1999 P Cr (PLP)

In reply, Mr. Abdul Majeed Mallick, the learned counsel for the respondents‑accused argued that is a case of blind murder providing clue or link to any culprit. He also contended that the respondents have been involved purely on ground of suspicion and in support of suspicion the prosecution has led a false and concocted evidence, thus, it is a case of complete padding. He also argued that First Information Report was formulated and lodged after the recovery of dead body and it was made pre‑dated. He pointed out that finding of the dead body from the pond is itself a mysterious story. He also argued that story of search of Muhammad Reaz on 10th and 11th of July is also concocted. The witnesses were not present at the time of the recovery of the dead body from the pond. He also contended that Muhammad Asghar Rehm Ali, Razia Bibi, Mehndi Khan son of Boota Khan were arrested to the murder and sent to judicial lock‑up. They were also produced before a Magistrate at Bhimber on 2‑9‑1987 as accused but were replaced by the respondents. It was also argued by the learned counsel for the respondents that motive alleged in this case is itself contradictory which leads towards suspicion. He further submitted that there is no remote linkage of the respondents with the case and no material was collected by the Investigating Agency. He maintained that alleged recovery of 2 sticks "Dandas" and one Chhuri were stated to be blood‑stained at the time of the recovery but they were not got examined by the Chemical Examiner of Serologist to determine the origin of blood, therefore, according to him, the recovery totally loses its value. He further, argued that none of the respondents‑accused made any confession before any Magistrate who was shown to be tried alongwith the respondents. Therefore, the principle of confession of one of the accused is not available in this case, if at all there was any confession it was not put to the respondents at the time of the examination under section 342 of Cr.P.C. He also argued that according to F.I.R. the dead body was recovered by Muhammad Aslam (P.W.1) and Muhammad Bashir (P.W.4) and then Muhammad Aslam (P.W.1) lodged an F.I.R. On 11‑7‑1987 at 18‑10 hours. then police took away the dead body of the deceased to the hospital and both the prosecution witnesses accompanied the dead body to the hospital but page one of the post‑mortem report Exh.P.X., shows that dead body was identified by police which means that the dead body was not identified on the day of recovery. He also pointed out that date of examination of body was also over written and instead of 13th of July, 1987 the words 12th of July were inserted. He further pointed out that in column of information to the doctor furnished by police is also blank and word "none" has been written. In these circumstances according to the learned counsel for the respondents, at the time of the recovery of the dead body or at the time of post‑mortem no, F.I.R. was lodged and cause of death was not told to the doctor by the police. He further, submitted that Doctor Muhammad Yusuf (P. W .21) did not mention whether the clothing of the deceased were blood‑stained. He also argued that according to the post‑mortem report injury No. 1 was the cause of death which has been shown as a large lacerated wound and if the deceased was killed by Chhuri then there should have been an incised wound instead of lacerated wound. According to the post‑mortem report, the period between the death and post‑mortem was 72 hours, thus, deceased was murdered on 10th of July, 1987. He also referred the statement of Ch. Mumtaz Ahmed, Additional District and Sessions Judge (P.W.23) according to which he recorded the statement of the accused Asghar Ali son of Bahadar Khan, Ghulam Abbas son Muhammad Alam, Mehndi Khan son of Boota ‑ Khan on 2‑9‑1987 which means that till 2‑9‑1987 the abovementioned persons were shown as accused persons of the case who were arrested and later on released and after that they were produced as prosecution witnesses but all of them retracted from their statements recorded under section 164 of Cr.P.C., they were also declared hostile and cross‑examined by the prosecution. Thus, it is quite evident that Muhammad Aslam (P.W.1) and Muhammad Bashir (P.W.4) were not the persons who saw the dead body, recovered it and told the story of incident to the police and it is all concoction. According to the prosecution story all the respondents including Inayat and Mst. Bagh Bi were nominated as accused in F.I.R. According to him if F.I.R. was lodged on 11‑7‑1987 then as to why Asghar Ali alias Baga (P.W.5) and her mother‑in‑law Mst. Razia Bi were arrested. The learned counsel for the respondents‑accused invited our attention towards various portion of the prosecution evidence and submitted