The State vs Muhammad Awais

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR .

JUDICIAL DEPARTMENT

Murder Reference No.14 of 2017

(The State Vs. Muhammad Awais)

Criminal Appeal No. 168-J of 2017

(Muhammad Awais Vs. The State.)

JUDGMENT

Date of hearing: 02.12.2021.

Appellant by: Mr. Farooq Haider Malik, Advocate.

State by: Ch. Asghar Ali Gill, Deputy Prosecutor General.

SADIQ MAHMUD KHURRAM, J. –Muhammad Awais son of Muhammad Javed (convict) was tried by the learned Additional Sessions Judge, Chishtian District Bahawalnagar in case FIR No. 268 of 2015 dated 26.11.2015 registered at Police Station Dahranwala, District Bahawalnagar in respect of offences under sections 302, 377 and 367-A PPC for committing the Qatl-i-Amd of Ali Hassan son of Shahid Khaleel (deceased). The learned trial court vide judgment dated 17.03.2017

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convicted Muhammad Awais son of Muhammad Javed (convicts) and sentenced them as infra:

Muhammad Awais son of Muhammad Javed:-

i).Death under section 302(b) PPC as Tazir for committing Qatl- i-Amd of Ali Hassan son of Shahid Khaleel (deceased) and directed to pay Rs.2,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default of payment of compensation amount, the convict was further directed to undergo six months of simple imprisonment.

The convict was ordered to be hanged by his neck till dead.

ii). Death under section 367-A PPC..

The convict was ordered to be hanged by his neck till dead.

iii)Rigorous Imprisonment for ten years under section 377 PPC and directed to pay Rs.25,000/- as fine; in case of default of payment of fine, the convict was directed to further undergo three months of simple imprisonment.

2.Feeling aggrieved, Muhammad Awais son of Muhammad Javed (convict) lodged the Criminal appeal No.168-J of 2017 through jail assailing his conviction and sentences. The learned trial court submitted Murder Reference No.14 of 2017 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellant namely Muhammad Awais son of Muhammad Javed. We intend to dispose of the Criminal appeal No.168-J of 2017 and the Murder Reference No.11 of 2017 through this single judgment.

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3.Precisely, the necessary facts of the prosecution case, as stated by Shahid Khaleel (PW-1) , the complainant of the case, are as under:- “Stated that I am employee in Taxtile Mill Faisalabad. I was married to Mst.Munazza Ambreen D/o Muhammad Aslam Caste Arien R/o 169/Murad in the year 2002 and out of this wedlock four children namely Ahsan Khalil Aged 8/9 years, All Hassan aged 7/8 years, Ahmed Hassan aged 04 years and Arsalan aged 03 years were born.

On 24-11-2015 my wife alongwith the children came to the Chak No.169/Murad for attending the marriage of her brother namely Waqas. At about 5:00 PM my son All Hassan after taking Rs.50/ from his mother went to the shop for purchasing something. When after long time the said All Hassan did not return, I alongwith Waqas brother-in-law went out for search and reached a shop where Ali Hassan was not found. We made a search on which Muhammad Arif S/o Ali Muhammad and Abdul Ghaffar S/o Muhammad Ali met us who informed that they saw that Muhammad Awais accused present in the court was taking deceased Ali Hassan with him. When the deceased Ali Hassan could not found, I alongwith Muhammad Arif, Muhammad Waqas and Abdul Ghaffar went to Muhammad Awais accused present in the court who after some hesitation confessed that he brought deceased with him but the deceased had afterwards gone to the house. On 26-11-2015 information was received that some dead body was laying in "Naali" near the office of Union Council adjacent to the house of accused. we identified the dead body as of the deceased Ali Hassan. After leaving the witnesses with the dead body I went to the police station where I submitted application Exh.PA which bears my signatures as Exh.PA/1. Accused Muhammad Awais after abducting my deceased son Ali Hassan and

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committing sodomy with him had committed his murder. On the same date the dead body was sent to THQ Hospital Chishtian. After the postmortem last wore cloths i.e, Qameez P-1, Shalwar slightly silver color P-2, two seal packets P-3/1-2 and three sealed envelopes P-4/1-3 were handed over to the I.O by the Medical Officer which were taken into possession by the 1.0 through recovery memo Exh.PB which was signed by me and Muhammad Arif witness. 1.0 also recorded our statements U/S statement u/s 161 Cr.P.C in this regard. I.O handed over the dead body of deceased Ali Hassan to me through receipt Exh.PC which bears my signatures.”

4.After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Muhammad Awais son of Muhammad Javed was sent to face trial. The learned trial court framed the charge against the accused on 17.02.2016, to which the accused pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case got recorded statements of eleven witnesses. Shahid Khaleel (PW-1), the complainant of the case, gave the same evidence as has been reproduced in the Paragraph 3 of the judgment. Abdul Ghaffar (PW-2) stated that on 24.11.2015 at 5.00 p.m he had seen the appellant taking away the deceased to his house.

Muhammad Waqas, (PW-6) stated that on 24.11.2015 at 5.00 p.m the deceased went missing and on 26.11.2015, the dead body of the deceased was recovered. Kashif Manzoor 1122/HC (PW-3) stated that on

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26.11.2015, the Investigating Officer of the case , handed over to him three sealed envelopes and two sealed boxes and on 29.11.2015 three sealed envelopes and two sealed boxes which on 02.12.2015 he handed over all the above mentioned envelopes and boxes to Muhammad Azam , ASI (PW-5) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Kashif Manzoor 1122/HC (PW-3) further stated that on 15.12.2015 the Investigating Officer of the case handed over to him a sealed parcel said to contain a panaflex sheet which on the same day he handed over to Muhammad Azam, ASI (PW-5) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore.

Shabbir Ahmad 731/C (PW-4) stated that on 26.11.2015, he escorted the dead body of the deceased to the hospital and also received the last worn clothes of the deceased along with two boxes and three sealed envelopes.

