IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
 
 
 
 
PRESENT: 
MR. JUSTICE ASIF SAEED KHAN KHOSA 
MR. JUSTICE MUSHIR ALAM 
MR. JUSTICE DOST MUHAMMAD KHAN  
 
Criminal 
Appeal 
No.497/2009 
and 
Criminal 
Appeal 
No.496/2009 
(On appeal from the judgment dated 1.6.2009 passed by the Lahore High Court, Rawalpindi Bench 
Rawalpindi in Crl.A.144-T/2007, Crl.Revision.62-T/2007 & CSR.No.50-T/2007). 
 
 
1. 
Azeem Khan 
 
 
 
 
…Appellant in Crl.A.496/09 
2. 
Mujahid Khan & another  
 
 
…Appellants in Crl.A.497/0 
 
VERSUS  
1. 
Mujahid Khan & others   
 
…Respondents in Crl.A.496/09 
2. 
The State  
 
 
 
…Respondent in Crl.A.497/09 
 
 
 
For the appellants: 
 
Agha Muhammad Ali, ASC   
(In Crl.A.497/09) 
 
 
  
For the complainant: 
 
Sardar Muhammad Ishaq Khan, Sr. ASC 
 
For the State: 
 
 
Mr. Ahmad Raza Gillani, ASC  
 
Date of hearing:  
 
15.10.2015 
 
 
 
 
  
JUDGMENT  
 
 
 
Dost Muhammad Khan, J-.   The appellants (i) Mujahid 
Khan and (ii) Arbab Khan, at a trial held by the learned Presiding 
Judge of Anti Terrorism Court-II, Rawalpindi, upon conviction 
U/Ss.365-A and 302 PPC read with Section 7 of Anti Terrorism Act, 
1997, were handed down sentence(s) of death u/s 365-A PPC and 
S.7(e) of ATA. Additionally, appellant Mujahid Khan was convicted and 
was sentenced to death u/s 302(b) PPC. The properties of the 
appellants were also ordered to be forfeited.  
2. 
  
Both the appellants filed appeal before the Lahore High 
Court, Rawalpindi Bench, Rawalpindi, which was heard along with 
Murder Reference No.50-T/2007 as well as Criminal Revision No.62-
T/2007 filed by the complainant and vide impugned judgment dated 
Crl.As.496-497/09 
2
01.06.2009, the appeal of the appellants was dismissed and the 
Reference sent by the Trial Court u/s 374 Cr.P.C. was answered in 
affirmative, however, the Criminal Revision Petition of the complainant 
was dismissed.  
3. 
  
Both these appeals have been filed with leave of the Court 
dated 27.08.2009. The order is self speaking and elaborate one.  
 
We have heard Sardar Muhammad Ishaq Khan, learned Sr.ASC 
for the complainant, Agha Muhammad Ali, learned ASC for the 
appellants in Crl.A. No.497/2009 and Mr. Ahmad Raza Gillani, learned 
Additional Prosecutor General, Punjab and have carefully gone through 
the evidence on record.  
4. 
  
Precise but relevant facts are that, a pre-teen nephew of 
the complainant, Khan Wali (PW-4), namely Muhammad Bilal 
(deceased) aged about 10/11 years went missing on 16.07.2006. In 
the crime report (Ex-PH/1) the complainant expressed apprehension 
that his nephew was probably kidnapped. After registration of the 
crime report, Nazar Muhammad SI, Police Post Naseerabad inspected 
the spot and prepared the site plan thereof. In the meanwhile a cell 
phone call was received by Muhammad Wali (PW-3); the caller used 
cell phone No.0302-5665028 and the receiving cell phone number of 
Muhammad 
Wali 
was 
0300-9866033. 
The 
caller 
demanded 
Rs.25,00,000/- however, bargain was struck at Rs.3,00,000/-, which 
amount was delivered by leaving it at the place told by the caller to 
Muhammad Wali (PW-3). At this stage section 365-A PPC was added to 
the charge. The Investigating Officer obtained phone calls data of both 
the cell phones from the mobile company through one Rana Shahid 
Parvez, DSP on 03.08.2006. On 17.08.2006 both the appellants were 
arrested. During interrogation the appellants jointly disclosed that they 
had murdered the abductee Muhammad Bilal on 5th day of his 
Crl.As.496-497/09 
3
abduction at 12:00 midnight by chocking his mouth and the dead body 
was then buried in a ditch however, on 22.07.2006 they had received 
an amount of Rs.3,00,000/- as ransom money from Muhammad Wali 
PW, who is the son of the complainant. The appellants further 
disclosed that after abduction of the deceased on 16.07.2006, they 
tied him with a tree, situated on the bank of flood channel. The 
abductee was killed because he used to raise hue and cries.  
5. 
  
