Stereo HCJDA-38

Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT

CRL.A. NO.1746/05
( MUHAMMAD ARIF ETC. VS. THE STATE )

MR NO.773/05

JUDGMENT

DATE OF HEARING: 24.11.2010

APPELLANTS BY: M/S. CH.GHULAM MUSTAFA BANDESHA & CH.
NAVEED MUSTAFA BANDESHA, ADVOCATES.
STATE BY: CH.MUHAMMAD MUSTAFA, DPG.

MANZOOR AHMAD MALIK, J.-- This judgment shall dispose

of Criminal Appeal No.1746/05 (Muhammad Arif etc. vs. The State) and

Murder Reference No.773/05 sent by the learned trial Court, for confirmation

or otherwise, of the sentence of death awarded to both the appellants, as both

these matters have arisen out of the same judgment dated 20.10.2005 passed

by the learned Additional Sessions Judge, Faisalabad, whereby, appellants

were convicted for the murder of Ashfaq(deceased) and sentenced to death.

They were also directed to pay a compensation of Rs.1,00,000/- (Rupees one

lac only) each to the legal heirs of the deceased in default whereof to further

undergo six months SI each.

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CRL.APPEAL NO.1746/05 2

2. Brief facts of the case, as given by PW6 Mst.Surriya Bibi

(complainant) in the FIR(Exh.PA/1) are that about 9/10 years ago, marriage of

complainant’s son Ashfaq(deceased) took place with Mst.Shazia of Chak

No.73-JB. Her son Ashfaq(deceased) was residing in the village of his in-laws

for the last about four years. Muhammad Arif was brother-in-law(Sala) of her

said son who took Rs.7,70,000/- as loan from Muhammad Arif(appellant) but

he was not returning it back due to which their relations were not cordial. As

per contents of the FIR, on 4.12.2004, Mst.Surriya Bibi(complainant)

alongwith Shabbir and Ibrar Hussain went to Mauza Koluwala to meet her said

son. On the said day, she was talking with her deceased son and others on the

upper storey of the house, when, at about 5.30 p.m., Abid, who was driver of

wagon of Ashfaq(deceased), came to the village to meet her son Ashfaq and

gave a siren of wagon while standing in the street in front of the house of her

son. Her son Ashfaq came down in the street. In the meanwhile, both the

appellants alongwith an unknown person, while armed with firearms, reached

there. Muhammad Arif(appellant) fired a shot with .30 bore pistol which

stamped on the front of chest of her son Ashfaq. Second shot fired by Ghulam

Murtaza(appellant) landed on his right flank which was followed by

indiscriminate firing by the accused persons which fires hit on different parts of

bodies of Ashfaq(deceased) and Abid(driver). Ashfaq(deceased) tried to save

his life but he fell down at some distance and breathed his last there and then

Abid(driver) was taken to Allied Hospital, Faisalabad. The accused decamped

from the spot while making aerial firing. As per FIR, the occurrence was

witnessed by the complainant, Ibrar Hussain and Muhammad Shabbir. The

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CRL.APPEAL NO.1746/05 3

motive stated in the FIR was that Muhammad Arif(appellant) took money as a

loan from Ashfaq(deceased) who was not returning the same due to which a

dispute arose between them. It was for the said reason that the appellants

alongwith an unknown person killed Ashfaq(deceased) and caused injuries to

Abid(driver).

3. After completion of investigation, challan was prepared and submitted

before the learned trial Court, copies were distributed to the appellants as

required under section 265-C of the Code of Criminal Procedure, charge was

framed, to which, the appellants pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution produced as many as 09

witnesses during the trial. The appellants were examined under section 342

Cr.P.C.. They opted not to depose on Oath as required under section 340(2)

Cr.P.C.. Mst.Shazia Bibi and Waris were produced by the defence as DW1 and

DW2. In an answer to the question “why this case against you and why the

PWs have deposed against you”, Muhammad Arif(appellant), in his

statement recorded under section 342 Cr.P.C., stated as under:-

“The PWs are related inter-se and inimical towards me and had deposed
falsely against me. The PWs are resident of Gujranwala and were not
present at the place of occurrence and at the time of occurrence. They
were summoned by the police from Gujranwala to become complainant
and PWs. In fact, the deceased had enmity of murder at Sialkot and his
unknown enemies assaulted upon the deceased. The deceased and Abid
injured PW who was given up by the prosecution, were injured in the
dark of late evening by the unknown assailants who could not be
identified at the place of occurrence. The complainant had grudge
against me, therefore, she involved me in this case falsely. All the people
of the locality told the police about the real facts but I.O. dishonestly and
in connivance with the complainant party did not bring the real fact on
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CRL.APPEAL NO.1746/05 4

record. Abid PW was also not supporting the prosecution version,

therefore, he was not produced by the prosecution and prosecution
withheld important piece of evidence”.

