' SADAQAT ALI KHAN , J. --- This single judgment shiall dispose of Criminal Appeal No, 108 of 2013 filed by Mst. Aasia Bibi alias Bano and Criminal Appeal No, 114 of 2014 filed by Muhammad, appellants (against their convictions) as both these me have arisen out of same judgment dated 22.02.2013 passed by learned Additional Sessions Judge, Rahim Yar Khan according to which the appellants were convicted and sentenced as under:---- "(i) Mst. Asia alias Bano was convicted under Sections 302(b)/34, P. P.C. And sentenced to life imprisonment for committing the Qatl-e-Amd of Ghulam Hussain deceased alongwith compensation Rs, 1,00,000/- payable to the legal heirs of the deceased and in default thereof further undergo two years' S.I.
(ii) Muhammad Arshad was convicted under Sections 302(b)/34, P.P.C. And sentenced to life imprisonment for committing the Qatl-e-Amd of Ghulam Hussain deceased alongwith compensation Rs, 1,00,000/- payable to the legal heirs of the deceased and in default thereof further undergo two years' S.I.
' Benefit of Section 382-B, Cr.P.C. Was also extended to the present appellants by the learned Trial Court in case F.I.R. No, 924, dated 28.12.2011 under Sections 302/34, P.P.C. Registered at Police Station Zahir Pir, Tehsil Khanpur, District Rahimyar Khan.
2. The facts of the case has been stated by Talib Hussain complainant PW-3 in his statement before the Trial Court. The same statement is hereby reproduced for narration of the facts:--- "Ghulam Hussain deceased was my real brother who used to reside at Ghous Pur. My brother Ghulam Hussain deceased was married with Mst. Asia alias Bano accused present in Court about 12/13 years ago. On 27.12.2011, at about 5/6 p.m. Deceased Ghulam Hussain came to my house, in too much worried position. On my query about his worry, he told me that his wife used to quarrel with him, mostly. I went to his house alongwith him. I advised Mst. Asia Bano present in Court for not quarreling with my brother Ghulam Hussain deceased and then I came back to my house.
' On 28.12.2011 at about 5/6 a.m. Mst. Asia accused present in Court informed me telephonically about the death of my brother Ghulam Hussain deceased. I informed my elder brother Abdul Khaliq and Abdul Malik, in this respect, telephonically. Then I informed about the death of my brother to Javed and Abdul Sattar. I alongwith Javed and Abdul Sattar PW, then reached at the house of Ghulam Hussain deceased. We observed the marks of violence on the neck of my brother deceased Ghulam Hussain and he was in dead position. Due to marks of violence/wounds, I was of the view that my brother was murdered and I had a suspicion to the effect that my brother Ghulam Hussain was done to death by accused Mst. Asia Bano alongwith her unknown companions. I tried to contact with the police telephonically but could not succeed.
Then I waited there. Meanwhile the respectables of the locality also gathered there. Till 12:00 Noon/1:00 p.m. Whole of our brother gathered there and I told the that due to marks of violence/wound on the neck of the dead-body of deceased my brother was done to death and they might help me. On the advise of respectable of the locality and due to our failure to contact the police, we shifted the dead-body of deceased to RHC Zahir Peer, on a Dala. Then police reached at the hospital at about 2:30 p.m. I submitted application Exh.PC to the police, which was got recorded by me on my dictation and as a token of its correctness, I signed the same. Then I made the supplementary statement to the 1.0. On the same day while mentioning the names of accused Arshad and Mithu in the commission of Qatl-e-Amd of my brother Ghulam Hussain. Then on the same day and at the same time, I submitted another application to the 1.0. Which was duly signed by me and the same is Exh.PC/1 because Arshad accused had illicit relations with Mst. Asia accused and he was forbidden to visit the house of my brother, by my brother and in-between both of the above-said accused, accused Mithu was performing the role of messenger. Ghulam Hussain deceased has also forbidden accused Mithu to visit his house, on 27.12.2011. Due to the above-said grudge, accused Arshad, Mithu and Mst. Asia have committed Qatl-e-Amd of my brother Ghulam Hussain deceased.