After the said disclosure, both the appellants were jointly 
taken to Tarnol area where they pointed out the place of crime, 
wherefrom mud stained torn ‘shalwar’, shirt and a pair of slippers, 
allegedly belonging to the deceased were recovered along with a 
wrapper of candies/toffees. A strip containing six pills was recovered 
from the pocket of the shirt of the deceased. These articles were 
identified by the father and cousin (Muhammad Wali) to be of 
Muhammad Bilal deceased on the spot. 12 pieces of bones were also 
recovered from the crime spot through a recovery memo and were 
sealed into one and the same parcel. A Suzuki Mehran Car No.FDO 
5481 with registration book was recovered from appellant Mujahid 
Khan besides, the cell phone with SIM No.0302-5071540 was also 
recovered from appellant Arbab Khan on his personal search.  
6. 
  
Both the appellants made judicial confession before Ch. 
Muhammad Taufiq, Magistrate on 18.08.2006 however, against the 
procedure as required under the law, they were handed over back to 
the same police officer, who got further physical custody of both the 
appellants on the same day from the Anti Terrorism Court, Rawalpindi.  
7. 
  
 Besides the above, appellant Mujahid Khan had also made 
extra-judicial confession before Haji Muhammad Ashraf (PW-8), the 
Crl.As.496-497/09 
4
close relative of the complainant, on 16.07.2006 at 11:00 am at 
Rawalpindi, however, Muhammad Ashraf instead of informing the 
complainant through any source including cell phone call, decided to 
proceed to Peshawar where, he had allegedly struck a bargain with 
regard to the purchase of property. According to him, he was required 
to pay the earnest money to the seller and when he came back, he 
informed the complainant on the following day about the said fact.  
8. 
  
At the trial, Muhammad Wali (PW-3) had stated that, on 
17.08.2006, they were present with the police party, headed by the 
Investigating Officer who got information that both the appellants were 
coming to Rawalpindi in the Suzuki Mehran Car, mentioned above, 
thus, the police laid barricade at Tarnol and both the appellants, on 
reaching there, were intercepted and arrested. Contrary to the police 
statement, this witness has further stated at the trial that both the 
appellants were taken to the crime spot one after another and at their 
pointation the above crime articles, clothes and pair of slippers were 
recovered therefrom, which were taken through separate memos, Ex-
PA and Ex.PB.  
9. 
  
The bones recovered, were sent to the Forensic Science 
Laboratory, Lahore however, Dr. Manzoor Hussain, Research Officer of 
Molecular Biology, University of Punjab, Lahore (PW-13) stated that he 
received 21 numbers of bones and in addition thereto teeth as well, 
however, these were not shown in Ex.PA. At the instance of Arbab 
Khan appellant, an amount of Rs.150,000/- was recovered from an 
iron box in his house. The attesting witnesses to the recovery memo 
(Ex.PG) are the complainant and Muhammad Wali, who have played 
very active role in the course of furthering the investigation of the 
case. 
Crl.As.496-497/09 
5
10. 
  
On the other hand, Dr. Manzoor Hussain (PW-13) brought 
on record the positive result of the DNA Test (Ex-PR) on the basis of 
samples, taken from Azeem Khan and Mst. Khiyal Bibi, the parents of 
the deceased with the recovered pieces of bones and teeth.  
11. 
  
At the conclusion of investigation, charge sheet was filed 
against the appellants in the Trial Court, which ended in the conviction 
of both the appellants stated above.  
12. 
  
The summary of the above detail would show that the 
prosecution has placed reliance on the following pieces of evidence:- 
(i) 
The cell-phone data, collected from the cellular 
company, of both the cell phones, the one allegedly 
belonging to appellant Arbab Khan and the other to 
Muhammad Wali (PW-3); 
(ii) 
The judicial confession of both the appellants 
recorded by the Magistrate; 
(iii) 
The extra-judicial confession made by one of the 
appellants, namely , Mujahid Khan, before Haji 
Muhammad 
Ashraf 
(PW-8), 
Vice 
President, 
“Anjuman-e- Tajran, Bara Market” Rawalpindi; 
(iv) 
The recovery of the bones (12 in number), clothes 
and slippers of the deceased from the crime spot; 
(v) 
The recovery of money from the house of the 
above appellant; 
(vi) 
The recovery of Suzuki Mehran Car, which one of 
the appellants had allegedly purchased from 
unknown seller, paying a portion of the ransom 
money; and  
(vii) 
Positive result of the DNA test. 
13. 
  
