2001 PLP 1164 (YLR)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal has been preferred against the judgment passed by the Shariat Court on 20‑1‑2001, whereby the appeal filed by the convict‑appellant against his conviction recorded by the District Criminal Court Rawalakot was dismissed while the revision petition tiled by the State was accepted and sentence of Diyyat awarded to convict appellant was converted into life imprisonment.

2. The necessary facts, giving rise to the present appeal, are that complainant, Shahadat Khan, lodged a written report at Police Station, Rawalakot on 20‑3‑1986 at 10 a.m. alleging therein that on 19‑3‑1986 his brother, Muhammad Khan, alongwith his wife had proceeded to village Bhalyala‑Danna in connection with a personal matter. In his absence his son Gul Nawaz was present at the house that at about 12 O'clock, convict appellant, Muhammad Mushtaq son of Muhammad Nazir, caste Sudhan resident of Matyal‑Mehra, called Gul Nawaz whereupon both of them went towards the side of spring. Muhammad Mushtaq, convict‑appellant was armed with 12‑bore gun and both of them came back at 5 p.m. Gul Nawaz went to his own house and at night at about 7 p.m. Gul Nawaz after telling her sister‑in‑law that Muhammad Mushtaq convict‑appellant has called upon him to his house, so he left out his house. Today in the morning at about 6‑30 complainant was asked by Sardar Khan son of Gohar Khan from the house of Mir Muhammad by raising a noise to come to him. The complainant in a hurry went towards him whereon apart from Sardar Khan, Sakhi Muhammad son of Noor Muhammad and Mir Muhammad son of Muhabbat Khan were present who told him that down towards the spring a dead body of a human being was lying. All of them went towards the side of spring whereupon they saw that the dead body of Gul Nawaz son of Muhammad Khan, nephew of complainant, was lying soaked in blood. On the dead body the fire‑arm injury was inflicted on its back whereas on the face and head of the dead body many wounds of sharp‑edged weapon were inflicted. Besides that there were some injuries on the arm of deceased. The complainant apprehended that the deceased was taken away towards the spring by Muhammad Mushtaq deceitfully whereupon he was ultimately murdered.

3. Prior to the incident of murder deceased Gul Nawaz had beaten Muhammad Musthaq, convict‑appellant, therefore, in order to take revenge of that incident Muhammad Musthaq, convict‑appellant, had kept on meeting deceased as usual and took him into confidence but as a matter of fact he was bent upon to take revenge of the previous incident, as such on account of enmity; the convict‑appellant took the deceased .into his confidence by further strengthening his r6lations with him 'and ultimately killed him. The dead body of deceased was lying at the place of occurrence.

4. The motive behind the occurrence was stated to be the previous enmity existing between the accused and the deceased. On the lodgment of F.I.R. by complainant, Muhammad Rafique Nawabi, Sub‑Inspector Police (P.W.'19), registered the case under section 302, A.P.C. read with section 5 of the Islamic Penal Laws (Enforcement) Act, 1974. and proceeded to' the place of occurrence for conducting the investigation. He examined the dead body, prepared the injury form Exh. PH and inquest report Exh.PH/1 and sent the dead body for post mortem. The Sub‑Inspector took into possession a dagger P.I. stained with blood and blood‑stained clay P.4, three pieces of cardboard P.2 and a broken wooden piece of the butt of the gun P.3 vide recovery memo. Exh. PB in presence of Shahadat Khan (P. W.2). On the same day a 12 bore gun with broken bullet and barrel and without wooden piece of butt, one empty and two live cartridges were recovered from Muhammad Mushtaq, convict‑appellant, vide recovery memo. Exh. PD in presence of the Shahadat Khan and Sardar Khan, P. Ws. On the same day licence No.29154 of the 12‑bore gun, issued in the name of Muhammad Nazir, father of accused, produced by him was taken into possession vide recovery memo. Exh. PC in presence of the aforesaid witnesses. Dr. Muhammad Anwar Khan (P.W.17) handed over the blood‑stained clothes of the deceased to police which were taken into possession vide recovery memo, Exh. PE in presence of Muhammad Sadiq Khan (P.W.9) and Muhammad Javed (P.W.10). On 26‑3‑1986 Muhammad Ishaq Alvi, A.S.I. (P.W.14), handed over a parcel containing five pallets alongwith two cardboards and a piece of cotton which were recovered from the dead body vide recovery memo. Exh. PF. The S.H.O. also obtained report of Chemical Examiner Exh. PJ and report of Forensic ‑Science Laboratory Exh.PJ/1.

5. From the post‑mortem report of deceased, Exh. PK, it transpired that the deceased died due to gun shot injury causing rupture of liver damaging to intestine vessels and causing internal hemorrhage. Muhammad Mushtaq, convict‑appellant, was apprehended by police on 20th March, 1986, and after completion of investigation he was forwarded to District Criminal Court Rawalakot for facing the trial. The accused in his statement recorded under section 242, Cr.P.C. denied his guilt.

6. In order to prove its case against the accused the prosecution examined Shahadat Khan (P.W.1), Sardar Khan (P.W.2), Muhammad Rafique Khan (P.W.3), Mst. Begum Jan (P.W.7), Paras Khan (P.W.8), Muhammad Sadiq Khan (P.W.9), Muhammad Javed (P.W.10), Muhammad Shabbir Khan Patwari (P.W.11), Abid Hussain (P.W.12), Tahir Shah, Police Constable No.1337 (P.W.13), Muhammad Rashid, Head Constable Police No.1461 (P.W.15), Muhammad Hafeez, A.S.I. Police (P.W.16), Muhammad Anwar Khan, A.S.I. Police (P. W.17), Dr. Zahid Hussain (P.W.18) and Raja Muhammad Rafique Nawabi, Inspector Police (P.W.19). The file of the case was burnt due to fire. Thus, the same was reconstructed. On account of reconstruction the evidence of Shahadat Khan (P.W.1), Sardar Khan (P.W.2), Muhammad Rafique Khan (P.W.3), Mst. Begum Jan (P.W.7), Paras Khan (P.W.8), Muhammad Sadiq Khan (P.W.9), Abid Hussain (P.W.12), Dr. Zahid Hussain (P.W.18) and Raja Muhammad Rafique Nawabi, Inspector Police (P.W.19), was available on record which was duly appreciated and evaluated by the trial Court as well as the Shariat Court. The convict‑appellant in his statement recorded under section 342, Cr.P.C. denied the incriminating material put to him and did not lead any evidence in defence.

