2021 M L D 183

[Lahore (Bahawalpur Bench)]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ
MUHAMMAD SALEEM---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 251 and Murder Reference No. 27 of 2014, heard on 23rd April, 2019.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---
Appreciation of evidence---Benefit of doubt---Accused was charged that he and co-accused
committed murder of the son of complainant by firing---Motive behind the occurrence was
that two days prior to the occurrence, accused party intercepted the complainant party
whereupon a minor altercation took place between them, the matter was patched up but the
accused persons bore grudge in their heart and committed the offence---Ocular account in
that case consisted of complainant and four witnesses---First Information Report mentioned
joint role of firing to the accused by stating therein that accused and two unknown accused
persons made straight firing as a result whereof the pellets hit on forehead, left biceps and
left flank of deceased whereas twelve other persons sustained firearm injuries during the
incident---Complainant, while appearing before the Trial Court had changed the prosecution
story by attributing a specific role to accused which was to the effect that accused started
firing which struck on the forehead of his son and left biceps as result of which he fell on the
ground---Other two unknown persons also contributed firing as a result of which other
persons received injuries---Prosecution, in the FIR as well as before the Trial Court stated
that besides deceased, twelve other persons sustained injuries during the incident but the
Trial Court had disbelieved the said story of prosecution---Record showed that co-accused,
as per testimony of complainant having similar role with that of the accused, had been
acquitted by the Trial Court and no appeal against their acquittal was filed either by the State
or the complainant---Evidence which had been disbelieved qua the acquitted co-accused
could not be believed against the accused---Appeal against conviction was allowed, in
circumstances
Shahbaz v. The State 2016 SCMR 1763 and Imtiaz alias Taj v. The State and others
2018 SCMR 344 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---
Maxim: "falsus in uno falsus in omnibus"---Applicability---Witness who had told lie about
any material fact must be disbelieved as to all other facts by applying Maxim: "falsus in uno
falsus in omnibus".
(c) Criminal trial---
----Witness---Injured witness---Statement of injured witness---Scope---Argument that
presence of injured witness could not be doubted at the place of occurrence due to the
injuries on their person had no substance because merely the injury on the body of a person
would not stamp him/her truthful witness.
Amin Ali and another v. The State 2011 SCMR 323 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-amd, attempt to
commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---
Withholding of material evidence---Scope---Accused was charged that he and co-accused
committed murder of the son of complainant by firing---In the present case, allegedly nine
persons who sustained injuries during the incident and a driver driving the tractor at the time
of incident were the material witnesses of occurrence but they were not produced by the
prosecution during the trial---Prosecution withheld the best available evidence and in view of
Art. 129(g) of Qanun-e-Shahadat, 1984, adverse inference that had those witnesses been
produced before the Trial Court they would not have supported the prosecution case, could
safely be drawn against the prosecution---Evidence furnished by all the eye-witnesses,
therefore, were shaky in nature and could not be relied upon by maintaining the
conviction/sentence of the accused---Appeal against conviction was allowed, in
circumstances
Lal Khan v. The State 2006 SCMR 1846 and Muhammad Rafique and others v. The
State and others 2010 SCMR 385 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---
Appreciation of evidence---Motive was not proved---Scope---Accused was charged that he
and co-accused committed murder of the son of complainant by firing---Motive behind the
occurrence was that two days prior to the occurrence accused persons intercepted the
complainant party whereupon a minor altercation took place between them---Matter was
patched up but the accused persons bore grudge in their heart---No exact date, time and place
of motive incident had been mentioned in the FIR---Incident of motive was not reported to
the police---No solid/convincing evidence qua motive incident had been brought on record---
No independent witness qua motive was associated by police during investigation or
produced before the Trial Court by the prosecution---Prosecution thus, had failed to prove
motive against the accused---Appeal against conviction was allowed, in circumstances.
(f) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---
Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence at the instance
of accused---Reliance---Scope---Accused was charged that he and co-accused committed
murder of the son of complainant by firing---Record showed that pump action 12 bore gun
was recovered at the instance of accused---Said recovery was immaterial because report of
Forensic Science Agency qua said weapon was in the negative---Appeal against conviction
was allowed, in circumstances.
(g) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---
Appreciation of evidence---Contradiction in ocular and medical evidence---Scope---Accused
was charged that he and co-accused committed murder of the son of complainant by firing---
Ocular account was in direct conflict with the medical evidence because in the FIR it was the
case of prosecution that the accused along with his co-accused made firing and the pellets
landed on the forehead, left biceps and left flank of deceased but while appearing before the
Trial Court all the witnesses of ocular account except one did not assign any injury to the
accused and his co-accused on left flank of deceased---Appeal against conviction was
allowed, in circumstances.