Undeniably, it is an un-witnessed crime. The entire edifice 
of the prosecution case is based on circumstantial evidence and 
Crl.As.496-497/09 
6
recovery of the alleged incriminating articles, detail of which is given 
above.  
14. 
  
The judicial confessions, allegedly made by both the 
appellants are the material piece of evidence in the prosecution hand, 
therefore, we would deal with the same in the first instance.  
15. 
  
Keeping in view the High Court Rules, laying down a 
binding procedure for taking required precautions and observing the 
requirements of the provision of section 364 read with section 164 
Cr.P.C. by now it has become a trite law that before recording 
confession and that too in crimes entailing capital punishment, the 
Recording Magistrate has to essentially observe all these mandatory 
precautions. The fundamental logic behind the same is that, all signs 
of fear inculcated by the Investigating Agency in the mind of the 
accused are to be shedded out and he is to be provided full assurance 
that in case he is not guilty or is not making a confession voluntarily 
then in that case, he would not be handed over back to the police. 
Thereafter, sufficient time for reflection is to be given after the first 
warning is administered. At the expiry of that time, Recording 
Magistrate has to administer the second warning and the accused shall 
be assured that now he was in the safe hands. All police officials 
whether in uniform or otherwise, including Naib Court attached to the 
Court must be kept outside the Court and beyond the view of the 
accused. After observing all these legal requirements if the accused 
person is willing to confess then, all required questions formulated by 
the High Court Rules should be put to him and the answers given, be 
recorded in the words spoken by him. The statement of accused be 
recorded by the Magistrate with his own hand and in case there is a 
genuine compelling reason then, a special note is to be given that the 
Crl.As.496-497/09 
7
same was dictated to a responsible official of the Court like 
Stenographer or Reader and oath shall also be administered to such 
official that he would correctly type or write the true and correct 
version, the accused stated and dictated by the Magistrate. In case, 
the accused is illiterate, the confession he makes, if recorded in 
another language i.e. Urdu or English then, after its completion, the 
same be read-over and explained to him in the language, the accused 
fully understand and thereafter a certificate, as required u/s 364 
Cr.P.C. with regard to these proceedings be given by the Magistrate 
under his seal and signatures and the accused shall be sent to jail on 
judicial remand and during this process at no occasion he shall be 
handed over to any police official/officer whether he is Naib Court 
wearing police uniform, or any other police official/officer, because 
such careless dispensation would considerably diminish the voluntary 
nature of the confession, made by the accused.  
16. 
  
In the instant case, the Recording Magistrate namely, Ch. 
Taufiq Ahmed did not observe least precautions, required under the 
law. He was so careless that the confessions of both the appellants 
were recorded on oath, grossly violating the law, the same, therefore, 
has rendered the confession inadmissible which cannot be safely relied 
upon keeping in view the principle of safe administration of justice.  
17. 
  
The Recording Magistrate committed successive illegalities 
one after the other as after recording the confessions of the appellants 
on oath, both were handed over to the same police officer, who had 
produced them in the Court in handcuffs. This fact bespeaks volumes 
that the Recording Magistrate was either not knowing the law on the 
subject or he was acting in the police way desired by it, compromising 
his judicial obligations. This careless attitude of the Magistrate 
Crl.As.496-497/09 
8
provided premium to the Investigating Agency because it was 
thereafter, that the recoveries of the so-called incriminating articles 
were made at the instance of the appellants, detail of which is 
mentioned above.  
18. 
  
In our considered view, the confessions of both the 
appellants for the above reasons are of no legal worth, to be relied 
upon and are excluded from consideration, more so, when these were 
retracted at the trial. Confessions of this nature, which were retracted 
by the appellants, cannot mutually corroborate each other on the 
principle that one tainted evidence cannot corroborate the other 
tainted piece of evidence. Similar view was taken by this Court in the 
case of Muhammad Bakhsh v. The State (PLD 1956 SC 420), while in 
the case of Khuda Bux v. The Crown (1969 SCMR 390) the confession 
made, was held not voluntary because the accused in that case was 
remanded back to the police after making confession. 
19. 
  
