Last seen evidence

Accused-petitioner was charged for committing murder of the cousin of complainant by striking a cemented block on his head

In the present case, the "last-seen together" circumstance was equally frail

For it to acquire probative value, the prosecution must have established with clarity (i) the specific point in time when the deceased was last alive in the company of the accused, and (ii) a narrow temporal gap between that point and the discovery of the body so as to exclude intervention by others

Neither requisite was satisfied

Common accommodation with multiple persons having ready access to each other, undermined the value of the "last seen" evidence

Testimony deposed by last seen witness set up as proof of the petitioner's guilt again did not aid the assertion of "last seen" since he only stated that around 12:30 a.m. he had seen the petitioner alone in the washroom and, upon returning, saw him asleep in his bed

In such circumstances, an inference that the petitioner alone could have committed the act would be speculative at best and that fact remained a neutral circumstance that might arouse suspicion but could not shoulder the evidentiary burden needed for a conviction especially when it had come on record that room of deceased was shared by some 25 students

Petition was converted into an appeal and was allowed, in circumstances, and accused was acquitted of the charges.

In the present case, the theory of last saw was pivotal in establishing the guilt of the accused, in the murder of the minor

Prosecution witnesses testified that they last saw the accused in the graveyard of their village, where he was engaged in the suspicious and unnatural act of digging a grave to bury the deceased

Deceased's dead body was wrapped in a Sindhi Ajrak, and the circumstances surrounding the burial raised significant doubts about the accused's intentions

Proximity of time and place between the last sighting of the accused with the deceased and the subsequent discovery of the body by the accused, created a compelling inference that accused was involved in the crime for which he could not utter a plausible justification

Witnesses, being chance observers, provided corroborative evidence that strengthened the prosecution's case, as the last seen theory necessitated that the accused must offer a plausible explanation for his actions during that critical time

Further, the burden of proof might shift to the accused to provide a reasonable explanation for his presence and actions during the time he was seen with the dead body

Given the lack of any reasonable explanation from the accused regarding his presence at the graveyard with the deceased, coupled with the fact that the accused tried to escape, the evidence of last seen together served as a crucial link in the chain of circumstantial evidence, supporting the conviction of accused for the murder of minor deceased

Appeal against conviction was dismissed, in circumstances, however, the revision petition filed by the complainant for enhancement of sentence was allowed by enhancing the sentence from life imprisonment to capital punishment of death.

Qatl-i-amd, voluntarily causing hurt while committing or attempting to commit robbery, kidnapping or abducting a person with the intent to secretly and wrongfully confine, common intention

Appreciation of evidence

Benefit of doubt

Last seen evidence

Scope

Accused were charged for committing murder of the son of complainant after kidnapping him

Complainant testified that on the fateful day his sons accompanied their friend; that at 11:00 am, they dropped one of the sons of complainant and deceased then rode motorbike again, which was seen by "SA" at the time of going back

Though brother of deceased testified that on the day of his brother's disappearance, he went back with the accused, however, the said motorbike had not been recovered from the possession of the appellants, nor had the prosecution produced "SA"

As such, the evidence of last seen of brother of deceased had not been supported by any corroborative evidence; therefore, the same alone could not serve as the basis for convicting the accused

Appeal against conviction was allowed, in circumstances.

Qatl-i-amd, kidnapping, causing disappearance of evidence of offence or giving false information to screen offenders, abetment, common intention

Appreciation of evidence

Last seen evidence

Reliance

Accused was charged that she along with her co-accused committed murder of the son of complainant

In the case in hand, two prosecution witnesses had seen the appellant and acquitted co-accused, when deceased had left with them from a hotel, on 21.06.2019 at evening time; the case qua his missing was registered on 23.06.2019; on the statement of his father and on the very next day i.e. 24.06.2019; appellant was implicated in this case and on 25.06.2019, she got recovered the dead body from her house that was also situated in G-(Gujrat) city

Meaning thereby that last seen evidence also qualified the test of not only the proximity of time but also of the distance/space, therefore, there was no occasion to discard the same on any hypothesis and the last seen evidence was sufficiently corroborated by the recovery of dead body at the instance of the appellant, which itself carried a huge evidentiary value and was a strong piece of evidence to prove the guilt of the appellant

Appeal against conviction was dismissed, in circumstances.

Last seen evidence is always considered to be weak type of evidence, unless corroborated by some other independent evidence.

However, it was an admitted position that no witness saw the accused accompany the deceased at the time she left the house, nor was there any ocular account establishing that the deceased was last seen in the company of the accused on the relevant date

Furthermore, during the course of trial, no prosecution witness deposed that the accused came to the house to take deceased along with him, nor was there any direct evidence connecting the accused with the deceased at the crucial point in time

Prosecution had failed to establish any last-seen evidence, which could have formed a reliable link in the chain of circumstances required to prove the guilt of the accused beyond reasonable doubt

Appeal against conviction was allowed, in circumstances.

Last seen witness supported the prosecution version and deposed that at 12 p.m. he had seen the deceased in the company of convict/ appellant

Defence failed to shake the credibility of the evidence of said witness during cross-examination

Widow of deceased got recorded her statement on 08.12.2018 wherein it was stated that her husband told that he was guarantor of accused and had called him to come to bazaar as he had arranged the amount

Defence failed to impeach credibility of evidence of said witness during cross-examination

Circumstances established that the prosecution had proved the guilt of the accused

Appeal against conviction was dismissed, accordingly.