Muhammad Jamil , Draftsman (PW-8) prepared the scaled site plan of the place of occurrence (Exh.PF). Maqbool Ahmad 1195/HC (PW-9) stated that on 14.12.2015 the panaflex sheet (P-5) was recovered from the possession of the appellant and the appellant also pointed out the place of occurrence regarding which the memo (Exh.PJ) was prepared. Sana Ullah, SI (PW-10) stated that on 26.11.2015 he recorded the formal F.I.R (Exh.PA/1). Younis Ali Inspector (PW-11), investigated the case from 26.11.2015 till 20.12.2015, arrested the appellant on 13.12.2015 and narrated the facts of investigation as conducted by him in his statement before the learned trial court.

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6.The prosecution also got Dr. Muhammad Tariq (PW-7) examined, who on 26.11.2017 was posted as Senior Medical Officer at the THQ hospital Chishtian and on the same day conducted the postmortem examination of the dead body of Ali Hassan son of Shahid Khaleel (deceased). Dr. Muhammad Tariq (PW-7), on examining the dead body of Ali Hassan son of Shahid Khaleel (deceased) observed as under:- “External Examination

A dead body of a child age 06 years lying supine on the mortuary table wearing Qameez off white and Shalwaar of light blue colour twisted around the neck, eyes closed, mouth semi open. Neck twisted towards right side. Rigor mortis was developing.

Examination of Neck.

One bruise mark of bluish colour measuring 3x2 cm square situated on right side of front of neck. On exploration undersigned tissues damaged. Hyoid bone intact.

Description of injuries.

Injury No.1.

A. External genitalia NAD.

B. Anal examination:

i. No bruise was present as noticed on external examination.

ii. On internal examination three lacerated wounds at 6, 8, 11 o clock in the anal canal

FINAL OPINION.

After receiving the final report of PFSA, Lahore, injury No.1 was the cause of death which leads to suffocation due to compression on the neck, cardiopulmonary arrest and death. Probable time elapsed between injury and death was not known and between death and post mortem 04 hours. I also signed injury statement Exh.P.D/1, inquest report Exh.P.D/2, pictorial diagram Exh.P.D/3 and issued PMR No.42/15 dated 26.11.2025 Exh.P/D which is carbon copy of original and is of my hand writing and bears my signature.”

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Dr. Muhammad Tariq (PW-7) further stated that on 17.12.2015 he had examined the appellant and had found him capable of performing sexually.

7.On 11.03.2017, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Muzaffar Iqbal 362/C and Muhammad Arif as being unnecessary and closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency, Lahore (Exh.PL) regarding the analysis of hyoid and the viscera of the deceased and the report of Punjab Forensic Science Agency, Lahore (Exh.PM) regarding detection of any poison . The report of Punjab Forensic Science Agency, Lahore (Exh.PG) regarding the DNA analysis of the items submitted to the same was brought on record during the statement of Dr. Muhammad Tariq (PW-7) .

8.After the closure of prosecution evidence, the learned trial court examined appellant namely Muhammad Awais son of Muhammad Javed under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been falsely involved in the case. He further stated that he had not committed the occurrence and had been made a scapegoat in the case in order to show efficiency by the police. The appellant namely Muhammad Awais son of Muhammad Javed opted not to get himself examined under section 340(2) Cr.P.C did not adduce any evidence in his defence.

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9.On the conclusion of the trial, the learned Additional Sessions Judge, Chishtian District Bahawalnagar convicted and sentenced the appellant as referred to above.

10.The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false. The learned counsel for the appellant submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellant further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt.

11.On the other hand, learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased was murdered by the appellant who had been last seen taking away the deceased to his house. The learned Deputy Prosecutor General further argued that the recoveries from the appellant also corroborated the statements of the other witnesses. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the

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real offender with the innocent in this case. Lastly, The learned Deputy Prosecutor General prayed for the rejection of appeal.

12.We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance carefully perused the record and evidence recorded during the trial.

13.After consideration of contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent to mention here that in the instant matter ocular evidence is not available. There can be no dispute regarding the fact that the case is built on circumstantial evidence. In dealing with circumstantial evidence the rules especially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge, (1938) 2 Lewin 227) where he said:

“The mind was apt to take a pleasure in adapting

circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting , to take for granted some fact consistent with its previous theories and necessary to render them complete.”

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Sir Alfred Wills in his book “An Essay on the Principles of Circumstantial Evidence” (pages 173 to 190 of the Fifth American, from the Fourth London Edition published in 1872) lays down the following rules specially to be observed in the case of circumstantial evidence:

“RULE 1.—The facts alleged as the basis of any legal inference must be clearly proved, and indubitably connected with the factum probandum.

RULE 2. The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability RULE 3. — In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits .

RULE 4.- In order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.

RULE 5. — If there be any reasonable doubt of the guilt of the accused, he is entitled, as of right, to be acquitted.”

The august Supreme Court of Pakistan in its binding judgment titled “Naveed Asghar and two others Vs. The State” (P L D 2021 Supreme Court 600) has enunciated the following principle of law for the appreciation of circumstantial evidence:

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“Approach to determine sufficiency of circumstantial evidence

14.The settled approach to deal with the question as to sufficiency of circumstantial evidence for conviction of the accused person is this: If, on the facts and circumstances proved, no hypothesis consistent with the innocence of the accused person can be suggested, the case is fit for conviction of the accused person on such conclusion; however, if such facts and circumstances can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case is to be treated one of insufficient evidence, resulting in acquittal of the accused person. Circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touches the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. Chain of such facts and circumstances has to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain breaks the whole chain and renders the same unreliable; in that event, conviction cannot be safely recorded, especially on a capital charge. Therefore, if the circumstantial evidence is found not of the said standard and quality, it will be highly unsafe to rely upon the same for conviction; rather, not to rely upon such evidence will a better and a safer course.”

Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof.

