RAJA SAEED AKRAM KHAN, J.--- Through this single judgment, I intend to dispose of above captioned criminal appeal and the revision petition, which have arisen out of same judgment, dated 27-9-2005 passed by Mr. Muhammad Tariq Abbasi, learned Additional Sessions Judge, Islamabad, whereby both the appellants namely Muhammad Tauqeer and Bilal Khokhar were convicted and sentenced under section 302(b), P.P.C. To life imprisonment each with a compensation of Rs,3 lacs each, payable to the legal heirs of the deceased and in default to further undergo imprisonment for six months. Both the appellants were also convicted under section 392, P.P.C. And sentenced to 10 years' R.I. Each with a fine of Rs,50,000 each and in default, they had to undergo 2 years' R.I.
2. To set the law into motion, Asif Raza, complainant/petitioner, on 14th of August, 2004 at about 12- 55 noon, made statement before Muhammad Pervez, A.S.-I. Of Police Station Sehala, to the effect that he is resident of Rawalpindi and his son namely Tayyab Nisar, aged about 16/17 years, a student of Matric, yesterday, on 13-8-2004 went to school for tuition and usually he used to come back at 11/12, but did not return home till 3-00 p.m. Upon which they started his search; that his fellow students were also inquired about him and it came into the notice that lastly he met with Bilal son of Abdul Ghani; that on inquiry, Bilal told him that Tayyab Nisar informed him that he will go for Jehad; that thereafter he also got checked from the offices of religious organizations but failed to find out any clue of his missing son; that today in the morning, he got registered a Rupt regarding missing of his son at Police Station Sadiq Abad and on receipt of information through police at about 12-00 noon, reached the place of occurrence; that he with Ali Asghar identified the dead body to be of his son who was done to death by strangulation with an iron wire; that school bag and bicycle of his son were also lying there and that he has firm doubt that Bilal with his other companions had done to death his son.
3. After due investigation, both the accused were challaned to the Court on being found guilty.
4. Formal charge against accused was framed on 6-4-2005 to which they pleaded not guilty and preferred trial. Thereafter the prosecution produced 11 witnesses in support of its case.
5. P.W.1 Dr. Muhammad Arshed, on 14-8-2004, conducted post-mortem examination of deceased Tayyab Nisar and opined as under:--- "That cause of death was corrosive poisoning while the ligature strangulation contributed to the death. All the corrosive burns were ante-mortem. Such condition was sufficient to cause death."
P.W.2 Muhammad Akram, Draftsman, prepared site plan of the place of occurrence.
P.W.3 Muhammad Hanif A.S.-I. Attested recovery memos. Exh. P. C . , Exh. P. D. , Exh. P. E., Exh. P. F. And Exh. P. G. Through which various articles lying at the spot, currency notes and other articles got recovered by both the appellants and the articles recovered during personal search of the appellants, were taken into possession by the Investigating Officer. This witness also dispatched a sealed parcel to the office of Chemical Examiner and also taken photographs of the dead body.
P.W.4 Nasir Rashid Butt, Manager Coordination verified his reports Exh.P.H./1 and Exh.P.J./1.
P.W.5 Khalid Mehmood and P.W.6 Suhail Shamaz are the witnesses of last-seen.
P.W.7 Muhammad Pervez A.S.-I. Recorded statement of complainant Exh.P.K. And also prepared inquest report Exh.P.I. He also dispatched dead body for post-mortem examination with an application Exh.P.M. This witness also attested recovery memo. Exh.P.N. Through which Munir Ahmed S.-I./Investigating Officer took into possession, the last-worn clothes of the deceased.
P.W.8 Muhammad Tariq A.S.-I. Kept the case property of this case in safe custody in Malkhana and also dispatched various parcels to the office of Chemical Examiner and Pathologist, Lahore.
P.W.9 Asif Raza is the complainant of this case. He deposed to prove the contents of his complaint Exh.P.K. Besides this, he also identified the various articles and the dead body of his deceased son.
P.W.10 Munir Ahmed, S.-I. And P.W.11 Muhammad Mehboob, Inspector, are the Investigating Officers of this case. They deposed to prove the details of investigation, conducted by them.
6. After recording above prosecution evidence, both the accused were examined under section 342, Cr.P.C. Wherein they denied the prosecution evidence and have taken a similar plea that they have been implicated falsely in this case and all the P.Ws. Are interested and that case is a result of suspicion.
7. Learned trial Court, after hearing both sides and going through the evidence on record, convicted and sentenced both the appellants as mentioned above.
