State vs Muhammad Tasawar

Stereo. H.C. JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN.

JUDICIAL DEPARTMENT

Murder Reference No.14 of 2024 (The State Vs. Muhammad Tasawar)

Criminal Appeal No. 135-J of 2024 (Muhammad Tasawar Vs. The State and another.)

JUDGMENT

Date of hearing: 03.06.2026.

Appellant by: Mr. Asif Khan, Advocate.

State by: Mr. Ashfaq Ahmed, Deputy Prosecutor General. The complainant of Mr. Muhammad Nazeer Khan,Advocate.

the case by:

SADIQ MAHMUD KHURRAM, J.– Muhammad Tasawar son of

Ghulam Sarwar (convict) was tried by the learned Additional Sessions Judge, Kallur Kot in case F.I.R. No. 438 of 2021 dated 17.10.2021 registered at Police Station Kallur Kot,District Bhakkar in respect of offences under sections 302,364 and 201 P.P.C. for committing the Qatl-i-Amd of Muhammad Usman Liaquat son of Liaquat Ali (deceased). The learned trial court vide judgment dated 30.01.2024 convicted Muhammad Tasawar son of Ghulam Sarwar (convict) and sentenced him as infra:

Muhammad Tasawar son of Ghulam Sarwar:-

i)Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Usman Liaquat son of Liaquat Ali (deceased)

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ii)Rigorous Imprisonment of seven years under section 364 PPC and directed to pay fine of Rs.50,000/- and in case of default of payment of fine, the convict was further directed to undergo two months of simple imprisonment.

iii)Rigorous Imprisonment of seven years under section 201 PPC and directed to pay fine of Rs.50,000/- and in case of default of payment of fine, the convict was further directed to undergo two months of simple imprisonment.

The benefit provided under section 382-B of the Code of Criminal Procedure, 1898 was extended to the petitioner by the learned trial court. All the sentences awarded to the petitioner were ordered to run concurrently by the learned trial court.

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

2.Feeling aggrieved, Muhammad Tasawar son of Ghulam Sarwar (convict) lodged the Criminal Appeal No.135-J of 2024, assailing his conviction and sentence.

The learned trial court submitted Murder Reference No.14 of 2024 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Tasawar son of Ghulam Sarwar. We intend to dispose of the Criminal appeal No.135-J of 2024 and the Murder Reference No.14 of 2024 through this single judgment.

3.The facts of the prosecution case were detailed by the prosecution witnesses are that on 17.10.2021 at about Dopherwaila , the appellant namely Muhammad Tasawar son of Ghulam Sarwar brought Muhammad Usman Liaquat son of Liaquat Ali (deceased) to Head Janduu on a motorcycle where the appellant fired at the deceased committing his Qatl-i-Amd and threw the dead body of the deceased in the canal and left thereafter.The motive of the incident as narrated by the prosecution witnesses was that the appellant wanted to have illicit relations with Muhammad

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Hamza (PW-13) ,the brother of the deceased however considered the deceased a hurdle in the same.

4.After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the accused were sent to face trial. The learned trial court framed the charge against the accused on 05.01.2022, to which the accused pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case got recorded statements of eighteen witnesses.Liaquat Ali (PW-12) submitted the application (Exh.PA/2) for the registration of the F.I.R. and on 28.10.2021 also identified the shoe(P-6) and the mobile phone device (P-13) as being of his deceased son. Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) stated that on 23.10.2021 at about 06.00 p.m., the appellant confessed to his guilt in their presence and . Muhammad Hamza (PW-13) stated that the appellant wanted to have illicit relations with him which he refused and on 25.10.2021 he produced his mobile phone device (P-28) before the Investigating Officer of the case and the data was recovered and stored in the Universal Serial Bus (USB) storage device (P-29) by Nazar Hussain PSA (PW-5). Muhammad Aqeel Khan (PW-9) and Muhammad Imran (PW-10) stated that on 17.10.2021, they saw the appellant with the deceased on a motorcycle going towards Head Jandu and thereafter saw the appellant returning alone. Muhammad Asif Jalal,Safety Officer (PW-1) stated that on 24.10.2021 he brought out the dead body from the Thull canal. Khalil ur Rehman Asghar (PW-2) stated that on 17.10.2021 he got recorded the formal F.I.R.

(Exh.PA). Muhammad Iqbal 446/C (PW-6) stated that on 23.10.2021 the appellant

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was arrested by the Investigating Officer of the case and mobile phone device (P- 1),Universal Serial Bus (USB) storage device (P-2) ,cash(P-3) and Computerized National Identity Card (CNIC) (P-4) of the appellant were seized by the Investigating Officer of the case and on the same day the appellant pointed the place of firing at the deceased from which place empty shell of a bullet(P-5),a shoe(P-6) and blood stained earth(P-7) were taken and on 24.10.2021 , he received the last worn clothes of the deceased from the Medical Officer after post mortem examination and handed them over to the Investigating Officer of the case and on 27.10.2021, the appellant got recovered the pistol (P-11),four live bullets (P-12/1-4) . the mobile phone device (P-13) of the deceased ,wallet(P-14),photographs (P-15 and P-16),Computerized National Identity Card (CNIC) (P-17) of the deceased ,currency notes (P-19 to P-21) ,document(P-18), clothes of the appellant (P-22 and P-23) and the motorcycle (P-24) with the indicator light(P-25). Muhammad Zeeshan Awan,draftsman (PW-7) prepared the scaled site plan of the place of the occurrence (Exh.PM). Muhammad Zulfiqar Ali ASI (PW-18) investigated the case from 17.10.2021 till 19.02.2022, arrested the appellant on 23.10.2021 and narrated the facts of the investigation as conducted by him in his statement before the learned trial court.