Both the confessions of the appellants prima facie appear 
to be untrue because the same are clashing with the story set up by 
prosecution witnesses on material particulars of the case. In the 
confession of Mujahid Khan it is stated that Arbab Khan co-accused 
contacted Haji Azeem Khan (father of the deceased) on phone and 
demanded an amount of Rs.25,00,000/- from him as ransom money 
also telling him that he will call back. While, Muhammad Wali (PW-3) 
stated that it was he who was contacted by the accused on cell phone 
in this regard four times on different dates and he struck the bargain 
at Rs.3,00,000/- which amount he placed at the point, told to him by 
the accused. The cell phone data collected by the police is with regard 
to the two cell-phones, one is attributed to Arbab Khan appellant and 
the other to PW Muhammad Wali. At the relevant time, Azeem Khan, 
Crl.As.496-497/09 
9
father of the deceased was abroad and only the complainant, Khan 
Wali and his son Muhammad Wali have been shown interacting with 
the caller on phone. The contradiction pointed out, is of a serious 
nature thus, has demolished the story given in the confessions of the 
appellants and has rendered the same of no legal efficacy. Appellant 
Mujahid Khan has disclosed in his confession that with the share of the 
ransom money he purchased Alto Taxi Car but a car of different make 
(Suzuki Mehran) was recovered. This aspect of the matter was also not 
investigated to trace out the seller of the car besides, the time and 
date of the bargain of purchase of the car was also not brought on 
record. Similarly, appellant Arbab Khan stated in his confessional 
statement that he had spent the money on his engagement with a girl. 
Neither the name of the girl has been brought on record nor of her 
family members i.e. parents, to corroborate this aspect of the matter. 
Such evidence would have provided enough corroboration what was 
stated in the confession but it appears that, the same was deliberately 
withheld therefore, adverse inference is to be drawn against the 
prosecution. In his confession (Ex-PM), appellant Mujahid Khan has 
stated that he and Arbab Khan both were called on phone by the police 
and were then arrested, while PW-3, stated at the trial that both the 
appellants were arrested during snap checking on a barricade, laid 
near Tarnol. The above contradiction is of a grave nature, which 
cannot be lightly ignored. At the trial, the Recording Magistrate made 
crude attempts to rectify the wrong/illegalities, he had committed in 
recording the two confessions however, the law of evidence is clear on 
this point that documentary evidence shall prevail over the oral 
statement made at a subsequent stage, contradicting the contents of 
documents. Therefore, his belated statement at the trial cannot be 
safely relied upon. The subsequent statement of the Recording 
Crl.As.496-497/09 
10
Magistrate created many doubts and had made both the confessions 
highly doubtful. In the circumstances the principle of re-benefit of 
doubt is attracted, which has to be extended to the appellants and not 
the prosecution. The questionnaire would show that many mandatory 
questions were not put to the appellants like duration of police custody 
and that they would not be given back to the police whether they 
record the confession or not. This is another infirmity of a serious 
nature, diminishing the voluntary nature of the confession to naught.  
20. 
  
Leaving apart the above infirmities, Mujahid Khan, 
according to his confession, was a conductor on a Dumper while Arbab 
Khan was employed in a local hotel near Tarnol. In both the 
confessions, the appellants have stated that due to poverty they 
decided to commit the crime of abduction for ransom however, the 
investigative agency did not record the statements of the driver/owner 
of the Dumper and the proprietor of the hotel where the accused were 
employed. Thus, beside others, this important link is missing in the 
chain for lack of corroborative evidence. Moreover, when both the 
appellants had spent their share of ransom money, then how an 
amount of Rs.150,000/- was recovered from appellant Arbab Khan. 
21. 
  
In both the confessions, it is stated that the abductee was 
immediately taken out to an open place and he was tied with a tree. 
One of the appellants, Mujahid Khan used to stay with him at night but 
at day time he used to leave behind the abductee all alone. Such 
unnatural conduct could not be believed as any passerby could come 
across and would have released the abductee. Such a fantastic story, 
bereft of logic, can only be believed by a blind or imprudent man 
because it was the abductee, on whom the appellants were to encash 
upon Rs.25,00,000/- No one, who catches a big fish would let it to 
Crl.As.496-497/09 
11
swim again in the seawater because, its retrieval would become 
absolutely impossible.  
22. 
  