7. The trial Court after conclusion of trial having found the convict‑appellant guilty of offence of murder convicted and awarded him the punishment of Diyyat to the tune of Rs.1,60,000 which was to be realized at once and to be paid to the heirs of the deceased. It was also ordered by the trial Court that convict‑appellant shall be detained in jail till the payment of Diyyat money. The aforesaid judgment was assailed by convict‑appellant before the Shariat Court for setting aside the conviction and to acquit him whereas a revision petition was filed by the State to award the sentence of death/life imprisonment to the convict‑appellant. The Shariat Court vide the impugned order dismissed the appeal tiled by the convict‑appellant and by accepting the revision petition filed by the State vide its impugned judgment converted the sentence of Diyyat awarded to convict appellant into life imprisonment. Hence this appeal by convict‑appellant.

8. In support of appeal a preliminary objection was raised by Sardar Muhammad Sayab Khalid, the learned counsel for the appellant, that the case was tried by the District Criminal Court Rawalakot constituted under the Islamic Penal Laws Enforcement Act, the convict‑appellant was challaned under section 302, A.P.C. read with section 5 of the Islamic Penal Laws Enforcement Act, so it was enjoined upon the trial Court to conduct purgation of the witnesses and to formulate opinion as to whether the witnesses were just and Aadil. However, the trial Court has ignored the mandatory provisions of law with regard to purgation of witnesses as no purgation of the prosecution witnesses was made by the Court as provided under section 26(2) of the Islamic Penal Laws Enforcement Act. Having ignored the mandatory provisions of law with regard to purgation of witnesses the trial Court and Shariat Court have committed serious illegality rendering the conviction into a nullity. It was also contended by the learned counsel for the convict‑appellant, that the Shariat Court has convicted the appellant and awarded the sentence of life imprisonment on evidence which is full of contradictions and does not inspire any confidence. The learned counsel contended that as a matter of fact the case is that of an unseen occurrence and the prosecution failed to produce any eye‑witness in support of its case. The learned counsel contended that the occurrence took place in dark hours of night and the real culprits could not be traced out by the Investigating Agency, so the accused was falsely implicated. The learned counsel contended that the prosecution story was full of discrepancies, material contradictions and as such the conviction recorded on such evidence was based on whims and conjectures. The learned counsel further contended that the last seen evidence produced by the prosecution was not sufficient in the eye of law to sustain conviction of convict‑appellant, as the same suffered from inherent defects. The only witness produced by the prosecution in support of last seen version is the evidence of Mst. Begum Jan which does not inspire confidence. Mst. Begum Jan (P.W.7) has made a categorical statement before the Court that she herself did not see the convict appellant at the time of night going out of the house of the deceased while accompanying him. Her testimony is based on hearsay evidence which is not admissible in evidence. The learned counsel for the appellant seriously attacked on the recovery of crime weapon i.e. the 12 bore gun and the recovery of dagger. Similarly he also attacked on the recovery of broken wooden piece of butt of 12‑bore gun recovered from the place of occurrence. The learned counsel contended that it is established from the case of the prosecution ' that the cardboards and the broken wooden piece of butt which were taken into possession from the place of occurrence were sealed in different parcels in presence of recovery witnesses. However, at the time of recovery of the weapon of offence i.e. 12 bore gun it is the case of the prosecution that a gun with a broken wooden butt was recovered at the instance of accused and when broken piece of wooden butt of the gun was affixed with the butt of the gun the same exactly, matched with the butt of the gun recovered from the convict‑appellant. Thus this incriminating piece of evidence was used against the convict as a corroborative piece of evidence to the last seen evidence deposed by Mst. Begum Jan. The learned counsel contended that if the broken wooden butt was sealed in a parcel then bow during investigation the parcel was unsealed and the broken piece of wooden butt was affixed on the butt of 12‑bore gun particularly so when it is not the case of the prosecution itself that the sealed parcel of broken wooden butt was opened in presence of witnesses and the same was sealed again. It has also come on record that the sealed parcels were not only opened before the trial Court at the time of evidence of recovery witnesses which is the normal practice, but the assertion of the prosecution that the broken wooden piece when the same was affixed with the butt of the gun exactly matched with remaining part of the butt of the gun establishes nothing but the fact that all the recoveries were allegedly made in a fake and fictitious manner. The learned counsel also seriously objected to the examination of the convict‑appellant recorded by the trial Court under section 342, Cr.P.C. It was pressed into service by the learned counsel for the appellant that the provisions of section 342 being mandatory in nature its violation has seriously prejudiced and caused injustice to the convict‑appellant. The learned counsel contended that the evidence which was relied upon by the trial Court as well as the Shariat Court does not form part of the record of the trial Court. However, at the time of examining the convict‑appellant under section 342, Cr.P.C. he was subjected to questions regarding such evidence which was not the part of the record of the Court. The learned counsel for the appellant in this regard referred to various incriminating pieces of evidence which were put to the convict appellant under section 342, Cr.P.C. but the same did not form part of the record of the trial Court. Thus, according to the learned counsel for the appellant this serious illegality has vitiated the trial of the convict‑appellant. The learned counsel also emphasised that the motive alleged by the prosecution seems to be far‑fetched and the same also was not proved by the prosecution. The prosecution did not rely upon the motive which was initially set up but during the evidence it was changed as it suited the version of the prosecution. The learned counsel contended that although it is not essential for the prosecution to prove the motive against the accused but the circumstances in which the occurrence is alleged to have taken place suggest a very strong and definite motive, which is lacking in the present case. Thus the motive alleged by the prosecution could not have been used as a piece of corroborative evidence against the convict‑appellant. The learned counsel contended that since for the last more than 15 years the convict‑appellant is facing the agony of a prolonged and protracted trial thus it would not be in the interest of justice to remand the case to the trial Court for its retrial rather the whole proceedings have rendered the entire trial into a nullity and the same stands vitiated. The learned counsel contended that the trial Court as well as the Shariat Court lost sight of the fact that the last seen evidence is fundamentally a most weak type of evidence. This evidence must come from an unimpeachable source which should admit of no other interpretation except the culpability of the accused‑appellant with the commission of offence alleged. From the careful perusal of the evidence of Mst. Begum Jan it stands established that she herself never saw the convict‑appellant in the company of the accused while going away from the house of deceased together. If the evidence of last seen is discarded and taken out of consideration the evidence of recoveries etc. By themselves do not prove the guilt of the accused. Even otherwise, accordingly to the learned counsel for the appellant the report of Forensic Expert carries no weight in the eye of law when the same was not put to the convict‑appellant under section 342, Cr.P.C. Similarly the pellets which were found from the dead body of the deceased were not sent to Arms Expert for their examination. Even on the blood stained earth and the blood‑stained cloths no report of Serologist was obtained by the prosecution so as to ascertain as to whether the blood found on the said articles was that of human being. The learned counsel for the appellant thus, contended that the prosecution case being full of doubts and based on mere conjectures and whims the conviction in law could not have been sustained. The learned counsel also contended that it is the case of the prosecution itself that a single shot was fired from the 12‑bore gun which resulted in the death of the deceased, however, the police has recovered 3 or 4 cardboards, from the spot which clearly establish the fact that more than one fires were made. Thus a strong inference could be drawn that the assailants were more than one and the nature and number of injuries on the person of deceased also suggest that the whole affair does not seem to be of one accused. The learned counsel , also contended that the story of calling upon one Mst. Nasrin Akhtar at the spring and to prompt the deceased to have the opportunity to form relations with Mst. Nasrin Akhter also seems to be an afterthought and the same was not even put to the accused under section 342, Cr.P.C. so that said piece of evidence could not be read against the accused. The learned counsel also contended that the story that a quarrel ensued between the deceased and the accused while playing the, cards is also an afterthought which was also. not put to the accused under section, 342, Cr.P.C. The learned counsel contended that the manner of incident shows that the accused who allegedly committed the offence of murder was so much inimical and vindictive towards the deceased that he caused numerous injuries on the person of deceased in order to wreak his vengeance. Therefore, a far‑fetched motive alleged by the prosecution cannot result into such a brutal or intentional murder.

