MUHAMMAD ARSHAD alias ACCHA Versus State
MALIK SHAHZAD AHMAD KHAN, A.C.J .---This judgment shall dispose of Criminal Appeal No. 193971 of 2018, filed by Muhammad Arshad alias Accha (appellant) against his conviction and sentence and Murder Reference No. 155 of 2018, sent by the learned trial Court for confirmation or otherwise of the Death sentence awarded to Muhammad Arshad alias Accha (appellant). We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 28.02.2018 passed by the learned Additional Sessions Judge, Faisalabad.
2. Muhammad Arshad alias Accha (appellant) was tried in case FIR No. 385 dated 28.04.2017 registered at Police Station Mansoorabad District Faisalabad offences under sections 302/363 of P.P.C. After conclusion of the trial, the learned trial Court vide its judgment dated 28.02.2018 has convicted and sentenced Muhammad Arshad alias Accha (appellant) as under: -
Under section 302(b), P.P.C. to 'Death' as Ta'zir for committing Qatl-i-amd of Aiman (deceased). He was also ordered to pay Rs.300,000/- (Rupees three hundred thousand only) to the legal heirs of the deceased as compensation under section 544-A of Cr.P.C. and in default thereof to further undergo simple imprisonment for six months'.
Under section 364-A of P.P.C. to imprisonment for life.
3. Brief facts of the case as given by Akbar Ali complainant (PW-6) in his complaint (Exh.PB) on the basis of which FIR (Exh.PB/1) was chalked out, are that he (complainant) was resident of Mohallah Mansoorabad and was labourer by profession. On 25.04.2017 at about 07:30 p.m., complainant's daughter, namely, Aiman aged about 04 years was playing with her brothers/sisters and other children of Mohallah who was witnessed while playing so by Muhammad Boota (PW-2) and Muhammad Shahzad Mehmood (witness not produced). At about 09:30 p.m., other children came back to their homes, whereas, Aiman did not return home upon which, he (complainant) started search but he could not find her till late night. On the next day i.e. on 26.04.2017 at about 12:00 p.m., the complainant received an information that dead body of an unknown minor girl was lying in the Allied Hospital (Faisalabad) upon which, he (complainant) along with his brother, namely, Akhtar Ali and nephew Ali Raza (given up PW) went to the Allied Hospital and identified the dead body of Aiman having bleeding from the back side of her head and from her nose. Hospital authorities told that Rescue 1122 shifted the dead body of minor Aiman to the hospital from the bank of Jhal Khanoo-aana canal on the information of some person. The complainant further stated that he had apprehension that some unknown accused persons committed the murder of minor Aiman after abducing her due to unknown reasons. Initially the FIR was lodged against unknown accused persons however, later on, Akbar Ali complainant (PW-6) through application dated 13.05.2017 (Exh.PC) nominated his brother Muhammad Arshad alias Accha (appellant) as accused in this case with the allegation that the appellant had made extra-judicial confession about the murder of minor Aiman, before Qamar Ijaz (PW -4) and Sarfraz Ahmad (PW-5) and stated that he had thrown alive minor Aiman in the canal water.
4. Muhammad Arshad alias Accha (appellant) was arrested in this case on 29.05.2017 by Zafar Iqbal Sub-Inspector/I.O (PW-8). After completion of investigation, report under section 173 of Cr.P.C., was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 06.10.2017 to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced fourteen witnesses during the trial. The prosecution also produced documentary evidence in the shape of (Exh.PA) to (Exh.PR).
6. The statement of Muhammad Arshad alias Accha (appellant) under section 342 of Cr.P.C. was recorded by the learned trial Court. Muhammad Arshad alias Accha (appellant) refuted the allegations levelled against him and professed his innocence. While answering to a question that "Why this case against you and why the PWs have deposed against you" Muhammad Arshad alias Accha (appellant) replied as under:-
"I am innocent and have no nexus with the occurrence. We all the family members lived under one roof. I have been demanding my share out of the joint property (house), but I have not been compensated even on my numerous requests. Meanwhile the instant occurrence took place which by some unknown accused persons. I have been bracketed in the instant case just to put an end to my lawful and genuine demand of the share of the property."
The appellant neither opted to make his statement on oath as envisaged under section 340(2), Cr.P.C., nor produced any evidence in his defence.
The learned trial Court vide its judgment dated 28.02.2018 found Muhammad Arshad alias Accha (appellant) guilty, convicted and sentenced him as mentioned and detailed above.