Ghulam Murtaza(appellant), deposed as under:-

“The PWs are related inter-se and had deposed falsely against me. The
PWs are resident of Gujranwala and were not present at the place of
occurrence and at the time of occurrence. They were summoned by the
police from Gujranwala to become complainant and PWs. In fact the
deceased had enmity of murder at Sialkot and his unknown enemies
assaulted upon the deceased. The deceased and Abid injured-PW, who
was given up by the prosecution, were injured in the dark of late evening
by the unknown assailants, who could not be identified at the place of
occurrence. All the people of the locality told the police about the real
facts but I.O. dishonestly and in connivance with the complainant party
did not bring the real facts on record. Abid PW had also not supported
the prosecution version, therefore, he was not produced by the
prosecution and withheld important piece of evidence. My father is
retired police official and the I.O. had grudge with my father during his
service and due to this, complainant involved in this case with the
connivance of I.O.”.

However, after conclusion of the trial, the learned trial Court convicted and
sentenced the appellants as mentioned above.

5. Learned counsel for the appellants, in support of this appeal,

contends that actually this occurrence was not witnessed by PW6 Mst.Surriya

Bibi and PW7 Ibrar Hussain who, admittedly, are not residents of the area

where the occurrence took place because the place of occurrence is situated in

Chak No.73-JB-Jhapal, Police Station Thikriwala, District Faisalabad whereas

both the eye-witnesses are residents of Mauza Kaluwala, Tehsil Naushehra,

District Gujranwala which is at a distance of about 150 kilometers from the

place of occurrence; that even the complainant, while appearing as PW6, has

admitted that it took about 7/8 hours from Naushehra to reach the place of

occurrence; that as per prosecution’s own case, both the eye-witnesses were
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CRL.APPEAL NO.1746/05 5

present at the place of occurrence per chance and the reason given by them for

their presence at the place of occurrence at the relevant time is neither plausible

nor convincing; that as per the complainant, the occurrence in this case took

place at about 5.30 p.m., Police Station Thikriwala is situated only at a distance

of just 02 kilometers from the place of occurrence but the matter was reported

to the police at about 8.00 p.m. with an inordinate and unexplained delay of

about two and a half hours after the occurrence; that the postmortem

examination on the dead body of the deceased was conducted on the next day

i.e. 6.12.2004 and the doctor, in his postmortem report(Exh.PE), has stated that

rigor mortis was fully developed on the body at that time; that even as per

PW9 Muhammad Riaz SI/Investigating Officer, dead body of the deceased was

dispatched to the mortuary from the place of occurrence on the same day which

fact also stood mentioned in the Inquest Report(Exh.PD); that even in the

Inquest Report no time of death has been mentioned and similarly the

prosecution has not given any time of conducting postmortem examination on

the body of deceased; that in the FIR it is mentioned that the complainant of

the case was present at the place of occurrence alongwith Ibrar Hussain and

Muhammad Shabbir and went to the police station for reporting the matter

alongwith the said Shabbir Ahmad but in the Inquest Report neither name of

the said Ibrar Hussain nor Shabbir Ahmad are mentioned; that it is the case of

the prosecution that in the same occurrence, one Abid was also injured at the

hands of the appellants and PW9 Muhammad Riaz SI/Investigating Officer has

stated that he recorded his statement under section 161 Cr.P.C. but the said

Abid was never produced before the learned trial Court and even no evidence
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CRL.APPEAL NO.1746/05 6

