2016 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Asmat Hayat son of Muhammad Ashraf, caste Rajput, resident of Phadial, Police Station Domeli, Tehsil Sohawa, District Jhelum (Crl. Appeal No.47 of 2010), Abdul Hameed son of Abdul Rasheed, caste Muslim Sheikh, resident of Phadial, Police Station Domeli, Tehsil Sohawa, District Jhelum (Crl. Appeal No.26 of 2010) and Ishtiaq Ahmed son of Abdul Rasheed, caste Muslim Sheikh, resident of Phadial, Police Station Domeli, Tehsil Sohawa, District Jhelum (Crl. Appeal No.27 of 2010), appellants along with Muhammad Irfan, Farhat Mehmood and Muhammad Hameed (since acquitted) were involved in case FIR No.257, dated 05.10.2007 offence under sections 302, 365, 397, 201, 412, 148, 149, P.P.C., registered at Police Station Sohawa, District Jhelum, and were tried by Mr. Ahmed Khan Maiken, learned Additional Sessions Judge, Jhelum. The learned trial court seized with the matter in terms of judgment dated 29.01.2010 convicted and sentenced the appellants as under:- Sr. # Name of the appellant Conviction/Sentence

1. Asmat Hayat > Under section 302/34, P.P.C., sentenced to death as Ta'zir with direction to pay Rs.50,000/- as compensation to the legal heirs of deceased to be recovered as arrears of land revenue and in case of default in payment thereof, he was directed to undergo S.I. for six months. > Under section 397/34, P.P.C., sentenced to undergo R.I. for seven years. > Under section 365/34, P.P.C., sentenced to undergo R.I. for five years along with fine of Rs.30,000/- and in case of default in payment thereof, to further undergo S.I. for six months. > Under section 201/34, P.P.C., sentenced to undergo R.I. for five years alongwith fine of Rs.20,000/- and in case of default in payment thereof, to further undergo S.I. for six months. > Under section 412, P.P.C., sentenced to R.I. for seven years along with fine of Rs.25,000/- and in case of default in payment thereof, to further undergo S.I. for six months. > Sentences recorded under sections 365, 397, 201 and 412, P.P.C., were directed to run concurrently and benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. Ishtiaq Ahmed > Under section 302/34, P.P.C., sentenced to death as Ta'zir with direction to pay Rs.50,000/- as compensation to the legal heirs of deceased to be recovered as arrears of land revenue and in case of default in payment thereof, he was directed to undergo S.I. for six months. > Under section 397/34, P.P.C., sentenced to undergo R.I. for seven years. > Under section 365/34, P.P.C. sentenced to undergo R.I. for five years along with fine of Rs. 30,000/- and in case of default in payment thereof, to further under go S.I. for six months. > Under section 201/34, P.P.C. sentenced to undergo R.I. for five years along with fine of Rs. 20,000 and in case of default in payment thereof, to further undergo S.I. for six months. > Sentences recorded under sections 365, 397 and 201, P.P.C., were directed to run concurrencly and benefit of section 382-B, Cr.P.C. was also extended to the appellant.

3. Abdul Hameed > Under section 302/34, P.P.C., sentenced to death as Ta'zir with direction to pay Rs. 50,000/- as compensation to the legal heirs of deceased to be recovered as arrears of land revenue and in case of default in payment thereof, he was directed to undergo S.I. for six months. > Under sectons 397/34, P.P.C., sentenced to undergo R.I. for seven years. > Under section 365/34, P.P.C., sentenced to undergo R.I. for five years along with fine of Rs.30,000/- and in case of default in payment thereof, to further undergo S.I. for six months. > Under section 201/34, P.P.C., sentenced to undergo R.I. for five years along with fine of Rs.20,000/- and in case of default in payment thereof, to further undergo S.I. for six months. > Sentences recorded under sections 365, 397 and 201, P.P.C., were directed to run concurrently and benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. Feeling aggrieved by the judgment of the learned trial court, Asmat Hayat appellant assailed the same through filing Crl. Appeal No.47 of 2010 whereas, Ishtiaq Ahmed appellant preferred Crl. Appeal No.27 of 2010. Abdul Hameed appellant challenged the vires of his conviction through filing Crl. Appeal No.26 of 2010 while the learned trial court forwarded Murder Reference No.10/RWP of 2010 for confirmation of death sentence inflicted upon the convicts. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through consolidated judgment.

