2013 PLP 2588 (YLR)

MANZOOR AHMAD MALIK, J.

This judgment shall decide Criminal Appeal No.561 of 2008 (Muhammad Riaz alias Maulvi v. The State), P.S.L.A. No.52/09 (Muhammad Asim v. Muhammad Mushtaq and others) and M.R. No.141 of 2008 sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Muhammad Riaz alias Maulvi (appellant), as all these three matters have arisen out of the same judgment dated 26-5-2008 passed by the learned Additional Sessions Judge, Faisalabad, whereby, Muhammad Riaz alias Maulvi (appellant) was convicted under section 302(b), P.P.C., for the murder of Muhammad Shafi (deceased), and sentenced to death with a direction to pay a compensation of Rs.1,00,000 (Rupees one lac only) to the legal heirs of the deceased as provided under section 544-A, Cr.P.C., and in default whereof he was directed to suffer six months' S.I. However, benefit of doubt was extended to four co-accused of the appellant, namely, Muhammad Mushtaq alias Kala, Zulfiqar alias Zulfi, Shahid alias Shahidi and Muhammad Ali and they were acquitted from the charge. Complainant has assailed their acquittal through P.S.L.A. No.52 of 2009 (Muhammad Asim v. Muhammad Mushtaq and others) which has been ordered to be heard along with the main appeal i.e. Criminal Appeal No.561 of 2008 (Muhammad Riaz v. The State).

2. Brief facts of the case, as given by Muhammad Asim complainant (P.W.2) in the Private Complaint (Exh.PC) are that Jamia Masjid Muhammadi is situated near his house whose Qari was on leave and in his absence complainant's father used to recite Azan and also lead Salat/Prayer. On 12-3-2007, complainant's friend Shahbaz Aslam (given up) had come to see him, whereas, his brother Shahzad Sohail (P.W.3) was also sitting with him in his house, when, at about 7-45 p.m., his father left the house for mosque for leading the prayer, when, suddenly, they heard noise, upon which, they hurriedly came out of the house and saw in the light of the bulb that Muhammad Mushtaq while armed with a rifle, Muhammad Riaz alias Maulvi (appellant) armed with a pistol, Zulfiqar alias Zulfi armed with a rifle along with Shahid alias Shahidi and Muhammad Ali were present in the street. Within their view, Muhammad Riaz alias Maulvi (appellant) made a fire with his .30 bore pistol which stamped on the outer side of left upper thigh of the deceased and went through the right flank. The second fire was made by Muhammad Mushtaq alias Kala (acquitted co-accused) which landed on the inner side of right arm of complainant's father who fell on the ground, whereas, accused Zulfiqar alias Zulfi continued making aerial firing with his rifle accused Muhammad Shahid and Muhammad Ali remained present at the spot. As per Private Complaint, thereafter, the accused persons decamped from the spot in a white coloured car. The complainant has further stated in the Private Complaint that they took his father in the injured condition to the Civil Hospital but he died on the way. The complainant has also stated in the Private Complaint that apart from him, the incident was also witnessed by Shahzad Sohail and Shahbaz Aslam. According to the complainant, motive behind the occurrence was that his father Muhammad Shafi (deceased) retired as a Head Security Guard from the State Bank of Pakistan, whereas, respondents Nos.1 to 4 (arrayed as accused persons in the private complaint i.e. Muhammad Mushtaq alias Kala, Muhammad Riaz alias Maulvi, Zulfiqar alias Zulfi and Shahid alias Shahidi), usurped Rs.35,00,000 from his father, upon which, his father got registered a criminal case vide F.I.R. No.226 of 2006, under section 406, P.P.C. at Police Station Rail Bazar, whereas, the said accused persons got registered a criminal case vide F.I.R. No.879 of 2006, under sections 337-A(i)/337-A(ii)/427/148/ 149, P.P.C. at Police Station Sargodha Road but the same was cancelled. The complainant has further stated that to get his money back from the accused persons, his deceased father submitted applications to the Chief Minister Punjab, DPO Faisalabad and DIG Faisalabad and other Departments and on the day of occurrence, the DIG had summoned complainant's father and the said accused persons, upon which, the accused persons extended threat to the complainant father to restrain from pursuing the matter otherwise he shall be done to death. As per complainant, the accused persons, prior to the occurrence, had also extended threats on phone. And on account of the said grudge, the accused has killed his father. The complainant has added in the Private Complaint that qua murder of his father, he got registered a criminal case vide F.I.R. No.231 of 2007, dated 12-3-2007, under sections 302/148/149, P.P.C. at Police Station Sargodha Road, Faisalabad but having dissatisfied with the tenor of investigation, he filed the private complaint in hand.

