2020 P Cr (PLP)

RAZA ALI KHAN, J.

The above titled appeals, filed against judgment passed by the learned District Criminal Court, Rawalakot dated 18.01.2008, raise common questions of facts and law and arise out of common judgment, hence, were heard together and are decided through this single judgment. Facts forming background of the captioned appeals are that Muhammad Shakeel Khan, complainant filed a written application Ex.PB at Police Station Rawalakot on 19.11.2003 stating, therein, that on 26.09.2003 his nephew Saqib on of Abdul Hafeez aged 13 years caste Sudhan resident of Jandali went to perform Juma prayer at Jamia Masjid Jandali Gali bazaar. The complainant was at village Motari Khaigala in a funeral ceremony and when at 5:30 p.m. reached back to home, he saw people were gathered there and Saqib had died. On query, the inmates told him that Saqib died due to fall down from lenter. This fact was told to the mother of the complainant by Muhammad Nadeem son of Muhammad Hanif caste Sudhan resident of Jandali at her home. The body of deceased Saqib was buried on 27.09.2003. Later on, brother of the complainant Abdul Hafeez (father of Saqib) told him that Saqib did not die due to falling from lenter rather he was murdered and Abdul Hafeez was informed by some unknown person through telephone, whereupon, a meeting of the respectable of family was held but reality could not be constructed. When many people were sitting in the house of the complainant for condolence, Waleem son of Muhammad Hanif disclosed that a fight happened between Waqar son of Muhammad Nazir, Saleem son of Muhammad Ilyas, and Saqib deceased and he was also in the quarrel, resultantly Saqib was murdered. On this statement, the elders of the family again convened a meeting and suggested that the matter be reported to the police. Whereupon, the complainant filed an application before District Magistrate Poonch Rawalakot for exhumation proceedings and postmortem. On this application, exhumation and postmortem were conducted. It was stated that during query by complainant Shakeel, it came to his knowledge that Saqib has been murdered with the connivance of Muhammad Ilyas father of Muhammad Saleem, Muhammad Nadeem cousin of Saleem and Zahid son of of Muhammad Arif uncle of Saleem. Thereafter on 06.10.2003 complainant Muhammad Shakeel filed another application before District Magistrate Rawalakot stating, therein, that Saqib son of Muhammad Hafeez was in fact murdered however, by showing his death as an accident his body was buried on 27.09.2003 at Jandali graveyard and requested that as this is a murder therefore, the body may be exhumed and postmortem of the deceased may be conducted for the ends of justice. On this report FIR No.297/2003 `Ex.PN' was registered at Police Station Rawalakot in the offence under section 302, A.P.C. on 18.11.2003. The police after investigation submitted incomplete Challan on 06.12.2003 before District Criminal Court Poonch and challaned accused Waqar son of Muhammad Nazir and Waleem son of Muhammad Hanif under sections 302/34, A.P.C. Thereafter, complete challan was presented before the trial Court on 05.03.2004 under sections 322/34, A.P.C. The statements of the accused under section 265-D were recorded on 12.06.2004, wherein, they pleaded not guilty, whereupon, the prosecution was directed to lead evidence in support of the allegation. At the completion of prosecution evidence, the statements of the accused under section 342, Cr.P.C. were recorded on 31.03.2007, they again claimed to be innocent and got recorded their statements on Oath under section 340, Cr.P.C. and refused to produce evidence in defense. At the conclusion of the trial the learned District Criminal Court Rawalakot convicted accused Waqar and keeping in view his tender age and on the ground of previously non-convict, he was awarded the sentence of Diyat Rs.7,72.992/- under section 302(b), A.P.C., while accused Waleem was acquitted of the charge by extending benefit of doubt vide impugned judgment dated 18.01.2008, hence, Appeal No.06/2008 for setting-aside the impugned judgment whereas, Appeal No.07/2008 for enhancement of sentence awarded to accused Waqar Ahmed and conviction of accused Muhammad Waleem. Sardar Muhammad Suleman Khan, learned counsel for the convict-appellant, Waqar Ahmed argued that the alleged occurrence took place on 26.09.2003 whereas, the matter was reported to the Police on 19.11.2003 after 2 months. The learned counsel further argued that the body was buried on 27.09.2003 by treating the death as an accident and as per prosecution case thereafter, some unknown person informed Abdul Hafeez, (father of deceased) who works in Saudi Arabia, through telephonic call that Saqib did not die accidently rather he was murdered, however, the informer has not been listed in the challan as prosecution witness, this fact alone makes the whole prosecution story doubtful. The learned Advocate contended that after exhumation, postmortem was conducted however, cause of death was not determined by the Doctor, whereupon, medical board was constituted who again conducted the postmortem and declared the cause of death as injuries at the head of deceased and for not providing first-aid in time, therefore, the medical reports are contradictory to each other and are not reliable. The learned Advocate further contended that in this case the Police submitted two challans, one in the offence under section 322/34, A.P.C. and without any further investigation subsequent in the offence under section 302/34, A.P.C., that fact also makes the investigation proceedings as doubtful. He also stated that there is no eye-witness of the occurrence and the prosecution case depends upon the circumstantial evidence especially the alleged extra-judicial confession, which is not corroborated by any convincing evidence. The learned Advocate stated that in the case of circumstantial evidence very strong evidence is required to prove the guilt of an accused and the Court has to consider extra-judicial confession much carefully as being weak type of evidence. He further stated that the statements relied upon by the prosecution cannot be termed as confession because in those statements the accused have not confessed that they murdered the deceased. Sardar Suleman Khan, the learned Advocate submitted that no independent witness has been produced despite the fact that the alleged occurrence took place in a mosque after the prayer of juma and it was admitted by Muhammad Maroof, prosecution witness that at the time of fight between the accused and deceased many people were standing there. He further added that all the prosecution witnesses are hearsay witnesses hence, cannot be relied upon for conviction of the accused. The learned Advocate also submitted that initially Saleem was arrested however, subsequently in order to involve the accused in the case, introduced him as witness thus, being co-accused his statement against the other accused is not reliable. He finally submitted that the prosecution miserably failed to prove its case however, the Court below illegally convicted the accused Waqar Ahmed through the impugned judgment which is liable to be set aside. The learned Advocate in support of his submissions placed reliance on the following case laws:

1. Wazarat Hussain v. Nazir Akhtar and another [2010 PCr.LJ 1567].

2. Raja Muhammad Asghar v. State and another [2006 YLR 1599].

3. Nazim-ud-Din v. The State [2010 PCr.LJ 1730].

4. Wasim v. The State [2003 YLR 1798]. Sardar Aftab Hameed, the learned Advocate appearing for accused Waleem supported the impugned judgment to the extent of acquittal of accused Waleem and submitted that the appeal against Waleem is not competent because the appellant Muhammad Shakeel is uncle of deceased Saqib who is not his legal heir and in case of Qisas only a legal heir or state can file appeal for conviction or enhancement of sentence hence, on this sole ground the appeal filed by Muhammad Shakeel, complainant is liable to be dismissed. He contended that as the accused respondent Waleem has been acquitted of the charge by the trial Court, therefore, has double presumption of innocence and for recalling acquittal order passed by a Court of competent jurisdiction, some solid grounds are required, which were not available to the prosecution. The learned Advocate in support of his submissions place reliance on the following case laws: --

1. Muhammad Malik v. Karam Elahi and another [2011 SCR 431].

2. Gul Hussain and another v. The State [2010 PCr.LJ 321].

3. Janoo alias Jan Muhammad v. The State [2010 PCr.LJ 110].

4. Abdul Razzaq and another v. The State and another [2011 YLR 1580].

5. Muhammad Zubair v. The State [2010 SCMR 182].

6. Wazarat Hussain v. Nazir Akhtar and another [2010 PCr.LJ 1567]. Sardar Javed Nisar, learned Advocate appearing for the complainant vehemently argued that place of occurrence i.e. Veranda of Mosque, time of occurrence, presence of accused at the place of occurrence and fight between the accused and deceased is admitted in this case. The learned Advocate further argued that Maroof and Saleem are eye-witnesses of the occurrence who fully supported the prosecution story during their Court statements. The learned Advocate submitted that the prosecution case is further strengthened from extra-judicial confession of the accused and that extra judicial confession of the accused is proved through the witnesses in whom presence they made confessional statements, which was recorded by Irshad Khan who also appeared before the Court and got recorded his statement. The learned Advocate stated that the Doctor Zubair who conducted postmortem of the deceased was close relative of accused party and after keeping the report pending for more than 2 months he did not determine the cause of death with mala fide intention whereupon, a medical board was constituted who after postmortem reported that the cause of death was two injuries at the head of the deceased, therefore, the medical evidence fully supports the prosecution version. Sardar Javed Nisar, the learned Advocate for the complainant stated that the case was challaned under section 302, A.P.C. however, at the time of filing complete challan some one tampered it and by overwriting entered 322 in place of 302, A.P.C. which appears on the face of record. The learned Advocate contended that the enmity between the deceased and accused due to a dog, is proved and threatening of the accused to the deceased for murder on different occasions is also proved. The learned Advocate stated that it is amply proved from the evidence that the accused due to enmity hit the deceased fist blows who fell down and died due to those injuries, therefore, the Court below was duty bound to convict them and award them maximum punishment. He also submitted that the statement of Doctor Ilyas and Naseer Shaikh makes it clear that the deceased died due to injuries at his head therefore, the case of prosecution is proved beyond any shadow of doubt. The learned Advocate placed reliance on following case law:-

1. Suleman Khan v. Muhammad Hanif and others [1993 SCR 301].

2. Amal Sherin and another v. The State [PLD 2004 Supreme Court 371].

3. Muhammad Latif Butt v. Shehtab and 4 others [2009 SCR 432].

4. Rehmat Ali v. Samundar Khan and another [2009 SCR 252].

5. Muhammad Tasleem and another v. The State and another [2014 SCR 893].

6. Saeed Gul v. The State [PLD 1992 Peshawar 40].

7. Muhammad Shafique alias Cheela and another v. The State [1998 MLD 299].

