2021 PLP 69 (YLRN)

SADIQ MAHMUD KHURRAM, J.

Muhammad Aqeel son of Muhammad Latif (convict) was tried by the learned Additional Sessions Judge, Taxila along with his co-accused namely Tasaduq Hussain son of Muhammad Arshad (since acquitted) in the case FIR No. 412 of 2016 dated 07.10.2016 registered at Police Station Wah Cantt, District Rawalpindi in respect of offences under sections 302, 496-A and 34, P.P.C. for committing the Qatl-i-Amd of Mst. Waseem Akhtar wife of Tariq Mahmood (deceased). The learned trial court vide judgment dated 12.06.2019 convicted Muhammad Aqeel son of Muhammad Latif (convict) and sentenced him as infra: Muhammad Aqeel son of Muhammad Latif: Imprisonment for life under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Mst. Waseem Akhtar wife of Tariq Mahmood (deceased) and directed to pay Rs. 200,000/- 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. II Rigorous imprisonment for four years under section 496-A, P.P.C. and directed to pay fine of Rs.50,000/- and in default thereof to further undergo Simple Imprisonment for six months. The convict was extended the benefit provided under section 382-B, of the Code of Criminal Procedure, 1898. Tasaduq Hussain son of Muhammad Arshad, the co-accused of the convict, was however acquitted by the learned trial court.

2. Feeling aggrieved, Muhammad Aqeel son of Muhammad Latif (convict) lodged the instant Criminal appeal No.507 of 2019 assailing his conviction and sentence.

3. Precisely, the facts of the prosecution case as brought on record through the statement of Tariq Mehmood (PW-9), the complainant of the case, are as under:-- "Stated that on 26.09.2016,1 closed my shop and went to my house at about 11:30 pm. My wife Waseem Akhtar was not present at house whereas my two kids were sleeping. I tried to contact my wife upon her two cell Nos. 0344-5225356 and 0312-1881256, but both numbers were off. I checked the house and found the house hold articles while in scattered condition. Five tolas gold and 18000 cash and some garments were also missing. I continued to search her and then on 06.10.2016, my relative Nisar Iqbal told me that my wife was going with two unknown persons on white XLI, Corolla and he saw my wife and two unknown accused persons at that time. I then submitted my complaint Ex. PH before the police signed by me as Ex. PH/1 for registration of the case. On 07.10.2016, my relative Iqbal told me the names of the two unknown persons as Aqeel Ahmed and Tasaduq Hussain that they were the persons who were taking my wife along with them on that night. I then joined the investigation on the same cay and recorded my supplementary statement while nominating both the above referred accused now present in the Court. The accused were then arrested by the police. On 24.11.2016, I joined the investigation with the I.O. at Police Station Wah Cantt, where both the accused made confession that my wife was taken by them to Sheikhupura where the occurrence took place. I then went to Police Station Factory Area District Sheikhupura. I identified my deceased wife through the pictures shown by the police of Factory Area District Sheikhupura and the last worn clothes of the deceased vide identification memo Ex. PK, signed by me as Ex.PK/1. Case FIR No. 1489/16 dated 18.10.2016 under section 302, P.P.C. Police Station Factory Area District Sheikhupura was already registered when the deadbody of my wife was found on 18.10.2016 in a field alongside a road at Nabipur Wirkan and the deadbody had injuries caused through Churri. I then applied to the concerned learned Area Magistrate for permission of disinterment. After obtaining the permission, the proceedings of disinterment were conducted and the deadbody was handed over to us. The local police of Police Station Wah Cantt was also along with us. The deadbody was then taken back to Taxila and was buried. The deadbody was handed over to me vide a receipt Ex. PL. The case registered at Police Station Factory Area Sheikhupura was got cancelled and the I.O. of Police Station Factory area Sheikhupura handed over all the relevant documents to the local police of Police Station Wah Cantt. The investigation of this case was then conducted at Police Station Wah Cantt. The investigation of this case was then conducted at Police Station Wah Cantt. The accused have committed the instant occurrence and they may be dealt accordingly."