'On the same day, 1.0. Had stated to me to accompany him, while going to the house of deceased for the purpose of arrest of accused Asia. I accompanied the police to the scene of occurrence i.e, house of deceased Ghulam Hussain where Mst. Asia was not found present. Then police has inspected the scene of occurrence.
'On 03.01.2012 we were informed that Mst. Asia Bano was standing at the road side then I informed the police about her presence. Police arrested accused Mst. Asia Bano in presence of me and Faqeer Hussain PW. Then on the interrogation of police, she had made the discourse for the recovery of weapon of offence i.e, IRON RAITI and on in compliance of her disclosure, she led police party, in our presence to her house i.e, house of deceased Ghulam Hussain and then got recovered Iron RAITI P-4 ( present in Court) from the silver trunk/box lying in the residential room, adjacent to the room where the dead-body of deceased was lying. In respect of recovery of RAITI police proceeding were done by the 1.0. To the extent of recovery, my statemeht was recorded under Section 161, Cr P C. "
3. After registration of the case, investigation started and or completion of the investigation report under Section 173, Cr.P.C. Was submitted in the Trial Court.
4. Learned Trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 12.09.2012 against present appellants Mst. Asia Bibi alias Bano and Muhammad Arshad under Sections 302/34, P.P.C. To which they pleaded not guilty and rosecution evidence was summoned.
5. Prosecution produced Abdul Sattar PW-1, Muhammad Amin PW-2, Talib Hussain (complainant)
PW-3, Faqeer Hussain PW-4, Mukhtar Ahmad, ASI PW-5, Peeran Ditta, Constable PW-6, Dr. Tariq Farooq, Medical Officer PW7, Muhammad Azhar PW-8, Riaz Ahmad, Constable PW-9, Jameel Ahmad, Patwari Halqa Ghous Pur PW-10, Mukhtar Ahmed, ASI PW-11, Ghulam Akbar Khan, PW-12 whereas PWs Masood Ibrahim, Ghulam Qadir, ASI, Abdul Khaliq and Muhammad Javed were given up by the prosecution being unnecessary and after producing documentary evidence i.e, recovery memo. Of last worn clothes of the deceased Ex.PA, recovery memo. Of Iron Jamoor Ex.PB, rough site plan Ex.PB/1, written application to SHO Zahir Peer Ex.PC, F.I.R. Ex.PC/2, recovery memo. Of iron Raiti Ex.PD, rough site plan Ex.PD/1, scaled site plan Ex.PE, post-mortem report Ex.PF, inquest report Ex.PF/4, rough site plan Ex.PG, report of Histopathalogist Ex.PH, report of Chemical Examiner Ex.P1 and closed the prosecution evidence.
6. The medical evidence was furnished by Doctor Dr. Tariq Farooq, Medical Officer, RHC Zahir Peer PW-7 who stated that on 28.12.2011 at about 04:00 p.m., he conducted post-mortem examination on the dead-body of Ghulam Hussain deceased and observed as under:- "EXTERNAL APPEARANCE:
1. There was no mark of ligature present around the neck.
2. It was dead-body of a middle aged male with average physique wearing Qameez and Chaddar lying supine on the mortuary table. Eyes were closed. Mouth was also closed and pale face. Rigor mortis was present. Post-mortem staining was present ondependant area of body. No mark of ligature was present around the neck.
Injuries
1. There was multiple small bruises about 13 in number were present at anterior and left side of neck, 6 cm from chin and left jaw. Sizes of bruises were from 0.5 cm x 0.5 cm. A bruise of 2 cm x 0.5 cm was also present at thyroid cartilage. There was no petichal haemorrhage at face. Advised-X- rays.
2. A lacerated wound of 2.5 cm x 0.5 cm x skin deep at left side of neck about 7 cm from left angle of mandible. Advised X-rays.