(h) Criminal trial---
----Medical evidence---Scope---Medical evidence could only confirm the ocular account with
regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury,
duration between the injury and the death but would not tell the name of the assailants.
Ata Muhammad and another v. The State 1995 SCMR 599 rel.
(i) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), Ss. 342 & 340(2)---Qatl-i-
amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence----Plea
taken by the accused in his statement recorded under Ss. 342 & 340(2), Cr.P.C.---Scope---
Accused and co-accused were charged for committing murder of the son of complainant by
firing---Accused had taken specific plea in his statements under Ss. 342 & 340(2), Cr.P.C.,
that in his self defence he made firing upon the complainant party---If the prosecution failed
to prove its case against an accused person then the accused person was to be acquitted even
if he had taken a plea and had thereby admitted killing the deceased---Prosecution had to
prove its case against the accused by standing on its own legs and it could not take any
benefit from the weaknesses of the case of the defence---In the present case, the prosecution
failed to discharge its responsibility of proving the case against the accused---Appeal against
conviction was allowed, in circumstances.
Azhar Iqbal v. The State 2013 SCMR 383 rel.
(j) Criminal trial---
----Benefit of doubt---Principle---If there was a single circumstance which created doubt
regarding the prosecution case, the same would be sufficient to give benefit of doubt to the
accused.
Muhammad Akram v. The State 2009 SCMR 230 rel.
Farooq Haider Malik, Defence Counsel appointed at State expense.
Ch. Asghar Ali Gill, Deputy Prosecutor General for the State.
Syed Zeeshan Haider for the Complainant.
Date of hearing: 23rd April, 2019.
JUDGMENT
SHEHRAM SARWAR CH., J.---Muhammad Saleem (appellant) along with his co-accused
namely Muhammad Anwar, Muhammad Sadiq and Mukhtar Ahmad alias Mukhi, was tried
by the learned Addl. Sessions Judge, Bahawalnagar in case FIR No.463 dated 29.09.2012,
offence under Sections 302, 324 and 34, P.P.C. registered at Police Station Dunga Bonga,
District Bahawalnagar for the murder of Muhammad Abid (deceased) son of complainant.
Vide judgment dated 22.05.2014 passed by the learned Addl. Sessions Judge, Bahawalnagar,
Muhammad Saleem (appellant) has been convicted under Section 302(b), P.P.C. and
sentenced to death with a further direction to pay Rs.2,00,000/- (rupees two lakh only) as
compensation under Section 544-A of the Code of Criminal Procedure to the legal heirs of
the deceased and in default whereof to further undergo six months simple imprisonment.
However, charge under Section 324, P.P.C. was not proved against Muhammad Saleem
(appellant). Through the same judgment, Muhammad Anwar, Muhammad Sadiq and Mukhtar
Ahmed alias Mukhi, co-accused of the appellant were acquitted of the charges by extending
them benefit of doubt and no appeal against their acquittal was filed either by the State or the
complainant as conceded by learned Deputy Prosecutor General as well as learned counsel
for the complainant. Assailing the above conviction and sentence, the appellant has filed the
appeal in hand whereas the learned trial court has sent Murder Reference No.27 of 2014 for
confirmation or otherwise of the appellant's sentence of death, as required under Section 374,
Code of Criminal Procedure. Since both these matters have arisen out of the same judgment,
therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PL, 3) registered on the written
application (Ex.PB) of Muhammad Tufail, complainant (PW.6) is that he was resident of
Mauza Ramnagar. He was cultivating the land of Rao Umar Farooq on lease. On 29.09.2012
he along with his son Muhammad Abid aged 19/20 years, after plucking cotton from the field
and loading the same on tractor trolley being driven by Hakeem Paryar, were going on the
dera of Umar Farooq. At about 4:30 p.m. when they reached the road on the land of
Muhammad Saleem where Muhammad Saleem armed with repeater, Muhammad Anwar
armed with sota and two unknown persons armed with repeaters were standing in front of
them while parking a cart on the road. He asked Muhammad Saleem to put the cart aside so
that they may pass their tractor trolley whereupon Muhammad Saleem started abusing and in
reply thereto the complainant also abused him. On hearing noise Umar Farooq, Ghulam
Fareed, Taj Muhammad alias Lehri, Anwar, Saeed, Istikhar, Nawab, Hakeem, Imran,
Maqbool Ahmad, Ch. Muhammad Ashfaq, Inam-ul-Hassan, Rao Farman Ali and Rao
Masoom stepped forward in order to rescue them, Muhammad Anwar raised lalkara to his
son Muhammad Saleem and two unknown persons to fire them whereupon Muhammad
Saleem and two unknown accused persons made straight firing on them as a result whereof
the pellets landed on forehead, left biceps and left flank of Muhammad Abid, who fell down
after sustaining grievous injuries. Due to the firing of Muhammad Saleem and two unknown
accused persons Umar Farooq, Ghulam Fareed, Taj Muhammad alias Lehri, Anwar, Saeed,
Istikhar, Nawab, Hakeem, Imran, Maqbool Ahmad, Ch Muhammad Ashfaq and Inam-ul-
Hassan sustained injuries. Muhammad Abid succumbed to the injuries on the spot. Motive
behind the occurrence was that two days prior to the occurrence Muhammad Saleem etc.