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 Aqeel son of Muhammad Latif and his co-accused namely Tasaduq Hussain son of Muhammad Arshad (since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 09.05.2017, to which the appellant pleaded not guilty and claimed trial.

5. The prosecution in order to prove its case got as many as twenty-one witnesses examined. Tariq Mehmood (PW-9) made the same statement as reproduced in Paragraph three of the judgment. Muhammad Nisar Iqbal (PW-19) stated that on 26.09.2016 at about 11:45 p.m. he had seen the deceased riding in a car with the appellant namely Muhammad Aqeel and his co-accused, namely Tasadaq Hussain (since acquitted) going towards Lahore Muhammad Saeed (PW-21) stated that on 27.09.2016, Tasadaq Hussain (since acquitted) got a room on rent for the appellant and the deceased and they lived in the said room for a month. Faisal Mustafa 2/C (PW-1) stated that on 21.11.2016, the appellant and his co-accused namely Tasadaq Hussain (since acquitted) were arrested and articles recovered from their personal search which were taken into possession by the Investigating Officer and on 06.12.2016, the Investigating Officer took into possession the last worn clothes of the deceased. Muhammad Akram, S.I. (PW-2) stated that he recorded the formal FIR (Exh. PD) with regard to the discovery of the dead body on 18.10.2016. Anees-ur-Rehman, Draftsman, (PW-3) stated that he prepared the scaled site plan (Exh. PE) of the place from where the dead body was recovered. Muhammad Amin, A.S.I. (PW-4) stated that on 18.10.2016, he recovered the dead body of the deceased and recorded the complaint (Exh. PF) against unknown accused. Ijaz Ahmed, A.S.I. (PW-5) recorded the instant FIR (Exh. PG) on 07.10.2016. Muhammad Ramzan 2896/HC (PW-7) stated that on 21.11.2016, Yasir Mehmood S.I. (PW-17) handed over to him the articles recovered from the personal search of the appellant and on 25.11.2016, Yasir Mehmood, S.I. (PW-17) handed over to him a sealed parcel said to contain Churri and a motorcycle and on 06.12.2016, Yasir Mehmood, S.I. (PW-17) handed over to him the last worn clothes of the deceased and on 21.12.2016, he handed over the parcel said to contain Churri to Yasir Mehmood, S.I. (PW-17) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Khalid 1060/HC (PW-8) stated that on 06.12.2016, he handed over the last worn clothes of the deceased to Yasir. Mehmood, S.I. (PW-17). Muhammad Ilyas (PW-10) stated that on 25.11.2016, the appellant and his co-accused namely Tasadaq Hussain (since acquitted) pointed the place of murder and the appellant also got recovered the blood-stained Churri (P-23), the motorcycle (P-24) and 6/7 clothes of the deceased. Mazhar Hussain, A.S.I. (PW-11) stated that on 01.11.2016, he handed over eleven sealed boxes and one sealed envelope to Muhammad Qamar Sajid, Inspector (PW-15) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Shamshad Ali 944/C (PW-12) stated that on 18.10.2016, he got conducted the postmortem examination of the deceased. Muhammad Qamar Sajid, Inspector (PW-15) investigated the case FIR No.1489 of 2016 registered at Police Station Factory Area, District Sheikhupura from 18.10.2016 till 01.11.2016 and as the instant FIR had been registered, he prepared the cancellation report of the case FIR No.1489 of 2016 registered at Police Station Factory Area, District Sheikhupura. Mubashar Hussain Awan, the learned Magistrate (PW-18) stated that on 24.10.2016, he allowed the disinterment of the dead body of the deceased to be handed over to Tariq Mehmood (PW-9). Muhammad Azam, S.I. (PW-6) investigated the case from 07.10.2016 till 10.11.2016 and narrated the facts of his investigation in his statement before the learned trial court. Yasir Mehmood, S.I. (PW-17) investigated the instant case from 15.11.2016 till 17.02.2017, arrested the appellant on 21.11.2016 and narrated the facts of his investigation in his statement before the learned trial court