9. Controverting the arguments raised by the learned counsel for the appellant, Kh. Attaullah, the learned Additional Advocate General, vehemently argued that the charge against the accused‑appellant has been proved by the prosecution beyond any reasonable doubt and he has been rightly imposed the punishment of imprisonment for life by the Shariat Court. The learned counsel contended that the circumstantial evidence collected by the prosecution and produced before the Court connects the accused with the commission of offence of murder of deceased. The deceased was last seen with the accused who was armed with 12 bore gun and took him to the spring at the odd hours of the night. A 12 bore gun was recovered at the instance of the accused and the licence of the gun in the name of the father of the accused was also produced by the convict‑appellant before the police. The learned counsel contended that the wooden piece of butt of 12 bore gun was recovered from the scene of occurrence by the police and when it was affixed with the remaining part of the butt of the gun it exactly tallied with the same, so a strong inference arises that the deceased was done to death by the said gun. The learned counsel contended that the trial Court as well as the Shariat Court had duly appreciated the prosecution evidence in accordance with the settled judicial principles and this Court normally should not interfere in the appraisal of evidence which is the exclusive function of the trial Court and that of the Shariat Court. The learned counsel contended that the counsel for the defence has tried to create some doubts in the prosecution story and some minor contradictions and discrepancies have been pointed out by him which materially do not affect the case of the prosecution. The prosecution case stood proved on the basis of evidence produced by prosecution and the accused was rightly awarded the sentence of life imprisonment by the Shariat Court. The learned counsel also argued that purgation of prosecution witnesses was not at all essential in view of the fact that in the instant case there were no two male eye‑witnesses available to the prosecution. The whole case of the prosecution rests upon the circumstantial evidence and other recoveries etc. made at the instance of the convict‑appellant. In such eventuality it was .not enjoined upon the trial Court to conduct the purgation of the prosecution witnesses, as no punishment for Qisas or Hadd could have been awarded to the convict‑appellant, keeping in view the facts, circumstances and the details of the prosecution case.

10. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, we may in the first instance attend to the preliminary objection raised by the learned counsel for the appellant. In the instant case, according to the learned counsel for the convict‑appellant, the purgation of prosecution witnesses was not conducted by the trial Court and the provisions of section 26 of Islamic Penal Laws Enforcement Act being mandatory in nature, its violation has rendered the entire trial into illegality and the same stands vitiated. It may be pointed out that the instant case does not rest upon the evidence of two male eye‑witnesses rather the whole case of the prosecution is based on circumstantial evidence. Section 26 of the Islamic Penal Laws Enforcement Act postulates that the standards of evidence in cases of Qisas shall be two adult Muslim eye witnesses. In absence of such standard, sentence of Qisas could not be enforced. Subsection (2) of section 26, however, postulates that in all cases of Hudood and Qisas, Tazkia‑al‑Shahood of witnesses shall be essential. In the present case admittedly the prosecution case is based on circumstantial evidence, i.e. the evidence of last seen, the recovery of crime weapon at the instance of accused and the recovery of broken piece of wooden butt and recovery of dagger from the scene of occurrence, similarly the recovery of 3 or 4 cardboards from the scene of occurrence. Therefore, in our view, the provisions of section 26 of the Islamic Penal Laws Enforcement Act are not attracted in this case. So, the trial Court by not conducting the purgation of the witnesses committed no illegality which may require our interference. In a case reported as Qadeer Hussain v. The State 1995 PCr.LJ 789 it was observed that Tazkia‑al‑Shahood is mandatory in cases of Hudood and Qisas tried by the Courts constituted under the Islamic Penal Laws Enforcement Act, 1974, so as to ascertain the veracity and righteousness of the eye‑witnesses. However, where there are no two male adult eye‑witnesses and the case of the prosecution rests on a single female eye witness and on the testimony of other witnesses who reached on the spot soon after the occurrence they could not be termed as eye‑witnesses. Therefore, the provisions of section 26 of the Islamic Penal Laws Enforcement Act were not attracted. So the trial Court by not conducting the purgation of the witnesses committed no illegality. Therefore, the aforesaid objection raised by the learned counsel for the appellant stands repelled. Even the charge against the accused person under section 242, Cr.P.C. was framed under section 302, Penal Code as is apparent from the statement of convict appellant recorded under‑ section 242, Cr.P.C. Therefore, the objection raised by the learned counsel for the appellant merits no consideration.

