JUSTICE CH. IJAZ AHMED (MEMBER).--- Petitioner/ appellant has sought leave to appeal against the judgment of the Federal Shariat Court dated 16-1-2002 wherein his appeal filed before the Federal Shariat Court against his conviction was dismissed. Petition was fixed before this Court on 24-4-2003. Leave was granted out of which present Criminal Appeal No,24(S) of 2003 arises.
Necessary facts out of which the present appeal arises are that petitioner/appellant is involved in a case F.I.R. No,32 which was registered at Police Station Mandan under section 302, P.P.C. And under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the complaint of Mst.
Mussarat P.W.4. The facts narrated in the contents of and noted in the impugned judgment in para. 2 are as follows:- "Briefly the facts of the case as gleaned from the F.I.R. Exh.P.A. Based on the Murasila Exh.P.A../1 recorded by S.-I. Said Nawaz P.W.6 at the instance of. Mst. Mussarat, the complainant on 19-2-1998 at 10-30 a.m. At the spot, are that on 18-2-1998 at about 12-30 p.m. Her daughter Reeno Bibi aged 6/7 years went out of her house in the street and had not returned. She was searched in the village and in the Illaqa, but with no success. However, her dead body was recovered from the village well by the co-villagers after a day. She further disclosed that few days earlier, Akbar Ali accused, on her refusal to marry himwith Mst. Amina Bibi the widow of Akhtar Ali Patwari, had threatened her, that he will murder her son or daughter and will throw the child in the well. This report was made by Mst. Mussarrat before S.I. Said Nawaz who had reached the spot after hearing the recovery of the dead body."
After completing the investigation the case was sent before the competent Court by the investigating agency. The learned trial Court had completed the legal formalities such as framing of charge, recording of evidence and statement of the prosecution witnesses, statement of the accused and Court witness. Learned Sessions Judge Bannu vine its judgment dated 16-4-2001 convicted and sentenced the appellant/ petitioner as follows:-- Name of accused Under sections Sentence Akbar Ali (1) 10(3) of of fence of Zina (Enforcement of Hadood)
Ordinance,1979
(2) 302(b), P .P.C.25 years'R.I. with 30 stripes.
Life imprisonment with a fine of Rs.50,000.
In case the fine is realized be paid to the bereaved family as compensation under section 544-A, Cr.P.C. And in case of default in payment of fine appellant should further undergo 2 yearsR.I. The benefit of section 382-B, Cr.P.C. Was also extended to the appellant/petitioner . All the sentences shall run concurrently .
Appellant/petitioner being aggrieved filed Criminal Appeal No,20-P of 2001 before the Federal Shariat Court which was dismissed as mentioned above vide impugned judgment dated 16-1- 2002. However, sentence of 30 stripes was set aside. Hence this appeal.
2. The learned counsel for the appellant submits that C.W.1 Mst. Sameen Hazarad has stated in her statement while appearing before the Court that she had seen the deceased baby Reeno in the lap of the appellant/petitioner near the well wherefrom dead body was recovered. He further submits that incident took place on 18-2-1998 and F.I.R. Was lodged on 19-2-1998 but the prosecution failed to mention name of C.W.1 in the contents of the F.I.R. Her name was also not mentioned in the Qalandara as well in the final report submitted by the investigating agency before the competent Court under section -173, Cr.P.C. On 17-12-1998. He further submits that prosecution had closed its evidence before the trial Court on 30-6-2000. The trial Court had summoned C.W.1 as Court witness even after the recording of the statement of the appellant under section 342, Cr.P.C. Which was recorded on 15-7-2000 merely on the ground that statement of C.W.1 under section 161, Cr.P.C. Was recorded by the police on 16-6-1998 after 4 months from the date of incident, i,e, 18-2-1998. Her statement under section 164, Cr.P.C. Was recorded on 22-6-1998 in the absence of the appellant. This fact was not considered by both the Courts below in its true perspective. He further submits that learned trial Court erred in law to summon her as C.W.1 and allowed the prosecution to fill up the lacuna which was not permissible in the eyes of law. He further urges that C.W.1 has stated that she did not inform the mother- of the deceased well in time on account of extending threats by the appellant. He further urges that motive with regard to giving threats to the parents of the deceased baby on account of opposing appellant's marriage with Amina Bibi widow of Akhtar Ali Patwari was not proved. He further urges that motive could not connect the appellant/petitioner with the commission of crime. He further maintains that medical evidence and Chemical Examiner's reports are fully corroborated pieces of evidence which evidence would not itself prove the guilt of the appellant/petitioner. He further urges that both the Courts below had erred in law to award punishment on circumstantial evidence which could not connect the appellant/petitioner with the commission of offence. He further submits that C.W.1 is paternal aunt of the deceased Therefore, it was not believable that she could not inform on the day of occurrence to the mother of the deceased or relations that she had seen the deceased with the appellant.