that there are lot of contradictions in the evidence which cannot be relied upon. He also argued that according to F.I.R, Mst. Bagh Bi played a vital role in this incident but the Investigating Agency reached to the conclusion that Mst. Bagh Bi is innocent but prosecution did not proceed against Mst. Bagh Bi. This silence of the prosecution negates the whole case of prosecution. He also contended that motive is used for purpose of corroboration and can never be used as a ground for conviction. He further, argued that when none of the accused made any confession how it can be read against the other accused‑respondents. He also argued that the statement of Zaffar Ali (P.W.13) is also not reliable because it is admitted by Zaffar Ali that deceased was closely related to him, therefore, it cannot be believed that Muhammad Sadeeq respondent‑accused would have made any confession before him especially when the statement of Zaffar Ali was not corroborated by any other evidence. He also criticized the recovery evidence and argued that the sticks and Chhuri were not sent for examination of Chemical Examiner or Serologist. The learned counsel for the respondents further, pointed out this fact that site plan Exh.P.Y. was prepared on 16‑7‑1987 and this fact has also proved on record that on 16‑7‑1987 Asghar Ali alias Baga (P.W.5). Mst. Razia Bi (P.W.6), Abbas (P.W.7) and Mehdi Khan (P.W.8) were under arrest as accused but in the site plan instead of the abovementioned persons the respondents were shown as accused. According to him if the site plan was prepared on 16‑7‑1987 then who pointed out the presence of respondents on the site of the occurrence Muhammad Latif Patwari (P.W.18) also stated in the Court that he prepared the site plane, at the pointing out of police. He further, submitted that according to the statement of Dr. Muhammad Yousuf (P.W.21) the dead body was examined on 13‑7‑1987 and if according to the prosecution story the dead body was recovered on 11‑7‑1987 then as to why the post‑mortem was not done on 11‑7‑1987 or 12‑7‑1987 and why it was done on 13‑7‑1987, which means that the act of recovery of dead body is concocted and cannot be relied upon. He also submitted that inquest report and injury form were prepared by Muhammad Saddiqe, A.S.‑I. (P.W.20) who appeared as witness but these documents were neither tendered in the evidence nor got exhibited by the prosecution. He maintained that‑ according to the recovery memo Exh.P.H. the blood‑stained Tehband shirt and vest were recovered by Muhammad Saddiqe, A.S.‑I. (P.W.2fl), but the said witness did not state anything about it. Finally, the learned counsel for the respondents submitted that it is a case of circumstantial evidence and there is no iota of evidence which links the accused directly or indirectly with the commission of crime, therefore, the order of acquittal may be maintained. In support of his contention the learned counsel for the respondents‑accused referred the following authorities:‑‑ (i) PLD 1962 Lah. p.271(D) (E), (ii) PLD 1965 SC p.44(A), (iii) 1991 SCMR p.2220(A)(B), (iv) 1991 PCr.LJ 697(F), (v) 1992 SCR p.366(B) and (vi) 1993 PCr.LJ p.1457(F). I have given due consideration to the matter in the light of the arguments advanced at the Bar. The learned counsel for the appellants vigorously contended that the prosecution case is based upon the extra‑judicial confession of one of the respondent Muhammad Saddiqe. In this respect he referred the testimony of Zaffar Ali (P.W.13) who stated as under:‑‑ The learned counsel for the appellants argued that the abovementioned d statement was riot challenged during the cross‑examination, thus, stands proved but this argument of the learned counsel for the appellant is devoid of force because the abovementioned statement has been challenged in cross‑examination in detail. Zafar Ali (P.W.13) is real maternal‑uncle of the deceased, therefore, it is inconsistent of human nature that respondent Saddiqe had made a confession before him. No other corroborative evidence in this respect is available on the record for the contradictions found in his statement. Zafar Ali also stated that he never witnessed any quarrel between the respondents and the deceased. The witness has further deposed that he has stated this fact for the first time in the Court that before the occurrence Muhammad Siddiq respondent and another person came to him and told him that they will commit the murder of Muhammad Reaz. He further, stated that he did not mention this fact to the police. Furthermore, according to the witness, Saddiqe respondent told him about the occurrence on 12th of July, 1987 but he did not mention this important fact to the police for two or three days and kept on waiting till his statement was recorded by police, the abovementioned deposition of witness