6. The prosecution got Dr. Afzaal Ahmed (PW-20) examined, who stated that he was acquainted with the handwriting of Dr. Asma Liaqat (the whereabouts of Dr.Asma Liaqat remained untraceable during the trial). Dr. Afzaal Ahmed (PW-20) further stated that Dr. Asma Liaqat on 18.10.2016, conducted the postmortem examination of the dead body of an unknown woman (later identified as Mst. Waseem Akhtar, the deceased). In her post-mortem examination report (Exh.PGG), Dr. Asma Liaqat had observed as under:-- "EXTERNAL APPEARANCE. A dead body of a young female about 35/40 years, length 152 cm, wearing dark purple Shalwar and Qameez black with purple design and black burqa. Qameez and burqa were blood stained with corresponding tears. Eyes were closed. Lower abdominal suprapubic post op transverse scar present. Nails of hands bluished. Body sustained following injuries:-

1. An incised penetrating wound 2.5 x 1 cm on frontal lower neck.

2. Two incised penetrating wounds 1.5 x 0.5 cm each over frontal upper neck.

3. Five incised penetrating wounds measuring 2.5 x 1 cm each over frontal right side of mid chest.

4. Two incised penetrating wounds measuring 2.5 x 1 cm each over right side upper abdomen.

5. Six incised penetrating wounds three among them 2.5 x 1 cm each, other 5 x 1 cm each over frontal mid abdomen and above umbilicus.

6. Incised wound 5 x 2 cm skin deep over back of left upper forearm. .. Probable time that elapsed: Probable time between injury and death: Immediate. Between death and postmortem : 12 to 36 hours. OPINION In my opinion the death in this case occurred due to haemorrhagic shock leading to cardiopulmonary arrest and death. Injuries Nos.1, 4 and 5 are sufficient to cause death in normal course of death of a person, however the chemical examiner and DNA report will be issued on receipt from laboratory." The prosecution also got examined Dr. Sohail Abbas (PW-16) who stated that he had examined the appellant on 30.01.2017 and found him capable of having sexual intercourse.

7. On 20.10.2018, the learned ADPP gave up prosecution witnesses namely Rana Nisar Ahmed and Muhammad Mubeen as being unnecessary and on 03.01.2019, the learned ADPP gave up prosecution witness namely Maqbool Ahmed as being unnecessary and on 31.01.2019 the learned ADPP gave up prosecution witness namely Muhammad Iqbal, Inspector as being unnecessary. The learned ADPP closed the prosecution evidence on 28.05.2019 after tendering in evidence the report of the Punjab Forensic Science Agency, Lahore regarding DNA analysis (Exh.PHH).

8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Aqeel son of Muhammad Latif under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Aqeel son of Muhammad Latif 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 Additional Sessions Judge, Taxila, 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 District Public Prosecutor along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. They further argued that the deceased was murdered by the appellant who had confessed to the said crime before the witnesses. They further argued that the recoveries from the appellant also corroborated the statements of the witnesses. They 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 and learned counsel for the complainant prayed for the rejection of appeal.

12. I have heard the learned counsel for the appellant, the learned counsel for the complainant /respondent No.2, the learned District Public Prosecutor and with their assistance carefully perused the record and evidence recorded during the trial.