3. Learned counsel of the complainant submits that all the pleas raised by the learned counsel for the appellant before this Court were raised before the Federal Shariat Court and rejected by the Federal Shariat Court with the cogent reasons as is evident from paras.11 and 12 of the impugned judgment. He further submits that C.W.1 is also nearest relation of the appellant and she had given explanation not to inform mother of the deceased on account of extending threats by the appellant to her. Both the Courts below had given finding of fact after proper appreciation of evidence that the deceased was seen with the appellant by C.W.1. He further urges that statement of C.W.1 was recorded by the police under section 161, Cr.P.C. On 16-6-1998 and her statement under section 164, Cr.P.C. Was also recorded on 22-6-1998 by the Magistrate. Concerned. Her name (C.W.1) was not mentioned at the time of submitting the challan before the competent Court on 9- 3-1998. The police has not investigated the matter in accordance with law as is evident from the observations of the Courts below. He further submits that the prosecution has proved the case against the appellant on the basis of circumstantial evidence consisting of following pieces of evidence:-
(1) Motive which was proved by the prosecution by producing Sarahat Bibi P.W.4.
(2) Last-seen evidence proved through C.W.1.
(3) Dead body was also recovered near the place where C.W.1 had seen the deceased in the lap of the appellant.
(4) Medical evidence also supported the story of the prosecution.
He summed up his argument that both the Courts below were justified to convict the appellant on the basis of the said pieces of evidence. The learned Additional Advocate-General has also supported the impugned judgment.
4. We have given our anxious consideration to the contentions raised by the learned counsel for the parties and perused the record. It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties:--
(1) C.W.1 Sameen Hazarad had seen the deceased in the lap of the appellant on 18-2-1998 at 11-00 a.m.
(ii) Occurrence took place on 18-2-1998 at 12-30 p.m.
(iii) P.W.6 Said Nawaz. S.-I. Police Station Saddar Bannu had received the information qua the incident and reached at the spot on 19-2-1998 and had taken the report of the complainant in the shape of Marasila Exh.P.A./I which was sent to the police station and the formal F.I.R. Was recorded on 19-2-1998.
(iv) Statement of C.W.1 was not recorded on 19-2-1998 under section 161, Cr.P.C.
(v) Challan was submitted against the appellant under section 173, Cr.P.C. On 9-3-1999 and charge was framed against the appellant on 17-9-1999.
(vi) It is pertinent to mention here that name of C.W.1 was not mentioned in the list of witnesses.
(vii) Prosecution closed its evidence on 30-6-2000.
(viii)Statement of accused was recorded under section 342, Cr.P.C. On 15-7-2000.
(ix) Statement of C.W.1 was recorded under section 161, Cr.P.C. On 16-6-1998 and her statement under section 164 was recorded on 22-6-1998 in the absence of the appellant/accused.
(x) Trial Court had summoned C.W.1 as court-witness and her statement was recorded in the Court on 10-2-2001 and thereafter statement of appellant was also recorded on 10-2-2001.
