TARIQ SALEEM SHEIKH, J. By this consolidated judgment we propose to decide Murder Reference No. 56/2013/BWP, Criminal Appeal No. 494/2013/BWP and Criminal Appeal No.11/2014/BWP arising from case FIR No. 178/2010 dated 1.5.2010 registered at Police Station Saddar Hasilpur, District Bahawalpur, for offences under sections 302/376, P.P.C.
2. Brief facts of the case are that on 1.5.2010 Syed Amjad Hussain Shah (PW-4) addressed a complaint Exh.PB to the SHO Police Station Hasilpur stating that he was a resident of Basti Noor Shah, Mauza Chohan, and was an agriculturist by profession. On 30.4.2010 at about 6:00 p.m., his daughter Faryal Bibi (aged 7/8 years) went out in the street to play. She did not return for about one hour which worried him and he set out in her search. He could not find her the whole night even though he looked for her in every nook and corner of the village, including the graveyard. The following morning, at about 6/7:00 a.m., he along with his brother Syed Makhdorn Hussain Shah (PW-5) and Syed Shahzad Hussain Shan (given up PW) again went towards the graveyard while searching for Faryal Bibi where they saw her dead body lying on a branch of a tree and blood was oozing from her mouth. Some of it had also dropped on the ground. They also noted that her Shalwar was blood-stained and neck was scratched which indicated that she had been raped and then strangulated. The Complainant suspected that Haswar Shah alias Baghay Shah (Appellant in Criminal Appeal No.494/2013/BWP), Syed Sadaqat Ali Shah and Syed Rehmat Ali Shah had committed the offence because he had refused to give the hand of his elder daughter in marriage to Irshad Shah. The afore-named accused and Irshad Shah had been extending threats of dire consequences to him. Manzoor Ahmed/SI (PW-12) received the said complaint and on its basis registered FIR No.178/2010 (Ehx.PB/1) on 1.5.2010 at 8:20 a.m.
3. The investigation of the case was also entrusted to Manzoor Ahmad/SI (PW-12). He went to the graveyard where the dead body of Faryal Bibi was found, prepared Injury Statement (Exh.PM), Inquest Report (Exh.PN), rough site plan (Exh.PO) and dispatched the corpse to THQ Hospital, Hasilpur, for autopsy under the escort of Elahi Bakhsh 202/C (PW-1). He collected blood stained soil from underneath the dead body of Faryal Bibi and secured it vide Recovery Memo Exh.PF. Through a separate Recovery Memo Exh.PG he took into possession the branch of the tree on which her dead body had been placed. After post-mortem examination was done, Elahi Bakhsh Constable (PW-1) produced before him Postmortem Report (Exh.PJ/1-4), pictorial diagram (Exh.PK/1-2) and last worn blood stained clothes of the deceased which he secured vide Recovery Memo Exh.PA.
Then he handed over the corpse to the legal heirs and deposited the aforesaid articles with the Muharrar for safe custody. On 3.5.2010, he summoned Haswar Shah (Appellant in Criminal Appeal No.494/2013/BWP), Sadaqat Shah and Rehmat Shah for investigation but kept their arrest pending.
On 4.5.2010, he took the said accused to Lahore for their DNA test. On 5.5.2010, he interrogated Afzal Shah and on 11.5.2010, he took him and Jabbar Shah (Appellant in Criminal Appeal No.494/2013/BWP) to Lahore for their DNA test. On 12.5.2010, the Complainant made a written application Exh.PC wherein he nominated Appellants Haswar Shah, Jabbar Shah and three others, namely, Irshad Shah, Mukhtar Shah and Mst. Shamim Bibi (who have since been acquitted). On 14.5.2010, the Investigation Officer also recorded statements of PWs Syed Makhdoom Shah (PW-5), Asif Shah (PW-6), Zafar Iqbal (PW-10) and Muhammad Ali (PW-11) under section 161, Cr.P.C. On 14.5.2010, he arrested Haswa r Shah, Jabbar Shah, Mukhtar Shah and on 15.5.2010 took Mst. Shamim Bibi into custody. On 17.5.2010, the Complainant got his statement recorded with him to the efect that he had accepted the plea of innocence of Sadaqat Shah and Rehmat Shah whereupon they were exonerated. On 19.5.2010 Manzoor Ahmad/SI got Hastvar Shah and Jabbar Shah medically examined for their potency. During investigation Haswar Shah and Jabbar Shah pointed out the place of occurrence regarding which Memos Exh.PD and PE and site plan Exh.PP were prepared. On 29.5.2010 he got prepared scaled site plan Exh.PL regarding the said place through Patwari Muhammad Afzal (PW-9). Manzoor Ahmad/SI found that all the five accused were involved in the commission of offence. Report under section 173, Cr.P.C. was submitted accordingly.