regarding his injury was brought on record rather the said Abid was given up

by the prosecution being unnecessary; that the said Abid was the most

important witness of the occurrence, therefore, on account of withholding of

his evidence, an adverse inference is to be drawn against the prosecution in

view of Article 129(g) of the Qanun-e-Shahadat Order, 1984; that even

otherwise, PW6 Mst.Surriya Bibi while appearing before the Court has made

dishonest improvements justifying her presence at the spot at the time of

occurrence which is manifest from her cross-examination and in this regard she

was duly confronted with her previous statement; that there is contradiction

between the ocular account and the medical evidence because it is case of the

prosecution that the shot fired by the appellant Arif hit on the chest of the

deceased but as per postmortem examination report(Exh.PE) it is Injury No.4

which injury, in fact, is an exit wound; that no recovery was effected from

Ghulam Murtaza(appellant) whereas recovery of .30 bore pistol at the instance

of Muhammad Arif(appellant) is of no avail to the prosecution for the reasons

that there is no report of the Forensic Science Laboratory in this regard and

PW9 Muhammad Riaz SI/Investigating Officer has admitted that he did not

send this weapon to the laboratory for examination coupled with the fact that

no crime empty was taken into possession from the spot to connect the said

weapon with the alleged commission of the crime; that the prosecution has

miserably failed to prove motive because no evidence has been brought on

record to substantiate the fact that there was a money dispute between

Muhammad Arif(appellant) and Ashfaq(deceased); that PW6 Mst.Surriya Bibi,

while appearing before the Court, has denied that her husband was murdered
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CRL.APPEAL NO.1746/05 7

and a case was registered; that notwithstanding the fact that complainant’s

deceased son Ashfaq was involved in a murder/dacoity case but while

appearing before the Court, PW6 Mst.Surriya Bibi has denied the said factum

which is very much clear from FIR(Exh.DB) wherein Ashfaq(deceased) was

arrayed as an accused of offence under sections 302/395 PPC; that the defence

evidence furnished by DW1 and DW2, who are residents of the same area

where the occurrence took place, is more probable and convincing as compared

to the prosecution case; that the case of the prosecution is of doubtful nature;

that the prosecution has failed to prove its case against the appellants beyond

any shadow of doubt and that the appellants are entitled to acquittal. In support

of the above submissions, learned counsel for the appellants has placed reliance

on Mehmood Ahmad and 3 others vs. The State and another (1995 SCMR

127), Muhammad Khan and another vs. The State (1999 SCMR 1220),

Muhammad Akram vs. The State (2009 SCMR 230), Ghulam Sikandar and

another vs. Mamraz Khan and others (PLD 1985 Supreme Court 11), Khalid

Javed and another vs. The State (2003 SCMR 1419), Noor Muhammad vs. The

State and another (2010 SCMR 97), Muhammad Rafique and others vs. The

State and others (2010 SCMR 385), Muhammad Ibrahim vs. Ahmed Ali and

others (2010 SCMR 637), Nadeem @ Nanha @ Billa Sher vs. The State (2010

SCMR 949) and Qurban Hussain @ Ashiq vs. The State (2010 SCMR 1592).

6. On the other hand, the learned Deputy Prosecutor General for the

State, while vehemently opposing this appeal, contends that the appellants

are named in the FIR with specific roles; that, in order to prove its case, the
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CRL.APPEAL NO.1746/05 8

natural eye-witness account has been furnished by the prosecution which

inspires confidence and despite cross-examination the defence could shake

nothing from the testimony of the witnesses; that the PWs have no enmity with

the appellants to falsely depose against them during the trial; that the ocular

account in this case is supported by the medical evidence and the evidence of

recovery of weapon of offence; that, even otherwise, in such like cases

substitution is a rare phenomenon and no reason has been offered by the

appellants for their false implication in this case; that the prosecution has

proved its case against the appellants beyond any shadow of doubt and that the

appeal filed by the appellants against their conviction and sentence be

dismissed.

7. We have heard learned counsel for the parties at length, have given
anxious consideration to their arguments and have also scanned the
evidence on record with their able assistance.