3. After recording preliminary evidence in the Private Complaint, the accused persons were summoned to face trial who were delivered copies of the documents as envisaged under section 265(c) of the Code of Criminal Procedure. The learned trial Court, after observing the required legal formalities, as prescribed under the law, framed a charge against the appellant and his acquitted co-accused on 13-9-2007 under sections 302/148/149, P.P.C., to which, they pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution has produced 4 witnesses, during the trial, whereas, Muhammad Aslam A.S.-I., Muhammad Nawaz, Shaukat Ali S.-I., Mansoor Sadiq S.-I., Akbar Ali Nizami, Draftsman, Zahid Iqbal and Najamul Hassan were examined as CW1 to CW7 and Muhammad Nazeer, Haji Muhammad Ashiq, Muhammad Javaid Iqbal and Sajjad Habib appeared as DW1 to DW4, before the learned trial Court. The appellant, along with his co-accused, was examined under section 342 of the Code of Criminal Procedure wherein he has pleaded innocence. However, he did not opt to depose on Oath as provided under section 340(2) of the Code of Criminal Procedure. In an answer to the question "why this case against you and why the P.Ws. have deposed against you", Muhammad Riaz alias Maulvi (appellant), in his statement recorded under section 342 of the Code of Criminal Procedure, relied upon the statement of his co-accused Muhammad Mushtaq alias Kala (acquitted co-accused) relevant answer whereof reads as under:-- "It was a blind and unseen murder. After the occurrence, the complainant party informed the police through 15 Rescue that unknown persons had murdered Muhammad Shafi deceased having enmity with him. Although the deceased lodged an F.I.R. against me alongwith other co-accused except Muhammad Ali in which the allegations were levelled that we have misappropriated the amount of Rs.30,00,000 of the deceased Muhammad Shafi. The case bearing No.226/06, under section 406, P.P.C. was registered, which was cancelled by the Investigating agency as it was found false. After the alleged occurrence, the complainant picked my name along with other co-accused from the above said F.I.R. No.2236 of 2006 in the same formation and methodically on the basis of suspicion, but when the investigation was being conducted, it was confirmed that I along with other co-accused were not involved in this case, then the complainant party started demanding Rs.35,00,000 as alleged in the F.I.R.No.226". . However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellant, as detailed above.

5. Canvassing acquittal, learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that in the F.I.R. which was registered on the basis of a written application of the complainant it was his case that on hearing sound of firing he (complainant) along with others ran towards the mosque and found that his father was lying on the stairs, whereas, the appellant along with his acquitted co-accused ran away from the spot in a white coloured car; that in the F.I.R. the complainant has not mentioned that either the appellant or his co-accused were armed with any weapon and even no injury was attributed to the appellant or his acquitted co-accused; that the investigation of the case was carried out by Shaukat Ali S.-I. (CW3) and Mansoor Sadiq S.-I. (CW4) who found the appellant and all the remaining co-accused mentioned in the F.I.R. innocent and even they were not arrested by the police; that it was thereafter that the complainant filed the Private Complaint in hand wherein the complainant has totally changed his version by stating that Muhammad Riaz alias Maulvi (appellant) made a fire with his .30 bore pistol which stamped on the outsider side of left upper thigh of the deceased and went through the right flank, whereas, the second fire was made by Muhammad Mushtaq alias Kala (acquitted co-accused) which landed on the inner side of right arm of complainant's father who fell on the ground and Zulfiqar alias Zulfi continued making aerial firing with his rifle and accused Muhammad Shahid and Muhammad Ali remained present at the spot; that the complainant was duly confronted with his previous statement and the improvements made by him were brought on the record; that similarly, the other eye-witness, namely, Shahzad Sohail (P.W.3), who is real brother of the complainant, also improved his statement while appearing before the learned trial Court and he too was confronted with his previous statement and the dishonest improvements made by him were brought on the record; that there is conflict between the ocular account and the medical evidence because in the F.I.R. no specific injury was attributed to the appellant and any of his acquitted co-accused and even there was no mention of firing at the deceased, whereas, in the Private Complaint, Muhammad Riaz alias Maulvi (appellant) was attributed a specific firearm injury on the outsider side of left upper thigh of the deceased which went through the right flank, whereas, Muhammad Mushtaq alias Kala (acquitted co-accused) was attributed an injury on the inner side of right arm of complainant's father but the doctor, who conducted the postmortem examination on the dead body of the deceased and prepared Postmortem Report, has conceded that both the injuries could be the result of one fire shot and even it is clear from the pictorial diagram of the deceased that both the injuries are the result of one fire shot; that the motive set up in the F.I.R. was that the appellant and his co-accused usurped Rs.35,00,000 of the deceased who got registered a criminal case against them but the complainant has admitted in his cross-examination that the said case was cancelled and thereafter no private complaint was filed by the deceased; that the motive is a double edged weapon and could also be the reason for false implication; that in such like situation independent corroboration to the statements of the interested and inimical witnesses is required which is very much lacking in this case as nothing was recovered either from the appellant or from his acquitted co-accused and they were declared innocent by the police during investigation; that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and is entitled to acquittal.