4. The learned Additional Sessions Judge summoned the Appellants and co-accused Mukhtar Shah, Irshad Shah and Mst.Shamim Bibi for trial and indicted them on 8.7.2010. They denied the charge and claimed trial. In order to prove the charge the prosecution examined 12 witnesses in all.
Complainant Syed Amjad Hussain Shah appeared as PW-4. Syed Makhdoom Hussain Shah (PW-5) and Muhammad Asif Gillani (PW-6) testified about extrajudicial confessions of Appellants Haswar Shah and Jabbar Shah and co-accused Mukhtar. Zafar Iqbal (PW-10) and Muhammad Ali (PW-11) furnished last seen evidence. Dr. Muhammad Saleem Arif (PW-7) and Dr. Kalsoom Iqbal (PW-8) provided medical evidence. The Investigation Officer, Manzoor Ahmad/SI (PW-12), gave details of his investigation and the evidence he collected in this case. The remaining witnesses were formal in nature. On 2.10.2013, learned prosecutor closed the prosecution evidence after tendering reports of the Chemical Examiner (Exh.PQ and Exh.PT), DNA (Exh.PR/1), Histopathologist (Exh.PS) and Serologist (Exh.PU).
5. After the close of prosecution evidence the learned trial Court examined Haswar Shah and Jabbar Shah and their co-accused under section 342, Cr.P.C. They all refuted the allegations levelled against them and professed innocence. When Haswar Shah was asked as to why he had been implicated in this case and why the PWs had deposed against him he stated that it was a blind murder and there was no evidence against him to connect him with it. The police arrested many people during the investigation but exonerated them. He added that he got engaged with Complainant's daughter Aqsa Bibi but he snapped that tie. The Complainant and the PWs were closely related to each other. They had a grudge against him and exploited the occasion to take revenge from him and other members of his family. They concocted a story in connivance with the police and entangled him, his father Mukhtar Shah, mother Shamim Bibi, maternal uncle Jabbar Shah and brother Irshad Shah in this case. He maintained that even the motive set out in the FIR was false. Irshad Shah was married 5/6 years prior to the occurrence and never ever demanded the hand of the Complainant's daughter. Jabbar Shah adopted the plea of Haswar Shah. Neither these two Appellants nor their co-accused got recorded their statements on oath under section 340(2), Cr.P.C. They did not examine any witness in their defence either.
6. On the conclusion of the trial, vide judgment dated 12.12.2013, the learned Additional Sessions Judge acquitted Mukhtar Shah, Irshad Shah and Mst. Shamim Bibi alias Shammi. However, he convicted and sentenced Haswa r Shah and Jabbar Shah as under: i) Convicted under section 302(b), P.P.C. for committing Qatl-i-amd of Faryal Bibi and sentenced to death with a direction to pay Rs.1,00,000/- each as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. ii) Convicted under section 376, P.P.C. and sentenced to death with fine of Rs.1,00,000/- each, half of which (if recovered) would be paid to the legal heirs of the deceased and in default thereof to undergo simple imprisonment for a further period of two years. Further compensation of Rs.50,000/- was also ordered to be paid to the legal heirs of deceased in terms of section 544-A, Cr.P.C.
7. Haswa r Shah and Jabbar Shah have filed Criminal Appeal No. 494/2013/BWP against their conviction and sentence whereas the learned Additional Sessions Judge has sent Murder Reference No. 56/2013/BWP to this Court under section 374, Cr.P.C. for confirmation of their death sentence. On the other hand, Complainant Syed Amjad Hussain Shah has filed Criminal Appeal No.11/2014/BWP to assail the acquittal of Mst. Shamim Bibi alias Shammi, Mukhtar Shah and Irshad Shah.