is not reliable and truthful. This argument of the learned counsel for the appellant has also no substance that in the light of the statement of Zaffar Ali (P.W.13) an extra-judicial confession has been made by Muhammad Saddiqe. It has to be kept in mind that according to the witness Saddiqe respondent did not state that at the time of the murder who participated with him. Therefore, the statement of the said witness does not support the prosecution case to the extent of other respondents except Saddiqe. As far as the effect of an extra‑judicial confession of Muhammad Siddiq is concerned it does not come in preview of an extra- judicial confession. Firstly, it has not been proved on the record that Muhammad Saddiqe has confessed the murder of deceased Muhammad Reaz before Zaffar Ali. Secondly the statement by itself is not sufficient and reliable for the conviction. Article 43 of Qanun‑e‑Shahadat Order is an exception to the general rule that a confession is only evidence against the confessor and not against the others. This articles affords some sort of guarantee for the truth of the statement when the maker of such statement also implicates other accused because an admission by an accused person of his own guilt affords some sort of sanctions in support of the truth of his confession against others as well as himself but in the instant case when the statement of Zaffar Ali (P.W.13) has been recorded and not relied upon, no question of any confession arises. There is also an important aspect of the case that the prosecution did not put alleged extra‑judicial confession to the respondents in their examination under section 342 of Cr.P.C. thus, cannot be used as a piece of evidence against the respondent. Therefore, the evidence to prove extra judicial confession has been procured by police from an interested witness. The story of extra‑judicial confession is highly doubtful. Thus, no conviction can be based upon such type of extra‑judicial confession of an accused without corroboration from some other reliable and independent evidence. PLD 1985 SC page

221. It was also argued by the learned counsel for the appellants that the respondents launched three attacks upon the deceased before the occurrence and they were inimical to him and wanted to kill him at any cost. In this respect the prosecution produced Professor Murad Ali (P.W.12) and Zaffar Ali (P.W.13). Professor Murad Ali (P. W.12) stated before the Court that he did not know about the case of abduction. He further, deposed that he has no personal knowledge, about the case of quarrel pertaining to a case of Gujrat Court. He also stated that he told the police about an assault launched in the fields but the police did not mention this fact in his statement. He further stated that the police also did not mention the fact of drowning of deceased in a pond. The prosecution tried to bring this fact on record that Chairman Saryallie came to the witness who told him that Saddiqe and Majha are not involved in the murder but in the cross‑examination the witness stated that he does not know the Chairman personally and he also does not know that after how many days of the occurrence the Chairman came to him and he also cannot tell the date of his meeting. He further, mentioned that he met the Chairman in front of shop of Dr. Mian Khan and they sat on the shop of Haji Siddiq. At that time the Chairman and Aziz sat there and nobody else was present but the prosecution did not produce Chairman Saryallie or Haji Saddiqe shopkeeper to prove this fact therefore, the testimony of Professor Murad Ali was not corroborated by any cogent evidence. Professor Murad Ali is an educated person but he did not raise any objection at the time of the recording of his statement before police and he does not know the name of Chairman who allegedly came to him for rescue of respondents Siddiq and Majha. It will not be out of place to mention here that he is husband of deceased cousin. In these circumstances the testimony of Professor Murad Ali cannot be relied upon. In this context the statement of other witness Zaffar Ali has already been discussed above. I do not agree with this contention of the learned counsel for the appellants that the fact of an attempt of drowning of deceased in the pond was not challenged in cross‑examination, therefore, it is hereby repelled. Suffice to note that this fact has been challenged in cross-examination. The learned counsel for the appellants also submitted that the fact of departure of deceased for Durranwala and departure of respondents for Durranwala to follow the deceased was also proved by prosecution. In this respect the learned counsel referred the statement of Talib Hussain (P.W.10) and Muhammad Saddiqe (P.W.11). Muhammad Saddiqe (P.W.11) was declared hostile who deposed that on 