The cell phone call data collected is of no help to the 
prosecution for the reasons that numerous calls have been made 
indicating continuous interaction between the two cell phones, 
contrary to the evidence given by Muhammad Wali (PW-3), who has 
stated at the trial that the unknown caller made calls on his cell phone 
four times. No competent witness was produced at the trial, who 
provided the call data, Ex.P-1 to Ex.P-5. No voice record transcript has 
been brought on record. Similarly from which area the caller made the 
calls, is also not shown in it. Above all, the most crucial and conclusive 
proof that the cell phone was owned by the accused and SIM allotted 
was in his name is also missing. In this view of the matter, this piece 
of evidence is absolutely inconclusive and of no benefit to the 
prosecution nor it connects the accused with the crime in any manner.  
23. 
  
The extra-judicial confession, allegedly made by one of the 
accused before Haji Muhammad Ashraf (PW-8), Vice President of the 
“Anjuman-e-Tajran, Bara Market” Rawalpindi appears to be a 
concocted story because he admitted that the complainant is related to 
him and they reside in the same street.  
 
Appellant Mujahid Khan allegedly made extra judicial confession 
before him on 14.08.2006, however, he being closely related and 
having somewhat business connection with the complainant, did not 
inform him immediately although he was having a car with him at that 
time and also a cell phone, rather he decided to go to Peshawar and 
when he came back on the following day, instead of persuading the 
complainant Khan Wali, under the direction of the latter, he 
Crl.As.496-497/09 
12
straightaway went to Police Post Naseerabad and recorded his 
statement with the police against both the appellants. His plea that he 
had struck a bargain of property and was to pay earnest money 
therefore, he went to Peshawar thus, could not inform the complainant 
for that reason, is a fallacious one. Being a very serious matter and 
being a relative of the complainant and because the complainant was 
residing in Rawalpindi, few kilometers away from that place, when he 
got this information at 10:30 am on 14.08.2006, there was no 
impediment in his way to inform him directly or through phone. 
Peshawar city is roughly 100 kilometer away from Rawalpindi, if at all 
he was required to strike a bargain for purchase of property, he could 
have reached there within 2 hours after disclosing this fact to the 
complainant. Even, the IO did not go to Peshawar to verify this 
assertion of the PW, as to whether he had gone to Peshawar for the 
above purpose and who was the seller of the property, with whom he 
had struck the bargain. No document about the bargain was produced 
to the Investigating Officer.  
 
Even otherwise, the story appears highly insensible and runs 
counter to natural human conduct and behaviour that the appellant, 
Mujahid Khan would have disclosed such a gruesome crime before this 
PW, involving the necks of both, knowing well that this witness was of 
no help to him/them because on record it is proved that this PW did 
not utter a single word to the complainant persuading him for re-
conciliation and for settlement, rather after disclosing the fact of 
disclosure of the crime, the appellant had made to him, he (Haji 
Muhammad Ashraf) on the direction of the complainant went straight 
to the Police Post and recorded his statement with the Investigating 
Officer. This, in our considered opinion, appears to be a concocted 
Crl.As.496-497/09 
13
story. He being the relative of the complainant and also running the 
business in the same market, where the complainant do the same 
business, the appellant Mujahid Khan would have never opted for 
disclosing such a gruesome crime to him, when by then the 
complainant party and the Investigating Agency, both were clueless 
about the crime of murder of the deceased and also about the actual 
culprits. This part of the evidence is nothing but a tailored story, which 
was arranged with the help of the Investigating Agency thus, it is of no 
legal worth and being absolutely unreliable is excluded from 
consideration.   
24. 
  
It is a consistent view of the Courts that extra-judicial 
confession, if made before a person of influence and authority, 
expected to extend helping hand to the accused, which is also strongly 
corroborated, can only be considered as a piece of circumstantial 
evidence. This Court held so in the case of  Noor Muhammad v. The 
State (1991 PSC 235). Such evidence is held to be the weakest type of 
evidence. No conviction on capital charge can be recorded on such 
evidence.  
25. 
  