3. Prosecution story as contained in the FIR (Exh.PQ/1) lodged on the complaint (Exh.PQ) of Arshad Mehmood son of Muhammad Azam, caste Jatt, resident of Pakhwal, Tehsil Sohawa, District Jhelum (PW-14) is that his real brother namely Tariq Mehmood son of Muhammad Azam, resident of Pakhwal, Tehsil Sohawa, District Jhelum, was employed as driver with Pervez Kiani son of Kala Khan, resident of Bakrrala, on car XLI Toyota Corolla, bearing registration No.2634/RLE, Model 2006, who on 27.09.2007 at 10:00 a.m. went to Sohawa in order to purchase household articles, however, when he reached at bridge near Katchehri Chowk, (1) Muhammad Hameed son of Muhammad Arif, (2) Irfan, (3) Farhat, all sons of Muhammad Maroof, residents of Nai Abadi Sohawa, (4) Ishtiaq Ahmed son of Abdul Rasheed, resident of Pidhari, Police Station Bomeli, (5) Abdul Hameed son of Abdul Rasheed, resident of Pidhari and (6) Raja Asmat son of Muhammad Ashraf, resident of Phhadian, Police Station Domeli, on gun point kidnapped him along with vehicle. While witnessing the occurrence Muhammad Ikram son of Mehrban Khan, resident of Ardal and Muhammad Ishaque son of Walayat Ali, resident of Billa Mohrra, informed the complainant and Raja Parvez Kiani, owner of the vehicle. The complainant along with others started search of the accused persons, however, could not locate their whereabouts. The complainant averred that all the six accused persons in order to usurp car bearing registration No.2634/RLE and commit the murder of brother of the complainant, had kidnapped him.

4. The complainant along with written complaint reached Police Station and presented it to Mushtaq Ahmed, S.I. (PW-15), on the basis of which formal FIR was recorded without any addition or omission. The Investigating Officer along with the complainant visited the place of occurrence and prepared rough site plan (Exh.PR). Thereafter, he conducted raid and arrested Ishtiaq Ahmed and Abdul Hameed from their residential houses. Thereafter, both the accused after making disclosure led the Investigating Officer to the place of burial of dead body of Tariq deceased, which was disinterred and the same was identified by the complainant and other prosecution witnesses. The Investigating Officer prepared memo of pin-pointing of the place of occurrence (Exh.PL) and took into possession the dead body vide recovery memo Exh.PO signed by the prosecution witnesses. The Investigating Officer recorded their statements under section 161, Cr.P.C. He also prepared rough site plan of the place of recovery of the dead body (Exh.PS). Thereafter, the Investigating Officer prepared inquest report (Exh.PB), drafted application for post mortem examination (Exh.PC) and sent the same to mortuary for autopsy under the escort of Ehsan constable No.900. After the post mortem examination last worn clothes of the deceased qameez (P-1), shalwar (P-2) and bunyan (P-3) were produced before the Investigating Officer, which he took into possession vide recovery memo Exh.PE. On 07.10.2007 the Investigating Officer arrested Asmat Ullah accused, who after making disclosure got recovered car bearing registration No.2634/LRE (P-4), which was taken into possession vide recovery memo Exh.PK. He also prepared rough site plan of the place of recovery of car (Exh.PK/1). On 09.10.2007 during the course of interrogation Abdul Hameed accused after making disclosure led to the recovery of chhuri (P-5) lying near the place from where the dead body was disinterred, which the Investigating Officer took into possession vide recovery memo Exh.PH. On the same day, Ishtiaq Ahmed appellant after making disclosure led to the recovery of hatchet (P-6), which was made into sealed parcel by the Investigating Officer vide recovery memo Exh.PJ. During the course of investigation, Asmat Hayat appellant also made disclosure regarding the recovery of pistol .30-bore (P-7) and led to its recovery from near the place of burial of dead body. On unloading the same three live cartridges were found. The Investigating Officer secured the pistol along with live cartridges (P-8/1-3) vide recovery memo Exh.PG. Subsequently on, 11.10.2007, Ishtiaq Ahmed appellant after making disclosure led to the recovery of rifle .8- MM (P-9) and on unloading the same nine live cartridges (P-10/1-9) were also found. The Investigating Officer took into possession rifle (P-9) along with nine live cartridges (P-10/1-9) vide recovery memo Exh.PF. He also prepared rough site plan of the place of recovery of rifle Exh.PF/1. On reaching the Police Station, the Investigating Officer deposited the case property with Moharrar Malkhana for safe custody and onward transmission to the quarter concerned. On 03.11.2007 on the direction of the Investigating Officer and pointing out of the PWs, Shafqat Ali, Halqa Patwari (PW-3) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PD, Exh.PD/1 and Exh.PD/2), which was made part of the file.

