The State vs Muhammad Shabbir

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

1 Murder Reference No. 635 of 2017 The State vs. Muhammad Shabbir

2.Crl. Appeal No. 119374 of 2017 Muhammad Shabbir vs. The State etc.

JUDGMENT

Date of hearing: 25-11-2021 Appellant by: Mrs. Sheeba Qaiser, Advocate State by: Mr. Munir Ahmad Sial, DPG.

Complainant by M/s Muhammad Kamran ur Rashid Meyo and Tahir Saeed Safoori, Advocates.

MUHANMMAD TARIQ NADEEM, J: - Through this single judgment, we intend to dispose of Crl. Appeal No. 119374 of 2017 filed by Muhammad Shabbir, appellant against his conviction and sentence along with Murder Reference No.635 of 2017, transmitted by learned trial court for confirmation or otherwise of death sentence of the appellant Muhammad Shabbir being originated from the same judgment dated 25-11-2017 passed by learned Additional Sessions Judge, Pir Mehal, District Toba Tek Singh in case FIR No.314 dated 14-12-2016, under Section 302, 34 PPC registered at Police Station Arroti, District Toba Tek Singh, whereby, the learned trial court, convicted and sentenced the appellant as under:- U/s 302 (b) PPC sentence to death on two counts for committing murder of Muhammad Jaffar and Mst. Razia Bibi with the direction to pay a sum of Rs.2,00,000/- each as compensation under Section 544- A Cr.P.C. to the legal heirs of both the deceased Muhammad Jaffar and Mst. Razia Bibi, in default thereof to further undergo six months S.I.

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2.The brief facts as narrated in FIR (Ex.PA/2) lodged by Muhammad Arif, complainant (PW.1) are that he was working as labourer and his younger brother Muhammad Jaffar (deceased) was also labourer by profession, who used to run a bull cart and to load soil and burning wood to supply in the houses of people. Muhammad Jaffar (deceased) had good relations with Muhammad Shabbir, appellant and they had visiting terms with each other. Muhammad Shabbir, appellant had suspicion that Muhammad Jaffar had developed illicit relations with his better half. On 14-12-2016 at about 10:00 a.m., he (complainant) along with Muhammad Jaffar (deceased) were at their house. In the meantime, Muhammad Shabbir (appellant) came there and called Muhammad Jaffar (deceased) and took him to his house for some piece of work. After considerable period, he did not come back upon which he (complainant) along with Jahangir and Abdul Qadir, PWs went to the house of Ghulam Shabbir at about 11:00 a.m., when they reached at the gate of the house of Muhammad Shabbir, appellant, the gate was bolted from inside and they heard the screams from inside of the house. He along with PWs peeked into the house from the upper side of the gate and saw that Muhammad Shabbir, appellant forcibly laid Muhammad Jaffar (deceased) on the ground and he was inflicting Churri blows on the person of Muhammad Jaffar and an unknown person was also present along with him. They witnessed the occurrence and raised lalkara upon which Muhammad Shabbir, appellant and unknown accused after unbolting the gate fled away from the place of occurrence while brandishing the churri. They immediately attended Muhammad Jaffar (deceased) and witnessed that there were injuries on his left and right side of his chest, on his right deltoid, left knee and on left wrist. Muhammad Jaffar succumbed to the injuries at the spot. They also witnessed that Mst. Razia Bibi wife of Muhammad Shabbir, appellant was lying dead in the room. There were also injuries on the left side of her head, underneath her left ear and on the left flank. It was further alleged in

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the FIR that Muhammad Shabbir, appellant murdered his wife namely Mst. Razia Bibi and Muhammad Jaffar due to suspicion of illicit relations. Hence, the FIR.

3.After completion of investigation, a report under section 173 Cr.P.C. was prepared and submitted before the learned trial court. The learned trial court after observing all codal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge u/s 302 PPC against the appellant to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as 12 witnesses during the trial; Muhammad Arif, complainant (PW.1) and Abdul Qadir (PW.2) have furnished the ocular account. Muhammad Arif, complainant (PW.1) is also the witness of recovery of Churri (P-1) which was taken into possession vide memo (Ex.PD) Mian Muhammad Shahzad Ashraf, draftsman appeared as (PW.12), who prepared scaled site plan of the place of occurrence as (Ex.PM and Ex.PM/1). Ghulam Mustafa, SI (PW.11) being Investigating Officer stated about the various steps taken by him during investigation of the case. The medical evidence was furnished by Doctor Asif Mumtaz, MO (PW.6) and Doctor Rafia Batool, WMO

(PW.9).

