SADIQ MAHMUD KHURRAM, J.- Javaid Ahmed alias Jaidi son of Ahmad Khan (convict) was tried along with Hamid Mahmood (since acquitted), the co-accused of the convict by the learned Additional Sessions Judge, Attock in case F.I.R. No. 63 of 2023 dated 21.02.2020 registered at Police Station City Attock, District Attock in respect of offences under sections 302,364, 365 and 34 P.P.C. for committing the Qatl-i-Amd of Mobeen Raheem son of Abdul Raheem (deceased). The learned trial court vide judgment dated 30.03.2023 convicted Javaid Ahmed alias Jaidi son of Ahmad Khan (convict) and sentenced him as infra: Javaid Ahmed alias Jaidi son of Ahmad Khan :- i) Death under section 302(b) P.P.C. as Tazir for committing Qatl i-Amd of Mobeen Raheem son of Abdul Raheem (deceased) and directed to pay Rs.2,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default of payment of compensation amount, the convict was further directed to undergo six months of simple imprisonment. ii) Imprisonment for life under section 364 P.P.C. and directed to pay fine of Rs.100,000/- and in default of payment of fine to further undergo simple imprisonment of six months.
The convict was ordered to be hanged by his neck till death.
The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, was however extended to the convict by the learned trial court.
Hamid Mahmood, the co-accused of the convict, was acquitted by the learned trial court.
2. Feeling aggrieved, Javaid Ahmed alias Jaidi son of Ahmad Khan (convict) lodged the Criminal appeal No.447-J of 2023 through jail, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.18 of 2023 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Javaid Ahmed alias Jaidi son of Ahmad Khan. We intend to dispose of the Criminal appeal No.447-J of 2023 and the Murder Reference No.18 of 2023 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as stated by Abdul Raheem (PW-10), the complainant of the case, are as under:- Stated that on 20.02.2020, at about 04:00 PM, I went to the showroom of my son Mubeen where my maternal nephew Zeshan Javed was sitting. I asked him about Mubeen who informed me that Javed of Barotha, accused present before the Court, had come to the showroom and he showed his motorcycle to Mubeen for the purpose of sale. Zeshan further informed me that Mubeen took Rs.45,000/- from the showroom and went alongwith Javed accused to the shop of Farrukh PW for getting the motorcycle checked. He informed me that the motorcycle was Honda 125 (Applied For) and the documents were lying in village Baryar in the house of Behnoi of Javed accused. At about 04:15, I phoned Farrukh and asked about Mubeen. Farrukh informed me that Mubeen alongwith Javed of Barotha had come to his shop and after getting the motorcycle checked from him, Mubeen alongwith Javed accused went towards the side of Dhoke Fateh. Till Maghrib, Mubeen did not come back. I kept on calling on Mubeen's phone and I also made call on Javed's phone but there was no response. I started searching for my son Mubeen. I again called Farrukh at 'Maghrib' time and asked about any contact with Mubeen but he informed that he had got no contact with him after their departure. After considerable search, I alongwith Zeshan PW went to the police station and imparted information to Jawad ASI. Then again we started search for Mubeen and the night passed in the same. In the morning, at about 08:00/08:15 AM, I alongwith Zeshan PW again went to the police station and moved the application Exh-PW which bears my signature whereupon the FIR was lodged.
On the same day, i.e. 21.02.2020, Jawad ASI came at the showroom of my son Mubeen and took Rs.5000/- (P16) lying in the drawer of the showroom into possession vide recovery memo Exh-PR, attested by me and Zeshan PW. We again started search for my son. It was 'Jumma on 21.02.2020 and, after offering the Jumma prayers, I alongwith Zeshan went to village Baryar to the house of Javed's Behnoi namely Hamid accused. He met us outside his house and we asked him about my son Mubeen. He, in response, told that he and Javed accused had done my son Mubeen to death and his dead body was lying on back side of the Technical College. On hearing this, I got faint and, in the meanwhile, Hamid accused fled away from there. I alongwith Zeshan PW then went at back side of Poly Technical College where the dead body of my son, soaked in blood was lying. We informed Jawad ASI about the dead body. Then police including Azmat Hayat SI came at the spot where the dead body was lying. Police collected bloodstained earth from the spot, sealed into parcel and seized vide recovery memo Exh-PT, attested by me and Zeshan PW. Police also collected crime empty (P19) from the spot, sealed into parcel and seized vide recovery memo Exh- PV, attested by me and Zeshan PW. Police collected glasses (P18) of my son, made into parcel and seized vide recovery memo Exh-PU, attested by me and Zeshan PW. Police also collected mobile phone of my son (P17) and took the same into possession vide recovery memo Exh-PS, attested by me and Zeshan PW. Police recorded my statements u/sec. 161 Cr.P.C in this regard. I again got upset and Zeshan PW took me to nearby mosque."
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 accused were sent to face trial.