5. Having found the appellants guilty, the Investigating Officer prepared report under section 173, Cr.P.C. and sent the same to the court of Session en-routed through the Illaqa Magistrate as provided under section 190(2), Cr.P.C. On 25.01.2008, learned Additional Sessions Judge, Jhelum, formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. Prosecution in support of its version produced as many as fifteen (15) prosecution witnesses.

6. Arshad Mehmood (PW-14) is the complainant of the case, whereas, evidence with regard to lastly seen the appellants along with the deceased was adduced through the statements of Muhammad Ishaq (PW-12) and Muhammad Ikram (PW-13). 5hafqat Ali Patwari (PW-3) had prepared scaled site plan of the place of occurrence (Exh.PD, Exh.PD/1 and Exh.PD/2). Besides chalking out formal FIR, Mushtaq Ahmed, S.I. (PW-15) had also investigated the case. Dr. Suresh Kumar, Medical Officer, THQ Hospital, Sohawa (PW-2) had conducted post mortem examination upon the dead body of Tariq Mehmood deceased and found following injuries on his person:- "

1. A chopping wound on front of neck about 8 x 5 cm hyoid bone and thyroid cartilage.

2. Lacerated wound on back of skull about 4 x 2 cm fractured skull bone on right side occipital area.

3. Lacerated wound 2 x 2 cm on back of skull, bone deep." After conducting the post mortem examination the doctor had rendered the following opinion:- "After careful post mortem of external and internal I was of the opinion that cause of death was injury No.1 leading to heavy bleeding, Cesstion of respiration and cardiac arrest, so that injury No.1 is sufficient to cause death in ordinary course of nature. Injury No.1 was ante-mortem caused by sharp heavy weapon. Injuries Nos.2 and 3 also were ante- mortem caused by blunt weapon. Probable time that elapsed between injury and death within half an hour and between death and post mortem 8 to 10 days." Statements of rest of the prosecution witnesses are formal in nature.

7. On 16.07.2008 learned ADPP gave up Tanveer and Mansha, PWs, being unnecessary, whereas, Muhammad Parvez PW was given up by learned DDPP on 17.10.2008 again being unnecessary. Vide his separate statement recorded on 03.10.2009, learned ADPP after tendering in evidence the report of Chemical Examiner (Exh.PW) and report of Serologist (Exh.PX) closed the prosecution evidence.

