2021 P Cr (PLP)

SADIQ MAHMUD KHURRAM, J.

Muhammad Firdous Raza son of Muhammad Maskeen (convict) was tried by the learned Additional Sessions Judge, Attock in case FIR No. 153 of 2017 dated 16.06.2017 registered at Police Station Hazro, District Attock in respect of offences under sections 302, 367-A and 377, P.P.C. for committing the Qatl-i-amd of Muhammad Hissan Ali son of Muhammad Tariq Pasha (deceased). The learned trial court vide judgment dated 30.11.2018 convicted Muhammad Firdous Raza son of Muhammad Maskeen (convict) and sentenced him as infra: Muhammad Firdous Raza son of Muhammad Maskeen: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-amd of Muhammad Hissan Ali son of Muhammad Tariq Pasha (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo simple imprisonment for six months. The convict was ordered to be hanged by its neck till dead.

2. Feeling aggrieved, Muhammad Firdous Raza son of Muhammad Maskeen (convict) lodged Criminal Appeal No. 997 of 2018 against his conviction and sentence. The learned trial court submitted Murder Reference No. 07 of 2019 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Muhammad Firdous Raza son of Muhammad Maskeen. We intend to dispose of the Criminal Appeal No. 997 of 2018 and Murder Reference No.07 of 2019 through this single judgment.

3. Precisely, the facts of the prosecution case as bought on record through the statement of Muhammad Tariq Pasha (PW-13) the complainant of the case, are as under:- "Hissan Ali deceased was my son who was studying in 10th class. Two/three months prior to 03.06.2017, Firdous Raza accused had developed relationship with him through face book and mobile phone. Since he had talked indecent way, therefore, I had stopped him from visiting my son Muhammad Hisan Ali. However, he told me that Hisan Ali is like his brothers and he kept seeing him despite my restriction. On 3.6.2017 he contacted Muhammad Hisan Ali through his sources and got him seated on motorcycle and took him on the motorcycle and on way he was seen by Muhammad Yousuf Pasha and Asif Meer PW. Thereafter at 6/6.15 p.m. Muhammad Bilal Pasha told me that he had received a call from Waseem PW who told him that Firdous Raza accused made a call to him by telling Muhammad Hisan Ali had drowned in the canal by slipping his foot. Thereafter, I confirmed this news from Firdous Raza accused. Upon confirming it I along with Muhammad Bilal Pasha Muhammad Waseem PWs and Sohail Ahmad went at Ghazi Brotha Canal at Barazai bridge. Firdous Raza accused was present there and I again confirmed the news from him. Muhammad Firdous Raza had lured my son to Ghazi Brotha Canal and after committing sodomy, he murdered him and thrown his body in the canal. Firdous Raza was confused and frightened and was not answering any of my queries properly. On 15.6.2017, I received telephone call of employees of Ghazi Brotha Canal who told me that they had found a dead body. Thereafter I along with Yousuf Pasha, Bilal Pasha and Muhammad Din to intake area of Ghazi Brotha Canal and found the dead body of my son lying there. The dead body was tied with a rope and there was a sack with iron rod fasten upon its back. The accused Firdous Raza, despite my restraining him had taken Muhammad Hisan Ali to the Ghazi Brotha Canal committed sodomy and then with the help of some unknown persons committed his murder and then thrown the body in the canal. The police came to the spot from where the dead body was found and I got recorded my oral statement Exh.PD which bears my signatures Exh.PD/1. Upon personal search of the dead body of the deceased the I.O. had recovered his black sun-glasses, electronic cigarette, cash of Rs.4500/- which the I.O. took into possession vide memo Exh.PM On 17.6.2017, I told the I.O. that Firdous Raza runs a mobile shop at Ghaurghushti and I suspected that he might have some photographs of my son, therefore, the same be recovered. I also handed over a picture of my son Exh.P17 to the I.O. which he took into possession vide memo Exh.PN, attested by me. On 26.6.2017, Dildar Husain PW came to me and told that Firdous Raza accused had come to him and made a confession. I produced Dildiar. Hussain before the I.O. at 5.30 p.m. who recorded his statement. On 8.8.2017, I joined the investigation of this case again and the accused while in police custody offered and led to the recovery of the scarf (Parna) Exh.P18 along with pair of Chappal (Hawai) Exh.P19 from the reeds near the Barazai bridge Ghazi Brotha Canal. The police secured the same vide memo Exh.PO, attested by me and Shafqat Irfan PW. I had identified the Parana and pair of Chappal as the belongings of the deceased and the police also prepared the memo of identification of these articles Exh.PP attested by me."

4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Muhammad Firdous Raza son of Muhammad Maskeen was sent to face trial. The learned trial court framed the charge against the accused on 01.11.2017, to which the appellant pleaded not guilty and claimed trial.