11. The next most significant point to be resolved in the instant case is the statement of Mst. Begum Jan (P.W.7) who has allegedly last seen the accused in the company of deceased on 19‑3‑1986 at the time of night wherefrom he in the company of deceased went away and in the morning the deceased was found dead. It has been deposed by the said witness that on 19‑3‑1986 during the day time Muhammad Mushtaq called upon Gul Nawaz, deceased, for the purpose of hunting when the convict‑appellant was armed with a gun. Both of them went away from the house of deceased and at the time of evening after the evening prayers‑deceased came back to his home and after taking his meals went in his room for sleeping. After some time on the noise of barking of dogs the voice of knocking at the door of deceased was heard by her upon which Gul Nawaz deceased opened the door and asked the convict appellant as to who was he, upon which the convict‑appellant told his name as Mushtaq. Gul Nawaz made a query upon which Mushtaq accused told him that he should accompany him. Then Gul Nawaz deceased called upon the witness and told her that he was going alongwith convict‑appellant Mushtaq. Thereafter, both of them went away. The aforesaid version has been narrated by the witness Mst. Begum Jan in her examination‑in‑chief. In the cross -examination it was unequivocally stated by the witness that the sound of calling by Mushtaq accused to Gul Nawaz was not heard by herself rather Gul Nawaz deceased had told her that accused was calling him. This positively suggests that the witness herself did not hear the voice of Mushtaq calling upon the deceased at the time of night but on the other hand it was narrated to her by Gul Nawaz deceased that he was being called upon by convict‑appellant. Even from the statement of said witness recorded during the examination‑in‑chief it does not appear that while knocking at the door of deceased by convict‑appellant the witness woke up and went towards the room where Gul Nawaz and accused were talking to each other. It also becomes clear from the examination‑in‑chief of the witness that it was told by Gul Nawaz to the said witness that he was going along with Mushtaq accused but in the cross- examination, as stated earlier, the witness admitted the fact that she did not herself hear the voice of convict‑appellant while calling upon the deceased rather the same was told to her by Gul Nawaz deceased. Having trade this clear cut admission by Mst. Begum Jan, the Public Prosecutor did not deem it appropriate to re‑examine the witness on the crucial point as to whether she had herself seen the convict‑appellant calling upon the deceased at the time of the night and then accompanied him while going out of the house of deceased. It is a settled principle of law that while appreciating the statement of a witness the whole statement of a witness is to be taken into consideration. It is not desirable that a piece of statement favouring the prosecution should be picked up and used in support of the case of prosecution, on the other hand the requirement of law is that the statement of a witness is to be read as a whole and then to draw an inference either in favour of the prosecution or against it. In our considered view the evidence of Mst. Begum Jan who has allegedly last seen the accused in the company of deceased and thereafter deceased was found as dead does not inspire confidence and is not worthy of any explicit reliance. The statement of the witness during the cross‑examination cannot be easily brushed aside as she herself admitted that she did not see herself the accused in the company of deceased and going away alongwith the deceased during the night time. The trial Court as well as the Shariat Court, in our view, erroneously discarded this portion of statement which was deposed by the said witness in the cross‑examination. The aforementioned portion of the statement of said witness, in our view, knocks the very bottom out of the case of the prosecution and if we discard the last seen evidence, there remains nothing on the file to connect the accused‑appellant with the commission of offence alleged. It is a celebrated principle of law that last seen evidence is fundamentally a most weak type of evidence. It has certain inherent defects in it as the time of last seeing the accused in the company of deceased and the alleged time of incident and the other attending facts are to be kept in mind at the time of appraisal of evidence of such a witness.

12. We have perused the statement of Mst. Begum Jan which was recorded by the police under section 161, Cr.P.C. It is nowhere the case of prosecution that while going away from the house of deceased on the night of occurrence both the deceased and convict‑appellant were seen by her. On the other hand her statement is to the effect that when deceased left his house at 7 p.m. he simply told the witness that he was going to the house of convict‑appellant as he has called him. During the trial Mst. Begum Jan in her examination‑in‑chief stated by making an improvement in her statement that she herself saw the deceased and accused going together. When the first version of the said witness before the police is simply to the effect that the deceased told her that he was going to the house of accused as he has called him clearly establishes the fact that both the convict appellant and deceased were not lastly seen by the said witness in the company of each other. In a case reported as Muhammad Yunus alias Babu v. State PLJ 1996 Shariat Court (AJK) 145 it was observed that last seen evidence is a weak type of evidence and no reliance can be placed on such evidence if it is not corroborated by other strong and incriminating piece of evidence. The last seen evidence with the accused alone is not sufficient for the purpose of conviction, further the evidence is required to link the accused with the murder of the deceased. The prosecution also failed to prove the motive alleged by it, therefore, merely on the basis of last seen evidence it cannot be said that the appellant committed the murder of Muhammad Akhter deceased. In a case reported as Nazo alias Ali Nawaz v. The State 1977 SCMR 20 it was observed that evidence of solitary witness stating to have last seen deceased in accused appellant's company not corroborated by reliable evidence. The dead body of deceased not recovered at pointing out of appellant but earlier seen by a prosecution witness. Mere circumstance of deceased and appellant with his companions having been last seen together held .not incompatible with innocence of appellant and in circumstances the appellant is entitled to the benefit of doubt and acquittal. In a case reported as Rehmat alias Rehman v. The State PLD 1977 SC 515 it was observed that on a balance of the decided cases it appears that the circumstances of deceased having been last seen in the company of accused is not by itself sufficient to sustain the charge of murder. Further evidence is required to link the accused with the murder of his companions, such as incriminating recoveries at the instance of accused, a strong motive of proximity of time when they were last seen and the time when the deceased was killed only then the accused will be called upon to give an explanation of the demise of person who was last seen alive in his company. It was further held that burden of proof always lies on prosecution to prove the guilt of accused beyond reasonable doubt. It was held as follows:‑‑‑ "Needless to emphasis that in spite of section 106 of the Evidence Act in a criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the inability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has, on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative toe inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence. In Attygale v. The King. AIR 1936 PC 169 in a case arising under a similar provision in force in Ceylon, their Lordships of the Privy Council held that where a Judge in his charge to the jury stated that the burden of proving certain facts, which were within the special knowledge of the accused and which the accused alleged did not amount to an offence, was on them and the effect of direction was that jury might be misled by thinking that the burden was on the accused of proving that no crime was committed, the direction did not correctly state the law and amounted to a misdirection. In this connection Viscount Hailsham who delivered the judgment of the Board observed:‑‑ "Their Lordships are of opinion that that direction does not correctly state the law. It is not the law of Ceylon that the burden is cast upon an accused person of proving that no crime has been committed. The jury might well have thought from the passage just quoted that was in fact a burden which the accused person had to discharge. The summing‑up goes on to explain the presumption of innocence in favour of accused persons, but it again reiterates that the burden of proving that no criminal operation took place is on the two accused who were there. If their Lordships thought that the refusal of leave to appeal in this case could be construed as an acceptance of that doctrine, they would be very slow to reject the petition which has been brought before them. " In another case under a similar provision in Ceylon, in Stephen Seneviratne v. The King AIR 1936 PC 289 the Privy Council held that the law did not affect the onus of proof and it did not throw upon the accused persons the burden of establishing their innocence." In a case reported as Naqibullah and another v. The State PLD 1978 SC 21 it was observed that on the whole the evidence of deceased having been last seen alive in the company of accused was regarded as a weak type of circumstantial evidence to base a conviction on it. In the circumstances of the case the corroboration supplied by this weak piece of circumstantial evidence was not sufficient to base the conviction of accused on his confession. There is no motive at all alleged in the F.I.R. against the accused for the murder. Even in the evidence the motive attributed to him is much too far‑fetched to be real.

