PLJ 2022 Cr.C. (Note) 11
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34--Conviction and sentence--Challenge to--Benefit of doubt--Held: When a witness improves his statement to strengthen prosecution case and moment it is concluded that improvement was made deliberately and with mala fide intention, testimony of such witness does not remain reliably--Even otherwise, deceased had been medically examined much before reporting of matter by complainant to police and possibility cannot be ruled out that she had consulted with some expert before specifying locale and nature of injuries and weapons used by assailants--In absence of trustworthy and confidence inspiring ocular account, medical evidence does not bear any significance--When evidence to extent of acquitted co-accused has already been disbelieved by trial Court, it cannot be believed against appellants until and Unless same is supported by any independent corroborative piece of evidence which is very much lacking in this case and no any such evidence on record--No doubt conviction and sentence of an accused can be maintained even by relying on statement of single eye-witness, but Apex Court of country has time and again held that in such circumstances, credibility of that solitary witness must be above board and it must have to be corroborated by some independent evidence--In this case, testimony of complainant not only failed to win our confidence, but same also could not find support as well as corroboration from any independent corner, thus, after having looked into prosecution case from all angles, that case to extent of appellants is of doubtful nature and conviction and sentence of appellants on basis of such type of shaky and unreliable evidence cannot be maintained--It is always prosecution, who has to prove its case against accused beyond any reasonable doubt and if it fails to do so, accused is entitled to benefit of doubt as of right--Law is also settled on point that if there is an element of doubt as to guilt of accused, benefit of that doubt must be extended to him--Rule of benefit of doubt, which is described as golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law--So, after considering all circumstances, this Court is of considered view that prosecution has failed to prove its case against appellants beyond any shadow of doubt, appeal is allowed. [Para 12, 14, 17, 18, 20] A, C, D, E & G
1993 SCMR 550, 2010 SCMR 385, PLD 1985 SC 11, PLJ 2008 SC 269 and PLJ 2010 SC 522.
Medical evidence--
----It is by now well settled law that medical evidence may confirm, ocular evidence with regard to seat of injuries, nature of injuries, kind of weapon used in occurrence, but it would not connect accused with commission of offence. [Para 14] B
PLD 2009 SC 53, 2009 SCMR 1410 and 2008 SCMR 1103.
Benefit of doubt--
----It is well settled by-now that in case of doubt, its benefit must go to accused not as a matter of grace but of right. [Para 19] F
2009 SCMR 230.
Dr. Muhammad Akmal Saleemi and Hafiz Khalil Ahmad, Advocates for Appellants.
Mrs. Aneela Iqbal Bhatti, Advocate at State expense.
Mr. Muhammad Yaqoob, Muhammad Tufail and Abdul Majeed Appellants on bail.
Mr.Humayun Aslam, Deputy Prosecutor General for State.
Mr. Ali Zia Bajwa, Advocate for Complainant.
Date of hearing: 16.07.2014.
PLJ 2022 Cr.C. (Note) 11
[Lahore High Court, Lahore]
Present: Syed Shahbaz Ali Rizvi and Abdul Sami Khan, JJ.
KHOBAIB AHMAD and 3 others--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 1273 & M.R. No. 432 of 2007, heard on 16.07.2014.
Judgment
Abdul Sami Khan, J.--Khobaib Ahmad, Muhammad Yaqoob, Muhammad Tufail and Abdul Majeed alongwith Muhammad Imran, Saeed Ahmad and Manzoor Ahmad were tried in case FIR No. 75/2004 dated 30.04.2004, registered at Police Station Raja Jang, District Kasur, for the offences under Sections 302, 148, 149, 109, PPC, by learned Additional Sessions Judge, Kasur who vide judgment dated 30.07.2007, convicted Khobaib Ahmad, Muhammad Yaqoob, Muhammad Tufail and Abdul Majeed appellants and sentenced them as under:
Khobaib Ahmad appellant
Under Section 302(b)/34, PPC to death with direction to pay compensation of Rs. 1,00,000/-under Section 544-A, Cr.P.C. to the legal heirs of the deceased, in default in payment of compensation to further undergo simple imprisonment for six months.