5. The prosecution in order to prove its case got recorded statements of as many as sixteen witnesses. Dildar Hussain (PW-9) stated that on 26.06.2017 the appellant made a confession of his guilt before him. Muhammad Waseem (PW-10) stated that on 03.06.2017 he received a call of the appellant who told him that the deceased had fallen in the Ghazi Brotha Canal and had drowned. Muhammad Bilal (PW-12) stated that he received a call from Muhammad Waseem (PW-10) who told him about the call of the appellant that the deceased had fallen and drowned in the Ghazi Brotha Canal. Muhammad Yousaf Pasha (PW-11) stated that on 03.06.2017 at about 5.00 p.m. he saw the appellant and the deceased riding a motorcycle and thereafter he received the news that the deceased had died. Muhammad Tariq Pasha (PW-13), the complainant of the case stated that he got recorded the oral statement (Exh. PD) on 16.06.2017, identified the dead body of the deceased, handed over the photograph of his deceased son (P-17) to the Investigating Officer and witnessed the recovery of scarf (P-18) and Chappal (P-19) from Barazai bridge over Ghazi Brotha Canal and identified him as being, of his son and made his detailed statement as reproduces in thee Paragraph 3 of this judgment. Bashir Ahmad Awan draftsman (PW-1) prepared the scaled site plan of the Place of occurrence (Exh. PA). Nauman Ali 1485/C (PW-2) got conducted the post mortem examination of the deceased and received the last worn clothes of the deceased from the Medical Officer. Muhammad Qasim 691/HC (PW-3) stated that on 16.06.2017 Sikandar Hayat S.I. (PW-16) handed over to him viscera of the deceased as well as the last worn clothes which on 22.06.2017 he handed over to Sikandar Hayat S.I. (PW-16) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Qasim 691/HC (PW-3) further stated that the on 17.06.2017 Sikandar Hayat, S.I. (PW-16) handed over to him one sealed parcel and on 01.08.2017 the Investigating Officer handed over to him two mobile phones and on 05.08.2017 the Investigating Officer handed over to him a CPU which on 22.08.2017 he handed over all the said articles to Sikandar Hayat S.I. (PW-16) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Yasir Khan constable (PW-4) stated that he retrieved the Call Data Record of the mobile number under the use of the deceased and the two mobile numbers under the use of the appellant (Exh.P5/1-5, Exh.P6/1-6 and Exh. P7/1-18) and handed over the same to the Investigating Officer. Abdul Khaliq Kiyani A.S.I. (PW-5) recorded the formal FIR (Exh. PD/1). Ali Imran, A.S.I. (PW-6) stated that the Investigating Officer arrested the accused on 01.08.2017, recovered articles from his personal search and on 05.08.2017 the accused led to the recovery of motorcycle (P-12) and on 09.08.2017 the appellant led to the recovery of Chadar (P-16). Javed Iqbal S.I. (PW-7) stated that on 04.06.2017 he received the application of Muhammad Bilal Pasha (PW-12) regarding the drowning of the deceased and on 07.06.2017 he recorded the statements of Muhammad Bilal Pasha (PW-12) , Muhammad Tariq Pasha (PW-13) , Muhammad Waseem (PW-10) and Sohail. Muhammad Din (PW-14) stated that he took the photographs of the dead body of the deceased (Exh.P-20/1-11) at the time of its recovery. Saqib Abbasi S.I. (PW-15) stated that on 04.06.2017 he received the application (Exh. PL). Sikandar Hayat S.I. (PW -16) investigated the case from 15.06.2017 till 24.08.2017, arrested the accused on 01.08.2017 and detailed the facts of his investigation in his statement before the learned trial court.

6. The prosecution also got Dr. Zakir Hussain Faroqi (PW-8) examined, who on 16.06.2017 was posted as Medical Officer at THQ, Hospital Hazro and on the same day conducted the postmortem examination of the dead body of Muhammad Hissan Ali son of Muhammad Tariq Pasha (PW-13) (deceased). Dr. Zakir Hussain Faroqi (PW-8) observed as under:- "On external examination I found that it was dead body of a teenager male, mouth open due to the loss of the left upper lip, wearing dark green colour shalwar qamiz with no rigor mortis, white vest and underwear the shalwar was torn. The body was fowl smelling, putrefied skin was pealed off from the body except perineum, head, eye-brows and eye lashes lost. Eye lids were putrefied and lost. Right front of the upper chest and area of 10 x 6 cm below the right clavicle was pink bruised. The body was tied both fore-arms and the lower legs with nylon rope and also fasten from front of the abdomen to back attached with iron hooks and animal bone and the nylon made bag. Anal swabs were blood stained. Scalp, skull, and vertebra were healthy whereas membranes of brain, spinal card were healthy and the brain was putrefied. In thoraxes cavity, walls were putrefied whereas ribs and cartilages were found healthy. Pleura, larynx, trachea were healthy and no froth was seen, right and left lung were putrefied partially. Pericardium and heart were partially putrefied whereas blood vessels were healthy. In abdominal cavity walls and peritoneum were partially putrefied. There was froth in the mouth and pharynx and were partially putrefied. Diaphragms were healthy. Stomach was swollen and contained food particles. Pancreas was putrefied partially, small and large intestines were swollen: liver, spleen and kidneys were partially putrefied. Bladder was empty. The organs of generation were swollen and retracted. In my opinion, the cause of death was asphyxia due to the laryngeal spasm caused by drowning. I deferred my final opinion about the act of sodomy after the report of the Punjab Forensic Science Agency, Lahore. Now I have seen the repot of Punjab Forensic Science Agency, Lahore dated 10.07.2017 Exh.PK and according to this report no seminal material was detected in the anal internal and external swabs, shalwar, underwear, buniyan and qamiz of the deceased, hence I am of the opinion that no sodomy was committed with the deceased.".