8. Occurrence in this case took place on 5.12.2004 at about 5.30 p.m., the

matter was reported to the police by PW6 Mst.Surriya Bibi at about 8.00 p.m.

through Fard Bayan(Exh.PA) at Adda Thikriwala, the formal FIR was

registered on the same day at about 8.10 p.m. while the distance between the

place of occurrence and the Police Station was about 02 kilometers. The first

point to be determined by this Court is whether the matter was promptly

reported to the police or not? It is case of the complainant that after the

incident, she, alongwith Shabbir Ahmad, went to the Police Station to report

the matter when she met Iftikhar Ahmad SI at Adda Thikriwala at about 8.00
MR.NO.773/05
CRL.APPEAL NO.1746/05 9

p.m. Although the police station is just at a distance of about 02 kilometers

from the place of occurrence but the matter was reported to the police with a

delay of about two and a half hours coupled with the fact that the postmortem

examination on the dead body of the deceased was conducted by PW3

Dr.Zafar-ul-Hassan Shah on the next day of occurrence i.e. 6.12.2004 and even

no time of conducting the same was mentioned in the postmortem examination

report(Exh.PE) although he has admitted that it was conducted after 12 to 24

hours of the death of the deceased. Similarly, PW9 Muhammad Riaz

SI/Investigating Officer has stated that he dispatched the dead body to the

mortuary but surprisingly according to the opinion of PW3 Dr.Zafar-ul-Hassan

Shah, who conducted postmortem examination on the body of deceased, rigor

mortis was fully developed, therefore, preliminary inquiries, deliberations and

consultations on the part of the complainant cannot be ruled out, prior to the

registration of the FIR.

9. The ocular account in this case was furnished by PW6 Mst.Surriya Bibi

and PW7 Ibrar Hussain. The occurrence in this case took place within the area

of Chak No.73-JB-Jhapal, Police Station Thikriwala, District Faisalabad while

both the above mentioned eye-witnesses are residents of Mauza Kaluwala,

Tehsil Naushehra, District Gujranwala. While appearing as PW6, the

complainant has admitted that it took about 7/8 hours from Naushehra to reach

the place of occurrence. In the FIR, PW6 Mst.Surriya Bibi has not given any

plausible and convincing explanation for her presence at the place of

occurrence although while appearing before the Court, she has made an

abortive attempt to justify her presence at the spot in the following manner:-
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CRL.APPEAL NO.1746/05 10

“I know the accused present in the Court. Ghulam Murtaza was

conductor on a wagon owned by Muhammad Arif, accused. My son
Muhammad Ashfaq was married with the sister of accused namely
Shazia for the last about 10 years. My said son shifted to the house of
accused persons, about 5 years prior to the occurrence. Arif accused
misappropriated Rs.7,70,000/- of my son Ashfaq, deceased which was
taken as a loan. After this, Arif, accused and my son Ashfaq remained
happy for some time. My son Ashfaq and accused Arif purchased car
and wagon. My son Ashfaq purchased car from his own pocket. 4
months prior to the occurrence, dispute arose between my son and Arif
accused over money. On 4.12.2004, I alongwith Muhammad Shabbir
PW and Ibrar PW attracted the house of Ashfaq my son in connection
with said dispute. On the next day about 5.30 p.m. I alongwith Ibrar and
Shabbir PWs and my deceased son were sitting on the roof of the house
of the deceased. Again said, we were sitting in the room. Subsequent to
this, our van driven by our driver Abid reached in front of house of
Ashfaq and gave horn. After hearing the horn, my son Ashfaq came
down and reached near the wagon and we i.e. I, Shabbir and Ibrar PWs
proceeded to the gallery of roof. In the meantime, Arif and Murtaza and
one unknown person with muffled face came out from the house. Both
Arif and Murtaza armed with .30 bore pistols. Arif accused made fire
which hit at the chest of my son Ashfaq. Subsequent to this, Ghulam
Murtaza caused fire with his pistol which hit on the right flank of my
said son. After receiving the fires, my deceased son moved forward a
few steps and followed by both the accused while both the accused were
making firing with their respective weapons, which causes a number of
injuries on the person of deceased. Abid driver was also injured by Arif
accused and Ghulam Murtaza accused. My deceased son died at the spot
due to the fires of the accused present in the court at a some distance.
Both the accused fled away while making firing. The occurrence was
seen by me and Ibrar and Shabbir PWs while standing in the gallery in
the house of Ashfaq deceased. My son was killed due to money dispute
which was taken by the accused Arif. I alongwith Shabbir moved to the
police while Ibrar PW was left with the dead body. We met the police at
Adda Thikriwala. I made statement Exh.PA to the Police which was read
over to me and I thumb marked the same for the token of its
correctness”.

