2023 PLP 76 (YLRN)

SOHAIL NASIR, J.

By way of this single judgment above mentioned two Criminal Appeals one filed by Umar Shahzad alias Lalu (11--J of 2013) and other by Usman alias Fuqra (108 of 2013) and Criminal Revision (77 of 2013) by Muhammad Asif (complainant) are being decided together as arise out from judgment dated 01.02.2013 passed by learned Additional Sessions Judge Sahiwal on the basis of which Umar Shahzad and Usman alias Fuqra (appellants) were convicted under Section 302(b), P.P.C. and sentenced to Imprisonment for life each. Benefit of Section 382-B, Cr.P.C. was also extended to them.

2. The convictions are outcome of FIR1 No.79 (PC/1) recorded on 10.02.2010 under Sections 302/34, P.P.C.2 at Police Station Farid Town district Sahiwal on the complaint of Muhammad Asif (PW-3) on the allegations of commission of Qatl-i-Amd3 of Muhammad Nasir/brother of complainant. Later on during investigation Sections 392/411, P.P.C. were also added.

3. Both the appellants through their independent appeals have called in question the legality of the convictions awarded to them whereas, on the strength of Criminal Revision complainant has asked for enhancement of sentences.

4. Facts of the case are that Khadim Ali Shah SI/ Incharge Police Post Kot Khadim (not produced) on receipt of information arrived at Chak No.86/6.R, where Muhammad Asif (PW-3) presented an application (PC) who maintained that he along with his father Muhammad Rafiq and Muhammad Nasir (deceased) was running a grocery shop; on 09.02.2010 when they were present at the shop, there came Usman alias Fuqra and Umar Shahzad (appellants) along with two unknown persons; he was familiar with unknown persons but missing their names who looked like vagabonds; they made some conversation with Muhammad Nasir, where after Muhammad Nasir disclosed that he was going with them and left the shop; after passing an hour when Muhammad Nasir did not return, he/complainant proceeded for his search; when they arrived at the turn of street, Raja Muhammad Rashid Khan (PW-4) told that Muhammad Nasir has been murdered; they, then, arrived inside the Girls High School 86/6.R, where at the back side of the rooms of School, dead body of Muhammad Nasir was lying and 'Chowkidar' was also there; the cash and mobile of Muhammad Nasir were missing. The complainant finally asserted that appellants along with their unknown companions had committed the murder of Muhammad Nasir by giving injuries with stones.

5. The above complaint was sent to Police Station through Muhammad Ameer Constable on the basis of which FIR was recorded by Muhammad Asif Sarwar ASI4 (PW-9).

6. Case was investigated by Zahoor Ahmad Paracha S.I.5 (PW-7). During investigation it transpired that unknown accused were Faisal alias Majid Ali alias Maja and Naveed who on conclusion thereof submitted a report under Section 173, Cr.P.C. (Challan) in court. It is relevant to add here that Naveed accused was juvenile so his was tried separately.

7. A charge under Sections 302/34/ 392/411, P.P.C. framed against appellants and their co-accused Faisal Nadeem on 05.09.2012 was not pleaded guilty by them where after prosecution had produced Zahid Ali/draftsman (PW-1), Muhammad Iqbal Constable (PW-2), Muhammad Asif/complainant (PW-3), Raja Muhammad Rashid Khan/ eye-witness (PW-4), Raja Makhmood Hussain/ eye-witness (PW-5), Dr. Muhammad Umar Farooq (PW-6), Zahoor Ahmad Paracha SI (PW-7), Muhammad Shoaib ASI (PW-8) and Muhammad Asif Sarwar SI (PW-9).

8. After prosecutions' evidence was closed, appellants and their co-accused were called for their examinations under Section 342, Cr.P.C. where they pleaded their false involvement. They did not opt to appear in terms of Section 340(2), Cr.P.C. however in defence they produced Mehr Allah Yar XEN (DW-1) and Faiz-ul-Hassan Kazmi SDO (DW-2).

9. The learned trial court disbelieved the evidence of Raja Muhammad Rashid Khan and Raja Makhmood Hussain who claimed to be the eye-witnesses and only on the basis of last seen evidence convicted the appellants whereas other co accused were acquitted. Naveed was also acquitted through separate judgment.

10. Learned counsel for appellants contended that last seen is the weakest type of evidence unless it is corroborated from strong circumstances therefore convictions of appellants cannot sustain.

11. On the other hand learned Deputy District Public Prosecutor and learned counsel for complainant jointly argued that both the appellants are specifically nominated in FIR; Muhammad Nasir left the shop in the company of both the appellants and their co-accused so both of them were under heavy burden to explain that how Muhammad Nasir met his death?; the witnesses appeared in court were having no reason for false involvement of any of the appellants; the defence was not successful to shatter the credibility of any of the witnesses during cross-examination and that the ocular account is corroborated from medical evidence. They finally maintained that both the appellants have been rightly convicted by the learned trial court. Learned counsel for complainant further added that as both the appellants are responsible for the murder of Muhammad Nasir so their sentences are liable to be enhanced from life imprisonment to death penalty.

12. HEARD

13. The learned trial court rightly disbelieved Raja Muhammad Rashid Khan and Raja Makhmood Hussain who claimed to be the eye-witnesses on various reasons. It is important to mention here that Khadim Ali Shah Incharge Police Post who recorded complaint (PC) was not produced by the prosecution. He was the one who had also recorded the statements under Section 161, Cr.P.C. of both Raja Muhammad Rashid Khan and Raja Makhmood Hussain. He was an important witness keeping in view facts and circumstances of the case and his non production is fatal to prosecution.

14. Zahoor Ahmad Paracha, SI (PW-7) in cross-examination categorially replied that in his first inspection notes and rough site plan there was no mention of any of the eye-witnesses. He further added that Raja Muhammad Rashid Khan and Raja Makhmood Hussain were the witnesses only to the extent of identifying the dead body of Muhammad Nasir.

15. Both the alleged eye-witnesses claimed that murder took place at 07:30 pm. Mehr Allah Yar XEN (DW-1) and Faiz-ul-Hassan Kazmi SDO (DW-2) while attending the witness box specifically maintained that due to scheduled load shedding, at that time there was no supply of electricity in that area and this was also believed by the learned trial court.

16. The complaint shows that a 'Chowkidar6' was also present near the dead body. He was natural and most important witness of the case but surprisingly he was not examined by the Investigating Officer. Even during trial prosecution made no request for his summoning and recording of statement.

17. So prosecution is left with the last seen evidence. Acquittal of two accused Faisal Nadeem and Naveed who were also with appellants when Muhammad Nasir left the shop, has given a legitimate right to both the appellants seeking their acquittal being similarly placed as of their co-accused. When to their extent last seen evidence has been disbelieved, how it can be acknowledged to the extent of appellants?

18. Last seen evidence under the settled principles of law is the weakest type of evidence unless it gets support from other circumstances

7. In this case when direct evidence has been disbelieved, it will be unsafe and dangerous to sustain the convictions of appellants only on the basis of last seen evidence.

19. Resultantly both the Criminal Appeals are allowed. Impugned judgment is set aside. Appellants are acquitted from the case. They are on bail and their sureties are discharged from terms and conditions of bail bonds. Case property, if any, shall be dealt with in the same manners as directed by the learned trial court.

20. Criminal Revision (77 of 2013) in view of above circumstances is hereby dismissed. JK/U-1/L Appeals allowed.