Rest of the prosecution witnesses are formal in nature. The prosecution gave up Muhammad Jahangir and Musharaf, PWs being unnecessary. The prosecution also produced documentary evidence in the shape of Ex.PA to Ex.PO.

4.Thereafter the statement under section 342 Cr.P.C. of the appellant was recorded wherein he refuted the allegations leveled against him and professed his innocence. While answering to a question, “Why this case was made against you and why the PWs have deposed against you?, appellant replied as under:- “ Jaffar deceased was habitually womanizer. People of the locality have been making complaints to complainant regarding the loose character of deceased Jaffar. Majority of the people of the street in which my house is situated did not like the visit of Jaffar deceased

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in my street and they hate him. Possibility is there that people of the locality on seeing Jaffar and Razia in my house in compromising position had murdered them. I am a poor man having 61 years’s age and had made a shop of furniture on Kamalia Sindhlianwali road on the days of occurrence. I used to do business all the day long in my shop while my young brother and my young son also do business in the surrounding area of Sindhlianwali city on the day of occurrence when my son reached in our house he firstly saw the dead body of Jaffar and Razia Bibi in my house and informed the people of the locality. People gathered there and inform the police regarding this occurrence. Complainant as well as PWs firstly reached at the hospital Sindhlianwali where dead bodes were lying. This is unseen occurrence. Neither I was present at the place of occurrence nor I committed this occurrence. I have been falsely implicated in this case as complainant is a greedy person and want to take hold off upon my house by putting the pressure of this case. PWs are closely related to the complainant as well as deceased Jaffar, therefore, they deposed falsely against me. Complainant also deposed falsely against me with intent to seize my house. ”

The appellant neither opted to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegation leveled against him, nor produced any defence evidence.

5.Upon conclusion of the trial, the learned trial Court vide impugned judgment dated 25-11-2017 convicted and sentenced the appellant as mentioned above.

6.In support of his appeal, learned counsel for the appellant submitted that the appellant has been falsely implicated in this case by the complainant party; that occurrence in this case allegedly took place on 14-12-2016 at 11:00 a.m., whereas the matter was reported to the police on the same day at about 6:55 p.m. i.e. approximately with the delay of 07 hours and 55 minutes. Similarly, postmortem on the dead body of Muhammad Jaffar, deceased was conducted on 14- 12-2016 at 07:00 p.m.. with the delay of 08 hours; likewise, autopsy on the dead body of Mst. Razia Bibi, deceased was conducted on 14-

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12-2016 at 08:30 p.m. with the delay of 9 1⁄2 hours, which delay has created doubt in the prosecution case; that the eye witnesses of the case are not only inter-se as well as related to the deceased Muhammad Jaffar, they are inimical towards the appellant and are chance witnesses, therefore, their evidence is not reliable without independent corroboration, which is very much lacking in this case; that no independent witness from the vicinity where the occurrence took place has been produced by the prosecution either during the investigation or before the learned trial court; that the medical evidence is in conflict with the ocular account of the prosecution; that according to the prosecution story complainant along with PWs Jahangir and Abdul Qadir was present at the time and place of occurrence and in their presence the appellant along with an unknown accused, murdered Muhammad Jaffar and Mst. Razia Bibi; the accused persons were not armed with any formidable weapon but even then the PWs did not physically intervened, this fact reveals that the PWs were not present at the time and place of occurrence; that a fake recovery of weapon of offence was planted against the appellant; that the prosecution has failed to prove the motive part of the case; that it is an established view of the Apex Court of the country that a slightest doubt in the prosecution evidence is sufficient to give benefit of doubt to the accused and the case in hand is full of doubts, therefore, by accepting his appeal, the appellant may be acquitted of the charge.