7. On 29.11.2018 the learned DDPP gave up prosecution witnesses namely Asif Mehmood, Aman Ullah and Shafqat Irfan, constable as being unnecessary and closed the prosecution evidence after tendering the report of the Punjab Forensic Science Agency, Lahore (Exh.PAA and Exh.PAA/1) regarding the analysis of the audio and video files, the report of Punjab Forensic Science Agency, Lahore (Exh.PBB/1-12) regarding the analysis of the computer, mobile phones, SIM card, memory card and three DVD's ( Exh.P-24, Exh.P-25 and Exh.P-26).

8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Firdous Raza son of Muhammad Maskeen under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, the appellant replied that he was innocent and had been falsely involved in the case due to suspicion. The appellant namely Muhammad Firdous Raza son of Muhammad Maskeen opted not to get himself examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence.

9. On the conclusion of the trial, the learned trial court convicted and sentenced the appellant as referred to above.

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

11. On the other hand, learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased was murdered by the appellant who had confessed to the said crime before the witnesses. The learned Deputy Prosecutor General further argued that the recoveries from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General 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. Lastly, the learned Deputy Prosecutor General prayed for the rejection of appeal.

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

13. After consideration of contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent to mention here that in the instant matter ocular evidence is not available. There can be no dispute regarding the fact that the case is built on circumstantial evidence. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge, (1938) 2 Lewin 227) where he said: "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself to supply some little link that is wanting , to take for granted some fact consistent with its previous theories and necessary to render them complete." 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. 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.