8. The appellants were also examined under section 342, Cr.P.C.; wherein they opted not to appear as their own witnesses in terms of section 340(2), Cr.P.C., however, all of them opted to lead evidence in their defence. In response to the question why this case against him and why the PWs deposed against him, Asmat Hayat appellant made the following deposition:- "All the P.Ws are very much interested being close relatives of the deceased. I am falsely roped in under the influence of my enemies. The complainant made a written application on 30.09.2007 putting up a quite different story and wherein neither there is any allegation against me nor my name figures in the said application which was duly registered in the station diary and was marked to Zubair ASI by the then SHO Akhtar Ali, for inquiry. The copy of the station diary dated 30.09.2007 is on record as Mark A. While replying to a similar question, Abdul Hameed son of Abdul Rasheed and Ishtiaq Ahmed appellants deposed in line with the version of Asmat Hayat, appellant. In defence, Akhtar Ali Inspector appeared as DW-1 while Muhammad Zubair ASI made his statement as DW

2. In their statements both the defence witnesses verified the factum of lodging rupt by complainant of the instant case (Exh.DC).

9. Learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellants in the afore stated terms.

10. Mr. Basharat Ullah Khan Advocate while taking rostrum on behalf of all the appellants contended that although the occurrence is stated to have taken place on 27.09.2007 and as per contents of the complaint, the complainant was also apprised the fact of kidnapping of his brother, however, the matter was reported to the police with a delay of nine days on 05.10.2007, which speaks volume qua authenticity of the prosecution version. Learned counsel further submitted that even while lodging the crime report no specific role was ascribed to either of the appellants. It was vehemently argued by the learned counsel that statements of Muhammad Ishaque (PW-12) and Muhammad Akram (PW-13) under section 161, Cr.P.C. were recorded at a belated stage. Learned counsel while drawing attention of the Court to the statements of DW-1 and DW-2 pointed out that earlier the complainant had moved an application before the police (Exh.DE); wherein neither names of the present appellants were mentioned nor even suspicion was raised qua their involvement. Learned counsel contended that the recovery of dead body on joint pointation as well as memo of pointation, being joint one, the same is inadmissible evidence. It was further argued that as no firearm injury was found on the person of deceased, therefore, recovery of pistol and rifle is inconsequential. With regard to recovery of chhuri and hatchet, learned counsel vehemently agitated that as those were recovered near the burial of dead body and that's too after four days of recovery of the dead body, therefore, the same cannot be given any credence. Learned counsel next argued that in absence of any direct evidence, the recovery of car does not substantiate the prosecution case especially when in Exh.DE, stance of the complainant was altogether different. It was also argued that neither any specific motive was set in the crime report nor adduced during the course of trial. Learned counsel further submitted that whole prosecution case hinges upon conjectures and surmises, therefore, in absence of any direct evidence, the learned trial court was not justified in recording conviction especially when on the same set of evidence, the learned trial court had acquitted three co-accused. Learned counsel, in the end, prayed for clean acquittal of the appellants from the charge.

11. As against above learned Law Officer vehemently opposed the contentions raised by learned counsel for the appellants with the submissions that the delay in lodging the FIR, in the peculiar circumstances, is not fatal. The appellants were duly named in the crime report and the fact of kidnapping of Tariq Mehmood was duly witnessed by Muhammad Ishaq (PW-12) and Muhammad Ikram (PW-13), who while appearing in the witness-box fully supported the prosecution version. Learned Law Officer argued that the dead body was recovered on the pointing out of the appellants. He, however, conceded that the recovery being joint one carries no legal authenticity. It was further contended by learned Law Officer that the recovery of bloodstained chhuri and hatchet from the appellants and reports of Chemical Examiner and Serologist (Exh.PW and Exh.PX) being positive, the same fully substantiates the prosecution version. Learned Law Officer emphasized that the recovery of car snatched from the deceased also saddles the appellants with the commission of offence. Law Officer argued that the complainant being real brother of the deceased had no previous ill-will to falsely involve the appellants in the instant case. Further submitted that during the course of investigation, the appellants were found guilty as such their names were placed in column No.3 of the report prepared under section 173, Cr.P.C. In this backdrop, it was finally argued that the learned trial court while attending each and every aspect of the case in light of prosecution evidence available on the record rightly recorded conviction/sentence against the appellants, therefore, no exception can be made to the same.

12. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants, as well as, learned Law Officer.