7.Conversely, learned Deputy Prosecutor General assisted by the learned counsel for the complainant has argued that the appellant is named in FIR with specific role of inflicting churri blows on the body of Muhammad Jaffar and committing murder of Mst. Razia Bibi, deceased, which is borne out from postmortem examination reports of the deceased. The appellant committed the brutal murder of two innocent persons; that the prosecution witnesses had no reason to falsely implicate the appellant in this case or to substitute him in lieu of real culprit, which is a rare phenomenon; that the

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medical evidence fully supports the ocular account; that the prosecution witnesses are consistent on each and every material point and there seem no discrepancies in their statements; that there was no previous ill-will or enmity between the parties, so possibility of false implication of the appellant in this case is ruled out; that the prosecution has proved its case against the appellant beyond any reasonable doubt, thus, the appeal filed by the appellant may be dismissed and murder reference may be answered in affirmative.

8.We have heard the arguments of the learned counsel for the appellant and learned Deputy Prosecutor General assisted by learned counsel for the complainant assiduously and also scanned the record minutely with their able assistance.

9.The detail of the prosecution case as set forth in the FIR (Ex. PA/2) and in the complaint (Ex.PA), has already been given in paragraph No.3 of this judgment, therefore, there is no need to repeat the same.

10.The incident in the present case, according to the prosecution, was alleged to have taken place on 14-12-2016 at 11:00 a.m. within the area of Busti Dur Abad Sindhlianwali, Mouza Shahpur, about 07 miles towards east from Police Station and the same was reported by Muhammad Arif, complainant (PW.1) through complaint (Ex.PA), recorded by Ghulam Mustafa, SI (PW.11) on 14-12-2016 at 06:30 p.m. on the basis of which formal FIR (Ex.PA/2) was chalked out by Abdul Majeed 613/HC (PW.3) at 6:55 p.m. within a period of almost 07 hours and 55 minutes. No plausible explanation for the above- mentioned delay in reporting the matter to the police has been brought on the record. Even while appearing before the learned trial Court the prosecution witnesses did not utter even a single word about the above said delay. Therefore, we hold that this delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version. Reliance is placed on case law titled as “Altaf Hussain vs. The State” (2019 SCMR 274).

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11.We have also noted that as per postmortem report (Ex.PF), the autopsy on the dead body of Muhammad Jaffar (deceased) was conducted on 14-12-2016 at 07:10 p.m. with the delay of 08 hours; likewise, autopsy (Ex.PH) on the dead body of Mst. Razia Bibi, deceased was conducted on 14-12-2016 at 08:30 p.m. with the delay of 9 1⁄2 hours. Keeping in view, the above mentioned gross delay in the post mortem examination, an adverse inference can be drawn that the prosecution witnesses were not present at the time of occurrence and the intervening period had been consumed in fabricating a story after preliminary investigation and to wait for the relatives of the deceased, who were made witnesses subsequently, otherwise there was no justification for conducting post-mortem examinations on the dead bodies of the deceased. . Reliance in this regard is placed upon the cases titled as “Muhammad Adnan and another Vs. the State and others” (2021 SCMR 16) wherein the Hon’ble Supreme Court of Pakistan has held as under:- “....the matter was reported to police on the same night at 09:45 p.m. whereas the FIR was registered at 10:30 p.m., Surprisingly, post- mortem examination on the dead body of Muhammad Tayyab was conducted on 19-09- 20018 at 6:30 a.m. Dr. Muhammad Sharif (PW6) who conducted autopsy stated in his cross examination that at THQ, Hospital, Depalpur, the arrangements for conducting posts-mortem examination are available at night; that he was on duty in the hospital on that night; that his duty started from 8:00 p.m. on 18-09-2008 till 08.00 a.m. on 19-09-2008; that he received the police papers at 6.30 a.m. on 19.09.2008. There is no explanation on record why the autopsy on the dead body of Muhammad Tayyab was conducted with delay of more than nine hours.”

Wisdom is also derived from the judgments reported as “Sufyan Nawaz and another vs. The State and others (2020 SCMR 192), Irshad Ahmad v. The State” (2011 SCMR 1190), “Muhammad

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Ashraf v. The State (2012 SCMR 419) and “Khalid alias Khalidi and 2 others v. The State (2012 SCMR 327).

