' FAZLUR REHMAN KHAN, J.---This criminal appeal is directed against the judgment and order, dated 17-1-2002 of the learned Judge, Special Court, Lakki Marwat whereby he convicted the appellant in case F.I.R. No, 288, dated 31-10-2000 of Police Station Tajori under section 302(b), P.P.C. And sentenced him under section 302(b), P.P.C. 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 same, was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
And in default, to undergo further six months' S.I. The benefit of section 382-B, Cr.P.C. 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 P.W. 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 PCr.LJ 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 (P.W.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 P.W. Khan Badshah the distance between his "Baithak' and the place of occurrence is one kilo meter 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 circumstances 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 PCr.LJ 956, similar observations were made by their Lordships of the Honourable Supreme Appellate Court of Sindh 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 P.W. Khan Badshah, 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 favor 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 of 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.
Appeal accepted.
2004-P Cr. L J 1163 [Lahore] Before Muhammad Khalid Alvi and M.A. Shahid Siddiqui, JJ Mian MUHAMMAD IDREES and others---Petitioners versus THE STATE and others---Respondents Writ Petition No, 5633 of 2003, heard on.25th March, 2004.
Criminal Procedure Code (V of 1898)--- ----S. 352---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---High Court (Lahore) Rules and Orders, Vol. III, Chap. I, Part A(3)---Place for holding Criminal Court for trial---Criminal trial should always be held in an open Court where general public could have an easy access; in exceptional circumstances, Presiding Judge or Magistrate, however, could deny access to public in general or any particular person---Similar provision was contained in Volume III, Chapter 1, Part A(3) in Rules and Orders of (Lahore) High Court, which had given discretion to Presiding Officer alone to hold trial in jail and for that purpose, Trial Court had to make a reference to obtain the sanction of Government. [p. 1165] A Sardar Muhammad Latif Khan Khosa assisted by Ch. Pervaiz Aftab for Petitioners.
Muhammad Mumtaz Malik for Respondents. Date of hearing: 25th March, 2004.
' M.A. SHAHID SIDDUQUI, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Mian Muhammad Idrees and Haji Noor-ul-Islam petitioners, who are being tried alongwith eight others by a learned Additional Sessions Judge, Multan, in case under sections 9(c) and 15 of the Control of Narcotic Substances Act, 1997, registered with Anti-Narcotics Force, Multan, vide F.I.R. No,9 of 2001, have challenged the legality of the order of the Home Department, Government of the Punjab, dated the 29th October, 2003, whereby the approval has been accorded of the holding of the trial of the accused inside the promises of New Central Jail, Multan.
2. The documents submitted by Mr. Muhammad Mumtaz Malik, Advocate, learned Special Prosecutor for A.N.F., Multan, indicate that on 6th October, 2003, Captain Shaukat Jawad Khan, Assistant Director, A.N.F. Multan, wrote a confidential letter to the learned District and Sessions Judge, Multan, for making a Reference to the Home Department, Government of the Punjab, seeking permission to conduct the trial of the said case in jail. The Home Department, on the reference made by the learned District and Sessions Judge, Multan, through the Lahore High Court, Lahore, passed the impugned order.
3. Learned counsel for the petitioners, while assailing the impugned order argued that it is the right of the accused to be tried in open Court as envisaged under section 352, Cr.P.C. And the decision to take exception rests with the trial Court. In the instant case, it is argued that the decision has been taken by the learned District and Sessions Judge, Multan, at the instance of Captain Shaukat Jawad Khan, Assistant Director, A.N.F. Multan, who had absolutely no concern with the trial.
4. The learned Special Prosecutor, ANF, while supporting the impugned order maintained that the accused belong to a gang of International drug traffickers and that there were credible information that they would manage their escape in collusion with some officials of Law Enforcing Agencies, as such, in order to avoid any untoward incident it was necessary that their. Trial should 'be held in the jail premises.
5. In order to appreciate the arguments put forth by the learned counsel of the parties, section 352, Cr.P.C. May advantageously be reproduced as under:--- "The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them: ' Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court."
6. A plain reading of the above provision of law shows that a .Criminal trial should always be held in an open Court where general pubic can have an easy access. However, in exceptional circumstances, the Presiding Judge or Magistrate may deny access to public in general or any particular person. A similar provision is contained in Volume III, Chapter 1, Part A(3) in the Rules and Orders of the Lahore High Court, Lahore, which gives discretion to the Presiding Officer alone to hold the trial in jail and for this purpose, the trial Court has to make a reference to obtain the sanction of the Government.
7. Admittedly, in the case in hand, the trial Court has not taken any decision in this regard and the Home Department, Government of Punjab, has accorded approval on a reference made by the learned District and Sessions Judge, Multan who was not seized of the matter. Thus, the impugned order cannot be sustained. Accordingly, we accept this writ petition and set aside the impugned order.