14. From the evidence of the prosecution available on record it is clear that the case of the prosecution hinges upon the extra-judicial confession, the evidence of the deceased being last seen in the company of the appellant recovery of incriminating material i.e. the recovery of the motorcycle (P-12) and the Chaddar (P-16) and photographs of the deceased with the appellant and the Call Data Record. Firstly, we shall deliberate upon the evidence of extra-judicial confession. The prosecution got Dildar Hussain (PW-9) examined to prove the extra-judicial confession allegedly made by the appellant in this case. Dildar Hussain (PW-9) stated that on 26.06.2017 at about 5.00 a.m. Muhammad Firdous Raza son of Muhammad Maskeen, the appellant, came to his house and confessed to have murdered the deceased. Muhammad Tariq Pasha (PW-13) stated that Dildar Hussain (PW-9) told of the said extra-judicial confession by the appellant to him on 26.06.2017 at 5.30 p.m. One finds it hard to understand as to why the appellant would make his breast clean when apparently he was under no compulsion to oblige the prosecution which was clueless about the circumstances leading to the death of the deceased. The alleged extra-judicial confession 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 that too on the assurance of help. Moreover, according to the witness namely Dildar Hussain (PW-9), Muhammad Firdous Raza son of Muhammad Maskeen, the appellant, requested him to arrange pardon for him from the legal heirs of the deceased. Admittedly, Dildar Hussain (PW- 9) did not possess any influential portfolio at that time to have any influence to beg pardon for the appellant from the complainant. Moreover, Dildar Hussain (PW-9) admittedly did not try to apprehend the appellant at the time of making or even after the said extra-judicial confession in spite of the fact that he was allegedly present in his company, of his own volition, in his house. Dildar Hussain (PW-9) was so na ve that he let the appellant leave his house without making any effort to apprehend him. Dildar Hussain (PW-9) claimed to be a close relative of Muhammad Tariq, Pasha (PW-13), the father of the deceased, however despite the said claimed close relationship, Dildar Hussain (PW-9) did not react at all to the confessional statement of the appellant and calmly saw him leaving his house, without even moving an inch. Dildar Hussain (PW-9) has not mentioned in his statement that the accused had some weapon when he visited him at his house to confess his guilt about the murder of Muhammad Hissan Ali (deceased) which could have precluded the said witness from apprehending the appellant. Dildar Hussain (PW-9) stated during cross-examination that he had three other brothers present inside the house at the time when the appellant was confessing to have murdered the deceased, however he did not call any one of his brother at that time nor his brothers came out of their house during the said conversation between the appellant and Dildar Hussain (PW-9). Dildar Hussain (PW-9) further claimed that on the day when the appellant confessed to his guilt at 5.00 a.m, he had offered the morning prayers at the mosque which was at a distance of only 200 feet from his house and about sixty/ seventy other people had also offered the said prayers. Dildar Hussain (PW-9) also stated that on 26.06.2017 Eid ul Fittr was being celebrated. Dildar Hussain (PW-9) also admitted that his house was surrounded by other houses. Dildar Hussain (PW-9) stated during cross-examination as under:- "The entire conversation between myself and the accused took place in any adjacent plot of my house which is towards west of my house." But despite all these facts none of the persons appeared before the learned trial court to state that they had seen the appellant in conversation with Dildar Hussain (PW-9). Furthermore, neither Dildar Hussain (PW-9) nor his brothers, nor any person who had offered the morning prayers made any effort to apprehend the appellant after he had allegedly made confession of his guilt. This conduct of Dildar Hussain (PW-9) was not natural in the circumstances. These peculiar facts speak volumes regarding the lack of veracity in the statement adduced by Dildar Hussain (PW-9) and also shows his unusual behavior and the same was even otherwise contrary to the normal human behaviour. To make confession in order to give 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 witness Dildar Hussain (PW-9), before whom the alleged extra-judicial confession was made, was such that he barely knew the accused before the alleged confession and Dildar Hussain (PW-9) was neither a close confidant of the accused in any manner or said to be sharing any habit or association with the accused. Furthermore, Dildar Hussain (PW-9) admitted in his cross-examination that he had not got recorded in his statement before the police that he had developed a relationship with the appellant about 4-5 months prior to the occurrence. Dildar Hussain (PW-9),during cross-examination stated as under:- "I had not recorded before the police that I had developed relationship with the accused 4/5 months prior to the occurrence." In this manner Dildar Hussain (PW-9) admitted to have made a dishonest improvement in his previous statement only to dishonestly claim that he was known to the appellant and for that reason the appellant had decided to confess before him. Furthermore, Dildar Hussain (PW-9) also admitted during cross-examination that the appellant was not even the resident of the same area as that of Dildar Hussain (PW-9). Dildar Hussain (PW-9) further acknowledged during cross-examination that he was neither a councilor nor a chairman of Hazro committee nor holding any position of importance which could have entailed in him the capacity to procure a compromise for the appellant and any such status, which in turn could have struck the appellant as being such that Dildar Hussain (PW-9) could procure a compromise for him. Both the possibilities of confessing the crime, for the purpose of boasting and ventilating, in the circumstances are excluded from consideration. Another reason to reject the statement of Dildar Hussain (PW-9) is that according to Dildar Hussain (PW-9) on 26.06.2017 at about 5.00 a.m. Muhammad Firdous Raza son of Muhammad Maskeen, the appellant came to his house and confessed to have murdered the deceased. Muhammad Tariq Pasha (PW-13) stated that Dildar Hussain (PW-9) told of the said extrajudicial confession by the appellant to him on 26.06.2017 at 5.30 p.m. Dildar Hussain (PW-9) in his statement before the learned trial court did not state that he had told the fact of extra-judicial confession of the appellant to Muhammad Tariq Pasha (PW-13) as was being claimed by him. Furthermore, the Investigating Officer of the case during the investigation did not visit the place where the appellant had allegedly confessed his guilt to Dildar Hussain (PW-9). After an overwhelming 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 Dildar Hussain (PW-9) 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 and 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. 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 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" (PLD 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 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.

15. The prosecution also led evidence to prove that the deceased was last seen in the company of the appellant. In order to prove the said fact the prosecution examined Muhammad Yousaf Pasha (PW-11) who stated that on 03.06.2017 at about 5.00 p.m. when he was present in his clinic, along with Asif Mehmood (not produced), he had seen the deceased in the company of the appellant while riding a motorcycle. This witness, despite the fact of having seen deceased in the company of the appellant on 03.06.2017, however, did not report the said matter either to the father of the deceased namely Muhammad Tariq Pasha (PW-13) or to the police and stated that due to his engagements and busy schedule, he could not tell the said fact to his brother. It was only on 16.06.2017 that he appeared before the Investigating Officer and got recorded his statement that he had seen the deceased with the appellant. No reasonable explanation was offered by this witness for not reporting the matter to the police for as many as thirteen days despite the fact that a written application (Exh. PL) regarding the drowning of the deceased had been submitted by Muhammad Bilal Pasha (PW-12) on 04.06.2017 to Saqib Abbasi S.I. (PW-15). It is settled that delay in making a statement under section 161, Cr.P.C, if not reasonably explained, dilutes its evidentiary value. Furthermore, Muhammad Yousaf Pasha (PW.11) stated that he had no conversation with the deceased when saw him in the company of the appellant. We have also noted with grave concern that Muhammad Yousaf Pasha (PW-11) made dishonest and blatant improvements in his previous statement. The said improvements made by Muhammad Yousaf Pasha (PW-11) were substantial and were made with regard to crucial aspects of the prosecution evidence. Article 151 of the Qanun-e-Shahadat Order 1984 provides as under:- "