9‑7‑1987 he and Talib Hussain were going towards their houses at village Khattana when deceased met them who told that he is leaving for Durranwala. He did not agree with the suggestion of the prosecution that he saw the respondents‑accused while going towards Durranwala. He also admitted this fact that village Durranwala is situated at the distance of 4 miles from village Khattana. He further, deposed that he did not mention this fact before the police that he met with Reaz deceased on 9‑7‑1987 rather, for the first time he disclosed this fact in the Court. Talib Hussain (P.W.10) deposed that he did not tell the police that Reaz deceased met him while he was going to village Durranwala and for the first time he has deposed this fact in the Court. He also stated he met respondents who were also leaving for Durranwala and at that time Muhammad Saddiqe (P.W.11) was accompanied by him. He further, stated that he did not mention this fact to the police that he met the respondents when they were going to Durranwala. He admitted this fact that the occurrence of an assault upon the deceased Reaz by the respondent did not happen in his presence. The perusal of the statement of Talib Hussain shows that he is not telling the truth. He stated that he was accompanied by Muhammad Saddiqe (P.W.11) but Muhammad Siddiq does not corroborate his statement. He also stated that he did not tell the police the fact of departure of deceased for Durranwala and on that very date the departure of respondents. The statement of the witness cannot be relied upon because if he knew the fact then why he kept quiet and did not tell these facts to the police especially when he came to know that the deceased has been murdered. For the reasons above listed the prosecution also failed to prove this fact that on the day of the occurrence Muhammad Reaz deceased left for Durranwala and on that very date the respondents also followed him. It will tot be out of place to mention here that the prosecution cited three more prosecution witnesses Abbas Ali (P.W.7) Mehndi Khan (P.W.8) and Nadar Khan (P.W.9) to prove this fact but these witnesses were not produced by the prosecution and declared hostile. The prosecution has also placed on record the statements under section 164 of Cr.P.C. of Muhammad Asghar alias Baga (P.W.5) Exh.P.I., Ghulam Abbas son of Muhammad Aslam (P.W.7) Exh.P.J. and Mehndi Khan son of Boota Khan (P.W.8) Exh.P.K. To prove this fact Ch. Mumtaz Ahmed, Additional District and Sessions Judge (P.W.23) was also produced before the Court. It will be appropriate to note here that Muhammad Asghar alias Baga (P.W.5) and Mst. Razia Bi (P.W.6) have been shown in the calendar of challan as eye‑witnesses of the occurrence and amongst them statement of Muhammad Asghar under section 164 of Cr.P.C. was also recorded but both of the prosecution witnesses did not support the prosecution story and were declared hostile. Mst. Razia Bibi (P.W.6) deposed before the Court that she does not know the deceased and she knows nothing about the murder of Reaz. She was cross‑examined but the prosecution failed to get any statement in support of its story. She admitted this fact, that she with her daughter Hamida Bi and son‑in -law Muhammad Asghar was arrested in this murder case, Muhammad Asghar (P.W.5) stated that neither he knows Reaz nor the respondents‑accused. He also does not know about the occurrence. He refuted this fact in the cross-examination that deceased. Reaz came to his house to participate a religious ceremony in the year 1987. He also admitted this fact that he, his wife and mother‑in‑law were arrested in this murder case. He further stated that they were severely beaten by police and were threatened to give evidence against the respondents but they refused to do so. It is pertinent to note here that in cross-examination the alleged statement under section 164 of Cr.P.C. was not put to the witness by the prosecution. The alleged statement of Ghulam Abbass Exh.P.J. and Mehndi Khan Exh.P.K. has also been placed on record but both the abovementioned witnesses have not been produced before the Court acid withheld by the prosecution. In these circumstances this link of prosecution evidence is also not reliable. The prosecution produced three witnesses Muhammad Aslam (P.W.1), Rehm Ali (P.W.2) and Muhammad Bashir (P.W.4) about recovery and identification of dead body. Muhammad Bashir (P.W.4) stated that at the time of the recovery of the dead body there was no clothing except an open Tehband which was lying upon the dead body but Muhammad Saddiqe son of Ahmed Khan (P.W.16) deposed that at the time of the recovery of the dead body, the deceased was wearing shirt, vest and Tehband and this clothing was confiscated in the hospital. He also deposed that he himself removed the clothing from the dead