Muhammad Yaqoob, Muhammad Tufail and Abdul Majeed appellants:
Under Section 302(b)/34, PPC to undergo imprisonment for life with direction to pay compensation of Rs. 1,00,000/- each under Section 544-A, Cr.P.C. to the legal heirs of the deceased, in default in payment of compensation to further undergo simple imprisonment for six months each.
Benefit of Section 382-B, Cr.P.C. was also extended in favour of Muhammad Yaqoob, Muhammad Tufail and Abdul Majeed appellants. Vide the same judgment, the learned trial Court proceeded to grant clean acquittal to Manzoor Ahmad, while the remaining accused namely Muhammad Imran and Saeed Ahmad were acquitted of the charge by giving benefit of doubt to them.
2. Khobaib Ahmad, Muhammad Yaqoob, Muhammad Tufail and Abdul Majeed appellants have challenged their conviction and sentences through the instant criminal appeal, whereas the learned trial Court has sent a Reference under Section 374, Cr.P.C. for confirmation or otherwise of the death sentence of Khobaib Ahmad appellant, which has been numbered as Murder Reference No. 432 of 2007. We propose to decide both the matters through a single judgment.
3. Brief facts of the case as disclosed in FIR Ex.PD/1 which was recorded on the statement (Ex.PD) of Zarina Bibi complainant (PW-10) are as under:
"The complainant Mst. Zarina Bibi had two sons namely Mushtaq and Muhammad Ashfaq and a daughter Mst. Robina Kausar. Her elder son Muhammad Mushtaq was in jail in connection with a murder case. On 30.04.2004, she alongwith her husband Muhammad Sadiq, Rehmat Ali and Muhammad Munir were coming from their village Kotli Rai Abu Bakar on tonga to meet her son Muhammad Mushtaq in jail. At about 08:00 a.m. when they were 2/3 acres behind Adda Thay Rosa, suddenly accused Abdul Majeed armed with pistol .30 bore, Saeed Ahmad armed with rifle 8MM, Muhammad Tufail armed with carbine .12 bore, Habib Ahmad armed with repeater .12 bore, Yaqoob armed with pistol .30 bore, Shaukat Ali empty handed emerged there and stopped their tonga. They pulled Muhammad Sadiq down from tonga, Abdul Majeed made two fires with pistol .30 bore, one fire hit Muhammad Sadiq on right cheek and the second hit him on lower side of jaw and he fell down. Then accused Habib Ahmad made fire with repeater gun which hit Muhammad Sadiq at right portion of the face of Muhammad Sodiq. Accused Muhammad Tufail caused injury with carbine .12 bore to Muhammad Sadiq on, right side of his neck. Accused Yaqoob made two fires with his pistol .30 bore which hit Muhammad Sadiq on neck and left ear. The complainant and her companions beseeched the accused, who, on seeing people coming from Thay Rosa side, fled away on motorcycles towards village. The complainant, Rehmat and Munir shifted Muhammad Sadiq in injured condition to hospital at Kasur and he was referred by the detors to General Hospital Lahore, where he was near to kiss the dust. The occurrence has been committed on the abetment of Manzoor Ahmad.
The motive behind the occurrence was previous murders enmity between complainant party and Abdul Majeed etc."
4. After registration of FIR, investigation of the case was conducted by Muhammad Sharif S.I. (PW-11) and Muhammad Hayat S.I (PW-12) and after completion of the same, report under Section 173, Cr.P.C. was submitted against the appellants and their co-acoused. At the commencement of trial, learned trial Court, after observing legal formalities as required by the Code of Criminal Procedure, 1898, framed charge under Sections 302, 109, 148, 149, PPC against the appellants and their co-accused (since acquitted) on 21.12.2004 to which they pleaded not guilty and claimed trial.
5. To substantiate its version at the trial, the prosecution produced as many as twelve witnesses before the learned trial Court. Ocular account was furnished by Zarina Bibi complainant. In her statement as PW-10, Zarina Bibi complainant has tried to support the prosecution version, Muhammad Sharif S.I. (PW-11) and Muhammad Hayat S.I. (PW-12) are the investigating offficer. They have testified about the investigation conducted by them. Medical evidence has
been furnished by Dr. Mumtaz Ahmad (PW-5) and Dr. Adnan Hakeem (PW-7). The remaining prosecution witnesses are almost formal in nature. After placing on record the report of Chemical Examiner Ex.PQ and report of Forensic Science Laboratory Ex.PP, the prosecution closed its evidence.
