Ch. Abdul Aziz, J.--This judgment shall dispose of Criminal Appeal No, 84-J of 2013 filed by Muhammad Arif (against conviction) and reference sent by trial Court under Section 374 of Criminal Procedure Code, 1898 which is numbered as Murder Reference No, 21 of 2013, for confirmation or otherwise of sentence of death awarded to Muhammad Arif. Both these matters are originating from the judgment dated 28.01.2013 passed by the learned Additional Sessions Judge, Muzaffargarh, arising out of case FIR No, 182 dated 07.04.2010 registered under Sections 302 & 376, PPC at Police Station Saddar Muzaffargarh. Learned trial Court through the said judgment while acquitting co-accused namely Irshad Hussain convicted and sentenced the appellant as under:-- U/S. 302(b), PPCDeath sentence and, to pay Rs, 100,000/- as compensation to the legal heirs of deceased and in default whereof the appellant was ordered to undergo six months SI.
U/S. 376(i), PPC25-years RI and to pay Rs, 20,000/- as fine.
U/S. 365-B, PPCImprisonment for life as well as to pay Rs, 20,000/ as fine. The sentences inflicted under Section 376(i) & 365-B, PPC were ordered to'run concurrently and benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant.
2. Briefly stated the case of the prosecution as unfolded by complainant Faiz Ahmad (PW.9) in FIR (Exh.PJ) is that he is a labourer by profession. He has two sons and two daughters. On 07.04.2010 at 10:00 a.m. Aleena Bibi aged 11/2 years (daughter of the complainant) went outside the house and did not return. He along with his relatives namely Khuda Bakhsh and Allah Wassaya made search of the girl and got announced through loudspeakers of the mosques. When they reached the vacant plot of Muhammad Bukhsh Manjotha at 2 1/2 p.m. where there were many ditches, they found the dead body of the Aleena Bibi in naked condition whose frontal part of the body from face to legs was in burnt condition and blood was oozing from her vagina. It was alleged that some unknown person committed murder of Mst. Aleena Bibi through burning after subjecting her sexual violence.
3. Javid Iqbal SI (PW.12) along with other police officials on 7.4.2010 after the receipt of information about the occurrence visited the spot and recorded the statement of Faiz Ahmad complainant (Exh.PJ) and sent the same to the Police Station for registration of FIR through Abdul Rashid 920-C.
Then he inspected the dead body of Aleena Bibi, prepared injury statement (Exh.PA) and inquest report (Exh.PC) and sent the dead body to DHQ Hospital, Muzaffargarh for post-mortem examination. On 08.04.2010, he recorded the statements of the witnesses wherein Muhammad Arif (appellant) was nominated. He arrested Muhammad Arif (appellant) on 18.04.2010 and in pursuance of the disclosure he (Muhammad Arif) got recovered clothes of Aleena Bibi i,e, shirt (P.1), Shalwar (P.2) which were taken into possession through recovery memo. (Exh.PM). He also got conducted the proceedings of DNA of accused Muhammad Arif on 20.04.2010. He also got medically examined Muhammad Arif (appellant) for potency test. On 02.05.2010, he recorded the supplementary statements of Faiz Ahmad complainant, Khuda Bakhsh and Zuliqar PWs, whereby they nominated accused Irshad Hussain and added Section 109, PPC. He during investigation found Muhammad Arif (appellant) involved in the occurrence and submitted file to SHO for the preparation of challan against him.
Muhammad Ashfaq Ahmad SI (PW.14) was also handed over the file of the case for removing the objections. He added offence under Section 201, PPC and on 22.06.2010 recorded the statement of I lalqa Patwari under Section 161, PPC.
Investigation of this case was also conducted by Mohammad Waris. SI (PW.13), who during the investigation deleted offence under Section 109, PPC against Irshad Hussain (acquitted co- accused) however, offence under Section 201, PPC remained in field. Ile on 31.08.2010 arrested Irshad Hussain when his pre-arrest bail application was dismissed. He, after finding him guilty for the offence got prepared challan on 04.09.2010 against Irshad (acquitted co-accused) as well.
4. The prosecution, in order to prove its case against the appellants produced fourteen PWs which include Zulfiqar Ahmad (PW.11) who produced the evidence of last seen, Faiz Ahmad complainant (PW.9) and Khuda Bakhsh (PW.10), who narrated about the extra-judicial confession made by the appellant, Dr.Shabana Tabassum (PW.3) who furnished the medical evidence and Javid lqbal SI (PW.12), Muhammad Waris Shah (PW.13), Muhammad Ashfaq Ahmad SI (PW.14) who conducted the investigation of this case. The remaining prosecution witnesses, more or less, are formal in nature.