6. While opposing this appeal, the learned D.P.-G., assisted by the learned counsel for the complainant, contends that there was no delay in reporting the matter to the police because the complainant reported the incident to the police within 25 minutes of its happening; that as complainant's father was done to death and he was in state of shock, therefore, in such a situation he could not properly mention the description of firearms with which the appellant and his co-accused were carrying at the time of incident and even could not properly attribute injuries to them but he clarified description and attribution of firearm injuries in the Private Complaint which fall within the category of clarification and not dishonest improve-ments; that presence of the complainant and Shahzad Sohail (P.W.3) at the spot at the relevant time of occurrence, cannot be doubted by any stretch of imagination as the incident took place close to their house, therefore, their presence at the spot is quite natural and probable; that there was no justification for false implication of the appellant and his co-accused in this case; that the police dishonestly declared the appellant and his co-accused innocent during the course of investigation which compelled the complainant to file the Private Complaint; that there is no conflict between the ocular account and the medical evidence as there are two injuries on the person of the deceased and the doctor gave dishonest concession to the appellant; that the case got registered by the father of the complainant but the same was cancelled by the police in connivance with the accused persons whereafter complainant's father submitted applications in the police hierarchy and the Chief Minister of the Punjab; that the prosecution witnesses had no enmity with the appellant to falsely depose against him; that the ocular account in this case is fully supported by the medical evidence and the motive; that, even otherwise, in such like cases substitution is a rare phenomenon and that the prosecution has proved its case against the appellant beyond any shadow of doubt, therefore, the appeal filed by the appellant against his conviction and sentence is liable to be dismissed. So far P.S.L.A. No.52 of 2009 (Muhammad Asim v. Muhammad Mushtaq etc.) is concerned, learned counsel for the complainant contends that all the acquitted co-accused persons of the appellant, especially, Muhammad Mushtaq alias Kala (acquitted co-accused) fully participated in the occurrence who was attributed specific firearm injury on the person of the deceased which was supported by the medical evidence, therefore, in the given circumstances, it is a fit case for grant of leave and consequent conviction of the acquitted co-accused/respondents therein as the learned trial Court had no justification to acquit them.

7. We have heard learned counsel for the parties, have given consideration to their respective arguments and have also scanned the record with their able assistance.

8. So far as argument of the learned counsel for the appellant that the appellant was declared innocent during the course of investigation conducted by Shaukat Ali, S.-I. (CW3) and Mansoor Sadiq S.-I. (CW4) is concerned, while appearing before the learned trial Court Shaukat Ali S.-I. (CW3) has stated in his examination-in-chief (page 40 of the Paper Book) that "I conducted the partially investigation till 31-3-2007, then I transferred to Police Lines, on 1-4-2007", whereas, Mansoor Sadiq S.-I. (CW4) has stated in his examination-in-chief(page 45 of the Paper Book) that "I summoned the parties accordingly and conducted the investigation and found the accused persons innocent on the basis of evidence available on the file. My investigation was verified by the D.S.P Circle and thereafter I was transferred". But it is now settled by the Hon'ble Supreme Court of Pakistan that opinion of the police qua guilt or innocence of the accused persons is not admissible in evidence and the case shall be decided on the basis of evidence available on the record. In this regard reliance is placed on a judgment of the Hon'ble Supreme Court of Pakistan in the case of MUHAMMAD AHMAD (MAHMOOD AHMED) AND ANOTHER V. THE STATE (2010 SCMR 660), wherein, at page 676, while sending copies of the judgment to the Registrars of all the four High Courts in the country for its circulation amongst all the learned Presiding Officers within their respective jurisdictions for their guidance and compliance, the learned Apex Court has been pleased to hold as under:-- "