Said witness stated that he had seen the deceased in the company of the appellant on 17.12.2011 at a shop, which constituted last seen evidence

Said witness was subjected to cross-examination, yet nothing could be elicited to discredit his testimony or showing any animosity against the appellant

Statement of said witness remained un-impeached and formed an essential link in the chain of circumstantial evidence

Circumstances established that the prosecution had proved its case against the appellate, however, the High Court in its well-reasoned judgment had expressly held that the medical evidence on record did not support the confessional statement of the appellant insofar as the allegation of rape upon the minor deceased was concerned

Consequently, the conviction and sentence of the appellant under Section 376, P.P.C., were set aside

In the peculiar facts and circumstances of the case, this aspect may justly be treated as a mitigating circumstance for the commutation of the sentence of death into imprisonment for life

Consequently, the appeal was partly allowed.

Record showed that two witnesses were near relatives of the complainant, who stated in their statements before the trial Court that on 23.10.2019, at about 05:00 p.m. when they came to bazar, they saw the deceased with appellant/accused persons with the motorcycle of deceased and they were going towards a plaza

Said witnesses stated such fact after almost 24 days to the complainant on 17.11.2019 and thereafter their statements were recorded by the police

Both the prosecution witnesses admitted in cross-examination that they were residents of same vicinity and close relatives to complainant

Conduct of said two witnesses was highly improbable as they did not inform the complainant in time

Even otherwise, last seen evidence was a weak type of evidence, which was procured at any time during the investigation, when direct evidence was not available with the prosecution

Appeal against conviction was allowed in circumstances.

Complainant testified that on 22.09.2022 at 08:30 pm, while he was sitting along with his brothers and nephew in their shop, appellants and proclaimed offender came there and invited the deceased for dinner and promised to pay the loan of Rs.150,000/-, who went with them, but when he did not return home till morning and his phone number was also found switched off, they went to the Levies Station and reported the matter with nomination of the appellants

Appellant on his arrest disclosed the commission of murder and got recovered the dead body of deceased

Other two witnesses also reiterated and affirmed the testimony of the complainant

All the three witnesses were cross-examined, but the defence failed to extract any favorable reply from them, demonstrating that their statements had gone unshaken

Last seen was a weak type of evidence, but if such evidence was found in line with the other pieces of evidence, making a chain of events which led to the culprits, then not only it had relevance, but could be considered as a material evidence, having worth of credence

In the instant case, the prosecution had met the conditions and criteria of last seen evidence so furnished by complainant and other two witnesses, thus, last seen evidence was worthy of reliance because unbroken chain of circumstances from the stage of last seen till recovery of dead body of deceased and corroborated by other circumstantial evidence, led to the guilt of the appellants

Appeal against conviction filed by accused "O" was dismissed, in circumstances

Whereas, the appeal filed by appellant "L" was partially allowed and consequently his conviction and sentence recorded under S.302(b), P.P.C, was set aside and instead he was convicted and sentence under S.201, P.P.C to suffer seven year's imprisonment.

Qatl-i-amd, robbery, extortion by putting a person in fear of death or grievous hurt, dishonestly receiving or retaining stolen property, common intention

Appreciation of evidence

Last seen evidence

Scope

Accused were charged for committing murder of the deceased during robbery

Complainant, who had furnished evidence of last seen of the deceased in company of appellant "HS", while appearing before the Trial Court in the witness box, had deposed that during those days he was running a business of Rent A-Car business and deceased was his driver; that on 02.11.2013 at about 09.00 AM one of the accused, "HS", came and hired his taxi motorcar against rent of Rs.8000/- from "I" to "D" on a pretext that he had arrived from Dubai and due to demise of his father he had to rush to "D"; that Complainant directed his driver/deceased to take him in a taxi motorcar, whereafter his driver along with taxi disappeared

Complainant identified appellant "HS" at the spot by stating that he was the person who hired taxi motorcar of the deceased from "I" Airport to "D" and he had duly mentioned that fact in the FIR

In such circumstances, holding of identification parade was not the legal requirement of the case

Record showed that the deceased went missing on 02.11.2013 while his dead body was recovered on 11.12.2013 i.e. after one month and nine days

Testimony of Medical Officer, who had conducted autopsy on the dead body of the deceased, supported the testimony of complainant and confessional statements of the appellants as on examination he found the dead body of the deceased decomposed and one entry wound on his right posterior occipital region

In the instant case, the deceased was last seen in the company of appellant "HS", who had not furnished any explanation so as to point towards his innocence, rather the explanation furnished by him in his confessional statement the deceased was taken to poultry farm of "AU" appellant where he was done to death and his taxi motorcar was snatched

Such circumstantial pieces of evidence made an unbroken chain and its one end touched the dead body of the deceased and the other the neck of the appellants

Circumstances established that the prosecution had proved its case, however the death sentence of appellant "HS" was altered to imprisonment for life

Appeal against conviction was dismissed with modification in sentence to the extent of appellant "HS".