body. Ahmed Khan (P.W.14) stated that at the time of the recovery of the dead body identity card was recovered from the pocket of the dead body which was confiscated by the police but the said identity card was not placed on record Rehm Ali (P.W.2) also deposed about the recovery of identity card from the pocket of the dead body and Muhammad Bashir also deposed that penis of the deceased was also removed but this fact does not find any place in post‑mortem report. Rehm Ali deposed in his examination‑in‑chief that at the time of recovery of dead body an identity card was recovered and there was no clothing upon it. He also deposed that he did not see whether the penis of the deceased was removed or not. According to all three witnesses Muhammad Aslam (P.W.1) Rehm Ali (P.W.2) and Muhammad Bashir (P.W.4) at the time of recovery of the dead body was no clothing upon it and according to, Muhammad Bashir (P.W.4) there was only one Tehband which was recovered but the recovery witnesses of the clothing of the deceased, Ahmed Khan (P.W.14) deposed that the identity card of the deceased was recovered from his pocket and Muhammad Saddiqe son of Ahmed Khan (P.W.16) stated that he himself removed the vest, shirt and Tehband from the dead body and these were confiscated in the hospital. Muhammad Siddiqe (P.W.16) also stated that the penis of the dead body was removed. Ahmed Khan (P.W.14) is uncle of the deceased who has been shown to be the witness of recovery memo of sticks Exh.P.B., Exh.P.C., and recovery memo of Chhuri Exh.P.D. The other witnesses of these recovery memos is Razzaq Ahmed (P.W.15) who is real brother of the deceased. An other witness of the recovery memo Exh.P.H. is Muhammad Siddiqe son of Ahmed Khan, real cousin of the deceased who deposed that recovered shirt of deceased is not available amongst the clothing shown to him. There are lot of discrepancies and material contradictions in the evidence of prosecution witnesses who have been cited to prove the recovery of sticks, Chhuri and clothing of the deceased in spite of the fact that the witnesses of recovery memos. Exh.P.B., Exh.P.C. and Exh.P.H. are closely related with deceased but Muhammad Saddiq, A.S.‑I., police (P.W.20) who happens to be scribe of recovery memo Exh.P.H. appeared as prosecution witness but recovery of clothing of the deceased was not proved by him. The blood‑stained stick through recovery memo Exh.P.E. and white Parna through recovery memo Exh.P.F. and a blood‑stained Mat through recovery Exh.P.G. were also shown to be confiscated on 14‑7‑1987 three days after the recovery of dead body. In this respect no explanation was given by the prosecution as to why the abovementioned articles were not recovered on 11th of July, 1987, especially when the articles were recovered from a place which is very closely situated to the place of recovery of dead body. It is also to be noted drat recovery memo Exh.P.H. does not disclose that from where the clothing of the deceased was recovered and confiscated. It shows that a parcel was prepared at the place of occurrence on 12‑7‑1987 and this is also the version of Muhammad Saddiq son of Ahmed Khan (P.W.16) but the question arises if the dead body was recovered on 11‑7‑1987 how it was possible that the clothing of the deceased was recovered on 12‑7‑1987 through Exh.P.H. These articles were stated to be blood‑stained at the time of the recovery but the .report of the Chemical Examiner or Serologist were not exhibited even though these have been placed on record. Such type of evidence by itself is not sufficient to infer guilt of accused‑respondents. The recovery of dead body from the pond has also become doubtful and a mysterious story. The dead body was shown to be recovered on 11th of July, 1987, but post‑mortem was done on 13‑7‑1987 by Dr. Muhammad Yousuf (P.W.21) who categorically stated that he examined the dead body on 13th of July, 1987. He also deposed that the time lapsed between the death and the post‑mortem was 72 hours. According to the prosecution story, if the dead body was recovered on 11th of July, 1987 why post‑mortem was not done or 12th of July, 1987. According to F.I.R. the dead body was recovered by Muhammad Aslam (P.VJ.1) Rehm Ali (P.W.2) and Muhammad Bashir (P.W.4). Muhammad Aslam (P.W.1) lodged F.I.R. in police station and police took away the dead body to the hospital and both of the P. Ws. Muhammad Aslam and Muhammad Bashir accompanied the dead body but in post‑mortem report column "Body identified by" shows that the dead body was identified by the police at the time of post‑mortem and in this context the names of the prosecution witnesses do not occur. It means that the dead body was not identified by the prosecution witness on the day of its recovery. In the column of "Examination of body" date of examination of body