1996 PLP 1311 (MLD)

4. After recording the F.I.R. Exh.P.C. P.W.7 Zaheer Ahmad Sub? Inspector proceeded to the place of occurrence; where after examined the dead body and prepared the inquest report Exh.P.G. and injury statement Exh.P.H.; sent the dead body to mortuary for post-mortem examination; collected blood?stained earth from the spot which was taken into possession vide recovery memo. Exh.P.F.; got prepared site plan Exh.P.B. and Exh.P.B./1; conducted the investigation; on the same day; took into possession the last worn clothes of the deceased vide recovery memo. Exh.P.A. as produced by P.W.2 Khalid Mahmood; arrested the accused on 11-2-1989 from his house; on 23-2-1989 on the pointation of the appellant/convict recovered and took into possession hatchet P.5 vide recovery memo. Exh.P.D. and cycle P.6 vide recovery memo. Exh.P respectively prepared site plan Exh.P`J. of the place of recovery; recorded the statement of the witnesses under section 161, Cr.P.C. and after conducting investigation challaned the appellant/convict in the case.

5. At the trial, the prosecution examined as many as 9 witnesses to prove its version and gave up Anwar P.W. and tendered in evidence the reports of Chemical Examiner P.L. P.M. and reports of Serologist Exh.P.N. and Exh.P.0. P. W.1 Muhammad Iqbal, Head Constable; P. W.2 Khalid Mehmood, Constable, P.W.3 Khalid Mahmood, Patwari and P.W.8 Munir Ahmad, Inspector/S.H.O. are the formal witnesses who have supported the prosecution version.

6. P.W.9 Dr. Muhammad Akram, M.O., T.H.Q. Hospital, Jaranwala who performed the post-mortem examination of the deceased; P.W.7 Zaheer Ahmad, Investigating Officer who conducted the investigation of the case, supported the version of prosecution.

7. P.W.7 Mst. Fatima Bibi complainant, mother of the deceased supported the contents of F.I.R.; while P.W.5 Muhammad Akbar and P.W.6 Muhammad Anwar, who are the last seen witnesses fully supported the prosecution version.

8. The statement of appellant/convict was recorded under section 342, Cr.P.C. wherein he stated to be innocent and was involved as a result of enmity and stated that the murder of Kamir deceased was committed by P.W.5 Muhammad Akbar and P.W.6 Muhammad Anwar, who are real brothers who had concocted a false story against him, he did not produce defence evidence nor he appeared as his own defence witness under section 340(2), Cr.P.C.

9. I have heard the arguments of learned counsel at length and have perused the record with his able assistance.

10. It is an admitted fact that the murder of deceased was not witnessed by any P.W. and there is no direct evidence in this case; the case of the prosecution as such hinges on the point of medical evidence; last seen; motive and recoveries; which pieces of evidence, as observed by the learned trial Court have been collected during the investigation of the case.

11. As indicated above, the deceased was last seen in the company of appellant/convict on 6-2-1989 as informed by P.W.5 Muhammad Akbar and P.W.6 Muhammad Anwar. The learned trial Judge considering the P'Ws. as independent and disinterested persons and without any hesitation accepted their statements as correct as they were not inimically deposed of towards the appellant/convict and held that: "but it is strange that the defence has not put any specific enmity to the P.Ws. nor the complainant and no cross-examination was conducted".

12. It is not necessary that one should depose against another due to enmity, some time other considerations do play its part; in such evidence, the Courts must make an effort to disengage the grain from the chaff. It is an error to take an easy way by holding the evidence as unimpeachable or discrepant but the paramount duty of every Court is to analyse the evidence carefully and scrupulously and if that is not possible give the benefit of it to the accused so that the innocent may not be convicted.

13. It is worth consideration that P.W.4 Mst. Fatima complainant had conceded in cross-examination that after refusal to give hand of her daughter Mst. Naziran Bibi to the appellant/convict; the deceased Kamir had restrained the appellant to visit his home and were not on visiting terms with each other thenceforth; further it is on record that the said Mst. Naziran, daughter of the complainant was given into Nikah to a nephew of Anwar P.W. and in lieu of that marriage the daughter of said Anwar P.W. was given into Nikah of Kamir deceased but both the marriages were dissolved due to strained relations and admittedly Muhammad Anwar P.W.6 nourished enmity against the deceased.

14. It is also astonishing that P.W.6 Muhammad Anwar conceded and deposed in cross-examination that: "I did not record my statement before the police"; as the statement of P.W.6 Muhammad Anwar was not recorded under B section 161, Cr.P.C. by the Investigating Officer; the statement of P.W.6 is inadmissible and has no evidentiary value and is not worth consideration at all. It shows that the P.W.7 Zaheer Ahmad, Investigating Officer had dishonestly investigated the case; in this view of the matter, the prosecution evidence has to be appreciated with care and caution.

