The State vs Haswar Shah etc.

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f-'-.

Y

(Revised Form of Blue SliP)

ORDER OF THE COURT.

IN THE LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR.

Case No. M. eal No.49412013/BWP 3 Crl.A.No. 1 1 1201 4&!YP.

r- Date of decision:- 18.04.2018.

a) Judgment approved for reporting. Yes/No

Whether any comment upon the conduct of YesNo the judicial officer or quality of the impugned judgment is desired to be made.

(In case the answer is in the affirmative, separate confidential note may be sentttg tht Registrar drawing his attention to the flrtic aspect.

rt

"\ ,.a Inifiai of thdJutl[e

Note:-

1.If the slip is used, the Court Associate must attach it on top of first page of the judgment.

2.bourt Associate may ask the Judge writing the Judgment whether the judgment is to be approved for reporting; or any comment is to be made about the Judicial Officer/quality of judgment' 3. This slip is only to be used when some action is to be taken.

t- Stereo. HCJDA 38

JUDGMEI{T SHEET

IN THE LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR

JUDICIAL DEPARTMENT

Murder Reference No. 56 of 2013/BWP (The State v. Haswar Shah & another)

Criminal Appeal No. 494 of 2013/BWP (Haswar Shah & another v. The State & another) Criminal Appeal No. 11, of 2014/BWP (Syed Amjad Hussain Shah v.lulst.Shamim Bibi alias Shami & 3 others)

JUDGMEI{T

DATE OF 18.4.2018

HEARII{G

Appetrlants Syed Aasim AIi Bokhari, Advocate by:

State by: Ch. AsghaY AIi GiEl, Depufy Prosecutor General

Complainant Mr. Tallat Mehmood Kake za\Advocate by:

TARIO SALEEM SHEIKH. J. - By this consolidated judgment we propose to decide Murder Reference No. 56/2013/BWP, Crl. Appeal No. 494l20l3lBWP and Crl. Appeal No.lllzIl lBWP arising from case FIR No. 178/2010 dated 1.5.2010 registered at Police Station Saddar Hasilpur, District Bahawalpur, for offences under Sections 302/376 PPC.

2.Brief facts of the case are that on 1.5.2010 Syed Amjad Hussain Shah (PW-4) addressed a cornplaint Exh.PB to the SHO \ Police Station Hasilpur stating that he was a resident of Basti Noor +.b--.-_ -tr*tF '- Shuh, Mauza Chohan, and was an agriculturist by profession' On 30.4.2010 at about 6:00 p.m., his daughter Faryal Bibi (aged 7/8 \_ \ years) went out in the street to play. She did not return for about one ihour which worried him and he set out in her search. He could not

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M.lt.Nq.56/2013/BWP -2- Crl. AnJeal No.494l201 3/BWP.

Crl. Appeal No.1 1/2014/BWP.

find her the whole night even though he looked for her in every nook and corner of the village, including the graveyard. The following morning, at about 6/7:00 a.m., he along with his brother Syed Makhdorn Hussain Shah (PW-5) and Syed Shahzad Hussain Shan (given up PW) again went towards the graveyard while searching for Faryal Bibi where they saw her dead body lying on a branch of a tree and blood was oozing frorn her mouth. Some of it had also dropped on the ground. They also noted that her Shalwar was blood-stained and neck was scratched which indicated that she had been raped and then stranguiated. The Complainant suspected that Haswar Shah alias Baghay Shah (Appellant in Crl. Appeal No.49412013/BWP), Syed Sadaqat Ali Shah and Syed Rehmat Ali Shah had committed the offence because he had refused to give the hand of his elder daughter in marriage to Irshad Shah. The afore-named accused and Irshad Shah had been extending threats. of dire consequences to him. Manzoor Ahmed/SI (PW-12) received-.tlre said complaint and on its basis registered FIR No.178/2010 (Ehx.PB/l) on 1 .5.2010 at 8:20 a.m.