13. The survey of the case law makes it abundantly clear that the last seen evidence due to its inherent defects is fundamentally a weak type of evidence. Even if the same is believed to be true a conviction on the sole testimony of last seen evidence cannot be sustained unless there be some strong corroborative piece of evidence in support of the prosecution. In the instant case, as observed earlier, the last seen evidence deposed by Mst. Begum Jan is neither confidence inspiring nor any explicit reliance can be placed on her statement. The whole of the prosecution case rests upon the testimony of Mst. Begum Jan who has allegedly last seen the accused in the company of deceased but the critical examination of the evidence shows that the said witness did not herself see the convict‑appellant in the company of deceased, on the other hand she was told by the deceased that he was going alongwith convict‑appellant out of his house and the said statement of the witness remains unchallenged by the Public Prosecutor. Even if we take into consideration and give some weight to the last seen evidence of Mst. Begum Jan her statement due to its intrinsic defects requires strong corroboration by other circumstantial evidence.

14. Now we may advert to the other corroborative pieces of evidence on which the prosecution relies. In the F.I.R. got recorded by complainant Shahadat Khan, the motive alleged against the convict‑appellant is stated to be that prior to the occurrence Gul Nawaz deceased had assaulted the convict‑appellant Muhammad Mushtaq but he quite cleverly kept on meeting the deceased very‑often and further strengthened his relations with him and by taking him into confidence through deceitful means took away the deceased towards the scene of occurrence and ultimately killed him. Shahadat Khan (P.W.1) while appearing in the Court and getting his statement recorded stated about the motive that once while playing the football near the school the deceased had slapped the convict appellant. However, it has not been stated by the said witness that the prior occurrence of assault on accused by deceased was made in his presence nor any other prosecution witness has supported this assertion of the prosecution. However, the motive put to the accused in his statement under section 342 is that the accused and deceased while playing cards one month prior to the occurrence quarrelled with each other and the deceased assaulted the accused. Then a further explanation was sought from the accused that on the fateful day of occurrence the accused through deceitful means prompted the deceased that one Mst. Nasrin Akhtar shall come on the place of occurrence with whom he might have chance to meet her and have illicit relations. As a matter of fact the accused had no concern with any such Mst. Nasrin Akhter but an excuse was made to call upon Mst. Nasrin Akhter in order to trap the accused. This also shows that the motive being far‑fetched and contradictory in nature does not lend any support in corroborating the statement of Mst. Begum Jan who has allegedly last seen the accused in the company of deceased. The occurrence has taken place in such a manner which is indicative of the fact that in the background of the incident there seems to be some strong motive behind it. The way the deceased was done to death at the time of night and the fact that innumerable injuries were inflicted upon him by tire‑arm and sharp‑edged weapon and by blunt weapon, it reflects upon the far‑fetched motive alleged by the prosecution. The learned counsel for the appellant vehemently urged that in fact due to family honour the alleged offence of murder was committed by the relatives of Mst. Nasrin Akhter who had nourished serious enmity and in order to wreak their vengeance and to take the revenge of their family prestige they probably committed the offence of murder, however, the accused was falsely enroped. We do not subscribe to the view of the learned counsel for the appellant, but the manner in which the occurrence took place does suggest of a strong motive behind it as the incident of murder seems to be premeditated and pre-planned which does not lend support to the case of prosecution.

15. Even the recoveries effected allegedly at the instance of accused do not corroborate the case of the prosecution. From I the place of occurrence a recovery of blood stained dagger was made by the police. Similarly 3/4 cardboards of empties were recovered. It is also the case of prosecution that a broken wood of the butt of 12‑bore gun was recovered from the place of occurrence. The above articles recovered from the place of occurrence were sealed in separate parcels in presence of Shahadat Khan and Sardar Khan (P.Ws.) by the police. It is also on record that 12 bore gun with a broken barrel and a broken butt was recovered at the instance of accused. The licence of the 12 bore gun existing in the. name of father of convict‑appellant was also recovered by the police at the instance of accused. It is astonishing to note that it has come in the prosecution's evidence that when the broken wooden piece of butt was affixed with, the broken part of the butt of the gun, the same matched with the same. It is nowhere the case of the prosecution that at the time of tallying the broken wooden piece of butt the parcel was opened in presence of the recovery witnesses and after matching the same it was again sealed in a parcel. It also transpires from the record that parcels which were sealed by the police were opened in the trial Court at the time of recording the evidence of recovery witnesses. Thus, the above manner of recoveries effected at the instance of accused have no evidentiary worth except that as alleged by the defence, the same were prepared in a fake and fictitious manner.

16. The recovery of blood‑stained dagger and recovery of 12 bore gun at the instance of accused even otherwise lends no support to the case of prosecution, particularly, when the report of Ballistic Expert was not put to the accused under section 342, Cr.P.C. while the report of Serologist was not placed on record. There is no statement of Public Prosecutor to the effect that the aforesaid report of Serologist was obtained and burnt on account of ablaze of fire in the Court premises. Thus, the recovery of 12 bore gun in absence of report of Arms Expert being put to accused under section 342, Cr.P.C. and report of Serologist having not been produced by the prosecution have no evidentiary worth and cannot be used as corroborative piece of evidence. Even no report of Serologist with regard to bloodstained dagger was obtained by the prosecution and brought on record which is also of no corroborative worth. The Shariat Court placed reliance on the fact that the clothes of deceased were having holes and cut marks on them so it corroborated the prosecution story. The aforesaid piece of incriminating evidence was not put to the convict‑appellant under section 342, Cr.P.C. Therefore, even this piece of evidence cannot be used as a corroboration to the prosecution version.