The recovery of 12 numbers of bones, shirt, shalwar  and 
slippers of the deceased is also liable to be discarded. The recovery 
memo (Ex-PA) would show that father of the abductee, namely, 
Azeem Khan and PW Muhammad Wali are attesting witnesses to the 
same, who were naturally highly interested witnesses. Secondly, when 
this parcel was received after about one month in the Forensic Science 
Laboratory, Lahore, the numbers of bones were found 21 as have been 
shown in the report and in addition thereto, teeth were also received 
in the sealed parcel which, at no occasion was the case of the 
prosecution. Thus, this serious conflict between the two documents is 
Crl.As.496-497/09 
14
of such a nature, which could not be reconciled altogether, either by 
the learned ASC for the complainant or by the Additional Prosecutor 
General. This fact by itself creates sufficient doubts and on this score, 
the DNA test report is of no legal worth. 
 
The abductee was killed probably 2/3 days after 16.07.2006 
while pieces of bones were recovered on 17.08.2006 which were also 
overrun by the flood water of the channel and mud as well. According 
to the well-known medico-legal jurist, MODI such like destruction of 
entire body of human being, even of teenager is not possible within 
two months because some of visceras made of tough tissues and full 
skeleton of human body remain intact. This opinion of the jurist is 
based on practical experience in many cases of this nature, instances 
of which are given by him in the Chapter “STAGES OF PUTREFACTION 
OR DE-COMPOSITION OF BODY”. In this case, only scattered pieces of 
bones were recovered and not full skeleton of human body, which by 
itself is unbelievable, being against the well established and universally 
recognized juristic view on the subject. Thus, the possibility that the 
body of the person whether dead or alive was torn into pieces by 
beasts or dogs etc. Moreover, from where the nine additional bones 
and teeth were arranged by the police and when these were put in the 
same parcel, is a big question mark for which the prosecution has got 
no answer to give. In any case, the recovery of the pieces of bones 
after one month is entirely doubtful in light of the view expressed by 
MODI in his book. Same is the view of other renowned Jurists on the 
subject.  
26. 
  
The next piece of evidence is the positive result of the DNA 
test. Whether the report was legally admissible, keeping in view the 
provision of section 510 Cr.P.C. where-under, the report of 
Crl.As.496-497/09 
15
biochemical  expert on DNA (a biochemist) is not covered thus, it is 
open to a serious debate because under the above provision of law, 
specified experts’ reports, excluding the report of above said expert, 
have been made admissible. This aspect would be discussed and 
decided in some other cases elaborately however, at present we are 
unable to hold the same as an admissible piece of evidence in absence 
of any sanction of law.  
27. 
  
In the recent past many scandals in USA, UK and other 
countries have surfaced where desired DNA test reports were procured 
by 
the 
investigative 
by 
contaminating 
the 
samples. 
Such 
contamination has also been reported in some cases while the samples 
remained in the laboratories. Many inquires were held on this issue 
and stringent law has been made by many States to prevent the 
contamination of samples outside and inside the laboratories. Proper 
procedure has been laid down for securing and carefully putting into 
parcel the suspected materials to co-relate with the samples of the 
parents to establish paternity or maternity. Similarly, stringent check 
and procedure has been provided to avoid and prevent cross 
contamination of the two samples because if both come in contact with 
each others then, it will give false positive appearance and the expert 
is thus misled. It has also been discovered that credentials of many 
experts, claiming possessed of higher qualification in this particular 
field, were found fake and they were thus, removed from service. The 
DNA Wikipedia on web is an unrebutted testimony to these facts. 
28. 
  
In any case, it is an expert opinion and even if it is 
admitted into the evidence and relied upon, would in no manner be 
sufficient to connect the necks of the appellants with the commission 
of the crime when the bulk of other evidence has been held by us 
Crl.As.496-497/09 
16
unbelievable thus, no reliance can be placed on it to award a capital 
sentence. Moreover, to ensure fair-play and transparency, the samples 
in the laboratories from the parents should have been taken in the 
presence of some independent authority like a Magistrate and also the 
recovered samples from the crime scene in the same way to dispel the 
chances of fabrication of evidence through corrupt practices and the 
transition of the samples to the laboratory should have also been 
made in a safe and secure manner.  But all these safeguards were 
kept aside.  
29. 
  