6.The prosecution also got Dr. Imran Siddique (PW-3) examined, who on 24.10.2021 was posted as Medical Officer at the THQ hospital Kallur Kot and on the same day conducted the postmortem examination of the dead body of Muhammad Usman Liaquat son of Liaquat Ali (deceased). Dr. Imran Siddique (PW-

3), on examining the dead body of Muhammad Usman Liaquat son of Liaquat Ali (deceased), observed as under:-

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“Injury No.1: A firearm entry wound 1cm x 1cm on back of head on right side. Underlined bone was fractured.

Injury No.2: A firearm exit wound of 2cm X 1cm on left side of cheek.

Injury No.3. Abrasion mark on both knees on front surface.

Injury No.4: Abrasion mark on dorsum of right hand.

Injury No.5. Swelling of body.

In my opinion, death was caused by injury No.01 & 02 leading to neurogenic shock. These injuries were grievous and sufficient to cause death in ordinary course of nature. These injuries were ante-mortem and were caused by firearm weapon.

Probable that elapsed between injuries and death was immediate whereas between death and post-mortem were 7-10 days."

7.On 10.01.2024, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Aamir Mauwiya,Muhammad Ishtiaq ASI and Tariq Ali 303/C as being un-necessary and closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh. PT, Exh.

PU and Exh.P.V).

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Tasawar son of Ghulam Sarwar under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, he replied that he was innocent and had been falsely involved in the case. Muhammad Tasawar son of Ghulam Sarwar further stated that

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he had not committed any offence and had been made a scapegoat in the case in order to show efficiency by the police. The appellant namely Muhammad Tasawar son of Ghulam Sarwar opted not to get himself examined under section 340(2) Cr.P.C however produces documents (Exh.DD and Exh.DE) as evidence in his defence.

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

10.The contention of the learned counsel for the appellant precisely was that the whole case was 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 had totally failed to prove the case against the appellant namely Muhammad Tasawar son of Ghulam Sarwar beyond the shadow of doubt.

11.On the other hand, the learned Deputy Prosecutor General and the learned counsel for the complainant contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General and the learned counsel for the complainant further argued that the deceased was murdered by the appellant. The learned Deputy Prosecutor General

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and the learned counsel for the complainant further argued that the recoveries from the appellant also corroborated the statements of the other witnesses. The learned Deputy Prosecutor General and the learned counsel for the complainant contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. The learned Deputy Prosecutor General and the learned counsel for the complainant prayed for the rejection of the appeal as lodged by the appellant .

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

13.After consideration of the contentions raised by the learned counsel for the appellant, the learned Deputy Prosecutor General,the learned counsel for the complainant 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

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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."

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:

"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

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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 confession of the appellant namely Muhammad Tasawar son of Ghulam Sarwar made by him before the prosecution witnesses namely Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined), the statements of Muhammad Aqeel Khan (PW-9) and Muhammad Imran (PW-10) who stated that on 17.10.2021, they saw the appellant with the deceased on a motorcycle going towards Head Jandu and thereafter saw the appellant returning alone, the motive, the recoveries of empty shell of a bullet(P-5),a shoe(P-6) and blood stained earth(P- 7),the pistol (P-11),four live bullets (P-12/1-4), the mobile phone device (P-13) of the deceased ,wallet(P-14),photographs (P-15 and P-16),Computerized National Identity Card (CNIC) (P-17) of the deceased ,currency notes (P-19 to P-21)

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,document(P-18), clothes of the appellant (P-22 and P-23) and the motorcycle (P-

24)with the indicator light(P-25)

14.Firstly, we shall deliberate upon the evidence of the extra-judicial confession of the appellant . The prosecution examined Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) to prove the extra- judicial confession allegedly made by the appellant in this case who got recorded their statements and stated that on 23.10.2021 at about 06.00 p.m, the appellant namely Muhammad Tasawar son of Ghulam Sarwar came to the Baithak of Habib Mustafa (PW-14) and confessed that on 17.10.2021 at about Dopherwaila ,he, the appellant namely Muhammad Tasawar son of Ghulam Sarwar, brought Muhammad Usman Liaquat son of Liaquat Ali (deceased) to Head Janduu on a motorcycle where the appellant fired at the deceased committing his Qatl-i-Amd and threw the dead body of the deceased in the canal and left thereafter and the motive of the incident was that he,the appellant ,wanted to have illicit relations with Muhammad Hamza (PW-13) ,the brother of the deceased however considered the deceased a hurdle in the same.