151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him: (1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un-worthy of credit; (2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence ; (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;" By improving his previous statement, Muhammad Yousaf Pasha (PW-11) impeached his own credit. During cross-examination Muhammad Yousaf Pasha (PW-11) was confronted with his previous statement and the learned trial court observed as under:- " I had got recorded in said statement that on 3.6.2017 at 5.00 p.m., I was present in my clinic. (Confronted with Exh.DC where it is not so recorded). I had also got recorded in said statement that Asif Mahmood PW talked with me where they were going as it was not the appropriate time. (Confronted with Exh.DC where it is not recorded). I had also got recorded that thereafter I went back to my home where people started coming. (Confronted with Exh. DC where it is not recorded). I had also got recorded that next day Muhammad Tariq Pasha had told me that Firdous Raza accused had developed some secret relationship with the deceased through face book and mobile phone. (Confronted with Exh.DC where it is not so recorded). I had also got recorded about thinking of asking my brother Muhammad Tariq Pasha that why Muhammad Hisan Ali deceased was accompanying Muhammad Firdous accused but I could not do so due to my engagement. (Confronted with Exh.DC where it is not so recorded). I had not recorded in my statement under section 161 that the occurrence had taken place on 3.7.2017." The august Supreme Court of Pakistan in the cases of "Muhammad Ashraf v. State" (2012 SCMR 419), "Muhammad Mansha v. The State" (2018 SCMR 772) and Muhammad Arif v. The State (2019 SCMR 631) took a serious notice of the improvements introduced by witnesses and rejected their evidence. Furthermore, according to his own stance, Muhammad Yousaf Pasha (PW-11) had not shown any suspicion upon the appellant when he had allegedly seen him with the deceased. As mentioned above, when the written application (Exh. PL) was submitted by Muhammad Bilal Pasha (PW-12), the brother of Muhammad Yousaf Pasha (PW-11), on 04.06.2017, it was recorded in the written application (Exh.PL) that they had no suspicion against anyone. We have also noted that Muhammad Yousaf Pasha (PW-11) claimed that had allegedly seen the deceased in the company of the appellant at Meena Bazar, Hazro while sitting at his clinic at about 5.00 p.m whereas Muhammad Waseem (PW-10) stated that the shops in the Meena Bazar, due to Ramzan, closed around 2.30/3.00 p.m, hence there was no possibility that Muhammad Yousaf Pasha (PW-11) could have seen the deceased in the company of the appellant while sitting at his clinic as the same was supposed to be closed by then. Another aspect of the case is that Muhammad Yousaf Pasha (PW-11) had allegedly seen the deceased in the company of the appellant at Meena Bazar, Hazro whereas the dead body of the deceased was recovered from the intake area of Ghazi Brotha Canal. The place from where the dead body of the deceased was recovered and where the witness had allegedly last seen the appellant in the company of the deceased, according to the prosecution evidence, bring evidence of last seen short of proximity in terms of the time and the space which is a sine qua non for acceptance of the last seen evidence. Last seen together is a weak type of circumstantial evidence, which cannot be readily believed unless it was corroborated through unimpeachable source, and it should be close to the time and place of murder to exclude possibility of innocence. Pre-requisites for believing last seen evidence are that proximity of time and nearness of the place of occurrence. Interpreting these two principles, it is required that deceased shall be seen in the company of the accused by the witnesses some short time before happening of the incident and the place of murder may not be far away from the place of lastly seeing the deceased in the company of the accused by the prosecution witnesses. In this case these two elements are 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. Reliance is placed on the case of Sadi Ahmad and another v. 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 v. The State and another (PLD 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 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 Muhammad Yousaf Pasha (PW-11) is not confidence inspiring, therefore, the same cannot be relied upon. The last-seen evidence furnished by Muhammad Yousaf Pasha (PW-11) is not sufficient to be believed to record conviction of the appellant.