12.In an attempt to make it a case of direct evidence against the appellant, the prosecution has heavily relied upon the statements of Muhammad Arif, complainant (PW.1) and Abdul Qadir (PW.2), who happened to be the real brother and cousin of Muhammad Jaffar, deceased respectively. The alleged occurrence took place inside the house of Muhammad Shabbir, appellant situated at Busti Dur Abad Sindhlianwali, Mouza Shahpur about 07 miles towards east from Police Station Arroti, District Toba Tek Singh. The presence of the above-mentioned eye-witnesses at the spot at the relevant time was not natural. It was, therefore, mandatory for the above mentioned eye witnesses to justify their presence at the place of occurrence at the relevant time through some cogent reason. In order to justify their presence at the spot at the relevant time, both the above mentioned eye witnesses stated that on 14-12-2016 at about 10:00 a.m. Muhammad Shabbir, appellant came to the house of Muhammad Jaffar (deceased), who had good relations with him and had also visiting terms with his family. Muhammad Shabbir, appellant had suspicion that Muhammad Jaffar (deceased) have illicit relation with his wife Mst. Razia Bibi (deceased), who took Muhammad Jaffar (deceased) with him to his house. After considerable period Muhammad Jaffar (deceased) did not come back upon which Muhammad Arif, complainant (PW.1) along with Abdul Qadir (PW.2) and Jahangir (jettisoned PW) went to the house of Muhammad Shabbir, appellant at 11:00 a.m. and witnessed the occurrence. We have observed that eye witnesses had failed to prove their presence at the time of occurrence because the story narrated in the FIR (Ex.PA/2) is not appealing to a prudent mind. It was in the knowledge of Muhammad Arif, complainant (PW.1) that Muhammad Shabbir, appellant had suspicion that Muhammad Jaffar (deceased) had illicit relation with his wife Mst. Razia Bibi (deceased) then the question arises why he (complainant) and eye

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witnesses Abdul Qadir (PW.2) and Jahangir (jettisoned PW) allowed Muhammad Jaffar (deceased) to accompany with Muhammad Shabbir, appellant. Similarly, if there were cordial relations between Muhammad Shabbir, appellant and Muhammad Jaffar (deceased) then PWs had no need to go at the house of Muhammad Shabbir, appellant after an hour. Both the above mentioned eye witnesses, therefore, could not justify the reason given by them for their presence at the place of the occurrence at the relevant time. They are, therefore, chance witnesses and as such their evidence is not free from doubt. The Hon’ble Supreme Court of Pakistan in the case of “Mst. Sughra Begum and another Vs. Qaiser Pervez and others” (2015 SCMR 1142) at para No.14, observed regarding the chance witnesses as under:- “14... A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt..”

Similar view was reiterated in the case of “Muhammad Irshad Vs. Allah Ditta and others” (2017 SCMR 142). Relevant part of the said judgement at Para No.2 reads as under:-

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“......Muhammad Irshad complainant (PW8) and Rab Nawaz (PW9) were chance witnesses and the stated reason for their presence with the deceased at the relevant time had never been established before the trial court through any independent evidence....”

13.It is further noteworthy that conduct of the above mentioned eye witnesses is highly unnatural. According to the prosecution story Muhammad Shabbir, appellant and his unknown co-accused, who was not shown to be armed with any weapon were present inside the house of occurrence. After perusing the record, it manifests that according to scaled site plan (Ex.PM), the house of occurrence has only one exit door and according to the prosecution story, the eye witnesses who were three in numbers were present outside the gate of Muhammad Shabbir, appellant and after committing the occurrence, the appellant along with his an unknown co-accused fled away from the place of occurrence while brandishing churri after opening the door. Muhammad Shabbir, appellant was not armed with any lethal weapon like pistol or gun etc. to terrify the prosecution eye witnesses from saving their loved one (deceased) when he was allegedly attacked by the accused party, then as to why the eye witnesses did not interfere to rescue the deceased and why the eye witnesses did not try to apprehend the accused persons. It was not much difficult for them to apprehend him. Thus, the passive conduct of the witnesses by not making resistance or rescuing the deceased or letting the appellant to escape unhurt has further created a reasonable doubt with regard to their presence at the crime scene at relevant time. We may refer here the case of “Liaqat Ali Vs. The State” (2008 SCMR 95), wherein at Para No.5-A of the judgment, the Hon’ble Supreme Court of Pakistan was pleased to observe as under:- “..Having heard learned counsel for the parties and having gone through the evidence on record, we note that although