37. Before we part with this judgment, we would like to bring on record our concern and our displeasure about the manner in which the trial in question had been conducted. The learned trial Judge allowed matters to come on record which were not admissible in evidence. We were pained to find that during the course of cross-examination of prosecution witnesses and the examination of defence witnesses, questions were allowed soliciting the opinion of the police officers about the guilt or innocence of some of the accused persons under trial. It appears to us that not only the learned cross-examiner but even the learned trial Judge was ignorant of even the basic provisions of law of evidence which prescribed that the witnesses could only state facts i.e. what they had themselves seen or heard or perceived through any of their senses and that the opinions or beliefs or impressions of third person were, as a general rule, irrelevant and, therefore, inadmissible. As a necessary exception to this rule what had been made admissible in evidence, besides the facts, were opinions but only of experts and that also on a point of foreign law or of science, or art, or as to the identity of handwriting or finger impressions (section 59 of the Qanun-e-Shahadat Order, 1984). It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such-like impressions of the Investigating Officers to creep into the evidence was not curbed then the same could lead to disastrous consequences. If an accused person could be let off or acquitted only because the Investigating Officer was of the opinion that such an accused person was innocent then why could not, on the same principle, another accused person be hanged to death only because the Investigating Officer had opined about his guilt. It may be added that the provisions of sections 155, 156, 157 and 174 of the Criminal Procedure Code permit a police officer only to investigate a case. 'Investigation' stands defined by the provisions of section 4(1)(l) of the said Code in the following terms:-- "Investigation includes all the proceedings under this Code for the Collection of Evidence conducted by a police officer ". (emphasis and underlining has been supplied). This then clearly indicates that the job of the Investigating Officer is only to collect evidence and to place the same before the compe-tent Court. Therefore, whatever expertise, if at all, could be claimed by an Investigating Officer, would be vis- -vis his field of operation, namely, collection of evidence. Could his opinion ever become admissible in the medico-legal matters which is the area reserved for medical doctors or with respect to archeological matters to determine whether an item was or was not an antique or about hand writing or foot-prints or finger-prints or to find out whether a painting was the actual work of a renowned painter or a fake? If the answer be in the negative, which it has to be, then how come he could be considered an expert and his opinion becoming admissible vis- -vis the guilt or innocence of an accused person? It may be added that in the last 110 years since the Code of Criminal Procedure had been in existence in its present form, not once had it been authoritatively declared that an Investigating Officer was an expert in the matter of determining the guilt or innocence of accused persons whose opinion was admissible for the purpose, under the law of evidence. The prohibition contained in section 161, Cr.P.C. and in section 172 of the said Code regarding inadmissibility of the statements recorded by an Investigating Officer under the said section 161 or the case diaries prepared by him under the said section 172, would further clarify the said proposition. Reference may also be made to a judgment of the Lahore High Court, authored by one of us which is reported as Haji Muhammad Hanif v. The State (PLD 1992 Lahore 214)". (emphasis supplied).

9. This unfortunate incident, wherein, complainant's father Muhammad Shafi (deceased) lost his life, as per F.I.R. (Exh.CW1/A), took place on 12-3-2007 at 7-45 p.m. in the area of Muhammad Khan Town, Street No.7 within the jurisdiction of Police Station Sargodha Road, District Faisalabad, the matter was reported to the police through a written complaint (Exh.PA) submitted by Muhammad Asim complainant (P.W.2) at 8.10 p.m., the formal F.I.R. was registered at 8-40 p.m., whereas, distance between the place of occurrence and the Police Station is 3- kilometers.

10. In the F.I.R., case of the complainant was that on the day of occurrence i.e. 12-3-2007 at about 7-45 p.m., his father Muhammad Shafi (deceased) went to the adjacent mosque as Qari of the mosque was on leave and complainant's father was reciting Azan and leading the prayers. After about two minutes, he heard a sound of fire, upon which, he along with Shahzad, Qamar Shahbaz, Aslam who came to meet him ran towards the mosque and found that his father was fallen at the gate of the mosque. Accused persons, namely, Muhammad Mushtaq alias Kala (acquitted co-accused), Muhammad Riaz alias Maulvi (appellant) and acquitted co-accused persons, namely, Zulfiqar Ali alias Zulfi, Muhammad Shahid alias Shahidi and Muhammad Ali decamped from the spot in a white coloured car while making fire.