6. The appellants in their statements recorded under Section 342, Cr.P.C. professed their innocence and pleaded false implication in the case. The appellants neither opted to record their statements under Section 340(2), Cr.P.C. in disproof of the allegations leveled against them by the prosecution nor produced any witness in their defence.
7. At the end of trial, after thrashing entire evidence and evaluating arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellants as mentioned in Paragraph No. 1 of this judgment, however, Muhammad Imran, Saeed Ahmad and Manzoor Ahmad, their co-accused, were acquitted of the charge by the learned trial Court vide the same judgment.
8. Learned counsel for the appellants contend that the appellants alongwith three co-accused namely Muhammad Imran, Saeed Ahmad and Manzoor Ahmad were implicated in this case, who have been acquitted by the learned trial Court, there is no appeal against their acquittal and the judgment of learned trial Court to their extent has attained finality, thus, the evidence which has been disbelieved to the extent of acquitted co-accused cannot be believed to the extent of appellants unless and until there is strong corroboration which is very much lacking in this case, there are lot of discrepancies between the first information report and the statement of complainant recorded by the learned trial Court during trial; the complainant, has made dishonest improvements in her statement before the learned trial Court in order to bring her testimony in line with medical evidence; the appellants are absolutely innocent' in this case and the evidence produced by the prosecution suffers from material irregularities; enmity of murders exists between the parties and the appellants have been implicated by the complainant in this false and frivolous case just to pressurize them for effecting compromise in murder case, in which her son is already in jail, therefore, the complainant is not only interested, but also highly inimical towards the appellants whereas no independent person has supported the prosecution case, as such the conviction of appellants cannot be maintained on solitary statement of complainant; the complainant has cited Rehmat Ali and Muhammad Munir as the eye-witnessed of alleged occurrence, but during trial the prosecution did not produced these witnesses before the learned trial Court due to the reasons best known to it; there are material contradictions between ocular account and medical evidence, which proves that it was an unseen occurrence; the recovery of alleged weapon of offence was planted on Abdul Majeed appellant in order to strengthen the prosecution case; motive in this case is previous enmity which is double edged weapon and also the reason for false implication of appellants in this case. Lastly, learned counsel for the appellants contend. that the prosecution has miserably failed to prove its case beyond any shadow of doubt and the evidence so produced is not confidence-inspiring and is not worthy of credence, therefore, the appellants deserve clean acquittal.
9. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes the submissions made by learned counsel for the appellants and submits that the matter was reported to the police without any element of deliberation and consultation; the occurrence was reported to the police in a manner as it took place; the appellants are duly named in FIR with specific role of causing fire-arm injuries to the deceased and the ocular account is duly corroborated by the medical evidence; apart from confidence inspiring evidence of the eye-witness, there is strong corroborative evidence on the file of this case in the shape of the weapon of offence recovered on the pointing out of Abdul Majeed appellant, the reports of Chemical Examiner (Ex.PQ) and Forensic Science Laboratory (Ex.PP); Zarina Bibi complainant (PW-10) had no reason to substitute the appellants with the culprits who had done to death her husband before her eyes; she was present at the time of occurrence and inspite of lengthy cross-examination, the defence failed to demolish/dislodge her presence at the spot; statement of solitary eye-witness is enough to maintain conviction and sentences of the appellants; the prosecution case stands proved from all corners against the appellants; the accused had repeated the fire shots, which indicate their intention to murder Muhammad Sadiq; the appellants have failed to bring on record anything on the basis of which it can be construed that the complainant has made false statement against them or that she has become false witness on account of ulterior motives; motive part of the prosecution case is also admitted by the defence; as there is no mitigating circumstance in favour of the appellants, so the learned trial Court has already taken a lenient view while sentencing Muhammad Yaqoob, Muhammad Tufail and Abdul Majeed for life imprisonment; prays for maintaining the conviction and sentences awarded to the appellants.
10. We have considered the arguments advanced by learned counsel for the appellants, learned Deputy Prosecutor General and learned counsel for the complainant and have also gone through the entire record with their valuable assistance.