5. The medical evidence in this case was provided by Dr. Shabana Tabassum (PW.3) who on 07.04.2010 conducted the postmortem examination of the dead body of Aleena Bibi daughter of Faiz Ahmad. The observation and the opinion of the doctor are as under:-- "I examined the naked dead body of Mst. Aleena Bibi of aged about one and half year having cloth black and shocking tie and die wrapped around, eyes were closed, froth were coming from" both nostrils, mouth was open, rigor mortus was developing, black burnt marks present from head, face, whole abdomen, front of legs, both arms, hands closed. Blister formation seen on left side of chest and backside.
PERINEAL EXAMINATION Labia Majora was swollen, abraded hymen showed fresh tears, fresh blood was coming through vagina, secretions were coming through vagina, two swabs were taken for detection of semen, three for DNA test. Vagina admitted one finger easily. Hymen was oval. First degree tear was present. Labia minora was lacerated all around. Secretions are coming through vagina were blood sained.
NECK EXAMINATON Irregular and interrupted abrasion were present 10 cm. x 1 cm. in length in front of neck starting from right side of neck to the left side 04 cm., in length skin deep ligature mark present on right side of neck. Multiple small abrasions in area of 2 x 1.5 cm of left side of chin was present.
CRANIUM AND SPINAL CARD Brain matter was taken. Vessels were congested. Sent to Chemical Examiner (Histopathologist).
THORAX, HYOID BONE EXAMINATION The greater cornu with the body is too Taxed and moved freely and sent to Histopathologist to rule out ante-mortem injury. Right lung was deeply congested, cyanosed, froth was coming through lung tissue on pressing, taken and sent to histopathologist.
PARICARDIUM AND HEART Congested chambers right are full and left are partial, taken and sent to histopathologist. Blood vessels were congested and cyanosed.
ABDOMEN Mouth was semi open. Stomach contain semi digested semi solid food material. Small intestine and their contents were swollen containing gasses and food material.
The casue of death was reserved till the receipt of histopathologist report. I was of the opinion that penetration (sexual act) was committed.
Time between death and post-mortem examination was six to twelve hours.
After conducting the post-mortem examination of dead body of Mst. Aleena Bibi, I handed over the carbon copy of postmortem report of Aleena Bibi Exh.PB a piece of cloth in which the dead body was wrapped, four sealed boxes containing specimen, lungs and heart, hyoid bone, brain, specimen for preservatives and two sealed envelopes containing two swabs for sending to the office of Chemical Examiner and three swabs sending DNA test, handed over to Habib Ahmad 462/CII. I attested inquest report of Aleena Bibi Exh.PC. I perused the Forensic histopathologist report Exh.PD dated 29.12.2010 vide Reference No, 1052/FH and lab No, 298/2010 and report of Chemical Examiner Bearing No, S.498/CE dated 29-04-2010. My final report is as under: "Keeping in view the post-mortem report, report of Chemical Examiner and photocopy of Histopathologist report provided to me by Honourable Court, I am of the opinion that cause of death is homicidal asphyxia admixed with trauma to parineal area (rape). However, report of DNA is still awaited for."
My final report dated 04-01-2012 is Exh.PE, which is in my hand and bears my signature."
6. After the closure of prosecution evidence, the learned trial Court examined the appellant and his acquitted co-accused under Section 342, Cr.P.C. Muhammad Arif (appellant) in response to question "why this case against you and why PWs deposed against you", made the following reply: "I am resident of Mauza Dinpur. During the course of occurrence 1 was an employee in the furniture shop of Imam Bukhsh Peer Jahania Chowk. At the time of alleged occurrence I was present in the above said shop. My parents are alive. Me and my brother Mohammad Nawaz are-married. I have five sisters, out of them one is still unmarried. At the time of occurrence, I along with my wife, parents, un-married sister, brother Nawaz and his wife along with children was residing in the same house. It is not possible for anyone to commit rape in the presence of parents, un-married sister, Bhabhee and wife.
My co-accused Irshad is my brother-in-law (Behnoee) working as carpenter in police line, Muzaffargarh. At the time of occurrence he was present in police line. The house of Irshad is situated at a distance of one house towards the west of my house. There is only one street situated in the direction of north and south between the houses of me, Irshad Hussain and complainant.
