2022 PLP 181 (YLRN)

SHEHRAM SARWAR CH. J.

Muhammad Nawaz and Bahadur Khan (appellants) along with their co-accused namely Muhammad Sher, Muhammad Riaz and Sher Muhammad were tried by the learned Addl. Sessions Judge, Mianwali in a private complaint instituted under sections 302, 364, 201, 148 and 149, P.P.C. by Bahadur, Khan, complainant (PW.4) being dissatisfied with the investigation conducted by police in case FIR No.186 dated 28.07.2010, offence under section 364, P.P.C., registered at Police Station Wan Bachran District Mianwali for the murder of Khalid Mehmood (deceased) brother of complainant. Vide judgment dated 29.06.2012 passed by learned trial court, the appellants have been convicted under section 302(b), P.P.C. and sentenced to imprisonment for life R.I. each, with a further .direction to pay Rs.25,000/- each as compensation .under section 544-A, Code of Criminal Procedure, to the legal heirs of deceased and in default whereof to further undergo three months simple imprisonment each. The appellants have also been convicted under section 201, P.P.C. and sentenced to seven years imprisonment with fine of Rs.10,000/- each and in default thereof, to further undergo three months S.I. each. Muhammad Nawaz, appellant was further convicted under section 364, P.P.C. and sentenced to ten years R.I. with fine of Rs.10,000/- and in default, to further undergo three months S.I. All the sentences of appellants were ordered to run concurrently with benefit of section 382-B, Cr.P.C. However, the appellants were acquitted of the charge under sections 148 and 149, P.P.C. Through the same judgment, Muhammad Sher, Muhammad Riaz and Sher Muhammad, co-accused of the appellants were acquitted of the charge and Cr

1. P.S.L.A. No.130 of 2013 filed by the complainant against their acquittal was dismissed on merits by this Court vide order dated 18.02.2016. Assailing the above convictions and sentences, the appellants have filed the appeal in hand whereas the complainant preferred Crl. Revision No.796 of 2013 for enhancement of sentence of the appellants and compensation amount imposed upon the appellants. Since both these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Ex.CW.1/A) registered on the written application of Bahadur, complainant (PW.4) is that on the intervening night of 26/27.07.2010, he as well as his father Muhammad Hayat, brother Khalid Mehmood, Muhammad Abdul Rehman, Muhammad Qasim and Sher Muhammad were present at his dera and were busy in the treatment of buffalo. At about 10.30, Muhammad Nawaz came at the dera of complainant and called Khalid Mehmood brother of complainant, stating that his tractor was to be started and his help was required. After three hours, Khalid Mehmood did not come back and the complainant along with Abdul Rehman went to the dera of Muhammad Nawaz where Muhammad Sher met them who told that both of them had not yet come to the dera. It was further alleged in the FIR that the complainant had suspicion that the accused persons committed the murder of Khalid Mehmood. Motive behind the occurrence was that Muhammad Nawaz (appellant) suspected that Khalid Mehmood had illicit liaison with his daughter Mst. Robina Bibi.

3. Arguments heard, record perused.

4. The occurrence qua missing of Khalid Mehmood (deceased) allegedly took place on 26.07.2010 at about 10:30 p.m. whereas the matter was reported to the police on 28.07.2010 at 3:45 p.m. The distance between police station and the place of occurrence is ten kilometers. There is a delay of about two days in reporting the crime to the police without there being any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court the material witnesses of prosecution did not utter even a single word about the above said delay. Therefore, I hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as "Altaf Hussain v. The State" (2019 SCMR 274). There was no direct evidence against the appellants. No one had seen the appellants while killing Khalid Mehmood (deceased). The roles played by the appellants in the incident in issue had not been bought on record. The dead-body of deceased was not recovered at the instance of appellants. The prosecution case is mainly based upon the evidence of last seen, wajtakkar and extra judicial confession of appellants. Bahadur Khan, complainant (PW.4), Sher Muhammad (PW.5), Muhammad Iltaf (PW.6) and Dost Muhammad (PW.7) furnished the evidence of last seen. It was the claim of Bahadur Khan, complainant (PW.4) and Sher Muhammad (PW.5) that on the intervening night of 26th and 27th, July, 2010 at about 10:30 p.m. Muhammad Nawaz (appellant) came at their dera and took Khalid Mehmood (deceased) with him for help to start his tractor. Similarly, it was the claim of Muhammad Iltaf (PW.6) and Dost Muhammad (PW.7) that on the midnight of 26th and 27th, July, 2010 they were present in the field for the purpose of watering their crop where they saw Khalid Mehmood in the company of appellants and their co-accused. The story cooked up by the prosecution qua last seen seems to be after thought because if all these PWs had seen the appellants and their co-accused in the company of appellants and their co-accused as to why they remained silent for a long time and did not report the matter to the police. Even otherwise last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case. Reliance is placed on case law titled as "Altaf Hussain v. Fakhar Hussain and another" (PLJ 2008 SC 687). Moreover, the Hon'ble Supreme Court of Pakistan in its judgment titled as "Muhammad Abid v. The State and another" (PLD 2018 Supreme Court 813) has given an exhaustive view about the theory of last seen which is reproduced as under:- "5. ...The theory of last seen together is one where two persons are 'seen together' alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption can be drawn that the person alive is the author of the other's death. Time gap between the sighting and the occurrence should be such as to rule out possibility of somebody else committing the crime. The circumstance of the deceased being last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. There must be evidence to link the accused with the murder of his companion, such as incriminating facts as recovery, strong motive and the proximate time when they were last seen together and the time when the deceased was killed. Last seen evidence as circumstantial evidence must be incompatible with the innocence of the accused and should be accepted with great caution. It must be scrutinized minutely so that no plausible conclusion should be drawn therefrom except guilt of the accused.