he most important flaw in the statements of Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined), which denues the falsity of their statements is the fact that both Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) claimed that after the confession was made by the appellant,they caught hold of the appellant and called the police, including Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case ,and handed the appellant over to the police after the arrival of it at the Bhaitak of Habib Mustafa (PW-14). In this regard, Habib Mustafa (PW-14) made the following statement before the learned trial court :-

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“Upon this Muhammad Anees and I consoled Muhammad Tassawar accused that we make a contact with Liaquat Ali and I came out of my Bethak and telephone at Police Station, Kallur Kot and informed the local police about the presence of accused Tassawar at my Bethak and also informed the local police about the confession of Muhammad Tassawar accused about the murder of Muhammad Usman Liaquat.

Thereafter, local police arrived at my Bethak and arrested Muhammad Tassawar accused.” (emphasis supplied)

Similarly Muhammad Anees (PW-15,who died before he could be cross examined) also made the following claim in his statement recorded by the learned trial court :- “Liaquat Ali. Upon this I and Habib Mustafa consoled Muhammad Tassawar accused that we make a contact with Liaquat Ali and Muhammad Anees came out of from his Bethak and telephone at Police Station, Kallur Kot and informed the local police about the presence of accused Tassawar at his Bethak and also informed the local police about the confession of Muhammad Tassawar accused about the murder of Muhammad Usman Liaquat. Thereafter, local police arrived at the Bethak of Habib Mustafa and arrested Muhammad Tassawar accused.” (emphasis supplied) Contrary to the statements of both Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) that after the appellant had confessed before them regarding the Qatl-i-Amd of the deceased , the appellant kept sitting in the Bhaitak of Habib Mustafa (PW-14) whereafter Habib Mustafa (PW-

14)and Muhammad Anees (PW-15,who died before he could be cross examined) called the police and handed over the custody of the appellant to the police after the arrival of it at the Bhaitak of Habib Mustafa (PW-14), during cross-examination of Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case , it was proved that both Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he

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could be cross examined) had initially told Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case , that the appellant left the Bhaitak of Habib Mustafa (PW-14) after making the alleged confession and furthermore Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) had not made a telephonic call to the Police Station rather had met Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case, near the Moti Masjid at Dhobi Chowk Kallur Kot and told him that the appellant had confessed to his guilt and after the confession, the appellant had left the Bhaitak of Habib Mustafa (PW-

14).In this regard, during the cross-examination of Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case ,it was admitted by him that according to the entries made in the Register No. II, through Rapt no. 20 dated 23-10-2021,he was present near the Moti Masjid at Dhobi Chowk , Kallar Kot, when both the witnesses namely Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) met him at the said place and got recorded their statements to the effect that the appellant had confessed to his guilt and after the confession had left the Bhaitak of Habib Mustafa (PW-14) and thereafter both the Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) came to meet with Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case, and told him about the said confession of the appellant. During cross-examination Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case, admitted as under:- “I myself Incorporated the entries in the ruppat 02/20 dated 23-10-2021 Rozhamcha Exh.DA. According to said ruppat Roznamcha Exh.DA I was present at Moti Masjid, Dhobi Chowk Kallur Kot when Habib Mustafa and Anees associated before me in the investigation.”

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During cross-examination, Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case, also admitted it as correct that in the Rapt No.20, (Exh. DA), it was not mentioned that the appellant had been arrested after the said confession. During cross- examination Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case, admitted as under:-

“. It is correct that in the contents of Exh. DA it is mentioned that جس کے چلے جانے کے بعد تمام حاالت محمد لیاقت مدعی مقدمہ مذکرہ کو جا کر بتال ئے محمد تصور شہر کلور کوٹ میں ہی موجود ھے۔ جملہ کو شامل تفتیش کر کے محمد تصور ملزم کی تالش کی It is correct that according to contents of Exh.DA I have not mentioned about the time and place of arrest of accused, as well as the alleged recovery of anything from the accused.” (emphasis supplied)

Furthermore, during cross-examination Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case, was further cross-examined with regard to the contents of the Rapt No.20, (Exh. DA) and he admitted that according to the contents of the said Rapt No.20, (Exh. DA), both the witnesses namely Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) were not even present when the appellant was arrested by him. During cross-examination, Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case, admitted as under:- “Question by learned defence counsel.

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Q. According to the contents of Exh.DA when accused Tasawar was arrested, Habib Mustafa and Muhammad Anees were not present.

Answer by P.W,

Ans; Yes.

It is objected by Learned ADPP for the state that as the Exh. DA is not prepared by the P.W and it is also not a certified copy, and also the P.W has not dictated the contents of it.

At this juncture, learned defence counsel requested to call the original register of ruppats.

Court Observation.