5. In case all the facts are put in juxtaposition then it does not appeal to reason that C.W.1 did not inform mother of the deceased or other relatives after the incident on 19-2-1998 that she had seen the baby in the lap of the appellant. Explanation furnished by her that she could not inform mother of deceased or any other relative qua the sad fact on account of threats caused by the appellant about causing harm by throwing the children into well. Such type of last seen evidence was believed by the Courts below without adverting to the aforesaid circumstances in its true perspective and the law laid down by the superior Courts. There are various pronouncements that the evidence of a witness who had some connection with the deceased about having last seen the deceased and the accused requires corroboration. It is pertinent to mention here that in the present case as mentioned above C.W.1 is D real paternal aunt of the deceased. The aforesaid proposition of law is supported by the following judgments:--
(1) Ghulam Mustafa's case PLD 1991 SC 718, (2) Nazo's case 1977 SCM R 20, (3) Rehmat's case PLD 1977 SC 515.
6. It is also a settled law that the existence of motive/enmity is neither a substantive nor a direct evidence. It is not corroborative piece of evidence either. The motive/enmity is only a circumstance which may lead to the commission of an offence. It is a starting point for committing a crime but under no circumstances it can be taken as evidence. Further, motive/enmity is a double-edged weapon. Offence may be perpetrated because of the existence of the motive/enmity and it can also be a basis of a false charge as observed by this Court in Muhammad Noor's case 1991 SCM R
643. It is a settled law that circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined if only because evidence of this kind may be fabricated only to cast suspicion on another as law laid down by this Court in Lajzor Teper's case PLD 1952 PC 119.
7. It is also a settled law that last seen evidence is a circumstantial evidence and is a weak type of evidence as law laid down by this Court in Naqibullah's case PLD 1978 SC 21. It is also a settled law that it is the duty and obligation of the prosecution to prove the case against the accused beyond any shadow of doubt even if accused failed to furnish H explanation for disappearance of deceased who had been seen along with the accused before his death in such circumstances in the case in hand where the C.W.1 did not disclose this fact for 4 months after the incident as mentioned above. See Mangal Singh's case AIR 1937 Lah.
127. It is a settled law that medical evidence by itself and without more cannot I throw any light on the identity of the assailants. See Machia's case PLD 1976 SC 695. In case the evidence of C.W.1 be read as a whole then it does not inspire confidence in view of the contradictions in her statement by not mentioning the particulars i,e, date, time and place as law laid j down by this Court in Siraj Din's case PLD 1964 SC 26. In case all the evidence of the prosecution be read together, the prosecution had failed to prove the ease against the appellant as first link i,e, last seen did not connect the appellant with the commission of offence.
8. For what has been discussed above, we find there is hardly any reliable evidence to connect the appellant with the commission of K offence. Appellant is entitled to the benefit of doubt as law laid down by this Court in Nazo's case supra. It is also a settled law that benefit of doubt is always given to the accused. See Lal Shah's case Criminal L Appeal No,56 of 1969, Shear Muhammad's case AIR 1945 Lah. 27 and Fazal Elahi's case PLD 1953 FC 214. It is no doubt that in case circumstantial evidence is so strong to connect the accused with the commission of offence then capital punishment may be awarded to him. See Jaffar Ali's case 1998 SCM R 2669 and Muhammad Amjad's case PLD 2003 SC 704. As mentioned above, the circumstantial evidence in the case in hand does not connect the appellant with the commission of offence in view of discrepancies mentioned hereinabove. Even otherwise every case is to be decided on its own peculiar circumstances and facts as 0 law laid down by this Court in Trustees of the Port of Karachi v.
Muhammad Saleem 1994 SCM R 2213. It is pertinent to mention here that Courts below have overlooked certain essential principles applicable to scrutiny of the proof adduced, and to the drawing of inferences, in cases resting exclusively on circumstantial evidence, and this has resulted in a failure of justice.
9. The appeal is allowed and appellant/accused is acquitted. He shall be released forthwith of not required in any other criminal case.