Last seen evidence is one where two persons are seen together alive and after an interval of time, one of them is found alive and the other dead

If the period between the two is short, presumption can be drawn that the person alive is the author of the other's death

Fundamental principles of last seen evidence are probability, cause and connection and requires a cogent reason that (i) the deceased in normal and ordinary course is supposed to accompany the accused; (ii) proximity of the crime scene; (iii) small time gap between the sighting and crime; (iv) no possibility of third person interference; (v) motive; (vi) time of death of victim

Circumstances of last seen together do not by themselves necessarily lead to the inference that it is the accused who committed the crime

There must be something more, establishing connectivity between the accused and the crime.

Record showed that the complainant and a witness/tuition fellow of the deceased had not seen deceased in the company of the accused throughout the fateful day or even entering in the 'Dera', venue of the crime, with him

Strange enough, the tuition fellow to the deceased had not intimated to the complainant on the fateful day his query from the accused; not on the next day when the dead-body was recovered/found on 17.05.2022; not when the complainant implicated the appellant vide his application; rather his statement under S.161, Cr.P.C., was recorded on 19.05.2022, after around seven days of tragedy of murder

In said eventuality, silence of witness about the fact for seven days casted serious doubt on his testimony

Appeal against conviction was allowed, in circumstances.

Evidence of last seen qualified for acceptance if it fit into the criteria of proximity of time and distance, according to which the time and distance between the event of last seen and death of deceased must not be too long

Lesser the duration and distance between the event of last seen and homicidal death of the victim, stronger is such evidence.

In the present case, the witness of Waj Takkar, deposed that at 5:00 a.m., they had seen accused-appellants coming out of the deceased's house with a hatchet and sickle in their hands

Complainant deposed that his paternal cousin informed him about the incident at 5:00 a.m.

Similarly, witness of Waj Takkar, who lived in front of the deceased's house, deposed that he was taking milk from his house, and given up witness was standing near him waiting for a van at about 5:00 a.m. when they had seen the accused-appellants coming out from the deceased's house

If witness of Waj Takkar was present outside the deceased's house and in front of his own house at about 5:00 a.m., he must have seen the given up witness going into the house of the deceased, who reported the incident to the complainant

If given up witness was present at the deceased's house at 5:00 a.m., according to complainant, then it was not possible for the accused-appellants to come out of the house of the deceased with a hatchet and sickle in their hands

Paternal cousin of complainant and given up witness had not been produced as witnesses, which made the story even more improbable

Last-seen evidence also required corroboration in material particulars by unimpeachable evidence pointing to the accused's guilt, which was also a weak type of evidence

It was hard to believe that the accused-appellants would come out of the deceased's house with hatchet and sickle in their hands and he would remain silent

Prosecution had cooked up the story made up by witness of Waj Takkar

Circumstances established that the prosecution had failed to prove its case against the appellants beyond any shadow of doubt

Appeal against conviction was allowed accordingly.

Last seen evidence is a weak type of evidence.

Accused was charged that he along with his co-accused committed murder of the deceased by strangulating his throat with electric wire

Admittedly, complainant was not eye-witness to the incident therefore, his evidence was of little help to the case of prosecution

Witnesses stated that on the date of incident they had seen the appellant and his co-accused taking away with them the deceased on a pickup

On the next day, they were informed that the dead body of deceased had been found lying adjacent to a madarsa

If the version of said witnesses was believed to be true, then their evidence was only to the extent that they had last seen the deceased in the company of the appellant and the acquitted accused

Appeal against conviction was allowed, in circumstances.

Instead the witnesses said that they saw the appellant running away after they were shown where the deceased was lying injured

It was not unusual for the appellant to be in the vicinity as he worked for the same bus company as the deceased and the witnesses who found the injured deceased which was near their place of work

So simply concluding that because the deceased was seen running away, he committed the crime was not sustainable in law

Witnesses who saw the appellant running away did not say how far away he was from them and whether they saw him from the back or the front, so there might even be some doubt about the identity of the appellant

Furthermore, according to the evidence the witnesses found the injured deceased after the body was pointed out to them after the deceased had been stabbed and was lying injured so it was unclear how long the witnesses were shown the injured body after the deceased was stabbed

Thus, it did not appeal to logic, commonsense and reason that if the appellant had stabbed the deceased and seriously injured him that he would just hang around the crime scene

Appellant would have made his escape good before the body was found

Appeal against conviction was allowed, in circumstances.

Though the evidence of last seen in itself is generally regarded as weak in nature, but there is no legal impediment to making it the basis for awarding conviction if it is corroborated by some other source of unimpeachable character

Evidence of last seen qualifies for acceptance if it fits into the criteria of the proximity of time and distance, according to which the time and distance between the event of last seen and death of the deceased must not be too long

Lesser the duration and distance between the event of last seen and the homicidal death of the victim, the stronger such evidence is.

By evening deceased did not come back home and complainant being worried telephoned his brother on his mobile but his mobile was off and he informed the police about the occurrence

Complainant had no enmity with the accused and had absolutely nothing to falsely depose against him

Said witness was cross-examined on various points, but the accused failed to even slightly shake his deposition

Complainant remained firm and consistent with regard to timing

Accused also failed to suggest any personal grudge or enmity being a reason to falsely depose against him

Through whatever angle the statement of complainant was examined and appreciated, his evidence was found worth consideration and confidence-inspiring

Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt

Appeal against conviction was dismissed, in circumstances.