3.The investigation of the case was also entrusted to Manzoor Ahmad/SI (PW-12). He went to the graveyard where the dead body of Faryal Bibi was found, prepared Injury Statement (Exh.PM), Inquest Report (Exh.PN), rough site plan (Exh.PO) and dispatched the corpse to THQ Hospital, Hasilpur, for autopsy under the escort of Elahi Bakhsh 2021C (PW-1). He collected blood stained soil from underneath the dead body of Faryal Bibi and secured it vide Recovery Memo Exh.PF. Through a separate Recovery Memo Exh.PG he took into possession the branch of the tree on which her dead body had been placed. After post-mortem examination was done, Elahi Bakhsh Constable (PW-l) produced before him Postmortem Report (Exh.PJ/l-4), pictorial diagram (Exh.PWl-z) and last wom blood stained clothes of the deceased which he secured vide Recovery Memo Exh.PA. Then he handed over the corpse to the legal heirs and . deposited the aforesaid articles with the Muhar:rar for safe custody. On 3.5.2010, he summoned Haswar Shah (Appellant in Crl. Appeal

Crl. Anpeal No.494l2013/BWp. -3 Crl. ApLeal No.I I/2014lBWp.

No.494/2013lBwP), sadaqat Shah and Rehrnat shah for invesrigation but kept their arrest pending. on 4.5.2010, he took the said accused to Lahore for their DNA test. on 5.5.2010, he interrogated, Afzal shah and on 11.5.2010, he took him and Jabbar Shah (Appellant in crl.

Appeal No.494/2013/Bwp) to Lahore for their DNA test. on 12.5.2010, the complainant made a written application Exh.pc wherein he nominated Appellants Haswar shah, Jabbar shah and three others, namely, Irshad Shah, Mukhtar Shah and Mst.shamim Bibi (who have since been acquitted). an 14.5.2010, the Investigation officer also recorded statements of pws syed Makhdoom shah (pw- 5), Asif shah (Pw-6), zafar Iqbal (pw-10) and Muhammad \ Ati (pw-

11)under section 161 cr.p.c. on 14.5.2010, he anested Haswar shah, Jabbar Shah, Mukhtar shah and on 15.s.2010 took Mst.shamim Bibi into custody. on 17.5.2010, the coraplainant got his statement recorded with him to the ef{ect that he had accepted the plea of innocence of sadaqat shah anii\Rehmat shah whereupon they were exonerated. on 19.5.2010 Manzoor Ahrnad/sl got Haswar shah and Jabbar shah medically examined for their potency. During investigation Haswar shah and Jabbar Shah pointed out the place of occuffence regarding which Memos Exh.pD & pE and site plan Exh.PP were prepared. on 29.5.2010 he got prepared scaled site plan Exh.PL regarding the said place through patwari Muhamm ad AfzaI (Pw-9). Manzoor Ahmad/SI found that all the five accused were involved in the commission of offence. Report under Section 173 Cr.P.C was submitted accordingly.

4' The learned Additional Sessions Judge sum-moned the Appellants and co-accused Mukhtar shah, Irshad Shah and Mst.shamim Bibi for trial and indicted thern on g.7.2010. They denied the charge and claimed trial. In order to prove the charge the prosecution examined 12 witnesses in all. complainant Syed Amjad 'Hussain Shah appeared as pw-4. Syed Makhdoom Hussain shah (Pw-5) and Muhammad Asif Gillani (pw-6) testified abour extra- iudicial confessions of Appellants Haswar shah & Jabbar Shah and r

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Crl. Anneal No.l l/2014lBWp.

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co-accused Mukhtar. zafar Iqbal (pw-10) and Muhammad Ali (pw-

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i 1) furnished last seen evidence. Dr. Muhammad saleem Arif (pw-7)

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and Dr. Kalsoom Iqbal (pw-8) provided medical evidence. The

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Investigation officer, Manzoor Ahmad/sl (pw-12), gave details of

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his investigation and the evidence he coliected in this case. The I remaining witnesses were formal in nature. on 2.l0.z0l3,learned

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prosecutor closed the prosecution evidence after tendering reports of the chemical Examiner (Exh.pe and Exh.pr), DNA (Exh.pR/l), Histopathoiogist (Exh.P S ) and S erologi st (Exh.pU).