8. In support of Criminal Appeal No.494/2013/BWP Syed Aasim Ali Bukhari, Advocate, contended that it was a blind murder. The Complainant had falsely implicated the Appellants in this case to take revenge because Haswa r Shah had snapped his engagement with his daughter Aqsa Bibi and had refused to marry her. There was no tangible evidence to connect the Appellants with the offence. He argued that, firstly, all the private witnesses were interested witnesses being related inter se and with the Complainant. Secondly, there were glaring contradictions in the prosecution evidence which had been ignored by the learned trial Court. Thirdly, acquittal of the co-accused of the Appellants by the learned trial Court had created a serious dent in the prosecution's case with regard to the involvement of the Appellants as well. Fourthly, the last seen evidence furnished by Zafar Iqbal (PW-10) was concocted. He was the maternal cousin of the Complainant yet he did not inform him or the police for 14 days that on 30.4.2010 he had seen the Appellants following Faryal Bibi. Similarly the testimony of Muhammad Ali (PW-11) was fabricated who alleged that he saw Mukhtar Shah and Shamim Bibi carrying a sack to the graveyard. Fifthly, the Appellants had no occasion to made extra-judicial confession which was created to strengthen the prosecution case.
Sixthly, the motive was not proved. Lastly, it was a case of circumstantial evidence but the prosecution failed to link the Appellants with the commission of the offence. The learned counsel prayed that this appeal may be accepted and the Appellants be acquitted of the charge.
9. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the Complainant vehemently opposed this appeal. He contended that the prosecution had proved its case against the Appellants Haswar Shah and Jabbar Shah beyond any shadow of doubt through the evidence of last seen and extra-judicial confession which was corroborated by medical evidence and motive. The Appellants had committed a heinous offence. Therefore, the death sentence awarded to them by the learned trial Court be maintained. He prayed that the Appellants' appeal may be dismissed and the Murder Reference be answered in the affirmative.
10. So far as Criminal Appeal No.11/2014/BWP is concerned, it was argued that Irshad Shah, Mukhtar Shah and Shamim Bibi were also involved in the occurrence. The learned trial Court had misread the evidence to their extent and had erred in acquitting them. It was prayed that they may also be punisher' in accordance with law.
11. We have heard the learned counsel for the parties and have gone through the available record with their able assistance.
12. The unfortunate incident in which Faryal Bibi was ravished and murdered took place within the territorial limits of Police Station Saddar Hasilpur and FIR No.178/2010 (Exh.PB/1) about this incident was registered on 1.5.2010 at 8:20 a.m. at the instance of Syed Amjad Hussain Shah (PW-4) who was the father of the deceased. Admittedly, he was not the eye-witness of the occurrence. He stated that his daughter left the house on 30.4.2010 to play in the street and went missing and on the following day her dead body was found lying on a branch of a tree in the graveyard. However, he suspected that Haswa r Shah, Syed Sadaqat Ali Shah and Syed Rehmat Ali Shah were involved in the offence. On 12.5.2010, he made a supplementary statement (Exh.PC) stating that he had probed into the matter himself and had found that Haswar Shah, Jabbar Shah and Irshad Shah had actually committed the murder of his daughter while Mukhtar Shah along with his wife Shamim Bibi carried her body to the graveyard and disposed it of Then, on 17.5.2010, he made another statement in which he exonerated Sadaqat Shah and Rehmat Shah. Apart from his desire to enrope maximum number of people from the opposite side in this case, it appears from his deposition recorded during the trial that the aforesaid statements were based on the "findings" of the sniffer dog and a 'Khoji' (tracker) that he had privately arranged. Without commenting on the reliability and admissibility of the alleged findings, we observe that the prosecution does not rely on them and neither examined the dog trainer nor the tracker at the trial. Its case rests on the last seen evidence, the extrajudicial confessions of Haswar Shah, Jabbar Shah and Mukhtar Shah, medical evidence and the motive.
13. The evidence of the last seen furnished by Zafar Iqbal (PW-10) is the cornerstone of the prosecution case. He deposed that on 30.4.2010 at about 6/7:00 p.m. he was returning from the house of his mother-in-law to his own house when he saw Haswar Shah and Jabbar Shah following Faryal Bibi in the street. He subsequently learnt that she was raped and murdered. Perusal of the record shows that he joined the investigation and made a statement to this effect on 14.5.2010. It is intriguing that Zafar Iqbal was the maternal cousin of the Complainant yet he did not inform him about the above-said fact and kept mum for 14 long days. During his cross- examination he attempted to explain this delay by taking the plea that he went to Lahore on 30.4.2010 and came back on 12.5.2010. We are afraid this plea does not help him. He admitted that his wife informed him about the incident on 1.5.2010. Keeping in view his close relationship with the Complainant, it was unnatural for him not to contact him or the police immediately. More importantly, even if he returned on 12.5.2010, there is no explanation why he delayed joining the investigation till 14.5.2010. In our considered opinion, the testimony of Zafar Iqbal lacks credibility.