11. This unfortunate incident, in which, Muhammad Sadiq lost his life, as per FIR (Ex.PD/1), took place on 30.04.2004 at 08:00 a.m. within the area of "Thay Rosa" within the jurisdiction of Police Station Raja Jang, District Kasur. The matter was allegedly reported to the police by Zarina Bibi complainant (PW-10) at 03:20 p.m. Consequently, formal FIR-(Ex.PD/1) vas registered on the same day at 05:20 p.m. The distance between the place of occurrence and Police Station is twelve kilometer. Although the occurrence has been alleged to have been witnessed by many people including the complainant, Rehmat Ali and Muhammad Munir, but surprisingly nobody came forward to inform the police about this occurrence. There is a delay of seven hours and twenty minutes in reporting the matter to the police. It has been observed by us that after the occurrence, the deceased was shifted to District Headquarter, Hospital Kasur, where he was medically examined and thereafter was referred to General Hospital, Lahore. The statement of Zarina Bibi-cbmplainant under Section 154 Cr.P.C. was recorded by Mukhtar Ahmad S.I. (PW-6) at General Hospital, Lahore at 03:20 p.m. During trial, the question as to why the police remained unaware of the murder of Muhammad Sadiq deceased for such a long period could not be answered by the prosecution and these facts clearly suggest that sufficient time was afforded be the police to the complainant to think over the matter and then report the same for the purpose of registration of FIR. In these circumstances, possibility cannot be ruled out that the delay of seven hours and twenty minutes in reporting the matter to the police has been consumed by the complainant in concocting story against the appellants. Even otherwise, acquittal of Muhammad Imran, Saeed Ahmad and Manzoor Ahmad co-accused of the appellants by the learned trial Court itself shows that the FIR has been recorded with due deliberation and consultation and in these eventualities, the evidence of the prosecution has to be seen by us with due care and caution.
12. Firstly, we would like to weigh the eye-witness account offered by Zarina Bibi complainant in the form of her statement made before the learned trial Court as PW-10. Zarina Bibi complainant (PW-10) while recording FIR (Ex.PD/1) has mentioned that on the day of occurrence she alongwith Rehmat Ali, Muhammad Munir and Muhammad Sadiq (deceased) proceeded from their village to District Jail, Kasur to see Mushtaq Ahmad, her son, who was detained there in as murder case, however, while appearing before the learned trial Court as PW-10, Zarina Bibi has changed her stance and categorically stated that she alongwith other PWs and the deceased came from Khanewal to make visit with her elder son Mushtaq in District Jail Kasur. Moreso, it is also admitted at all hands that pitched enmity of murders existed between the parties prior to the occurrence, however, it is quite astonishing that the appellants, who caused as many as seven fire-arm injuries to the deceased as per version of the complainant, did not try to touch the complainant and other PWs. It is also significant to mention here that in FIR (Ex.PD/1), it has categorically been mentioned by Zarina Bibi complainant (PW-10) that apart from her, PWs Rehmat Ali and Muhammad Munir had also witnessed the occurrence, however, inspite of affording more than reasonable opportunities, the prosecution could not produce these witnesses before the learned trial Court to support its case and consequently the learned trial Court was forced to struck off the right of prosecution to produce them in the witness box. In this respect, neither complainant nor the State challenged the order of learned trial Court before any higher forum. In this way, it can safely be held that the prosecution has withheld the best evidence available to it, therefore, an adverse inference within the meanings of Article 129(g) of Qanun-e-Sbahadat Order, 1984 can be drawn against the prosecution that had Rehmat Ali and Muhammad Munir been produced before the learned trial Court, they would not have supported the case of prosecution. Guidance can be sought from the cases of Riaz Ahmad verus The state (2010 SCMR 846) and Khalid @ Khalidi and 2 others versus The State (2012 SCMR 327), wherein the Hon'ble Supreme Court of Pakistan has taken similar view. It has also come on record during investigation of the case that only two persons including the deceased were boarded in Tonga. All these facts create doubt regarding presence of Zarina Bibi complainant (PW-10) and others the PWs at the spot at the time of occurence what to say about to the credibility of PW-10, who was even not acquainted with the same and parentage of Khobaib Ahmed appellant. Zarina Bibi complainant (PW-10) has admitted in her cross-examination that the appellants' side- had got registered different criminal cases against her deceased husband and sons and this fact shows that the complainant was interested and inimical towards the conviction of appellants and as such, her testimony requires strong corroboration from some independent corner. It has also been observed by us that this witness has made certain material improvements by specifying the roles of some of the accused, whom she had omitted to give any role in the FIR (Ex.PD/1). The improvements made by the complainant in her version before the learned trial Court were duly confronted by the defence during cross-examination with her previous version adopted in FIR (Ex.PD/1). As the complainant has made improvements in her statement recorded by the learned trial Court as PW-10 dishonestly and deliberately in order to entangle maximum persons from the appellants' side, therefore, this fact has created serious doubt about her veracity and credibility and it is not safe to rely upon the evidence of such witness. It is settled law that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention, the testimony of such witness does not remain reliable. While holding so we are fortified by the dictum of law laid down by Hon'ble Supreme Court of Pakistan in the cases reported as "Syed Saeed Muhammad Shah and another versus The State" (1993 SCMR 550) and "Muhammad Rafique and others versus 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 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."