intercepted the complainant party whereupon a minor altercation took place between them,
the matter was patched up but the accused persons bore grudge in their heart.
3. After completion of investigation, report under Section 173, Code of Criminal
Procedure was submitted in this case. Muhammad Saleem (appellant) along with Muhammad
Anwar, Muhammad Sadiq and Mukhtar Ahmad was summoned by the learned Addl.
Sessions Judge, Bahawalnagar to face the trial. Copies of relevant documents were provided
to them, as required under Section 265-C, Code of Criminal Procedure and formal charge
was framed against them, to which they pleaded not guilty and claimed trial. After the
closure of prosecution evidence, statements of the appellant and his co-accused under Section
342, Code of Criminal Procedure were recorded on 09.05.2014, wherein they refuted all the
allegations of the prosecution and professed their innocence. In answer to a question as to
why this case against him and why the prosecution witnesses had deposed against him, the
appellant stated as under:-
"This is a false case. The PWs hired by Umar Farooq for taking possession of our own
land. The real facts are that on the day of alleged occurrence I and my father
Muhammad Anwar my co-accused were sitting in my house. The complainant party
on the asking of Rao Umar Farooq who hired them while armed with weapons
attacked upon us and made straight firing upon my father Muhammad Anwar on
which he received fire arm injuries from the hands of complainant party. They want
illegal possession of our land and they formed unlawful assembly and attacked upon
my house on which I only to save the life of my father and my property made aerial
firing but unluckily some of the fires hit to the complainant. The complainant party
was hired by Rao Umar Farooq and they were aggressor. I have no enmity with the
deceased, complainant as well as the PWs. The PWs, complainant as well as deceased
had no land no business, no residence near the place of occurrence. They are only
hired persons and while armed with weapons came there only to get illegal possession
of my land. I in myself defence made firing only to save my life as well as life of my
father Muhammad Anwar. The place of occurrence is belonged to me. My father
Muhammad Anwar was also medically examined by the Medical Officer through the
I.O. but the complainant party dishonestly suppressed his injuries. Neither
complainant nor the deceased had any dispute with me and my co-accused prior to the
occurrence but they came at the place of occurrence on the asking of Rao Umar
Farooq who hired them only to get illegal possession of my owned land".
The appellant also appeared as his own witness in disproof of the prosecution
allegations and got recorded his statement under Section 340(2) Code of Criminal Procedure
on the same lines as mentioned above. However, after conclusion of trial, the learned trial
court convicted and sentenced the appellant and acquitted his co-accused, as detailed above.
Hence, this appeal and murder reference.