The plea of the learned ASC for the complainant and the 
learned Additional Prosecutor General, Punjab that because the 
complainant party was having no enmity to falsely implicate the 
appellants in such a heinous crime thus, the evidence adduced shall be 
believed, is entirely misconceived one. It is a cardinal principle of 
justice and law that only the intrinsic worth and probative value of the 
evidence would play a decisive role in determining the guilt or 
innocence of an accused person. Even evidence of uninterested 
witness, not inimical to the accused, may be corrupted deliberately 
while evidence of inimical witness, if found consistent with the other 
evidence corroborating it, may be relied upon. Reliance in this regard 
may be placed on the case of Waqar Zaheer vs. The State (1991 PSC 
281) 
30. 
  
We have found that in the recovery memo with regard to 
the bones, clothes of the deceased and pair of slippers, subsequently 
addition has been made at a later stage and for that reason alone, the 
same is liable to be discarded. In the case of Muhammad Sharif v. The 
State (1980 SCMR 231) interpolation/over-writings made in the 
inquest report, were considered seriously by this Court and it was held 
Crl.As.496-497/09 
17
that in such a case the Court should be at guard and has to take extra 
care in making the appraisal of evidence, because once dishonesty in 
the course of investigation is discovered then Court would always seek 
strong corroboratory evidence before relying on the other evidence of 
the prosecution.  
31. 
  
As discussed earlier, the entire case of the prosecution is 
based on circumstantial evidence. The principle of law, consistently 
laid down by this Court is, that different pieces of such evidence have 
to make one chain, an unbroken one where one end of it touches the 
dead body and the other the neck of the accused. In case of any 
missing link in the chain, the whole chain is broken and no conviction 
can be recorded in crimes entailing capital punishment. This principle 
is fully attracted to the facts and circumstances of the present case. 
32. 
  
It is also a well embedded principle of law and justice that 
no one should be construed into a crime on the basis of presumption in 
the absence of strong evidence of unimpeachable character and legally 
admissible one. Similarly, mere heinous or gruesome nature of crime 
shall not detract the Court of law in any manner from the due course 
to judge and make the appraisal of evidence in a laid down manner 
and to extend the benefit of reasonable doubt to an accused person 
being indefeasible and inalienable right of an accused. In getting 
influence from the nature of the crime and other extraneous 
consideration might lead the Judges to a patently wrong conclusion. In 
that event the justice would be casualty.  
 
In cases of circumstantial evidence, the Courts are to take 
extraordinary care and caution before relying on the same. 
Circumstantial evidence, even if supported by defective or inadequate 
Crl.As.496-497/09 
18
evidence, cannot be made basis for conviction on a capital charge, 
More particularly, when there are indications of design in the 
preparation of a case or introducing any piece of fabricated evidence, 
the Court should always be mindful to take extraordinary precautions, 
so that the possibility of it being deliberately misled into false 
inference and patently wrong conclusion is to be ruled out, therefore 
hard and fast rules should be applied for carefully and narrowly 
examining circumstantial evidence in such cases because chances of 
fabricating such evidence are always there. To justify the inference of 
guilt of an accused person, the circumstantial evidence must be of a 
quality to be incompatible with the innocence of the accused. If such 
circumstantial evidence is not of that standard and quality, it would be 
highly dangerous to rely upon the same by awarding capital 
punishment. The better and safe course would be not to rely upon it in 
securing the ends of justice.  
33. 
  
In the instant case, both the learned Trial Judge and the 
learned Division Bench of the High Court in the impugned judgment 
have not observed, nor have taken care of these guiding and leading 
principles universally accepted and have at random relied on highly 
cryptic, infirm and incredible evidence, resulting into miscarriage of 
justice.  
For the above mentioned reasons, Crl. Appeal No.497/2009 filed 
by the appellants, Mujahid Khan and Arbab Khan is allowed, while the 
connected appeal (Crl.Appeal No.496/09) filed by the complainant is 
dismissed. These are the detailed reasons for our short order of the 
even date, which is reproduced below:- 
“For detailed reasons to be recorded later on Criminal 
Appeal No.496 of 2009 is dismissed and Criminal Appeal 
Crl.As.496-497/09 
19
No.497 of 2009 is allowed, the convictions and sentences 
of both the appellants in Criminal Appeal No.497 of 2009 
recorded and upheld by the courts below are set aside 
and they are acquitted of the charge by extending the 
benefit of doubt to them. They shall be released from the 
jail forthwith if not required to be detained in connection 
with any other case.”  
 
Judge  
 
 
Judge  
 
 
Judge  
Islamabad, the   
15th October, 2015 
Nisar/-‘ 
‘Approved for reporting’ 
 