13. Seeking guidance from the above judgments of the Apex Court, we hold that Zarina Bibi complainant (PW-10) was not present at the spot at the time of occurrence, she is an interested witness and also inimical towards the appellants, her statement could not find support-from other witnesses namely Rehmat Ali and Muhammad Munir. who were allegedly present at the place of occurrence at relevant time, thus, the testimony of Zarina Bibi complainant (PW-10) being unreliable is accordingly disbelieved by us.
14. Insofar as medical evidence is concerned, it is by now well settled law that medical evidence may confirm the ocular evidence with regard to the seat of injuries, nature of the injuries, kind of weapon used in the occurrence, but it would not connect the accused with the commission of the offence. Reference in this respect may be made to the case of "Muhammad Tasaweer versus Hafiz Zulkamain and 2 others" (PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another versus The State" (2009 SCMR 1410) and "Altaf Hussain versus Fakhar Hussain and another" (2008 SCMR 1103). Even otherwise, the deceased had been medically examined much before the reporting of matter by Zarina Bibi complainant (PW-10) to the police and possibility cannot be ruled out that she had consulted with some expert before specifying the locale and nature of injuries and the weapons used by the assailants. In the absence of trustworthy and confidence inspiring ocular account, medical evidence does not bear any significance.
15. In FIR (Ex.PD/1) Zarina Bibi complainant (PW-10) has Claimed that there was previous murders enmity between the parties, The motive alleged by the complainant in FIR (Ex.PD/1) is admittedly a double edged weapon, so false implication of the appellants in this case cannot be ruled Admittedly, the deceased had enmity with number of people and as already discussed in the preceding paragraph that none of the alleged eye-witnesses was accompanying the deceased at the time of occurrence. So, possibility cannot be ruled out that some other enemy of the deceased might have had done him to death. It has been observed by us that during investigation conducted by the police, Khobaib Ahmad and Muhammad Yaqoob were found not present at the place of occurrence at relevant time and the investigating officer opined them to be innocent during his .investigation. Admittedly, the findings of the investigating officer have not been challenged by the complainant before any forum which fact shows that the complainant has felt satisfaction with the investigation at that time. Although findings of the police are not binding upon the Courts of law, yet-the same can be considered, if based upon sound and cogent reasons. Thus, taking into consideration all the surrounding circumstances of the case, we are not inclined to reject the police opinion. These facts also create serious doubt on the authenticity of prosecution story set forth in FIR (Ex.PD/1).
16. We are conscious of the fact that during investigation of this case, the investigating officer remained unable to recover weapons of offence allegedly used by Khobaib Ahmad, Muhammad Yaqoob and Muhammad Tufail appellants in the present occurrence. So far as recovery of pistol .30 bore (P6) allegedly effected from Abdul Majeed appellant vide memo. Ex.PH is concerned, in the absence of positive report of the Forensic Science Laboratory, the recovery of pistol .30 bore (P6) has become inconsequential and does not render any help to the case of prosecution.