'CRANIUM AND SPINAL CORD: 'Scalp, skate, Vertebras, Membranes, Brain and spinal cord, all were normal/healthy.
'THORAX: ' Larynx and tracheas: Hyoid bone sent to Histopathologist Bacteriologist Lahore and were found normal/healthy. All other organs under this head were found normal/healthy.
'ABDOMEN: 'All organs under this head were found normal/healthy. Stomach and its contents, Small intestines and their contents, Large intestines and their contents, liver, spleen, Kidneys, were also sent to Chemical Examiner Lahore. Bladder was containing 100 ml of urine.
'MUSCLES, BONES AND JOINTS: 'Injury; already described. Disease or deformity-Nil. Fracture: ' Result will be given after receipt of report of Radiologist Sh. Zayyad Hospital, Rahimyar khan.
' Dislocations: Nil.
'Remarks by Medical Officer: 'After conducting the Autopsy, the final result regarding cause of death was reserved till the receipt of report Of Chemical Examiner and Histopathologist/Bacteriologist Lahore."
7. On the other hand, statements of present appellants were recorded under Section 342, Cr.P.C.
Who refuted the allegations so levelled against them but have not opted to appear as a witness under Section 340(2), Cr.P.C. And also did not produce the defence evidence and in reply to question "why this case against you and why the PWs deposed against you?" the present appellant Mst. Asia alias Bano replied as under:--- "My relations with my husband Ghulam Hussain were strained due to his negotiation of magiage with Shakila through Farhad. I left the `hose of my husband about one month prior to the occurrence. The deceased was died in mysterious circumstances and the complainant and the PWs who are close relatives of deceased and inimical to me, design a programme for possession over the property of deceased and due to this reason mala fidely involved me in this so called murder. I am innocent and have no concern with the alleged occurrence."
'Likewise, appellant Muhammad Arshad in reply to question why this case against you and why the PWs deposed against you? Replied as under:- "/ was tenant of Ghulam Hussain deceased and had been cultivating his land at some share. I and Ghulam Hussain deceased had also purchased a tractor on equal share and I was also driver on that tractor. After the death of Ghulam Hussain deceased, his brother Talib Hussain complainant of this case became greedy who not only wanted to grab the land of Ghulam Hussain deceased but he also wanted to snatch the above-said tractor from me. When I refused to leave the land of Ghulam Hussain and tractor, he first of all moved an application against me to the police regarding the above-said dispute, when he failed in his aim he mala fidely implicated me in this case. PWs are close relatives of the complainant, therefore, they have deposed falsely against me."
8. After conclusion of the trial, learned Trial Court convicted the present appellants Mst. Asia alias Bano and Muhammad Arshad with above-stated sentences. Hence this appeal.
9. Learned counsel for the appellants contended that:-
(i) ' the judgment of the Trial Court dated 22.02.2013 is against law and facts on the file and is liable to be set aside;
(ii) it is submitted that the story of the prosecution is improbable and not believable;
(iii) it is further submitted that prosecution has failed to prove its case against the appellants beyond shadow of doubt and the learned Trial Court wrongly convicted present appellants in surmises and conjectures;
(iv) further submitted that motive is not attributed to the present appellants and nothing was recovered from or on pointation of the appellants and lastly submitted for the acceptance of the appeal of the present appellants;
10. On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:--- 'prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present.
11. I have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as mentioned in the F.I.R. Ex.PC/2 recorded on the written application Ex.PC of Talib Hussain complainant PW-3 has already been given in paragraph No, 2 of this judgment, therefore, there is no need to repeat the same.
13. According to the F.I.R. Ex.PC/2 occurrence took place on 28.12.2011 at 5/6 a.m. Whereas F.I.R. Was registered on 28.12.2011 at 03:00 p.m. With delay of about nine hours. The distance between place of occurrence (house of Ghulam Hussain deceased situated in village Ghouns Pur) and Police Station Zahir Peer is eight Kms well mentioned in column No, 4 of the F.I.R. Stated above.
