' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,60-J of 2006 (Rajab Ali v. The State); Criminal Appeal No,11 of 2006 (Mst.Shakeela v. The State) and Murder Reference No,15 of 2007 sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to both the appellants, as all these three matters have arisen out of the same judgment dated 23-1-2006 passed by the learned Additional Sessions Judge, L,iaqatpur, whereby, both the appellants were convicted under section 302(b), P.P.C. (for the murder of Saeed Ahmad deceased) and sentenced to death each. Appellants were further directed to pay a compensation of Rs,1,00,000 (Rupees one lac only) each to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default whereof to further undergo one year S.I. Each.
2. Brief facts of the case, as given by P.W.3 Ali Muhammad (complainant) in the F.I.R. (Exh.PA/1) are that about three years prior to the occurrence, his nephew Saeed Ahmad (deceased) was married to Mst.Shakeela (appellant) while Rajab Ali (appellant) wanted to get Shakeela due to which relations between Saeed Ahmad (deceased) and Mst. Shakeela (appellant) remained strained.
According to the complainant, on 16-3-2004, he received information at Umarkot about the death of Saeed Ahmad (deceased), who, along with Qadir Bakhsh (not produced) and P.W.4 Muhammad Younas reached in Chak No,105/NP, saw dead body of Saeed Ahmad lying on a Charpai and noted marks of injuries on his neck and testicles. As per F.I.R., the complainant suspected that Rajab Ali (appellant) with the help of his brother Abbas, Muhammad Asif son of Ghulam Muhammad and Farooq son of Khair Muhammad killed Saeed Ahmad (deceased) by strangulating and squeezing his testicles. After registration of the F.I.R., Aftab Hussain Inspector started investigation, who, on 16- 4-2004 arrested Rajab Ali (appellant). Then the investigation was transferred to Alamdar Hussain Inspector, who, on 29-6-2004, arrested Mst.Shakeela (appellant). During the course of investigation, Muhammad Asif, Farooq Ahmad and Ghulam Abbas were found innocent while both the appellants were found involved in the commission of the offence.
3. After completion of investigation, challan was prepared and submitted against both the appellants. However, before the learned trial Court, copies were distributed to the appellants as required under section 265-C of the Code of Criminal Procedure, charge was framed, to which, the appellants pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced as many as 15 witnesses during the trial. The appellants were examined under section 342, Cr.P.C. They neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C. In an answer to the question "why this case against you and why the P.'Ws. Have deposed against you", Rajab All appellant, in his statement recorded under section 342, Cr.P.C., stated as under:-- "It is incorrect. The case lodged against me is false and concocted one. P.Ws. Are real brother to each other, so, they have deposed against me falsely".
' Mst.Shakeela (appellant), deposed as under:-- "My father filed various suits against father of the deceased Hazoor Bakhsh so they have involved me in this case. Complainant and P.Ws. Are brothers of Hazoor Bux father of the deceased, so, they have deposed against me".
' However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellants as mentioned above.
5. Sardar Ahmad Khan, Advocate for Rajab All (appellant) in Criminal Appeal No,60-J of 2006 (Rajab Ali v. The State), contends that the evidence of P.W.1 Amjad Saleem cannot be relied upon because he is the real son of the complainant, resident of a place, which is at a distance of about 150 kilometers from the place of occurrence and he has not been able to explain his presence at the spot and the story narrated by him that he saw the appellant while coming out of the house of the deceased during the odd hours of the night is not probable; that during cross-examination, he admitted that he had told this incident to his father prior to the registration of the F.I.R. But there is no mention of such incident in the F.I.R. Which clearly shows that he is not a truthful witness; that even otherwise, the reason given by him for his presence in Chak No,105-NP, is belied by the other circumstances as he stated that he went to Chak No,105-NP to inquire about the health of Ghulam Muhammad but admitted that he did not go to the house of said Ghulam Muhammad; that as far as extra-judicial confession allegedly made by the appellants is concerned, there was no reason for the appellant to make such a confession before the complainant who got the case registered and showed a suspicion against the appellants; that even otherwise P.W.3 Ali Muhammad (complainant) and P.W.4 Muhammad Younis had no status of the type which could prompt the appellants to make such a confession before them coupled with the fact that after making such an alleged confession, no request for pardon was made by the appellants before them and that, moreso, this extra-judicial confession is not corroborated by any other independent piece of evidence.