From the evidence of the prosecution available on record it is clear that the case of the prosecution hinges upon the evidence of the deceased being last seen in the company of the appellant, the memo of pointing the place of occurrence by the appellant (Exh.PJ), the recoveries of incriminating

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materials i.e. the panaflex sheet (P-5) from the appellant namely Muhammad Awais and the report of Punjab Forensic Science Agency, Lahore (Exh.PG) regarding the DNA analysis of the items submitted to the same. Firstly, we shall deliberate upon the evidence of the prosecution that the deceased was last seen in the company of the appellant. In order to prove the said fact the prosecution examined Abdul Ghaffar (PW-2) who stated that on 24.11.2015 at about 5.00 p.m, he had seen the appellant taking away the deceased to his house. This witness, despite the fact of having seen deceased in the company of the appellant on 24.11.2015 at about 5.00 p.m never reported the said fact to the police and only reported the same after the dead body had been recovered on 26.11.2015 and the F.I.R had been registered. There is no explanation as to why Abdul Ghaffar (PW-2) did not appear before the police to report that he had seen the missing child, later found dead, in the company of the appellant and the appellant taking the said child to his house. It is also noteworthy that according to Abdul Ghaffar (PW-2) he met Shahid Khalid (PW-1) and Muhammad Waqas, (PW-6) on 24.11.2015 at about 5.30 p.m and told them of the said fact and according to the prosecution witnesses namely Shahid Khalil (PW-1) and Muhammad Waqas (PW-6) they had been searching for the deceased , the son of Shahid Khalil (PW-1) , when both the said witnesses met Abdul Ghaffar (PW-2) who told them about him having seen the appellant taking away the deceased but still, both the said witnesses namely Shahid Khalil (PW-1) and Muhammad Waqas (PW-6) also did not, admittedly, report the matter of the missing of the deceased to the police till the dead body of the deceased was recovered on

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26.11.2015. Shahid Khalil (PW-1) during cross-examination admitted as under:-

“We did not make any written application to the police on Similarly, Muhammad Waqas (PW-6) during cross-examination stated as under:-

“Complainant did not make application to the police station about the missing of the deceased on the second day.”

We have also noted with grave concern that Abdul Ghaffar (PW-2) made dishonest and blatant improvements in his previous statement.

The said improvements made by Abdul Ghaffar (PW-2) were substantial and were made with regard to crucial aspects of the prosecution evidence. Article 151 of the Qanun-e-Shahadat Order 1984 provides as under:-

“151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:

(1)by the evidence of persons who testify that they, from their knowledge of the witness,believe him to be un worthy of credit;

(2)by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence ;

(3)by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted ;”

By improving his previous statement , Abdul Ghaffar (PW-2) impeached his own credit. During cross-examination, Abdul Ghaffar (PW-2) was

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confronted with his previous statement and the learned trial court observed as under:-

“I got recorded my statement u/s 161 Cr.P.C that complainant and Muhammad Waqas told us that Ali Hassan was lost.

Confronted with Exh.D.A where it is not so recorded. I got recorded the time i.e 05.00 p.m in my statement u/s 161 Cr.P.C.

Confronted with Exh.D.A where the time is not so recorded.

I got recorded my statement u/s 161 Cr.P.C that we kept on searching All Hassan. Confronted with Exh.D.A where it is not so recorded..”

The august Supreme Court of Pakistan in the cases of “Muhammad Ashraf Vs. State” (2012 SCMR 419), “Muhammad Mansha Vs. The State” (2018 SCMR 772) and Muhammad Arif Vs. The State (2019 SCMR 631) took a serious notice of the improvements introduced by witnesses and rejected their evidence. Moreover, Shahid Khalil (PW-1) also admitted during cross-examination that he did not know the appellant prior to the occurrence and that the appellant was named as an accused after consultation with Abdul Ghaffar (PW-2). Shahid Khalil (PW-1) during cross-examination admitted as under:-

“Name of the accused was told to me for the first time by Abdul Ghaffar PW. Accused was nominated in this case after consultation with the PW Abdul Ghaffar and Muhammad Arif late.” (emphasis supplied)

Similarly, Abdul Ghaffar (PW-2) himself admitted during cross- examination as under:-

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“Complainant had made consultation with me before

nominating the present accused because I was sure about the involvement of the accused in the occurrence. ” (emphasis supplied)

14.As mentioned above, the mainstay of the prosecution case is the evidence that the appellant was seen taking the deceased to his house on 24.11.2017 at about 5.00 pm. Pre-requisites for believing last seen evidence are that proximity of time and nearness of the place of occurrence .

Interpreting these two principles, it is required that deceased shall be seen in the company of the accused by the witnesses some short time before happening of the incident and the place of murder may not be far away from the place of lastly seeing the deceased in the company of the accused by the prosecution witnesses. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible.

According to the prosecution witness namely Abdul Ghaffar (PW-2) , he had seen the appellant taking the deceased to his house on 24.11.2017 at about 5.00 pm. The dead body of the deceased was discovered on 26.11.2017 at about 1.00 pm. The dead body of the deceased was brought to the hospital on 26.11.2017 at about 2.30 pm. Dr. Muhammad Tariq (PW-7) conducted the postmortem examination of the dead body of Ali Hassan son of Shahid Khaleel (deceased) 26.11.2017 at about 4.00 pm. At the time of conducting the postmortem examination of the dead body of Ali Hassan son of Shahid Khaleel (deceased), Dr. Muhammad Tariq (PW-7) observed that rigor mortis was developing. Before proceeding any further, it would be advantageous to

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mention here that rigor mortis is a term which stands for the stiffness of voluntary and involuntary muscles in human body after death. It starts within 2 to 4 hours of death and fully develops in about 12-hours in temperate climate. Similarly, the reverse process with which rigor mortis disappears is called algor mortis. In support of duration required to develop rigor mortis, an extract from “The Principles And Practice Of Medical Jurisprudence” by Alfred Swaine Taylor,MD , is being referred hereunder:- "In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor

mortis usually commences within 2 to 4 hours of death.

It reaches a peak in about 12 hours and starts to

disappear after another 12 hours. The cadaver

becoming limp some 36 hours after death."