14. Talib Hussain PW-3 is real brother of Ghulam Hussain deceased who stated that on 28.12.2011 at about 5/6 a.m. He was informed by Mst. Aasia alias Bano present appellant telephonically regarding the death of his brother Ghulam Hussain deceased and he reached at the place of occurrence (house of deceased Ghulam Hussain) alongwith Abdul Sattar paternal cousin PW-1 and found the dead-body of Ghulam Hussain deceased lying there. No body claimed to be the eye-witness of the occurrence. The case of the prosecution is based on circumstantial evidence which is categorized here under:- 'Evidence of motive furnished by Talib Hussain complainant PW-3 and Abdul Sattar PW-1.
(ii) Evidence of recovery of rope (Ras) on the pointation of Muhammad Arshad furnished by Muhammad Ameen PW-2.
(iii) Evidence of recovery of Raiti' on the pointation of Mst. Aasia alias Bano present appellant furnished by Talib Hussain PW-3.
(iv) Evidence of extra judicial confession of Muhammad Arshad present appellant furnished by Muhammad Azhar PW-8.
(v) Medical evidence furnished by Dr. Tariq Farooq PW-7.
15. Now I take up above-stated pieces of evidence one by one.
16. Evidence of motive furnished by Talib Hussain complainant PW-3 and Abdul Sattar PW-1.
' Talib Hussain complainant real brother of Ghulam Hussain deceased PW-3 stated in his written application Ex.PC upon which F.I.R. Ex.PC/2 was registered regarding motive as under:-
17. In view of the above, Talib Hussain complainant PW-3 stated in his application Ex.PC that Ghulam Hussain deceased told him on 27.12.2011 at 5/6 p.m. In his house that Mst. Aasia present appellant used to quarrel with him oftenly and complainant Talib Hussain PW-3 after founding dead-body of his brother Ghulam Hussain deceased had shown suspicion upon Mst. Aasia alias Bano present appellant for committing murder of Ghulam Hussain deceased alongwith other unknown accused. Complainant Talib Hussain PW-3 did not state in this application Ex.PC that Ghulam Hussain deceased had told him that Mst. Aasia present appellant had illicit relations with Muhammad Arshad present appellant. Muhammad Arshad present appellant is not nominated in the F.I.R. Ex.PC/2 registered on the basis of Ex.PC application moved by complainant Talib Hussain PW-3 stated above. Complainant Talib Hussain PW-3 while appearing before the Trial Court as PW- 3 introduced another application Ex.PC/1 without denying his earlier application Ex.PC stated above.
He stated in his second application Ex.PC/1 that motive of the occurrence was illicit relations of Mst.
Aasia alias Bano present appellant with Muhammad Arshad present appellant and introduced Muhammad Arshad present appellant as an accused alongwith one Mithu.
18. I have myself perused the second application of Talib Hussain complainant PW-3 Ex.PC/1 and found no endorsement of the police on it and further nowhere mention in the application that when this was received to the police during the investigation. This application does not bear the stamp of Police Station. The contents of the application is hereby reproduced for reference. {{URDU TEXT}}
19. In view of the above, Talib Hussain complainant PW-3 has not stated that from whom he got knowledge that Mst. Aasia present appellant had illicit relations with Muhammad Arshad present appellant and Ghulam Hussain deceased had forbidden Mithu accused from coming to his house.
20. Abdul Sattar PW-1 is paternal cousin of Talib Hussain complainant PW-3 who stated that one day prior to the occurrence Ghulam Hussain deceased had told him about the illicit relations of Muhammad Arshad present appellant with Mst. Aasia alias Bano.