As the P.W himself stated that he himself incorporated the entries in the ruppat 02/20 dated 23-10-2021 Roznamcha Exh.DA. Therefore, the objection raised by Learned ADPP for the state is overruled.” (emphasis supplied) The facts of the case as recorded in the document Rapt No.20, (Exh. DA) are themselves sufficient to prove that both the witnesses namely Habib Mustafa (PW-

14)and Muhammad Anees (PW-15,who died before he could be cross examined) made false statements before the learned trial court and improved their previous statements so as to make their statements believable however both the witnesses namely Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) were badly exposed to have made statements with dishonesty before the learned trial court ,hence impeaching their credit. We have thus reached an irresistible conclusion that the statements of both the witnesses namely Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) cannot be believed at all.

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15.Furthermore, both Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) were not in any position of worth with relation to the complainant of the case , which position could have led the appellant to seek the help of Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) regarding procuring of any favour from the complainant of the case , which influence of Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) over the complainant of the case could have persuaded the appellant to make a confession before Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined). During cross-examination, Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case, admitted that both Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) had no influence over the complainant of the case and stated as under:-

“Habib Mustafa and Anees P.Ws have برادریwith the complainant but I do not know their blood relation with the complainant. The P.W Anees is the resident of Mohallah Jharoli, Kallur Kot while P.W Anees is the resident of Mohallah Rao Mehfooz, Kallur Kot.

Anees and Habib Mustafa are not the influential and notable persons in the area. Volunteer stated that they are common persons.” (emphasis supplied) To make a confession in order to give an outlet to one's burden on mind and conscience is possible, however one does this only before a strong and close confidant. In the instant case, the position of the witnesses Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined), before

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whom the alleged extra-judicial confession was made, was such that they barely knew the accused before the alleged confession and both Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) were neither close confidants of the accused in any manner or said to be sharing any habit or association with the accused. Both the possibilities of confessing the crime; for the purpose of boasting or to give an outlet to one's burden on mind, in the circumstances, are excluded from consideration. Moreover the alleged extra-judicial confession of the appellant is so detailed and comprehensive that it covers almost every aspect of the prosecution case; it is in fact an encyclopedia of the prosecution case. A man under the stress of compunction of his conscious is not supposed to give such minute details. These peculiar facts speak volumes regarding the lack of authenticity of the statements of Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) and also shows their unusual behaviour which was otherwise contrary to the normal human behaviour in the circumstances. After an analysis of the prosecution evidence with regard to extra- judicial confession we have come to the conclusion that the prosecution has manufactured the said extra-judicial confession in this case to strengthen the case against the appellant after taking legal advice in this regard. In these eventualities, the story introduced by Habib Mustafa (PW-14) and Muhammad Anees (PW- 15,who died before he could be cross examined) about the extra-judicial confession of the appellant seems improbable. Even otherwise, extra-judicial confession is a very weak type of evidence and the same obviously needs impartial/strong corroboration from other independent sources which is missing in this case. The evidentiary value of the extra-judicial confession came up for consideration before august Supreme Court of Pakistan in the case of "Sajid Mumtaz and others v.

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Basharat and others" (2006 SCMR 231), wherein, at page 238, the Apex Court of Pakistan observed as under:-

"17. ......This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra-judicial confessions staring from Ahmed v. The Crown PLD 1951 FC 103-107 up to the latest. Extra judicial confession has always been taken with a pinch of salt. In Ahmed v. The Crown, it was observed that in this country (as a whole) extra-judicial confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extra-judicial confession, the Court must inquire into all material points and surrounding circumstances to "satisfy itself fully that confession cannot but be true". As, an extra¬judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction.

18.It has been further held that the status of the person before whom the extra-judicial confession is made must be kept in view, that joint confession cannot be sued against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by this Court.

19.It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.

20.Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such-like heinous offences where fear dominates and always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confident. In the instant case the position of the witnesses before whom extra-judicial confession is made is such that they are neither the close confident of the accused nor in any manner said to be sharing any habit or

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association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration.

21.Another most important and natural purpose of making extra- judicial confession is to seek help from a third person. Help is sought firstly, when a person is sufficiently trapped and secondly, from one who is authoritative, socially or officially.......

22.As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions. Such confessions by now, have become the signs of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like why the accused should at all confess; what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesses with the maker of confession and what, above all is the position or authority held by the witness".

In the case of "Mst. Asia Bibi v. The State and others" (P L D 2019 Supreme Court 64) wherein, the august Supreme Court of Pakistan was pleased to observe as under:- “In this regard it is to be noted that this Court has repeatedly held that evidence of extra-judicial confession is a fragile piece of evidence and utmost care and caution has to be exercised in placing reliance on such a confession. It is always looked at with doubt and suspicion due to the ease with which it may be concocted. The legal worth of the extra judicial confession is almost equal to naught, keeping in view the natural course of events, human behaviour, conduct and probabilities, in ordinary course. It could be taken as corroborative of the charge if it, in the first instance, rings true and then finds support from other evidence of unimpeachable character. If the other evidence lacks such attribute, it has to be excluded from consideration. Reliance in this behalf may be made to the cases of Nasir Javaid v. State (2016 SCMR 1144), Azeem Khan and another v. Mujahid Khan and others (2016

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SCMR 274), Imran alias Dully v. The State (2015 SCMR 155), Hamid Nadeem v. The State (2011 SCMR 1233), Muhammad Aslam v. Sabir Hussain (2009 SCMR 985), Sajid Mumtaz and others v. Basharat and others (2006 SCMR 231), Ziaul Rehman v. The State (2000 SCMR 528) and Sarfraz Khan v. The State and 2 others (1996 SCMR 188).”

