' ABDUS SATTAR ASGHAR, J.---This Criminal Appeal under section 417(2-A), Cr.P.C. Is directed against the judgment dated 30-9-2002 passed by the learned Additional Sessions Judge, Sadiqabad District Rahimyar Khan, whereby Bashir Ahmad respondent No,1 and Gulsher alias Gulla (respondent No,2) accused in case F.I.R. No,227 of 1999, dated 11-11-1999, under sections 302/34, P.P.C., Police Station Ahmedpur Lumma, District Rahimyar Khan have been acquitted of the charge of murder of Ghulam Hussain son of Ghulam Akbar (complainant) given benefit of doubt. However, during pendency of the appeal on 20-2-2003 learned counsel for the appellants did not press this appeal' to the extent of Gul Sher alias Gulla/respondent No,2 and thus it was dismissed to his extent.
2. Prosecution case as divulged through the F.I.R. (Exh.PA/1) lodged on basis of statement (Exh. PA) of Ghulam Akbar complainant (P.W.1), is that he is resident of Mauza Dinu Shah and a Zimindar; that yesteiday evening time at about 7-30 p.m. Accused Bashir Ahmad and Gul Sher' alias Gulla came to his house; that at that time P.Ws. Gul Bahar and Boota sons of Ahmad Bakhsh were also present; that the accused Bashir Ahmad and Gul Sher asked complainant's son Ghulam Hussain to accompany them to FFC Chowk for an important piece of work; that the accused in presence of the P.Ws. Took Ghulam Hussain along with them towards FFC Chowk but he did not come back till night therefore next morning he (complainant) sent his son Mushtaq Ahmad to the house of Bashir Ahmad and Gulsher to enquire about Ghulam Hussain but they did not give any satisfactory reply whereupon he (complainant) along with P.Ws. i,e, his son Mushtaq, Gul Bahar and Boota went to the house of accused Bashir Ahmad who having sight of them slipped away, whereupon he got worried and thereafter along with P.Ws. Set out in search of Ghulam Hussain towards the FFC Chowk; that at about 2-00 p.m. They reached in the area of Mauza Wahid Bakhsh Mehr where some persons reported that a dead-body was lying in the cotton crop near Basti Karam Dad; that they immediately reached the spot and saw the dead-body of Ghulam Hussain lying in topsy- turvy position; that Ghulam Hussain was killed by the accused in furtherance of their common intention. Motive was that Bashir Ahmad had suspicion that Ghulam Hussain (deceased) had illicit relations with his sister Mst. Manzooran whereas he had already pleaded his innocence in this regard. The above statement was made by the complainant at Chowk Hashmi, Ahmadpur Lamma at 3-00 p.m. On his way to Police Station when Israr Ali S.-I. Met him, on the basis whereof formal F.I.R. (Exh.PA/1) was recorded.
3. Both the accused were challaned through report under section 173, Cr.P.C. On receipt of challan the learned trial Court charge-sheeted, them under sections 302/34, P.P.C. To which they pleaded not guilty and claimed to be tried.
4. Prosecution produced as many as ten witnesses to prove the charge. Ghulam Akbar (P.W.1) complainant and father of the deceased Ghulam Hussain, Muhammad Boota (P. W.2), Haji Ahmad (P.W.3), Sharafat Ali, S.-I./S.H:O. The Investigating Officer (P.W.4), Muzaffar Hussain 1125/C (P.W.5), Altaf Hussain 208/C (P.W.6), Israr Ali Shah S.-I. (P.W.7), Abdul Rehman S.-I. (P.W.8) and Dr. Muzaffar Mehmood (P.W.9) are material witnesses, rest are of formal nature.
5. The prosecution also tendered in evidence report of the Chemical Examiner Exh.PO, report of Serologist Exh.PP and report of Forensic Science Laboratory Exh.PQ while closing the evidence.
6. After concluding the prosecution evidence learned trial Court recorded the statements of the accused under section 342, Cr.P.C. Whereby they discarded each and every piece of prosecution evidence and while pleading their innocence categorically stated that they are falsely implicated due to enmity and suspicion.