Likewise, Dr. S. Siddiq Husain in Chapter-V of his book "Forensic Medicine and Toxicology”, observed that in temperate climate the rigor mortis completes in 8 to 12 hours. Similarly, William Carroll in his research article titled as "An Examination of Muscle Function", has declared a similar duration for rigor mortis to develop. In Chapter 15 ‘POST-MORTEM CHANGES AND TIME SINCE DEATH”, from page 351 to page 352 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) ,it has been discoursed as under:-:

"Rigor mortis generally occurs, while the body is cooling. It is in no way connected with the nervous system, and it develops even in paralyzed limbs, provided the paralyzed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.

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Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away.

Rigor mortis first appears in the involuntary muscles, and then in the voluntary. In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertrophy, and its relaxation or dilatation, atrophy or degeneration. The left chambers are affected more than the right. Post-mortem delivery may occur owing to contraction of the uterine muscular fibres.

In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence. However, according to H.A. Shapiro this progress of rigor mortis from proximal to distal areas is apparent only, it actually starts in all muscles simultaneously but one can distinguish the early developing and fully established stage, which gives an indication of the time factor.

Time of Onset.- This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop.

The august Supreme Court of Pakistan in the case of Asad Rehmat vs. The State and others ” (2019 SCMR 1156) held as under: “Occurrence, statedly, took place at 2.00 p.m., autopsies started 4.30 p.m., concluded at 9.00 p.m. Muhammad Hayat was examined first; the medical officer noted rigor mortis. Same is the case with other corpses. In the month of March, development of rigor mortis within such short span of time is mind boggling; occurrence does not appear to have taken place at the point of time mentioned in the crime report.” Dr. Muhammad Tariq (PW-7) after conducting the postmortem examination of the dead body of Ali Hassan son of Shahid Khaleel (deceased) opined that the time between death and post mortem examination was about four hours.

Explaining further , Dr. Muhammad Tariq (PW-7) stated that according to his opinion the deceased had died on 26.11.2015 at about 12.00 p.m i.e just

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one hour before the dead body of the deceased was recovered. Dr.

Muhammad Tariq (PW-7) in his statement before the learned trial court stated as under:-

“Probable time elapsed between injury and death was not known and between death and post mortem 04 hours.

It is possible that death of deceased Ali Hassan might have occurred at about 12.00 pm on 26.11.2015. ”

The opinion of Dr. Muhammad Tariq (PW-7) regarding the death of the deceased having taken place just four hours prior to the post mortem examination creates a gaping hole in the prosecution case as there exists a huge gap between the time when the deceased was last seen in the company of the appellant i.e on 24.11.2015 at 5.00 p.m and the time when the deceased was murdered determined to be as being on 26.11.2015 at about 12.00 p.m. Adding to this lack of proximity of time of seeing the deceased in the company of the appellant and the time of the death of the deceased , is the fact that the prosecution witnesses also claimed that on 24.11.2015 they had visited the house of the appellant , however, found him alone there and more importantly did not find the deceased inside the said house, the house to which the appellant was allegedly seen taking the deceased. Shahid Khalil (PW-1) during cross-examination stated as under:-

“House of age, accused Awais Khalid is at distance of 100 feet from shop.

When we went to the house of the accused he was alone in his house. It is incorrect to suggest that at that time mother, two sisters and one brother of the accused were also present in the house. After visiting the house of

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the accused we orally informed the police about the missing of deceased.

Thereafter, I also visited the house of the accused alongwith Muhammad Iqbal lumberdar, Muhammad Sharif, Aslam and

Shafique respectable on the next day at 08.00 a.m. Accused did not meet us on that day and his mother alone was present. ”(emphasis supplied)

Abdul Ghaffar (PW-2) during cross-examination stated as under:- “ I alongwith complainant, Arif late and Waqas PW went to the house of the accused Awais at 06.00 pm and it consumed about 15 minutes while with the accused in his house. At that time no other member of family of the accused was present in his house.

I alongwith complainant and Arif late again went to the house of the accused on 25.11.2015 at about 9/10 p.m.”

Muhammad Waqas (PW-6) during cross-examination stated as under:- “We went to the house of the accused at 05.45 p.m. Accused alone was present in his house. I, complainant, and two PWs also went to the house of the accused on the next date.”(emphasis supplied)

In this manner, it is proved that the prosecution failed to establish that the deceased was seen lastly in the company of the appellant. Last seen together is a weak type of circumstantial evidence, which cannot be readily believed unless it was corroborated through unimpeachable source, and it should be close to the time and place of murder to exclude possibility of innocence. As mentioned above, the last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person

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other than the accused being the author of crime becomes impossible. In this case the element of proximity of the time of last seeing the deceased and the time of his death is missing. It is settled law that the last seen evidence can have legal worth only if the deceased is seen in the company of the accused quite close to the time of his death so as to exclude any possibility of the deceased coming in contact with anybody else before his death. But it is also settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded. Reliance is placed on the case of Sadi Ahmad and another Vs. The State (2019 SCMR 1220) wherein the august Supreme Court of Pakistan has held as under:-

“We are not much impressed by the evidence of last seen for being outside the bounds of proximity in terms of time and space, besides otherwise being far from confidence inspiring”.

Reliance is also placed on the case of Muhammad Abid Vs. The State and another (P L D 2018 Supreme Court 813) wherein the august Supreme Court of Pakistan has enunciated the following principle:- “The theory of last seen together is one where two persons are 'seen together' alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption can be drawn that the person alive is the author of the other's death. Time gap between the sighting and the occurrence should be such as to rule out possibility of somebody else committing the crime. The circumstance of the deceased being last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. There must be evidence to link the accused with the murder of his companion, such as incriminating facts as recovery, strong motive and the proximate time when they were last seen together and the time when the deceased was killed. Last seen evidence as circumstantial evidence must be incompatible with the innocence of the accused and should be accepted with great caution. It must be scrutinized minutely so that no plausible conclusion should be drawn therefrom except guilt of the accused.

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6.The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires 1. cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. proximity of the crime scene. 3. small time gap between the sighting and crime 4. no possibility of third person interference 5. motive. 6. time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime.”

