' TARIQ PARVEZ, J.---This appeal by leave of the Court is directed against the judgment dated 27-2- 2007 passed by Lahore High Court, Lahore, whereby sentence of death, under section 302(b), P.P.C., awarded to the appellant by the trial Court has been maintained.
2. Brief facts of the case are that the complainant-Amanat Ali, on receiving the information about the murder of his son namely Fayyaz Ahmed, arrived at Kasur and got registered a case vide F.I.R.
No, 597 of 1997 with the Police Station Saddar, District Kasur, to the effect that he was a resident of Mohallah Tariqabad, Lahore and used to sell vegetables; his son Fayyaz Ahmad (deceased) used to drive a pickup, which belonged to one Muhammad Hanif; that on 28-11-1997 at about 10-30 a.m.
He in the company of Akbar Ali (P.W.5), Muhammad Nawaz and Allah Ditta (given up P.Ws.) went to pickup stand, where Fayyaz Ahmed-deceased was present along with his vehicle. Meanwhile, Muhammad Hussain (appellant), a resident of Kasur, who had acquaintance with Fayyaz Ahmed deceased, came there and engaged the pickup of the Fayyaz Ahmed for bringing his household articles from Kasur city; Rs,400 was agreed as fare and the deceased left for Kasur along with the appellant; the complainant on his return to his house did not find his son as such he got worried and remained in search of his son even on the next day but could not find any clue; however, on 30-11-1997 he on receiving information about the murder of his son went to Kasur and identified the dead-body to be of his son; he alleged in the complaint that his son had been done to death by Muhammad Hussain-appellant by way of strangulation due to greed.
3. The appellant was arrested on 26-12-1997 and on 27-12-1997, he got recovered the pickup Exh.PF, apart from other recovered articles. On completion of usual investigation, he was sent up to face trial for the charge of murder under section 302, PAC., to which he pleaded not guilty and claimed trial. The prosecution in order to prove accusation against the appellant produced as many as nine witnesses. The appellant in his statement under section 342, Cr.P.C. Denied the charge and pleaded that he had been falsely implicated in the case at the behest of police and close relatives of the deceased, who are inimical towards him. However, he did not opt to appear as his own witness in terms of section 340(2), Cr.P.C. Nor he produced any evidence in defence.
4. Upon conclusion of the trial, the learned Trial Judge, vide judgment dated 9-8-2001 found the appellant guilty under section 302(b), P.P.C. As such sentenced him to death with direction to pay Rs,100,000 as compensation to the legal heirs of the deceased or in default whereof to undergo R.I.
For six months.
5. Feeling aggrieved from the judgment of the trial Court, the appellant preferred appeal before the Lahore High Court, Lahore, which has been dismissed by means of impugned judgment. A murder reference, sent by the Trial Court for confirmation or otherwise of the death sentence of the appellant, was also answered in affirmative. Hence this appeal by leave of the Court.
6. Learned counsel for the appellant argued that it was an unwitnessed crime; the last seen evidence furnished by Akbar Ali (P.W.5) and. Amanat Ali (P.W.8) is fabricated and an afterthought, as such is to be excluded from consideration because Akbar Ali (P.W.5) is son-in-law of Amanat Ali (P.W.8) and Amanat Ali (P.W.8) is the father of the deceased.
' It is argued that recovery of the dead body of the deceased was made from the house owned by one Sasta Mistry and no credible evidence was led to show that the said house was in occupation of the appellant: ' Regarding recovery of other articles like driving licence, etc., it is argued that same were recovered from the house of in-laws of the appellant and not from the personal possession of the appellant.
' Main contention of the learned counsel for the appellant was that the recovery of dead body, recovery of vehicle No,5672-LHN, belonging to the deceased and other articles, all were witnessed by Akbar Ali (P.W.5), who is brother-in-law of the deceased and Niaz Ahmed (P.W.6), who is brother of the deceased; these two witnesses are residents of Lahore whereas all the incriminating articles were recovered from District Kasur and no person from the locality was associated during the process of the alleged recoveries.
7. Learned counsel appearing for the State has argued that neither the relationship of Akbar Ali (P.W.5) nor of the Niaz Ahmed (P.W.6) was ever disputed; even no suggestion has been made to these witnesses for falsely charging the appellant for the offence of murder of the deceased. He also argued that the place of recovery of the vehicle, snatched from the deceased, was in the knowledge of the appellant, who led the police party to that place. Similarly, other incriminating recoveries, which connect the appellant with the crime, were recovered on the pointation of the appellant from the house of his in-laws. His submission was . That there was sufficient circumstantial evidence, which connects the appellant with the commission of crime including the last seen evidence furnished by Akbar Ali (P.W.5) and Ainanat Ali (P.W.8).
8. We have heard the learned counsel for both the sides at length and have also carefully scrutinized the record, keeping in view their submissions.
9. According to the F.I.R., deceased-Fayyaz Ahmed was hired by one Muhammad Hanif, owner of the pickup No,5672-LHN, which vehicle was used as rent-a-car or for carriage purposes on payment. Appellant Muhammad Hussain has allegedly engaged the deceased for taking some household articles from District Kasur to Lahore. Last seen evidence by Akbar Ali (P.W.5) and Amanat Ali (P.W.8) was on 28-11-1997 at 10-00/11-00 a.m. The dead body was recovered from the house of Sasta Mistry on 30-11-1997. It was produced before Dr. Muhammad Aslam Sheikh on 1-12- 1997 at 12.00 midday for postmortem examination. It has come in the statement of Dr. Muhammad Aslam Sheikh that according to the police report/papers, death has occurred at 8-30 a.m. On 30- 11-1997; doctor has given probable time between death and postmortem as 30 hours; if this time is taken into consideration, the approximate time of death of deceased would come to be on 30-11- 1997, then the nexus between last seen evidence i,e,, on 28-11-1997 stand broken because in between at least 48 hours have passed and last seen evidence has to be in the shortest approximate time of seeing the deceased in the company of accused person followed by and then recovery of the dead body. Even if the last seen evidence by Akbar Ali (P.W.5) and Amanat Ali (P.W.8) is accepted to be true, even then according to the medical report, death has occurred after 48 hours of the last seen evidence, for which there can be so many intervening events, which would disconnect the presence of the deceased with the accused.