4. Learned counsel for the appellant, in support of this appeal, contends that the
appellant has falsely been implicated in this case; that presence of all the eye-witnesses
namely Muhammad Tufail complainant (PW.6), Rao Masoom Ali (PW.7), Rao Umar Farooq
(PW.8), Saeed Ahmad (PW.9) and Muhammad Anwar (PW.10) on the spot at the time of
incident is doubtful in nature; that nine persons namely Ghulam Fareed, Taj Muhammad alias
Lehri, Istikhar, Nawab, Hakeem, Imran, Maqbool, Ch. Muhammad Ashfaq and Inam-ul-
Hassan who sustained injuries during the incident and one Hakeem Paryar, who was driving
tractor at the time of incident, were the material witnesses of occurrence but they were not
produced by the prosecution during the trial and as such the complainant withheld the best
evidence available with it, therefore, adverse inference in view of Article 129(g) of the
Qanun-e-Shahadat Order, 1984 can safely be drawn against prosecution; that ocular account
is in direct conflict with the medical evidence; that motive has not been proved against the
appellant; that alleged recovery of pump action 12 bore gun (P.3) at the instance of appellant
is inconsequential; that viewing from all angles the prosecution case is doubtful in nature and
the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for
the complainant opposes this appeal on the grounds that matter was reported to the police
with due promptitude; that the complainant's side had no deep rooted enmity against the
appellant for his false implication in this case; that presence of all the eye-witnesses on the
spot at the time of incident is quite natural and probable; that motive has been proved against
the appellant; that no adverse inference can be drawn against the prosecution due to non-
production of Ghulam Fareed, Taj Muhammad alias Lehri, Istikhar, Nawab, Hakeem, Imran,
Maqbool, Ch. Muhammad Ashfaq, Inam-ul-Hassan and Hakeem Paryar before the learned
trial court as it is the prerogative of the prosecution to produce as many witnesses as it deems
proper; that ocular account is fully supported by medical evidence which is further
corroborated by the recovery of pump action 12 bore gun (P.3) at the instance of appellant;
that the prosecution has successfully brought home guilt against the appellant beyond any
shadow of doubt and there is no merit in this appeal.
6. We have heard learned Counsel for the parties as well as the learned Deputy
Prosecutor General for the State and gone through the record with their able assistance.
7. Ocular account in this case consists of Muhammad Tufail complainant (PW.6), Rao
Masoom Ali (PW.7), Rao Umar Farooq (PW.8), Saeed Ahmad (PW.9) and Muhammad
Anwar (PW.10). In the FIR a joint role of firing was assigned to the appellant by stating
therein that Muhammad Saleem (appellant) and two unknown accused persons made straight
firing as a result whereof the pellets hit on forehead, left biceps and left flank of Muhammad
Abid (deceased) whereas twelve other persons namely Umar Farooq, Ghulam Fareed, Taj
Muhammad alias Lehri, Anwar, Saeed, Istikhar, Nawab, Hakeem, Imran, Maqbool, Ch.
Muhammad Ashfaq and Inam-ul-Hassan sustained firearm injuries during the incident but
while appearing before the learned trial Court the complainant (PW.6) changed the
prosecution story by attributing a specific role to Muhammad Saleem (appellant) which was
to the effect that 'Muhammad Saleem started firing which struck on the forehead of my son
Muhammad Abid and left bicep as result of which he fell on the ground. The other two
unknown persons also contributed firing as a result of which all the above said persons
mentioned by me received injuries'. In the FIR as well as before the learned trial Court it was
the case of prosecution that besides Muhammad Abid (deceased), twelve other persons
namely Umar Farooq, Ghulam Fareed, Taj Muhammad alias Lehri, Anwar, Saeed, Istikhar,
Nawab, Hakeem, Imran, Maqbool, Ch. Muhammad Ashfaq and Inam-ul-Hassan sustained
injuries during the incident but the learned trial Court has disbelieved the said story of
prosecution by observing in paragraph No.26 of the impugned judgment as under:-
"So far as attribution of injuries of other injured persons to the accused Mohammad
Saleem is concerned, the prosecution witnesses ascribed the general role to the
accused Saleem as well as two unknown accused persons. It is pertinent to mention
here that out of twelve witnesses, only three injured appeared as witnesses namely
Umer Farooq (PW-8), Saeed Ahmad (PW-9) and Anwar (PW.10). So to the extent of
remaining nine injured there is no need to discuss the prosecution evidence.
Mohammad Tufail, (PW-6) stated that other two unknown persons also contributing
firing as a result of which all the injured persons of this case received injuries. The
remaining eye witnesses including injured PWs alleged a general role of making
firing by accused Mohammad Saleem and two unknown persons upon the injured
persons. Although, injured Saeed Ahmad as PW-9 and Anwar as PW-10 ascribed
specific role to the accused Mohammad Saleem for causing injuries to them, but as
per initial stance of the prosecution, no such specific role had been attributed to the
accused Mohammad Saleem and deposition of PW-9 and PW-10 is outcome of
improvements from the face of record. Therefore, to the extent of injuries of injured
Umer Farooq, Saeed Ahmad and Anwar, case of prosecution against accused
Mohammad Saleem could not be established through cogent evidence."
