.12.2022 and had conducted a search of the said place on the said date, however, did not observe the presence of the piece of wood (P-8) on the said date rather went on to claim that the appellant got recovered the piece of wood (P-8) from the same place on 23.01.2023. The prosecution witness namely Muhammad Sami Ullah (PW- 10) admitted during cross-examination , as under:- "Recovery was effected from the accused on 23.01.2023 and the same was effected in the premises of Danish School Project, Chakwal. The police had been visiting the premises of Danish School Project, Chakwal prior to the recovery and they visited the place thrice. The piece of wood (P8) was lying at open place at the time of recovery" (emphasis supplied)
Zahid Iqbal, ASI (PW-14), the Investigating Officer of the case also admitted during cross- examination, as under:- " From date of occurrence till the date of recovery many times I had visited the place of occurrence. Recovery of wood P8 was effected on the pointation of accused from the place of occurrence. No wood was either shown by me nor taken into possession at the time of my first visit to the place of occurrence nor on my other visits at the same place prior to the date of recovery. It is correct that I have not shown presence of any wood in my site plan of place of occurrence Exh.PT.
Wood P8 was neither blood stained nor was sent to PFSA Lahore." (emphasis supplied)
All these facts of the prosecution case with regard to the recovery of the piece of wood (P-8) lay bare the attempt of Zahid Iqbal, ASI (PW-14), the Investigating Officer of the case to pad up the prosecution case with false evidence. In view of the above-mentioned facts, the alleged recovery of the Piece of wood (P-8) is not proved and the same cannot be used as a circumstance against the appellant. Even otherwise, as we have disbelieved the ocular account in this case, hence, the evidence of recovery of the Piece of wood (P-8) would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable, then the recovery has no evidentiary value.
22. The Learned Deputy Prosecutor General 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 Muhammad Sami Ullah (PW-10) and Muhammad Aslam (PW-11) was that on the night of the occurrence, the appellant wanted to stay in the room of the deceased, however, the deceased did not allow it. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. 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 appellant to have committed the Qatl-i-Amd of the deceased. There is an evocative muteness in the prosecution case with regard to the minutiae of 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."
23. The only other piece of evidence left to be considered by us is the medical evidence but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore, the appellant's 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 Vs. 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 two others Vs. The State" (PLD 2021 Supreme Court 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 circumstantial 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."
24. The plea of the learned Deputy Prosecutor General and the learned counsel for the complainant that because the complainant party had no enmity to falsely implicate the appellant in such a heinous crime thus, the evidence adduced should be believed, is entirely a misconceived one. It is a cardinal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or innocence of an accused person.
Even evidence of an uninterested witness, not inimical to the accused, may be corrupted deliberately while evidence of an inimical witness, if found consistent with the other evidence corroborating it, may be relied upon. Reliance in this regard may be placed on the case of "Waqar Zaheer vs. The State" (1991 PSC 281). It is a known and settled principle of law that the prosecution primarily is bound to establish guilt against the accused without a shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw a conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that charges, so imputed against the accused, have not been proved beyond a reasonable doubt, then the accused becomes entitled to acquittal. In such a situation the Court has no jurisdiction to abridge such right of the accused. To ascertain as to whether the accused is entitled to the benefit of the doubt the Court can conclude by considering the agglomerated effect of the evidence available on record as held in the cases of "Safdar Ali v. The Crown" (PLD 1953 FC 93) and "Muhammad Luqman v. The State" (PLD 1970 SC 10). In the instant case, we have scanned the prosecution evidence in-depth and we are persuaded to hold that the prosecution has failed to produce trustworthy, confidence-inspiring and consistent evidence against the appellants. Conversely, the evidence so brought on record appears to have been fabricated to prove the prosecution case. Even otherwise the prosecution evidence suffers from material discrepancies, contradictions and omissions and for such reasons it has not proved the case against the accused persons intrinsically and if the evidence of such defective quality is accepted it would produce an illusory judgment which apparently would not be sustainable in the eyes of the law in view of the principles laid down by the august Supreme Court of Pakistan. Even otherwise the prosecution evidence is inconsistent and flawed, thus, on the basis of the same, appellant cannot further be immured because he has every right to claim guarantee of the Constitution of the Islamic Republic of Pakistan,1973 which provides that every citizen of the country shall be dealt with in accordance with the law.
25. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Ameer Sultan in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha Vs. The State" (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221), Muhammad Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749)."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah Vs. the State (2021 SCMR 736) in which it has been observed in as infra: "9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC1048)." 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 eyewitnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
26. For what has been discussed above the Criminal Appeal No. 678 of 2023 lodged by Ameer Sultan son of Muhammad Khan is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 12.10.2023 are hereby set-aside. The appellant namely Ameer Sultan son of Muhammad Khan is ordered to be acquitted by extending him the benefit of doubt. Ameer Sultan son of Muhammad Khan is in custody and is directed to be released forthwith if not required in any other case.
27. Murder Reference No.57 of 2023 is answered in Negative and the death sentence awarded to Ameer Sultan son of Muhammad Khan is Not Confirmed.