13. In order to substantiate its version the prosecution has adduced evidence on four counts viz. last seen, recovery of dead body, recovery of crime weapons (chhuri and hatchet) and recovery of car snatched from Tariq Mehmood deceased besides other corroborating evidence. As per contents of the crime report the occurrence in the instant case had taken place on 27.09.2007, whereas, the FIR was lodged on 05.10.2007 with a delay of nine days of the occurrence. Admittedly in such like cases, the superior courts of the country do not give importance to delay in lodging the FIR, however, it is note worthy that in the instant case the complainant happens to be real brother of the deceased and bare reading of the complaint (Exh.PQ) on the basis of which formal FIR (Exh.PQ/1) was lodged, reveals that he was informed about the occurrence on 27.09.2007 at 10:00 a.m. by Muhammad Ikram son of Mehrban Khan (PW-13) and Muhammad Ishaque son of Walayat (PW-12), brother-in-law (behnvai) of the deceased. The conduct of the complainant and PW-12 for not reporting the matter to the police for such a long period when as per statements of PW-12 and PW-13 made during the course of trial at the time of occurrence the accused while catching hold Tariq Mehmood deceased from his neck collar (gireban) had abducted him, speaks volume and this circumstance alone creates serious dents in the authenticity of the prosecution version persuading this Court to go through its minute details in view of other independent/corroborating material. It is of much significance to note that in the case of Mehmood Ahmed and 2 others v. State (1995 SCMR 127), the Hon'ble Supreme Court of Pakistan took serious notice of delay in lodging the FIR and held as under:- "Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate. This does not mean that in any other case where the complainant does not mention the names of the accused an adverse inference has to be drawn but in cases where the facts show that in the normal circumstances the complainant could have known or obtained the names of the accused, it will be rather dangerous to rely upon such witnesses unless very strong piece of evidence is produced to substantiate the prosecution case. In the present case if the complainant would have reached the police station within 15 to 30 minutes of the incident, one could say that immediately after the incident the complainant having no interest in the matter had rushed to the police station to lodge information so that immediate steps may be taken by the police. Such is not the case here and as discussed above, the delay in particular circumstances of this case has not been explained."

14. Perusal of contents of the crime report and statements of Muhammad Ishaque (PW-12) and Muhammad Ikram (PW-13) in terms of section 161, Cr.P.C. recorded during the course of investigation reveals that they had not assigned any specific role to either of the appellants or the acquitted accused. However, while taking a somersault at the time of appearing in the witness box, both of them improved their statements. The stance of the prosecution witnesses qua improving their statements with regard to catching hold of the deceased by Asmat Hayat from his neck collar, forcibly putting in the car, the factum of information passed on to the complainant by the PWs regarding the occurrence, the fact that after kidnapping Tariq Mehmood who applied the car, whether the prosecution witnesses had opted to interfere for rescue of Tariq Mehmood; thereby stopping the car, was duly confronted during the course of cross-examination. Hence, when seen from every angle, one thing is clear that both PW-12 and PW-13 had improved their version on material characteristics of the case. In the dictum of law laid down by august Supreme Court of Pakistan in the case of Muhammad Rafique and others v. The State and others (2010 SCMR 385), it has been held that the statement of any witness improved at trial is not worth relying rather such improvement creates serious doubts about its veracity and credibility. Similar view was held in another case reported as Saeed Ahmed Shah v. The State (1993 SCMR 550). Even otherwise last seen evidence is the weakest type of evidence, which as per settled principle of criminal justice, in isolation cannot be made basis for conviction of any person especially in a case of capital charge. Respect reliance in this regard is placed upon the ratio decidendi of august Supreme Court of Pakistan in the cases of Naqibullah and another v. The State (PLD 1978 SC 21), Muhammad Arshad v. Pervez and another (1997 SCMR 532) and Ibrahim and others v. The State (2009 SCMR 407).