7. It is argued by the learned counsel for the appellant that the prosecution has proved the charge against the accused Bashir Ahmad respondent with the help of confidence-inspiring and reliable testimonies of Ghulam Akbar (P.W.1) complainant, father of the deceased fully, corroborated by Muhammad Boota (P.W.2) the other eye-witness who had last-seen the deceased with the accused; that the ocular account is also corroborated by recovery of offence weapon pistol (P.7) got recovered by accused Bashir Ahmad from his house which was forwarded to the Forensic Science Laboratory; that the cartridges recovered by the Investigating Officer from the place of occurrence have been duly matched with the offence weapon pistol (P.7) vide the Forensic Science Laboratory Report Exh.PQ; that in the given circumstances the ocular account corroborated by the medical evidence and recovery of offence weapon mentioned above furnish sufficient incriminating material to connect the accused Bashir Ahmad with the wilful murder of Ghulam Hussain deceased beyond any shadow of doubt; that the impugned judgment of acquittal of the accused is based on misreading and non-reading of evidence not sustainable in the eye of law and is liable to set aside; that in the established circumstances Bashir Ahmad accused deserve conviction and sentence for causing Qatl-e-Amd of Ghulam Hussain.
8. On the other hand, learned counsel for the accused Bashir Ahmad has argued that the prosecution's ocular account on the dimension of last-seen is untrustworthy due to material discrepancies and inconsistencies; that the medical evidence also fails to furnish any corroboration to the ocular account produced by the prosecution; that the alleged recoveries of offence weapon pistol (P.7) as well as empty cartridges are false, fabricated and planted, not duly established with the help of reliable recovery witnesses; that the motive is also not established; that the prosecution has miserably failed to bring the guilt home to the accused Bashir Ahmad beyond any reasonable doubt, therefore the learned trial Court has rightly acquitted the accused Bashir Ahmad given benefit of doubt.
9. Arguments heard. Record perused.
10. The entire prosecution case hinges upon last-seen evidence furnished by the prosecution.
Careful appraisal and comparative, analysis of the prosecution's ocular account, medical evidence and the alleged recoveries manifests material inconsistencies, discrepancies and deficiencies as under:--
(i) Prosecution has set up a particular motive in this case that Bashir Ahmad accused had suspicion of illicit relations of his sister Manzooran with Ghulam Hussain deceased, although the deceased had pleaded his innocence in this regard. Ghulam Akbar (P.W.1) complainant and father of the deceased in cross-examination stated that Punchayat regarding "Safai" was convened two years prior to the occurrence at the house of Bashir Ahmad accused, however none of the elders of locality participated in the said Punchayat. He further stated that besides himself, Haji Ahmad, Boota, Yousaf and Beela had participated in the said Punchayat. Haji Ahmad, P.W.3 while appearing in the witness-box did not utter even a single word with regard to the motive or holding of any Punchayat or his participation in any such Punchayat. Similarly, Muhammad Boota (P.W.2) also did not utter even a single word with regard to holding of any Punchayat to give "Safai".
Muhammad Boota (P. W.2) admittedly is brother-in-law of the, complainant. No independent witness therefore is produced by the prosecution to establish the motive or convening of Punchayat to plead innocence of the deceased Ghulam Hussain with regard to the alleged motive.
In the given circumstances complainant's plea that accused Bashir Ahmad had come to his house and took the deceased Ghulam Hussain with him for a piece of work at FFC Chowk in presence of complainant and the P.Ws. Does not appeal to the sense.
' Admittedly the accused had never taken Ghulam Hussain with them prior to the occurrence. It is not believable that a father would allow his son to associate his enemies at the night time to go at a distant place for some piece of work not disclosed at the relevant time.
(ii) Admittedly Muhammad Boota (P.W.2) and Gul Bahar P.W. (given-up) reside at a distance of one mile from the house of the complainant. Ghulam Akbar complainant (P.W.1) during cross- examination stated that Muhammad Boota and Gul Bahar had come to him to seek his indulgence to talk to his brother Haji Ahmad to give hand of his daughter to the son of Muhammad Boota.