Keeping in view the guidelines given by august Supreme Court of Pakistan in the above-mentioned judgments, we palpably discard the evidence of extra-judicial confession manufactured by the prosecution to strengthen its case. This part of the evidence is nothing but a tailored story, which was arranged with the help of the Investigating Agency thus, it is of no legal worth and being absolutely unreliable is excluded from consideration. The scrutiny of the statements of the prosecution witnesses namely Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) reveals that the said statements were neither prompt nor spontaneous nor natural, rather were contrived, manufactured and compromised statements. The evidence in the case has been collected in a careless manner, employed more to create further muddle regarding the facts in issue rather than proving the said facts.

16.The learned Deputy Prosecutor General and the learned counsel for the complainant have also stated that the deceased was last seen in the company of the appellant and this fact also proves the guilt of the appellant. In order to prove the said fact, the prosecution examined prosecution witnesses namely Muhammad Aqeel Khan (PW-9) and Muhammad Imran (PW-10) who stated that on 17.10.2021, they saw the appellant with the deceased on a motorcycle going towards Head Jandu and thereafter saw the appellant returning alone whereafter the deceased was never seen alive. We have scrutinized the statements of prosecution witnesses namely Muhammad Aqeel Khan (PW-9) and Muhammad Imran (PW-10) and find that they

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remained unable to prove that on 17.10.2021, they had seen the appellant with the deceased on a motorcycle going towards Head Jandu and thereafter saw the appellant returning alone. It was admitted by the prosecution witnesses namely Muhammad Aqeel Khan (PW-9) and Muhammad Imran (PW-10) that the prosecution witness namely Muhammad Imran (PW-10) had a separate residence which was at a distance of about 03/04 kms. from the house of Muhammad Aqeel Khan (PW-9) and furthermore the residences of both the prosecution witnesses namely Muhammad Aqeel Khan (PW-9) and Muhammad Imran (PW-10) were quite far from the place of their presence where they had seen the appellant . The prosecution witness namely Muhammad Imran (PW-10) , during cross-examination , stated as under:- “ My house is situated at a distance of 04 kilometers from Jandoo Head. Inter se distance between my house and house of P.W Muhammad Aqeel is 03/04 kilometers. House of Muhammad Aqeel P.W is situated at a distance of 08 kilometers from Jandoo Head. " (emphasis supplied).

It is also a fact that both the prosecution witnesses namely Muhammad Aqeel Khan (PW-9) and Muhammad Imran (PW-10) gave no reason for their presence at the place where they had allegedly seen the appellant with the deceased and which place was at a distance from their houses as well as their lands. During cross examination the prosecution witness namely Muhammad Aqeel Khan (PW-9) claimed that he had met the prosecution witness namely Muhammad Imran (PW-10) at his land at about 08/09.00 a.m. however never explained as how then they both came to be at the place where they saw the appellant and the deceased ,which place was at adistance of as many as about four kilometers from the land of Muhammad Imran (PW-10). During cross examination the prosecution witness namely Muhammad Aqeel Khan (PW-9) claimed as under :-

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“In my statement 'Dopher Wela' is started from 11:30 and its end to 01:00 p.m.

I and Muhammad Imran together reached at Jandoo Head. Muhammad Imran met me in his landed property at 08:00/09:00 a.m when he was cleaning the watercourse there.”

In this manner, both prosecution witnesses namely Muhammad Aqeel Khan (PW-9) and Muhammad Imran (PW-10) admittedly gave no reason for their presence at the place which enabled them to witness the deceased travelling on a motorcycle with the appellant and the return of the appellant alone. It was obviously a false claim of the prosecution witnesses namely Muhammad Aqeel Khan (PW-9) and Muhammad Imran (PW-10) that on 17.10.2021, they saw the appellant with the deceased on a motorcycle going towards Head Jandu and thereafter saw the appellant returning alone. Addedly it was also admitted by the prosecution witnesses namely Muhammad Aqeel Khan (PW-9) and Muhammad Imran (PW-10) that one Muhammad Riaz Baildar, was also present with them when they had seen the appellant and the deceased however, Muhammad Riaz Baildar never appeared before the Investigating Officer of the case or the learned trial court to state that he was also present with the prosecution witnesses namely Muhammad Aqeel Khan (PW-9) and Muhammad Imran (PW-10) on 17.10.2021and had seen the appellant with the deceased on a motorcycle going towards Head Jandu. Muhammad Aqeel Khan (PW-9) , during cross-examination , admitted as under:- " When I reached at Jandoo Head, one Muslimmad Riaz baildar was present there.

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Muhammad Riaz baildar did not join the investigation of this case in our presence.