21. It is very strange that this Abdul Sattar PW-1 came with Talib Hussain complainant PW-3 in the house of Ghulam Hussain deceased on 28.12.2011 after getting knowledge of the death of Ghulam Hussain deceased prior to the registration of the F.I.R. Ex.PC/2 and in his presence application Ex.PC was moved by Talib Hussain complainant PW-3 for registration of the F.I.R. But he did not tell the complainant Talib Hussain PW-3 that motive of the occurrence was illicit relations of Mst. Aasia alias Bano present appellant with Muhammad Arshad appellant told to him by Ghulam Hussain deceased one day prior to the occurrence.
22. In view of the above, above-stated evidence of motive is not believable and same is hereby disbelieved.
23. Evidence of recovery of rope (Rasi) on the pointation of Muhammad Arshad furnished by Muhammad Ameen PW-2.
' Ghulam Akbar Khan, SI/1.0. Of this case PW-12 stated that on 9.1.2012 he arrested Muhammad Arshad present appellant and on 13.1.2012 during interrogation, he disclosed and led to the recovery of rope (Rasi) Ex.P3 from an iron-box lying in his residential house which he took into possession through recovery memo. Ex.PB attested by Muhammad Ameen PW-2. He further stated in cross- examination that the said rope P-3 was not blood-stained. Muhammad Ameen 'PW-2 stated that on 13.1.2012, he joined the investigation of the case with Ghulam Akbar Khan, SI/1.0. PW-13 and during interrogation Muhammad Arshad present appellant disclosed and led to the recovery of rope (Rasi) Ex.P3 from a silver box. This witness Muhammad Ameen PW-2 is paternal cousin of Talib Hussain complainant PW-3. He did not state that above-stated sliver box was lying in a house of Muhammad Arshad appellant as stated by Ghulam Akbar Khan, SI/1.0 of this case PW-12.
24. Muhammad Ameen PW-2 further stated in cross-examination that Akbar Khan Thanedar had called him for becoming the witness of recovery. One day prior to the recovery, Talib Hussain complainant visited the Police Station and was asked by Thanedar to produce the witness to become the witnesses of the recovery. He further stated in cross-examination that Talib Hussain PW-3 told him that Thanedar was calling the persons at the Police Station to become the recovery witnesses. He further stated that the I.O. Had obtained their signatures upon one recovery memo.
At Police Station. The I.O. Obtained his signatures on a paper. The I.O. Obtained his signatures upon one paper at the place of recovery whereas on two papers at the Police Station.
25. The rope (Rasi) Ex.P3 is ordinary rope which was not blood-stained and had not been sealed into a parcel at the time of recovery.
26. In view of the above discussion, the recovery of rope (Rasi) Ex.P3 is doubtful. Thus the evidence of recovery of rope (Rasi) Ex.P3 is hereby disbelieved.
27. Evidence of recovery of 'Raiti' on the pointation of Mst. Aasia alias Bano present appellant furnished by Talib Hussain PW-3.
' Ghulam Akbar Khan, SI/1.0. PW-12 stated that on 3.1.2012, he arrested Mst. Aasia alias Bano present appellant and on the same day during interrogation, she made disclosure and led to the recovery of 'Raiti' P-4 from her house lying in a silver box, which he took into possession through recovery memo. Ex.PD attested by Talib Hussain PW-3. Talib Hussain PW-3 stated that on 3.1.2012, Mst. Aasia alias Bano present appellant during interrogation disclosed and led to the recovery of 'Iron Raiti'
Ex.P4 from her house lying in a silver box. This witness has not stated that recovery memo. Of "Iron Raiti" Ex.P4 was attested by him.
28. I have perused the recovery memo. Ex.PD according to which the same was not blood-stained and was allegedly recovered from the house of occurrence.
29. It is an ordinary 'Iron Raiti' available in every house. Possibility cannot be ruled out that the same has been planted by the complainant Talib Hussain PW-3 in connivance with Ghulam Akbar Khan, SI/1.0. Of this case PW-12 to strengthen the prosecution case.