Admittedly Mst. Hayatan and Mst. Razan real sisters of the complainant are wives of Gul Bahar P.W.
(given-up) and Muhammad Boota (P.W.2) respectively. Therefore, both the said P.Ws. Having equal relationship with Haji Ahmad could have talked directly instead of availing the indulgence of the complainant. On the other hand, Muhammad Boota (P.W.2) while facing cross-examination narrated the different story that he had to give the hand of his daughter to the son of Haji Ahmad and that Haji , Ahmad had come to his house in connection with the relation. It is pertinent to mention that the said Haji Ahmad is not the witness of the last-seen. It is also not the case of the prosecution that Muhammad Boota and Haji Ahmad both had come to Ghulam Akbar for the ourpose of Rishta of the daughter of Haji Ahmad. This material discrepancy in the testimonies of P.W.1 and P.W.2 creates a strong doubt with regard to the presence of Muhammad Boota (P.W.2) at the house of the complainant at 7-30 p.m. When allegedly the accused took away Ghulam Hussain from his house. Muhammad Boota (P.W.2) therefore has failed to furnish any plausible or probable reason of his presence in the house of Ghulam Akbar complainant at the relevant time.
(iii) Prosecution case is that when Ghulam Hussain did not come back throughout the night the next morning the complainant Ghulam Akbar sent his son Mushtaq to the house of Bashir Ahmad to ask the whereabouts of Ghulam Hussain but he did not give satisfactory reply whereupon he (complainant) along with Gul Bahar and Muhammad Boota went to the house of Bashir Ahmad. At this juncture it is noteworthy that. Muhammad Boota (P.W.2) and Gul Bahar P.W. (given-up) reside at a distance of one mile from the house of the complainant. It is not explained that how they gathered in the morning to go to the house of Bashir Ahrnad. It is not the prosecution case that Gul Bahar and Muhammad Boota had Stayed with Ghulam Akbar complainant at night. Besides above, it is noteworthy that Ghulam Akbar complainant (P.W.1) during cross-examination categorically stated that when they reached the house of Bashii Ahmad accused, Gul Sher accused was also present.
' However, Bashir Ahmad accused and Gulsher did not meet them and concealed themselves. It was about 10/10-15 a.m. When they reached the house of accused and on seeing them the accused started walking rapidly, meaning thereby that they had seen the accused in their house at about 10-15 a.m. Admittedly the house of accused Bashir Ahmad is at a distance of about six miles from the place where the dead-body was found lying. Muhammad Boota (P.W.2) during cross-examination stated that they had reached the house of Bashir Ahmad accused at 11 a.m.; that they called Bashir Ahmad but he did not hear them and fled away. Both Ghulam Akbar (P.W.1) and Muhammad Boota (P.W.2) are consistent on the point that they had reached Mauze Wahid Bakhsh Mehr at 2-00 p.m. When on report of some 'persons they identified the deadbody of Ghulam Hussain lying in the cotton field near Basti Karam Dad.
' In the Postmortem Report Exh.PL probable time between injuries and death is opined as 1 to 3 hours. It is therefore crystal clear that the prosecution has failed to establish the presence of the accused in the close vicinity of the place of occurrence during the period of 11-00 a.m. To 2-00 p.m.
The probable time of murder of Ghulam Hussain. It is therefore obvious that the prosecution evidence about the last-seen is neither confidence-inspiring nor reliable.