16. The prosecution witnesses in their statements before the learned trial court stated that it was the appellant who reported the matter of drowning of the deceased in the Ghazi Brotha Canal to them. Muhammad Waseem (PW- 10) stated that on 03.06.2017 he received a call of the appellant who told him that the deceased had fallen in the Ghazi Brotha Canal and had drowned. Muhammad Bilal (PW-12) stated that he received a call from Muhammad Waseem (PW-10) who told him about the call of the appellant that the deceased had fallen and drowned in the Ghazi Brotha Canal. Despite having this knowledge that the matter of drowning of the deceased was reported to them by the appellant, when the written application (Exh. PL) was submitted by Muhammad Bilal Pasha (PW-12), the brother of Muhammad Yousaf Pasha (PW-11), on 04.06.2017, it was recorded in the written application (Exh. PL) that they had no suspicion against anyone. This sole fact is sufficient to reject the statements of the witnesses in this regard. Furthermore, Muhammad Waseem (PW-10) stated that though he had received the call of the appellant on 03.06.2017, however he did not report the same to the police till 07.06.2017. Furthermore, the claim of Muhammad Waseem (PW-10) that he had got recorded his statement to Javed Iqbal S.I. (PW-7) on 07.06.2017 is also not proved as Javed Iqbal S.I. (PW-7) admitted during cross-examination that the entry of the said witness was not recorded in the Roznamcha maintained at the police post dated 07.06.2017. Javed Iqbal S.I. (PW-7) also admitted that he only had a telephonic conversation with the witnesses and did not record their statements. We have also noted with grave concern that the other witness namely Muhammad Bilal Pasha (PW-12), who was called by Muhammad Waseem (PW-10) to report the call of the appellant, made dishonest and blatant improvements to his previous statement. This witness namely Muhammad Bilal Pasha (PW-12) claimed in his statement before the learned trial court that he himself had also called the appellant so as to confirm the factum of drowning of the deceased. The said witness Muhammad Bilal Pasha (PW-12) was confronted with his statement during cross-examination and the learned trial court observed as under:- "I had got recorded in Exh.PL that on 3.6.2017 when I received call from Waseem PW that he had received a call from Firdous Raza accused that my real nephew Hisan Ali had fallen in the Ghazi Brotha Canal while slipping the foot. (Confronted with Exh.PL, where it is not recorded). I had got recorded that thereafter I call Firdous Raza accused on telephone who also confirmed the fact that Muhammad Hissan Ali deceased had gone with him to GBHP canal for recreation and due to slip of foot he fell in the canal and drowned. (Confronted with Exh.PL, where it is not recorded). I had not got recorded before the police that I became perplexed and called Muhammad Tariq Pasha, father of the deceased and other relatives. I had not recorded in said statement that thereafter I along with Muhammad Tariq Pasha. Muhammad Waseem and Sohail Ahmad went to GBHP canal where Muhammad Firdous accused was present. I had got recorded that there Muhammad Firdous Raza accused again told us that Muhammad Hisan Ali had fallen into the canal by the slip of his foot. I had also not recorded that I had noticed Firdous Raza accused as confused and frightened." By improving his previous statement, Muhammad Bilal Pasha (PW-12) impeached his own credit and hence no reliance can be placed on his statement.

17. We have also noted that Muhammad Tariq Pasha (PW-13), the father of the deceased, despite the knowledge of the drowning of the deceased on 03.06.2017, did not report the incident to the police till 16.06.2017. There is no explanation for the said delay in reporting the matter to the police. The delay is conspicuous by its magnitude. According to Muhammad Bilal Pasha (PW-12) he had reported the matter of drowning of deceased on 04.06.2017 still Muhammad Tariq Pasha (PW-13), the complainant of the FIR, did not make any statement to the police on 04.06.2017. It was only when the dead body of the deceased was recovered that Muhammad Tariq Pasha (PW-13) got recorded his oral statement (Exh. PD). Furthermore, this witness also made dishonest and blatant improvements in his previous statement and was duly confronted with the same. During the cross-examination of Muhammad Tariq Pasha (PW-13) the learned trial court observed as under:- "I had got recorded in complaint Exh.PD that thereafter at 6/6.15 PM Muhammad Bilal Pasha told me that he had received a call from Waseem PW who told him that Firdous Raza accused made a call to him by telling Muhammad Hisan Ali had drowned in the canal by slipping his foot. (Confronted with Exh.PD, where it is not recorded). I had got recorded before the police that thereafter I confirmed this news from Firdous Raza accused . (confronted with Exh.PD, where it is not recorded). I had got recorded in complaint Exh.PD that upon confirming it I along with Muhammad Bilal Pasha, Muhammad Waseem PWs and Sohail Ahmad went at Ghazi Brotha Canal at Baraza bridge. (Confronted, not recorded). I had got recorded that Firdous Raza accused was present there and I again confirmed the news from him. (Confronted, not recorded). I had got recorded in Exh. PD that Firdous Raza was confused and frightened and was not answering any of my queries properly. (Confronted, not recorded)." Moreover, if Muhammad Tariq Pasha (PW-13) had observed the suspicious conduct of the appellant on 03.06.2017 then why he did not report the same when his brother namely Muhammad Bilal Pasha (PW-12) had submitted the written application (Exh. PL) on 04.06.2017. It is also obvious from the perusal of the statement of Muhammad Tariq Pasha (PW-13) that he only expressed suspicion and it is trite that suspicion, however strong, can never be considered proof of any fact. In this manner the evidence of Muhammad Tariq Pasha (PW-13) is of no relevance to prove the facts.