15. As far as the recovery of dead body on the pointing out of Ishtiaq Ahmed and Abdul Hameed, appellants is concerned, while appearing in the witness box the Investigating Officer had stated that:- "Then accused Ishtiaq and Hameed led to the place of scuffle between the deceased and the said accused and the place of burial of dead body of Tariq deceased." Perusal of memo of pointation (Exh.PL) also discloses that both Ishtiaq Ahmed and Abdul Hameed appellants had made joint pointation. As far as the admissibility of recovery of dead body on the joint pointation is concerned, it is settled principle of law that the same being hit by Articles 39/40 of Qanun-e-Shahadat Order, 1984, is inadmissible in evidence. Reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Ghulam Akbar and another v. The State (2008 SCMR 1064). Similar view was held in the cases of Wazir Muhammad and another v. State (2005 SCMR 277), Shabbir Ahmed v. The State (2011 SCMR 1142), Muhammad Yar v. The State (2001 MLD 807), Liaqat Ali v. The State (1999 PCr.LJ 1469). Moreover, during the course of cross-examination, the Investigating Officer had admitted that the accused had disclosed this fact earlier to reaching the place of burial of the dead body; therefore, we are constrained to observe that the same cannot be considered as pointation by the appellants.

16. The most pivotal point of the case is that there is nothing on the record to establish that whether Ishtiaq Ahmed and Abdul Hameed/appellants had dug out the earth and got recovered the dead body themselves or the Investigating Officer had got done the same with the help of any other person. Moreover, neither any articles/tools, which were allegedly used for the purpose of digging earth stand mentioned in the testimony of the Investigating Officer nor any of those was taken into possession by him. Another aspect of the case is that during the course of investigation the Investigating Officer had not collected the articles used by the accused persons for digging earth before burying the dead body of Tariq Mehmood. Therefore, this aspect of the case does not find corroboration from any other circumstance available on record.

17. Nevertheless as per prosecution version after their arrest the accused led to the dead body and got recovered on 05.10.2007, however, as per recovery memo Exh.PH and Exh.PJ, chhuri from Abdul Ahmed appellant and hatchet from Ishtiaq Ahmed appellant were recovered on 09.10.2007 respectively. It is very astonishing that nevertheless during interrogation on 05.10.2007 the accused had led to the recovery of dead body, however, why the Investigating Officer didn't make effort to recover the crime weapons and those were recovered with further delay of four days particularly when place of recovery of dead body and crime weapons is surrounding areas. Moreover, the factum of recovery of chhuri and hatchet from an open/deserted area after thirteen days of the occurrence and staining of the articles with blood does not seem plausible in ordinary circumstances. It is imperative to mention here that in the case of Basharat and another v. State (1995 SCMR 1735) the august Supreme Court of Pakistan had disbelieved the recovery of bloodstained chhuri after ten days of the occurrence nevertheless the same was recovered from inside the house. Even otherwise as per prosecution version during the course of investigation rifle .8-MM (Exh.PF) was recovered on the pointing out of Ishtiaq Ahmed appellant, whereas, from Asmat Hayat appellant pistol .30-bore (Exh.PG) was recovered, which both the accused were having at the time of abduction/occurrence. If the accused were holding firearm weapons with sufficient cartridges and they were adamant to commit the murder of Tariq Mehmood, it does not appeal to prudent mind that instead of using sophisticated weapon why they used conventional weapons. In the above scenario this circumstance alone discards the authenticity of recovery of bloodstained chhuri and bloodstained hatchet, hence reports of Chemical Examiner (Exh.PW) and Serologist (Exh.PX) lend no support to the prosecution version.

18. Another moot point of the case is that Shafqat Ali Patwari (PW-3), who had prepared scaled site plan of the place of occurrence (Exh.PD, Exh.PD/1 and Exh.PD/3) while appearing in the witness box had admitted that he had not mentioned in the scaled site plan whether any PW was present at the place of occurrence when he visited there. Relevant portion of his statement reads as under:- "It is also correct that there is no mention whatsoever that any PW was ever present at the place of occurrence, when allegedly I visited the spot. Volunteered, it was an omission on my part. It is also correct that the site plan Exh.PD, Exh.PD/1 and Exh.PD/2 categorically speaks having been made on the pointation, direction and instructions of Musthaq Ahmed SI and none else." This fact further creates dents in the prosecution version.