Prior to the alleged occurrence, the complainant party closed illegally our street passing from in front of their house. We made request for the restoration of our path to complainant party, got intervened by respectable of the locality but the complainant party did not open our path. Prior to the alleged occurrence my co-accused Irshad got confined the complainant part in lock up of P.S. Saddar Muzaffargarh but even on the intervention of police the complainant did not open our path, therefore, we moved an application u/S. 133, Cr.P.C. and also instituted a civil suit. During the days of alleged occurrence, there was an enmity between me, my co-accused and complainant party.
As per Ex.PJ statement of PW-9 and FIR there is no eyewitness. The investigation of the instant case continued from 07.4-2010 to 21-7-2010. On 08.04-2010 PW-12/1.0 installed two fake witnesses PW-11 Zulfiqar Ahmed and Ameer Bukhsh recorded their statements u/S. 161, Cr.P.C. On 19-4-2010 I.O/PW-12 fabricated fake recovery of worn clothes of Aleena Bibi deceased in order to show her departmental efficiency. There is no other PW of worn clothes except PW-11 and Amcor Bukhsh.
On 07.4-2010 PW-11 Zulfiqar and Ameer Bukhsh joined in investigation before PW-12/I.O. and recorded their interrogatory statement wherein, the above said PW narrated the occurrence as unseen. On the day of occurrence i,e, 07.4.2010 complainant party and people of locality staged protest while placing the dead-body of deceased at Chowk upon which. SHO and SDPO Jaleel Imran reached the place of protest, who issued direction to PW-12 1.0. to trace the accused and PW-12 recorded the statement of PW-11 and Ameer Bukhsh u/S. 161, Cr.P.C. on 08-04-2010 and the said PWs posed themselves that on 07-4-2010 at about 10:00 a.m. they had seen me while lifting deceased Aleena Bibi from the street and going to his house whereas ,on 07-4-2010 Zulfiqar and Ameer Bukhsh PWs did not show themselves in their interrogatory statements as eye-witnesses.
During the cross-examination PW-9, PW-11 and PW-12 admitted that PW Zulfiqar and Ameer Bukhsh joined in investigation on 07- 4.2010. PW-12/1.0 and PW-12 admitted- that PW Zulfiqar and Ameer Bukhsh joined in investigation on 07-4-2010. PW12/1.0. involved me illegally and without any basis under the pressure of high ups of police while showing fake, fabricated and installed PWs Ameer Bukhsh and PW-11, being in leaguo with the complainant party. The I.O. and the SHO challaned me, without any evidence dishonestly. PW-11 made dishonest improvements during his evidence and the complainant did not produce Ameer Bukhsh PW in favour of PW-11 and conviction cannot be based on the basis of sole witness.
The PW-12 I.O. prepared ,recovery memo. regarding last worn clothes being in league with the complainant party while causing disappearance of recovery memo. of the last worn clothes of dead-body prepared on 07-4-2010 in the presence of Khuda Bukhsh PW-10 and Allah Wassaya. All the reports i,e, Pathologist, Chemical Examiner and report of WMO are fake and fabricated being not admissible in the evidence in the present circumstances, It is also mentionable here that report of DNA was received negative which was misplaced from the record by the complainant party in order to suppross from the Court necessary piece of evidence favouring the accused person. On the objection of defence counsel the Court Mummoned the same report which was exhibited thereafter as Ex.P.R being an attested copy.
PWs are inter se related and interested persons and deposed against me being inimical."
The appellant neither made statement under Section 340(2) of Cr.P.C. nor produced any witness in his defence.
7. On the conclusion of trial, the appellant was convicted and sentenced as mentioned above, whereas Muhammad Irshad (co-accused) was acquitted of the charge. Hence the instant appeal and murder reference.
8. Learned counsel for the appellant contended that the instant case is comprising upon circumstantial evidence wherein necessary links to connect the appellant with the commission of offence are missing from the chain of circumstances; that the case of the prosecution is entirely based on the evidence of extra-judicial confession and last seen; that in support of the prosecution evidence, no independent material came on record; that from the bare perusal of the case it revealed that the evidence of last seen was created to provide some support to the prosecution case; that these circumstances which came on record during the course of trial are suggestive of the fact that the evidence of last seen is a fabricated piece of evidence; that the evidence of extrajudicial confession being a weak type of evidence cannot be made basis to decide a case entailing capital punishment; that the DNA report being inconsequential in nature cannot be Considered as a corroboratory piece of evidence and that though reasonable doubts about the innocence of the appellant surfaced from the bare perusal of the prosecution evidence but even then the trial Court extended no benefit to him.