Hence, in view of the above discussion, the last seen evidence furnished by the prosecution witnesses is not confidence inspiring, therefore, the same cannot be relied upon .

15.The learned Deputy Prosecutor General also argued that the dead body was discovered on 26.11.2015 from an aqueduct near the office of the Union Council, which place of the recovery of dead body was near to the residence of the house of the appellant and the memo of pointing the place of occurrence by the appellant (Exh.PJ) was also prepared which facts provided evidence of the appellant being involved in the occurrence.

With regard to the recovery of the dead body from an aqueduct near the office of the Union Council it has been observed that the Investigating Officer of the case of the case did not join into investigation any person working in the said office of the Union Council to witness the recovery of the dead body. The three prosecution witnesses namely Shahid Khalil (PW-1) , Abdul Ghaffar (PW-2) and Muhammad Waqas (PW-6) all admitted that the office of the Union Council remained open from 8.00 a.m to 5.00 p.m and essentially in that scenario the persons working at the said office of Union Council must have been present at the time of not only the recovery of the dead body but also the time of throwing of the

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dead body, as 26.11.2015 was a Thursday and a working day. Shahid Khalil (PW-1) during cross-examination stated as under:- “Office of union council remained open from 08.00 am to 05.00 p.m.”

Abdul Ghaffar (PW-2) during cross-examination stated as under:- “Office of union council remains open from 08.00 am till 05.00 p.m.”

We are conscious of the fact that according to the statement of Dr.

Muhammad Tariq (PW-7), the deceased had died on 26.11.2017 at about 12.00 p.m and according to the statements of the other prosecution witnesses the dead body of the deceased was recovered on 26.11.2017 at about 1.00 p.m, both of which time periods fall within the working hours of the office of Union Council. The prosecution case is contradictory in this respect because, according to the memo of pointing the place of occurrence (Exh.PJ), the appellant had thrown the dead body of the deceased outside the office of the Union Council after entering the said office of the Union Council and according to the opinion of Dr.

Muhammad Tariq (PW-7) with regard to the time of death, the deceased had died on 26.11.2017 at about 12.00 p.m, therefore, the said office of the Union Council, being open at that time, the throwing of the body of the deceased by the appellant after entering the office of the Union Council ,in presence of the workers at the office of the Union Council, was not possible without the appellant not being identified during the said act. But if the prosecution witnesses assert that the appellant had thrown the dead body of the deceased outside the office of the Union Council, after entering the said office , prior to 8.00 a.m on 26.11.2015, the time

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when the said office opened, the same was not possible because by 8.00 a.m, according to Dr. Muhammad Tariq (PW-7) , the deceased had not even died and no question of throwing his dead body arose. Therefore, in view of the above discussion, the memo of pointing out the place of occurrence (Exh.PJ) and the recovery of the dead body from near the house of the appellant proves no fact in issue.

16.The learned Deputy Prosecutor General has also laid much stress upon the report of the Punjab Forensic Science Agency, Lahore (Exh.PG), wherein it had been determined that the DNA profile obtained from the sperm fraction of the external anal swab and the internal anal swab and the DNA profile was a mixture of at least two individual and the appellant could not be excluded as being a contributor to the DNA obtained from the sperm fraction of the external anal swab and the sperm fraction of the internal anal swab. In Chapter 17 ‘Examination of Biological Stains and Hair”, from page 430 to page 440 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) it has been discoursed as under:-

"DNA PROFILING (DEOXYRIBONUCLEIC ACID

TYPING)

General-

Life on earth is based on cells; Cell is the basic unit of life. There are around trillions of cells in a human blood. Every cell has a nucleus (except the RBCS); Inside the nucleus which is considered to be the central processing unit of the cell, 23 pairs of chro-mosomes are present. Twenty-two pairs of autosomal chromosomes and one pair of sex chromosomes (XX in females and XY in males). Chromosomes carry linearly arranged genetic units, which are materially referred as Deoxyribonucleic Acid (DNA). There are about 3 billion nucleotides in human DNA. Human DNA is approximately 2

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metres long if it is place end to end from 46 chromosomes of a single cell. DNA is present in coiled and super coiled form in the cell. The super coiled structures are known as the chromosomes. This DNA contains genetic information which decides the phenotypic character (height, skin colour, eye colour, hair colour, etc) of an individual. The DNA carries the genetic information from parents to offspring, being half of the DNA from mother and the other half from father. The DNA carries all the information to make proteins (hormones, antibodies, enzymes and structural proteins like actin, myosin, keratin, tubuline) for proper functioning of the body. Another class of DNA present in human cell is the mitochondrial DNA which is present in the cell organelle mitochondria. Unlike nuclear DNA mitochondrial DNA is maternally inherited because the mitochondria of sperm are present in the tail and the tails is digested by hyluronic acid present around the egg cell at the time of fertilization. The DNA is the genetic material that makes every individual different, except for genetically identical twins. A pattern of chemical signals ie, genetic code, has been discovered within the DNA molecule, which is very unique to each individual, just like their actual fingerprint. Thus, the DNA profiling, unique to each individual, is colloquially referred to as 'DNA Fingerprinting' and it is also known as DNA typing. The companies who offer the DNA profiling claim that a DNA match of two individuals is as unlikely as 1 in 30 billion. One more estimation puts it at 1 in 800, 000, 000 The chemical DNA was first discovered in 1869, but its role in genetic inheritance was not demonstrated until 1943. In 1944, Oswald Avery made the breakthrough discovery that DNA is the basic genetic material. A few years later, in 1953, James Watson and Francis Crick determined that the structure of DNA is a double-helix polymer, a spiral consisting of two DNA strands wound around each other. The technique of DNA Fingerprinting was 229 first developed in 1984 by Dr Alec Jeffreys from Britain. Since then, increasing attention has been paid around the world to the use of DNA profiling for individualization purposes in criminal and allied cases. Paternity testing is another important use through DNA since 1988. The use of Restriction Fragment Length Polymorphism (RFLP) analysis of minisatellites or Variable Number of Tandem Repeat (VNTR) loci scattered along the chromosomes has spread interest among the medico legal professionals. The use of microsatellites or Short Tandem Repeats (STRs) also gained momentum with the passing years. These are consecutive repeats that are abundantly found in DNA. In contrast to 100-200 bps length of RFLPS and VNTRs, the STRS are of a smaller length of 2-10 bps. The short size of STRS is particularly useful if the sample is degraded or with Low Copy Number (LCN) DNA. Such degraded or fragmented DNA is encountered in samples that have been exposed to hostile external environment conditions like sunlight, heat, excessive salt etc. The traditional techniques like RFLP and VNTRS are not very helpful in such cases. The variants of STRS including Autosomal STR, MINI-STR, Y-STR and X-STR have immensely contributed to the forensic field. Three types of results are possible after comparing the question sample (Q) and the known sample (K)