5.After the close of prosecution evidence the leamed trial court gxamined Haswar shah and Jabbar Shah and their co-accused under Section 342 cr.p.c. They all refuted the allegations levelled against them and professed innocence. when Haswar Shah was asked asto why he had been implicated in this case and why the pws had deposecl against him he stated fut it was a blind murder and there was no evidence against him to connect hirn with it. The police arrested many people during the investigation but exonerated them. He added that he got engaged with complainanios daughter Aqsa Bibi but he snapped that tie. The Complainant and the pws were closely related to each other. They had a grudge against him and exploited the occasion to take revenge from him ancl other members of his family. They concocted a story in connivance with the police and entangled him, his father Mukhtar Shah, mother Shamim Bibi, maternal uncle Jabbar shah and brother Irshad Shah in this case. He maintained that even the motive set out in the FIR was farse. Irshad shah was married 5/6 yearsprior to the occurrence and never ever demanded ihe hand of the complainant's daughter. Jabbar Shah adopted the plea of Haswar Shah. Neither these two Appellants nor their co-accused got recorded their statements on oath under Section 340(2) Cr.p.C. They did not examine any witness in their defence either.

6.On the conclusion of the trial, vide judgment dated

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f- 12.12.2013, the learned Additional Sessions Judge acquitted Mukhtar

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However, he shah, Irshad shah and Mst.shamim Bibi alias Shammi. as under:

convicted and sentenced Haswar shah and Jabbar Shah

i)convicted under section 302(b) PPc for committing Qatl- e_Amd of Faryal pli,i and sentenced to death with a direction to pay Rs.1,00,000/ each as compensation lg lh: legal heirs or the cleceased in terms of Section 544-A Cr.P.C.

Convicted under Section 37 6 PPC and sentenced to death ii) with fine of Rs.1,00,000/- each, half of which (if recovered) in would be paid to the legal heirs of the deceased and default thereof to undergo simple imprisonment for a further period of two years. Further compensation of heirs of Rs.50,000/- was also ordered to be paid to the legal deceased in terms of Section 544-A Cr.P.C.

7.Haswar Shah and Jabbar Shah have filed Crl' Appeal whereas the No. 49412013/BWP against their conviction and sentence learned Additional Sessions Judge has sent Murder Reference

No. 56l2oI3lBwP to this court under Section 374 Cr'P'C' for Complainant confirmation of their death.slqtence. On the other hand, SyedAmjadHussainShahhasfiledCriminalAppeal No.l1/2014IBWP to assaii the acquittal of Mst.Shamim Bibi alias

Shammi, Mukhtar Shah and Irshad Shah'

8.In support of Crl' Appeal No'494/2013/BWP Syed Aasim Ali Bukhari, Advocate, contended that it was a blind murder. The Complainant had falsely implicated the Appellants in this case to take engagement with his revenge because Haswar shah had snapped his There was no daughter Aqsa Bibi and had refused to marry her' tangible evidence to connect the Appellants with the offence' He interested witnesses argued that, firstly, allthe private witnesses were Secondly, there were being related inter se and with the Complainant. had been glaring contradictions in the prosecution evidence which of the co-accused ignored by the iearned trial Court. Thirdly, acquittal a serious dent of the Appellants by the leamed trial Court had created in the prosecution's case with regard to the involvement of the

furnished by Zafar Appellants as well. Fourthly, the last seen evidence i t'* II Iqbai(Pw-10)wasconcocted.Hewasthematernalcousinofthe

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Crl.

- Anneal No.494 12013/BWP.

Crl.

- Anneal No. lll20l 4/BWP.