The learned trial court framed the charge against the accused on 03.10.2020, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got recorded statements of twelve witnesses. Sakina Bibi (PW-1), the complainant of the case, gave the same evidence as has been reproduced in Paragraph 3 of the judgment. Sana Ullah 1134/C (PW-1) stated that on 21.02.2020, the Investigating Officer of the case handed over to him five sealed parcels, one sealed envelope, three parcels containing swa bs taken from the body of the deceased and personal articles of the deceased and on 23.02.2020, he handed over the sealed parcels, envelop and the parcels of the swabs taken from the body of the deceased through Azmat Hayat, SI (PW-12) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 28.02.2020 Investigating Officer of the case handed over to him a sealed parcel said to contain a pistol and one motorcycle and Rs.25,000/- and on 03.03.2020, he handed over the sealed parcels said to contain the pistol for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Faisal Azeem Qureshi (PW-3) stated that on 21.02.2020, he identified the dead body of the deceased at the time of its post mortem examination. Muhammad Sadiq (PW-4) stated that on 20.02.2020, the appellant took his motorcycle on the pretext of taking his father to the hospital. Yasir Khan Patwari (PW-5) prepared the scaled site plan of the place of occurrence (Exh.PF). Shafqat Irfan 1005/HC (PW-7) stated that on 21.02.2020, he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased and on 28.02.2020, the appellant got recovered motorcycle (P- 13), Rs.25000/- (P-14/1-25) and a pistol. Farrukh Khan alias Shehri (PW-8) stated that on 20.02.2020 at about 03.00 p.m the deceased came to his shop along with the appellant and asked him to check the motorcycle which he intended to purchase. Zeeshan Javed (PW-9) stated that on 20.02.2020 at about 02.30 p.m, the appellant came to the shop of the deceased on a motorcycle, whereafter both left together, however, the deceased did not return and on the next day at about 02.30 p.m Hamid Mahmood (since acquitted) admitted that the deceased had been killed and his dead body was present behind the Technical College, whereafter the body of the deceased and the articles under his use were recovered. Jawad Ahmad, ASI (PW-11) stated that on 21.02.2020, he got recorded the formal F.I.R. (Exh.PX), conducted the investigation of the said case on the said day and detailed the facts of the investigation conducted by him in his statement before the learned trial court. Azmat Khan, SI (PW-12) investigated the case from 21.02.2020 till 10.06.2020, arrested the appellant on 24.02.2020 and narrated the facts of investigation as conducted by him in his statement before the learned trial court.
6. The prosecution also got Dr. Muhammad Khail (PW-2) examined, who on 21.02.2020 was posted as Civil Medical Officer at the DHQ, Hospital Attock and on the same day conducted the postmortem examination of the dead body of Mobeen Raheem son of Abdul Raheem (deceased).
Dr. Muhammad Khail (PW2), on examining the dead body of Mobeen Raheem son of Abdul Raheem (deceased), observed as under:- "Description of Injuries: A lacerated wound with inverted margins measuring 2.5cm x 2.5cm noted at left lateral of upper neck (3cm approximately below the left ear), blackening seen (firearm injury-entry wound).
Opinion.
In my opinion, cause of death is due to injury No.1 which damaged brain, skull bone, blood vessels, base of skull. These injuries are sufficient to cause death in ordinary course of nature. The injury was ante- mortem in nature.."
7. On 22.11.2022, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Fiasat and Tahir Khan as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh. P.Z. and Exh.PAA) .
8. After the closure of prosecution evidence, the learned trial court examined appellant namely Javaid Ahmed alias Jaidi son of Ahmad Khan under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, he replied that he was innocent and had been falsely involved in the case. He 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 Javaid Ahmed alias Jaidi son of Ahmad Khan opted not to get himself examined under section 340(2) Cr.P.C did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Attock, convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely was that the whole case was fabricated and false. The learned counsel for the appellant submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellant further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the appellant beyond the shadow of doubt.
11. On the other hand, learned Deputy Prosecutor General contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased was murdered by the appellant who had been last seen taking away the deceased. The learned Deputy Prosecutor General added that the recoveries from the appellant also corroborated the statements of the other witnesses. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case.
Lastly, The learned Deputy Prosecutor General prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance carefully perused the record and evidence recorded during the trial.
13. After consideration of the contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent to mention here that in the instant matter, ocular evidence is not available. There can be no dispute regarding the fact that the case is built on circumstantial evidence. In dealing with circumstantial evidence, the rules especially applicable to such evidence must be borne in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge, (1938) 2 Lewin 227) where he said: "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting , to take for granted some fact consistent with its previous theories and necessary to render them complete."
Sir Alfred Wills, in his book "An Essay on the Principles of Circumstantial Evidence" (pages 173 to 190 of the Fifth American, from the Fourth London Edition published in 1872), lays down the following rules specially to be observed in the case of circumstantial evidence: "RULE 1. The facts alleged as the basis of any legal inference must be clearly proved, and indubitably connected with the factum probandum.
RULE 2. The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability RULE 3. In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits RULE 4.- In order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
RULE 5. If there be any reasonable doubt of the guilt of the accused, he is entitled, as of right, to be acquitted."