(iv) As regards recoveries of crime empties, prosecution has produced only one witness, i,e,, Muhammad Boota (P.W.2) whereas the other recovery witness namely Gul Bahar has been given up. P.W. Muhammad Boota while facing cross-examination stated that the police had obtained his signatures on the blank papers. Therefore recovery of empties through recovery memo Exh.PE is highly doubtful at the time and place of occurrence. As regards recovery of offence weapon pistol (P.7) from Bashir Ahmad accused, Sharafat Ali S.-I./S.H.O. (P.W.4) submits that he arrested Bashir Ahmad on 19-11-1999 and recovered the offence weapon pistol (P.7).On his pointation on 31-12- 1999. It is astonishing that how he retained the accused Bashir Ahmad on physical remand for more than 14 days. In his examination-in-chief he has not stated even a single word with regard to handing over of the parcel of case property pistol (P.7) to the Moharrir. Whik facing cross- examination he categorically stated that he had not mentioned in the case diaries regarding sending of pistol to the office of Forensic Science Laboratory. After perusing the entire police file he further stated that the Moharrir had not sent the pistol (P.7) to the office of Forensic Science Laboratory for comparison. Contrary to the above, Muzaffar Hussain 1125/C (P.W.5) stated that on 6-1-2000 when he was posted as Constable at Police Station Ahmedpur Lamma Muhammad Akram Moharrir had handed over to him one sealed parcel said to contain pistol, which on the next day he deposited in the office of Forensic Science Laboratory. The said Muhammad. Akram Moharrir is not produced in the witness-box. Altaf Hussain 208/C (P.W.6) in his examinationin-chief stated that on 14-11-1999 Muhammad Akram Moharrar handed over to him one sealed parcel said to contain blood-stained earth and another sealed parcel said to contain an empty cartridge; that on 16-11-1999 he submitted the parcel of blood-stained earth in the office of Chemical Examiner Lahore and the other parcel said to contain an empty cartridge in the office of Forensic Science Laboratory Lahore intact. In the absence of any lawful retention of the alleged five empty- cartridges recovered from the spot and the offence weapon pistol (P.7) the whole proceedings of the said recoveries become doubtful, therefore report of the Forensic Science Laboratory regarding matching of the allegedly recovered crime empties with the offence weapon Pistol (P.7) cannot be safely relied upon to connect the accused Bashir Ahmad with the alleged occurrence.
11. Keeping in view the above noted material inconsistencies, discrepancies and deficiencies in the ocular account produced by the prosecution, it becomes crystal clear that the ocular account produced by the prosecution on the dimension of last-seen is neither confidence-inspiring nor reliable. Prosecution has also failed to establish any reliable independent corroborative evidence in the shape of medical evidence or recoveries to support the alleged circumstantial evidence. Last- seen evidence due to its inherent defects is fundamentally a weak type of evidence and the same fails to furnish any ground for conviction in the absence of any independent corroborative evidence. It is an established principle of law that in the case of circumstantial evidence it remains incumbent upon the prosecution to establish unbroken chain of circumstances from the stage of last-seen evidence till death of the victim. In the case of circumstantial evidence all pieces of evidence should be so linked that it should give picture of complete chain one corner of which should touch with the neck of the deceased and the other to the neck of the accused. Failure of one link destroys the entire charge. Reliance be made upon Altaf Hussain v. Fakhar Hussain and another (2008 SCM R 1103).
12. In the instant case it is evident on the record that the deceased was neither last-seen in the company neither of the accused nor at the place of occurrence shortly before the time he was presumed to have met the death. Therefore the prosecution has not been able to establish the circumstances consistent only with the hypothesis of the guilt of Bashir Ahmad respondent/ accused.
13. Crux of the above discussion is that the learned trial Court discussing each and every piece of evidence and minutely examining the material and legal dimensions of the ocular account, medical and recovery evidence suffering from material inconsistencies and contradictions rendering it not confidence-inspiring, has rightly granted acquittal in favour of Bashir Ahmad accused given benefit of doubt. The impugned verdict of acquittal is therefore neither perverse nor result of misreading or non-reading of evidence.
14. It is cardinal principle of criminal law that prosecution remains under heavy burden to prove the charge against the accused beyond any shadow of doubt, whereas in the instant case it has failed to do so. For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts. Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit as held in the case of Muhammad Akram v. The State (2009 SCM R 230) Resultantly the learned trial Court while appreciating the prosecution evidence in a salutary manner has rightly acquitted the respondent Bashir Ahmad given benefit of doubt. We do not find any factual or legal infirmity in the impugned judgment of acquittal in favour of respondent Bashir Ahmad.
15. For the above discussion and reasons, we do not see any merit in this appeal, which is hereby dismissed.