8. Learned counsel representing appellant No,1 contends that appellants were involved in this case only on the basis of suspicion as there exists no direct evidence against them; that the only evidence available with the prosecution is the "last-seen" which is the weakest type of evidence and cannot be solely relied upon without having strong corroboration; that the recovery of articles like T-shirts, tooth paste, knife, chip-stick etc. From the spot is not believable as according to prosecution version, the deceased went to attend school and such-like articles cannot be retained while going to school; that recovery of amounts from the possession of appellants is also highly doubtful as the prosecution failed to justify the same; that it was not the case of the prosecution that while leaving for school, the deceased had a huge amount as there was no occasion to keep such a huge amount in his bag; that one of the P.Ws. Namely Khalid Mehmood in his statement maintained that he was present in his plot and witnessed the deceased in the company of accused persons, but the prosecution failed to produce any title document of that plot in favour of the witness, therefore, his presence at the relevant time at the plot, is not justified at all; that this witness in reply to a question stated that he sold out said plot but failed to point out the exact particulars of that person which, too, makes the prosecution story as highly doubtful; that the conduct of this witness during cross-examination also creates a serious dent on his credibility as simultaneously he took divergent stands as on one hand he denied his relationship with the complainant whereas on the other hand, he claims himself to be his relative; that evidence of such-like witness cannot be relied upon and made the basis of conviction; that it also came into light via his statement that he is employed in KRL as Office Assistant and on the day of occurrence was on leave but admittedly he did not move any application for leave and further admitted that he moved leave application after four days, which clearly indicates that all was done through fabrication just to show presence of this witness at the spot; that the other witness of last-seen namely Sohail Shamaz, P.W.6 is admittedly resident of a village which is at a distance of 55 kilometers from the place of occurrence and there was no occasion for his presence at the relevant time; that it is not believable that this witness, who is also real maternal-uncle of the deceased, on hearing the murder of his nephew, left for his native village; that he remained in the hospital and it also came on record that police was present but he did not disclose that he saw the deceased in the company of accused persons; that testimony of both the witnesses of last-seen is highly doubtful and cannot be relied upon as both of them are interested and cannot be termed as truthful in any way; that the alleged recovery was effected from a thickly populated area but none from the public was associated as a witness which is sheer violation of mandatory provision of section 103 of Cr.P.C.; that there is also nothing on record to show that any efforts were made to join any private person with the recovery and that in these circumstances, when the prosecution case is full of doubts, appellants deserve acquittal.
Adding to above arguments, the learned counsel for appellant No,2 contends that according to statement of P.W.11 Muhammad Mehboob, Inspector, the accused were sent to judicial custody prior to 14-10-2004 and previously they remained on physical remand for five days and that physical custody of the accused was handed over to him on 8-11-2004, which means that accused were resummoned from judicial custody after a considerable delay; that this fact clearly indicates that in order to fill in the lacuna, recovery was planted upon the appellants as there was no justification to resummon the accused when they already remained on physical remand; that this witness further maintained that the investigation of this case was entrusted to him by the orders of S.P., but no such application is on the record; that area from where the alleged recovery was effected is a sensitive area falling within the jurisdiction of Police Station Airport, where nobody can enter without permission; that neither any such permission was sought nor did any effort was made for the same; that these facts clearly indicates that subsequent proceedings were conducted while sitting in the police station and that there is not an iota of evidence comes on record to implicate the appellant in present case. In support of their arguments, learned counsel relied upon case-laws cited as Mst. Reshman Bibi v. Sheerin Khan and others 1997 SCM R 1416, Sultan and others v. The State 1987 SCM R 1177, Muhammad Arshad v. The State 2008 PCr.LJ 1019, Altaf Hussain v. Fakhar Hussain and another 2008 SCM R 1103, Tayyab Hussain Shah v. The State 2000 SCM R 683 and Muhammad Mansha v. The State 1997 SCM R 617 and Ali Khan v. The State 1999 SCM R 95.
9. On the other hand, learned counsel for the complainant contends that judgment of the learned trial Court is, well reasoned and the Court has rightly appreciated the prosecution evidence.
Although the prosecution case hinges upon the evidence of last-seen, which is considered a weak type of evidence, yet the same cannot be disbelieved when there is a strong piece of corroboration in the form of recovery of amount and other belongings of the deceased. There is no enmity comes on record to falsely implicate the present accused. It was the duty of the defence to make an effort for production of title documents of the plot by moving an application, but no such effort was made which makes the prosecution case strong. He added that recovery of amount was effected from populated area but nobody was ready to come forward to assist as a recovery witness. Both the witnesses are independent and truthful and their evidence cannot be discarded merely on the basis of their relation. Lastly, it has been contended that the mode and manner in which the deceased was done to death clearly reflects the brutality of the appellants and they deserve normal penalty of death. In support of arguments, he relied upon case-law titled Nadeem v. The State 2006 SCM R 1197, Binyamin alias Khari and others v. The State 2007 SCM R 778 and Muhammad Akhtar v. The State 2007 SCM R 876.