Said witnesses stated that on 27-05-2013, at about 09:30 p.m. when they reached at metalled road passing parallel to Canal Bridge on its eastern side, they saw the accused persons in the light of motorcar, who were previously known to them; co-accused was holding a baby and in their view he threw the baby in the canal, then they both while riding on motorcycle ran way

Story narrated by the said witnesses was not acceptable to a prudent mind as they failed to justify their presence at the canal where the baby was allegedly thrown by the accused persons

Moreover, the conduct of the said witnesses was highly unnatural because the complainant party was closely related to them and they did not timely inform the episode of throwing baby in the canal to the police and remained silent for a long time

One of the witnesses had also made dishonest improvements to his earlier statement

Since both the said witnesses had failed to justify their presence at the relevant time rather they were interested witnesses and their evidence was not confidence inspiring, thus, the same was accordingly discarded

Appeal against conviction was accordingly allowed.

In circumstantial evidence, prosecution has to prove two of its basic ingredients which are proximity of time and proximity of distance

Proximity of time to prove the evidence of last seen rests on the principle of "de recenti" which lays emphasis that time span between the event of last seen and death must be very short

Short duration between the evidence of last seen and the murder incident in fact eliminates the possibility that the deceased parted the company of accused and joined some other person

More is the distance between evidence of last seen and the death of deceased, greater is the possibility about the hypothesis of innocence of the accused

Failure of prosecution to prove the proximity of time and distance is destined to weaken the evidence of last seen.

Qatl-i-amd, unnatural offence, causing disappearance of evidence of offence, or giving false information to screen offender

Appreciation of evidence

Benefit of doubt

Last seen evidence

Accused was charged for committing sodomy with the son of complainant and later strangulating him to death

In the instant case, witness appeared during trial with the claim of having seen deceased in the company of accused on 04.02.2019 at about 4:00 p.m.

Said witness mentioned nothing about the place where he had seen deceased and accused on 04.02.2019

Such omission culminated in failure of prosecution to prove the ingredient of proximity of distance, which was essentially required to authenticate the evidence of last seen

As a necessary consequence, nothing was available on record to give finding in favour of prosecution that the event narrated by said witness came within the ambit of doctrine of "de recenti"

In reference to the proximity of time, it was observed that witness deposed in his examination-in-chief to have witnessed the deceased and accused on 04.02.2019 at 4:00 p.m.

During cross-examination it was deciphered that the time of 4:00 p.m. about the event of last seen was brought on record by said witness through dishonest improvement

In fact, witness had not mentioned the exact time of the event in his statement under S. 161, Cr.P.C., and the defence took guard of that fact by confronting him with his statement made during investigation

Narrator of last seen evidence, admitted during cross-examination that he had previous acquaintance with deceased, complainant and accused

Besides previous acquaintance, witness had abode at short distance of one kilometer from the house of deceased but still the information about the episode of last seen was imparted to the complainant after three days

No explanation worth acceptance was furnished by said witness about the mysterious silence to which he resorted for long three days about the fact which had its importance for the family of deceased

Circumstances established that the prosecution failed to prove the guilt of accused, thus his conviction was found to be suffering from perversity

Appeal against conviction was accordingly allowed.

Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence, common intention

Appreciation of evidence

Benefit of doubt

Last seen evidence

Accused were charged for committing murder of the nephew of complainant after abducting him

Last seen evidence had been produced by two witnesses

Said witnesses claimed that they were working as property dealers and on 09.09.2020 went to place "MF" in connection with some property

On their return, said witnesses stopped motorbike at cigarette Corner to purchase cigarette where they saw accused persons and deceased having cold drinks

However, said witnesses neither could tell the distance between their village and place "MF" where they had gone nor could they prove the cause for which statedly they had gone there

Site plan produced by the prosecution during trial of the case did not reflect presence of said witnesses at stated place as well as of the accused persons and deceased of the case "with cold drinks" and even any shop/stall/ Khokha of cold drinks/cigarettes was not mentioned therein

Said site plan also did not show availability of any bulb there and even any shop keeper of shop/ stall/Khokha of cold drinks/cigarettes neither joined the investigation nor was produced during trial of the case

Any other site plan showing place where both witnesses saw accused persons and deceased with cold drinks was not available on record

Both said witnesses even did not produce their motorcycle during trial of the case

Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt

Appeal was accordingly allowed.

Accused were charged for committing murder of the brother of the complainant while snatching a car and committing dacoity

Complainant received information about the murder of his brother and the arrest of one person in an injured condition on 30.03.2017 at 01.00 p.m.

Information was given to the complainant by a witness

Statement made by the complainant got corroboration from a statement that was brought on the record by the defence from the witness, who provided information about the murder of the deceased to the complainant

Defence had not challenged the date, time, place of occurrence, presence of accused in the car on the front seat in injured condition, and receiving of injuries by the deceased in the car and falling outside the vehicle

Complainant deposed that the accused along with two others committed the incident, sitting in the car as passengers, driven by his deceased brother on a rental basis, and the defence did not deny such fact

Evidence of the complainant to the extent of his last seen evidence and identification of accused could not be shaken by the defence, despite being subjected to lengthy cross-examination

Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to the mitigating circumstances, the death sentence was converted into imprisonment for life

Appeal was dismissed with modification in sentence.