14. In addition to what we have discussed in the preceding paragraph, we have noted that the testimony of Zafar Iqbal (PW- 10) is in direct conflict with that of Syed Makhdoom Hussain Shah (PW-5) who deposed that he had informed him about the aforementioned fact on the very day of occurrence. It also contradicts his claim that he went to Lahore. Relevant excerpt from the cross- examination of Syed Makhdoom Hussain Shah is reproduced hereunder: "Zafar Shah told me that Faryal Bibi was going ahead while Jabbar, Shah and Haswar Shah were going behind her. Zafar Shah told me this fact on the day of alleged occurrence. He told me about the said fact 11/12 hours before lodging the FIR."
15. The next piece of evidence relied upon by the prosecution is the statement of Muhammad Ali Shah (PW-11) who deposed that on the fateful day when he got up for his Fajar prayer he saw Mukhtar Shah and Shamim Bibi passing in front of his house carrying a sack. It was subsequently discovered that the said sack contained the corpse of Faryal Bibi and they dropped it in the graveyard. The testimony of Muhammad Ali Shah too does not inspire confidence. First, his statement is based on conjectures and surmises. He did not witness the accused disposing of the corpse as aforesaid. Secondly, the alleged sack was not recovered during investigation. Thirdly, the dead body of Faryal Bibi was found lying on a branch of a tree in the graveyard. It does not appeal to a prudent mind that Mukhtar Shah and Shamim Bibi would take it out from the sack and then put it there. Fourthly, Mukhtar Shah and Shamim Bibi were the parents of Haswar Shah and lrshad Shah while Shamim Bibi was the sister of Jabbar Shah. It rather seems preposterous that they would allow them to ravish and murder the girl and then take the body themselves to the graveyard to dispose it of. Lastly, the statement under section 161, Cr.P.C. of Muhammad Ali Shah (PW-11) was recorded by the Investigation Officer on 14.5.2010. It is settled law that where the statement of a witness is recorded with delay without any cogent reason it impinges his credibility.
Reliance is placed on Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550), Abdul Khaliq v. The State (1996 SCMR 1553) and Muhammad Khan v. Maula Bakhsh and another (1998 SCMR 570).
16. The learned Deputy Prosecutor General also referred to Identification Memos Exh.PD and Exh.PE which purport to show that during physical remand Haswar Shah and Jabbar Shah themselves disclosed the place of occurrence. He contended that this disclosure led to discovery of a fact which was an incriminating evidence under Article 40 of the Qanun-e-Shahadat Order, 1984 (the "QSO"), and fortified the prosecution case. Perusal of the record reveals that the Investigating Officer, Manzoor Ahmad/SI (PW-12), categorically admitted in his cross-examination (Page-98 of the paper book) that he came to know about the place of occurrence on 14.5.2010 while Haswar Shah and Jabbar Shah made the alleged disclosure on 23.5.2010. This means that the fact in question was already in the knowledge of the police so it cannot be regarded as discovery of new fact within the meaning of Article 40, ibid. In Mst. Askar Jan and others v. Muhammad Daud and others (2010 SCMR 1604), the Hon'ble Supreme Court of Pakistan dilated on the application of Article 40 and held as under: "Thus, in order to apply Article 40 of the Order, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source and that the knowledge of the fact was first derived from the information given by the accused. Reference is also invited to Jaffer Hussain v. State of Maharashtra (AIR 1970 Supreme Court 1934)."
17. The prosecution heavily relies on the extra-judicial confession allegedly made by Haswar Shah, Jabbar Shah and Mukhtar Shah to prove the charge. Syed Makhdoom Hussain (PW-5) deposed that on 13.5.2010 he was present at his Dera with Muhammad Asif Gillani (PW-6) when the said accused approached them. They took them aside and separately requested for their help to seek pardon from the Complainant. First of ali Mukhtar Shah admitted that Haswar Shah and Jabbar Shah raped Faryal Bibi and then killed her because they feared police would arrest them. He offered to give the hand of his daughter to the son of the Complainant. After him Haswar Shah and Jabbar Shah individually made confession about their guilt and added that they had committed the offence on the abetment of Irshad Shah. PW-6 Muhammad Asif Gillani deposed on the same line. It is settled law that extra-judicial confession must be received with utmost caution for the reason that it can be procured effortlessly and easily concocted. In "Sajid Mumtaz and others v.