Cornplainant yet he did not inforrn him or the police for 14 days that on 30.4.2010 he had seen the Appellants following Faryal Bibi. Similarly the testimony of Muhammad Ali (PW-l1) was fabricated who alleged that he saw Mukhtar Shah and Shamim Bibi carrying a sack to the graveyard. Fifthly, the Appeilants had no occasion to made extra-judicial confession which was created to strengthen the prosecution case. Sixthly, the motive was not proved. Lastly, it was a case of circumstantial evidence but the prosecution failed to link the Appeliants with the commission of the offence. The learned counsel prayed that this appeal may be accepted and the Appellants be acquitted of the charge.

g. on the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the Complainant vehemently opposed this appeal. He contended that the prosecution had proved its case against the Appellants Haswar Shah and Jabbar Shah beyond any shadow of doubt tirrough the evidence of last seen and extra-judicial confession which was colroborated by medical evidence and motive. The Appellants had committed a heinous offence. Therefore, the death sentence awarded to them by the learned trial Court be maintained. He prayed that the Appellants'appeal may be dismissed and the Murder Reference be answered in the affirmative.

10.So far as crl. Appeal No.l1/2014iBWP is concerned, it was argued that Irshad Shah, Mukhtar Shah and Shamim Bibi were also involved in the occurrence. The learned trial Coufr had misread the evidence to their extent and had erred in acquitting them. It was prayed that they may also be punishcci in accordance with law.

11.We have heard the lea,ned counsel for the parties and have gone through the available record with their able assistance.

12.The unfortunate incident in which Faryal Bibi was ravished and murdered took place rvithin the territorial limits of Police

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7l Crl. Anpeal No.494l2013/BWP.

Crl. Appeal No.1 1/2014/BWP.

Station Saddar Hasilpur and FIR No.178i2010 (Exh.PB/1) about this incident was registered on 1.5.2010 at 8:20 a.m. at the instance of Syed Amjad Hussain Shah (PW-4) who was the father of the deceased. AdmittedlY, he was not the eye-witness of the occulrence.

He stated that his daughter left the house on 30.4.2010 to play in the street and went missing and on the following day her dead body was found lying on a branch of a tree in the graveyard. However, he suspected that Haswar Shah, Syed Sadaqat Ali Shah and Syed Rehmat Ali Shah were involved in the offence. On 12.5.2010, he made a supplementary statement (Exh.PC) stating that he had probed into the matter himself and had found that Haswar Shah, Jabbar Shah and Irshad Shah had actualiy cornmitted the murder of his daughter while Mukhtar Shah alongwith his wife Shamim Bibi carried her body to the graveyard and disposed it of. Then, on 17.5.2010, he made another statement in which he exonerated Sadaqat Shah and Rehmat Shah' Apart from his desire to enrolqmaxitnum number of people from the opposite side in this case, it appears from his deposition recorded during the trial that the aforesaid statements were based on the ,,findings" of the sniffer dog and a 'Khoji' (tracker) that he had privately arranged. Without commenting on the reliability and admissibility of the alleged findings, we observe that the prosecution does not rely on them and neither examined the dog trainer nor the tracker at the trial. Its case rests on the last seen evidence, the extra- judicial confessions of Haswar Shah, Jabbar Shah and Mukhtar Shah, medical evidence and the motive.

13.The evidence of the last seen furnished by-Zafar Iqbal (PW-10) is the cornerstone of the prosecution case. He deposed that on30.4.2010 at about 617:00 p.m. he was returning from the house of his mother-in-law to his own house when he saw Haswar Shah and Jabbar Shah following Faryal Bibi in the street. He subsequently learnt that she was raped and murdered. Perusal of the record shows .that he joined the investigation and made a statement to this effect on I4.5.2Ot0.It is intriguing that Zafar Iqbal was the maternal cousin of

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M.R.No.56/2013/BWP iYl.l\.1\\r.s/v'-vrv' Y ' - ^