Last seen evidence had been furnished by a witness, who had nominated the accused in his statement recorded before the police

Name of said witness was not mentioned in the contents of FIR

Likewise, name of said witness was also not mentioned in the supplementary statement of the complainant

Complainant and a witness had stated that they had seen the deceased alive in the company of the accused at an Adda, whereas witness of last seen evidence stated that he had lastly seen the deceased alive in the company of the accused near the dera of one "Mr. NA"

All the witnesses of last seen evidence were residents of Chak No. 4

Evidently, the dera of "Mr. NA" was at a distance of 17-kilometers from the Adda and his residence was situated at a distance of 21-kilometers from the said dera and as such, all the witnesses of last seen evidence, who were residents of Chak No. 4, were chance witnesses

Complainant and a witness stated that they were present on the night of occurrence at Adda in connection with the election campaign but they did not claim that they were themselves or deceased was contesting the election

Said witnesses had not named the persons in their examination-in-chief for whom they were busy in the election campaign

Thus, last seen evidence brought on record in the case through complainant and other witnesses was not worthy of reliance

Appeal against conviction was allowed, in circumstances.

Foundation of the "last seen together" theory is based on principles of probability, cause and connection, and cogent reasons that the deceased in the normal and ordinary course was supposed to accompany the accused, the proximity of the crime scene, small time gap between the sighting and crime, no possibility of third person interference as well as the time of death of the victim.

Incident took place on the day when said witness came to hire the labour for plantation of the onions and hired a person

Both went to the lands through the road, on which school was situated

At about 08:00 or 08.30 when said witnesses were on the way, they saw the minor son of complainant in school uniform along with accused going to the sugarcane crop

Said witnesses went to the lands to work

When they returned back after two days, they came to know about the murder of deceased boy

Said witnesses narrated the facts to the complainant

Investigating Officer got recorded S. 164, Cr.P.C statements of said witnesses

Both the witnesses were cross-examined at length by the defence and they denied the suggestion that they had falsely deposed against the accused at the instance of the complainant

All the pieces of evidence were interconnected/ interlinked

Witnesses had given the picture of a complete chain

Said witnesses were independent witnesses having no relationship with complainant or enmity with accused

Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to mitigating circumstances, death sentence of the accused was converted into imprisonment for life

Appeal against conviction was dismissed with said modification in sentence.

Qatl-amd, mischief and thereby causing loss or damage to the amount of fifty rupees or upwards, forgery, using as genuine a forged document, haraabah, possession of illegal weapon

Appreciation of evidence

Last seen evidence

Accused was charged for committing murder of the brother of a witness during haraabah

In this case, statement of a witness, who had last seen the deceased, with the accused was heavily relied upon on behalf of the prosecution

Though said witness had stated that he was working as tourist guide yet he could not explain his presence at parking area of the hotel, on the day of occurrence where he along with a witness (not produced) and others had last seen the deceased negotiating for sale and purchase of vehicles

Statement of said witness under S.161, Cr.P.C, was recorded eleven days after the occurrence on 27.02.2023 which reflected that he kept mum and did not disclose the fact of last seeing deceased in the company of the accused

Said witness also got recorded his supplementary statement under S.164, Cr.P.C, on 06.03.2023 but the same was not exhibited in evidence

Delay of eleven days in recording his statement under S.161, Cr.P.C, without any plausible explanation casted serious doubts on veracity of his statement

Even if, testimony of said witnesswas believed as gospel truth, there was gap of more than 9 hours between last seeing the deceased and his death, which suggested that possibility of deceased being killed by someone else could not be ruled out

Even otherwise evidence of last seen requires corroboration which by itself is not sufficient to sustain charge of murder against the accused

Appeal against conviction was allowed, in circumstance.

Last seen evidence is generally regarded as a weak type of evidence unless corroborated by other strong piece of evidence.

Prosecution case rested on circumstantial evidence consisting upon last seen evidence, report of Forensic Laboratory and medical evidence

Complainant had nominated the accused through subsequent application but had failed to describe the source of information in respect of involvement of accused in the commission of offence

Prosecution witness, claiming to have seen the deceased accompanying with accused, was a chance witness

Prosecution had not conclusively proved that the deceased was killed shortly after the alleged last seen

Conviction could not be recorded on the strength of last seen evidence in a case of circumstantial evidence

Complainant had failed to point out any illegality and irregularity in the impugned judgment

Appeal against acquittal was dismissed, in circumstances.

Statements of both the witnesses were in line with each other to the extent that they had seen the accused taking the victim on his vehicle

Statement of Investigating Officer confirmed that both the witnesses were brought by the complainant of the case himself in police station for recording their statements

Statements of both the witnesses showed that the same were recorded after delay of about 25-days from the date of occurrence

No explanation available on record to establish that as to why the statements of both the witnesses were recorded at belated stage and ambiguities arising in a prudent mind with regard to credibility of the said witnesses as the complainant himself managed and produced the said witnesses before the Investigating Officer for associating them in the investigation

Delay so occasioned in recording their 161, Cr.P.C. statements were not helpful for the case of prosecution due to sole reason that they did not witness the crime directly

Circumstances established that the prosecution had failed to prove the charge against the accused beyond the shadow of reasonable doubt

Appeal against conviction was allowed, in circumstances. [Para. 8 of the judgment]

Last seen theory comes into play where the time-gap between the point of time when the deceased is last seen alive in the company of accused and when the deceased is found dead is so small that possibility of any person other than the accused being the culprit of the crime becomes impossible

Evidence of last seen is considered a weak type of evidence which is not sufficient to sustain punishment in cases pertaining to capital punishment without corroboration from other circumstantial evidence available on the record.