Basharat and others" (2006 SCMR 231), the Hon'ble Supreme Court of Pakistan observed: "17 ...This Court and its predecessor courts (Federal Court) have elaborately laid dawn the law relating extra-judicial confessions starting from Ahmad v. The Crown (PLD 1951 FC 103-107) upto the latest. Extra-Judicial confession has always been taken with a pinch of salt. In Ahmed v. The Crown, it was observed that in this country (as a whole) extra-judicial confession must be received with utmost caution. ... As observed by the Federal Court, we would reiterate especially referring to this part of the country that 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 Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions. Such confessions by now, have become the signs of incompetent investigation."
18. In view of the foregoing, in Sarfraz Khan v. State and 2 others (1996 SCMR 188), the august Supreme' Court of Pakistan held that a three-fold proof is required to make extra-judicial confession the basis of conviction, firstly, that in fact it was made; secondly, that it was voluntarily made; and thirdly, that it was truly made. The Court must ask itself as to why the accused should at all confess. Indubitably the phenomenon of confession is not altogether unknown but in order to determine its genuiness the Court should look at the circumstances in which it is made and the motivating factors behind it. In Sajid Mumtaz's case, supra, while emphasizing this issue the Apex Court made the following observations: "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 one's pressure on mind and conscience is another aspect of the same psyche. One gives vent to one's feelings only before a strong and close confident.... Another most important and natural purpose of making 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."
19. In "Tahir Javed v. The State" (2009 SCMR 166), the Hon'ble Supreme Court of Pakistan further explained: "It may be noted here that since extra-judicial confession is easy to procure as it can be cultivated at any time, therefore, normally, it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. The extra-judicial confession, therefore, must be considered with overall context of the prosecution case and the evidence on record. Right from the case of Ahmed v. The Crown PLD 1951 FC 107 it has been time and again laid down by this court that extra-judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it.
Reference in this regard may be made to the following reported judgments: (i) Sajid Mumtaz and others v. Basharat and others (2006 SCMR 231), (ii) Ziaul Rehman v. The State (2001 SCMR 1405),
(iii) Tayya b Hussain Shah v. The State (2000 SCMR 683) and (iv) Sarfraz v. The State and others (1996 SCMR 188)."
20. In the instant case, it is observed that Syed Makhdoom Hussain Shah (PW-5) and Muhammad Asif Gillani (PW-6) were the real brothers of Complainant Syed Amjad Hussain Shah. The prosecution has not brought any material on the record to show that Haswar Shah, Jabbar Shah or Mukhtar Shah had any of the reasons discussed hereinabove to make confession before them.
More importantly, the PWs claimed that when the accused came to their Dera they were alone and were not accompanied by any respectable of the locality or a common friend. Keeping in view the gravity of the charge it was not possible for them to approach them directly particularly when the occurrence was fresh and tempers were high. In their cross-examination PW-5 and PW-6 stated that 8/9 of their relatives were present outside the Dera. It is intriguing that they did not react on seeing then. Even their own conduct was unnatural. In this regard reference may be made to the following excerpt from the cross-examination of Syed Makhdoom Hussain Shah (PW-5): "After hearing the talk of the accused, we did not beat them and also did not apprehend them though we were annoyed but as the other people were present out our Dera and there was an apprehension of killing of accused by those people if they got information. The persons 8/9 who were present out of Dera were our relatives and some persons came to say Fatiha. The people present outside the Dera saw the accused while coming inside our Dera and going outside our Dera. We did not disclose about the said confession of accused to the persons who were present outside the Dera on that day. Volunteered we did not tell them lest they should be killed. I had no sympathy with the accused persons as to save their lives from the persons standing outside the Dera."
21. For what has been discussed above, we are of the view that the prosecution evidence of extra- judicial confession is not reliable.