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P.W.7 who is first cousin and brother-in- law of Fazil deceased claims to have seen the occurrence from a distance of 30 ft. (as given in cross examination) and two other witnesses namely Musa and Ranjha were also attracted to the spot but none rescued Fazil deceased and appellant had a free hand to inflict as many as 9 injuries on his person. The explanation given by these witnesses that since Liaqat Ali had threatened them, therefore, they could not go near Fazil deceased to rescue him is repellant to common sense as Liaqauat Ali was not armed with a fire-arm which could have scared the witnesses away. He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful..”

Similar view was reiterated by the august Supreme Court of Pakistan in the cases of “Pathan Vs. the State”(2015 SCMR 315) and “Zafar Vs. The State and others” (2018 SCMR 326). Under the circumstances, it can be safely held that both the above mentioned eye witnesses were neither present at the spot at the relevant time nor they had witnessed the occurrence.

14.Another aspect of the case which made the presence of Muhammad Arif, complainant (PW.1) and Abdul Qadir (PW.2) highly doubtful is that according to photographs (Ex.P10 & 10/1 and Ex.P11 & 11/1), which were taken into possession by the investigating officer vide seizure memo Ex.PL), the mouth and eyes of the deceased were found opened, which could not have happened in their presence, because, had they been present at the crime scene, they would have closed the mouth and the eyes of the deceased, who was their close relative. The Hon'ble Supreme Court of Pakistan while being confronted with a similar situation in the case of “Zahir Yousaf and another vs. The State and another” (2017 SCMR 2002) has observed as under:- "We have also noted that as per the inquest

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report (Ex.PG) eyes of Ghulam Sarwar (deceased) were open which makes the presence of the witnesses of ocular account at the time of occurrence doubtful because had they been present there they would have closed eyes of deceased who was their close relative."

15.As far as the medical evidence is concerned, according to the prosecution story both the eye witnesses along with Jahangir (jettisoned PW) peeked over the gate and saw the occurrence because the gate was bolted from inside. It is simply narrated in the FIR (Ex.PA/2) that the eye witnesses saw that Muhammad Shabbir, appellant was inflicting successive churri blows upon the body of Muhammad Jaffar (deceased). Not a single PW has stated in his evidence that they witnessed Muhammad Shabbir, appellant while inflicting specific injuries, however, in the FIR (Ex.PA/2), it has been mentioned that when Muhammad Arif, complainant (PW.1) and other PWs attended Muhammad Jaffar (deceased) and observed that there were injuries on his left and right side of his chest, on his right limb and left knee and on left wrist, who succumbed to the injuries, whereas Mst. Razia Bibi (deceased) wife of the appellant was lying dead in a room having injuries on her left side of head, underneath her left ear and on the left flank. It is noteworthy that according to the postmortem report (Ex.PF) of Muhammad Jaffar (deceased), there were 11 injuries on his body whereas Muhammad Arif, complainant (PW.1) and Abdul Qadir (PW.2) have described only five injuries on the body of Muhammad Jaffar (deceased). These glaring contradictions between the ocular version and the medical evidence have sufficiently established that the alleged eye witnesses were not present at the spot at the relevant time, which aspect of the case prompts this Court not to place any reliance on them. Keeping in view the afore-stated circumstances, this Court is of the view that the prosecution version with regard to ocular account seems to be tainted, not inspiring confidence and result of due

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deliberations as well as consultations, hence the same cannot be given any legal credence. Reliance is placed upon the case law titled as “Ghulam Abbas and another Vs. The State and another” (2021

SCMR 23).