According to statement of eye-witness, he had seen the accused throwing a girl in canal (allegedly nice of complainant) on 30.03.2016, when he was going with Mr. "A", son of nephew of deceased and cousin of minor deceased

Astonishingly, such episode of throwing a girl in canal was not mentioned in the crime report because it was an admitted fact that Mr. "A" lived with his father

Statement of nephew of deceased showed that Mr. "A" used to live with him at the time of occurrence and worked as daily wager with the eye-witness

Surprisingly, father of Mr. "A" did not recognize his cousin, allegedly thrown in the canal by his uncle/ accused

However, it became highly doubtful that despite seeing accused throwing deceased in canal, he did not stop and try to rescue her

Prosecution had no justification that why such fact was not mentioned in the crime report despite same being registered on the following day i.e. 31-03-2016 at late hours, especially when Mr. "A" was living with his father, who was actively searching for his sister along with other prosecution witnesses including complainant

Said circumstances made the evidence of eye-witness highly doubtful and unreliable

Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt

Appeal against conviction was accordingly allowed.

After attending funeral prayer, he had no contact with the complainant but during his cross-examination destructively stated that he joined investigation on the first day when FIR was registered

Similarly, other witness did not inform the evidence of last seen to the complainant till

Question arose that if said witnesses had seen deceased in the company of accused then why they had not disclosed that fact to the complainant and remained mum

Said witnesses had not been able to give any plausible reasoning qua their presence at the place of occurrence at the relevant time

Had the said witnesses being truthful witnesses and had they witnessed whatever they stated before the police and the Trial Court, they would have immediately informed the police much earlier

Such self-negating and contradictory statements of the said witnesses reflected that they were not truthful, rather they were deposing an afterthought, fabricated and concocted story just to create incriminating evidence to strengthen the case of un-witnessed occurrence against the accused

Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt

Appeal was allowed and accused was acquitted by setting aide convictions and sentences recorded by the Trial Court.

Last seen evidence is always considered to be weak type of evidence, unless corroborated by some other independent evidence.

Last seen evidence is always considered to be a weak type of evidence, unless corroborated by some other independent evidence.

Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence

Appreciation of evidence

Benefit of doubt

Last seen evidence

Accused was charged for committing murder of the son of the complainant after kidnapping him

Last seen evidence had been furnished by two witnesses

According to the statements of said two witnesses of last seen, on 25.7.2016 at 08:00 p.m., they were present at a Chowk in connection with some domestic affairs

In the meantime, witnesses had seen accused with deceased coming towards them on motorcycle and stopped near them

Deceased talked to his father, who inquired from them where were they going, upon which accused told that he was taking the victim to his own house

Then they separated and went on their way

Thereafter, on 30.7.2016, father of deceased told one of the witnesses of last seen that his son was missing

Both the said witnesses came to the mother of the victim and told her that they had witnessed the victim with the accused on 25.7.2016

Noteworthy, that the said witnesses had failed to justify their presence at Chowk on 25.7.2016, when they allegedly saw deceased in the company of accused

According to the witness, his residence was situated about 70/80 Kilometers away from the place of occurrence

According to the statement of said witness, in connection with marriage proposal of his nephew, they had visited "S" on 25.7.2016

Concerned person, to whom they had to meet, was Mr. "S" but the prosecution had failed to produce the said witness during the course of investigation or before the Trial Court

Similarly, the other witness stated that he had not told to the police in his statement, the purpose for which he came to place "S" on 25.7.2016

Even otherwise conduct of said witness was highly unnatural because being the real father of deceased, why he allowed his minor son in the company of an unknown person

Both the said witnesses were interested witnesses and due to their unnatural conduct they could not be termed as truthful witnesses

Evidence of said witnesses was not worthy of reliance

Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt

Appeal against conviction was allowed accordingly.

Accused was charged for committing rape with the minor daughter of the complainant and then murdering her by strangulation

Evidence of the last seen furnished by a witness was the cornerstone of the prosecution case

Said witness deposed that on 30.4.2010 at about 6:00/7:00 p.m. he was returning from the house of his mother-in-law to his own house when he saw three accused persons including a lady in the street

Said witness subsequently learnt that daughter of the complainant was raped and murdered

Perusal of the record showed that said witness joined the investigation and made a statement to that effect on 14.5.2010

Said witness was the maternal cousin of the complainant yet he did not inform him about the rape and murder and kept mum for 14 long days

During his cross-examination the witness attempted to explain that delay by taking the plea that he went to place "L" on 30.4.2010 and came back on 12.5.2010, however said plea did not help him

Said witness admitted that his wife informed him about the incident on 01.5.2010

Keeping in view close relationship of said witness with the complainant, it was unnatural for him not to contact the complainant or the police immediately

More importantly, even if said witness returned on 12.5.2010, there was no explanation why he delayed joining the investigation till 14.5.2010