13. After consideration of contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent to mention here that in the instant matter ocular evidence is not available. There can be no dispute regarding the fact that the case is built on circumstantial evidence. In dealing with circumstantial evidence the rules especially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge, (1938) 2 Lewin 227) where he said: "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself to supply some little link that is wanting , to take for granted some fact consistent with its previous theories and necessary to render them complete." 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 evidence of the deceased being last seen in the company of the appellant, recoveries of incriminating materials i.e. the recovery of the Churri (P-23), the recovery of motorcycle (P-24) and the clothes of the deceased (P-26 to P-35). Firstly, I shall deliberate upon the evidence of the prosecution that the deceased was last seen in the company of the appellant. In order to prove the said fact, the prosecution got Muhammad Nisar Iqbal (PW-19) examined who stated that on 26.09.2016 at about 11:45 p.m. he had seen the deceased riding in a car with the appellant namely Muhammad Aqeel and his co-accused, namely Tasadaq Hussain (since acquitted) going towards Lahore. This witness, despite the fact of having seen deceased in the company of the appellant on 26.09.2016, however, did not report the said matter either to the complainant of the case, namely Tariq Mehmood (PW-9) or to the police. It was only on 07.10.2016 that he informed the complainant of the case, namely Tariq Mehmood (PW-9) of the said fact and later 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 complainant of the case, namely Tariq Mehmood (PW-9) and the police for as many as eleven days. It is settled that delay in making a statement, if not reasonably explained, dilutes its evidentiary value. Muhammad Nisar Iqbal (PW-19) by his own admission, was related to the deceased as the deceased was his step sister, however, still he did not report the matter either to the complainant of the case, namely Tariq Mehmood (PW-9) or the police. Furthermore, Muhammad Nisar Iqbal (PW-19) admitted that when he had allegedly seen the deceased in the company of the appellant and his co-accused, namely Tasadaq Hussain (since acquitted), the appellant was not known to him. Muhammad Nisar Iqbal (PW- 19), during cross-examination, stated as under:- "Accused Aqeel was not known to me at that time." Additionally, Muhammad Nisar Iqbal (PW-19), in his statement before the learned trial court, stated that he told Tariq Mehmood (PW-9) about the said fact on 07.10.2016, whereas Tariq Mehmood (PW-9), in his statement before the learned trial court, stated that Muhammad Nisar Iqbal (PW-19) told him about the said fact on 06.10.2016 and on 07.10.2016, he told him the name of the accused. In this manner too, the statements of the witnesses are contradictory. Another aspect of the case is that Muhammad Nisar Iqbal (PW-19) had allegedly seen the deceased in the company of the appellant at Golra Morr, Rawalpindi whereas the dead body of the deceased was recovered from the land of one Riasat Virk, situated within the area of Police Station Factory Area, District Sheikhupura. The place from where the dead body of the deceased was recovered and where Muhammad Nisar Iqbal (PW-19) 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 Nisar Iqbal (PW-19) is not confidence inspiring, therefore, the same cannot be relied upon.

15. This Court has also noted that Tariq Mehmood (PW-9), the husband of the deceased, despite the knowledge of the leaving of the deceased on 26.09.2016, did not report the incident to the police till 07.10.2016. There is no explanation for the said delay in reporting the matter to the police. The delay is conspicuous by its magnitude. Furthermore, Tariq Mehmood (PW-9), the complainant of the case, had stated in his statement before the learned trial court that the names of the accused were told to him by Muhammad Nisar Iqbal (PW-19) and thereafter he named the appellant in the case as an accused, however, Muhammad Nisar Iqbal (PW-19) admitted during cross-examination that he did not even know the appellant at that time and only knew his co-accused namely Tasadaq Hussain (since acquitted). Therefore, the naming of the appellant as an accused by Tariq Mehmood (PW-9) does not prove any fact in issue. Except for this statement, Tariq Mehmood (PW-9) did not allege that the appellant was involved in the occurrence in any manner. This Court is convinced that the prosecution witnesses failed to prove the facts necessary to establish the guilt of the appellant.

16. The prosecution has also relied upon the statement of Muhammad Saeed (PW-21) who stated that on 27.09.2016, 'Tasadaq Hussain (since acquitted) got rooms on rent for the appellant and the deceased and they lived in the said rooms as husband and wife for a month and left thereafter. The statement of Muhammad Saeed (PW-21) totally shatter the prosecution case against the appellant and lays bare the nature of the statements of the witnesses as being manipulated and blatantly procured. According to the prosecution case itself the dead body of the deceased was recovered from the land owned by one Riasat Virk, situated within the area of Police Station Factory Area, District Sheikhupura on 18.10.2016 and was discovered by Muhammad Amin, A.S.I. (PW-4) on the said date. If the statement of Muhammad Saeed (PW-21) is to be believed, then the appellant and the deceased had lived in the rented rooms for a month after 27.09.2016, however, as stated above, the dead body of the deceased had been discovered on 18.10.2016. In this manner, the statement of Muhammad Saeed (PW-21) totally shatters the prosecution case beyond recognition.