8. Mahmood Ahmed and others v. The State and others [2007 PCr.LJ 1173].

9. Khan Muhammad and another v. The State [1994 PCr.LJ 1522]. In 1993 SCR 301 the Hon'ble Supreme Court of Azad Jammu and Kashmir observed as under:- "The learned counsel for the petitioner, Syed Muhammad Siddique Shah Bokhari, has referred to section 417, Cr.P.C., that only the Government could appeal against an order of acquittal and it is only when the Government declines to do so, the complainant can seek leave to appeal from this Court." In PLD 2004 Supreme Court 371 the Hon'ble Supreme Court of Pakistan held as under:- "The trial Court was not justify to reject eye-witness account furnished by complainant Khan Amir P.W. and Hakim Gul P.W. merely on the ground of being related and interested particularly when appellants had not been able to establish on record that the above mentioned witnesses and nourished any grudge or ill-will against them and deposed with a specific motive. On this aspect, reliance can be made on the case Saeed Akhtar and others v. The State (2000 SCMR 383) wherein this Court has held that mere relationship of the witnesses with the accused would not detract from their veracity who had absolutely no motive of their own to involve the accused ....... Conviction in a criminal case can be recorded even on the statement of the eye-witnesses alone without there being any corroboration provided their evidence inspires confidence." In 2009 SCR 432, the Hon'ble Supreme Court of Azad Jammu and Kashmir pleased to observe as under: "No doubt the conviction can be recorded on the basis of circumstantial evidence in the absence of direct evidence because a man can tell lie but circumstance never tell lie. The conviction can only be based on circumstantial evidence, if it excludes, all hypothesis of innocence of the accused. The circumstantial evidence must be incompatible with that of innocence of the accused." In 2009 SCR 252, the Hon'ble Supreme Court of Azad Jammu and Kashmir pleased to held as under: "Ordinarily an illiterate village person is not expected to tell the exact time of the events. The incident is of 27th of November, normally sun sets about 5 p.m. in the end of November. The witnesses have stated that the dead body was recovered around evening time, anyone of the witnesses has not stated the exact time and we should not expect from an illiterate person to tell the accurate timing of registration of FIR and recovery of dead body. It appears doubtful whether FIR was registered at 3 p.m. or some time later, but it does not destroy the fact that dead body was recovered from the accused house." In 2014 SCR 893, the Supreme Court of Azad Jammu and Kashmir laid down as under: "Although, law does not bar to convict an accused on the basis of circumstantial evidence and even a capital punishment can also be awarded, provided that in a case resting on a circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt of accused. However, the circumstantial evidence can only form basis of conviction when it is incompatible with the innocence of accused or the guilt of any other person and in no manner be incapable of explaining upon any reasonable hypothesis except that of the guilt of accused and if no link in the chain found missing, the circumstantial evidence can be safely relied and conviction could be recorded on the basis of that." In PLD 1992 Peshawar 40, a Division Bench of Peshawar High Court at 50 of the judgment observed as under: "Further the absence of motive will not deter the Courts to award the normal sentence of death as provided under section 302, P.P.C." In 1998 MLD 299, the Federal Shariat Court held as under: "The value of a joint confession is assessed at a very low ebb. In fact there are reported judgments that joint confession is no confession." In 2007 PCr.LJ 1173, the Shariat Court of Azad Jammu and Kashmir opined as under: "It is admitted principle of criminal law that prosecution is not bound to produce all witnesses cited in the calendar of challan but the defence can avail opportunity of producing these witnesses if in its opinion they do not support the prosecution version." In 1994 PCr.LJ 1522, a Division Bench of the Lahore High Court has observed as under: "