6. The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires

1. Cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused.

2. Proximity of the crime scene.

3. Small time gap between the sighting and crime

4. No possibility of third person interference

5. Motive.

6. Time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectively between the accused and the crime." The evidence of wajtakkar was furnished by Ghulam Muhammad (PW.8) and Abdul Sattar. (PW.9). It was their claim that on the intervening night of 26th and 27th, July, 2010 at about 2:30 a.m. when they reached near the northern outlet of Canal Mohajir Branch they saw the appellants and their co-accused while armed with rifles who crossed the complainant party without any conversation. It was not the claim of both these PWs that they saw the appellants and their co-accused in a perplexed condition. Moreover, both these PWs have not stated any plausible reason for their presence near the northern outlet of canal Mohajir Branch on the fateful night and as such the said piece of evidence is not helpful for the prosecution. It was also the case of prosecution that on 03.08.2010 at about digar vela the appellants and their co-accused allegedly made their extra judicial confession before Khuda Bakhsh (PW.10) and Fateh Muhammad (PW.11). The said piece of evidence is of no avail to the prosecution because it is not understandable as to why the appellants and their co-accused made extra judicial confession before the above said PWs despite the fact that they were not influential persons. Moreover, it does not appeal to a prudent mind as to what prompted the appellants to confess their guilt before the above said PWs because at that time, there was no evidence against the appellants regarding their involvement in this crime. Furthermore, at the time of alleged extra judicial confession of the appellants the witnesses before whom they confessed their guilt did not try to catch hold of the appellants. The mode and manners in which the appellants committed the murder of deceased have not been brought on record by the complainant. The most important and natural purpose of making extra-judicial confession is to seek help from a third person and the same is usually sought from an influential person who had some authority/power in the society but in the case in hand the witnesses of extra judicial confession was an ordinary person. Furthermore, extra judicial confession is always considered a weak type of evidence and it is procured at any time during the investigation when there is no direct evidence available to the prosecution. Moreover, the legal worth of the extra judicial confession too is almost equal to naught, keeping in view the natural course of events, human behaviours, conduct and probabilities, in ordinary course. Needless to remark that extra judicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source, therefore, in my view this piece of evidence is entirely insufficient to maintain 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. Reliance is placed on case laws titled as "Hamid Nadeem v. The State" (2011 SCMR 1233), "Imran alias Dully and another v. The State and others" (2015 SCMR 155), Muhammad Nawaz and others v. The State and others" (2016 SCMR 267) and "Nasir Javaid and another v. The State" (2016 SCMR 1144). There is another aspect of the case. Muhammad Sher, Muhammad Riaz and Sher Muhammad co-accused of the appellants having similar role with that of the appellants have been acquitted by the learned trial Court and Crl. PSLA against their, acquittal has been dismissed by this Court, therefore, the evidence. which has been disbelieved against co-accused of the appellants cannot be believed against the appellants. I have further noted that no solid evidence qua motive part of incident was produced by the prosecution during the trial. Moreover, medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards the appellants implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem v. Shabbir Ahmad and others" (2016 SCMR 1605).

5. As far as the defence pleas taken by the appellants in their statements under section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.

6. I have considered all the pros and cons of this case and have come to this irresistible .conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may be placed on the case law reported as "Muhammad Akram v. The State" (2009 SCMR 230).

7. For the foregoing reasons, the appeal in hand filed by Bahadur Khan and Muhammad Nawaz (appellants) are allowed, convictions and sentences awarded to them vide judgment dated 29.06.2012 passed by the learned Addl. Sessions Judge, Mianwali are set aside and the appellants are acquitted of the charge levelled against them while extending them benefit of doubt. The appellants are present in the Court on bail. Their sureties are discharged from the liability of bail bonds.

8. In view of above discussion, Criminal Revision No.796 of 2013 filed by complainant for enhancement of sentences of appellants having no merits is dismissed. JK/M-107/L Appeals allowed.