30. In view of the above, the evidence of recovery of 'Iron Raiti' is hereby disbelieved.
31. Evidence of extra judicial confession of Muhammad Arshad present appellant furnished by Muhammad Azhar PW-8.
' Muhammad Azhar PW-8 stated that on 30.12.2011, he alongwith Maqsood was sitting in his Baithak at about 4/5 p.m., where Muhammad Arshad present appellant alongwith Mithu came their and made confession regarding the occurrence stating therein that he had committed the murder of Ghulam Hussain deceased and motive of the occurrence was his illicit relations with Mst. Aasia present appellant. He further stated that on the next day, he informed the police about the above-said fact. He further stated in cross-examination that he is not related to the complainant Talib Hussain PW-3 and the deceased Ghulam Hussain. He further stated in cross-examination that he had no friendship with Muhammad Arshad appellant and he runs business of electric and his shop is situated at Chachaharan road and he did not took part in election. Further, his brother had taken part in election twicely. He further stated that he is not office bearer of any social or political office. He further stated that accused Arshad would be aged about 20/22 years and he remained with them for about 30 minutes and during the presence of the accused, no other person had reached there and the door of his Baithak was open at the time of coming of the accused person. He further stated that he did not attempt to catch hold the accused person.
32. In view of the above, admittedly Muhammad Arshad appellant was not arrested by Muhammad Azhar PW-8 and his companion Maqsood at the time of making of alleged confession rather Muhammad Arshad appellant was arrested on 9.1.2012. Further Azhar PW-8 himself stated in his examination-in-chief that he recorded his statement regarding extra- judicial confession of Muhammad Arshad appellant before the police on the next day, thus, the statement of Muhammad Azhar PW-8 was recorded with unexplained delay of one day and he did not explain above-stated delay of recording of his statement before the police regarding extra-judicial confession of Muhamm ad Arshad appellant.
33. It is settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. Is recorded with delay without affording any plausible explanation.
Reliance is placed on case titled Muhammad Khan v. Maula Bakhsh and another (1998 SCM R 570) in which Hon'ble Su preme Court of Pakistan has observed at page 575 as under:- "It is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, CrP.C. Is recorded with delay without offering any plausible explanation."
34. This witness Muhammad Azhar PW-8 is neither Lumberdar nor councilor of the village and likewise is not the head of the fami ly of the complainant party and is also not the office bearer of any social or political office. Admi ttedly, he is not the influential person. Before acting upon a retracted extra-judicial confession, that the Court must inquire into all material points and surrounding circumstances to satisfy itself fully that the confession cannot be 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 confession. Status of the person before whom extra- judicial confession is made must be kept in view. Extra-judicial confession is always a weak type of evidence, which can easily be procured whenever direct evidence is not available. 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. 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.
35. In the instant case, the position of Muhammad Azhar PW-8 before whom extra-judicial confession is made is such that he is neither close confident of Muhammad Arshad appellant nor in any manner said to be sharing any habit or association with Muhammad Arshad appellant. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration.
36. Another most important and natural purpose of making his extra-judicial confession is to seek help from a third person. Help is sought firstly when a person is sufficiently trapped and secondly from one who is authoritative, socially or officially. The witness in hand before whom the confession is said to have been made is of no social or official status and is only running a shop of electric.
37. The extra-judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the I.O. Fails to properly investigate the case, he resorts to padding confessions like extra- judicial confessions. Su ch confessions by now have become the signs of incompetent investigation.
38. In view of the above, the extra-judicial confessions is not believable and same is hereby discarded. Reliance is placed on case Sa jid Mumtaz and others v. Basharat and others (2006 SCM R 231).
39. Medical evidence furnished by Dr. Tariq Farooq PW-7.
' Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime". Reliance is placed on case tilted Altaf Hussain and others v. Fakhar Hussain and others (PLJ 2008 SC 687) in which Hon'ble Su preme Court of Pakistan has observed at page 689 as under:- "It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime."