' As far as recovery of intercom, wire and syringe at the instance of the Rajab Ali (appellant) is concerned, learned counsel contends that this recovery was allegedly effected on 19-4-2004 whereas the appellant was arrested on 16-4-2004; that the syringe was not sent to the Chemical Examiner; that even otherwise, nothing else was recovered from the appellant or taken into possession by the police at the instance of either of the appellants which could connect him with the alleged commission of the offence.
' Learned counsel also adds that as far as marks of injuries on the hands of the Rajab Ali (appellant) are concerned, it does not help the prosecution case because P.W.13 Dr. Muhammad Nadeem Zia, who medically examined the appellant, did not mention duration of those injuries; that even the doctor has not mentioned how these injuries were caused, rather, he has stated that no unconscious person can cause such like injuries.
' Learned counsel lastly contends that the occurrence was not witnessed by any body; that the whole case hinges upon the circumstantial evidence which is a very weak type of evidence; that the conviction on such type of evidence cannot be maintained and that the prosecution has failed to prove its case against appellant Rajab Ali beyond any shadow of doubt and that he is entitled to acquittal.
' Mr.Mumtaz Hussain Bazmi, Advocate for Mst.Shakeela (appellant) in Criminal Appeal No,11 of 2006 (Mst.Shakeela v. The State), while adopting arguments advanced by the learned counsel for Rajab Ali (appellant), adds that in this case the most important witness of the motive of the occurrence was Mst.Bebul Mai, mother of the Saeed Ahmad (deceased) because it was the case of the prosecution that she was living in the house with the deceased and the appellant Mst.Shakeela but she was not produced before the Court; that even the Investigating Officer has stated before the Court that she sworn an affidavit whereby she exonerated Mst.Shakeela; that her evidence has been withheld by the prosecution, therefore, an adverse inference under Article 129(g) of the Qanun-e-Shahadat Order, 1984 can easily be drawn against the prosecution; that Mst.Shakeela (appellant) is not named in the F.I.R. As an accused person; that there is no incriminating evidence against her to connect her with the commission of the crime and that she is entitled to acquittal.
He has placed reliance on Akhtar Ali and others v. The State (2008 SCM R 6), Ahmed v. The State (2008 SCM R 119), Zafar Iqbal and others v. The State (2006 SCM R 463) and Wazir Muhammad and another v. The State (2005 SCM R 277).
6. On the other hand, the learned Deputy Prosecutor-General for the State, assisted by the learned counsel for the complainant, while vehemently opposing appeals of both the appellants, contends that the prosecution has proved its case against the appellants beyond any reasonable doubt; that P.W.1 Amjad Saleem had seen the appellant Rajab Ali coming out of the house of the deceased in a perplexed condition for which Rajab Hussain (appellant) could not offer any reasonable explanation; that had there been any enmity between the complainant and the appellants, then the complainant could have easily named them in the F.I.R. As accused, but in the F.I.R., the complainant just showed a suspicion; that the extra-judicial confession, made by the appellants before P.W.3 Ali Muhammad (complainant) and P.W.4 Muhammad Younis, was voluntary in nature coupled with the fact that P.W.4 Muhammad Younis had no enmity to falsely depose against the appellants; that the enmity suggested to P.W.3 Ali Muhammad (complainant) during the cross-examination came to end in the year 1989 because of compromise; that the prosecution case consists of evidence of extra-judicial confession made by the appellants before P.W.3 Ali Muhammad (complainant) and P.W.4 Muhammad Younas, evidence of wajtakkar offered by P.W.1 Amjad Saleem, medical evidence and the evidence of recovery; that the prosecution has proved its case against the appellants beyond any shadow of doubt, therefore, the respective appeals filed by both the appellants against their conviction and sentence be dismissed.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with their able assistance.