18. The prosecution has also relied upon the Call Data Record collected during the investigation of the case so as to prove the guilt of the appellant. Yasir Khan constable (PW-4) stated that he retrieved the Call Data Record of mobile numbers under the use of the deceased as well as the appellant. According to Yasir Khan constable (PW-4) he retrieved the Call Data Record of mobile number 03105150003 under the use of the deceased (Exh.P5/1-5) and also retrieved the Call Data Record of mobile numbers 03122276688 and 03000518422 under the use of the appellant (Exh.P6/1-6 and Exh. P7/1-18) and handed over the same to the Investigating Officer. No voice record or its transcript has been brought on record. It is also stressed again that in absence of any voice call data or record, simply the production of the Call Data Record without the disclosure of the details of the conversations is not relevant to prove any fact supporting the prosecution case against the appellant. Considering the above mentioned facts in the given circumstances discussed above, doubt is created in the prosecution case, the benefit of which cannot be denied to the appellant. Reliance is placed on the case of "Azeem Khan and another v. Mujahid Khan and others" (2016 SCMR 274), wherein, it has been held as under:- "The cell phone call data collected is of no help to the prosecution for the reasons that numerous calls have been made indicating continuous interaction between the two cell phones, contrary to the evidence given by Muhammad Wali (PW-3), who has stated at the trial that the unknown caller made calls on his cell phone four times. No competent witness was produced at the trial, who provided the call data, Ex.P-I to Ex.P-5. No voice record transcript has been brought on record. Similarly from which area the caller made the calls, is also not shown in it. Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In this view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner."

19. The prosecution has also relied upon the reports of Punjab Forensic Science Agency, Lahore (Exh.PAA and Exh.PAA/1) regarding the analysis of the audio and video files, the report of Punjab Forensic Science Agency, Lahore (Exh.PBB/1-12) regarding the analysis of the computer, mobile phones, SIM cards, memory cards and the three DVD's (Exh.P-24, Exh.P -25 and Exh.P-26). A perusal of the said reports and DVD's reveals that according to the report of Punjab Forensic Science Agency, Lahore (Exh.PAA) no nude pictures or videos of the deceased namely Muhammad Hissan Ali were recovered from the hard disc drive taken into possession by the Investigating Officer and sent to the Punjab Forensic Science Agency, Lahore for analysis. The said hard disc was retrieved from the CPU (Exh.P 14) recovered from the possession of the appellant. Furthermore, according to the report of Punjab Forensic Science Agency, Lahore (Exh.PBB/1-12) after the analysis of the mobile phones, SIM cards, memory cards and the desktop computer sent for analysis, though numerous audio and video files were retrieved, containing objectionable, nude, sexually explicit and graphic material, however none of the said retrieved files contained any nude, sexually explicit or graphic material figuring the deceased Muhammad Hisan Ali. It is correct that screenshots of the conversation between the deceased and the appellant were recovered and the pictures of the deceased as well as the appellant were also retrieved from the mobile phone sent for analysis, however none contained any material which could prove that the appellant had murdered the deceased or that the appellant had any motive to murder the deceased or that the appellant had engaged in any sexual activity with the deceased . The conversation between the deceased and the appellant retrieved from the Whatsapp application only depicts that both were planning a leisure trip together and nothing more. Being in possession of pornographic material may entail liability under the Prevention of Electronic Crimes Act, 2016, however it does not prove in any manner that the appellant had murdered the deceased.

20. The learned Deputy Prosecutor General has vehemently argued that the statements of the accused, in police custody, made at the time of the recovery of the scarf (P-18) and Chappal (P-19). of the deceased and at the time of the recovery of the motorcycle (P-12) and at the time of the recovery of the Chaddar (P-16) were admissible and relevant and amounted to confessions of guilt under the provisions of Article 40 of the Qanun-e- Shahadat Order, 1984. The discovery of any fact on the information of the accused in custody of Police is admissible under Article 40 of the Qanun-e- Shahadat Order, 1984 (hereinafter referred to as 'the Order'), which reads as under:- "