has been forged and instead of 13th of July, 1987 the words 12th of July, 1987 has been inserted. It is important to note that in the column "Information furnished by police" the words "none" has been written which means that at the time of the recovery of the dead body and at the time of the post‑mortem on 13‑7‑1987 no F.I.R. was lodged and cause of death was not told to the doctor by the police. In case F.I.R. was lodged at that time these column would have certainly been completed. The column "Remarks by Medical Officer" has also been forged and the words "blunt weapon" were omitted and after that words "blunt and sharp weapons were used" were written. In the column of "clothing" while clothing were shown on the dead body. But the prosecution witness stated that there was not clothing at the time of the recovery of dead body. Dr. Muhammad Yousuf (P.W.21) did not mention whether the clothes were blood‑stained or not. The prosecution witnesses deposed that the penis of deceased was also removed but this fact does not find any place to post‑mortem report Exh.P.K. and Dr. Muhammad Yusuf (P.W.21) also stated nothing about it. According to the post- mortem report Exh.P.X. the cause of death was injury No.1 a large lacerated wound and if the deceased was killed by Chhuri then there should have been an incised wound instead of a lacerated wound. The change of words "blunt weapon" to the "sharp" and presence of lacerated wound makes the prosecution story suspicious, false and concocted. It also shows that F.I.R. was framed many days after the recovery of dead body and it was made pre‑dated. Site plan Exh. P. Y. was also shown to be prepared on 16‑7‑1987 by Muhammad Latif, Patwari (P.W.18), in which it has been mentioned that how the accused- respondents committed the murder of Muhammad Reaz. The witness deposed that he prepared the site plan on the pointing of police. It is very strange that according to the record the accused‑respondents were arrested on 20‑7‑1987 then how it was possible for prosecution witnesses and the police to place the responsibility of murder on the respondents and to prepare the site plan and mentioning their acts during commission of crime on 16‑9‑1987. It is also proved on the record that on 16‑7‑1987 Mst. Razia Bi, Ghulam Abbas, Muhammad Asghar and Mehndi Khan were arrested as accused of the murder, who were brought before the Magistrate for recording of their statements under section 164 of Cr.P.C. as accused. On 2‑9‑1987 the abovementioned persons were involved in this murder case as accused by the Investigating Agency. This fact also makes the prosecution case doubtful that if F.I.R. Exh.P.A. was lodged on 11‑7‑1987 and the accused‑respondents were nominated as accused therein as to why the investigation did not start from them instead of Muhammad Asghar and others and after nine days the respondents were arrested in the case. After the recovery of dead body, injury form and inquest report has shown to be prepared by Muhammad Saddiq, A.S.‑I. Police (P.W.20) who appeared as witness but these two very important documents were not tendered in his statement before the Court. According to the statement of Gulfraz Khan, Sub- Inspector Police (P.W.22), Inayat Khan was also involved in this case and later on whose name was deleted as accused section 169 of Cr.P.C. F.I.R. Exh.P.A. also shows that Mst. Baga Bi played a vital role in the murder but her name was also deleted as an accused but the prosecution did not proceed against her. This silence of, the prosecution negates the whole of its case. These facts and circumstances show that the respondents have been involved purely on ground of suspicion and in support of suspicion the prosecution has led a false and concocted evidence. First Information Report was framed after many days of the occurrence. Recovery of dead body from the pond is itself a mysterious story. The story of search of Muhammad Reaz is concocted and prosecution also failed to prove that the respondent followed the deceased on day of occurrence. Muhammad Asghar and others were arrested as accused in the case and later on released and were replaced by accused‑respondents. There is no remote linkage of the accused with the case and no cogent evidence was collected by Investigating Agency. None of the accused made any confession and Muhammad Asghar (P.W.5), refuted his statement recorded under section 164 of Cr.P.C. and was declared hostile. Ghulam Abbas (P.W.7) and Mehndi Khan (P.W.8) were also shown to depose under section 164 of Cr.P.C. but these were withheld by the prosecution and not produced before the Court. Motive alleged in the case is self‑contradictory which leads towards suspicion. It is to be noted that motive is always used for purposes of corroboration and it can never be used as ground for conviction. In this respect reference can be made to Mst. Hajul v. The State PLD 1962 Kar. page 532 wherein it was held that motive alone cannot be the basis for conviction. In case reported as Gulzar Masih v. The State 1980 SCMR