8. As per F.I.R., the occurrence in this case took place on 16-3-2004 at "Shab Guzashta", the matter was reported to the police by P.W.3 Ali Muhammad (complainant) on 17-3-2004 at about 1-30 a.m.
While the formal F.I.R. Was registered at about 2-15 a.m., and distance between the place of occurrence and the Police Station was about 9 kilometers.
9. We have noted that the murder of Saeed Ahmad (deceased) has not been witnessed by any body and only a suspicion was shown in the F.I.R. Against Rajab Ali (appellant) and the reason for the said suspicion was that Mst.Shakeela (appellant) was married to Saeed Ahmad (deceased) whereas Rajab Ali (appellant) wanted to get Mst.Shakeela (appellant), on account of which, relations between the spouses (Mst.Shakeela, appellant and Saeed Ahmad, deceased) were strained.
10. It is an un-witnessed occurrence. The prosecution case against both the appellants is based on circumstantial evidence which consists of extra-judicial confession allegedly made by the appellants before P.W.3 Ali Muhammad (complainant) and P.W.4 Muhammad Younas, evidence of "wajtakkar" offered by P.W.1 Amjad Saleem, (iii) medical evidence, and (iv) evidence of recovery of intercom set (P7), Hand-set along with Receiver (P8), Charger of intercom (P9), 56 feet wire (P10), aerial intercom (P11), Syringe (P12) taken into possession through memo Exh.PE. Since the case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just conclusion. It is settled by now that in such like cases every chain should be linked with each other and, if any chain link is missing then its benefit should be given to the accused. In this regard, guidance has been sought from the judgments of the Apex Court of the country. In The State v. Manzoor Ahmad (PLD 1966 Supreme Court 664), the Hon'ble Supreme Court of Pakistan, at page 680, has been pleased to observe as under:-- ' It is no doubt true that in a case resting wholly on circumstantial evidence the Court must, as observed by Wills in his Treatise on Circumstantial Evidence, remember that tile processes of inference and deduction are essentially involved---Frequently of a delicate and perplexing character---Liable to numerous causes of fallacy. Mere suspicion will not be sufficient to justify conviction. Before the guilt of the accused can be inferred merely from inculpatory circumstances those circumstances must be found to be incompatible with the innocence of the accused and 'incapable of information upon any other reasonable hypothesis than that of his guilt'. It is also equally well settled that the circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, i.e, a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured up by pre- conceived notions. But once the circumstances have been found to be so established they may well furnish a better basis for decision than any other kind of evidence ..........................................................................
' The above view was reiterated in another judgment reported as ASADULLAH and another v. STATE and another 1999 SCM R 1034. In CH.BARKAT ALI V. MAJOR KARAM ELAHI ZIA and another (1992 SCM R 1047), at page 1055, it was held as under:-- " Law relating to circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See Siraj v. The Crown (PLD 1956 FC 123) In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused".
' In SARFRAZ KHAN V. THE STATE (1996 SCM R 188), at page 191, it was observed as under:-- '47 it is well-settled that circumstantial evidence should be so inter-connected that it forms such continuous chain that its one end touches the dead body and other neck of the accused there by excluding all the hypothesis of his innocence...." .
' In ALTAF HUSSAIN V. FAKHAR HUSSAIN AND ANOTHER (2008 SCM R 1103), at page 1105, while discussing the impact of circumstantial evidence, the learned apex Court has been pleased to observe as under:-- " Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain".