10. PW6 Mst.Surriya Bibi was confronted with her previous statement and it

was brought on record that she made improvements to justify her presence at

the spot at the time of occurrence. In her cross-examination, she stated as

under:-
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CRL.APPEAL NO.1746/05 11

“I had not recorded in my statement before the police that my son

Ashfaq deceased and accused Arif purchased car and wagon. I did not
state before the police that my son Ashfaq purchased car from his own
pocket. I did not state before the police that four months prior to the
occurrence a dispute arose between my son and Arif accused over
money. I did not state before the police that I alongwith Shabbir PW and
Ibrar PW attracted to the house of my son in connection with said
dispute”.

11. Similarly, PW7 Ibrar Hussain has also not given any plausible

explanation for his presence at the spot. He is also not resident of the place of

occurrence and is a resident of the same Mauza where the complainant resides.

His plantation in the case as an eye-witness can also not be ruled out.

Therefore, in the given circumstances of the case, presence of both these

witnesses at the spot at the relevant time of occurrence becomes doubtful and

in our view their testimony does not inspire confidence. In this regard,

reference is made to the case of NADEEM @ NANHA @ BILLA SHER VS.

THE STATE (2010 SCMR 949), wherein at page 953, the Hon’ble Supreme

Court of Pakistan has been to observe as under:-

“The complainant PW4 and Muhammad Afzaal PW5 are chance

witnesses as they should not normally be present at the place of
occurrence and it is difficult to rely upon their statements being
chance and highly interested witnesses.”

The question of placing reliance on the materially improved statement of a

witness came up for consideration before the Hon’ble Supreme Court of
Pakistan in the case of MUHAMMAD RAFIQUE and others vs. THE
STATE and others (2010 SCMR 385), wherein, at page 396, the learned
Apex Court of the country, has been pleased to observe as under:-
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CRL.APPEAL NO.1746/05 12

“…..This Court in the case of Saeed Muhammad Shah v. State

(1993 SCMR 550), observed that if a witness improves his
statement on material aspects of the case then such improvement is
not worthy of reliance and the evidence of such witness requires
corroboration. In the case of Khalid Javed vs. State (2003 SCMR
1419), while reiterating the above rule, it was further observed that
such witness is to be considered to be wholly unreliable and it is
not advisable to place explicit reliance upon his evidence”.

12. Another important aspect of the case is that it is the case of the

prosecution that one Abid(Driver) also received firearm injury at the hands of

the appellants. Even as per PW9 Muhammad Riaz SI/Investigating Officer, on

6.12.2004, he reached Allied Hospital, Faisalabad, and recorded statement of

the said Abid under section 161 Cr.P.C. who was also got medically examined

but he was never produced by the prosecution before the learned trial Court.

Even there is nothing on the record regarding his injuries. He was given up

being unnecessary. He was the most important witness of the occurrence but

his evidence was withheld by the prosecution, therefore, an adverse inference

can safely be drawn against the prosecution in view of Article 129(g) of the

Qanun-e-Shahadat Order, 1984. In this context, reference is given to the case of

MUHAMMAD RAFIQUE and others vs. THE STATE and others (2010

SCMR 385), wherein, at page 400, the learned Apex Court of the country, has

been pleased to observe as under:-

“……It is well settled that if any party withholds the 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, 1984 can fairly be drawn that if PW
Amir Amir Ali would have been examined, his evidence would
have been unfavourable to the prosecution….”.
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13. There is yet another important aspect of the case. As per FIR lodged by

PW6 Mst.Surriya Bibi and even before the learned trial Court, it is case of both

the eye-witnesses i.e. PW6 Mst.Surriya Bibi and PW7 Ibrar Hussain that the

shot fired by Muhammad Arif(appellant) hit on the chest of Ashfaq(deceased)

while the shot fired by Ghulam Murtaza(appellant) caused injury on his right

flank. Before proceeding with the case any further, it is imperative to quote

injuries on the person of the deceased, noted by PW3 Dr.Zafar-ul-Hassan Shah

who conducted postmortem examination on the body of deceased, which are as

under:-

“1. 1 ½ cm x 1 cm firearm entrance wound on left lateral abdomen, 7

cm from anterior superior iliac spine, 8 cm from anterior middle
line, 30 cm from left armpit.

2. 2 cm x 1 cm firearm exit wound on left lateral abdomen 10 cm

from posterior midline 22 cm below tip of scapula.

Injuries No.1 and 2 are 8 cm apart. Injury No.1 is entry and injury
No.2 is exit.