7. Notice was issued to the complainant but no one appeared on his behalf despite repeated calls. Even otherwise, it is a State case and learned Deputy Prosecutor General for the State is ready to argue the same therefore, we proceed to decide this case after hearing the arguments of learned defence counsel at State expense for the appellant, learned Deputy Prosecutor General for the State and perusing the record.
8. It is contended by learned defence counsel at State expense for the appellant that the appellant is absolutely innocent and he has falsely been implicated in case by the complainant being in league with the local police; that in fact, the complainant is real brother of the appellant and in order to usurp the share of the appellant from the joint property, he has falsely implicated the appellant in this case; that the occurrence was unseen and the prosecution case hinges upon very weak and unreliable circumstantial evidence; that there is no evidence of last seen, 'wajj takkar' or motive against the appellant and the appellant has been convicted and sentenced only on the basis of evidence of extra-judicial confession and recording of cctv footage; that the prosecution witnesses of extra-judicial confession were not holding the status of authority in the society therefore, there was no reason with the appellant to make extra-judicial confession before them; that the alleged recording of cctv camera was not proved in accordance with the law and even otherwise, the appellant cannot be convicted and sentenced solely on the basis of said evidence; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt therefore, the appeal filed by the appellant may be accepted and he may be acquitted from the charges.
9. On the other hand, it is contended by the learned Deputy Prosecutor General for the State that the prosecution has produced convincing and reliable circumstantial evidence against the appellant therefore, he was rightly convicted and sentenced by the learned trial Court; that the prosecution witnesses of extra-judicial confession and recording of cctv footage were cross-examined at length but their evidence could not be shaken; that there is no substance in the appeal filed by the appellant therefore, the same may be dismissed and murder reference be answered in the affirmative.
10. Arguments heard. Record perused.
11. The detail of the prosecution case as set forth in the complaint (Exh.PB) on the basis of which formal FIR (Exh.PB/1) was chalked out, has already been given in para No.3 of this judgment therefore, there is no need to repeat the same.
12. Since there is no direct evidence and prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. But if any link in the chain is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the Apex Court of the country reported as 'Ch. Barkat Ali v. Major Karam Elahi Zia and another' (1992 SCMR 1047), `Sarfraz Khan v. The State' (1996 SCMR 188) and 'Asadullah and another v. The State' (PLJ 1999 SC 1018). In the case of "Ch. Barkat Ali" (supra), the august Supreme Court of Pakistan, at page 1055, observed as under:-
"...Law relating to circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See 'Siraj v. The Crown' (PLD 1956 FC 123). In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused."
In the case of "Sarfraz Khan" (supra), the august Supreme Court of Pakistan, at page 192, held as under:-
"7....It is well settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence."
Further reliance in this context is placed on the case of 'Altaf Hussain v. Fakhar Hussain and another' (2008 SCMR 1103) wherein, at page 1105 it was held by the Hon'ble Supreme Court as under:-
"7....Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain."
Keeping in view the parameters, laid down in the above-mentioned judgments, we proceed to decide this case.
12. We have noted that there is no evidence of motive, `wajj-takkar' and last seen available on the record against Muhammad Arshad alias Accha appellant. The appellant has been convicted and sentenced by the learned trial Court on the basis of his alleged extra-judicial confession before Qamar Ijaz (PW-4) and Sarfraz Ahmad (PW-5), as well as, on the basis of cctv footage which was produced before the learned trial Court wherein, minor Aiman (deceased) can be seen in the company of the appellant on the night of occurrence.
13. Admittedly, the appellant is real paternal uncle of minor Aiman (deceased) aged about 04 years. Akbar Ali complainant (PW-6) is real brother of the appellant. The said witness has not uttered a single word during his evidence recorded by the learned trial Court or even in the FIR (Exh.PB/1) or in his supplementary statement (Exh.PC) regarding any motive against the appellant to commit the murder of his minor daughter Aiman. No reason whatsoever, has been brought on the record that as to why the appellant had committed the murder of his minor niece.