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 for the appreciation of circumstantial evidence: "Approach to determine sufficiency of circumstantial evidence
14. The settled approach to deal with the question as to sufficiency of circumstantial evidence for conviction of the accused person is this: If, on the facts and circumstances proved, no hypothesis consistent with the innocence of the accused person can be suggested, the case is fit for conviction of the accused person on such conclusion; however, if such facts and circumstances can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case is to be treated one of insufficient evidence, resulting in acquittal of the accused person. Circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touches the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person.
Chain of such facts and circumstances has to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain breaks the whole chain and renders the same unreliable; in that event, conviction cannot be safely recorded, especially on a capital charge. Therefore, if the circumstantial evidence is found not of the said standard and quality, it will be highly unsafe to rely upon the same for conviction; rather, not to rely upon such evidence will a better and a safer course."
Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however, grave it may be, can never be treated as a substitute for proof. From the evidence of the prosecution available on record, it is clear that the case of the prosecution hinges upon the evidence of the deceased being last seen alive in the company of the appellant , the confession of Hamid Mahmood (since acquitted), the co-accused of the appellant, the recoveries of the motorcycle (P-13), Rs.25,000/- (P-14/1-25) and the Pistol (P20) .
14. Firstly, we shall deliberate upon the evidence of the prosecution that the deceased was last seen in the company of the appellant. Pre-requisites for believing the last seen evidence are the proximity of time between the deceased seen last alive and his death and the nearness of the place of occurrence from the place of last seeing of the deceased. Interpreting these two principles, it is required that deceased shall be seen in the company of the accused by the witnesses some short time before happening of the incident and the place of murder may not be far away from the place of lastly seeing the deceased in the company of the accused by the prosecution witnesses. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. According to the prosecution witnesses namely Farrukh Khan alias Shehri (PW-8), the deceased had visited his shop along with the appellant 20.02.2020 at about 03.00 p.m. The dead body of the deceased was discovered on 21.02.2020 at about 04.30 p.m. The dead body of the deceased was brought to the hospital on 21.02.2020 at about 07.00 p.m. Dr. Muhammad Khail (PW-2) conducted the postmortem examination of the dead body of Mobeen Raheem son of Abdul Raheem (deceased) on 21.02.2020 at about 09.00 p.m. Dr. Muhammad Khail (PW-2), after conducting the postmortem examination of the dead body of Mobeen Raheem son of Abdul Raheem (deceased) opined that the time between death and post mortem examination was within thirty six hours. The opinion of Dr. Muhammad Khail (PW-2) regarding the death of the deceased having taken place thirty-six hours prior to the post mortem examination creates a gaping hole in the prosecution case as there exists a huge gap between the time when the deceased was last seen in the company of the appellant i.e on 20.02.2020 at about 03.00 p.m. and the time when the dead body of the deceased was recovered. In this manner, it cannot be said that the prosecution proved that the deceased was seen in the company of the accused by the witnesses some short time before happening of the incident .
15. We have also noted that Farrukh Khan alias Shehri (PW-8) though stated that on 20.02.2020 at about 03.00 p.m the deceased along with the appellant had visited his shop however he failed to prove his statement. According to the statement of Farrukh Khan alias Shehri (PW-8) he had seen the deceased and the appellant leave towards Dhoke Fateh, however, admitted that after coming to know from Abdul Raheem (PW-10) that the deceased had not returned, neither he himself went towards Dhoke Fateh nor the other witnesses went towards the said place, denuding the fact that Farrukh Khan alias Shehri (PW-8) had not actually seen the deceased go towards Dhoke Fateh and therefore when search was started for the deceased, none from the complainant party went towards the said place. Farrukh Khan alias Shehri (PW-8) during cross-examination, stated as under:- "Abdul Raheem complainant did not come to me on 20.02.2020 after 03:00/03:15 PM. I met the complainant Abdul Raheem in the evening of 20.02.2020. At the time of my meeting with the complainant, Zeshan, Abdul Raheem complainant and two maternal uncles of the deceased were present. We remained together for about 1/1 hour. After meeting the complainant, I went to my house. When I left for my house, Abdul Raheem and Zeshan PW went to the hospital in search of Mubeen, deceased. I reached my house at 08:00/08:15 PM. I did not go towards Dhoke Fateh for searching Mubeen. In my presence, complainant and PW Zeshan did not go towards Dhoke Fateh in search of the deceased." (emphasis supplied)
It is also a fact that Farrukh Khan alias Shehri (PW-8) also improved his previous statement regarding the purpose of visit of the deceased to his shop, however was confronted in this regard and the learned trial court, observed as under:- "I got recorded in my statement before the police that Mubeen deceased intended in purchase of the motorcycle. Confronted with Exh-DA where it is not so recorded "
Additionally, during the course of investigation, no person from the area where the shop of Farrukh Khan alias Shehri (PW-8) was located appeared to verify the claim of Farrukh Khan alias Shehri (PW-8). Most importantly, it was not brought on record that what was the distance between the shop of Farrukh Khan alias Shehri (PW-8) and the place from where the dead body of the deceased was recovered.As mentioned above, the last seen theory comes into play when the place of murder is not be far away from the place of lastly seeing the deceased in the company of the accused by the prosecution witnesses and the possibility of any person other than the accused being the author of the crime becomes impossible. When the prosecution itself did not bring it on record that what was the distance between the shop of Farrukh Khan alias Shehri (PW-8) and the place from where the dead body of the deceased was recovered then the possibility of any person other than the accused being involved in the matter cannot be ruled out.