11. First of all, we would like to discuss the extra-judicial confession allegedly made by the appellants before P.W.3 Ali Muhammad (complainant) and P.W.4 Muhammad Younas. It is a case of unique nature where extra-judicial confession was made by both the appellants before the complainant of the case i.e, P.W.3 Ali Muhammad, who got registered F.I.R. Against Rajab Ali (appellant) showing suspicion against him and asked the police to arrest him. As far as 'the other witness of the extra-judicial confession i.e, P.W.4 Muhammad Younis is concerned, he is resident of Umarkot which is at a distance of 150 kilometers from the place of occurrence. Both these P.Ws.
Have admitted that they were not Councillor or Nazim/Naib Nazim or Lumberdar or Landlord of Chak No,105-NP. Another point which has been noted by this Court regarding extra-judicial confessions allegedly made by both these appellants before P.W.3 Ali Muhammad (complainant) and P.W.4 Muhammad Younis is that it is the case of the prosecution that both these P.Ws. Left Umarkot for Nawankot to check the progress of the murder case of Saeed Ahmad (deceased), when, per chance, they met Rajah Ali (appellant) at his shop who confessed his guilt, before P.W.3 Ali Muhammad (complainant), to have killed Saeed Ahmad (deceased). In the following words:-- " In order to check the progress of this case I along with Muhammad Younis and Qadir Bux P.Ws.
Came to Nawan Kot and in the way we met Rajab Ali accused present in Court on his shop. We ascertained from Rajab Ali accused about the occurrence. Accused Rajab Ali became perplex to see us. He also intimated us that he had relations with Mst.Shakila and both of them were aggrieved from the marriage of Shakila with Saeed Ahmad. In order to get rid of Saeed Ahmad he along with Shakila made a plan. That in order to have a contact, intercom was installed in the shop of Rajab Ali and its hand set was with Mst.Shakila. Mst.Shakila and Rajab Ali (he) had been making conversation on this intercom. That Rajab Ali further told that on 15-3-2004 he received an intimation from Mst.Shakila that Saeed Ahmad had quarreled with her, and it is right time to get rid of him. On the same day Mst.Shakila again intimated him at 8-00 p.m. That she had given ativan tablets to Saeed Ahmad and his mother by mixing it in their milk and after taking the same they had become unconscious. Rajab Ali further told that after receipt of the aforesaid information he proceeded to the house of Mst.Shakila and reached there at 10-00 p.m. That he entered in the house of Mst.Shakila while scaling over the wall of her house. Rajab Ali further told that he had also taken with him a syringe. That on seeing him Mst.Shakila brought spray bottle inside the room and he filled his syringe with the material available in the spray bottle. That in order to give the material from syringe inside the mouth of Saeed Ahmad, he put his fingers between the jaws of Saeed Ahmad. Saeed Ahmad gave a bite of his teeth on his two fingers which caused injuries on his two fingers. Those injuries were shown by Rajab Ali to them at the time of narration of the story. Rajab Ali further told them that he managed administration of pesticide from syringe into the mouth of Saeed Ahmad. He further told that the Pesticide was administered in the mouth of Saeed Ahmad by him as well as by Mst.Shakila. That he and Mst.Shakila had also been strangulating the neck and testicle of Saeed Ahmad. Rajab Ali further told that at 4.00 a.m. When he and Mst.Shakila became sure that Saeed Ahmad had died, he left the house of Mst.Shakila for his shop. That Rajab Ali confessed his guilt before them and repented on it and requested that he may be forgiven for this act and he was ready to pay the compensation for this".
' Mst.Shakeela (appellant), confessed her guilt before P.W.3 Ali Muhammad (complainant) in the following manner:- "Thereafter, I along with Muhammad Younis and Qadir Bux proceeded to the house of Saeed Ahmad in Chak No,105/NP where she stated that she had relations with Rajab Ali accused and she was not happy with her marriage with Saeed Ahmad. That she had administered ativan tablets mixing it in milk and meal to Saeed Ahmad and his mother Mst.Bebul Mai. That when they became unconscious she intimated Rajab Ali on intercom and called him to her house. She further stated that when Rajab Ali came to her home, she along with Rajab Ali has been administering pesticide in the mouth of Khalil Ahmad and both of them had also been strangulating the neck and testicles of Saeed Ahmad. She confessed her guilt and repented upon it. She requested that she may be forgiven for this act".