14. According to the evidence of prosecution witnesses of extra-judicial confession, namely, Qamar Ijaz (PW-4) and Sarfraz Ahmad (PW-5), the appellant confessed before them that he had committed the murder of minor Aiman by throwing her into the canal but it is noteworthy that as per medical evidence furnished by Dr. Nadia Ali (PW-11), the cause of death in this case could not be determined due to the advance stage of putrification. It is further noteworthy that in column No. 13 of the postmortem report of the minor Aiman, her three vaginal swabs were taken for semen detection and DNA test but according to the report of Punjab Forensic Science Agency, Lahore (Exh.PL), no seminal material was detected on the vaginal swab therefore, no DNA test was conducted in this case. Medical evidence is silent regarding the rupture of hymen of the minor. There is no allegation against the appellant by any prosecution witness that he committed rape/unnatural offence with minor before committing her murder. It is further noteworthy that the Medical Officer has not opined that cause of death of the minor was asphyxia due to drowning in the water, as claimed by the prosecution. We are therefore, of the view that there is no support of the prosecution case from the medical evidence.
15. Insofar as the extra-judicial confession of the appellant before Qamar Ijaz (PW-4) and Sarfraz Ahmad (PW-5) is concerned, the evidentiary value of the extra-judicial confession (joint or otherwise) came up for consideration before the august Supreme Court of Pakistan in the case reported as `Sajid Mumtaz and others v. Basharat and others' (2006 SCMR 231), wherein, at page 238, the Apex Court of Pakistan has been pleased to lay emphasis as under;
"17. This Court and its predecessor Courts (Federal Court) have elaborately laid down the law regarding extra judicial-confession starting from Ahmad v. The Crown (PLD 1961 FC 103-107) upto the latest. Extra-judicial-confession has always been taken with a pinch 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 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 of prescribed by this Court.
19. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.
20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off, (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such-like heinous offences where fear dominates and is always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confident. In the instant case the position of the witness before whom extra judicial confession is made is such that they are neither the close confident of the accused nor in any manner said to be sharing any habit or association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration.
Another most important and natural purpose of making extra-judicial-confession is to seek help from a third person. Help is sought, firstly, when a person is sufficiently trapped and, secondly, from one who is authoritative, socially or officially.
As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra judicial-confession 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 confessions by now have become the sings of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable, of being effortlessly procured must ask a few questions like why 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 nature and gravity of the offence involved, 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". (emphasis supplied)
The above view has been reiterated in the case reported as 'Tahir Javed v. The State' (2009 SCMR 166), wherein, at page 170, the august Supreme Court of Pakistan, has been pleased to observe as under:-
"It may be noted here that since extra-judicial confession is easy to procure as it can be cultivated at any time, therefore, normally, it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. The extra-judicial confession therefore must be considered with over all context of the prosecution case and the evidence on record. Right from the case of Ahmed v. The Crown PLD 1951 PC 107 it has been time and again laid down by this Court that extra judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. Reference in this regard may usefully be made to the following reported judgments:-
(1) Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231, (2) Ziaul Rehman v. The State 2001 SCMR 1405, (3) Tayyab Hussain Shah v. The State 2000 SCMR 683 and (4) Sarfraz Khan v. The State and others (1996 SCMR 188)".
(Bold and underlining supplied for emphasis)
Seeking guidance from the above-referred case law, we proceed to discuss the evidence of extra-judicial confession of the appellant produced by the prosecution in this case. It is noteworthy that both the abovementioned witnesses of extra-judicial confession have stated in their statements recorded by the learned trial Court that the appellant came to them for extra-judicial confession on 12.05.2017 but no time or place of making the alleged extra-judicial confession by the appellant has been mentioned by both the above witnesses. It is further noteworthy that although according to the statement of abovementioned prosecution witnesses, the appellant made extra-judicial confession before them on 12.05.2017 but according to the statement of Sarfraz Ahmad (PW-5), the said witness made statement before the police under section 161 of Cr.P.C., on 30.05.2017 i.e., after 18 days from making the alleged extra-judicial confession by the appellant, whereas, Qamar Ijaz (PW-4) stated that he never got recorded his statement to the I.O. Relevant parts of the statements of abovementioned prosecution witnesses of extra-judicial confession read as under:-
Qamar Ijaz (PW-4).
"I did not get recorded statement to the I.O, therefore, I cannot say that I had got recorded in my statement under section 161, Cr.P.C. date 12.5.2017."
Sarfraz Ahmad (PW-5).
"We also did not immediately inform the local police or made any call to rescue-15. My statement under section 161, Cr.P.C. was recorded on 30.5.2017."
It is further noteworthy that although both the abovementioned witnesses of extra-judicial confession claimed that the appellant made extra-judicial confession before them regarding the commission of a heinous offence about the murder of a minor girl of 04 years but they did not try to apprehend the appellant who was alone at the relevant time, whereas, the abovementioned prosecution witnesses were two in number. Relevant parts of the statements of the abovementioned witnesses in their cross-examination read as under:
Qamar Ijaz (PW-4).