11. On the other hand the motive as set up by Shahnawaz (P.W.5) that a day before the occurrence there was altercation between the deceased and the appellants where the appellants threatened the deceased to avenge the insult and consequently they caused the murder of the deceased on the following day appears to be correct for the reasons that it has duly been supported by the testimony of P.W.5 to P.W.7 against whom no ill-will on their behalf towards the appellants had been brought on the record." Sardar Javed Naz, the learned AAG owned the arguments advanced by Sardar Javed Nisar, the learned counsel for the complainant. We have heard the learned Advocates for the parties and gone through the record of the case minutely as well as case law cited by the learned Advocates for the parties. Firstly, we would like to resolve the objection raised by the learned counsel for accused Muhammad Waleem regarding competency of Appeal No. 07/2008 filed by complainant Muhammad Shakeel. It is an admitted position that Muhammad Shakeel complainant is paternal uncle of the deceased Saqib, hence, is not legal heir/ Wali of the deceased. In case titled "Muhammad Mallik v. Karam Elahi and another" reported as 2011 SCR 431, the Hon'ble Supreme Court of Azad Jammu and Kashmir observed that a person who is entitled to claim Qisas is a Wali and if there is no Wali then the government shall be termed as legal heir of the deceased as Wali. It was further observed that complainant or a witness does not fall within the definition of Wali and an appeal against an acquittal order or for enhancement of the sentence, in the case of Qisas can only be filed by a legal heir/Wali of the deceased or the State. The relevant observations recorded in paras 20, 21 and 23 are reproduced as under:

20. the definition of word 'Wali' is clear on the subject that person who is entitled to claim Qisas is a Wali section 305, A.P.C., postulates that in case of murder the heirs of victim, according to his personal law, shall be the 'wali' and if there is no wali then Government is termed as legal heir of the deceased who shall be his wali. This is further elaborated in section 309, A.P.C., where right of waiver or 'Afw' of Qisas in case of qatl-i-amd shall vest in adult sane wali who may at any time can waive his right of qisas without compensation. The right of legal heir is further strengthen from the provisions of this section, which lays down that if the right of 'Qisas' vests in the government or in a minor or insane, it cannot be waived. The right of all the legal heirs/ walis is also entitled to compound the `Qisas' of murder and entitled for compounding `Qisas' against compensation. The right of 'wali' is further recognized in section 313, A.P.C. where the right of `Qisas' vests in the wali and when there is no wali, the government has the right of Qisas. The right of wali/legal heir is recognized in section 345(2), Cr.P.C., where the offence relating to 'Hadood' and `Qisas' can be compounded by him. A person who is complainant or a witness does of fall in the definition of wali and cannot be termed as 'aggrieved'.