11. The extra-judicial confession made by both the appellants before P.W.4. Muhammad Younis is almost in the same manner and there is no need to reproduce the same here. If this version of both the P.Ws. i.e, P.W.3 All Muhammad (complainant) and P.W.4 Muhammad Younis is accepted as correct then it is realy surprising that the appellants did not themselves go to these P.Ws., r as if they (P.W.3 Ali Muhamma investigating the case. We are un prompt the appellants to make Muhammad (complainant) and when P.W.3 Ali Muhammad examination that the civil and between this P.W. And Shakila's they went to them and it appears and P.W.4 Muhammad Younis) were to find out any reason which could such a confession before P.W.3 Ali .W.4 Muhammad Younas especially complainant) has admitted in his cross= criminal litigation remains pending families. It reads as under:-- " It is correct that and Mst.Taggi paternal High Court. Volunteere them in the year, 1989 thereafter Mst.Shakila w correct that Ghulam Mu registered case F.I.R. N under section 16 of Offer Ordinance VII, 1979. V aforesaid case. It is correct that Ghulam Muhammad father of Mst. Shakila had got registered case F.I.R. No, 108/80 in Police Station Zahir Peer under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 Volunteered we were dischared in the aforesaid case.
In is correct that I had filed a suit for damages of rmalicaious prosecution against Ghulam Muhammad father of Mst. Shakila in Civil Court Rajanpur which was dismissed as with withdrawn,
13. Even otherwise, both the social status which could prompt before them. The question o confession of the accused person August Supreme Court of Pakis AND OTHERS V. BASHARA wherein, at page 238, while main in a murder case who were co confession, the Apex Court of it litigation between my father Sumar randmother of Mst.Shakila went uptill compromise was effected between when the civil litigation ended and s also married with Saeed Ahmad. It is father of Mst.Shakila had got .108/80 in Police Station Zahir Peer ce of Zina (Enforcement of Hudood) we were discharged in the ct that I had filed a suit for damages against Ghulam Muhammad father of Rajanpur which was dismissed as se witnesses have denied to have any the appellants to confess their guilt placing reliance on extra-judicial, came up, for consideration before the an in the case of SAJID MUMTAZ AND OTHERS 2006 SCM R 231 acquittal of the accused persons on the basis of extra judicial Pakistan was pleased to observe as under:-- "17 This Court an have elaborately laid confession staring from its predecessor Courts (Federal Court) the law regarding extra-judicial-con- v. The Crown (PLD 1951 FC 103-107) upto the latest.
Extra-judicial-confession has always been taken with a pinch of salt. In Ahmad 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 the 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 used 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 is 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 witness 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 extrajudicial 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 confession 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-confession. 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 witnesses with the maker of confession and what, above all, is the position or authority held by the witnesses".(emphasis supplied)
' Therefore, in the circumstances of the case, no reliance can be placed on the extra-judicial confession allegedly made by the appellants before P.W.3 Ali Muhammad (complainant) and P.W.4 Muhammad Younas which even otherwise is not corroborated by any other independent piece of evidence.
14. Now we would like to take the evidence offered by P.W.1 Amjad Saleem, who is the witness of "wajtakkar". Statement of this witness cannot be relied upon for the reasons, firstly, because he is resident of Umar Kot which place, as admitted by him in his cross-examination, was at a distance of 150 kilometers from Chak No,105-NP and the reason given by him for coming to Chak No,105-NP was that he got information that Ghulam Muhammad had suffered a heart attack in Chak No,105- NP and when he reached at Chak No,105-NP, he was told that the said Ghulam Muhammad has been taken to Bahawalpur, then he visited the house of Saeed Ahmad deceased and slept in the house of his " Phuphi" and on the next morning i.e, on 17-3-2004 at 4-00 a.m. When he, alongwith one Nazir Ahmad, was going towards the house of said Ghulam Muhammad to know whether he has come back from Bahawalpur, he saw Rajab (appellant) coming out from the house of Saeed Ahmad (deceased) in the perplexed condition but in cross-examination he has stated that he did not go to the house of the said Ghulam Muhammad, after seeing Rajab Ali (appellant), to ascertain whether Ghulam Muhammad had returned home from Bahawalpur.
