Fazlur Rehman Khan, J.--This criminal appeal is directed against the judgment and order dated 17.1.2002 of thelearned Judge, Special Court, Lakki Marwat whereby he convicted the appellant in case F.I.R No, 288 dated 31.10.2000 of PS Tajori under Section 302(b) PPC and sentenced him to undergo imprisonment for life. A fine of Rs, 1,00,000/- (Rupees one lac) was also imposed upon him as compensation payable to the legal heirs of the deceased under Section 544-A Cr.P.0 or in default of payment of fine, to undergo further six months S.I. Benefit of Section 382-B, Cr.P.C. was also extended to him.
2. The brief facts giving right to this appeal are that on 31.10.2000, complainant Khan Badshah (PW.4). brought the dead body of his brother Farmanullah to the PS and reported at 8.30 a.m. that yesterday night on 30.10.2000, after `Kuftan' prayer, appellant Shahzullah armed with a kalashnikov came to his `Baithak'. At that time, he and his deceased-brother Farmanullah were also present there. In the meantime, the appellant told the deceased that his father (Shahzullah's father) was calling him out, on which, both the appellant and the deceased went out of the `Baithak'. The complainant was waiting for the arrival of his brother till late at night but he did not turn up. In the next morning, it transpired that the dead-body of his brother is lying somewhere in the limits of village Tajori. Accordingly, he alongwith his other co-villagers proceeded to the spot and found there the dead-body of his brother. Motive for the offence was stated to be that 15/16 days ago some altercations took place between the appellant and the deceased but lateron the matter was patched up. The complainant charged the appellant in the F.I.R for the murder of his brother.
3.On completion of investigation, challan was put in Court against the appellant. The appellant was charged under Section 302 PPC to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined seven witnesses. Zar Gul Shah, F.C. (PW. 1) is marginal witness to the recovery memo Ex:PC vide which the 1.0 took into possession bloodstained earth Ex:PI and four empties of 7.62 bore from the spot. Feroz Khan, F.0 (PW. 3), on the date of occurrence, escarded the dead-body of the deceased from the PS to R.H.0 .Tajori for post-mortem examination, Muhammad Aslam (PW. 5) identified the dead-body of the deceased at the time of post-mortem examination.
Doctor Aurang Zeb, M.O., R.H.C, Tajori (PW. 1) conducted the postmortem examination on the dead- body of the deceased on 31.10.2000 at 8.30 a.m. while, Khan Badshah (PW.4) furnished the ocular version of the occurrence whereas Amir Ahmad, S.I (PW. 6) conducted the investigation of the case and on completion, submitted complete challan against the appellant in Court. Similarly, Muhammad Amin, D.F.C. (PW. 7) was entrusted with the service of search warrant under Section 204, Cr.P.0 against the appellant and the proclamation issued under Section 87, Cr.P.C. On close of the prosecution case, the appellant was examined under Section 342, Cr.P.C. He in his statement denied the charge. However, he volunteered neither to examine himself as witness in his defence under Section 340(2) Cr.P.0 nor produced any evidence in defence.
3. After hearing the learned PP .for the State and the learned counsel for the appellant, the learned trial Court found the appellant guilty of the murder of deceased Farmanullah. Accordingly, he was convicted under Section 302(b) PPC and sentenced to undergo imprisonment for life. A fine of Rs, 1,00,000/- (Rupees one lac) was also imposed upon him and on the recovery of the some, was ordered to be paid to the legal heirs of the deceased as compensation under Section 544-A, Cr.P.0 and in default, to undergo further six months S.I. The benefit of Section 382-B Cr.P.0 was also extended to him.
4. We have heard Mr. Abdul Latif Khan. Baloch, Advocate for the appellant, Mr. Rajab Ali Khan, Advocate for the State assisted by Mr. Muhammad Waheed Anjum, Advocate for the complainant and have also perused the record.
5. The learned counsel for the appellant contended that in the present case, the prosecution case entirely rests upon the solitary statement of PW Khan Badshah who is not an eye-witness of the occurrence but he has furnished the "last seen evidence" and such a piece of evidence is a very weak type of evidence which without corroboration from any independent source is not sufficient to warrant conviction. In support, he placed reliance:--
1. 1972 SCM R 15,
2. PLD 1991 SC 718 and
3. 1994 P.Cr.L.J. 956 .
6. We have gone through the evidence on record and the authorities cited at the bar by the learned counsel for the appellant.
7. From the perusal of evidence on record, we find that the prosecution case entirely rests upon the statement of complainant Khan Badshah (PW.4) who is not an eye-witness of the occurrence but he had furnished the "last seen evidence" of the deceased in the company of the appellant.
According to his statement, the appellant came to their `Baithak' on the night of occurrence and after `Khuftan' prayer, the deceased went out with the appellant and the next morning, the dead- body of his brother was found on the spot. According to the cross-examination of PW Khan Badshah the distance between his `Baithak' and the place of occurrence is one kilometer or more.
There is no other evidence from any independent source to connect the appellant with the commission of the offence except the last seen evidence of the complaint. This evidence is in.the nature of "circumstantial evidence" and their Lordships of the Honourable Supreme Court of Pakistan in 1972 SCM R 15 held that in such circumstantial evidence, the rule is that no link in the chain should be broken and the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused.
8. Similarly, in PLD 1991 SC 718 it was held that the evidence of last seen witness who had some connection with the deceased require corroboration and circumstance of the deceased having been last seen in the company of the accused was thus not by itself sufficient to sustain the charge of murder against accused as further evidence was required to link the accused with the crime.
9. In the case reported in 1994 P.Cr.L.J 1956, similar observations were made by their Lordships of the Honourable Supreme Court of Pakistan by holding that circumstantial evidence of last seen is a very weak type of evidence and conviction solely based on such evidence cannot be sustained.
10. On the contrary, the learned counsel for the complainant contended that the last seen evidence is a reliable piece of circumstantial evidence, is corroborated by some other evidence, in the - present case, according to the statement of PW Khan Bad Shah, the appellant came to their `Baithak' on the night of occurrence with a Kalashnikov and the next morning four empties of 7.62 bore were recovered from the spot, as such, these recoveries corroborate the last seen evidence of the complainant. In support, he placed reliance on PLD 1996 SC 305.
11. We have gone through this authority and find that instead of supporting his argument, it goes in favour of the prosecution case. If any, weapon would have been recovered from possession of the appellant and the. four empties recovered from the spot would have been proved to have been fired from that weapon, then the arguments of the learned counsel for the complainant would have prevailed and the conviction of the appellant was maintainable but in the absence of any such evidence, the appellant could not be connected with the commission of the offence on the mere last seen evidence of the complainant.
12. For the reasons stated above, we accept this appeal and while giving him the benefit of doubt we acquit the appellant of the charge levelled against him. He shall be released forthwith, if not required in any other case.