Crl. Appeal No.494l201 3/BWP' Crl. Aprreal No.1 1/2014/BWP'

above-said fact the Complainant yet he did not inform him about the he and kept mum for 14 long days. During his cross-examination attempted to explain this delay by taking the plea that he went to are afraid this Lahore on30.4.20i0 and came back on I2.5.20I0. we informed him about plea does not help him. He admitted that his wife relationship with the incident on i.5.2010. Keeping in view his close contact him or the the complainant, it was unnatural for him not to police immediately. More importantly' even if he returned on

12.5.2010, there is no explanation why he delayed joining the

investigation till 14.5.2010. In our considered opinion, the testimony

of Zafar Iqbal lacks credibilitY'

14.In addition to what we have discussed in the preceding paragraph,wehavenotedthatthetestirnonyofZafatlqbal(PW.10)is shah (PW-5) in direct conflict with that of syed Makhdoom Hussain aforementioned fact who deposed that he had infprmed him about the his claim that he on the very day of occurre#. ft also contradicts of Syed went to Lahore. Relevant excerpt frorn the cross-examination Makhdoom Hussain Shah is reproduced hereunder:

,,zafar Shah told me that Faryal Bibi was going ahead while Jabbar Shah & Haswar Shah were going behind her. Zafar Shah told me told me about the this fact on the day of alleged occurrence. He said fact lll12 hours before lodging the FIR'"

15.The next piece of evidence relied upon by the prosecutionisthestatementofMuhammadAiiShah(Pw-11)who that on the fateful day when he got up for his Fajar prayer he deposed

sawMuk*rtarShahandShamimBibipassinginfrontofhishouse carryingasack.Itwassubsequentlydiscoveredthatthesaidsack dropped it in the contained the corpse of Faryal Bibi and they graveyard.ThetestimonyofMuirarnmadAliShahtoodoesnot on conjcctures and inspire contldence. First, his statenrcnt is based disposing of the corpse as surmises. He did not witness the accused aforesaid. Secondly, the alleged sack was not recovered during

investigation. Thirdly, the dead body of Faryal Bibi was found lying

M.R.No.56/2013/BWB

ffi Ap neal No.494l20 l, 3/BWP' qrtjppeat No.1 1/201 4/BWP'

on a branch of a tree in the graveyard.

It does not appeal to a prudent mindthatMukhtarShahandShamimBibiwouldtakeitoutfromthe sackandthenputitthere.Fourlhly,MukhtarShahandShamimBibi weretheparentsofHaswarShahandlrshadShahwhileshamimBibi wasthesisterofJabbarShah.ItratherSeemspreposterousthatthey wouldallowthemtoravishandmurderthegirlandthentakethebody themselves to the graveyard to dispose it of. Lastly, the statement under section 161 Cr.P.C of Muhammad Ali shah (PW-11) was recordedbythelnvestigationofficeronl4.5.20l0.Itissettledlaw is recorded with delay without that where the statement of a witness anycogentreasonitimpingeshiscredibility.Relianceisplacedon Svecl St""am"n"**"a Sn"n t 0993

SCMR 550), Q9g6 SCMR 1553) and

MullammadKhanv.MaulaBakhshandanother(1998SCMR570)' also referred to

16.The learned Depilq Prosecutor General IdentificationMemosExh.PDandExh.PEwhichpurporttoshowthat duringphysicalremandHaswarShahandJabbarShahthemselves disclosedtheplaceofoccurrence.Hecontendedthatthisdisclosure an incriminating evidence under led to discovery of a fact which was order, 1984 (the "QSO")' and Article 40 of the Qanoon-e-Shahadat fortifiedtheprosecutioncase.Perusaloftherecordrevealsthatthe (Pw-12), categorically Investigating officer, Manzoor Ahrnad/sl admittedinhiscross-examination(Page-g8ofthepaperbook)thathe cametoknowabouttheplaceofoccurrenceon14.5.20110while HaswarShahandJabbarShahmadetheallegeddisclosureon 23.5.2010. This means that the fact in question was alteady in the

knowledgeofthepolicesoitcannotberegardedasdiscoveryofnew ,factwithinthemeaningofArticle40,ibid.|nMst.AskarJanand othersv.MuhammadDaudandothers(2010SCMR1604),the court of pakistan dilated on the application of , Hon,ble Supreme