9. On the other hand, learned DPG assisted by learned counsel for the complainant vehemently controverted the arguments advanced on behalf of learned counsel for the appellant and submitted that the guilt of the appellant is established on the basis of circumstantial evidence, comprising upon evidence of last seen and evidence of extra-judicial confession of the appellant; that the witnesses, who implicated the appellant with the commission of offence having no previous enmity with him are natural witnesses; that the prosecution case is getting due corroboration from the recovery of last worn clothes of the deceased affected on the disclosure and pointation of the appellant; that the appellant by committing the rape of the deceased, only aged about 1.1/2 years has demonstrated an extreme brutality and , that the appellant is found guilty of an act which is highly immoral, hence, deserves no leniency.
10.Arguments heard and record perused with the able assistance of learned counsel for the parties.
11. The case of the prosecution, so to speak, primarily hinges upon the circumstantial evidence, comprising upon last seen evidence furnished by Zulfiqar Ahmad (PW.l1 ), the extrajudicial cOnfession of the appellant made before Faiz Ahmad (PW.9) and Khuda Bukhsh (PW.10), the recovery of last worn clothes of the deceased affected at the behest of the appellant witnessed by Khuda Bukhsh (PW.10 ) and Zulfiqar Ahmad (PW.B.) and the medical evidence brought on record through Dr. Shabana Tabassum (PW.3).
12. The incident which formed basis for the registration of instant FIR took place on 07.04.2010, when the daughter of Faiz Ahmad (PW.9) namely .Aleena Bibi aged about 1-1/2 years statedly left her house at about, 10:00 a.m. and went missing, The complainant, after noticing her daughter (deceased) to be missing from the house started search efforts. In this regard, he also got pronounced through loudspeakers of the local mosques. However, at about 2:30 p.m., he Was successful in finding his daughter but unfortunately in dead, naked and semi-burnt condition from a ditch. At the time of the discovery of the dead body of the deceased, she was bleeding profusely from her vagina. The autopsy of the dead body of the deceased revealed that she was also subjected to sexual intercourse.
The tale of the miserable death of Aleena' Bibi (deceased) aged about 1-1/2 years suggests that prior to her murder she was subjected to an inhuman, brutal and cruel act of forced sexual intercourse. The recital of allegation gives rise to an extreme rage- against the appellant. However, such rage or fury is based on human emotions and sentiments but it is settled proposition that the fate of a case is only to be decided on the basis of the law. When law and morality confront each other, it is the law which is to prevail. In this backdrop, we have no other option but to decide the instant case on the basis of time tested principles of appraisa! of evidence, laid down by the superior Courts of the country.
13. First of all, we deem it appropriate to discuss the evidence of last seen furnished by Zulfiqar Ahmad (PW.11). While appearing as a witness, he claimed to have seen Muhammad Arif (appellant) while carrying the deceased to his house on the eventful day i,e, on 07,042010, Oh the same day, her dead body was recovered from a ditch situated in the plot of Muhammad Bakhsh It evinces from the record that the information of having seen the deceased in. the company of the appellant was conveyed by Zulligar Ahmad (PW.11) to the father of the deceased namely Faiz Ahmad (PW.9) on the following day i.e, 08.04.2010. We have noticed that there is conflict between the statements of Faiz Ahmad (PW.9) and Zulfiqar Ahmad (PW.11) regarding the time of conveying the information about the fact which formed basis of last seen evidence. In this regard, it. is necessary to reproduce the relevant extract from the examination-in-chief of Fail. Ahmad (1'W 9) which is as under:-- "On the next day, my real brothers Ameer Bakhsh and Zulfiqar told me and my father khuda Bakhsh that on the day of occurrence they had seen Muhammad Arif accused while lifting and taking the victim Aleena Bihi from street to his house and then I along with my PWs nominated the accused Muhammad Arif in this case through our supplementary statements:"
Conversely, Zulfiqar Ahmad (PW.11) while appearing as a witness stated that he forwarded the detail 'of evidence of last seen to Faiz Ahmad on the very evening of the occurrence. In this respect, the relevant portion of statement of Zulfiqar Ahmad (PW.11) is reproduced below: "On the same evening after receipt of dead-body from 1)11Q Hospital, Muzaffargarh we all the family members gathered and thought about the occurrence. I and. Ameez Bakhsh told the other family members about lifting the child by Mohammad Arif accused at day time and we reached on the conclusion that the occurrence was committed by Mohammad Arif accused."
