' MUHAMMAD AHSAN BHOON, J.---Criminal Appeal No,710 of 2002 is directed against the judgment dated 30-11-2002 passed by the learned Sessions Judge, Attock whereby Azhar Hussain was convicted under section 302(b), P.P.C. For committing the murder of Muhammad Ayub and sentenced to death with a compensation of Rs,1,00,000 under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased or in default to further undergo 2 years' R.I. Whereas Muhammad Ishaq complainant has filed Cr. Revision No,270 of 2002 for enhancement of compensation and the learned trial Court has sent Murder Reference No,896 of 2002 for confirmation of death sentence of the appellant or otherwise. We propose to dispose of these three mattes through this judgment as the same arise out of the same impugned judgment.
2. The prosecution story as narrated by the complainant Muhammad Ishaq in F.I.R. (Exh.PG) is that he was resident of Deh Jangel having two sons namely Muhammad Ayub and Muhammad Farooq.
Muhammad Farooq resided in village Jangel along with his family whereas the complainant along with his brother Ismail and his son Muhammad Ayub with his family used toe reside at the Dhoke situated on the eastern side of village Jangel. On the night between 12/13-10-2002 as usual the Complainant slept in a room of the Dhoke whereas his son Muhammad Ayub slept in the courtyard of said Dhoke and his brother Ismail slept in the `baithak'. The other family members including the children slept in another room of the Dhoke. At about 11-30 p.m. At night, he heard a noise of fire shot and immediately came out of the room and saw his son Muhammad Ayub who was having an injury on the right side of his head, lying in the pool of blood and had expired. His brother Muhammad Ismail was also attracted there on hearing the noise of fire shot. The complainant reported that this son Muhammad Ayub had been done to death by some unknown persons with a fire-arm.
3. After due investigation report under section 173, Cr.P.C. Was submitted to the learned trial Court.
Charge was framed against the appellant who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellant was examined under section 342, Cr.P.C. In reply to question "Why this case is against you and why P.Ws. Have deposed against you" Azhar Hussain appellant replied as under:-- "The P.Ws. Are closely related with the deceased as well as inter se. They have deposed falsely against me in order to save Mst. Riffat, the real culprit and the complainant party entered into compromise with Mst. Riffat and did not allow her to remain under investig ition even for a single hour."
'Neither the appellant opted to appear as his own witness in disproof of the allegation levelled against him as required under section 340 (2), Cr.P.C. Nor did he adduce defence evidence. The learned trial Court after hearing the parties, passed the above said conviction and sentence, which is being assailed through this criminal appeal.
4. Heard. Record perused.
5. Admittedly this is a case of an unseen occurrence taken place in the dark hours of the night at about 11-30 p.m. On 12-10-2002 in the house of deceased Muhammad Ayub when he was done to death while sleeping in the courtyard of his house. It was stated by Muhammad Ishaq complainant (P. W .12) in the F.I.R. That on hearing noise of firing he came out from his room and saw a fire-arm injury on head of the deceased who was lying in the pool of blood and had died. It was also stated by the complainant in the F.I.R. That Muhammad Ayub deceased was murdered by unknown person with fire-arm. While appearing in the Court, complainant Muhammad Ishaq (P.W.12) reiterated the same story.
' However, in cross-examination he stated that the accused of conspiracy of murder Mst. Riffat Begum was wife of deceased and she was for given by him in the name of Almighty Allah and her pre-arrest bail was also confirmed by the learned Court on a similar statement, so the evidence of complainant was mere information of murder for the purpose of lodging of F.I.R. Which does not connect B the appellant / accused in any way with the alleged crime. The prosecution produced Zahid Mahmood (P.W.9) who stated that at 11-00 p.m. At the night of occurrence he saw the accused having armed with .12 bore gun on a passage which led to the dhok of the deceased. He stated in his examination-in-Chief that night of occurrence was a cloudy one and due to that reason there was heavy lightening but he admitted in the cross-examination that when he saw the accused he was at a distance of 10 paces from him meaning thereby that this P.W. According to his version saw the accused from a distance of about 20 to 25 feet and did not talk with him so even if this P.W. Was present on the passage, it was not possible to recognize the accused in dark hours of the night which was a cloudy one particularly when they had no conversation with each other.