40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." A perusal of above Article 40 of the Qanun-e-Shahadat Order, 1984 reveals firstly that it serves as a proviso to Articles 38 and 39 of the Order. It comes into operation only if and when certain facts are deposed to as discovered in consequences of information received from an accused person in police custody. Thus, in order to apply Article 40 of the Order, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source. According to the prosecution case itself the appellant had already made a confession of his guilt before the witnesses on 26.06.2017, the dead body had already been recovered on 15.06.2017, whereas the said recovery of scarf (P-18) and the Chappal (P-19) was effected on 08.08.2017. No new information was made available to the prosecution on 08.08.2017 as a consequence of the proceedings conducted on the said date as all the details of the occurrence were already in knowledge of the prosecution by virtue of the alleged extra- judicial confession of the appellant. Similarly, the recovery of motorcycle (Exh.P-12) was made on 05.08.2017 and the recovery of the Chaddar (Exh.P-16) was made on 09.08.2017. As mentioned above, no new information was made available to the prosecution on 05.08.2017 or 09.08.2017 as a consequence of the proceedings conducted on the said dates as all the details of the occurrence were already in knowledge of the prosecution by virtue of the alleged extra-judicial confession of the appellant. Hence, the alleged statements of the appellant made in police custody at the time of recovery of scarf (P-18) and the Chappal (P-19) and at the time of the recovery of the motorcycle (P-12) and at the time of the recovery of the Chaddar (P-16) cannot be read in evidence and would remain inadmissible.

21. The learned Deputy Prosecutor General has also relied upon the recoveries of the scarf (P-18), the Chappal (P-19), the Chadar (P-16) and motorcycle (P-12) made from the appellant. Regarding the recoveries of the scarf (P-18), the Chappal (P-19), the Chadar (P-16) and the motorcycle (P- 12) from the appellant namely Muhammad Firdous Raza, the same cannot be relied upon as the fact remains that Investigating Officer of the case did not join any witness of the locality during the recoveries of the scarf (P-18), the Chappal (P-19), the Chadar (P-16) and the motorcycle (P-12) from the appellant which was in clear violation of section 103 of the Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. The Investigating Officer did not ask any person resident of the area surrounding the places of recoveries of the scarf (P-18), the Chappal (P-19), the Chadar (P-16) and the motorcycle (P-12) to witness the same. The august Supreme Court of Pakistan in the case of "Muhammad Ismail and others v. 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."

22. We have also noted that the medical evidence produced by the prosecution also was contrary to the statements of the witnesses . According to Dildar Hussain (PW-9), the appellant had confessed that he had murdered the deceased with the use of a Chadar and then thrown him in Ghazi Brotha Canal after tying his body with a rope. However Dr. Zakir Hussain Farooqi (PW-8) opined that the death of the deceased was a result of drowning and did not opine that the deceased had been killed prior to being thrown in the water. Furthermore, Muhammad Tariq Pasha (PW-13) had alleged in his oral statement (Exh. PD) and in his statement before the learned trial court that the appellant had murdered his son after having carnal intercourse against the order of nature with him. This allegation was also proved wrong and Dr. Zakir Hussain Farooqi (PW-8) opined that in his opinion no such act had been committed. Dr. Zakir Hussain Farooqi (PW-8), in his statement before the learned trial court stated as under:- "Now 1 have seen the repot of Punjab Forensic Science Agency, Lahore dated 10.07.2017 Exh.PK and according to this report no seminal material was detected in the anal internal and external swabs, shalwar, underwear, buniyan and qamiz of the deceased, hence I am of the opinion that no sodomy was committed with the deceased."

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 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 the evidence of uninterested witness, not inimical to the accused, may be corrupted deliberately while evidence of 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 v. The State (PLD 1991 SC 447). It is also a well embedded principle of law and justice that no one should be construed into a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible one. Similarly, mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a patently wrong conclusion. In that event the justice would be casualty.

24. In view of the above we are of the considered opinion that had the 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 unwitnessed occurrence against the appellant. The august Supreme Court of Pakistan in the case of Imran alias Dully and another v. 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 v. 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."

25. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Firdous Raza son of Muhammad Maskeen (appellant), in the present case. It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha v. 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 Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)." Reliance is also placed on the judgment of the august Supreme Court of Pakistan "Muhammad Akram v. The State" (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

26. For what has been discussed above, Criminal Appeal No.997 of 2018 lodged by Muhammad Firdous Raza son of Muhammad Maskeen (appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 30.11.2018 are hereby set-aside. The appellant namely Muhammad Firdous Raza son of Muhammad Maskeen is ordered to be acquitted. Muhammad Firdous Raza son of Muhammad Maskeen (appellant) is directed to be released forthwith if not required in any other case.

27. Murder Reference is answered in Negative and the death sentence of Muhammad Firdous Raza son of Muhammad Maskeen is Not Confirmed. JK/M-174/L Appeal accepted.