16. The prosecution also got Muhammad Sadiq (PW-4) examined who stated that on 20.01.2020, the appellant came to his shop and took away his motorcycle on the pretext that he had to get his father examined. Muhammad Sadiq (PW-4) in his statement did not state the time as to when the appellant had come to his shop and taken away the motorcycle. Furthermore, Muhammad Sadiq (PW-4) admitted that though the appellant had taken his motorcycle on the pretext of getting his father examined, however, Muhammad Sadiq (PW-4) never inquired about the health of the father of the appellant nor even proceeded to the house of the appellant to get back his motorcycle.
Muhammad Sadiq (PW-4) admitted during cross-examination, as under:- " I did not go to the house of the accused for 'Timardari' of his father on the same day or any subsequent day. I did not go to the house of the accused to get back my motorcycle. Volunteers that I had come to know that my motorcycle had been taken into possession by the police in a murder case. "
This statement of Muhammad Sadiq (PW-4) that he did not go to the house of the appellant on the next day to get back his motorcycle for the reason that the said motorcycle had been taken into possession by the police also proves that the motorcycle which was subsequently shown to had been recovered from the appellant on 28.02.2020, was not the same which Muhammad Sadiq (PW-4) had lent to the appellant. The statement of Muhammad Sadiq (PW-4) brings the prosecution case against the appellant under further doubt.
17. We have also noticed that the prosecution also got Zeeshan Javed (PW-9) examined who stated that on 20.02.2020 at about 02.30 p.m, the appellant came to the shop of the deceased on a motorcycle, whereafter both left together, however, the deceased did not return and on the next day at about 02.30 p.m Hamid Mahmood (since acquitted) admitted that the deceased had been killed and his dead body was present behind the Technical College, whereafter the body of the deceased and the articles under his use were recovered by the police. According to the statement of Zeeshan Javed (PW-9) he was present at the shop of the deceased when the appellant came there, however, Zeeshan Javed (PW-9) also admitted this fact that he had no purpose to be present at the shop of the deceased on the said date and time. Zeeshan Javed (PW-9), during cross-examination, admitted as under:- "On 20.02.2020, I went to the shop of Abdul Raheem at about 02:15/02:30 PM without any purpose."
Zeeshan Javed (PW-9) also claimed that when the deceased left his shop, he did not close the same, rather left it in the care of the prosecution witness namely Zeeshan Javed (PW-9) and Zeeshan Javed (PW-9) remained present there for as many as more than five hours, however, he could not identify any of the visitors who came to the shop of the deceased after he had left the same on 20.02.2020. Zeeshan Javed (PW-9) claimed during cross-examination, as under:- " On 20.02.2020, I remained present at the showroom for about 5/5 hours. During this time, in my presence, different customers came to the showroom but due to non-availability of Mubeen they left. I cannot tell the names or features of said customers. Likewise, I cannot tell the purpose of their visiting the showroom. During this period, I cannot identify even a single person including any friend of Mubeen deceased. During this period no one gave or took anything from showroom nor I did write down anything."
More importantly, Farrukh Khan alias Shehri (PW-8) admitted during cross-examination that there were CCTV cameras installed at the shop of the deceased. Farrukh Khan alias Shehri (PW-8) during cross-examination, stated as under:- "Cameras are installed at showroom of the complainant. I have seen the showroom of the complainant. I have been visiting the showroom of the complainant. "
Now despite this claim of Zeeshan Javed (PW-9) that he was present at the shop of the deceased when the appellant came there and the deceased left with him and despite the admission of the witnesses that CCTV Cameras were installed at the shop of the deceased, Azmat Hayat, SI (PW-12) , the Investigating Officer of the case, admitted during cross-examination that neither he took into possession any documentary proof regarding the ownership of the shop from where Zeeshan Javed (PW-9) had seen the appellant taking away the deceased, nor he retrieved any video footage from the CCTV Cameras installed at the said shop so as to prove that the appellant had indeed visited the said shop nor he collected any evidence to prove that the appellant had ever taken the deceased from the shop. Azmat Hayat, SI (PW-12), the Investigating Officer of the case, admitted during cross-examination as under:- " I did not collect the proof of tenancy of showroom of the deceased. I did not join the owner of said showroom in investigation. Said showroom falls in slum area of city. Said showroom is at a distance of about 1 km from the police station. From right side, left side, front or back side of the showroom, I did not associate any person. I did not associate any inmate of the house of surrounding area of the showroom. It is correct that due to waive of territories in Pakistan, government instructed the business community to install CCTV cameras at their business premises. It is correct that common people/citizens have installed CCTV cameras at their houses. The interse area from showroom till the shop of Farrukh PW is a thickly populated and commercial area. I did not collect CCTV footage of any camera installed in the area starting from showroom of the deceased till shop of Farrukh PW. I did not record the statement of any person of the area from showroom till shop of Farrukh regarding seeing of deceased in the company of accused. I neither collected CCTV footage from the area starting from shop of Farrukh PW till the place of recovery of dead body nor recorded the statement of any person of said area regarding seeing of the deceased in the company of accused .I did not collect any evidence from showroom related to arrival of Javed accused at said showroom. I did not make effort for collecting finger prints from the showroom of deceased nor for conducting DNA of accused. A table and some chairs were lying in the showroom of deceased"(emphasis supplied)
In this manner, when Azmat Hayat, SI (PW-12) , the Investigating Officer of the case, himself admitted during cross-examination that he did not collect any evidence in proof of the appellant visiting the shop of the deceased, then the statement of Zeeshan Javed (PW-9) becomes worthless.