16.We are also conscious of the fact that the prosecution has made an abortive attempt to strengthen its case through the recovery of weapon of offence i.e Churri (P1) at the instance of Muhammad Shabbir, appellant on 28-12-2016 from his house and the report (Ex.PN) of Punjab Forensic Science Agency, Lahore, according to which human blood was found present on churri/knife (P1). According to the prosecution story, the appellant along with Churri fled away from the place of occurrence and on the other hand Churri (P-1) has been recovered from the Haveli of the appellant. It is not the prosecution case that the appellant threw Churri in his house and then fled away from the spot. Moreoever, the said Churri has statedly been recovered after 14-days of the occurrence from the house of the appellant, thus, it would not appeal to any prudent mind that after committing the incident, the appellant would keep the churri, stained with human blood, in safe custody for a long period of 14 days as he had ample opportunity during the above mentioned period to wash away the blood. In an identical case reported as “Basharat and another vs. The State” (1995 SCMR 1735), Hon’ble Supreme Court of Pakistan, while disbelieving the evidence of blood stained churi allegedly recovered from the accused after ten days from the occurrence, observed as under:- “11. The occurrence took place on 20.4.1988.

Basharat appellant was arrested on 28.4.1988. The blood-stained Chhuri was allegedly recovered from his house on 30.4.1988. It is not believable that he would have kept blood stained Chhuri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it...”

Taking guidance from the above dictum, we are of the view that it is not safe to rely on such a weak piece of prosecution

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evidence, which even otherwise is merely corroborative of direct evidence and is not itself the conclusive evidence of charge, hence, does not offer any help to the prosecution case in the absence of any trustworthy and confidence inspiring eye witness account.

17.Now the next piece of evidence which still remains in the field is the motive advanced by the prosecution behind the unfortunate incident, which, as per Muhammad Arif, complainant (PW.1) and Abdul Qadir (PW.2) was that Muhammad Shabbir, appellant had a suspicion that Muhammad Jaffar (deceased) and Mst. Razia Bibi (deceased) have illicit relation inter se. Prosecution evidence qua the motive is self-contradictory because on the one hand it is alleged that the appellant had suspicion of illicit relationship between his wife Mst. Razia Bibi (deceased) and Muhammad Jaffar (deceased) whereas, on the other hand the complainant and the PWs allowed Muhammad Jaffar (deceased) to go with the appellant to his house on the day of occurrence, without any hesitation. We have further noted that motive was only an oral assertion of the complainant and no material evidence was produced to substantiate the motive alleged by the prosecution, hence, we feel no hesitation to hold that the prosecution has failed to prove the motive part of the unfortunate occurrence. Although, the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution sets up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused. Reliance is placed upon the cases titled as “ “Manzoor Ahmed Shah and others Vs. The State and others” (2019 SCMR 2000), “Muhammad Ilyas and another Vs. Ameer Ali and another” (2020 SCMR 305), “Liaqat Ali and another Vs. The State and others” (2021 SCMR 780) and “Khalid Mehmood and other Vs. The State and others” (2021 SCMR 810).

18.We have considered all the pros and cons of this case and have come to an irresistible conclusion that the prosecution could

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not prove its case against the appellant beyond the shadow of doubt. It is, by now well established that it is the prosecution, which has to prove its case against the accused by standing on its own legs, but in this case the prosecution remained failed to discharge its responsibility. It is also well settled by now 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 doubt about the prosecution story. In case of "Muhammad Akram vs. The State" (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan, at page 236, was pleased to observe as under-- "13....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'.

Similar view was taken in the case of “Muhammad Imran Vs. The State” (2020 SCMR 857).

19.For the foregoing reasons, instant criminal appeal filed by Muhammad Shabbir, appellant is accepted, conviction and sentence awarded to him vide judgment dated 25-11-2017 passed by the learned trial court is set aside and he is acquitted of the charge leveled against him while extending the benefit of doubt in his favour. He shall be released forthwith if not required to be detained in any other case.

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20.Murder Reference No.635 of 2017 is answered in negative and death sentence passed by learned trial court against Muhammad Shabbir, appellant is not confirmed.

(Malik Shahzad Ahmad Khan) (Muhammad Tariq Nadeem) Judge Judge

Approved for reporting

Judge Judge

anjum