2002 PLP 3926 (YLR)

(6) A fire‑arm inlet wound 1 x 1 c.m. x going inward on medial and ventral side of forearm 13 c.m. above wrist joint. A metallic foreign, body recovered on lateral side of right forearm on dissection. Corresponding holes were present on qameez. (7) A fire‑arm graze wound measuring 7 x 5 c.m. x, muscle deep with burning and blackening on front right lateral upper chest going through and through. Corresponding holes were present on qameez and bunian. (8) A fire‑arm inlet wound 1 x 1 c.m. x going through and through under the skin on front right lateral upper chest making an exit of 1.5 c.m. in dimension in front and medial to its wound of entrance. (9) A fire‑arm graze wound 1 x 1 c.m. superficially deep on front right side of chest. (10) Three scratches of dimension (i) 1 x 1 c.m. (ii) 1 x 1/2 c.m., (iii) 1‑1/2 c.m. x 1 c.m. on front right chest in area 7 c.m. x 6 c.m. 10 c.m. below right shoulder. (11) A lacerated wound 1 x 1/3 c.m. into muscle deep on right upper lip at the angle of mouth. (12) A scratch area 6 x 4 c.m. on dorsal side of left hand including little and ring finger. (13) A scratch 1/2 x 1/2 c.m. on dorsal side of left forearm 10 c.m. above left wrist joint. Probable time that elapsed between injury and death was immediate while the same between death and post‑mortem was 14 to 15 hours. The ocular account was furnished by Muzaffar Khan P.W.7 who was complainant of the case. He supported the version of the F.I.R. and narrated the motive for the occurrence. Ghulam Raziq son of Nawab Khan was examined as P.W.8, who stated that during the night between 25/26‑12‑1996 he went to the house of Muzaffar Khan P.W. and his ailing niece Mst. Safia Bibi when at about 1 a.m. Nazakat and Raziq accused came and took Muhammad Rafiaz deceased with them for the purpose of hunting. In the morning, he went to his house and came to know at 2 p.m. that Muhammad Rafiaz has been murdered. Riaz Asghar, P.W.2 was Patwari of Halqa and prepared the site‑plan. Muhammad Nawaz Moharrar/HC P.W.3 kept the sealed articles into police Malkhana in safe custody. Muhammad Ramzan, F.C. P.W.4 delivered the sealed parcels at the office of Chemical Examiner, Lahore. Umar Hayat, P.W.6 alongwith the complainant and Ghulam Nabi, P.W.9 recovered the dead body of Muhammad Rafiaz and identified the same before the doctor at the time of post‑mortem examination. Ghulam Nabi, P.W.9 stated that he was also present with the complainant when the accused came and took Muhammad Rafiaz, deceased alongwith them for hunting purpose and thereafter the dead body was found. He also narrated the motive for the occurrence. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh. PH and that of Serologist Exh. PK. The statements of the accused/appellants were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. Ghulam Raziq, appellant in reply to Question No.9 as to why the case against him and the P.Ws. deposed against him, he replied as under:‑ "The complainant party is tenant of relative of Ahmad Khan Majhia. An enmity exists between us and the said Sardar. There is a dispute for possession of land that exist between house of complainant and our house. The deceased went in between night 23/24‑12‑1996 and was not found till 26‑12‑1996 when his dead body was found. On asking of Sardar Ahmad and as there was dispute between us and complainant party they involved me in this case falsely. P.Ws. are related to deceased as well as with each other as such they deposed against me." While reply of Nazakat, appellant to the similar question was the same as stated by Ghulam Raziq, appellant. A.S.P. Sajjad Afzal Afraidi was examined as D.W.1 in defence of the accused who had investigated the case and declared the accused innocent. Malik Muhammad Ameer Khan, A.S. I. was examined as C.W.1, Javed Asghar, H.C. as C.W. 2 and Ameer Khan, A.S.I. as C.W

3. They are witnesses of formal nature and need not to be discussed. The trial culminated into conviction of the appellants as mentioned above. They have challenged their conviction and sentence through Criminal Appeal No.397 of 2000 and the complainant has filed Criminal Revision No. 183 of 2000 for enhancement of the sentence, therefore, both the matters are being decided by this single judgment. Learned counsel for the appellants has argued that the only evidence against the appellants is of last seen by the prosecution witnesses which as per law laid down by the Honourable Supreme Court in PLD 1996 SC 302 titled Khurshid v. The State without independent corroboration is not sufficient to maintain the conviction of the accused; that the appellants were declared innocent in four successive investigations and the case of the prosecution is doubtful. Conversely, the appeal has been opposed by learned counsel for the complainant and for the State. Learned counsel for the complainant has also pressed his revision petition for enhancement of the sentence. Heard. Record perused. Admittedly, there is no direct evidence against the appellants. Circumstantial evidence is based on last seen evidence narrated by the complainant and supported by Ghulam Raziq, P.W.8 and Ghulam Nabi, P.W.9. The motive alleged for the occurrence was that the deceased was suspect illicit relations with wife of Ghulam Raziq but clarification was made by the complainant party after a few days and no person from 'Jigra' was examined in this regard. The prosecution witnesses are related inter se and to the deceased. It is settled law that evidence of last seen is not sufficient to maintain the conviction of the accused but without any independent corroboration. In the instant case no independent corroboration has been brought on record against the appellants to maintain the conviction of the appellants. They were declared innocent. In four successive investigations except conducted by Raja Sajid Mehmood, Inspector, P.W.12 under the supervision of S.P. Range Crime. They were found guilty without other evidence collected against them, therefore, the prosecution case has not been established against the appellant beyond any shadow of doubt and the benefit of doubt is extended in their favour. Resultantly, Criminal Appeal No.397 of 2000 filed by the appellants is allowed. Their conviction and sentence is set aside and they are acquitted of the charge. They are ordered to be released forthwith if not required to be detained in any other case. Criminal Appeal No.183 of 2000 filed by the complainant stands dismissed on the above said reasons. H.B.T./G‑221/L Appeal allowed.