It is settled by now that a witness who lied about any material fact must be disbelieved as to
all other facts by applying the principle of falsus in uno falsus in omnibus. We respectfully
relied upon the judgment dated 04.03.2019 of the Hon'ble Supreme Court of Pakistan passed
in Crl. Misc. Application No.200 of 2019 in Crl. Appeal No.238-L, of 2013. This argument
of the learned Deputy Prosecutor General that presence of Rao Umar Farooq (PW.8), Saeed
Ahmad (PW.9) and Muhammad Anwar (PW.10) cannot be doubted at the place of
occurrence due to the injuries on their person has no substance because merely the injury on
the body of a person, would not stamp him/her truthful witness. Reliance is placed on case
law titled as "Amin Ali and another v. The State" (2011 SCMR 323). According to the
prosecution's own case,. nine persons namely Ghulam Fareed, Taj Muhammad alias Lehri,
Istikhar, Nawab, Hakeem, Imran, Maqbool, Ch. Muhammad Ashfaq and Inam-ul-Hassan
who sustained injuries during the incident and one Hakeem Paryar, who was driving tractor
at the time of incident, were the material witnesses of occurrence but they were not produced
by the prosecution during the trial. Therefore, the prosecution withheld the best available
evidence and in view of Article 129(g) of Qanun-e-Shahadat Order, 1984, adverse inference,
that had these PWs been produced before the learned trial court they would not have
supported the prosecution case, can safely be drawn against the prosecution. Reliance in this
respect is placed on the esteemed judgments passed by the Hon'ble Supreme Court of
Pakistan in the cases of "Lal Khan v. The State" (2006 SCMR 1846) and "Muhammad
Rafique and others v. The State and others" (2010 SCMR 385). In the case of Muhammad
Rafique and others, supra, the Hon'ble Supreme Court of Pakistan was pleased to observe as
under:-
"33. ...It is well-settled that if any party withholds that best piece of evidence then it
can fairly be presumed that the party had some sinister motive behind it. The
presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that
if P.W. Amir Ali could have been examined, his evidence would have been
unfavourable to the prosecution..."
Therefore, we hold that evidence furnished by all the above-said eye-witnesses is shaky in
nature and cannot be relied upon by maintaining the conviction/sentence of the appellant.
8. There is another aspect of the case. Muhammad Sadiq and Mukhtar Ahmad alias
Mukhi co-accused of the appellant, as per testimony of complainant (PW.6), having similar
role with that of the appellant, have been acquitted by the learned trial Court and no appeal
against their acquittal was filed either by the State or the complainant, therefore, the
question, for determination before us, is whether the evidence which has been disbelieved
qua the acquitted co-accused of the appellant namely Muhammad Sadiq and Mukhtar Ahmad
alias Mukhi can be believed against the appellant? In this regard, we are guided by the
judgment of the Hon'ble Supreme Court of Pakistan reported as "Shahbaz v. The State" (2016
SCMR 1763), wherein it was held at page 1765 as under:-
 "2. ...The law is settled by now that if some eye-witnesses are disbelieved against
some accused persons attributed effective roles then the same eye-witnesses cannot be
relied upon to the extent of the other accused persons in the absence of any
independent corroboration and a reference in this respect may be made to the cases of
Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11),
Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and
others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008
SCMR 6). In the case in hand no independent corroboration worth its name was
available to the extent of Shahbaz appellant inasmuch as the trial court and the High
Court had disbelieved the motive set up by the prosecution, the alleged recovery of a
chhurri from the custody of the appellant was inconsequential because the recovered
chhurri was not stained with blood, post-mortem examination of the deadbody of
Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the
following morning and the duration between death and post-mortem examination was
recorded as about eleven hours. It appears that time had been consumed by the
complainant party and the local police in procuring and planting eye-witnesses and in
cooking up a story for the prosecution. The said story of the prosecution already
stands substantially disbelieved to the extent of Muhammad Abbas co-accused and we
have found that the same was not free from doubt even to the extent of Shahbaz
appellant."
The above said view has been further fortified in the recent case law titled as "Imtiaz alias
Taj v. The State and others" (2018 SCMR 344).
9. Motive behind the occurrence was that two days prior to the occurrence Muhammad
Saleem etc. intercepted the complainant party whereupon a minor altercation took place
between them, the matter was patched up but the accused persons bore grudge in their heart.
No exact date, time and place of motive incident have been mentioned in the FIR. The
motive incident was not reported to the police. No solid/convincing evidence qua motive
incident has been brought on record. No independent witness qua motive was associated by
police during investigation or produced before the learned trial Court by the prosecution
during the trial. Therefore, we hold that prosecution has failed to prove motive against the
appellant.