"We did not try to apprehend accused Arshad alias Accha when he admitted his guilt."
Sarfraz Ahmad (PW-5).
"We did not try to apprehend the accused Arshad present in the court at the time of extra judicial confession."
The conduct of the prosecution witnesses was highly un-natural. We have further noted that both the abovementioned prosecution witnesses of extra-judicial confession were not enjoying any status of authority in the society which could have prompted the appellant to make extra-judicial confession before them. They were not in a position to get pardon for the appellant from the complainant. Qamar Ijaz (PW-4) stated that he was working in a private firm and his earning was Rs.20/25 thousands. He further stated that he never remained Chairman of the Union Council. Likewise, Sarfraz Ahmad (PW-5) stated during his cross-examination that he was carrying his own private business and his monthly income was 15/20 thousands. He also admitted that he never remained Chairman or Councilor of any Union Council. He further admitted that he never settled issues, disputes between the people of his locality. Relevant parts of the statements of abovementioned prosecution witnesses are reproduced hereunder for ready reference:-
Qamar Ijaz (PW-4).
"I am presently working in private firm earning about 20/25 thousands. I never remained Chairman of Union Council."
Sarfraz Ahmad (PW-5).
"I carry my own private business earning about 15/20 thousands monthly. I am father of 03-children. I never remained chairman or councilor of my union council. I never settled issues/disputes between people of my locality."
We are therefore, of the view that the prosecution evidence regarding the alleged extra-judicial confession made by the appellant before Qamar Ijaz (PW-4) and Sarfraz Ahmad (PW-5) is not worthy of reliance.
16. Insofar as the statement of Akbar Ali complainant (PW-6) is concerned, he has only stated regarding the registration of FIR against unknown accused regarding the abduction of his daughter Aiman and alleged extra-judicial confession of the appellant before the abovementioned prosecution witnesses, namely, Qamar Ijaz (PW-4) and Sarfraz Ahmad (PW-5). He did not state that the appellant made any extra-judicial confession before him. He also deposed regarding the pointation of the appellant towards Rakh Branch Canal, where the appellant had statedly thrown alive his daughter Aiman in the canal but nothing was recovered from the said place, statedly pointed out by the appellant. Moreover, the Medical Officer has not stated that the minor died due to drowning in the water, whereas, her dead body had already been recovered by the police therefore, the abovementioned evidence of the complainant regarding the alleged pointation of place, where the appellant statedly threw the minor in the canal, is of no avail to the prosecution.
17. Insofar as the evidence of the prosecution regarding the recording of C.D of cctv cameras, produced through Shan Ali (PW-9) and evidence of the shop keeper, namely, Muhammad Shahzad (PW-10), on whose shop cctv cameras were nstalled, is concerned, it is claim of the prosecution that in the above-referred cctv footage, minor Aiman was lastly seen alive in the company of the appellant. We have however, noted that Muhammad Shahzad (PW-10) stated that initially he refused the complainant party to see the recording of his cctv cameras but subsequently, the complainant party approached him through the inhabitants of the area whereupon, he allowed them to see the recording of his cctv cameras. He also stated that one of the persons went inside and checked the recording of cctv cameras and the said person took his USB. He did not mention the name of the person who checked the cctv cameras of his shop and took USB of the said cameras. His statement in this respect is completely silent. It is further noteworthy that he did not state that any police official also accompanied at the time of checking the recording of cctv cameras rather he stated that he was approached by the inhabitants of the area but he did not disclose the name of any inhabitant of his area who approached him and took the USB of the recording of his cctv cameras. He categorically stated during his cross-examination that he did not join the investigation in police station, whereas, on the other hand, Zafar Iqbal S.I, who was Investigating Officer of this case has stated that on 04.05.2017, he along with other police officials and the complainant reached at Butt autos, Mansoor Abad (shop of Muhammad Shahzad PW-10) and watched the recording of cctv cameras which were installed at the said shop. He further stated that CD recording of cctv cameras was handed over to him by Muhammad Shahzad (PW-10) and as such, there are glaring contradictions in the prosecution case regarding the recovery and safe custody of CD of cctv cameras. It is further noteworthy that according to the evidence of Zafar Iqbal S.I (PW-8), the complainant Akbar Ali (PW-6) saw the recording of cctv cameras of the shop of Muhammad Shahzad (PW-10) and with the help of said recording, the complainant identified the appellant in the company of his daughter (minor Aiman) on the relevant date and time but Akbar Ali complainant (PW-6) did not utter a single word in his statement recorded by the learned trial Court that he saw the recording of cctv cameras of the shop of Muhammad Shahzad (PW-1) through which he identified the appellant in the company of his daughter on the relevant date and time. He did not state that he ever visited the shop of Muhammad Shahzad (PW-10) or recording of cctv cameras of abovementioned shop was seen by him and the same was taken into possession by Zafar Iqbal S.I (PW-8) in his presence.