3. 1 cm x 1 cm firearm entrance wound on left shoulder interiorly 13

cm from neck, 22 cm from left nipple.

4. 1 ½ x 1 ½ cm firearm wound on anterior chest with averted

margin 3 cm left from anterior midline 13 cm from left nipple.

5. 5 cm long, 2 cm width firearm lacerated kissing wound upto

muscle above left scapula 9 cm from injury No.3, 7 cm from neck,
10 cm from posterior midline.

6. 1 cm x 1 cm firearm entrance wound on the base of left index

finger. 4 cm from thumb.

7. 5 cm x 2 ½ cm firearm exit wound on left wrist joint. Note: 6

entrance wound, 7 exit wound.

8. 1 cm x 1 cm firearm entrance wound on right lateral abdomen 15

cm above right anterior superior, iliac spine 22 cm from posterior
midline 28 cm from right armpit.
MR.NO.773/05
CRL.APPEAL NO.1746/05 14

9. 1 ½ x 1 ½ cm firearm exit wound on left anterior abdomen 16 cm

left from umbilicus, 8 cm from lateral midline, 7 cm from left
anterior, superior iliac spine. Note: Wound No.8 is entry and
wound No.9 is exit. Bullet as traversed mesenteric vessels".

10. 3 cm x 3 cm skin deep contused wound on right healed”.

14. As far as injury on the chest of Ashfaq(deceased) is concerned, it has

been attributed to Muhammad Arif(appellant) but we have noted that according

to the Postmortem Report(Exh.PE) and Pictorial Diagram(Exh.PE/1), the

injury on the chest is Injury No.4 which is an exit wound, therefore, the ocular

account in this case is not exactly in line with the medical evidence which is

also yet another factor against the prosecution.

15. So far as recovery of weapon of offence i.e. .30 bore pistol(P4) at the

instance of Muhammad Arif(appellant), which was taken into possession

through memo Exh.PH is concerned, it is the case of the prosecution that both

the appellants and an unknown person made firing at the deceased but we have

noted that no crime empty was taken into possession from the spot, as such, the

recovery of said weapon of offence is of no avail to the prosecution which was

even not sent to the Forensic Science Laboratory for expert opinion.

16. Apart from above, it is the case of PW6 Mst.Surriya Bibi that her

deceased son received fire shot at Point 2 mentioned in the Site Plan(Exh.PF)

and fell down at Point 5 but according to the Draftsman, who appeared as

Aurangzeb(PW4) Point 5 is not visible from Point 4 where PW6 claims that

she was standing.

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CRL.APPEAL NO.1746/05 15

17. Now we would like to take up the motive part of the prosecution case.

This Court has noted that no convincing evidence has been brought on record

by the prosecution regarding motive of the occurrence. Even we are unable to

understand as to under what circumstances, deceased Ashfaq was living as

“Ghar Damaad” and under what circumstances he gave such a big amount of

Rs.7,70,000/- to his “Sala” Muhammad Arif(appellant). The prosecution

evidence in this regard is silent, so, in our view, the motive is not proved. In this

regard we sought guidance from the case of NOOR MUHAMMAD VS. THE

STATE AND ANOTHER (2010 SCMR 97), wherein, at page 101, the

Hon’ble Supreme Court of Pakistan, has been pleased to observe as under:-

“…….Thus the prosecution has failed to prove the motive. It has

been held in the case of Muhammad Sadiq vs. Muhammad Sarwar
(1979 SCMR 214) that when motive is alleged but not proved then
the ocular evidence required to be scrutinized with great caution. In
the case of Hakim Ali vs. The State (1971 SCMR 432) it has been
held that the prosecution though not called upon to establish motive
in every case, yet once it has set up a motive and failed to establish
it, the prosecution must suffer consequence and not the defence. In
the case of Ameenullah vs. State (PLD 1976 SC 629), it has been
held that where motive is an important constituent and is found by
the Court to be untrue, the Court should be on guard to accept
prosecution story”.

