2009 P Cr (PLP)

MUHAMMAD IQBAL MAHAR, J.

This appeal is directed against the judgment dated 21-11-2006 passed by learned Vth Additional Sessions Judge, Karachi-South, whereby the appellant was convicted under section 302(b), P.P.C. for committing murder of Shireen Shah and was sentenced to suffer rigorous imprisonment for life as Tazir and to pay fine of Rs.1,00,

000. In default thereof to undergo six months more. However, he was extended the benefit of section 382-B, Cr.P.C. Brief facts of the prosecution case are that complainant Tahir Shah resides in Manzoor Colony along with his family members' and he runs workshop of making fur jackets which is situated near the house along rivulet. Haji Farid is his partner in workshop. His brother Shireen Shah, paternal-cousin Ahmed Shah, friend Mumtaz and others, namely, Zafar, Ghulam Hussain and Khizer worked there. Zafar, Rafique alias Daulat, Khizer and Mumtaz used to live in workshop. One day before this F.I.R. at night time some material was misplaced whereupon his partner had asked them to arrange the misplaced material otherwise the matter would be reported to police. On 22-9-1997 at 2200 hours Shireen Shah came to his house and after taking meal he went back to factory because he had to sleep in the factory. After about 10 to 15 minutes complainant went towards the workshop but the door of workshop was closed from inside, therefore, he gave a round to Awami Chowk and went back. At about 2230 hours he saw Khizer, Zafar and Rafique alias Daulat standing outside the workshop and crying. On inquiry they told that when they had gone to take meal at that time Ahmed Shah and Mumtaz were present in the workshop while on return back they found the door of workshop was closed and after opening the door went inside and saw that Shireen Shah was lying dead. The complainant then went inside and saw Shireen Shah lying dead. He was sustaining injuries and was bleeding. It is stated by the complainant that accused Ahmed Shah and Mumtaz were seen by Naveed one Kababwalla while running away. Complainant suspected upon those that they had murdered his brother and recorded such statement before police. His statement was incorporated into 154, Cr.P.C. book and thereafter the police during investigation arrested the appellant and challaned him before the Court of law showing co-accused Ahmed Shah as absconder. Copies of police papers were supplied to the appellant, charge was framed to which he denied and claimed trial of the case. The prosecution in order to prove its case examined (1) Muhammad Shahzad SIP, (2) complainant Tahir Shah, (3) P.W. Ali Zaman, (4) Afzal Shah, (5) Muhammad Zahir, (6) Syed Farhat Abbas, M.O., (7) Syed Azmatullah, (8) Judicial Magistrate and (9) S.I.P. Ali Ahmed. Thereafter, the prosecution closed its side. Statement of accused under section 342, Cr.P.C. was recorded but the appellant denied each and every allegation levelled against him and claimed his innocence. The learned trial Court after hearing the parties awarded conviction to the appellant as above which has been impugned through this appeal. The learned counsel for appellant contended that this is a unseen murder as none has seen the appellant and co-accused Ahmed Shah committing murder of Shireen Shah but only there is last seen evidence against the appellant that he and co-accused Ahmed Shah were seen with deceased before his murder. He contended that there is no motive of the incident and neither the partner of complainant nor the persons who were working at the workshop have been examined by the prosecution. He further contended that the alleged recovery of blood-stained Chhuri will not connect the appellant with the commission of offence because the same was recovered after four days of the arrest of appellant and the report of chemical analyzer has not been produced by the prosecution to verify that the Chhuri was stained of human blood. He lastly argued that there are material contradictions in between the depositions of P.Ws. which create doubt regarding the involvement of the appellant in the murder of Shireen Shah but has not been considered by the trial Court, therefore he prayed for the acquittal of appellant/accused. In support of his contentions he relied upon the cases reported as (1) Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047, (2) Muhammad Arshad alias Kali v. The State 2005 YLR 1248 and (3) Ghulam Mustafa alias Ziau v. The State PLD 1991 SC

718. Conversely, the learned Assistant Prosecutor General opposed the acquittal of the appellant and supported the judgment of learned trial Court. I have given anxious consideration to the arguments advanced by the learned counsel for parties and have gone through the evidence available on record as well as case-law relied upon by learned counsel for the appellant. It has come on record that the death of deceased Shireen Shah is unnatural and this fact has not been denied by the learned counsel for appellant but it is laid down in the case reported in 1992 SCMR 1047 that medical evidence by itself and without more cannot throw any light on the identity of the assailants. It is an admitted fact that the incident is an un-witnessed and there is no direct evidence as none of the P.Ws. examined by the prosecution has stated that any of them saw the appellant and co-accused while committing murder of deceased Shireen Shah. As per F.I.R. and deposition of complainant his evidence is hearsay to the extent that he was informed .by Muhammad Zahid that appellant Mumtaz entered into the workshop through roof and after incident he and Ahmed Shah were seen running away. Furthermore, the complainant has deposed in his cross-examination that:

"It is correct to suggest I personally not saw my brother Shireen Shah while murder. It is correct that persons who told me about murder of my brother had not seen the deceased while murder vol. says that they disclosed that when they were going for dinner they saw Mumtaz, Ahmed Shah and deceased Shireen Shah present in the factory." The complainant in his 154, Cr.P.C. statement before police has stated that:

"At 2230 hours Khizir, Zafar and Rafiq alias Doulat were standing outside the 'workshop and crying who on my inquiry told that when they had gone out from workshop for having meal at that time Ahmed Shah and Mumtaz were present in workshop while on return found workshop closed and when' after opening door went inside saw that any one has murdered Shireen Shah." This shows that there is no last seen evidence as they did not inform the complainant that deceased and accused were in workshop. Furthermore, none from above these three persons has been examined by the prosecution. Apart from that there is evidence of P.W. Ali Zaman and Muhammad Zahid P.W. Ali Zaman has deposed that:

"I saw accused Mumtaz came at roof of the Karkhana of complainant and came down, opened the voice of deck loudly and heard the noise of Shireen Shah, he was calling the names of Mumtaz and Ahmad Shah" and after some time he and P.W. Muhammad Zahid saw accused Mumtaz and Ahmed Shah running away from Nala." It is crystal clear that he has not seen appellant, co-accused Ahmed Shah and deceased but only he heard that Shireen Shah was calling Mumtaz and Ahmed Shah, this statement does not prove the last seen evidence. So far the motive of the incident is concerned the prosecution has failed to prove the same as not a single word regarding motive has come on record from the mouth of P.Ws. examined by prosecution. Now I am coming to circumstantial evidence which is in the shape of recovery of blood-stained shirt of appellant and blood-stained Chhuri. It is the case of prosecution that on the fateful night appellant and co-accused Ahmed Shah were seen running by the Nala. It has also p been stated by P.Ws. that at that time the shirt of accused was not blood-stained. Furthermore, as per Mashirnama the said shirt was produced by complainant before police on 23-9-1997 and he stated that the same was lying on the side of rivulet and he found on the day of occurrence, but at the time of evidence he stated that:

"On 23-9-1997 the shirt of accused Mumtaz was recovered which was stained with blood which was recovered by S.-I. Ali Ahmed in my presence and Ghulam Hussain, Khizir and Zafar." This shows that the complainant himself is not sure as to whether the same was recovered from Nala by him or by S.-I. Ahmed Ali. So far recovery of Chhuri is concerned the appellant was arrested on 8-10-1997 but Chhuri was allegedly recovered on 12-10-1997 from the factory of complainant in presence of complainant and one Head Constable and none from the factory or from the vicinity was joined in recovery proceedings. Furthermore, the prosecution has failed to bring report of chemical analyzer on record, which shows that there was human blood on the Chhuri. It is pertinent to mention here that the complainant is interested witness as he is brother of deceased and he himself acted as Mashir of place of occurrence, inspection of dead-body, production of shirt of accused, arrest of accused and recovery of Chhuri, which requires independent corroboration the same is lacking in this case. In the case-law reported in PLD 1991 SC 718 it is observed by Honourable apex Court that:

"Ss. 302 and 404

Appreciation of evidence

Last seen evidence

Girl aged 7/8 years was found dead in a sugarcane field, her Shalwar having been removed was lying nearby; there were injuries on the mouth, on both sides of neck and chine and blood was also coming out from her private parts as someone had committed rape and killed her by strangulation

Neither there was any motive or eye-witness nor any recovery had been effected from the accused to connect him with commission of the crime

High Court had rightly rejected the evidence of two prosecution witnesses regarding extra-judicial confession

High Court had relied on medical evidence and last seen evidence (cousin of complainant) and upheld the conviction of accused

Held, medical evidence by itself would not connect the accused with the crime, therefore, it was the "last seen" evidence which had led the High Court to maintain the conviction of the accused

When the evidence regarding extra-judicial confession was disbelieved and recoveries were not connected with the crime, no conviction could be based merely on the evidence of the fact that deceased was last seen together with the accused

Evidence of last seen witness who had some connection with the deceased required corroboration and circumstances of the deceased having been last seen in the company of the accused was thus not by itself sufficient to sustain the charge of murder against accused as further evidence was required to link the accused with the crime

High Court, therefore, fell in error in proceeding to examine the aspect of the case by holding that since there was no enmity with the accused, the ipse dixit of the witness of the last seen together was sufficient to uphold the conviction of the accused as absence of first was no guarantee about the truth of the latter and evidence of last seen witness needed examination, analysis and critical appreciation he being an interested witness (cousin of complainant)

Solitary statement of last seen evidence in all circumstances could not therefore form basis for maintaining the conviction of the appellant in accordance with the principles and state of evidence on record

Conviction and sentence of accused were set aside by the Supreme Court." In a case reported in 2005 YLR 1248 a Division Bench of Lahore High Court has acquitted the appellant in a case of similar nature. In another case reported as Shahzullah v. The State and another 2004 PCr.LJ 1161 a Division Bench of Lahore High Court has allowed the appeal in a case of similar nature by holding that:

"Prosecution case entirely rested upon the statement of prosecution witness who was not an eye-witness of occurrence, but he had furnished last seen evidence of deceased in the company of accused and no other evidence was available from any independent source to connect accused with commission of offence

Said last seen evidence was in the nature of "circumstantial evidence" and in such evidence rule was that no link in the chain should be broken and circumstances should be such as could not be explained away on any hypothesis other than the guilt of accused

Accused, in circumstances, was acquitted giving him benefit of doubt." Keeping in view the circumstances of the instant case and case-law relied upon by learned counsel for appellant which supports the contention of learned counsel for the appellant I have come to the conclusion that the prosecution has failed to establish its case against the appellant beyond shadow of doubt, therefore the appeal is accepted, conviction and sentence awarded to the appellant under the impugned judgment are set aside. The appellant is acquitted of the charge. He shall be released forthwith if he is not required in any other case. With the above observation this appeal stands disposed of. H.B.T./M-173/K Appeal accepted.