Insofar as the evidence of Shan Ali (PW-9) is concerned, although he stated that on 08.05.2017 Zafar Iqbal Sub-Inspector (PW-8) along with Akbar Ali complainant (PW-6) and others came to his shop and they produced before him a clip of cctv camera dated 25.04.2017 wherefrom he prepared copy of the said clip and handed over to Zafar Iqbal Sub-Inspector (PW-8) which was taken into possession vide recovery memo (Exh.PF) but during his cross-examination, he stated that he was middle pass and he had not passed any special diploma in computer science. Relevant part of his statement in this respect reads as under-
"I am middle pass. I have not passed any special diploma in computer science."
It is therefore, evident that Shan Ali (PW-9) is not a duly qualified expert to prepare C.D from a footage of cctve camera. As observed earlier, Muhammad Shahzad (PW-10) has not stated that he handed over the cctv footage of the cameras installed in his shop to Zafar Iqbal, Sub-Inspector (PW-8). There is no prosecution evidence of last seen available on the record against the appellant. No witness has stated that he has lastly seen alive the minor Aiman in the company of the appellant on the day of occurrence. The abovementioned evidence of cctv footage can be considered at the most as last seen evidence against the appellant but it is noteworthy that the distance between the place where the minor Aiman was seen in the company of the appellant (Butt autos/shop of Muhammad Shahzad PW-10 situated in Mansoor Abad) and the place i.e. Jhal Khanoo-aana canal, where the minor Aiman was allegedly thrown by the appellant in the water or his dead body was recovered, has not been brought on the record by the prosecution. Although CD of cctv cameras recording has been produced in the prosecution evidence but no specific date and time has been mentioned by any prosecution witness that as to when the minor Aiman was seen alive in the company of the appellant in the said cctv cameras recording. It is by now well settled that in order to believe the evidence of last seen, there should be close proximity between the time and place of recovery of dead body of the deceased or the place of occurrence and the time and place where the deceased was lastly seen alive in the company of the accused, but as mentioned earlier nothing in this respect has been brought on the record during the evidence of prosecution witnesses. The apex Court of the country disbelieved the evidence of last seen in the case of 'Fayyaz Ahmad v. The State' (2017 SCMR 2026), when the abovementioned facts/ingredients were missing in the prosecution evidence. Under the circumstances, the above-referred prosecution evidence of last seen is not worthy of reliance. Even otherwise, the appellant cannot be convicted and sentenced only on the basis of last seen evidence without strong independent corroboration of unimpeachable character which, in our view, is very much lacking in this case. Reliance in this respect may be placed on the case of 'The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others' (2021 SCMR 873), wherein at page No. 953, it was observed as under:-
"66. "Last seen" evidence is merely a circumstantial evidence, and that too a weak type of evidence, which alone cannot sustain the weight of a capital punishment, and would require other independent corroborative evidence to effect conviction. In a case of murder, where the prosecution case rests on "last seen" evidence, then corroboration would be required from other circumstantial evidence."
Similar view was taken in the case of 'Zafar Abbas v. The State' (2010 SCMR 939).
18. As per prosecution's own case, no weapon was used during the occurrence and as such, nothing was recovered from the possession of the appellant during the course of investigation.
19. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt. It is by now well settled that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubts about the prosecution story. In the case of 'Tariq Pervez v. The State' (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-
'5......The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of 'Muhammad Akram v. The State' (2009 SCMR 230), at page 236, observed as under:-
"3......It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a 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."
20. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept Criminal Appeal No. 193971-J of 2018 filed by Muhammad Arshad alias Accha appellant, set aside his conviction and sentence recorded by the learned trial Court and acquit him of the charges by extending him the benefit of doubt. Resultantly, Murder Reference No. 155 of 2018 is answered in the negative. The appellant Muhammad Arshad alias Accha is in custody, he be released from the jail forthwith if not required to be detained in any other case.
JK/M-144/L Appeal allowed.