10. Learned Federal Counsel opted the arguments advanced by learned counsel for the complainant and prayed for dismissal of appeal.
11. I have considered the arguments advanced by both the sides, minutely examined each and every piece of evidence and also gone through the impugned judgment in the light of arguments enumerated hereinabove.
12. The case of the prosecution mainly rests upon evidence of "last-seen" comprising statements of P.W.5 Khalid Mehmood and P.W.6 Sohail Shamaz and the recovery of articles. It is pertinent to mention that evidence of last-seen always be considered a weak type of evidence and cannot be relied upon if the same does not have strong corroboration. Moreover, burden to prove the case, without having any dent, will always lie upon the prosecution. So, while keeping this criterion in mind, I scrutinized the statements of both the witnesses of last-seen and found the same having major flaws and, in no way, can be termed as of unimpeachable character. Both of them failed to discharge their onus in such mode and manner so that it could be ascertained that they are quite natural, independent and truthful witnesses and that their presence at the relevant day, time and place was justified. One of the P.Ws. Namely Sohail Shamaz is admittedly resident of 55 Kms. Away from the place of last-seen and was allegedly present at the plot due to some construction work but failed to justify his presence over the plot at the relevant time as he was also not residing in that area. Nothing is on the record that whether he was living in the nearby locality. According to statement of this witness he remained in the hospital and police was present there but he did not disclose this fact to the police or even to the complainant that he saw the deceased in the company of accused/appellant. The other witness who claims himself to be the owner of the plot from where he lastly saw the deceased in the company of appellants, failed to produce any title document of said plot. He further stated that he sold out said plot but did not give the particulars of the person to whom he sold the same. The witness in his statement maintained that he has no relationship with the complainant but simultaneously he admitted that complainant is his cousin and "Behnoi" as well. It does not appeal to the reason that a person who is real "Mamon" of the deceased was aware of the murder of his "Bhanja" but remained mum and preferred to go to his native village instead of disclosing the fact to the father of the deceased.
13. The other evidence led by the prosecution in support of evidence of last-seen is the evidence of recovery which was effected from the place where the dead body was lying. As per evidence articles like Shalwar, Qamiz, pent, two T-shirts, pencil, tooth-paste, school batch, a knife, chip stick, a pair of Chappal etc. Were recovered from near the dead body. It was the case of the prosecution that the deceased was on his way to school, but the articles recovered from near his dead body did not, at all, support this stance for the reason that normally such-like articles cannot be carried while attending the school. Likewise, recovery of amounts is also not believable as there was no such justification to carry such a huge amount.
14. Besides above, the appellants were sent to judicial lock-up and after a considerable delay, again resummoned by the Investigating Officer after obtaining their physical remand for effecting recoveries. This fact clearly shows that by the passage of time, in order to link the chain of circumstantial evidence, fabrications were made in the shape of planting false recoveries upon the appellants. It was in the statement of Investigating Officer/P.W.11 that investigation of this case was entrusted to him by the orders of S.P. But no such order was ever produced before the Court which shows that proceedings were conducted in the police station just to fill in the lacuna. No site plan of the place of last-seen has been prepared to show whether it was possible to see the deceased and appellants from the plot.
15. In a case of circumstantial evidence, the law is very much clear that no link in the chain of such- like case should be missing and all the circumstances must lead to the guilt of the accused. While taking. This view reference may be made to case re: Ali Khan v. The State 1999 SCM R 955. In another case title Mst. Reshman Bibi v. Sheerin Khan 1997 SCM R 1416 the Honourable Supreme Court of Pakistan held that:--- "Last-seen evidence for basing conviction thereon as I circumstantial evidence must be incompatible with innocence of the accused and should be accepted with great caution and be scrutinized minutely for reaching a conclusion that no plausible conclusion can be drawn therefrom excepting guilt of the accused."
16. For the reasons enumerated hereinabove, I have no hesitation to hold that the prosecution has failed to prove its case against the appellants beyond any reasonable doubt and they have been involved merely on the basis of suspicion. Being favourite child of law, benefit of doubt always goes to the accused. Resultantly, there being no satisfactory basis to uphold the conviction and sentence of the appellants, the appeal is allowed and the impugned judgment is set aside. The appellants shall be released forthwith if not required to be detained in any other case.
17. For the same reasons, Criminal Revision bearing No,167 of 2005 seeking enhancement of sentence, stands dismissed.