17. It may also be clarified that during the post‑mortem some pallets were recovered from' the dead body of the deceased but the same were also not sent to Ballistic Expert to obtain his opinion as to whether they were of the 12 bore gun and used by the gun recovered from the accused. Even this recovery does not corroborate the story of the prosecution. The clothes of the deceased which were also stained with blood, no report of Serologist .was obtained to ascertain that the blood eras that of human being or that the grouping of blood found on the clay and the clothes of deceased matched with each other. Therefore, in the above circumstances the aforesaid recoveries do not have corroborative force lending any support to the prosecution's version.

18. Another unique and alarming aspect of the case has been noticed by us to which we never came across during our lengthy experience as criminal counsel and in the judicial career as well. We have noticed that while examining the convict‑appellant under section 342, Cr.P.C. a unique method has been adopted by the prosecution, for instance at the time of seeking explanation from the convict‑appellant regarding, the incriminating material appearing in evidence of the prosecution, such queries were put to the convict‑appellant which do not at all form part of the record of the prosecution story nor such a type of evidence was brought on record by the prosecution. Most of the queries made by the Court while seeking the explanation of the convict‑appellant‑ at the time of recording his statement under section 342, Cr.P.C. such a material was put to him which did not appear in the evidence at all. On the other hand the incriminating material, if at all, which was brought on record by the prosecution, the explanation of the accused was not sought on that. For the purpose of proper appraisal of the statement of convict appellant recorded under section 342, Cr.P.C. we deem it appropriate to reproduce the same, the English translation of which is as follows:‑‑‑ Q. Whether you have heard the evidence of the prosecution? Ans. Yes, I have heard the same. Q. It has come in the evidence of prosecution against you that one month prior to the occurrence of murder you and Gul Nawaz deceased while playing cards scuffled with each other in consequence of which you were beaten by the deceased. You felt the above occurrence but apparently you kept on meeting the deceased by giving an impression that you did not mind the said incident but as a matter of fact you were bent upon to murder the deceased. On 19‑3‑1986 you went to the house of deceased Gul Nawaz armed with 12 bore gun and took him alongwith you towards ravine but could not get the chance of murdering him and came back home. On the evening of the same day you asked the deceased that tonight both of you would call upon Mst. Nasrin Akhter near the water spring and would wait for her, resultantly at 7 p. m. you went to the house of deceased and through deceitful means took him towards the scene of occurrence whereupon the deceased while going away with you told at his house that he was accompanying the accused so no one need to call upon him, as such both of you reached on the spot and with the dagger which you had already concealed in a dub and armed with 12 bore gun both of you near the house of Sardar Khan while sitting there waited for the arrival of Mst. Nasrin Akhter. As a matter of fact Mst. Nasrin Akhter had no contact with you but you had made a lame excuse of calling her in order to kill deceased. Thus, at the place of occurrence you tired with 12 bore gun on the back side of deceased which was inflicted upon him and he fell down. On his making noise you inflicted injury on the head of the deceased with the butt of gun in consequence of which the butt of the 12 bore gun had broken and its one piece fell on the ground and then with the dagger on the head and other parts of the body of the deceased you inflicted the injuries. The deceased on account of infliction of fire and other injuries died on the spot: Whether this evidence was correct? Ans. No such evidence was produced against me nor I committed any offence. Q. Whether dagger. (P.4) belongs to you and with this you inflicted injuries upon deceased and after doing the needful left the same on the spot? Ans. It is totally wrong. Dagger does not belong to me. Q. Whether the gun alongwith broken barrel was recovered by the police on your pointation and whether broken piece of butt (P.6) is the same? Ans. On my pointation no gun or barrel or broken butt were recovered. I was not aware of such recoveries. Q. Whether broken wooden piece of the butt of gun is the same which at the time of occurrence fell on the ground? Ans. No butt or barrel had fallen on the ground nor I have any knowledge about the same. Q. Whether the empty (P.7) is the same from which you fired upon the deceased and afterwards by pointing out the same by you the police recovered it? Ans. On my pointation no empty was recovered nor I produced any empty. Q. Whether the licence of gun (P.18) is the same which was recovered at your instance by police? Ans. Licence was recovered by police from my house. I myself did not hand over the said licence to the police. Q. Whether you want to lead evidence in defence? Ans. Yes, I will do produce the defence evidence. Q. Whether you want to say anything more and can you tell why the witnesses have deposed against you? Ans. The witnesses have deposed against me on account of enmity and I am innocent.

19. The whole of the statement of convict‑appellant which was put to the accused under section 342, Cr.P.C. has been reproduced above. While putting up the main story to the convict‑appellant in his statement under section 342, Cr.P.C. with the exception of only one incriminating material that when the accused went to the house of deceased and both of them accompanied each other and went towards the side of spring the deceased told the other members of his family that he was going alongwith the accused, the entire remaining part of the story put in detail to the convict‑appellant has neither been brought on record by the prosecution nor the same forms part of the file of prosecution case. It is simply amazing that while putting up the main part of the incident the explanation: of the convict‑appellant was sought on the points as if some one was seeing the occurrence. Even the story of waiting for one Mst. Nasrin Akhter and to give an impression to the convict‑appellant that she would be arriving at the place of occurrence to meet both the accused and the deceased, there is not an iota of evidence brought on record by the prosecution. Similarly the incriminating circumstances put to the convict‑appellant that you made a fire with your 12 bore gun which caused injury on the deceased on his back side and then you inflicted injuries upon him with the dagger is also not the part of prosecution story. Thus, in our considered view the convict‑appellant was confronted with such a material which was neither brought on record nor it was part of the story of the prosecution. Similarly the incriminating circumstance. put to the convict appellant that the broken wooden piece of butt of the rifle was recovered from the place of occurrence at his instance is also alien to the prosecution story, whereas the prosecution story precisely stated is that the broken wooden piece of butt of 12 bore gun was recovered by the police from near the dead body of the deceased in absence of accused. Similarly it was also put to the accused that dagger (P.4) is the same with which you inflicted injuries upon the person of deceased is also not part of the story of the prosecution because none of the prosecution witnesses has deposed so. Therefore, the alleged incriminating material put to the accused under section 342 is either not the part of the prosecution story or none of the prosecution witnesses has deposed so. Thus, by seeking the explanation of the convict appellant on such incriminating material without its being part of the file of the prosecution or being part of the evidence of prosecution has seriously prejudiced the convict‑appellant resulting into miscarriage of justice and against the accepted principles of fair play.