Thus, the testimony of said witness lacked credibility

In addition to that, the testimony of said witness was in direct conflict with that of other witness who deposed that he had informed him about the murder and rape on the very day of occurrence

Said fact also contradicted claim of witness of last seen evidence that he went to place "L"

Another witness deposed that on the fateful day when he got up for his Fajar prayer he had seen two accused persons including a female passing in front of his house carrying a sack and subsequently discovered that the said sack contained the corpse of deceased and they dropped it in the graveyard

Testimony of said witness too did not inspire confidence

First, statement of said witness was based on conjectures and surmises

Said witness did not witness the accused disposing of the corpse as aforesaid

Secondly, the alleged sack was not recovered during investigation

Thirdly, the dead body of deceased was found lying on a branch of a tree in the graveyard

Said fact did not appeal to a prudent mind that two accused persons would take it out from the sack and then put it there

Fourthly, accused were the parents of other accused persons while female accused was the sister of another accused

However, it rather seemed preposterous that they would allow them to ravish and murder the girl and then take the body themselves to the graveyard to dispose it of

Lastly, the statement under S. 161, Cr.P.C., of a witness was recorded by the Investigation Officer with a delay on 14.5.2010

Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt

Appeal against conviction was allowed, in circumstances.

However, admittedly the owner of said Petrol Pump or any other person who produced CCTV footage to the Investigating Officer was not joined into investigation nor produced during the course of trial to prove that aspect

Furthermore, during the course of trial when statements of the complainant and witnesses were recorded, footage was not played in the court room in order to get the accused identified by those witnesses

Although CCTV footage was sent for forensic analysis for identification of the accused but according to report of Forensic Science Agency, the forensic facial comparison of the pictures of deceased and accused persons with footage in USB was inconclusive due to minimal facial feature information of the persons

In such background, CCTV footage being inconclusive was of no avail to the prosecution case

Circumstances established that the prosecution absolutely failed to bring on record any convincing/reliable evidence/material to establish that the accused were involved in the commission of the alleged offence

Appeal against conviction was allowed, in circumstances.

Qatl-i-amd, kidnapping or abduction in order to murder, causing disappearance of evidence of offence or giving false information to screen offender, common intention

Appreciation of evidence

Last seen evidence

Scope

Accused were charged for abducting the son of the complainant with the intention to kill him

Record showed that the prosecution had adduced a witness who claimed that about two and half years back at about Maghrib Wela, he and other witness (not produced) were coming from a Mouza and when they reached near the canal bridge, they saw 4/5 persons including the accused present with the deceased

Accused fired with his carbin which hit on the leg of deceased, other accused fired with his carbin which hit on front chest of deceased, who fell down and succumbed to the injuries at the spot

Witnesses tried to rescue the deceased but accused persons threatened them of dire consequences

Accused persons had thrown the dead body of the deceased in the canal

Record further reflected that in fact said witnesses did not disclose the occurrence to anyone including the complainant of the case and remained silent for about nine months

On going through their statements recorded under S. 161, Cr.P.C., to the police, it was noticed that they did not nominate any accused in their statements

One of the witnesses named the present accused persons and other co-accused first time before the trial court while recording his evidence and admittedly the accused persons were never put to test identification parade

Testimony of such self-proclaimed eye-witness was inherently flawed and no implicit reliance could be placed on him

Circumstances established that the prosecution failed to prove its case against the accused persons beyond reasonable doubt

Appeal against conviction was allowed, in circumstances.

Last seen evidence is the weakest type of evidence unless supported from other circumstances.

Evidence of CCTV footage could be considered at the most as last seen evidence against the accused but it was noteworthy that the distance between the place where the minor was seen in the company of the accused and the place where the minor was allegedly thrown by the accused in the water or his dead body was recovered had not been brought on the record by the prosecution

Although CD of CCTV cameras recording had been produced in the prosecution evidence but no specific date and time had been mentioned by any prosecution witness that as to when the minor was seen alive in the company of the accused in the said CCTV cameras recording

In order to believe the evidence of last seen, there should be close proximity between the time and place of recovery of dead body of the deceased or the place of occurrence and the time and place where the deceased was last seen alive in the company of the accused, however, nothing in that respect had been brought on the record during the evidence of prosecution witnesses

Prosecution evidence of last seen was not worthy of reliance

Circumstances established that the prosecution could not prove its case against the accused beyond the shadow of doubt

Appeal against conviction was allowed, in circumstances.

Accused was charged for committing murder of the brother of the complainant and also steeling his car and other precious articles from his flat

Watchman of the building where flat of the deceased was situated appeared as witness

Said witness did not know the accused and only got fleeting glances of him at night when it was dark and later one evening

Said witness could not see whether accused was injured, which apparently he was according to other witnesses

Witness did not give any hulia of the accused in his S.161, Cr.P.C statement

Witness was not brought before any identification parade to identify the accused and could not confidently identify him in court

Witness, in his evidence, could not even say whether the accused who was present during the recording of his S. 164, Cr.P.C statement before the Magistrate was the same person whom saw with the deceased and as such could not safely rely on his evidence that the accused was the boy who was last seen with the deceased

Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt

Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Witness of last seen evidence had no enmity to falsely implicate the accused in the offence of a shocking nature of the crime committed with a child of tender age

Said witness had clearly explained that on the day of incident, he got stopped rickshaw at a Masjid for offering Asar prayers at 6:00 p.m.