Article 40 and held as under:

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ffin.ut No.lll2014/BwP'

,,Thus, in order to apply Article 40 of the order, the prosecutton given by the accused led to the must establish that inrormation must be b-v him and the discovery discovery of som. rurt deposed previously learnt from any of some fact which the police had nbt oi th. fact was first derived other source and that ttri knowledge Reference is also from the information given by the accused. invited to Jaffer Hussai' v. 3tut.

of Maharashtra (AIR 1970 Supreme Court 1934)'"

The prosecution heavily relies on the extra-judicial

Mukhtar confession allegedlY made by Haswar Shah, Jabbar shah and deposed Makhdoom Hussain (PW-5) Shah to Prove the charge' Syed athis Dera with Muhammad Asif that on 13.5.2010 he was present Gillani (PW-6) when the saidaccusedapproachedthem.Theytook for their help to seek pardon from them aside and separatelY requested Haswar the ,Complainant. First of ali Mukhtar Shah admitted that

Shah.andJabbarShahrapedFary'alBibiandthenkiliedherbecause theyfearedpolicewouldarrestthem.Heofferedtogivethehandof hisdaughtertothesono{theCoinplainant.AfterhimHaswarShah maile confession about their guilt and and Jabbar Shah individuafi addedthattheyhadcommittedth';offenceontheabetmentoflrshad Gilliuri deposed on the safile line' It is shah. pw-6 Muharnmad Asif settledlawthatextra-judicialconlissionmustbereceivedwithutmost. and easily car, be procured effortlessly caution for the reason that it and others-)) concocted. InSniid Mumtaz cr others v. Baslrarat ee :*;,

,remeCourtofPakistanobserved:

(2006SCMR23I),theHon,bleS...'

coyrts (Federal Court) "17 ...This Court ai.'i its predecessor haveelaboratelylaicioo*nthelawrelatincextra.judicial confessionsstartingf'o*At*udv'TheCrown-(PLD1951FC t"f'' it e9*'"1 v'' The Crown' it was 103-107)uptothelatest.e-"J"oi"ialconfessionhasalwaysbeen taken with a pinch "t observedthatintfi"ouot'y(asawhole)extrrjudicialconfession --- caution' "' As observed by the must be received with utmost " Federal court, *. *ouir.iiout. especially referring to this part ofthecountry,ttratextra.judi"iot"onr"'.ions.lravealmostbecome otherwise succeed' Rather it a norm when the pror.",rlriJn-;;;, tl: may be observed *itft toncltn * *"ff as with regret tl"t t::

prop'erly investisate the case' he t*tiL"tttt'Ofnt"t-fuiit to titce extra-iiici"l:"tft::l:::; resorts to padding uno tontottions huue become the signs of incompetent such confessions by no*f I investigation'"

Crl. Appeal No.494l2013/BWP.

Crl. Appeal No.l 1/2014/BWP.

18.In view of the foregoing, rn Sarfraz Khan v. Stute und 2 others (PLI 1996 SC 9), the august Supreme'Court of Pakistan held that a three-fold proof is required to rnake extra-judicial confession the basis of conviction, firstly, that in fact it was made; secondly, that it was voluntarily made; and thirdly,thal it was truly made. The Court must ask itself as to why the accused should at all confess. Indubitably the phenomenon of confession is not altogether unknown but in order to determine its genuiness the Court should look at the circumstances in which it is made and the motivating factors behind it. In Saiid Mumtaz's case, supra, while emphasizing this issue the Apex Court made the following observations:

"It is but a natural curiosity to ask as to why a person ol'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 visual ized, appreciated and consequented upon purely in the background of a human conduct. ; ..Why a person guilty of offence entailing capital p&ishment should at aII confess. There could be a few motivating fact&s 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 offbnces 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 one's pressure on mind and conscience is another aspect of the same psyche. One gives vent to one's feelings only before a strong and close confldent. . ..Another most important and natural putpose 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."