37. It was observed that mere motive was not sufficient for sustaining the conviction of the accused. In another case reported as Hakim Ali and another v. The State 1971 SCMR

432. It has been observed that the prosecution is not called upon to prove motive for murder in every case but where the motive has been set up by the prosecution, it must suffer the consequences in case of non- proving the same. In instant case motive was set up by the prosecution but was not proved. Muhammad Aslam P.W.1 admitted this fact in his statement that because of enmity and abduction case, he nominated the respondents as accused in F.I.R. Muhammad Razzaq (P.W.15) real brother of the deceased deposed before the Court that their was no enmity between Riaz and the respondents. In these circumstances the prosecution miserably failed to prove the motive set up by it. In the light of the facts and circumstances discussed above it is very clear that it is a case of circumstantial evidence and there is no iota of evidence which links the accused‑respondent directly or indirectly. It is a case of blind murder providing no clue or linkage to any culprit. In such type of cases the standard of evidence must be very strong. I very much agree with this contention of the learned counsel for the appellants that mere relationship of the prosecution witnesses is not itself sufficient to disbelieve the evidence and in this respect reference was made to Usman Khalid v. Muhammad Younus, Criminal Appeal No.41 of 1995 SC of Azad Jammu and Kashmir, dated 17‑7‑1996, but such type of evidence must be very clear, cogent without discrepancies and material contradictions and should be of an unimpeachable character. As abovementioned, the instant case is a case of circumstantial evidence and in such like cases the appreciation of evidence is always very difficult and delicate. The mere suspicion is not sufficient to justify conviction. The circumstances to be relied upon must be established beyond doubt. It has now become the undisputed principle of law that a conviction cannot be based upon the circumstantial evidence until the facts proved are incompatible with the innocence of an accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt because failure of one link destroys the whole chain. In this respect reference can be made to Dr. M. Abdul Sami v. The State PLD 1962 (W.P.) Lah. 271 where it has been held:‑‑ . "Proof‑‑‑suspicion does not take place of proof." The case reported Azim v. The State PLD 1965 SC 44, it was observed that high degree of care and caution must be exercised in accepting proof regarding any one of the minor facts adduced before and the facts from which inference adverse to accused are sought to be drawn must be well‑authenticated. In case title the State v. Mst. Falwat Jan and another SCR 1992 page 366, it has been observed as under:‑‑ "‑‑‑Circumstantial evidence‑‑‑Evidence should be of such a degree and character that it should exclude‑ the possibility of innocence of an accused." This view is also supported by the case resorted as Janait Ali Shah v. The State 1993 PCr.LJ page 1547. Ghulam Abuzar and another v. The State 1991 PCr.LJ 1697 and Muhammad Bashir v. The State PLD 1985 SC (AJ&K)

221. It has also been provided in Fiqa Books that the evidence should be of a unimpeachable character and free of all doubts. It has been observed as under:‑‑ It was also laid down by Fuqha that:‑‑ Furthermore it was observed as under:‑‑ The perusal of the abovementioned principles of Islamic Law of evidence make it also crystal clear that the circumstantial evidence, to prove the guilt of an accused should be of a conclusive and final in nature, beyond any doubt and without any contradiction. But the standard of evidence laid down by renowned Fuqha is not available in the instant case. We have already held that after examining the facts and circumstances of the case, injuries of the deceased, recovery of body, medical evidence, nature and condition of place where the incident took place, the articles found their and the motive for the crime, the conclusion arrived at, is that the evidence is not capable of leading to the only inference that the accused‑respondents have committed the murder of Muhammad Reaz (deceased): The circumstances are equally compatible with their innocence and on the basis of just suspicion the respondents cannot be convicted. In these circumstances I do not find any error in the impugned judgment which cannot be set aside. For the reasons listed above I see no force in this appeal which is hereby dismissed. N.H.Q./73/Sh.C.(AJ&K) Appeal dismissed.