10. So far as alleged recovery of pump action 12 bore gun (P.3) at the instance of
appellant is concerned the same is immaterial because report of Punjab Forensic Science
Agency qua said weapon is in the negative.
11. The ocular account is in direct conflict with the medical evidence because in the FIR
it was the case of prosecution that the appellant along with his co-accused made firing and
the pellets landed on the forehead, left biceps and left flank of Muhammad Abid (deceased)
but while appearing before the learned trial Court all the witnesses of ocular account except
Muhammad Anwar (PW.10) did not assign any injury to the appellant and his co-accused on
left flank of Muhammad Abid (deceased). Moreover, the medical evidence may only confirm
the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used
for causing the injury, duration between the injury and the death but it would not tell the
name of the assailants. Reliance is placed on "Ata Muhammad and another v. The State"
(1995 SCMR 599).
12. So far as the defence plea taken by the appellant in his statements under Sections 342
and 340(2) Code of Criminal Procedure is concerned, though Muhammad Saleem (appellant)
has stated in the said statements that in his self defence he made firing upon the complainant
party but it is settled principle of law that if the prosecution fails to prove its case against an
accused person then the accused person is to be acquitted even if he had taken a plea and had
thereby admitted killing the deceased. Reliance in this respect is placed on the esteemed
judgment passed by the Hon'ble Supreme Court of Pakistan in the case of "Azhar Tqbal v.
The State" (2013 SCMR 383) wherein at pages 384 and 385, the Hon'ble Supreme Court has
been pleased to observe under:--
"2. ... it has straightaway been observed by us that both the learned courts below had
rejected the version of the prosecution in its entirety and had then proceeded to
convict and sentence the appellant on the sole basis of his statement recorded under
section 342, Cr.P.C. wherein he had advanced a plea of grave and sudden
provocation. It had not been appreciated by the learned courts below that the law is
quite settled by now that if the prosecution fails to prove its case against an accused
person then the accused person is to be acquitted even if he had taken a plea and had
thereby admitted killing the deceased. A reference in this respect may be made to the
case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR 1139). The law is
equally settled that the statement of an accused person recorded under section 342,
Cr.P.C. is to be accepted or rejected in its entirety and where the prosecution's
evidence is found to be reliable and the exculpatory part of the accused person's
statement is established to be false and is to be excluded from consideration then the
inculpatory part of the accused person's statement may be read in support of the
evidence of the prosecution. This legal position stands amply demonstrated in the
cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad
Tashfeen and others v. The State and others (2006 SCMR 577) and Faqir Muhammad
and another v. The State (PLD 2011 SC 796)..."
13. We have considered all the pros and cons of this case and have come to this
irresistible conclusion that the prosecution could not prove its case against the appellant
beyond any shadow of doubt. It is, by now well established principle of law that it is the
prosecution, which has to prove its case against the accused by standing on its own legs and
it cannot take any benefit from the weaknesses of the case of the defence. In the instant case,
the prosecution remained failed to discharge its responsibility of proving the case against the
appellant. It is also well established that if there is a single circumstance which creates doubt
regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused,
whereas, the instant case is replete with number of circumstances which have created serious
doubt about the prosecution story. In "Muhammad Akram v. The State" (2009 SCMR 230),
the Hon'ble Supreme Court of Pakistan, at page 236, was pleased to observe as under:-
 "13. ...It is an axiomatic principle of law that in case of doubt, the benefit thereof
must accrue in favour of the accused as matter of right and not of grace. It was
observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that
for giving the benefit of doubt, it was not necessary that there should be many
circumstances creating doubts. If there is circumstance which created reasonable
doubt in a prudent mind about the guilt of the accused, then the accused would be
entitled to the benefit of doubt not as a matter of grace and concession but as a matter
of right."
14. For the foregoing reasons, Criminal Appeal No.251 of 2014 filed by Muhammad
Saleem (appellant) is allowed, conviction and sentence awarded to him vide judgment dated
22.05.2014 passed by the learned Addl. Sessions Judge, Bahawalnagar are set aside and the
appellant is acquitted of the charges leveled against him while extending him benefit of
doubt. Muhammad Saleem, appellant is in jail. He shall be released forthwith if not required
to be detained in any other case.
15. Murder Reference No. 27 of 2014 is answered in the NEGATIVE and the sentence of
death awarded to Muhammad Saleem (convict) is NOT CONFIRMED.
JK/M-121/L Appeal allowed.