18. PW6 Mst.Surriya Bibi has categorically denied the suggestion that her

son Ashfaq(deceased) was involved in any murder/dacoity case but the fact

remains that as per Exh.DB, Ashfaq(deceased) was involved in case FIR

No.265 dated 6.5.2004, under sections 302/395 PPC, Police Station City

Daska, Sialkot.
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CRL.APPEAL NO.1746/05 16

19. The over all effect of the above discussion is that the prosecution case

against the appellants is doubtful in nature and it is unsafe to maintain

conviction on the basis of such type of evidence because it is bounden duty of

the prosecution to prove its case against the accused beyond any shadow of

doubt and the prosecution has to stand on its own legs but in the case in hand

the prosecution has failed to discharge the said onus. It is an axiomatic and

universally recognized principle of law that conviction must be based on

unimpeachable evidence and certainty of guilt and any doubt arising in the

prosecution case must be resolved in favour of the accused. At page 1228 of

the judgment reported as MUHAMMAD KHAN AND ANOTHER VS. THE

STATE (1999 SCMR 1220), the August Supreme Court of Pakistan, has laid

down the following principle:-

“15. It is an axiomatic and universally recognized principle of law that

conviction must be founded on unimpeachable evidence and certainty of
guilt and hence any doubt that arises in the prosecution case must be
resolved in favour of the accused. It is, therefore, imperative for the
Court to examine and consider all the relevant events preceding and
leading to the occurrence so as to arrive at a correct conclusion. Where
the evidence examined by the prosecution is found inherently unreliable,
improbable and against natural course of human conduct, then the
conclusion must be that the prosecution failed to prove guilt beyond
reasonable doubt. It would be unsafe to rely on the ocular evidence
which has been molded, changed and improved step by step so as to fit
in with the other evidence on record. It is obvious that truth and falsity of
the prosecution case can only be judged when the entire evidence and
circumstances are scrutinized and examined in its correct respective”.

It is also settled by the Apex Court of the country that in case of doubt, its

benefit must go to the accused not as a matter of grace but of right. The same

proposition came up for consideration in the case reported as MUHAMMAD

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CRL.APPEAL NO.1746/05 17

AKRAM VS. THE STATE (2009 SCMR 230), wherein, at page 236, the

Hon’ble Supreme Court of Pakistan, held as under:-

“13. The nutshell of the whole discussion is that the

prosecution case is not free from doubt. 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”. (emphasis supplied)

In AYUB MASIH VS. THE STATE (PLD 2002 Supreme Court 1048), at

page 1056, while quoting a saying of the Holy Prophet (PBUH) that ‘mistake

of Qazi(Judge) in releasing a criminal is better than his mistake in punishing

an innocent”, and making reference to the maxim, that ‘it is better that ten

guilty persons be acquitted rather than one innocent person be convicted’,

the learned Apex Court has been pleased to observe as under:-

“……It is hardly necessary to reiterate that the prosecution is

obliged to prove its case against the accused beyond any reasonable
doubt and if it fails to do so the accused is entitled to the benefit of
doubt as of right. It is also firmly settled that if there is an element
of doubt as to the guilt of the accused the benefit of that doubt must
be extended to him. The doubt of course must be reasonable and not
imaginary or artificial. The rule of benefit of doubt, which is
described as the golden rule, is essentially a rule of prudence which
cannot be ignored while dispensing justice in accordance with law.
It is based on the maxim, ‘it is better that ten guilty persons be
acquitted rather than one innocent person be convicted’. In simple
words it means that utmost care should be taken by the Court in
convicting an accused. It was held in The State vs. Mushtaq Ahmad
(PLD 1973 SC 418) that this rule is antithesis of haphazard
approach or reaching a fitful decision in a case. It will not be out of
place to mention here that this rule occupies a pivotal place in the
Islamic Law and is enforced rigorously in view of the saying of the
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CRL.APPEAL NO.1746/05 18

Holy Prophet (PBUH) that the ‘mistake of Qazi(Judge) in

releasing a criminal is better than his mistake in punishing an
innocent”.(emphasis supplied)

20. After considering all the circumstances, this Court is of the considered

view that the prosecution has failed to prove its case against the appellants

beyond any shadow of doubt, therefore, this appeal is allowed, the impugned

judgment is set-aside and the appellants are acquitted from the charge by

extending them the benefit of doubt. They are behind the bars and shall be

released forthwith if not required to be detained in any other case.

Murder Reference is answered in the NEGATIVE and sentence of

death is NOT CONFIRMED.

APPROVED FOR REPORTING

(MUHAMMAD ANWAARUL HAQ) (MANZOOR AHMAD MALIK)

JUDGE JUDGE
*MIAN ASHFAQ*