17. The learned District Public Prosecutor has vehemently argued that the statements of the accused, in police custody, made at the time of the recovery of the motorcycle (P-24) and the recovery of the Churri (P-23) on 25.11.2016 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 Qanun-e-Shahadat Order, 1984. 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 Qanun-e-Shahadat Order, 1984, 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 dead body of the deceased had already been recovered on 18.10.2016 whereas the recovery of the motorcycle (P-24) and the recovery of the Churri (P-23) were made on 25.11.2016. No new information was made available to the prosecution on 25.11.2016 as a consequence of the proceedings conducted on the said date as the place of murder of the deceased and the place of the recovery of her dead body were the same and was already in knowledge of the prosecution since 18.10.2016. Hence, the alleged statements of the appellant made in police custody at the time of the recovery of the motorcycle (P-24) and the recovery of the Churri (P-23) on 25.11.2016 cannot be read in evidence and would remain inadmissible.

18. The learned District Public Prosecutor has also relied upon the document (Exh. PM) and the statements of Yasir Mehmood, S.I. (PW-17) and Muhammad Ilyas (PW-10) that on 25.11.2016, the appellant pointed out the place of murder of the deceased. The statements of the witnesses that on 25.11.2016, the appellant pointed out the place of murder of the deceased is not relevant as no new fact was discovered in consequence of the said pointing out as the place of murder of the deceased and the place of the recovery of her dead body were the same and the said place was already in knowledge of the witnesses since 18.10.2016. The august Supreme Court of Pakistan in the case of "Fazal Subhan and another v. The State and others" (2019 SCMR 1027) has enunciated the following principle:-- "Memo of pointing out of place of occurrence cannot be equated with disclosure within the contemplation Article 40 of the Qanun-e-Shahadat Order, 1984." Furthermore, the same witnesses also stated that Tasadaq Hussain, the co-accused of the appellant (since acquitted) also pointed out the place of murder of the deceased on 25.11.2016 and a document (Exh. PQ) was prepared in this regard, however, both the said witnesses namely Yasir Mehmood, S.I (PW-17) and Muhammad Ilyas (PW-10) have been adjudged to have deposed falsely with regard to Tasadaq Hussain, the co-accused of the appellant (since acquitted) and this Court finds no reason to believe them with regard to the appellant, in absence of any reason to do so.

19. The learned District Public Prosecutor has also relied upon the recovery of the motorcycle (P-24), the recovery of the Churri (P-23), the recovery of the clothes of the deceased (P-26 to P-35) and the bag (P-25) on 25.11.2016 from the appellant namely Muhammad Aqeel, however 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 recovery of the motorcycle (P-24) and the recovery of the Churri (P-23) on 25.11.2016 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. Similarly, the Investigating Officer of the case, while recovering the clothes of the deceased (P-26 to P-35) and the bag (P-25) from the possession of the appellant, did not get Muhammad Saeed (PW-21), from whose house the said recoveries were made to witness the recovery of the clothes of the deceased (P-26 to P-35) and the bag (P-25) and attest the recovery memo prepared in this behalf, though he had joined the investigation of the case on 25.11.2016. Furthermore, the said clothes of the deceased (P-26 to P-35) and the bag (P-25) were never identified by Tariq Mehmood (PW-9), the husband of the deceased, as being the same as owned by the deceased. Additionally, while submitting the written application (Exh. PH), Tariq Mehmood (PW-9), the husband of the deceased, had not mentioned that the deceased had taken the said clothes (P-26 to P-35) and the bag (P-25) with her or that the same were missing. The Investigating Officer did not ask any person resident of the area surrounding the places of recovery of the of the motorcycle (P-24), the recovery of the Churri (P-23), the recovery of the clothes of the deceased (P-26 to P-35) and the bag (P-25) 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" Moreover, according to the prosecution case, the deceased was murdered on 18.10.2016 whereas the Churri (P-23) was recovered on 25.11.2016. According to the report of Punjab Forensic Science Agency, Lahore (Exh.PHH), the said Churri was received at the Punjab Forensic Science Agency, Lahore on 21.12.2016 and subsequently examined for the presence of human blood. During such a long period the blood available on the Churri (P-23), if any, would have disintegrated. It is not possible to believe that the blood had not disintegrated by then. The august Supreme Court of Pakistan in the case of "Faisal Mehmood v. The State" (2016 SCMR 2138) has held as under:- "The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks." Additionally, a perusal of the report of the Punjab Forensic Science Agency, Lahore (Exh.PHH) further reveals that the DNA profile obtained from the swabs taken from the blade and handle of the Churri (P-23) matched the DNA profile of the deceased, however, the appellant namely Muhammad Aqeel was eliminated as being the source of DNA obtained from the swabs taken from the blade and handle of the Churri (P-23). This also conclusively proves that the appellant had not used the said Churri (P-23). Due to these reasons no reliance can be placed upon the recovery of the motorcycle (P-24), the recovery of the Churri (P-23), the recovery of the clothes of the deceased (P-26 to P-35) and the bag (P-25). The prosecution witnesses miserably failed to prove that the appellant led to the recovery of said articles.