22. Dr. Kalsoom Iqbal (PW-8) conducted autopsy of Faryal Bibi on 1.5.2010. She observed that post- mortem staining was present on different parts of the body of the deceased and rigor mortis had developed. Her face was swollen blotchy and cyanosed. Red patchier marks were present on the whole face, each abrasion measuring about 2 cm x 1/2 cm. Clotted blood was present in the mouth and left side of the nose, pupils were dilated, conjunctivae were congested, lips were blue, hands were clenched, nails and tips of the fingers were blue and toes of the feet were also blue. Multiple bruises were present on the neck, each measuring 3 cm x 2 cm. Abrasions were also present all around the neck measuring about 2 cm x 1 cm skin deep. Dr. Kalsoom Iqbal opined that Faryal Bibi was subjected to rape which teared her vaginal wall leading to coma and compression of the neck, acute hypoxia and eventually to death in the ordinary course of nature. Injuries were ante- mortem and caused by homicidal throttling. In her estimation, the probable time that elapsed between death and postmortem was more than 14 hours and less than 24 hours. Samples from visceras were taken for detection of poisoning and vaginal swabs for detection of semen and DNA test. Hyoid bone was sent to the pathologist for determination of fracture. After receiving the report of the Chemical Examiner, the Medical Officer observed that poison was not detected and swabs were stained with semen and blood. The report of the histopathologist revealed ante-mortem injury to hyoid bone. She further stated that after taking into consideration the above- mentioned reports, including the post-mortem report, she was of the opinion that the deceased's death was caused by throttling and rape.
23. Dr. Muhammad Saleem Arif (PW-7) medically examined Haswar Shah and Jabbar Shah and found that they were fit to perform sexual act. DNA Test Report Exh.PR is negative and does not connect them with the offence. Even if this report is excduded from consideration on the ground that the biochemist was not examined at the trial and it is not admissible in evidence per se under section 510, Cr.P.C, the testimony of Dr. Kalsoom Iqbal (PW-8) would be of no avail to prosecution because the medical evidence which she has furnished is only confirmatory in nature and does not identify the culprits. It does not raise finger at any accused of the instant case.
24. In complaint Exh. PB and FIR Exh.PB/1 the Complainant alleged that the motive behind the occurrence was that he had refused to marry his elder daughter to Irshad Shah. However, Syed Makhdoom Hussain (PW-5) in his statement before the learned trial Court alleged that Irshad Shah suspected that the Complainant had illicit relations with his wife. Although Syed Makhdoom Hussain stated that this was an "additional reason" behind the occurrence, one cannot gainsay that the prosecution was wavery about the motive and during the trial it did not produce any independent witness to prove any of those that it suggested. Even Manzoor Ahmad/SI (PW-12) did not collect any evidence in this regard when he investigated this case.
25. In a case based on circumstantial evidence the prosecution is obligated to show that different pieces of evidence brought on the record are inter-linked so as to make a single chain whose one end touches the dead person and the other clenches the neck of the accused. Further, the evidence must be of a quality to be incompatible with the innocence of the accused. Any missing link in the chain would destroy the entire prosecution case. In Hashim Qasim and another v. The State (2017 SCMR 986) the Hon'ble Supreme Court of Pakistan ruled: "In cases of circumstantial evidence, there are chances of procuring and fabricating evidence.
Therefore, Courts are required to take extra care and caution to narrowly examine such evidence with pure judicial approach to satisfy itself, about its intrinsic worth and reliability, also ensuring that no dishonesty was committed during the course of collecting such evidence by the Investigators....circumstantial evidence may sometimes appear to be conclusive but it must always be narrowly examined, if only because this count of evidence may be fabricated in order to cast suspicion on another, therefore, it is all the more necessary before drawing inference, if the accused's guilt from circumstantial evidence to be sure and that there are no other co-existing circumstances, which weaken or destroy the inference then, in that case alone it may be relied upon otherwise, not at all."
26. On a thorough reappraisal of the evidence we have found that the prosecution has failed to prove its case beyond reasonable doubt. Therefore, we accept Criminal Appeal No.494/2013/BWP and set aside the conviction and sentence awarded to Appellants Haswar Shah and Jabbar Shah.
They are in jail. They shall be released forthwith if not required to be detained in any other case.
27. Murder Reference No.56/2013/BWP is answered in the NEGATIVE and the death sentence awarded to Haswa r Shah and Jabbar Shah is NOT CONFIRMED.
28. We have discarded the prosecution evidence while deciding Criminal Appeal No.494/2013/BWP.
Therefore, Criminal Appeal No.11/2014/BWP challenging acquittal of Mst. Shamim Bibi alias Shammi, Mukhtar Shah and Irshad Shah is hereby dismissed in limine.