19. Perusal of record available on file reveals that earlier on 30.09.2007 the complainant had moved an application before the SHO, Police Station Sohawa, District Jhelum, according to which he had raised suspicion that in order to claim insurance of vehicle bearing registration No.2634/LRE, Parvez Kiani had managed abduction of Tariq Mehmood and regarding this fact rupt No.23, dated 23.09.2007 (Exh.DE) was also incorporated. Contents of Exh.DE reveal that the same is contrary to the prosecution version set forth in the crime report. Moreover, in the earlier application of the complainant (Exh.DE), no role was ascribed to either of the appellants. Nevertheless during the course of trial, the complainant had opted to disown the contents of Exh.DE, however, while appearing in the witness box both Akhtar Ali Inspector (DW-1), scribe of the rupt and Muhammad Zubair, ASI (DW-2), to whom the application was marked for inquiry under section 157, Cr.P.C., had fully established that the application was presented by the complainant and DW-1 while lodging the rupt had marked it for inquiry to DW-2. This fact, itself creates serious doubts about the story subsequently introduced in the crime report and substantiated during the course of trial.

20. It goes without saying that the whole prosecution case is based upon circumstantial evidence. It is settled principle of law that to base conviction on circumstantial evidence there should be interlinking chain of credible and cogent corroborative evidence available on the record, which needless to mention is totally missing in this case. Respectful reliance in this regard is placed on the dictum of law laid down by august Supreme Court of Pakistan in the case of Karamat Hussain v. The State (1972 SCMR 15).

21. Moreover, on the same set of evidence Farhat Mehmood, Muhammad Irfan and Muhammad Hameed, accused already stand acquitted by the learned trial court and their acquittal has not been assailed by the prosecution/complainant before this Court. It is settled principle of law that if evidence of the prosecution is disbelieved qua major portion of the accused it cannot be believed qua the other in the absence of very strong corroboration, which needless to mention is squarely missing in the instant case. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Akhtar Ali and others v. The State (2008 SCMR 6), Sheral alias Sher Muhammad's case (1999 SCMR 697) and Sher Bahadur's case (1972 SCMR 651).

22. We also find much weight in the contention of learned counsel for the appellants that as the prosecution had badly faded to substantiate its case against the appellants, therefore, medical evidence does not come forward to rescue the prosecution version. Similarly, the recovery of car by the prosecution being that of corroborative nature cannot be termed as an incriminating material to saddle the appellants with the liability against whom otherwise it has badly failed to establish any link with the occurrence.

23. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to substantiate its case against the appellants to the hilt and the learned trial court was not justified in convicting them while basing upon such untrustworthy/uncorroborated evidence, which even otherwise is full of material contradictions especially when the FIR was lodged with an inordinate delay of nine days and that's too on the statement of real brother of the deceased, who claims to have received information regarding the occurrence on the day of occurrence, the material improvements made by the prosecution witnesses of last seen, joint pointation of the appellants to the place of occurrence and joint recovery of dead body, the same being inadmissible in evidence and conviction recorded by the learned trial court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover, it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 29.01.2010, Crl. Appeal No.47 of 2010 filed by Asmat Hayat, Crl. Appeal No.27 of 2010, filed by Ishtiaq Ahmed and Crl. Appeal No.26 of 2010 filed by Abdul Hameed, appellants, are ACCEPTED IN TOTO. Consequently they are ordered to be acquitted of the charge in case FIR No.257, dated 05.10.2007 offence under sections 302, 365, 397, 201, 412, 148, 149, P.P.C., registered at Police Station Sohawa, District Jhelum, and they are directed to be released forthwith if not required in any other case.

24. Murder Reference No.10/RWP of 2010 forwarded by the learned trial court for confirmation of sentence of death inflicted upon Ishtiaq Ahmed, Abdul Hameed and Asmat Hayat/convicts fails, which is answered in NEGATIVE. Death sentence is NOT CONFIRMED. HBT/A-123/L Appeal accepted.