Police did not inquire Muhammad Riaz about our presence at Jandoo Head regarding our statement. "

Muhammad Imran (PW-10) , during cross-examination , admitted as under:- " Prior to our reaching Riaz Aulakh Baildar was present at Jandoo Head. I do not know as to whether Muhammad Riaz Baildar joined the investigation or not? I do not know as to whether police inquired into Muhammad Riaz Baildar for verifying our statements or not? I do not know as to whether I.O prepared rough site plan in my as well as on the pointation."

We have also noted that the prosecution witness namely Muhammad Aqeel Khan (PW-9) admitted that he did mention that the appellant was armed with any weapon in his statement before the police and also did not hear the sound of any firing. The prosecution witness namely Muhammad Aqeel Khan (PW-9) , admitted during cross-examination , as under:-

" It is correct that as accused Muhammad Tasawar was not having pistol in hand or his clothes were blood stained, so, we did not record this fact in our statements. As we did not hear the voice of fire shots, so we did not record this fact in our statements. "

17.Pre-requisites for believing the last seen evidence are the 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

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found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. According to the prosecution witnesses namely Muhammad Aqeel Khan (PW-9) and Muhammad Imran (PW-10) they had seen the appellant taking the deceased on 17.10.2021 at about Dupherwaila ( about 11.30 a.m. to 01.00 p.m.). The dead body of the deceased was discovered on 24.10.2021. The dead body of the deceased was brought to the hospital on 24.10.2021 at about 10.45 a.m. Dr.Imran Siddique (PW-3) conducted the postmortem examination of the dead body of the deceased on 24.10.2021 at about 11.15 a.m. Dr.

Imran Siddique (PW-3), after conducting the postmortem examination of the dead body of the deceased opined that the time between death and post mortem examination was 7-10 days. The opinion of Dr. Imran Siddique (PW-3) regarding the death of the deceased having taken place 7-10 days 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 17.10.2021 at about Dupherwaila ( about 11.30 a.m. to 01.00 p.m.) and the time when the deceased was murdered determined to be as being 7-10 days prior to post mortem examination of the dead body of the deceased on 24.10.2021 at about 11.15 a.m.. In this manner, it is proved that the prosecution failed to establish that the deceased was seen lastly in the company of the appellant. Even otherwise ,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 the 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 other than the accused being the author of the crime becomes impossible. In

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this case, the element of the proximity of the time of last seeing the deceased and the time of her 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.

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

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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.

18.The learned Deputy Prosecutor General and the learned counsel for the complainant have also stated that on 23.10.2021 the appellant was arrested by the Investigating Officer of the case and on the same day the appellant pointed the place of firing at the deceased from which place empty shell of a bullet(P-5),a shoe(P-6) and blood stained earth(P-7) were taken and these facts also prove the guilt of the appellant. In this regard though it was claimed by the prosecution witness namely Habib Mustafa (PW-14) that he had also accompanied the appellant and the Investigating Officer of the case to the place of the occurrence however at the same time Habib Mustafa (PW-14) also admitted that he never mentioned it in his statement recorded under section 161 Cr.P.C. . During cross examination, Habib Mustafa (PW-14),admitted as under:-

“I myself visited the alleged place of occurrence alongwith Tasawar accused.

Volunteer stated that I alongwith Tasawar accused visited the place of occurrence after his arrest by the police alongwith police. It is correct that in my statement u/s 161- Cr.P.C before police as well as statement which I have recorded before this court I have not deposed the specific place/alleged place of occurrence. It was the time of 09:00 p.m when I alongwith police visited the alleged place of occurrence.

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It is correct that in my statement u/s 161-Cr.P.C I have not disclosed that accused Tasawar under police custody led police officials as well as us about the place of occurrence where he allegedly committed murder of Muhammad Usman. It is correct that I have not deposed in my statement u/s 161-Cr.P.C regarding the place of occurrence, however, I have deposed in my examination-in-chief regarding the alleged place of occurrence i.e, near Jandoo Head. It is incorrect to suggest that I have made dishonest improvement in my examination-in-chief only to fill up the lacuna/cover the alleged place of occurrence. It is correct that I have not deposed in my statement u/s 161-Cr.P.C before police as well as in my examination-in-chief before this court, about the recovery of bloodstained earth as well as crime empties. Volunteer stated that in this regard, my separate statement was recorded by the I.O.

At this juncture, learned defence counsel requested that separate statement regarding the recovery of crime empties as well as bloodstained earth be supplied to the accused.

Police file was perused by the Learned ADPP for the State and learned prosecutor assisted the court that no separate statement of P.W Habib Mustafa with regard to recovery of bloodstained earth as well as crime empties is available on file” (emphasis supplied)

This very admission of Habib Mustafa (PW-14) that he never mentioned it in his statement recorded under section 161 Cr.P.C. that he had also accompanied the appellant and the Investigating Officer of the case to the place of the occurrence and in his presence, the appellant pointed the place of firing at the deceased from which place empty shell of a bullet(P-5),a shoe(P-6) and blood stained earth (P-7) were taken by the Investigating Officer of the case proves that the said proceedings never took place .As already mentioned above, it was even admitted by Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case, that according to the contents of the

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said Rapt No.20, (Exh. DA), both the witnesses namely Habib Mustafa (PW-14) and Muhammad Anees (PW-15,who died before he could be cross examined) were not even present when the appellant was arrested by him and the question of them accompanying the Investigating Officer of the case to the place of the occurrence does not even arise. In this manner it is proved beyond doubt that false record was created by the Investigating Officer of the case to prop up the failing prosecution case.

