' This judgment will dispose of Crl. Appeal No,746 of 2002, directed against the judgment dated 11- 4-2002 passed by the learned Additional Sessions Judge, Sheikhupura, whereby he convicted the appellant Muhammad Arshad alias Kali son of Imam Din under section 302-C, P.P.C. And sentenced him to undergo R.I. For ten years with fine of Rs,50,000 in default thereof to undergo S.I.
For six months. The benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. The occurrence in this case took place on the night falling between 2/3-2-2001 in the area of Chak No,6 G.B. Tehsil Nankana District, Sheikhupura situated at a distance of 2 k.m. From Police Station, Mananwala District, Sheikhupura. The matter was reported to the police through the complainant Muhammad Aslam son of Muhammad Shafi, brother of the deceased Muhammad Boota on 3-2-2001 at 3-30 p.m.
3. The brief facts as narrated by the complainant Muhammad Aslam P.W.10, who submitted an application Exh.P.1, before the Station House Officer, Police Station, Mananwala are that Muhammad Arshad alias Kali, and his brother Muhammad Boota deceased having relations used to visit each other. Muhammad Boota deceased told his brother-complainant that relations with Muhammad Arshad became estrange due to suspicion by the accused Muhammad Arshad of illicit relations of the deceased with his sister but later on the accused himself compromised. Complainant further stated that on 2-2-2001 Muhammad Arshad alias Kali, Muhammad Siddique and Muhammad Hanif accused came to their village Mananwala Chak No,6 and took his brother Muhammad Boota deceased with them on some pretext. When Muhammad Boota deceased did not come back on 3-2-2001 the complainant told Khurshid and Haji Sultan to search about Muhammad Boota deceased. In query Muhammad Arshad alias Kali told them that he did not know abOut Muhammad Boota deceased. In the meantime dead body of Muhammad Boota deceased was discovered lying the field near Patri Same Nala, which was identified by Haji Sultan and Khurshid.
Complainant alleged that Muhammad Arshad alias Kali, Muhammad Siddique and Hanif murdered his brother on the suspicion of illicit relations with Mst. Zahida Parveen sister of Muhammad Arshad alias Kali accused.
4. During the course of investigation police arrested the accused persons, challan was prepared and submitted before the Court placing Muhammad Arshad accused in column No,3, Muhammad Hanif and Muhammad Siddique in column No,2.
5. The prosecution in order to prove its case produced 11 P.Ws. Including Doctor, Investigating Officer and other relevant persons as well as documents Exh.P.A.. To Exh.P.N. And articles P.1 to P.4. On 6-4- 2002 the learned A.D.A. After tendering in his evidence reports of Chemical Examiner of Chhuri Exh.P.K., report of Chemical Examiner of bloodstained earth Exh.P.L. And reports of Serologist Exh:P.M.
And Exh.P.N. Closed the prosecution evidence. Thereafter statement of the accused/appellant was recorded under section 342, Cr.P.C. In which he pleaded not guilty. He did not make any statement under section 340(2), Cr.P.C. Nor did he produce any evidence in his defence in order to rebut the allegations levelled against him.
6. P.W.5, Dr. Sohail Khizer, M.O., D.H. Q. Hospital, She'ikhupura stated that he conducted the post- mortem examination of the dead body of deceased and found out six injuries on his body. He opined the death of deceased due to severe shock and haemorrhage leading to cardio respiratory failure. All injuries were collectively and injuries Nos.1, 2, 3 and 4 individually were sufficient to cause death of a person in an ordinary course of nature. He also identified his handwriting and signatures on Exh.P.B. , Exh P B /1 , Exh P C . And Exh. P.D. And Exh.P.E.
7. Learned counsel for the appellant after going through the evidence and other relevant record available on the file submitted that it is an =witnessed occurrence, that there is no direct evidence in this case, that the prosecution has failed to prove the motive against the appellant. The learned counsel for the appellant submits that the Investigating Officer did not make anybody from the locality to join recovery of Chhuri Exh.P.A., which is against the mandatory requirement of section 103, Cr.P.C., which reads as under:-- "(1) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.
(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(3) Occupant of place searched may attend. The occupant of the place searched or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request.
(4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request.
(5) Any person who, without reasonable cause, refused or neglects to attend and witness a search under this section, when called upon to do so by any order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code."
' He submits that the solitary evidence of last seen is not reliable and uncorroborated. It is further submitted that in circumstantial evidence motive has to play a fundamental role which the prosecution failed to prove. Adds that prosecution has not been able to prove its case against the appellant beyond any shadow of doubt and it is not safe to rely such evidence.
8. On the other hand the learned counsel for the State has half-heartedly supported the prosecution case in a stereo type manner and has supported the impugned judgment-
9. I have heard the learned counsel for the parties and also gone throng' the record available on the file. Admittedly there is no corroborating evidence in respect of last seen evidence except complainant of the case Muhammad Aslam P.W.10 and merely the recovery of dead body nearby the house of Muhammad Arshad alias Kali appellant/accused does not prove the case and ipso facto the recovery of weapon of offence does not connect the accused/appellant with the commission of offence. It is settled law that in the cases of circumstantial and last seen evidence the prosecution evidence should have been cogent, confidence inspiring and not missing. It is also a fundamental principle that in circumstantial evidence motive has to play a fundamental role and in this regard reliance is placed on "Maqbool Ahmed alias Koola v. The State" 1998 PCr.L1 72 and "Ghulam Mustafa alias Ziau v. The State" PLD 1991 SC 718 in which it was held that every link in circumstantial evidence should be proved by cogent evidence and if nit then no conviction can be awarded or maintained to the accused. It is well-settled principle that a case which is based on the circumstantial evidence, no link of evidence should be missing and all the circumstances must reach to guilt of the accused reliance is placed on "Ali Khan v. The State" 1999 SCM R 955. It is further noted that once the motive is set up and it is not proved then it will be very fatal for the prosecution.. So in the case in which no witness of ocular account is available and nobody claims that the deceased and the accused were Seen at the place of occurrence or near the place of occurrence and when the place of occurrence is situated at 6/7 miles away from the village and three thickly populated villages are situated around and there is no evidence that deceased was seen in the vicinity and accompanied by the appellant/accused, the story put forth by P.N. Stand falls to the ground.
10. After having heard the learned counsel for the parties and also going through the submissions made by the learned counsel for the parties I am of the firm view that prosecution has not been able to prove its case against the appellant/accused beyond any shadow of doubt. The prosecution evidence is not such confidence inspiring which can lead to the only conclusion that the appellant is guilty of the murder of deceased. Further more on the same evidence co-accused have already been acquitted by the learned trial Court.
11. Upshot of the above discussion is that the instant appeal is accepted and the conviction and sentence awarded to the appellant/accused by the learned trial Court is set aside. The appellant be released forthwith if not required in any other case.