20. We have carefully perused the police diaries as well. It appears that the trial Court sought the explanation of the accused under section 342, Cr.P.C. on the basis of report submitted by police under section 173, Cr.P.C. and not on the basis of material brought on record of the trial Court by the prosecution. This way of examining the accused under section 342, Cr.P.C. is not recognised by any canons of law or justice.

21. The entire case of the prosecution rests on the testimony of Mst. Begum Jan, who has allegedly last seen the deceased in company of accused and who took him away towards the side of spring but this important aspect was never put to the accused while examining him under section 342, Cr.P.C. The main thrust of the prosecution case is that Mst. Begum Jan, the witness for the prosecution, has last seen the accused and the deceased in the company of each other who went together towards the side of spring but this incriminating material was also not put to the convict‑appellant. The only incriminating material with regard to the last seen evidence put to the convict‑appellant is that deceased told the other members of his family at about 7 p.m. at night that he was going alongwith the convict‑appellant towards, the spring. This further fortifies our impression that as a matter of fact Mst. Begum Jan herself did not see the convict‑appellant in the company of deceased with her own eyes rather it is the version told by deceased to the said witness that he was going alongwith the accused towards the side of spring. This is also one of the reasons that we have already discarded the evidence of last seen deposed by Mst. Begum Jan, the prosecution witness, as her evidence is not worthy of any explicit reliance.

22. Even the report of Ballistic Expert which, according to the prosecution version, tallies with the empty recovered from the accused and was fired from the same gun which was recovered from the accused was also not put to the accused. The Serologist Report, according to the prosecution version, was destroyed due to ablaze of fire, the same was not thus, brought on record. However, the version of defence is that the same does not corroborate the prosecution story and for this very purpose it was withheld by the prosecution. The statement of convict appellant even under section 242, Cr.P.C. so far as the main part of the prosecution story is concerned, is to the similar effect, as was put to him under section 342 which also does not form part of record of the prosecution evidence. The law on the point stands settled that the explanation of accused‑convict is to be sought only on the incriminating materials which is brought on record by the f prosecution. The extraneous circumstances which do not form part of the evidence of prosecution are not material for the purpose of conviction and those cannot be taken into consideration. In Muhammad Afsar v. The State PLD 1975 Azad J&K 12 it was observed that the deceased allegedly last seen in company of accused, such fact stated by two witnesses related to deceased, statements of such witnesses discrepant. Fact of being last seen in company of accused, held, not established beyond reasonable doubt. Even otherwise association of accused with deceased might raise suspicion but not conclusive evidence for basing conviction. Motive alleged by prosecution found doubtful while that given by defence plausible. Articles recovered from accused of common use and not satisfactorily identified as property robbed from deceased's person. No evidence, held, connected accused with crime. Conviction set aside. It was also held in the aforesaid ruling that all circumstances from which inference adverse to accused is sought to be drawn must be conclusively proved. Every event in series must be so proved as to leave no inference consistent with accused innocence. Failure of one link breaks chain. In a case of conviction on circumstantial evidence only, when there is no ocular evidence the rule is that all those circumstances from which an inference adverse to the accused is sought to be drawn, must be conclusively proved. Since failure of one link breaks the chain, every one of the events in the series must be proved so that there remains no basis for an inference therefrom consistent with the innocence of the accused. In other words, it must be shown that incriminating facts are inconsistent with 1 the innocence of the accused and do not admit any other explanation upon any other reasonable hypothesis than that of his guilt. In Muhabbat and 2 others v. The State 1968 PCr. LJ 720 it was observed that blood‑stained hatchet allegedly recovered at the instance of an accused and made into, sealed parcel. No report of Chemical Examiner on record that the hatchet was found stained with human blood, presumption that hatchet was not stained with blood and therefore, not sent to Chemical Examiner. Such recovery, held, has no corroborative value. In Bagh and 3 ‑others v. The State PLD 1979 Kar. 261 it was observed as follows:‑‑‑ " .... there has been a substantial non‑compliance with the provisions of section 342, Cr.P.C. in this case. It appears that all the four statements were first typed with one stroke and later on some blanks left therein were filled, at the time of the examination of, appellants under section 342, Cr.P.C. This stereotype method of recording statements resulted in some grave omissions. The allegation against Bagh and Feroze is that they fired one shot each at the deceased from the guns which they carried at the time of incident. This important circumstance was not at all put to either of them. The only circumstance put to them was 'that they were armed with guns, at the time of above murder. and that they, alongwith other co‑accused in furtherance of common intention of them all committed the murder of the deceased by intentionally causing his death with gunshot injuries. For the purpose of enabling the accused to explain any circumstances appearing in the evidence against them, the Court concerned must for the purpose aforesaid put all important circumstances to them, which was not done in this case. Circumstances from which inferences adverse to the accused are sought to be drawn must be put to the accused when they are questioned under section 342, Cr.P.C." In Muhammad Siddique and another v. The State PLD 1983 FSC 173 it was observed as follows:‑‑‑ " .... It is well‑settled principle now that if prosecution wants to use any material fact or circumstance against the accused the same should be put to him under section 342, Cr.P.C. to provide an opportunity to explain the same. It is an admitted fact that so far the period after 16‑6‑1981 and 24‑10‑1981 is concerned, the appellants were not afforded any opportunity whatever to explain their position. Since the conviction of the appellants is mainly based upon the finding of the trial Court that after the withdrawal of suit by Mst. Majeedan on 24‑10‑1981 she has been living as wife with Siddique, appellant, and committing sexual intercourse, this circumstance not having, been put to the accused persons under section 342, Cr.P.C. the same could not be used against them. Thus, the mandatory provisions of section 342, Cr.P.C. have not been strictly complied with in this regard. On this short ground alone the appeal is liable to be accepted." In Abdul Wahab v. The Crown PLD 1955 FC 88 it was observed as follows:‑‑‑ "The opening words of the section are very important. It is 'for the purpose of enabling the accused to explain the circumstances appearing in evidence against him that his examination is needed. Where 'the circumstances appearing in evidence against him are not put to the accused and his explanation is not taken thereupon, it cannot be said that the purpose of section 342 has been fulfilled. It is not a mere formality, but is an essential part of the trial that the accused should be given notice of the point or points which he must meet in order to exonerate himself. In Tani's case (20 Cr. LJ 12 (Nag.) it was held 'in order that the accused may explain all the facts appearing in the evidence against him, it is necessary that his attention should be directed to all the vital parts of the evidence against him, specially if he is an ignorant person who cannot be expected to know or understand what particular parts of the evidence are or are likely to be considered by the Court to be against him. In Alimuddin's case (52 Cal. 522) it was laid down "The Court should not only point out to the accused the circumstances appearing in the evidence which require explanation but it must out of fairness to the accused exercise that power in such a way that the accused may know what points in the opinion of the Court require explanation and failure or refusal on the part of the accused to give the explanation will entitle the Court to draw an inference against him". In the Calcutta case cited above, it was also pointed out that the word 'generally' does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the questions should relate to the whole case generally, and should not be limited to any particular part or parts of it. The word 'generally' does not mean that the accused cannot be subjected to a detailed examination by the Court. The law intends that the salient points appearing in the evidence against the accused must be pointed out to him in a succint form and that he should be asked to explain them if he wished to do so". It should not, however, be overlooked that the real object of section 342 is not to subject the accused to a detailed cross -examination. It is, as a matter of fact, inviting his attention to the point or points in the evidence which are likely to influence the mind of the Judge in arriving at conclusions adverse to the accused and before such an adverse inference can be drawn, the accused should be afforded an opportunity to offer an explanation, if he has any." In Muhammad Shafique v. The State PLD 1977 SC (AJ&K) 1 it was observed as follows:‑‑‑ ". . . . . Section 342, Cr.P.C contemplates that an accused should be heard and his explanation should be taken on every circum stance appearing in the evidence against him. These provisions are imperative and non‑compliance of the same amounts to an illegality that cannot be cured by the provisions of section 537, Cr.P.C. Moreover, such an evidence is not admissible because it offends against the rule of natural justice contained in the Latin maxim ' audi alteram parterri'. The principle underlying section 342, Cr.P.C. is also borne out from the preamble narrated in the Holy Qur'an. For instance, on refusal of Satan (Iblis) to bow down to Adam on the command of Allah, he was punished for his rebellious arrogance and jealous disobedience only after he was asked to explain his conduct. These facts are narrated in Sura A'raf, Aayat Nos. 11 to