Similarly Javed Akhtar (P.W.8) is also a witness of last seen who saw the accused coming from the Dhok of deceased when this P.W. Was on western side of the kassi (Nala) whereas the accused having .12 bore gun was on the eastern side of Kassi (Nala). This P.W. Also stated that he was at a distance of three yards from the accused when he saw him but they did not talk with each other.
This P.W. Also admitted that his house was at a distance of 2 furlongs from the Dhok of deceased.
These P.Ws. Of last seen are although closely related to the deceased as well as the accused but none of them deposed about any fact that either any of these P.Ws. Saw the accused lastly in the company of the deceased or while entering into the house of the deceased or coming out of the house of the deceased, so in our considered view the evidence of last seen is of no avail to the prosecution as the last C seen evidence being weakest type of evidence cannot be relied upon unless it is corroborated by other strong incriminating piece of evidence, the conjectures, surmises and probabilities deducible from the evidence cannot take the place of proof, and finding of guilt must rest surely and firmly on the said and cogent evidence and the above said evidence is based on mere conjectures, surmises and probabilities which cannot be relied upon to base a conviction in a case of capital punishment. Muhammad Masood (P.W.10) is a witness of extra-judicial confession allegedly made by the accused. This witness is `behnoi of appellant but at the same time deceased was his `sala.' and also son of his elder uncle. This witness although deposed that accused told him that he had been instigated for the murder by Mst. Riffat Bibi wife of the deceased and extra judicial confession was made on 18-10-2002 but this witness neither participated in the funeral of the deceased rather he stated that he had come to know about the occurrence on 18-10-2002 for the first time by the accused. The conduct of this witness absolutely does not appeal to reason and there is no corroboration of his evidence and it is a settled proposition of law that extra judicial confession is weakest type of D evidence, the same cannot be relied upon unless the same is corroborated by the strongest piece of evidence particularly in a case wherein no motive is alleged to the accused for the murder of deceased and there is nothing on record, what was the reason of the murder of Muhammad Ayub deceased by the accused except that Mst. Riffat Bibi accused instigated him for the commission of murder that too without any rhyme or reason and said co-accused Mst. Riffat Bibi, which was not nominated in the F.I.R, firstly she was granted pre-arrest bail at the very outset on consenting statement by the complainant and then she was acquitted on similar statement of compromise. Even otherwise the evidence of extra-judicial confession can easily be procured when direct evidence of crime is not available. Therefore, the while placing reliance on it, Court must use the same with utmost care and caution and even the extra-judicial confession allegedly made by E the accused run counter to the natural probabilities showing that the same in fact had not been made before the said witness. Even we have failed to understand what had compelled the accused to approach the said witness and make extra-judicial confession of murder before him when nothing had been said by the witness that he wanted to get any favour about the compromise of the case with the accused when the sister of said witness was also an accused for alleged conspiracy of the crime.
6. The accused was arrested in the case according to the police file on 18-10-2002 and crime empty allegedly recovered from the spot was also sent to the Forensic Science Laboratory on 18- 10-2002 after the arrest of the accused and same was found wedded with the gun allegedly recovered so the said positive report would F be of no consequence when the empty was sent after his arrest. Even otherwise, there is nothing on record that any second fire was made by the accused and if no second fire was made then there seems no reason for unloading the single barrel gun and throwing empty on the spot. Hence the recovery of gun and empty is also of no avail.
6(sic). As far as the medical evidence is concerned, no doubt the deceased died unnatural death with fire-arm but nobody saw the occurrence, so there is no need to further dilate upon the same when the occurrence was unseen one.
7. In view of above discussion, we are of the considered view that last seen evidence for basing conviction must be incompatible with he innocence of the accused and should be accepted with great caution and be scrutinized minutely for reaching such a conclusion that no other plausible conclusion can be drawn therefrom except guilt of the accused and circumstantial evidence must be in a geometrical progression in the shape of a chain which must be touching the dead body of the deceased from one side and to the neck of the accused from the other side.
8. While applying the above principle, we are of the considered view that this is a case of no evidence and prosecution has failed to prove its case beyond any shadow of doubt against the appellant. Hence, we allow this appeal and set aside the to the Judge, dated of the conviction and sentence awarded appellant by the learned Sessions Attock vide impugned judgment 30-11-2002 and he is acquitted charge. He is in jail, he shall be released forthwith, if not required in any other H criminal case.
9. Murder Reference No,896 of 2002 is answered in negative.
10. Cr. Rev. No,270 of 2002 having no merits is dismissed.