21. From the above provisions it can safely be held that in case of qisas a legal heir/wali apart from the state is competent to file an appeal from the acquittal or for enhancement of the sentence.

23. From the survey of case law, it can safely be concluded that person aggrieved can file an appeal from acquittal or for enhancement of the sentence passed by the Tehsil Criminal Court in the District Criminal Court, Shariat Court and this Court. No general definition can be laid down for 'person aggrieved' broadly for the purpose of filing acquittal appeal or appeal for enhancement of punishment the person whose legal right is injured, may be treated as aggrieved, but for the purpose of Qisas and Haddod laws, following may be termed as aggrieved persons who have right to file an appeal:

In case of `qatl-i-amd': (a) 'wali'/legal heir of the deceased; (b) The government/ State In case of hurt: (a) Victim himself, and if he is minor, his 'wali' or upon death of the victim, his legal heirs; (b) The Government/State." In view of above clear-cut dictum of the apex Court it can safely be held that appeal filed by complainant Muhammad Shakeel is incompetent because the appellant does not fall within the definition of legal heir/wali. Now the only question which is to be resolved by this Court is whether the sentence awarded by the Court below to appellant Waqar Ahmed is justified in light of evidence brought on record by the prosecution or not? It is an established proposition of criminal law that prosecution is duty bound to establish charge against accused beyond shadow of doubt, that evidence produced in support of the charge must be confidence inspiring, that there should not be any inconsistency between the direct and circumstantial evidence of the case and that the prosecution version should not admit of any other hypothesis favourable to the accused. Keeping in view the same yardstick in mind, we have to analyze the evidence produced in the case to determine guilt and innocence of the appellant. The prosecution's case is that there is enmity prevailing between the accused and deceased over a dog and accused Waqar and Waleem with criminal intention launched a murderous attack on the deceased on the day of occurrence when he was present in the mosque after performing Juma prayer and was murdered by hitting fist blows at his head. The prosecution cited as many as 8 witnesses PW.11 to PW.18 in the challan as eye-witnesses however, out of them only PW.18 Muhammad Saleem and PW.11 Muhammad Maroof were produced as eye-witnesses. Muhammad Saleem in his Court statement recorded on 11.05.2005 deposed that a fight occurred between Waqar and Saqib and during fight deceased Saqib stumbled with tree and fell down. He did not know that Saqib died on spot or not. After 1, 1-1/2 hours he came to know that Saqib has died. During cross-examination, he deposed that the deceased Saqib was hitting accused Waqar. It is correct that deceased Saqib stumbled with something. Accused Waqar was not beating Saqib rather accused Waqar was trying to set him free and when accused Waqar run away after setting him free, deceased Saqib stumbled and fell down on a tree. The relevant portion of the statement of Muhammad Saleem is reproduced as under;-- It appears from the statement of above-stated witness, that if he was present at the spot and witnessed the occurrence, then as per his statement deceased Saqib was not murdered by accused Waqar rather when accused Waqar was beaten by deceased Saqib he stumbled with a tree and fell down thus this statement of Muhammad Saleem contradicts the prosecution version. Muhammad Maroof, PW-11, who was also shown as eye-witness of the occurrence, deposed in his statement recorded on 16.08.2006 that on the day of occurrence he was working in the house of complainant Shakeel and after leave he went to Jandali Bazar and saw that accused Waqar Ahmed and Waleem were beating deceased Saqib with fists in the courtyard of Masjid and in the meantime, he boarded in van and went to his house and when after 2.2-1/2 months he came to house of Shakeel, wherein he came to know that Saqib was murdered. He also stated that when accused were hitting fist blows to deceased some other people were also present there. The relevant portion of his statement is reproduced as under:

This witness is not reliable because he admitted in his statement that he was laboring in the house of complainant and also admitted that complainant Shakeel brought him for recording his statement. His statement under section 161, Cr.P.C. was also recorded on 22.12.2003 after 3 months of occurrence. Even otherwise, he simply stated that he saw the accused and deceased fighting and the deceased did not die in his presence. Producing Muhammad Maroof as eye-witness is nothing but a cosmetic baseline, which appears to be self manufactured with the connivance of the police. Moreover, there are contradictions in the statements of Saleem and Muhammad Maroof. As per statement of Muhammad Saleem deceased Saqib was hitting Waqar and when accused Waqar ran after setting him free deceased Saqib stumbled with a tree and fell down, whereas, as per statement of Muhammad Maroof both Waqar and Waleem were hitting deceased. None of them deposed that Saqib died in their presence, therefore, their statements are not confidence inspiring for conviction of the accused. So far as extra-judicial confession allegedly made by accused Waqar and Waleem, Exh.PB and PC, is concerned, we may observe that extra-judicial confession is considered as weak type of evidence. The question of evidentiary value of the extrajudicial confession came up for consideration before the august Supreme Court of Pakistan in the case titled Sajid Mumtaz and others v. Basharat and others reported as (2006 SCMR 231), wherein at page 238 the apex Court of Pakistan has been pleased to lay emphasis as under:- "

17. The Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra-judicial confessions starting from Ahmad v. The Crown PLD 1951 FC 103-107 upto the latest. Extra judicial confession has always been taken with a pitch of salt. In Ahmad v. The Crown, it was observed that in this country (as a whole) extra-judicial confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extra-judicial confession, the Court must inquire into all material points and surrounding circumstances to satisfy itself fully that the confession cannot be but be true. As an extra-judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction.

18. It has been further held that the status of the person before whom the extra judicial confession is made must be kept in view, that joint confession cannot be used against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by this Court.

22. As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the investigating officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confession. Such confession by now, have become the signs of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions likewise the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the relationship or friendship of the witnesses with the maker of confession and what, above all, is the position or authority held by the witness." The same view was taken by the Hon'ble Supreme Court of Pakistan in the following cases:- 1996 SCMR 188. 2000 SCMR 683. 2001 SCMR 1405. 2006 SCMR 231. 2009 SCMR