15. The conviction of the appellant rested on the solitary statement of P.W.5 Muhammad Akbar; real brother of P.W.6 Muhammad Anwar who admittedly had strained relations with the deceased; his statement could not be relied upon without corroboration of unimpeachable witness. No doubt, in criminal case the conviction of an accused can be based on the statement of one witness without corroboration but the condition is that the witness should be absolutely dependable as observed in case Gulistan and others v. The State 1995 SCMR 1789.

16. For the reason mentioned above the evidence of solitary prosecution witness that is P.W.5 Muhammad Akbar is not reliable and is to be scrutinized with care and caution.

17. In an unreported judgment Criminal Appeal No.527 of 1976 titled Rehmat alias Rehman v. The State, decided on 5-4-1977; their Lordships observed that on the whole of evidence of the deceased having been last seen alive in the company of the accused was regarded as a weak type of circumstantial evidence to base a conviction on it and this view was upheld by the Supreme Court in case Nagib Ullah and another v. The State PLD 1978 SC

21. Similarly like the facts of case in hand, in cases Basunt Singh v. Emperor AIR 1927 Lah. 541, Siraj v. The Crown PLD 1956 FC 123 and Muhammad Hanif v. The State 1995 PCr.LJ 985 the accused were in whom company the deceased were last seen alive, subsequent to their disappearance; the accused led the police to the place where the deceased were murdered and their dead bodies were recovered. It was held that though "grave suspicion" were attached to the accused; but the circumstances were not sufficient to establish their guilt because of the possibility that the deceased might had been murdered by someone else.

18. On a balance of the decided cases; it appears that the circumstances of the deceased having been last seen in the company of accused is not by itself sufficient to sustain the charge of murder as has been done by the learned trial Judge in the present case. As there was no direct evidence of the murder, hence the conviction on the basis that he was the last person seen with the deceased is not maintainable in view of the dictum laid down in the supra cases.

19. The attending circumstances also cast doubt as to the genuineness of the recovery. P.W.7 Zaheer Ahmad, Sub-Inspector/Investigating Officer deposed that he arrested the appellant on 11-2-1989 from his house and on 23-2-1989; the appellant led to the recovery of hatchet P.5 and bicycle P.6 from his house from where he was arrested on 11-2-1989 which was not inhabited by any of the family members at the time of effecting the recoveries; conceded that the house of the appellant was situated in thickly populated area; neither he tried to join the local inhabitants at the time of recovery nor anyone from the locality came there. P.W. Muhammad Akbar deposed that the house was open and empty at that time; there was no other luggage in the room except a bag lying beneath which the axe was lying and the bicycle; the learned trial Judge took the said recovery as proved by observing that "it is unbelievable as to why the police should plant anything as to have been recovered from the accused falsely. No mala fides or malice has been alleged against the police".

20. The manner in which the recoveries have been made on 23-2-1989 from the house of the appellant wherefrom he was arrested on 11-2-1989, no prudent person will believe such recoveries. Further the recovery is in violation of section 103, Cr.P.C., as their lordships in case Muhammad Khan v. Dost Muhammad and 17 others PLD 1975 SC 607 observed that the Courts should ordinarily insist on strict compliance with such requirement and view its non ?compliance with suspicion unless failure to secure presence of respectable witnesses or to examine them in Court sufficiently explained. In case Muhammad Shafi v. The State PLD 1987 FSC 16 it was observed while dealing with section 103, Cr.P.C. that the provisions of section 103, Cr.P.C. are designed to safeguard possible plantation of property and consequent false implication of an accused person. The purpose of section 103, Cr.P.C. is to ensure that the testimony given in Court in regard to the result of a search should not depend upon the Police Officer alone but also upon the evidence of independent person and all possibility of conviction in the case of search be minimised by the availability of independent persons. As conceded by the Investigating Officer that the house of the appellant was situated in a thickly populated area, neither he tried to join the local inhabitants at the time of recovery nor anyone from the locality came there is violative of mandatory provisions of section 103, Cr.P.C. as observed in case Zakir Khan and others v. The State 1995 SCMR 1793 it was observed that the object behind section 103, Cr.P.C. appears to be to ensure that independent witnesses are associated with investigation of the accused and possibility of concocted evidence is ruled out.

21. The observations of the learned Judge, on the basis of which, he has convicted the appellant that it is strange that the defence has not put any specific enmity to the P.Ws. nor the complainant no cross-examination was conducted and even did not produce his defence version is based on surmises and conjectures. It is well-settled principle of law that the approach of the Court of appeal should be to see the entire evidence and material before it if the case against the accused has been proved beyond any reasonable doubt.

22. In view of what has been discussed above, I am inclined to hold that the testimony of the prosecution witnesses is not reliable at all and is liable to be ignored without any hesitation, I, therefore, hold that this is case where the appellant is entitled to benefit of doubt. I allow this appeal and set aside the conviction and sentence of the appellant and direct that the appellant be released forthwith if he is not required to be detained in any other case. N.H.Q./A-21/L??????????????????????????????????????????????????????????????????????????????????? Appeal allowed.