18. We have also noted with anxiety that the prosecution witness namely Zeeshan Javed (PW-9) made dishonest, blatant, obvious and harrowing improvements to his previous statement. The prosecution witness namely Zeeshan Javed (PW-9) was duly confronted with his previous statement. During cross-examination, it was brought on record that Zeeshan Javed (PW-9) changed his version during the recording of his statement by the learned trial court, resulting in altering the whole complexion of the case. The prosecution witness namely Zeeshan Javed (PW-9) was confronted during cross-examination in this regard and the learned trial court observed as under:- " I got recorded in my statement u/sc. 161 Cr.P.C that the accused Javed came there on motorcycle Honda 125 of red colour and asked Mubeen whether he wanted to purchase the motorcycle.
Confronted with Exh-DB where it is not recorded. I also got recorded in Exh-DB that on this, Mubeen said that he would check the motorcycle and asked about documents of motorcycle.
Confronted with Exh-DB, where it is not recorded. I also got recorded in Exh-DB that Javed accused stated that the documents of motorcycle were lying in village Baryar in the house of dgbrother-in- law (Behnoi) namely Hamid. Confronted with Exh-DB, omitted. I got recorded in Exh-DB that Mubeen then took Rs.45,000/- from the showroom and went to the shop of Farrukh PW for getting the motorcycle checked. Confronted with Exh-DB, not recorded. I got recorded in Exh-DB that Mubeen informed us that from Farrukh's shop, they would go to Baryar for collecting documents of motorcycle. Confronted with Exh-DB, not recorded. I got recorded in Exh-DB that accused Javed and Mubeen deceased, while riding the motorcycle, went to Farrukh's shop. I got recorded in Exh- DB that Abdul Raheem came there (showroom) at about 04:00 PM and asked me where Mubeen had gone. Confronted with Exh-DB, not recorded. I got recorded in Exh-DB that I informed him (Abdul Raheem) That Mubeen alongwith Javed accused had gone to Farrukh's shop for getting the motorcycle checked and therefrom they would go for collecting the documents on the motorcycle.
Confronted with Exh-DB, not recorded. I got recorded in Exh-DB that my maternal uncle said OK, he would wait for him and he might come within one hour. Confronted with Exh-DB, not recorded. I got recorded in Exh-DB that till Maghrib, Mubeen did not come back and my maternal uncle Abdul Raheem called for inquiring about Mubeen and Farrukh informed him that Mubeen had come to him and after getting the motorcycle checked, he had gone towards Dhoke Fateh. Confronted with Exh-DB, not recorded. I got recorded in Exh-DB that as Mubeen had not returned till then and was also not attending the phone call, we started searching him. Confronted with Exh-DB, not recorded. I got recorded in Exh-DB that at about 08:00/08:30 PM, I alongwith my maternal uncle Abdul Raheem went to the police station and imparted the information that Mubeen had gone with Javed accused and had not come back. Confronted with Exh-DB, not recorded. I got recorded in Exh-DB that after that, we kept on searching for Mubeen but could not find him: we went to the police station again in the morning of next day and my maternal uncle Abdul Raheem lodged the FIR. Confronted with Exh-DB, not recorded."
By improving his previous statement , the prosecution witness namely Zeeshan Javed (PW-9) impeached his own credit. Article 151 of the Qanun-e-Shahadat Order 1984 provides as under: - "151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit;
(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted ;"
As prosecution witness Zeeshan Javed (PW-9) introduced dishonest, blatant and substantial improvements to his previous statement and was duly confronted with his former statement hence his credit stands impeached and the prosecution witness namely Zeeshan Javed (PW-9) cannot be relied upon on being proved to have deposed with a slight, intended to mislead the court.
Reliance is placed in this regard on the cases of "Muhammad Ashraf Vs. State" (2012 SCMR 419)
"Muhammad Mansha Vs. The State" (2018 SCMR 772) and Muhammad Arif Vs. The State (2019 SCMR 631).