166. After careful perusal of the statements of accused Waqar Ahmed Exh.PB and Waleem Exh.PC, we are of the view that these statement cannot be termed as confessional statements. The confession means to accept the commission of an offence by a person. It is now well settled that a confession must either admit in terms that offence or at any rate substantially all the facts which constitute the offence, an admission of a gravely incriminating race, even a conclusively incriminating fact is not itself a confession. A mixed up statement which even though contains some confessional statement will still lead to acquittal, is no confession, thus, a statement that contains self exculpatory matter which if true would negate the matter or offence, cannot amount to confession. The statements of Waqar Ahmed, Ex.PB and Muhammad Waleem Khan Ex.PC, in our considered view cannot be termed as confessional statements because none of them confessed that he murdered the deceased. Waqar Ahmed, in his statement, stated that when he was standing near bath room of mosque along with Waleem and Saleem, deceased Saqib came there and hit him fist blow. He further stated that on instigation of Waleem, he has been beaten by Saqib and after setting him free he (Waqar Ahmed) went towards home and Saqib was still there whereas, Waleem deposed in his statement that deceased Saqib hit two fist blows to Waqar and Waqar did not hit any fist blow to deceased Saqib. He also deposed that he did not know that deceased Saqib stumbled with the tree or not, however, due to fist blow he fell down. In our considered view such like statements cannot be termed as confessional statements because none of the accused in these statements confessed that they murdered deceased Saqib. Moreover, the statement of Waleem is contrary to the statement of Muhammad Saleem Khan, who also appeared as eye-witness and deposed that deceased Saqib stumbled with the tree and fell down. The other witnesses produced by the prosecution did not see the occurrence rather Kamran Hafeez, Mst. Babar Jan, Shaista Jalal, Basit Jalal, Muhammad Jallal, Abdul Rehman were produced to prove the extra-judicial confession of the accused Ex.PB and Ex.PC and the enmity between the deceased and accused. As discussed above the statements Ex.PB and Ex.PC in light of phraseology used in these statements, cannot be termed as confessional statements therefore, the statements of these PW's to prove the Ex.PB and Ex.PC does not effect the merits of the case. Ex.PB and PC are not corroborated by any other evidence and being weak type of evidence on the basis of extra-judicial confession the accused cannot be convicted. It is unbelievable to a prudent mind to accept that the children (accused and deceased) were fighting and resultantly deceased fell down who sustained serious injury from which blood was oozing but despite that no one came to rescue him or to take him to hospital while Muhammad Maroof admitted in his statement that some other people were present at the place of occurrence and Waqar, Waleem and Saleem also deposed in their statements Ex.PB, PC and PD that after fight some people met them at the gate of mosque. This fact alone is sufficient to create serious doubt on a prosecution story. The prosecution also failed to produce all the members of meeting in whom presence the alleged extra-judicial confession was made. Insofar as medical evidence is concerned, two postmortem reports are available with the file. In the first report prepared by Dr. Zubair, he did not determine the cause of death, whereas, the medical board opined that the cause of death was head injuries resulting into diffused neuronal injury to the brain matter. The weapon for primary impact was opined a forceful blow with fist or with some blunt object. Dr. Naseer Ahmed Shaikh in his statement deposed that deceased died due to injury at his head. During cross-examination he deposed that blunt weapon can be hand fist, stone or danda. During postmortem he could not determine which thing became the cause of injury and it is also possible that deceased ran, stumbled with tree, fell down and died. This statement of the doctor when is read in juxtaposition with the statement of Muhammad Saleem, it transpires that though deceased Saqib died due to injury at his head but it is not proved in any manner that accused Waqar inflicted the said injury to the deceased. It is by now well settled law that medical evidence may confirm the ocular evidence with regard to set of injury, nature of injury, kind of weapon used in occurrence but it would not connect the accused with commission of offence, hence, medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence to identify the culprits. The recovery of blood stained clothes and sleeper is also highly doubtful. The alleged occurrence took place on 26.09.2003 and the recovery allegedly was made on 16.12.2003 after delay of 3 months, therefore, it was unlikely that the blood on the clothes would not disintegrate during that period. The Hon'ble Supreme Court of Pakistan in case titled Muhammad Jamil v. Muhammad Akram and others reported as (2009 SCMR 120) disbelieved the recovery of blood stained churri after the period of one month and observed as under:- "It is born out of from record that alleged recovery of blood stained churi has effected after about one month of the occurrence from an open plot which was not in exclusive possession of the respondent and was accessible to all. It was also not likely that the blood would not disintegrate meanwhile. So the reason advanced by the learned Judge in the Chambers are not arbitrary or fanciful for not believing the recovery." Thus, recovery of blood stained clothes and sleeper cannot be believed safely. 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 guilt of the accused the benefit of that doubt must be extended to him. Even a single doubt, if found reasonable would entitle the accused person to acquittal and not a combination of several doubts is bedrock principle of justice. 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 person 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 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." Finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards as guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. If a case was to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person the golden rule of "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice will be reduced to a naught. In this case the prosecution story is highly doubtful and at every step the prosecution tried to make improvements and fill up the lacunas but despite that failed to prove the guilt of accused beyond any reasonable shadow of doubt, thus, the conviction of appellant Waqar Ahmed recorded by the trial Court is not justified. The case law referred to and relied upon by the learned counsel for the complainant has distinguishable facts hence, is not attracted in the case in hand. In view of above, the appeal filed by complainant Muhammad Shakeel stands dismissed being incompetent as well as on its merits whereas, the appeal filed by Waqar Ahmed stands accepted and accused Waqar Ahmed is acquitted of the charge by extending him the benefit of doubt. JK/83/HC(AJ&K) Order accordingly.