11. Thereafter, Muhammad Asim complainant (P.W.2) filed a Private Complaint (Exh.PC) as he was dissatisfied with the police investigation because all the accused persons nominated by him in the F.I.R. were declared innocent and were not arrested. In the Private Complaint (Exh.PC), case of the complainant was that Jamia Masjid Muhammadi is situated near his house whose Qari was on leave and in whose absence complainant's father used to recite Azan and was also leading Salat/ Prayer. On 12-3-2007, complainant's friend Shahbaz Aslam came to see him, whereas, his brother Shahzad Sohail (P.W.3) was also sitting with him in his house, when, at about 7-45 p.m., his father left the house for mosque for leading the prayer, when, suddenly, they heard noise, upon which, they hurriedly came out of the house and saw in the light of the bulb that Muhammad Mushtaq while armed with a rifle, Muhammad Riaz alias Maulvi (appellant) armed with a pistol, Zulfiqar alias Zulfi armed with a rifle along with Shahid alias Shahidi and Muhammad Ali were present in the street. Within their view, Muhammad Riaz alias Maulvi (appellant) made a fire with his .30 bore pistol which stamped on the outsider side of left upper thigh of the deceased and went through the right flank. The second fire was made by Muhammad Mushtaq alias Kala (acquitted co-accused) which landed on the inner side of right arm of complainant's father who fell on the ground, whereas, accused Zulfiqar alias Zulfi continued making aerial firing with his rifle accused Muhammad Shahid and Muhammad Ali remained present at the spot.

12. We have noted that in the F.I.R., Muhammad Asim complainant (P.W.2) has not stated that the appellant or his acquitted co-accused were armed with any weapon and even he did not attribute any injury either to the appellant or his acquitted co-accused. So much so, no injury on the person of Muhammad Shafi (deceased) was mentioned in the F.I.R. But surprisingly, while appearing before the learned trial Court, the complainant has changed his stance by stating that Muhammad Riaz alias Maulvi (appellant) fired with is pistol which landed upon left thigh outer side of his father which fire went through and through from the right flank. Then Muhammad Mushtaq ailas Kala (acquitted co-accused) made a fire with his rifle which landed on the right arm of his father on inner side who fell on the ground. Whereas, Zulfiqar Ali alias Zulfi (acquitted co-accused) was attributed the role of making aerial firing and Shahid and Muhammad Ali were shown to be present at the spot. Similar is the case of Shahzad Sohail (P.W.3). Both these witnesses were confronted with their previous statements and the improvements made by them were brought on the record through their respective cross-examinations. Relevant portion of the statement of Muhammad Asim complainant (P.W.2) reads as under:-- "In the said written application Exh.PA, it was mentioned that I along with the P.Ws. was present in our home, my father had gone to the mosque and after two minutes, we heard the noise of fire shot, then we rushed at the place of occurrence. I also got recorded in Exh.PA that when we reached there, my father was lying near the gate of the mosque. I also got recorded in the Exh.PA that when we reached the spot, the accused persons present in the Court fled away while boarding in the white coloured car. I did not mention in the Exh.PA the respective weapons of offence with any accused. Volunteered that I missed this fact due to sudden death of my father, caused by the accused persons. It is incorrect to suggest that my volunteered statement is false. It is correct that I have not mentioned in Exh.PA that suddenly we heard hue and cry and soon after we rushed outside the house and saw in the light of bulb that Mushtaq accused while armed with rifle, Zulfiqar accused armed with rifle, Riaz armed with pistol and Shahid along with Muhammad Ali accused were present there. In our view, Muhammad Riaz fired with his pistol, which landed upon left thigh outer side of my father and went through and through from right flank. Then accused Mushtaq made fire with his rifle which landed on the right arm of my father on inner side and he fell down, whereas Zulfiqar accused was making aerial firing and remaining two accused remained present there". (Page 30-C of the Paper Book) Shahzad Sohail (P.W.3) has stated as under:-- "It is correct that I had not stated in my statement under section 161, Cr.P.C. that suddenly we heard hue and cry and hurriedly we all three rushed outside the house and saw in the light of bulb that Mushtaq and Zulfiqar accused present before the Court armed with rifle, Shahid along with Muhammad Ali accused present before the Court empty handed and Riaz present in Court present there. Suddenly, Muhammad Riaz accused fired with his pistol, which landed upon left thigh outer side of my father and went through and through from right flank. Thereafter accused Mushtaq made fire with his rifle which hit on the right arm of my father on inner side and he fell down, whereas Zulfiqar accused was making aerial firing and remaining two accused remained present there. I along with Shahbaz and Asim witnessed the occurrence. I have stated in my statement under section 161 Cr.P.C. that I along with the P.Ws. was present in our house, my father had gone to the mosque and after two minutes, we heard the noise of fire shot, then we rushed at the place of occurrence and we saw that my father is lying near the gate of mosque. I also stated in my said statement that when we reached the spot, the accused persons present in the Court fled away, while boarding in the white coloured car. I did not mention the respective weapons of offence with any accused in my statement recorded by police". (pages 32 and 33 of the Paper Book) Therefore, in the above scenario it is unsafe to place reliance on the statements of both these interested witnesses which are full of dishonest improvements. 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 v. 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:-- " ..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 v. 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".