19.The learned Deputy Prosecutor General and the learned counsel for the complainant also relied upon the recoveries of the pistol (P-11),four live bullets (P- 12/1-4) . the mobile phone device (P-13) of the deceased ,wallet(P-14),photographs (P-15 and P-16),Computerized National Identity Card (CNIC) (P-17) of the deceased ,currency notes (P-19 to P-21) ,document(P-18), clothes of the appellant (P-22 and P-23) and the motorcycle (P-24) with the indicator light(P-25) from the appellant and have submitted that they offered sufficient corroboration. The recoveries of the pistol (P-11),four live bullets (P-12/1-4) . the mobile phone device (P-13) of the deceased ,wallet(P-14),photographs (P-15 and P-16),Computerized National Identity Card (CNIC) (P-17) of the deceased ,currency notes (P-19 to P-21) ,document(P-18), clothes of the appellant (P-22 and P-23) and the motorcycle (P-

24)with the indicator light(P-25) from the appellant cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recoveries of the pistol (P-11),four live bullets (P-12/1-4) . the mobile phone device (P-13) of the deceased ,wallet(P-14),photographs (P-15 and P-16),Computerized National Identity Card (CNIC) (P-17) of the deceased ,currency notes (P-19 to P-21) ,document(P-18), clothes of the appellant (P-22 and P-23) and the motorcycle (P-

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24)with the indicator light(P-25) from the appellant which action of his was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898 and therefore the evidence of the recoveries of the pistol (P-11),four live bullets (P-12/1-

4). the mobile phone device (P-13) of the deceased ,wallet(P-14),photographs (P- 15 and P-16),Computerized National Identity Card (CNIC) (P-17) of the deceased ,currency notes (P-19 to P-21) ,document(P-18), clothes of the appellant (P-22 and P-23) and the motorcycle (P-24) with the indicator light(P-25) from the appellant cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. During cross examination,the prosecution witness namely Muhammad Iqbal 446/C (PW-6) admitted as under:-

“It is correct that no lumberdar or councilor or notable of the locality was associated in the recovery proceedings on 27-10-2021. It is correct that the I.O did not ask any private person to associate in the recovery proceedings. It is correct that inmates of the house of the accused were not associated in the recovery proceedings.”

Zulfiqar Ali, ASI (PW-18),the Investigating Officer of the case,also admitted during cross examination as under :-

“I have not associated inmates of the house where I made the recovery of pistol from the accused. Likewise, I have not associated the notable persons of the area i.e. lumberdar in the investigation for the purpose of recovery of pistol from the accused.”

The provisions of section 103 Code of Criminal Procedure, 1898, unfortunately, are honoured more in disuse than compliance. To appreciate it better, section 103 Cr.P.C is being reproduced:-

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"103.--(1) Before making a search. under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.

The august Supreme Court of Pakistan in the case of “Muhammad Ismail and others Vs. The State” (2017 SCMR 898) at page 901 has held as under:- “For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

In this manner, the recovery of the pistol (P-11),four live bullets (P-12/1-4) . the mobile phone device (P-13) of the deceased ,wallet(P-14),photographs (P-15 and P- 16),Computerized National Identity Card (CNIC) (P-17) of the deceased ,currency notes (P-19 to P-21) ,document(P-18), clothes of the appellant (P-22 and P-23) and the motorcycle (P-24) with the indicator light(P-25) from the appellant could not be proved and cannot be considered as a relevant fact for proving any fact in issue.

20.We have also noted that the clothes of the appellant (P-22 and P-23) and the indicator light(P-25) were also sent to the Punjab Forensic Science Agency, Lahore for DNA analysis and the buccal swab standards of the appellant were also submitted to the Punjab Forensic Science Agency, Lahore. According to the report of the Punjab Forensic Science Agency, Lahore (Exh. PU), the DNA profile of the appellant was not found on the clothes (P-22 and P-23) and the indicator light(P-25).

When an individual touches an object, epithelial cells are left behind. Touch DNA is also known as epithelial DNA. The same traditional DNA analysis procedures are used to analyze and examine these remaining epithelial cells as are used to

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analyze and examine bodily fluids. The amount left behind is often less than 100 picograms and is also called low copy DNA. This is evidence with “no visible staining that would likely contain DNA resulting from the transfer of epithelial cells from the skin to an object. Due to development, lower amounts of human DNA can be detected and, possibly, a full or partial STR profile can be generated. DNA evidence has emerged as a powerful tool to identify perpetrators of unspeakable crimes and to exonerate innocent individuals accused of similarly heinous actions.