' Secondly, it is unusual and against the common sense that in the month of March at about 4.00 a.m. He will go to the house of Ghulam Muhammad just to ascertain whether he has come back from Bahawalpur. Thirdly, he has stated (in the cross-examination) that he narrated this incident to the complainant, who is his real father, prior to the registration of the F.I.R., but there is no mention of any such incident in the F.I.R.
15. As far as recovery of articles i.e, intercom set (P7), Hand-set along with Receiver (P8), Charger of intercom (P9), 56 feet wire (P10), aerial intercom (P11), Syringe (P12), which were taken into possession through memo Exh.PE at the instance of the appellants are concerned, it does not connect the appellants with the commission of the crime, even if it is accepted as correct, because normally the intercoms are used for a closer range and despite repeated queries made by us to the learned counsel for the complainant, he has not been able to point out from the record qua the distance between the two points i.e, shop of Rajab Ali (appellant) and house of Mst. Shakeela (appellant).
16. It is settled law that the medical evidence may confirm the ocular evidence with regard to seat of injury, nature of injury, kind of weapon used in occurrence but it cannot connect the accused with the commission of the crime, therefore, existence of injuries on the person of Saeed Ahmad (deceased), as noted by P.W.S. Dr. Muhammad Ibrahim, who conducted postmortem examination on his dead body, is of no avail to the prosecution. In this regard reference is invited to the case GHULAM MUSTAFA and another v. STATE 2009 SCM R 916, wherein, at page 527, the Hon'ble Supreme Court of Pakistan, has been pleased to observe as under:-- ' However, it is settled law that the medical evidence can only establish the type of weapon used, the seat of injury and the time elapsed between receipt of injury and the medical examination. It can never be a primary source of evidence for the crime itself but is only corroborative of the same "
17. As far as marks of injuries on the hands of Rajab Ali (appellant) are concerned, it does not help the prosecution case because P.W.13 Dr.Muhammad Nadeem Zia, who medically examined the appellant, did not mention duration of those injuries and even he did not mention the thing with which those injuries were caused.
18. Another Very important aspect of the case is that P.W.3 Ali Muhammad (complainant) had admitted that Mst.Bebul Mai, who is mother of Saeed Ahmad (deceased), was also living in the house where the occurrence took place, but surprisingly, she was not produced although she was the most important and natural witness of the motive part of the prosecution case, therefore, an adverse inference, in view of Article 129(g) of the Qanun-e-Shahadat Order, 1984, is drawn against the prosecution. In this context, reference is given to the case of MUHAMMAD RAFIQUE and others v.
THE STATE and others (2010 SCM R 385), wherein, at page 400, the learned apex Court of the country, has been pleased to observe as under:-- ....It is well-settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order, 1984 can fairly be drawn that if P.W. Amir Ali would have been examined, his evidence would have been unfavourable to the prosecution....".
19. After having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, the conviction and sentence awarded to the appellants cannot be maintained.
Resultantly, Criminal Appeal No,60-J of 2006 (Rajab Ali v. The State) and Criminal Appeal No,11 of 2006 (Mst. Shakeela v. The State) are allowed, the impugned judgment is set aside and the appellants are acquitted from the charge of murder of Saeed Ahmad (deceased). Rajab Ali (appellant) is behind the bars and shall be released forthwith if not required in any other case. Mst.
Shakeela (appellant) is on bail. She shall be discharged of her bail/surety bonds.
' Murder Reference is answered in the NEGATIVE and sentence of death isNOT CONFIRMED.