19.In "Tahir Javed v. The state" (2009 scMR 166), the Hon'ble Supreme Court of Pakistan further explained:

"It may be noted here that since extra-judicial confession is easy to procure as it can be cultivated at any time, thereford, normally, it is considered as a weak piece of evidence and Court would expect sufficient and reliable conoboration for such type of evidence. The extra-judicial confession, therefore, must be considered with overall context of the prosecution case and the evidenoe on record. Right from the case of Ahrned v. The Crown PLD 1951 FC 107 it has been tirne 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 be made to the following reported judgrnents: (i) Sajid Murntaz and others v. Basharat and others (2006 SCMR 231), (ii) Ztaul Rehman v. The { stut. (2001 SCMR 1405), (iii) Tayyab Hussain Shah v. The State

Crl. Appeal No.494l201 3iBWP.

Crl. Anpeal No.1 1/201 4/BWP.

(2000 SCMR 683) and (iv) Sarfraz v. The State and others (1996 scMR 188)"

20.In the instant case, it is observed that Syed Makhdoom Hussain shah (Pw-5) and Muhammad Asif Gillani (Pw-6) were the real brothers of Complainant Syed Amjad Hussain Shah. The prosecution has not brought any rnaterial on the record to show that Haswar Shah, Jabbar Shah or Mukhtar Shah had any of the reasons discussed hereinabove to make confession before them. More importantly, the PWs claimed that when the accused came to their Dera they were alone and were not accompanied by any respectable of the locality or a common friend. Keeping in view the gravity of the ch'arge it was not possible for them to approach them directly particularly when the occurrence was fresh and tempers were high' In their cross-examination PW-5 and PW-6 stated that 819 of their relatives were present outside the Dera.It is intriguing that they did not react on seeing them:-\p. ven their own conduct was unnatural' In this regard reference may be made to the following excetpt from the cross-examination of syed Makhdoom Hussain Shah (Pw-5):

,.After hearing the talk of the accused, we did not beat them and- also did not apprehend them though we were annoyed but as the' otherpeoplewerepresentoutourDeraandtherewasan apprehension of killing of accused by those people if they got information. The persons 8/9 who were present out of Dera were our relatives and some persons came to say Fatiha. The people present outside the Dera saw the accused while coming inside our Dera and going outside our Dera. We did not disclose about the said confession of accused to the persons who were present outside the Dera on that day. Volunteered we did not tell them lest they should be killed. I had no sympathy with the accused persons as to save their lives from the persons standing outside the Dera."

21.For what has been discussed above, weare of the view that the prosecution evidence of extra-judicial confession is not reliable.

22.Dr. Kalsoom Iqbal (PW-8) conducted autopsy of Faryal Bibi on 1.5.2010. She observed that post-mortem staining was present on different parts of the body of the deceased and rigor rnortis had 'developed. Her face was swollen blotchy and cyanosed. Red patchier

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Crl. Appeal No.494l201 3/BWP.

Crl. Apngal No.l l/2014/BWP.

marks were present on the whole face, each abrasion measuring about 2 cm x Yz cm. clotted blood was present in the mouth and left side of the nose, pupils were dilated, conjunctivae were congested, lips were blue, hands were clenched, nails and tips of the fingers were blue and toes of the feet were also blue. Multiple bruises were present on the neck, each measuring 3 cm x 2 cm. Abrasions were also present all around the neck measuring about 2 cmx 1 cm skin deep. Dr. Kalsoom Iqbal opined that Faryal Bibi was subjected to rape which teared her vaginal wall leading to coma and compression of the neck, acute hypoxia and eventually to death in the ordinary course of nature. Injuries were ante-mortem and caused by hornicidal throttling. In her estimation, the probable time that elapsed between death and post- moftem was more than 14 hours and less than 24 hours. Samples from visceras'were taken for detection of poisoning and vaginal swabs for detection of semen and DNA test. Hyoid bone was sent to the pathologist for determination of fracture. After receiving the report of the Chemical Examiner, the Medical Officer observed that poison was not detected and swabs were stained with semen and blood. The report of the histopathologist revealed ante-mortem injury to hyoid bone. She further stated that after taking into consideration the above- mentioned reports, including the post-rnortem report, she was of the opinion that the deceased's death was caused by throttling and rape.