19. Last seen together is a weak type of circumstantial evidence, which cannot be readily believed unless it was corroborated through unimpeachable source, and it should be close to the time and place of murder to exclude the possibility of innocence. In this case, the element of the proximity of the time and place of last seeing the deceased and the time of his death is missing. It is settled law that the last seen evidence can have legal worth only if the deceased is seen in the company of the accused quite close to the time and place of his death so as to exclude any possibility of the deceased coming in contact with anybody else before his death. But it is also settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded. Reliance is placed on the case of Sadi Ahmad and another Vs. The State (2019 SCMR 1220) wherein the august Supreme Court of Pakistan has held as under:- "We are not much impressed by the evidence of last seen for being outside the bounds of proximity in terms of time and space, besides otherwise being far from confidence inspiring".
Reliance is also placed on the case of Muhammad Abid Vs. The State and another (PLD 2018 Supreme Court 813) wherein the august Supreme Court of Pakistan has enunciated the following principle:- "The theory of last seen together is one where two persons are 'seen together' alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption can be drawn that the person alive is the author of the other's death. Time gap between the sighting and the occurrence should be such as to rule out possibility of somebody else committing the crime. The circumstance of the deceased being last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. There must be evidence to link the accused with the murder of his companion, such as incriminating facts as recovery, strong motive and the proximate time when they were last seen together and the time when the deceased was killed. Last seen evidence as circumstantial evidence must be incompatible with the innocence of the accused and should be accepted with great caution. It must be scrutinized minutely so that no plausible conclusion should be drawn therefrom except guilt of the accused.
6. The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires 1. cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. proximity of the crime scene. 3. small time gap between the sighting and crime 4. no possibility of third person interference 5. motive. 6. time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime."
Hence, in view of the above discussion, the last seen evidence furnished by the prosecution witnesses is not confidence inspiring, therefore, the same cannot be relied upon.
20. The learned Deputy Prosecutor General has also submitted that the confession of Hamid Mahmood (since acquitted), the co-accused of the appellant made by him before the witnesses namely Abdul Raheem (PW-10) and Zeeshan Javed (PW-9) on 21.02.2020 at about 02.30 p.m wherein he stated that the appellant had killed the deceased and the dead body of the deceased was available at the back of the Technical College was also relevant to prove the case against the appellant. According to Article 43 of the Qanun-e-Shahadat Order, 1984, the confession of a co- accused can be considered as circumstantial evidence against a co-accused, however, the same cannot be used as relevant evidence against an accused without the said confession of the co- accused being proved. Article 43 of the Qanun-e-Shahadat Order, 1984 reads as under :- "43. Consideration of proved confession affecting person making it and others jointly under trial for same offence:- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved, ---
(a) such confession shall be proof against the person; making it; and
(b) the Court may take into consideration such confession as circumstantial evidence against such other person.
Explanation.--- "Offence", as used in this Article, includes the abetment of, or attempt to commit, the offence."
As mentioned above Hamid Mahmood (since acquitted), the co-accused of the appellant, who had confessed before the witnesses namely Abdul Raheem (PW-10) and Zeeshan Javed (PW-9) himself was acquitted by the learned trial court and his confession was not believed. As the confession Hamid Mahmood (since acquitted), the co-accused of the appellant was not proved to had been made ,therefore the same cannot be used as against the appellant . Reliance in this regard is placed on the case of "Khalid Javed and another Vs. The State" ( 2003 SCMR 1419) wherein the august Supreme Court of Pakistan has held as under:- "In this context another aspect requiring examination would be whether confessional statement can be used against co-accused Khalid Javed. Suffice it to observe that confessional statement Exh. PE under Article 43 of the Qanun-e-Shahadat Order, 1984 can furnish proot against the person making it and the Court may take into consideration such confession as circumstantial evidence against such other person.
Therefore, with reference to the instant case we are of the opinion that if confessional statement Exh.PE cannot be used against its maker namely appellant Aleem Ahmad, it cannot be equally used as, circumstantial evidence against Khalid Javed." (emphasis supplied)
21. The learned Deputy Prosecutor General and the learned counsel for the complainant have vehemently argued that the statement of the appellant on 28.02.2020, while in police custody leading to the recovery of the Pistol (P-20), the motorcycle (P-13) and Rs.25,000 (P-14/1-25) was admissible and relevant and amounted to a confession of guilt under the provisions of article 40 of the Qanun-e-Shahadat Order, 1984. The discovery of any fact on the information of the accused in custody of the police is admissible under article 40 of the Qanune-Shahadat Order, 1984, which reads as under:- "40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
A perusal of above article 40 of the Qanun-e-Shahadat Order, 1984 reveals firstly that it serves as a proviso to Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984. It comes into operation only if and when certain facts are deposed to as discovered in consequences of information received from an accused person in police custody. Thus, in order to apply Article 40 of the Qanun-e- Shahadat Order, 1984, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source. According to the prosecution case itself, the place of occurrence was known to the witnesses already since 21.02.2020 and the appellant had been named as accused since 21.02.2020 and no new fact was discovered in consequence of information received from the appellant on 28.02.2020. Hence, the alleged statement of the appellant made in police custody at the time when he got recovered the Pistol (P-20), the motorcycle (P-13) and Rs.25,000 (P-14/1-25) cannot be read in evidence and would remain inadmissible. Reliance in this regard is placed on the case of "Hayatullah vs. The State" (2018 SCMR 2092) wherein the august Supreme Court of Pakistan took an exception to the recording of such statements of the accused made in police custody by the learned trial court and observed as under:- "6. While going through the evidence adduced by the prosecution, we observe, with great concern, that inadmissible evidence has been brought on the record in the shape of admission of the appellant before police, memos of pointing out of place of occurrence and place from where the motorcycle was recovered which were already known to the police and the complainant party.