18. In this very Sura the story of Adam and Eve is also narrated. When they, at the persuasion of the Satan, tasted the fruit of the prohibited tree they too were asked to explain their conduct. They confessed their guilt and consequently they were thrown out of the heaven. This is narrated in Verse Nos. 19 to

24. Again in Sura Mumtahana, the first Verse reads as:‑‑‑ The immediate reference was to a secret letter sent by Hatib‑‑‑a Mohajir from Medina to the Pagans at Mecca. In most friendly terms seeking for their protection on behalf of his wife, children and relatives‑‑ left behind in Mecca. On a message of inspiration received by the Holy Prophet (p.b.u.h.), the letter was intercepted. Although the intimation was received by the Holy Prophet (p.b.u.h.) under an inspiration and the letter was also recovered in consequence of that inspiration; yet the Holy Prophet before deciding the guilt of Hatib, called for his explanation. Thus, from what has been said heretofore, it would appear that this rule of natural justice stems from Islamic Jurisprudence. In a Muslim society, it is to be complied with as a command like any other Quranic laws." In a case reported as Ali Khan v. The State 1995 SCMR 955 it was observed as follows:‑‑‑ "It is well‑settled that in a case resting on the circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt of the accused. Following the above principle, we have to see whether the offence of murder at the instance of Ali Khan stands established. As already stated, there is no direct evidence in the case and the accused is sought to be linked with the crime only by the recovery of articles of the deceased. The dead body of the deceased though alleged to be recovered from the Otak of Momin, father of Ali Khan, was not at the pointation of the appellant, nor was he alleged to be present in that house at the relevant time. Neither any evidence was led by the prosecution to show the place of occurrence, nor was the appellant alleged to have been seen near any such place. The matching of the crime empty with the gun, allegedly recovered at the instance of the appellant, is not sufficient ground by itself to prove the commission of murder by the appellant. Both the recoveries were effected on the same .day and the possibility of the crime empty having been made to match with the gun cannot be ruled out. There is no evidence of the deceased having been last seen in the company of the appellant. For these reasons the offence of murder does not stand established against him." In a case reported as M. D. Nazir Hussain Sarkar and another v. The State 1969 SCMR 388 it was observed that the evidence in the case was entirely circumstantial and it is a fundamental rule in such cases that an accused person cannot be found guilty unless all reasonable hypotheses, which are consistent with his innocence, have been excluded. The learned Sessions Judge in his charge to the jury said nothing about this principle. If he had done so, the jury would have been confronted with the position that there was no evidence of actual murder by the appellants, nor any evidence of their having abetted somebody else to commit the murder. In a case reported as Fazal' Elahi alias Sajawal v. The Crown PLD .1953 FC 214 it was observed that in cases which like the present rest entirely, on circumstantial evidence, it is of the utmost importance that such a circumstance should be ascertained with minute care, before any conclusion or inference adverse to the accused person is drawn.

23. The survey of the case law, referred to above, shows that if the explanation of accused is not sought on the incriminating material which appears against him in the evidence of prosecution, the same cannot be used against him in 'order to sustain a !,, conviction. The trial Court as well as the Shariat Court, in our view, committed serious illegality while relying upon a material which either did not form the part of record of the prosecution case or which formed the part of the record but the same was not put to accused under section 342, Cr.P.C. Thus, the illegality committed by both the Courts below has seriously prejudiced the case of convict appellant and resulted into a grave miscarriage of justice. The illegality, thus committed by the Courts ‑ below is not curable. In our considered view the prosecution has failed to bring guilt home to the convict‑appellant beyond. reasonable shadow of doubt. The prosecution evidence suffers from material illegality and irregularity. The suspicion and doubt how so much strong, cannot be a substitute for proof. In the facts and circumstances discussed in detail above, we have no option but to acquit the accused as the case of prosecution is full of doubts and based on mere conjectures and whites.

24. In the light of what has‑been stated above, by accepting the appeal and setting aside the conviction recorded by the Shariat Court and the trial Court of the convict appellant, we acquit him of the charge of murder of deceased, Gul Nawaz. The convict appellant shall stand acquitted and released forthwith provided he is not wanted in any other case or offence. If the 'Diyyat' amount or any part of it has already been paid by convict‑appellant, the same shall be returned to him. The appeal stands disposed of in the manner indicated above. N. H.Q. /M‑184/SC(AJ&K) Appeal accepted.