23.Dr. Muhammad Saleem Arif (PW-7) medically examined Haswar Shah & Jabbar Shah and found that they were fit to perform sexual act. DNA Test Report Exh.PR is negative and does not connect them with the offence. Even if this report is exoluded from consideration on the ground that the biochemist was not examined at the trial and it is not admissible in evidence per se under Section 510 Cr.P.C, the testimony of Dr. Kalsoorn Iqbal (PW-8) would be of no avail to prosecution because the medical evidence which she has furnished is only confirmatory in nature and does not identifu the culprits. It does not raise finger at any accused of the instant case.

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l' M.R.No.56/2013/BWP Crl. Appeal No.494l201 3/BWp. 14- Crl. Appeal No.l l/2014lBWp.

24.In complaint Exh.PB and FIR Exh.PB/l the Complainant

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alleged that the motive behind the occurrence was that he had refused to marry his elder daughter to Irshad shah. However, Syed

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Makhdoom Hussain (Pw-5) in his statement before the learned trial Court alleged that Irshad Shah suspected that the Complainant had

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illicit relations with his wife. Although Syed Makhdoom Hussain stated that this was an "additional reason" behind the occurrence, one cannot gainsay that the prosecution was wavery about the motive and during the trial it did not produce any independent witness to prove any of those that it suggested. Even Manzoor Ahmad/SI (pw-12) did not collect any evidence in this regard when he investigated this case.

25.In a case based on circumstantial evidence the prosecution is obligated to show that different pieces of evidence brought on the record are inter-linked so as to make a single chain whose one end touches the tqad person and the other clenches the neck of the accused. Further, the evidence rnust be of a quality to be incompatible with the innocence of the accused. Any rnissing link in thechainwoulddestroytheentireprosecutioncase.InHashimoqsim and another v. The state (2017 scMR 986) the Hon'ble Supreme Court of Pakistan ruled:

"In cases of circumstantial evidence, there are chances of procuring and fabricating evidence. Therefore, Courts are required to take extra care and caution to narrowly examine such evidence with pure judicial approach to satisfy itself, about its intrinsic worth and reliability, also ensuring that no dishonesty was colnmitted during the course of collecting such evidelce by the Investigators....circumstantial evidence may sometimes appear to be conclusive but it must always be narrowly exanined, if only because this count of evidence may be fabricated in order to cast suspicion on another, therefore, it is all the more necess ary before drawing inference, if the accused's guilt from circumstantial evidence to be sure and that there are no other co-existing circumstances, which weaken or destroy the inference then, in that case alone it may be relied upon otherwise, not at all.,'

26.On a thorough reappraisal of the evidence we have found that the prosecution has failed to prove its case beyond reasonable doubt. Therefore, we accept crl. Appeal No.494 /2013/Bwp and set aside the conviction and sentence awarded to Appellants Haswar Shah

Cil. Anpeal No.4941201 3/BWP' brl. Appeal No.l 1/2014/BWP'

be released forthwith if and Jabbar Shah. They are in jail. They shall not required to be detained in any other case.

in the

27.Murder Reference No .5612013 lBwP is answered Shah and NEGATIVE and the death sentence awarded to Haswar JAbbAr ShAh iS NOT CONFIRMED'

28.we have discarded the prosecution evidence while deciding crl. Appeal No.49412013/BWP. Therefore, crl' Appeal No.1l/2ol4lBwPchallengingacquittalofMst.ShamimBibialias Shammi, Mukhtar Shah and lrslrad Slrah is lrereby disrrrissed irr limine.