The technology has advanced to Polymerase Chain Reaction (PCR) based short tandem repeat (STR) testing. This system multiplies a single copy of a DNA segment to allow for the analysis of the genetic makeup of a small sample. Current analysis makes it possible to determine whether a biological tissue matches a suspect with near certainty. DNA is comprised of “coding” and “non-coding regions. The loci examined are found on “junk DNA,” which are segments of the DNA not known to code for any specific trait, but known to be different between individuals. “Junk DNA” are the non-coding regions which contain valuable information about identity, but do not contain information regarding coding for other genetic traits.

This allows the development of a DNA profile without an examination into other genetic markers. The report of the Punjab Forensic Science Agency, Lahore (Exh.PU) supports the claim of the appellant that he was innocent for the reason that had the appellant handled the clothes (P-22 and P-23) and the indicator light(P-25) then his DNA profile must had been obtained from the said items because had he touched these articles, then the epithelial cells from the skin of the appellant must have been left behind on the articles handled by him and subsequently the presence of DNA profile of the appellant would have been identified on the articles handled by him by the Punjab Forensic Science Agency, Lahore . The absence of any DNA

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profile of the appellant on any of the items sent to the Punjab Forensic Science Agency, Lahore for DNA analysis creates further doubt regarding the involvement of the appellant in the occurrence .

21.The learned Deputy Prosecutor General and the learned counsel for the complainant also relied upon the evidence of motive and submitted that it corroborated the other evidence available against the appellant. The motive of the occurrence as stated by the prosecution witnesses was that the appellant wanted to have illicit relations with Muhammad Hamza (PW-13) ,the brother of the deceased however considered the deceased a hurdle in the same. The prosecution relied upon the extra judicial confession of the appellant to prove the motive, however, as discussed above, failed to prove that the appellant had made any confession of his guilt. Furthermore, Muhammad Hamza (PW-13) also gave evidence with regard to the motive of the incident but admitted that he had never moved any application against the appellant with respect to the unwanted advances of the appellant and also admitted that he never informed Liaquat Ali (PW-12),his father and the complainant of the case ,about the actions of the appellant prior to the registration of the F.I.R.

Muhammad Hamza (PW-13) even admitted that there was no dispute between himself,the deceased or the appellant over the alleged advances made by the appellant towards Muhammad Hamza (PW-13). During cross examination, Muhammad Hamza (PW-13) admitted as under :-

“ I did not move any application against accused Tasawar regrinding intimidation to me by him.

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Further deposed that due to this relationship, our friendship was developed with the accused Tasawar. Prior to the alleged occurrence, there was no any quarrel /dispute between me and accused Muhammad Tasawar.

Prior to registration of FIR, I did not inform my father about my dispute/quarrel with the accused Tasawar.” (emphasis supplied)

Furthermore , Zulfiqar Ali ASI(PW18) ,the Investigating Officer of the case , also admitted that no Call Data Record of the mobile phone device under the use of the appellant and the mobile phone device under the use of Muhammad Hamza (PW-

13)was collected in proof of the alleged motive of the incident. During cross examination, Zulfiqar Ali ASI(PW18) ,the Investigating Officer of the case admitted as under :-

“The application for collection of CDR is not made specially to the D.P.O, office.

However the same is made to IT Branch of D.P.O, office. It is correct that the CDR of mobile numbers of accused Muhammad Tasawar, P.W Hamza and deceased Usman was not collected for establishing their contacts i.e. incoming and outgoing calls etc. Volunteer stated that call data of deceased was collected.” (emphasis supplied)

The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased. There is a poignant hush with regard to the particulars of the motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise a tainted piece of evidence cannot corroborate

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another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of “Muhammad Javed v. The State” (2016 SCMR 2021) as under:

“The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case.”

22.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. Imran Siddique (PW-3) 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,

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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 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."

23.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

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beyond a reasonable 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 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

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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.”

24.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Muhammad Tasawar son of Ghulam Sarwar in the present case. It is a settled principle of law that for giving the benefit of the 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

Criminal Appeal No. 135-J of 2024

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 a 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. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749)."

Reliance is also placed on the judgment of the august Supreme Court of Pakistan reported as "Najaf Ali Shah Vs. the State" (2021 S C M R 736) in which it has been held as under :-

"9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being

Criminal Appeal No. 135-J of 2024

doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."

25.For what has been discussed above the Criminal Appeal No.135-J of 2024 lodged by Muhammad Tasawar son of Ghulam Sarwar (appellant) is allowed and the conviction and sentence of the appellant namely Muhammad Tasawar son of Ghulam Sarwar awarded by the learned trial court through the impugned judgment dated 30.01.2024 are hereby set-aside. The appellant namely Muhammad Tasawar son of Ghulam Sarwar is ordered to be acquitted by extending him the benefit of doubt. Muhammad Tasawar son of Ghulam Sarwar is in custody and he is directed to be released forthwith if not required in any other case.

26.Murder Reference No.14 of 2024 is answered in Negative and the sentence of death awarded to Muhammad Tasawar son of Ghulam Sarwar is Not Confirmed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting

Judge