17. Apart from above,-co-accused of the appellants namely Muhammad Imran, Saeed Ahmad and Manzoor Ahmad who had been named by Zarinna Bibi complainant (PW-10) in FIR (Ex.PD/1) and were given specific roles by her while appearing in the witness box as PW-10, have already been acquitted by the learned trial Court. Neither complainant nor the State has opted to prefer appeal against the acquittal of above said accused and the judgment of learned trial Court to the extent of their acquittal has attained finality. In the circumstances when the evidence to the extent of acquitted co-accused has already been disbelieved by the learned trial Court, it cannot be believed against the appellants until and Unless the same is supported by any independent corroborative piece of evidence which is very much lacking in this case as we have not been able to find out any such evidence on the record. Reliance can be placed on the case reported as Ghulam Sikandar and another versus Mamraz Khan and others. (PLD 1985 SC 11), wherein, at page 23, the learned Apex Court has been pleased to hold as under:
"It is often said that the principle falsus in uno falsus in omnibus is not applicable in Pakistan. The same principle has been described in some cases, slightly differently; namely, that the testimony of an eye-witness should not be treated as indivisible although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is hall-mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad v. Crown (1) propounded by late Chief Justice Muhammad Munir that where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent Circumstances regaling other the reliance might then be placed on the witness for convicting the other accused.
The Hob’ble Supreme Court of Pakistan, in case of Iftikhar Hussain versus The State (PLJ 2004 SC 552), has been pleased to hold as under:
"………It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e. sifting of grain out of chaff i.e. if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the Superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others versus The State (2000 SCMR 1758)…………."
In case of Akhtar Ali and others vs. The State (PLJ 2008 SC 269), at page 275 of the judgment, the following principles have been highlighted by the learned Apex Court:
"……….It is a settled law that eye-witnesses found to have falsely implicated five out. of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration. See Ghulam Muhammad's case (PLJ 1976 SC 29), Sheral alias Sher Muhammad's case (1999 SCMR 697) and Ata Muhammad's case (1995 SCMR 599). It is also a settled law that credibility of the ocular evidence is not divisible. See Faiz Bakhsh's case (PLD 1959 PC 24), Nadia 's case (42 Cr.L.J. 53), Muhammad's case (PLD 1954 FC 84), Sher Bahadar's case (1972 SCMR 651) and Muhammad Afsar's case (PLD 1954 FC 171). It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principal of criminal jurisdiction that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses, See Hadi Bakhsh 's case (PLD 1963 Kar 805)".
To fortify the above view, guidance has also been sought from the case of Ghulam Mustafa and another vs. State (PLJ 2010 SC 522), wherein, at page 529, the learned Apex Court of the country, has been pleased to hold as under:"
"..... In our jurisdiction it is by now well established that the legal maxim falsus in uno falsus in omnibus is not a universal principle to be applied in all criminal, cases. However, according to settled case law there are exceptions and if evidence on the record warrants a doubt in the credibility of such witnesses than indeed their testimony regarding, another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. In this connection reference can be made to the case of Muhammad Nawaz v. State (1969 SCMR 132), Shafoo v. State (1968 SCMR 719) and Allah Ditta v. State (NLR 2002 Criminal 1 SC)".
18. No doubt the conviction and sentence of an accused can be maintained even by relying on the statement of single eye-witness, but the Apex Court of the country has time and again held that in such circumstances, the credibility of that solitary witness must be above board and it must have to be corroborated by some independent evidence. In this case, the testimony of Zarina Bibi complainant
(PW-10) not only failed to win our confidence, but the same also could not find support as well as corroboration from any independent corner, thus, after having looked into the prosecution case from all angles, we have come to an irresistible conclusion that the case to the extent of appellants is of doubtful nature and the conviction and sentence of the appellants on the basis of such type of shaky and unreliable evidence cannot be maintained.
19. It is well settled by-now 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 Akram versus 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).
20. We may observe here that it is always the prosecution, who has 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. Law is also settled on the point that if there is an element of doubt as to the guilt of accused, the benefit of that doubt must be extended to him. 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. So, 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 of committing murder of Muhammad Sadiq deceased. Khobaib Ahmad appellant is behind the bars, he shall be released forthwith if not required to be detained in any other case. The remaining appellants namely Muhammad Yaqoob, Muhammad Tufail and Abdul Majeed are on bail. They are set at liberty and their sureties stand discharged from the liability of surety bonds.
21. Murder Reference is answered in negative and the sentence of death is not confirmed.
(A.A.K.) Appeal allowed
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