40. It is admitted principle of law that one tainted piece of evidence could not corroborate another piece of tainted evidence because if this is allowed to be done then very necessity of corroboration would be frustrated. Reliance is placed on case titled "Mursal Kazmi alias Qamar Sh ah and another v. The State (2009 SCM R 1410) in which Hon'ble Su preme Court of Pakistan has observed at page 1417 as under:- "it is well-settled that one tainted piece of evidence could not corroborate another piece of tainted evidence because if this allowed to be done then very necessity of corroboration would be frustrated,"
41. For the foregoing reasons, the case of the prosecution is not free from doubt, and it is admitted principle of law that benefit of doubt must be given to the accused not as a matter of grace but as a matter of right. Reliance is placed on case titled Muhammad Akram v. The State (2009 SCM R 230) in which Hon'ble Su preme Court of Pakistan has observed at page 236 as under:- "the nutshell of the whole discussion is that the prosecution case is not free from doubt. 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."
42. Talib Hussain complainant PW-3 stated in his examination-in-chief that when he went to the house of the deceased Ghulam Hussain with police Mst. Aasia alias Bano appellant was not present there. Mst. Aasia alias Bano appellant herself stated in her statement recorded under Section 342, Cr.P.C. That her relations with her husband Ghulam Hussain deceased were strained due to his negotiation of marriage with Sh akila through Farhad and she left the house of her husband about one month prior to the occurrence. The relevant answer of question No, 10 is hereby reproduced:- "M y relations with my husband Ghulam Hussain were strained due to his negotiation of marriage with Shakila through Farhad. I left the house of my husband about one month prior to the occurrence. The deceased was died in mysterious circumstances and the complainant and the PWs who are close relatives of deceased and inimical to me, design a programme for possession over the property of deceased and due to this reason mala fidely involved me in this so-called murder. I am innocent and have no concern with the alleged occurrence."
43. The basic principle of criminal liability is that it is the prosecution to prove its case against the accused beyond shadow of doubt and this burden remains throughout and does not shift to the accused. The strangulation of death of Ghulam Hussain deceased husband of Mst. Aasia alias Bano appellant in his house by itself would not be sufficient to establish guilt of Aasia alias Bano appellant in absence of any other evidence of the prosecution connecting her to the crime. The prosecution has also not been able to establish that Mst. Aasia appellant was present in the house at the time when Ghulam Hussain deceased was murdered as Talib Hussain complainant PW-3 himself stated in his examination-in-chief that when he reached in the house of Ghulam Hussain deceased Mst. Aasia alias Bano appellant was not present there.
44. It is settled law that in the absence of any positive prosecution evidence, the appellant cannot be convicted on presumption that since the murder of husband of appellant Mst. Aasia took place in his house it can only be her and no other who had murdered the deceased.
Reliance is placed on case titled "Abdul Hameed v. The State" (2011 SCM R 941) in which Hon'ble Su preme Court of Pakistan has observed at pages 944 as under:- "In the absence of any positive prosecution evidence, the appellant cannot be convicted on presumption that since the murder of his wife took place in his house it can only be him and no other who had murdered the deceased. The conviction and sentence of the appellant on this single circumstance cannot be sustained in law. The appeal is, therefore, allowed. The conviction and sentence of the appellant are set aside and he is acquitted of the charge against him. He shall be set at liberty if not required in any other case."
45. For the foregoing reasons, the Criminal Appeal No, 108 of 2013 filed by Mst. Aasia Bibi alias Bano and Criminal Appeal No, 114 of 2013 filed by Muhammad Arshad present appellant are hereby accepted and their convictions and sentences awarded by the learned Trial Court vide judgment dated 22.2.2013 are set aside and the appellants are ordered to be acquitted of the charge in case F.I.R. No, 924, dated 28.12.2011 under Sections 302/34, P.P.C. Registered at Police Station Zahir Pir, District Rahimyar Khan by giving them the benefit of doubt and are directed to be released forthwith if not required in any other case. Criminal .