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in cases of autosomal, Y and X STR markers analysis. These are-(1) Exclusion This result is produced when the STR haplotypes are different and could not have originated from the same source. (2) Inclusion (or failure to exclude)- This result is produced when STR haplotypes that result from Q-K comparison are the same and could have originated from the same source. (3) Inconclusive:-The result is inconclusive when the data are insufficient to render an interpretation or in other words ,ambiguous results are obtained.

The Autosomal STR markers: are commonly used to establish identity and settle paternity disputes. They are studied on all the 22 pairs of autosomes to avoid linkage issues within the markers.

Samples required for DNA profiling. Any biological material such as a drop of blood, saliva, semen, and any body part such as bones, tissue, skull, teeth, and hair with the root found at the scene of crime may serve as a sample for DNA profiling. The CDFD gives the following guidelines about collecting samples:

(i)Maternity/paternity/parentage: Blood samples of mother, disputed child and alleged father are required. The blood samples (2 - 3ml) can be collected in the sterile blood collection material (EDTA vials) sent by the laboratory, in the presence of Court authorities. These samples should be sent in ice in a thermos flask either by a messenger or through courier, so as to reach the laboratory within 72 hours after collection. (ii) Identity of the deceased: Any body part of the deceased found at the scene of crime along with the blood samples of the blood relatives of the suspected individuals (viz., parents, and children) should be sent.

(iii)Identity of rape/rapist: Blood / semen stained clothes, garments, swabs, and slides of the victim and the accused is forwarded to the laboratory.

Problems linked with DNA profiling. One of the lasting effects of the OJ Simpson case will likely be greater scrutiny by defence lawyers of the prosecution's forensic DNA presented in criminal cases. In the Simpson case, the defence, in essence, put the crime evidence laboratory on trial. There is no substantial dispute about the underlying scientific principles in DNA profiling, however, the adequacy of laboratory procedures and the competence of the experts who testify should remain open to inquiry.

Although, there is a common consensus within the scientific community that DNA profiling can yield results with a very high probability, the complex procedure of DNA profiling is not without problems. At every phase of the seven-step procedure just described, mistakes and improper handling of the DNA- probe can produce false results which in some cases can lead to a life sentence or even death-penalty judgement. Therefore,

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the adequacy of laboratory procedures and the competence of the experts who testify should remain open to inquiry.

Furthermore, the DNA samples can be mixed up by the police or the laboratory personnel (this actually took place in one case) or the amount of DNA can be insufficient. The various contaminants include microbes, fibres, concrete, soil, vegetable matter, other body fluids besides foreign DNA from field agents and laboratory workers. It can be avoided by handling the forensic evidence at a place that is segregated from the , where amplication of the sample is to be conducted. If the sample is accidentally mixed with foreign DNA before amplification, the contaminant will also get amplified resulting in mixed profiles at the time of STR analysis. Secondly, a significant 'source of error' is the incomplete digestion of the DNA by the restriction enzymes. The other extreme can be an over-digestion also called 'star activity'. Thirdly, a 'band shift' can occur, meaning that the DNA fragments which are put in several lanes next to each other can influence each other's mobility, thus causing wrong results of the gel electrophoresis. In connection with the problem of 'band shift', the gel electrophoresis itself may not be conducted properly, i.e., the voltage can be too low or too high or the concentration of the gel can be incorrect. Finally, the expert who determines a match can be biased ”.

In our legal framework DNA evidence is evaluated on the strength of Articles 59 and 164 of the Qanun-e-Shahadat, 1984 (QSO). The former provision states that expert opinion on matters such as science and art falls within the ambit of 'relevant evidence'. On the other hand, the latter provision provides that the Court may allow reception of any evidence that may become available because of modern devices and techniques.

Under this regime the technician who conducts experiment to scrutinize DNA evidence is regarded as an expert whose opinion is admissible in Court. Subsection (3) of Section 9 of the Punjab Forensic Science Agency Act, 2007, reaffirms this legal position when it enacts that "a person appointed in the Agency as an expert shall be deemed as an expert appointed under Section 510 of the Code of Criminal Procedure, 1898] and a person specially skilled in a forensic material under Article 59 of the Qanun-e-Shahadat, 1984 (P.O. X of 1984)." A combined

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reading of all these provisions shows that the report of the Punjab Forensic Science Agency regarding DNA analysis is per se admissible in evidence under Section 510, Cr.P.C. Since DNA analysis report is reckoned as a form of expert evidence in criminal cases, it cannot be treated as primary evidence and can be relied upon only for purposes of corroboration. This implies that no case can be decided exclusively on its basis. Credibility of the DNA test inter alia depends on the standards employed for collection and transmission of samples to the laboratory.