13. Medical evidence in this case has been furnished by Dr. Muhammad Naeem (P.W.4), who, on 13-3-2007 at about 9-45 a.m. conducted the postmortem examination on the dead body of Muhammad Shafi (deceased) who prepared Postmortem Report (Exh.PF) and Pictorial Diagram (Exh.PF/1). He noted following injuries on the person of the deceased:-- "1-A. A firearm wound of entry 1 cm x 1 cm in size with inverted and abraded margins on lateral side of left upper thigh, 10 cm below left iliac crest and 23 cm from anterior midline. 1-B. A firearm wound of exit 3 x 1 cm in size on lateral side of right side of abdomen, 6 cm above to right iliac crest and 19 cm from umbilicus.

2. A firearm wound of entry 3 x 2 cm in size on inner aspect of right forearm 7 cm below right elbow and 20 cm above right wrist joint, on dissection, right radius and ulna fractured and a metallic projectile was recovered from the muscles of right forearm near entry wound". However, in his cross-examination, the doctor has stated that "Injury No.2 does not have the exit wound and inverted margins too. It is possible that the bullet entered from Injury No.1-A and exited from Injury No.1-B, can be entered into Injury No.2. Injury No.1-A and No.1-B and Injury No.2 can be the result of single fire". Moreover, it is clear from the Pictorial Diagram (Exh.PF/1) that all the injuries on the person of Muhammad Shafi (deceased) were the result of one fire shot, whereas, both the witnesses have attributed one fire shot each to Muhammad Riaz alias Maulvi (appellant) and Muhammad Mushtaq alias Kala (acquitted co-accused), therefore, ocular account is also in conflict with the medical evidence available on the record.

14. So far as motive is concerned it has been alleged by the complainant both in the F.I.R. and the Private Complaint that the appellant and acquitted co-accused usurped heavy amount of complainant's father, upon which, a criminal case was registered against the accused persons but the complainant has admitted in his cross-examination that the said criminal case was got cancelled by the police prior to this incident. Even otherwise, motive is a double edged weapon and could be the reason for false implication and at the same degree as it could be the reason for commission of crime. Moreover, it is only a supportive piece of evidence, relevant only if primary evidence i.e. ocular account inspires confidence which is not the situation in the instant case.

15. As far plea of the appellant which he took in his statement recorded under section 342 of the Code of Criminal Procedure by adopting the statement of Muhammad Mushtaq alias Kala (acquitted co-accused), is concerned it is stated that as the prosecution has failed to discharge the onus of proving the case rested upon its shoulders which is full of doubts, therefore, in such a situation, there is no need to discuss the defence plea.

16. It is a settled and universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. In AYUB MASIH V. 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 of our country 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 v. 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 Holy Prophet (P.B.U.H.) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". (emphasis supplied)

17. After considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, Criminal Appeal No.561 of 2008 (Muhammad Riaz v. The State) is allowed, the conviction and sentence awarded to Muhammad Riaz alias Maulvi (appellant) through the impugned judgment is set aside and he is acquitted from the charge by extending him benefit of doubt. He is behind the bars and shall be released forthwith if not required to be detained in any other case.

18. For afore-referred reasons and in view of the fact that the case of all the four acquitted co-accused of the appellant, namely, Muhammad Mushtaq alias Kala, Zulfiqar alias Zulfi, Shahid alias Shahidi and Muhammad Ali (respondents in the P.S.L.A.) was on better footing than that of the appellant, we do not find any substance to grant leave in P.S.L.A. No.52 of 2009 (Muhammad Asim v. Muhammad Mushtaq and others) which is hereby dismissed. Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED. HBT/M-185/L Appeal allowed.