Such inadmissible pieces of evidence, according to law, should not be brought on the record.
Astonishingly, the whole disclosure was incorporated/dictated by the trial court when witnesses were giving evidence. Neither the prosecutor nor the defence made any objection upon bringing the said inadmissible pieces of evidence on record. The trial court while recording the statement of police officials, who recorded the confession of the appellant Hayatullah about the commission of the crime, had totally ignored Articles 38 and 39 of the Qanune-Shahadat Order, 1984 according to which this type of evidence was inadmissible as no new facts were discovered on the admission/disclosure of the appellant. The pointing out of the place of incident and the place of recovery of motorcycle cannot be termed as discovery as a consequence of information received from the appellant within the meanings of Article 40 of the Qanun-e-Shahadat Order, 1984 as the said places were already in the knowledge of the police and the complainant party so it was also inadmissible evidence. The memos about pointing out of place of occurrence without recovery prepared by the investigating officer should not be allowed by the trial court to bring on the record but unfortunately such pieces of evidence were allowed to be brought on the record although were inadmissible.
A heavy responsibility lies upon the court as well as the prosecution and defence counsel to be alert so that inadmissible evidence should not come on the record. If any party tender such evidence during the trial the other party should immediately raise objection to the admissibility of such evidence and the court should decide the same then and there before proceeding further and prevent it from coming on the record if it is found to be inadmissible in evidence. It is the duty of the trial judge to check such evidence without waiting for any such objection from either side because the judge is required to be vigilant and to play an active role while recording the evidence of witnesses.
It is the duty of the court to make distinction between admissible and inadmissible evidence and only admissible evidence should be allowed to come on record. If any inadmissible evidence is brought on the record then it will expose the ability and knowledge of law of the prosecutor and defence counsel. If the trial judge allows to bring the inadmissible evidence on record then it must reflect adversely regarding the knowledge of law and the ability of said Judge. We have observed that in certain cases the case files were found filled with inadmissible evidence which is ultimately to be discarded. It is the duty of the court to stop the witness at the moment he utters inadmissible evidence and should not allow to bring on record such inadmissible evidence."22. We have also noted that according to the report of Punjab Forensic Science Agency, Lahore (Exh.PZ) swabs from the body of the deceased were sent to the Punjab Forensic Science Agency, Lahore and were analyzed with the swa bs taken from the buccal cavity of the appellant, however, no DNA Profile of the appellant was generated from any of the items related to the deceased sent to the Punjab Forensic Science Agency, Lahore for analysis. Furthermore, Azmat Hayat, SI (PW-12), the Investigating Officer of the case admitted during cross-examination that he made no effort to lift the finger prints of the appellant from any of the articles under the use of the deceased or any of the articles recovered from the possession of the appellant. Moreover, as mentioned above, according to the report of Punjab Forensic Science Agency, Lahore (Exh.PZ), no DNA Profile of the appellant was generated from any of the items related to the deceased sent to the Punjab Forensic Science Agency, Lahore for analysis, which also proves the innocence of the appellant.
When an individual touches an object, epithelial cells are left behind. Touch D.N.A. is also known as epithelial D.N.A. Had the appellant touch the deceased, then the epithelial cells from the skin of the appellant must have been left behind and subsequently the presence of D.N.A. profile of the appellant would have been identified on the swabs taken from the dead body of the deceased and articles under the use of the deceased by the Punjab Forensic Science Agency, Lahore, however it was not.
23. The learned Deputy Prosecutor General has also relied upon the recoveries of the Pistol (P-20), the motorcycle (P-13) and Rs.25,000 (P-14/1-25) from the appellant and has submitted that they offered sufficient corroboration. The recoveries of the Pistol (P-20), the motorcycle (P-13) and Rs.25,000 (P-14/1-25) from the appellant cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recoveries of the Pistol (P-20), the motorcycle (P-13) and Rs.25,000 (P-14/1-25) from the appellant which action of his was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898 and therefore the evidence of the recoveries of the Pistol (P-20), the motorcycle (P-13) and Rs.25,000 (P-14/1-25) from the appellant cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. Shafqat Irfan, HC (PW-7) admitted during cross-examination as under:- "The house of recovery is situated in Abadi. 1.O did not associate any inhabitant of the locality or lumberdar etc."
Azmat Hayat, SI (PW-12), the Investigating Officer of the case, admitted during cross-examination as under :- "The recovered motorcycle is neither in the name nor in the name of deceased. Said motorcycle is not edit the name of accused nor in person. I did not join in investigation any Lumberdar, Councilor, Imam Masjid or any other respectable of the locality of the place of recovery of motorcycle."