Safe custody of the samples is pivotal. Thus, in every case the prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the said chain or lapse in the control of the sample would make the DNA test report unreliable. In the cases of Mst. SAKINA RAMZAN versus State”(2021 SCMR 451) ,“Ikramullah v. The State” (2015 SCMR 1002), “The State through Regional Director ANF v. Imam Bakhsh and others” (2018 SCMR 2039) and “Khair-ul-Bashar v. The State” (2019 SCMR 930) the august Supreme Court of Pakistan refused to rely on the report of the Government Analyst and set aside conviction when the prosecution could not establish safe transmission of the samples from the place of recovery to the laboratory. In the present case the prosecution failed to prove the safe transmission of the external anal swab and the internal anal swab to the Punjab Forensic Science Agency, Lahore, making the value of the report of the Punjab Forensic Science Agency, Lahore (Exh.PG) as of no worth. According to the prosecution witness Shahid Khalil (PW-1) , on 26.11.2015, after the post mortem

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examination , the Medical Officer handed over three sealed envelopes (P-4/1-3) and two sealed packets (P-3/1-2) to the Investigating Officer of the case which were taken into possession through recovery memo (Exh.PB). According to the statement of Shabbir Ahmad 731/C (PW-4) on 26.11.2015, the Medical Officer handed over to him two sealed boxes and three sealed envelopes. According to the to the statement of Muhammad Azam, ASI (PW-5) and according to the report of the Punjab Forensic Science Agency, Lahore (Exh.PG), Muhammad Azam, ASI (PW-5) had brought one sealed envelope to the Punjab Forensic Science Agency, Lahore on 30.11.2015.

Muhammad Azam, ASI (PW-5) during his statement before the learned trial court stated as under:-

“Stated that on 29.11.2015, I was posted as ASI at Homicide Unit Circl (sic) Chishtian. On the same day, Muharrer of Police Station Dahranwala handed over to me 01 sealed envelope for onward transmission to the office of Punjab Forensic Science Agency, Lahore which I transmitted the same on 30.11.2015 in the concerned office intact.

On 02.12.2015 Moharrar handed over to me 02 seals (sic) parcels and two sealed boxes for onward transmission to the office of PFSA, Lahore which I transmitted the same on 03.12.2015 intact. I.O.

recorded my statement U.S. 161 Cr.P.C in this regard.” (emphasis supplied)

According to the avove reproduced statement of Muhammad Azam, ASI (PW-5) ,on 29.11.2015 he was handed over only one sealed envelop and

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not two or three. Additionally, Kashif Manzoor 1122/HC (PW-3) , the Moharrar of the Police Station never stated that he handed over any parcels to Muhammad Azam, ASI (PW-5) on 29.11.2015 for them to be deposited in the office of Punjab Forensic Science Agency, Lahore. Kashif Manzoor 1122/HC (PW-3) , the Moharrar of the Police Station, in his statement before the learned trial court stated as under:- “Stated that on 26.11.2015 1 was posted as Moharrar at P.S Dahranwala. On the same day, 1,0 handed over to me three sealed envelopes (6/6 seals) and two sealed box with 8/8 seals for safe custody and onwards transmission to PFSA, Lahore.

On 29.11.2015 one sealed envelope with 6 seals for DNA and two sealed envelopes with 6/6 seals and two sealed boxes with 8/8 seals of THQ. hospital Chishtian for safe custody and onwards transmission to PFSA Lahore. On 02.12.2015, I handed over the above mentioned envelopes and boxes to Muhammad Azam ASI intact. 1.0 recorded my statement u/s 161 Cr.P.C on 04.12.2015.”(emphasis supplied) Kashif Manzoor 1122/HC (PW-3) , the Moharrar of the Police Station gave no evidence that he handed over any boxes or envelopes to Muhammad Azam, ASI (PW-5) on 29.11.2015 rather stated that he had handed over the said sealed envelopes and boxes to Muhammad Azam, ASI (PW-5) on 02.12.2015. Kashif Manzoor 1122/HC (PW-3) , the Moharrar of the Police Station, was never re-examined by the prosecution nor any application was moved in this regard that he had handed over sealed envelopes and boxes to Muhammad Azam, ASI (PW-5) on 29.11.2015 for them to be transmitted to the office of Punjab Forensic

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Science Agency, Lahore. In this manner, the safe custody and the safe transmission of the anal swabs to the Punjab Forensic Science Agency, Lahore is not proved and in absence of that evidence no reliance can be place on the report of Punjab Forensic Science Agency, Lahore (Exh.PG).This portion of the prosecution evidence proves that there are missing links in the chain relating to the submission of the anal swabs to the Punjab Forensic Science Agency, Lahore. We have queried the learned Deputy Prosecutor General to clarify that what was the evidence available on the record to confirm that the anal swabs had indeed been kept in safe custody and then transmitted to and deposited in the Punjab Forensic Science Agency, Lahore but, after going through the record of this case from cover to cover, the learned Deputy Prosecutor General remained unable to refute that there is no consistent evidence whatsoever available on the record in this respect that how the anal swabs were transmitted to the Punjab Forensic Science Agency, Lahore. The learned Deputy Prosecutor General admitted that the prosecution evidence was contradictory and mutually destructive in this regard. In such a state of contradictory evidence available on the record, safe custody and the transmission of the anal swabs to the Punjab Forensic Science Agency, Lahore is not discernable from the record of this case. In absence of such evidence, prosecution, which must establish that the chain of custody of the anal swabs was unbroken, unsuspicious, indubitable, safe and secure, has failed to do so. The break in the chain of custody of the anal swabs casts doubts and impairs and vitiates the conclusiveness and reliability of the report of the Punjab Forensic Science Agency, Lahore (Exh.PG). This

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fact by itself creates sufficient doubts and on this score, the report of Punjab Forensic Science Agency, Lahore (Exh.PG) regarding forensic DNA Analysis and parentage testing is of no legal worth. The august Supreme Court of Pakistan has observed in the case of Azeem Khan and another Vs. Mujahid Hussain and others ( PLJ 2016 SC 123) that the report of Punjab Forensic Science Agency, Lahore with regard to DNA analysis cannot be implicitly relied upon and has held as under:- “In the recent past many scandals in USA, UK and other countries have surfaced where desired DNA test reports were procured by the investigative by contaminating the samples. Such contamination has also been reported in some cases while the samples remained in the laboratories. Many inquires were held on this issue and stringent law has been made by many States to prevent the contamination of samples outside and inside the laboratories. Proper procedure has been laid down for securing and carefully putting into parcel the suspected materials to co-relate with the samples of the parents to establish paternity or maternity. Similarly, stringent check and procedure has been provided to avoid and prevent cross contamination of the two samples because if both come in contact with each others then, it will give false positive appearance and the expert is thus misled. It has also been discovered that credentials of many experts, claiming possessed of higher qualification in this particular field, were found fake and they were thus, removed from service. The DNA Wikipedia on web is an unrebutted testimony to these facts.