The above-mentioned two extracts of the respective witnesses demonstrate that their statements are at variance with each other. In such situation, the Court, while appraising the evidence cannot adopt pick and choose approach. The acceptance of the evidence of one witness necessitates the rejection of the other. Needless to mention that such situation creates a dent in the- veracity of the prosecution case. We have also come across another anomaly which hit the root of the evidence of last seen. According to the record, the statement of Zulfiqar Ahmad (PW.11) was recorded under Section 161, Cr.P.C. on the following day of the occurrence i,e, on 08,04.2010. Since this is an important feature of the case, hence, we consider it appropriate to make reference to the relevant extract from the testimony of Zulfiqar Ahmad (PW.11) which is as under: "On next day, at about 3:00 p.m. the complainant 1 Ameer Bakhsh and Faiz Ahmad came to the Police. Station Saddar and we named Muhammad Arif as an accused."
A wade through the prosecution case reveals that at the time of the first visit of the police to the crime scene, Zulfiqar Ahmad (PW.11) was in attendance and stated nothing about having seen the appellant: carrying the deceased. If at all Zulfiqar Ahmad had seen the appellant along with the deceased prior to the occurrence, apparently there- is no reason why he opted not to convey the information to the complainant as well as to the police at the time of spot inspection. Zulfiqar Alimad (PW.11) admitted during his cross-examination that by the time the dead body was recovered and the police arrived at the scene, he was present in the company of the complainant.
Similarly, it divulges from the statement of Javed Iqbal SI, the investigating officer (PW.12) that Zulfiqar Ahmad joined the investigation during spot inspection hut stated nothing regarding his claim of having seen the appellant while carrying" the deceased. In this regard, reference can be made to the following excerpt from the statement of Javed Iqbal (PW.12): "It is also correct that I also joined into investigation Zulfiqar Ahmad and Ameer Bukhsh sons of Khuda Bukhsh who did not disclose before me in their interrogatory statements on 07.04.2010 that they had seen the abduction, rape and murder of Aleen a Bibi."
14. The features of the prosecution case discussed reveal that firstly Zulfigar Ahmad remained silent at the time of the spot inspection and secondly his statement under Section 161, Cr. l' was recorded with an unexplained delay of one day. Such delay recording his statement casts a big doubt about the authenticity of his claim of having seen the appellant and the deceased together. In on r humble view, such aspect of the matter has cast big doubt about testimony of Zulfigar Ahmad (PW.11). In this regard, the observations of the Hon'ble Supreme Court of Pakistan expressed in the case of Rahat Ali v. The State (2010 SCM R 584) is relevant which is as under. "delay in recording the statement of witness without furnishing any plausible explanation, is also fatal to prosecution case and the statement of such witness is not be relied upon."
An in-depth analysis of the prosecution case reveals that Zulfiqar Ahmad neither mentioned the exact date nor the time of having seen the appellant and the deceased together. Such omission gains, more importance when seen in the context that in order to make evidence of last seen as strong incriminating material, the prosecution has to prove two ingredients i,e, proximity of time and distance. In our humble view, on account of this omission to bring on record the relevant time when the deceased was seen in the company of the appellant, big doubt is created in the veracity of evidence of last seen. Even otherwise, the evidence of last seen is generally regarded as weak type of evidence. In order to secure, conviction on the basis thereof, the prosecution is required to place on record sufficient corroboratory material/evidenee. In this regard, reliance can be placed to the case of Altaf Hussain v. Fakhar Hussain and another (2008 SCM R 1103) wherein the Hon'ble Supreme Court of Pakistan observed at. page 1105 as under: "It is settled principle of law that the last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence."
15. In order to give a conclusive finding on the evidence of last seen, we deem it appropriate to go through the remaining prosecution evidence. The case of the prosecution besides the evidence of last seen is based upon the DNA report (Exh.PR), the evidence of extra-judicial confession and last worn clothes of the deceased.
As regards, DNA report (Exh.PR), we have observed that the same is found to be inconsequential in nature as no comparison could be made with DNA profile of Muhammad Arif (appellant) and the stains found on the trouser of the victim. We have also gone through the evidence of recovery of last worn clothes of the deceased affected on the disclosure and pointation of the accused. While addressing such anomaly, the learned counsel for the appellant stressed that since the report does not absolve the appellant in clear terms, hence, the same can be used as an incriminating substance against him. We are afraid that such an argument is contrary to the principles laid down for the any circumstance gives rise to a reasonable doubt, its benefit is to be extended none other than to the accused.