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.
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, as mentioned above, Muhammad Sadiq (PW-4) admitted during cross-examination that the motorcycle which he had lent to the appellant had already been recovered on 21.02.2020.
In this manner, the recovery of the Pistol (P-20), the motorcycle (P-13) and Rs.25,000 (P-14/1-25) from the appellant could not be proved and cannot be considered as a relevant fact for proving any fact in issue.
24. The learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the other evidence available against the appellant. The motive of the occurrence as stated by the prosecution witnesses was that the appellant wanted to deprive the deceased from Rs.45,000/- which the deceased had picked up from the shop prior to leaving with the appellant. In this regard it is noted that Zeeshan Javed (PW-9) was confronted with his previous statement regarding the taking of Rs.45,000/- by the deceased from his shop and it was brought on record that Zeeshan Javed (PW-9) had made a blatant improvement in this regard.
During cross-examination of Zeeshan Javed (PW-9), the learned trial court, observed as under:- "I got recorded in Exh-DB that Mubeen then took Rs.45,000/- from the showroom and went to the shop of Farrukh PW for getting the motorcycle checked. Confronted with Exh-DB, not recorded I got recorded in my statement u/sec. 161 Cr.P.C that Mubeen deceased took out Rs.45,000/- from drawer. Confronted with Exh- DB, not recorded"
Similarly, Abdul Raheem (PW-10) was also confronted with his previous statement with regard to the deceased taking Rs.45,000/- with him and it was brought on record that Abdul Raheem (PW- 10) had also made a blatant improvement in this regard. During cross-examination of Abdul Raheem (PW10), the learned trial court, observed as under:- "I got recorded in Exh-DC that Zeshan further informed me that Mubeen took Rs.45,000/- from the showroom and went alongwith Javed accused to the shop of Farrukh PW for getting the motorcycle checked. Confronted with Exh-DC, not recorded " (emphasis supplied)
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 a poignant hush with regard to the particulars of the motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of "Muhammad Javed v. The State" (2016 SCMR 2021) as under: "The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case."
25. The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Muhammad Khail (PW-2) 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."
26. The plea of the learned Deputy Prosecutor General that because the complainant party was having 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 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 accused is entitled to the benefit of the doubt the Court can conclude on 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 appellant.
Conversely, the evidence so brought on record appears to have been fabricated to prove the prosecution case. Even otherwise the evidence suffers from material discrepancies, contradictions and omissions and for such reasons it has not proved the case against the appellant 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 eye of the law in view of the principles laid down by the august Supreme Court of Pakistan in the judgments referred to hereinabove. Even otherwise the prosecution evidence is inconsistent, thus, on basis of the same appellant cannot further be immured because he has every right to claim guarantee of the Constitution which provides that every citizen of the country shall be dealt with in accordance with the law. We are of the considered opinion that had the said witnesses being truthful witnesses and had they witnessed whatever they stated before the police and the learned trial court, then these contradictions would not have cropped up in their testimony. These self-negating and contradictory statements of the witnesses reflect that the witnesses are not truthful and they are supporting the afterthought, fabricated and concocted story meant to create incriminating evidence to strengthen the case of the unwitnessed occurrence against the appellant. The august Supreme Court of Pakistan in the case of Imran alias Dully and another Vs. the State and others (2015 SCMR 155) at page 164 has held as under:- "By now, it is a consistent view that when any case rests entirely on circumstantial evidence then, each piece of evidence collected must provide all links making out one straight chain where on one end its noose fit in the neck of the accused and the other end touches the dead body. Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and in that event conviction cannot be safely recorded and that too on a capital charge."
To carry a conviction on a capital charge it is essential that the courts should deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon and very minute and narrow examination of the same is necessary to secure the ends of justice. It is imperative for the prosecution to provide all links in chain, where one end of the same touches the dead body and the other, neck of the accused. The present case is of such a nature that many links are missing in the chain. It would not be wrong to observe that in this particular case, it can be said that there is no link, what to talk about a chain. The august Supreme Court of Pakistan in the case of Fiaz Ahmad Vs. The State (2017 SCMR 2026) has observed at page 2030 as under:- "It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however, if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same."
27. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Javaid Ahmed alias Jaidi son of Ahmad Khan in the present case. It is a settled principle of law that for giving 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 the 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 as infra: "9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
28. For what has been discussed above Criminal Appeal No.447-J of 2023 lodged by Javaid Ahmed alias Jaidi son of Ahmad Khan (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 30.03.2023 are hereby set-aside. Javaid Ahmed alias Jaidi son of Ahmad Khan (appellant) is ordered to be acquitted by extending him the benefit of doubt. Javaid Ahmed alias Jaidi son of Ahmad Khan is in custody and he is directed to be released forthwith if not required in any other case.
29. Murder Reference No.18 of 2023 is answered in Negative and the sentence of death awarded to Javaid Ahmed alias Jaidi son of Ahmad Khan is Not Confirmed.