Rickshaw was parked in front of the shop of the accused and he had seen a boy aged about seven years, was called by the accused who was present in his wielding shop

Deceased went inside the shop, then said witness after offering prayers went on the same Rickshaw to his house

Evidence of said witness was quite reliable and trustworthy, he had no motive to falsely implicate the accused in the murder case

No reason existed to disbelieve said witness

Trial Court had also rightly relied upon his evidence

Time mentioned by said witness was in line with time of occurrence in the FIR and probable time of death of deceased mentioned in the post-mortem report

Evidence of said witness was quite reliable and confidence inspiring as he had no motive to falsely implicate the accused in the case

Said witness had stated that he knew the deceased boy before that incident and the distance between the house of deceased and that witness was only half kilometre

Evidence of said witness was believable

No legal flaw or infirmity in the evidence of the said prosecution witness had been brought on record by the defence

Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt

Appeal against conviction was dismissed, in circumstances.

Evidence of said witness was found to be trustworthy, reliable and confidence inspiring, hence believable and thus, relied upon

Said witness stated that the accused was present in the Madrassa at the time of the incident, as corroborated by the CCTV evidence

Accused, the deceased and other witnesses were present in the room/place of occurrence at about 11.00 p.m.

When the witness of last seen evidence got up to go to the wash room he had seen the accused sitting on the stairs looking puzzled at 12.30 a.m.(night)

Said witness had seen the accused already on his bed when he returned to his bed which would be at around 1.00 a.m. (night)

At about 2.30 a.m. said witness and some of the other student woke up when they heard a sound as if something had fallen and they found the deceased lying on the mattress with blood oozing from his head

At about 2.30 a.m. when the witness and others woke up and found the body of the deceased, the accused was gone

Cement block was found adjacent to the mattress of the deceased which had not been there before

Significantly, the timings given by the witness tied in roughly with the timings mentioned by complainant in his evidence whilst watching the CCTV footage

Thus, keeping in view the fact that it had already come in evidence that the beds of the accused and the deceased were next to each other in the same room

Moreover, it would appear that the last seen evidence test had been met

Namely, at about 1.00 a.m., the accused was seen sleeping beside the deceased and within one and a half hours the accused was gone and the deceased was dead in the bed next to the accused where a cement block was found which the accused had already been found carrying in the CCTV/USB footage back towards his room where the deceased was sleeping next to him

Circumstances established that the prosecution had proved its case against the accused beyond any reasonable shadow of doubt

Motive was not proved, thus death penalty was reduced to imprisonment for life

Appeal against conviction was dismissed with said modification in sentence.

Last seen evidence is a weak piece of evidence and same can not be considered as sole ground while awarding conviction to the accused.

Admittedly, the last seen evidence was the weakest type of evidence unless corroborated by other strong pieces of evidence

Awarding punishment of capital charge on the basis of evidence of last seen was difficult.

Record transpired that no one came forward to furnish ocular account to that incident, thus, it was an unseen occurrence

Last seen evidence had been furnished by one witness, who stated that accused and two other persons took the deceased on a motorcycle and corps of the deceased was found from the water tank

Said story narrated by the witness had neither been corroborated from the FIR as well as disclosure of the accused before the police nor prosecution produced any other corroborating evidence in that behalf

Version of said witness established his status as a witness of last seen, which was an afterthought and seemed concocted and fabricated one

Had said witness seen the accused on the very first day of missing of deceased he would have definitely disclosed before the police regarding missing of the deceased

Said witness would have also inquired from the accused about the whereabouts of the deceased, but he did not lodge the report on the first day rather his statement was recorded by the police after three days from missing of the deceased, despite the fact that said witness was a nephew of the complainant, thus, said belated story of witness regarding last seen of the deceased in the company of the accused was unbelievable and not trustworthy

Appeal against conviction was allowed, in circumstances.

Witness of last seen evidence stated that at Maghrib Qaza Wela, he had seen the rickshaw of the deceased along with two unknown persons

One of them was driving the rickshaw, whereas the other was sitting on the rear seat with the deceased, on query he was told that they were going to a village on a special trip

Said witness stated that on following day, he came to know regarding missing of deceased along with his rickshaw

Said witness further stated that he came to know regarding the death of the deceased and as such, he attended his funeral ceremony

Held, it was yet to know that when the witness had seen the deceased, that too, in company of accused, what stopped him to convey the same to the father of the deceased, either on the day when he lastly saw the deceased with the accused or when he came to know regarding the death of the deceased

Said witness when had not contacted father of the deceased and had not shared his information with him, then how the local police came to know that said witness was the person who lastly saw the deceased in company of the accused and that how the local police reached to his house and recorded his statement under S. 161, Cr.P.C.

During cross-examination, said witness disclosed that he was informed by the complainant to reach Central Prison to attend the identification parade and that on the following day he reached there

Prosecution was to explain that whether said witness had lastly saw the deceased in the company of the accused and as to whether while making his statement, he disclosed the physical features of the accused

Conduct of said witness was not above board, as his presence, at the time when he lastly saw the accused and deceased together, was not established on the record

Circumstances established that the prosecution could not succeed in bringing home guilt against the accused

Appeal against conviction was allowed, in circumstances.