28.In any case, it is an expert opinion and even if it is admitted into the evidence and relied upon, would in no manner be sufficient to connect the necks of the appellants with the commission of the crime when the bulk of other evidence has been held by us unbelievable thus, no reliance can be placed on it to award a capital sentence. Moreover, to ensure fair-play and transparency, the samples in the laboratories from the parents should have been taken in the presence of some independent authority like a Magistrate and also the recovered samples from the crime scene in the same way to dispel the chances of fabrication of evidence through corrupt practices and the transition of the samples to the laboratory should have also been made in a safe and secure manner. But all these safeguards were kept aside.”

17.The recovery of panaflex sheet (P-5) from the house of the appellant has no significance for the reason that according to the report of the Punjab Forensic Science Agency, Lahore (Exh.PG) the same was not found to be

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stained with blood nor any DNA profile obtained from the panaflex sheet (P-5) matched the DNA profile of the deceased .

18.The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Muhammad Tariq (PW-7) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore, the appellant’s conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled “Hashim Qasim and another Vs. The State” (2017 SCMR 986) has enunciated the following principle of law:

“The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit.”

The august Supreme Court of Pakistan in its binding judgment titled “Naveed Asghar and two others Vs. The State” (P L D 2021 Supreme Court 600) has enunciated the following principle of law:

“31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the

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commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person. 32 Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners.”

19.The plea of the learned Deputy Prosecutor General that because the complainant party was having no enmity to falsely implicate the appellant in such a heinous crime thus, the evidence adduced should be believed, is entirely a misconceived one. It is a cardinal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or innocence of an accused person. Even evidence of an uninterested witness, not inimical to the accused, may be corrupted deliberately while evidence of an inimical witness, if found consistent with the other evidence corroborating it, may be relied upon. Reliance in this regard may be placed on the case of Waqar Zaheer vs. The State (1991 PSC 281).It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without a shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw a conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that charges, so imputed against the accused, have not been proved beyond a reasonable

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doubt, then the accused becomes entitled to acquittal. In such a situation the Court has no jurisdiction to abridge such right of the accused. To ascertain as to whether accused is entitled to the benefit of the doubt the Court can conclude on considering the agglomerated effect of the evidence available on record as held in the cases of Safdar Ali v. The Crown (PLD 1953 FC 93) and Muhammad Luqman v. The State (PLD 1970 SC 10). In the instant case we have scanned the prosecution evidence in-depth and we are persuaded to hold that the prosecution has failed to produce trustworthy, confidence-inspiring and consistent evidence against the appellant. Conversely, the evidence so brought on record appears to have been fabricated to prove the prosecution case. Even otherwise the evidence suffers from material discrepancies, contradictions and omissions and for such reasons it has not proved the case against the appellant intrinsically and if the evidence of such defective quality is accepted it would produce an illusory judgment which apparently would not be sustainable in the eye of the law in view of the principles laid down by the august Supreme Court of Pakistan in the judgments referred to hereinabove. Even otherwise the prosecution evidence is inconsistent, thus, on basis of the same appellant cannot further be immured because he has every right to claim guarantee of the Constitution which provides that every citizen of the country shall be dealt with in accordance with the law.We are of the considered opinion that had the said witnesses being truthful witnesses and had they witnessed whatever they stated before the police and the learned trial court, then these contradictions would not have cropped up in their testimony. These self-negating and contradictory

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statements of the witnesses reflect that the witnesses are not truthful and they are supporting the afterthought, fabricated and concocted story meant to create incriminating evidence to strengthen the case of the unwitnessed occurrence against the appellant. The august Supreme Court of Pakistan in the case of Imran alias Dully and another Vs. the State and others (2015 SCMR 155) at page 164 has held as under:-

“By now, it is a consistent view that when any case rests entirely on circumstantial evidence then, each piece of evidence collected must provide all links making out one straight chain where on one end its noose fit in the neck of the accused and the other end touches the dead body. Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and in that event conviction cannot be safely recorded and that too on a capital charge.”

To carry a conviction on a capital charge it is essential that the courts should deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon and very minute and narrow examination of the same is necessary to secure the ends of justice. It is imperative for the prosecution to provide all links in chain, where one end of the same touches the dead body and the other, neck of the accused. The present case is of such a nature that many links are missing in the chain.

It would not be wrong to observe that in this particular case, it can be said that there is no link, what to talk about a chain. The august Supreme Court of Pakistan in the case of Fiaz Ahmad Vs. The State (2017 SCMR 2026) has observed at page 2030 as under:-

“It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however, if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same.”

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20.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Muhammad Awais son of Muhammad Javed in the present case. It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of Muhammad Mansha Vs. The State (2018 SCMR 772) has enunciated the following principle:

“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right.”

Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muhammad Akram Vs. the State (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra:

“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.”

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21.For what has been discussed above Criminal Appeal No.168-J of 2017 lodged by Muhammad Awais son of Muhammad Javed (appellant) is allowed and the conviction and sentences of the appellant awarded by the learned trial court through the impugned judgment dated 17.03.2017 are hereby set-aside. Muhammad Awais son of Muhammad Javed (appellant) is ordered to be acquitted by extending him the benefit of doubt. Muhammad Awais son of Muhammad Javed is in custody and he is directed to be released forthwith if not required in any other case.

22.Murder Reference No.14 of 2017 is answered in Negative and the death sentences awarded to Muhammad Awais son of Muhammad Javed are Not Confirmed.

(SAFDAR SALEEM SHAHID) (SADIQ MAHMUD KHURRAM)

Raheel JUDGE JUDGE

Approved for Reporting

JUDGE JUDGE

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