10. The dead body was recovered from the house of Sasta Mistry, which was allegedly rented to the appellant Muhammad Hussain. To prove this fact, the prosecution examined Muhammad Sadiq (P.W.7), who has given hearsay evidence by stating that he was informed by Sasta Mistry (landlord) that the house in question was rented to the present appellant. This witness has not deposed that on any point of time, he has seen the appellant living in the said house; therefore, no physical connection of the appellant has been established with the house wherefrom the dead body of the deceased was recovered. The best evidence could have been furnished by examining Sasta Mistry, who was not.
11. Another piece of evidence used against the appellant is the recovery of vehicle No,5672-LHN, which was allegedly in possession of the deceased and was the cause of murder of the deceased because as per prosecution evidence, the appellant killed the deceased to snatch this vehicle. This recovery was made on 27-12-1997 i,e, one day after the arrest of the appellant. Memo prepared for this recovery is Exh.PF and attesting witnesses to this recovery are Akbar Ali (P.W.5) and Niaz Ahmed (P.W.6); former is brother-in-law of the deceased while latter is his real brother.
' These two witnesses belong to Lahore; one lives on the back of General Hospital, Lahore whereas the other is resident of Sitara Colony, Lahore. The recovery of vehicle was made from Farooqabad, District Kasur. These two witnesses have stated that they had gone to the Police Station just to enquire about their case i,e, murder case of the deceased, which was registered on 30-11-1997; it was per chance that on that very day, when they were present in the Police Station, the accused/appellant allegedly volunteer to disclose the place where the snatched vehicle was parked by him and these two witnesses, although residents of Lahore, were taken to Kasur to witness the recovery. In fact Niaz Ahmed (P.W.6) has admitted in his cross-examination that he was fully tutored and briefed by Akbar Ali (P.W.5) before he entered into the witness-box and was directed that he shall give evidence in line with the statement as given by Akbar Ali (P.W.5).
' In his cross-examination, he further admits that he along with Akbar Ali (P.W.5) and 4/5 Constables of Police boarded a bus from the main road and reached village Talvandi, from where they further proceeded to the place of recovery of vehicle. There is no mentioning of the accused going with them to the house wherefrom the vehicle was allegedly recovered.
' He further admits that the appellant was kept by Police in Police Station for a continuous period of three months, which custody would be illegal and would be a pointer towards that the appellant was tortured for procuring planted evidence against him.
12. Akbar All (P.W.5), who is also a witness to the recovery memos, gives a different story by stating that he along with one Irshad and four police officials went to the place of recovery of the vehicle but he does not name the presence of Niaz Ahmed (P.W.6) in his company; however, he states that he and Niaz Ahmed (P.W.6) have attested the recovery memo.
13. About the recovery of other articles namely a driving licence etc., it was stated by Niaz Ahmed (P.W.6) that the constables went inside the room and they brought one bundle of articles and that these articles were brought to the police station where recovery memo Exh.PG was prepared and he and Akbar Ali (P.W.5) signed the recovery memo in the Police Station. He has further admitted that even the documents in respect of recovery of vehicle were prepared while sitting in the Police Station and he along with Akbar Ali (P.W.5) attested the memos of recovery in the Police Station.
14. In view of above evidence that the dead body of the deceased was recovered from the house of Sasta Mistry, for which no evidence was led that the same was on rent with the appellant; that the recovered articles like driving licence, etc. Were recovered from the room wherein A police constables have entered and they came out with bundle and that such articles were taken into possession by preparing recovery memos in the Police Station, which memos were attested by the attesting witnesses in the Police Station, such recoveries have no legal value because of violation of mandatory provision of section 103, Cr.P.C. And for not being prepared on the spot of recovery.
15. The recovery of pickup on the pointation of the appellant is also seriously doubtful in view of the statement of Akbar Ali (P.W.5) and Niaz Ahmed (P.W.6) for the reason that; firstly, they are not inhabitants of the place of recovery; secondly, they have been taken from Lahore to Kasur; thirdly, they are related to the deceased; and fourthly, they are inconsistent as to how they have travelled from Lahore to Kasur for recovery of incriminating articles. Even the presence of the appellant at the time of alleged recovery of pick up has been put into doubt because Niaz Ahmed (P.W.6) has stated that it was him and Akbar Ali (P.W.5) with 4/5 Constables that they went to the village from where the recovery of vehicle was effected, without mentioning the presence of the appellant in their company.
16. Admittedly, it is a case of circumstantial evidence, therefore, as rule of prudence, it is required that each piece of circumstantial evidence shall be supported by independent corroboration, which shall, by itself, be sufficient to establish the guilt. However, each circumstance shall be so connected with each other that it shall make one complete chain, without there any broken link. As it has been discussed hereinabove, there are completely broken links of chain to connect the appellant with the commission of murder of deceased, therefore, he would be entitled to benefit of doubt.
' For the forgoing reasons, we allow this appeal, set aside the conviction/sentence recorded against the appellant Muhammad Hussain; he is acquitted of the charge of murder. As a consequence, he is directed to be released forthwith, if not required in any other case.