20. The plea of the learned District Public Prosecutor and the learned counsel for the complainant 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.

21. It has already been mentioned that along with the appellant, his co-accused namely Tasaduq Hussain (since acquitted) was also tried by the learned trial court. The learned trial court acquitted Tasaduq Hussain, the co-accused of the appellant. The acquittal of Tasaduq Hussain the co-accused of the appellant, has attained finality as no appeal against his acquittal is pending. The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant, can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The august Supreme Court of Pakistan has recently held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare, the truth about any other aspect of the case. The view should be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected". If a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in "Criminal Miscellaneous Application No.200 of 2019 in Criminal Appeal No.238-L of 2013" reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles:- " ..The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments. .. Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country. A court of law cannot permit something which the law expressly forbids. .. ..

21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury." Guided by the said judgment of the august Supreme Court of Pakistan, this Court has examined the prosecution evidence. Muhammad Nisar Iqbal (PW-19) stated that on 26.09.2016 at about 11:45 p.m. he had seen the deceased riding in a car with the appellant namely Muhammad Aqeel and his co-accused, namely Tasadaq Hussain (since acquitted) going towards Lahore, however, this witness has been disbelieved with regard to his statement regarding Tasaduq Hussain, the co-accused of the appellant (since acquitted). Similarly, Muhammad Saeed (PW-21) stated that on 27.09.2016, Tasadaq Hussain (since acquitted) got rooms on rent for the appellant and the deceased and they lived in the said rooms as husband and wife for a month and left however this witness has been disbelieved by the learned trial court with regard to his statement regarding Tasaduq Hussain, the co-accused of the appellant (since acquitted). In the same manner, Yasir Mehmood, S.I. (PW-17) and Muhammad Ilyas (PW-10) that on 25.11.2016, Tasaduq Hussain, the co-accused of the appellant (since acquitted) pointed out the place of murder of the deceased, however, they too have been adjudged to have deposed falsely with regard to Tasadaq Hussain (since acquitted). This Court finds no reason to believe their statements with regard to the appellant in absence of any reason to do so. This lying on part of the witnesses with regard to Tasaduq Hussain (since acquitted) has vitiated the trust of this Court in them. This Court is thus satisfied that the evidence of the said witnesses has no worth and is to be rejected outright.

22. In view of the above, this Court is of the considered opinion that 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 an 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." 23 Considering all the above circumstances, this Court entertains serious doubt in its mind regarding the involvement of Muhammad Aqeel son of Muhammad Latif (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."

24. For what has been discussed above, the instant Criminal Appeal No.507 of 2019, lodged by Muhammad Aqeel son of Muhammad Latif (appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 12.06.2019 are hereby set aside. The appellant namely Muhammad Aqeel son of Muhammad Latif is ordered to be acquitted. Muhammad Aqeel son of Muhammad Latif (appellant) is directed to be released forthwith if not required in any other case. JK/M-176/L Appeal allowed.