16. In support of the recovery of last worn clothes, Khuda Bakhsh (PW.10) and Zulfiqar (PW.11) appeared in the witness box. During his examination-in-chief, Khuda Bakhsh (PW.1.0) stated that the clothes were recovered on the pointation of the appellant on 19.04.2010, which were taken into possession through recovery memo. (Exh.PM). However, during cross-examination, he failed to substantiate this stance beyond any shadow of doubt. It was proved during the investigation that he made statement under Section 161, Cr.P.C. stating therein that the clothes of the deceased were recovered from the fields of Mustafa on 07.04.2010. In this regard he was duly confronted with his statement under Section 161, Cr.P.C. ( Ex h. DA) as well. The relevant portion of his statement is being reproduced below: "I had not got recorded my statement to the effect that the last worn clothes of the deceased Aleena Bibi was recovered from the wheat field of Ch. Ghulam Mustafa which were presented by the complainant to the I.O. and he took the same into possession vide recovery memo, signed by me and Allah Wasaya PW. Confronted with Ex.D.A where it is so recorded."
In the above backdrop, we are of the view that the evidence of recovery of the clothes is not free from the menace of fabrication and concoction. It appears that the recovery of last worn clothes of the deceased was shown from different places at two different dates. The Investigating Officer was also cross-examined in this respect and he failed to satisfactorily explain the above-mentioned anomaly arising out of the prosecution case. In this situation, we are of the view that the evidence of recovery of last worn clothes of the deceased affected on the pointation of the appellant is a fabricated piece of evidence. It appears that such evidence was knit to provide some strength to the frail prosecution case.
17. The evidence of extra-judicial confession was furnished by Faiz Ahmad (PW.9) and Khuda Bakhsh (PW.10). According to these two witnesses, the appellant came to their house and sought pardon while admitting his guilt. We have noticed that the detail of the extrajudicial confession narrated by the two witnesses is found to be at variance with each other. From the statement of Faiz Ahmad ( PW.9), it evinces that one Iqra Bibi and Irshad (since acquitted) were privy to the act of the appellant, whereas Khuda Bukhsh (PW.10) made no reference at all to these two persons.
Even otherwise, the conviction cannot be awarded on the basis of extrajudicial confession alone.
The evidence of extra-judicial confession is always considered to be a weak type of evidence.
Mostly, such evidence is procured when the prosecution is running short of requisite incriminating material to connect a person with the commission of crime. In this regard, reliance can-be placed to the case of Imran alias Dully and another v. The State and others (2015 SCM R 155), wherein the Hon'ble Supreme Court held as under: "Needless" to remark that extra judicial confession has never been considered sufficient for recording conviction on capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source therefore, in our view, this piece of evidence is entirely insufficient to carry conviction on such a charge, more so, when it is badly tainted one and appears to be the job of the investigating officers who normally indulge in such like police-chicanery".
In order to award the conviction on the basis of evidence of extrajudicial confession, strong corroboration is required. We have already observed above that the prosecution evidence is not having any scintilla of material which may .provide corroboration to the prosecution case: 18.As far as the medical evidence is concerned, at best it gives some picture as to how the deceased was done to death but it never gives the identity of the person behind the murder of the deceased. For the reasons mentioned hereinabove, this piece of evidence is also of no help to the prosecution.
19. For what has been discussed above, we are of the view that due to the infirmities found in the evidence of last seen, the same is not worthy of any credence in order to uphold the conviction awarded to the appellant. Similarly the evidence of recovery of last worn clothes of the deceased are also found not to be free of menace of fabrication and concoction. Similarly, the evidence of extra-judicial confession is also found to be without any corroboration. In these circumstances, we are of the firm view that it will not be safe to uphold the conviction of the appellant on the basis of the evidence produced by the prosecution. Thus, while extending the benefit of doubt in favour of Muhammad Arif (appellant) weALLOW Criminal Appeal No, 84-J of 2013 and set-aside his conviction and sentence. Muhammad Arif (appellant) shall he I released forthwith, if not required to be detained in any other criminal case.
20.Resultantly Murder Reference No, 21 of 2013 is answered in the NEGATIVE and death sentence awarded to Muhammad Arif (appellant/convict) is NOT CONFIRMED.