' SYED SAJJAD HASSAN SHAH, J.---Through the instant Criminal Appeal, appellant Hizbullah has assailed the judgment dated 29-9-2008 passed by learned Additional Sessions Judge-V, Bannu ,whereby he was convicted under section 362(b), P.P.C. And sentenced to imprisonment for life and to pay Rs,3,00,000 as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. Or in default, to undergo six months' S.I. He was also convicted under section 364-A, P.P.C. And sentenced to imprisonment for life. Both the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was extended in favour of the appellant.
2. The prosecution story in brief is that Gohar Ali complainant brought the deadbody of his son namely Bakhtiar Khan aged about 7/8 years to DHQ Hospital, Bannu and lodged report' to the effect that on 31-3-2007 his son went to village mosque seeking for religious education and did not return, therefore, complainant started his search. On 2-4-2007 Waqar Khan, nephew of the complainant, informed him that the deadbody of his son was lying in sugarcane near Kotka Durab.
On this information, the complainant along with his relatives and co-villagers reached the spot and found that his son was lying murdered. He charged nobody' in the report.
3. On 8-4-2007 complainant recorded his supplementary statement and charged the appellant for commission of the offence. The appellant was arrested on 9-4-2007.
4. After completion of usual investigation challan against the appellant was put in the trial Court.
He was formally charged to which he did not plead guilty and claimed trial. In order to prove its case against the appellant, the prosecution examined 16 P.Ws. Appellant was also examined under section 342, Cr.P.C. Wherein he denied the charges and professed innocence. He neither appeared as his own witness on Oath nor produced any evidence in defence. On conclusion of the trial, the learned trial Court convicted and sentenced, the appellant as mentioned above, vide judgment dated 29-9-2008.
5. Learned counsel appearing on behalf of the appellant contended that the appellant has not been charged in the F.I.R. But was charged in the supplementary statement of the complainant after eight days of the , occurrence. He went on to argue that there are material contradictions in the statements of P.Ws which cannot be relied upon. He further contended that confessional statement of the appellant was the result of torture and not voluntary. More so, it was retracted by the appellant-accused, same was recorded on 12-4-2007 when the appellant-accused remained in police custody. The learned counsel further argued that the prosecution has also relied upon last seen evidence and the recovery of "chhuri" allegedly recovered at the instance of appellant- accused. He further contended that in spite of the fact that's the day prior to the recovery was the rainy day, even then the "cjihuri" shown at blood-stained. Learned counsel pressed that nothing available on record to prove that "chhuri" was stained with the blood of the deceased, thus, the F.S.L report cannot be used against the appellant-accused. It was argued that the prosecution has brought on record the circumstantial evidence in support of its case, however, certain chains are missing in the story, thus, it cannot be believed. He further contended that the occurrence not seen by any witness and the circumstances are not consistent, therefore, the conviction cannot be based on a case which is built upon a concocted story. Reliance placed upon 1995 PCr.LJ 1938, 2009 SCM R 407, 2010 SCM R 495 and 2010 PCr.LJ 547.
6. As against that, learned counsel for the respondent contended that the prosecution has successfully brought home the charge against the appellant. The appellant and the complainant are closely related, thus, there was no chance of false involvement of the appellant. Appellant has confessed the guilt and shame was believed by the learned trial Court, thus, awarded life imprisonment. Weapon of offence, blood-stained "chhuri" P-1 was recovered by the Investigating Officer at the pointation of the appellant and since the leaving of house of deceased till his killing, no chain found missing from the prosecution story. He further contended that the offence is heinous in nature. The appellant adequately and lawfully convicted and sentenced by the learned trial Court, therefore, his appeal is liable to be dismissed.
7. Arguments of learned counsel appearing on behalf of the parties considered and record carefully perused.
8. After tearing the learned counsel for the parties and the perusal of record, the following questions arise for the determination by this Court in order to adjudicate upon, the issue in dispute:- (a). Whether in absence of any eyewitness account, the punishment awarded by the learned trial Court can be maintained?
(b) Whether the pieces of evidence relied upon by the learned trial Court, while convicting the appellant-accused, are legally sufficient to warrant his conviction?
(c) Whether the last seen evidence not supported by any independent, impartial and disinterested witness could be considered and relied upon?
(d) Whether the recovery of "chhuri" per se, without any corroboratory evidence, is sufficient to believe that the appellant-accused has used it in the crime?
9. The complainant, father of the deceased lodged the report (Exh.PA) on 2-4-2007 at 1310 hours stating that on 31-3-2007 deceased when left the mosque, went missing whereas he has put all efforts to search the deceased but in vain. He was informed at 1100 hours by Waqarullah, his nephew about the death of Bakhtiar Khan, as the dead body of the deceased was found lying in sugarcane fields within the vicinity of Kotka Durab, Police Station Saddar, Bannu.
10. Since the deceased had left the house on 31-3-2007 till 2-4-2007, according to complainant efforts made to search the deceased but nobody informed them, we may refer to the statement of Mst. Dil Afroza, the mother of deceased examined as P.W.12, who stated that deceased went to mosque but did not return. Some boys of the village told her that her son was seen by them with accused Hizbullah while riding on bicycle. It is strange to note that when the mother was told by the boys about company of deceased with appellant' accused, but same was not disclosed at the time of recording report by the father of the deceased and that is why this information is not reflected in F.I.R. Had it been correct, the father of the deceased might have recorded the name of said Rafiullah P.W.14 and other boys who had seen the deceased in the company of accused.
Investigating Officer has not recorded the statement of any other witness who had seen the deceased in the company of accused, except the shopkeeper. Statement of complainant was recorded under section 161, Cr.P.C. By the I.O. On 8-4-2007, wherein he has charged the appellant- accused for murder of his son but at the trial, while appearing as P.W.12, not charged the appellant-accused for murder. In this way the complainant has once charged the accused but twice not named him.
11. In order to prove that the deceased was lastly seen in the company of the appellant-accused, a child namely Rafiullah, aged about 13 years was examined as P.W.14, who deposed that he saw the appellant-accused while riding a bicycle, the deceased was seated in front of appellant- accused on the same bicycle and a gas cylinder was tied on the rear carrier of the bicycle. The statement of this witness is not corroborated by Sanaullah Khan examined as P.W.4, deposing that it was a `digar' time when accused Hizbullah came to his shop and handed over a gas cylinder and told him that he was going somewhere and on return, he will collect the same again and till that time, the cylinder be kept with him. He further stated that he (appellant-accused) was alone.
This witness had not stated that the accused was accompanied by the deceased. Here the chain has been broken. Another aspect of the case which needs consideration is, as stated above, that in supplementary statement of the complainant recorded under section 161, Cr.P.C. On 8-4-2007 whereas occurrence took place at some time during the night of 31-3-2007. In this way, recording of supplementary statement is delayed by eight days. On this count too, it can be ruled out of consideration. Even otherwise, statement made before the police is not admissible if general and particularly in cases of capital punishment. Moreover, this statement cannot be used against the appellant-accused because the complainant has failed to disclose the source of information.
Here defect arises for the reason, before us, there are three versions, the first is in the shape of report which discloses nothing about the manner of offence and identity of accused, the second is the version of wife of complainant, according to which, the deceased was last seen with the appellant-accused and third is that the appellant-accused was nominated some eight days subsequent to report and that too, without disclosing the source of information. Reliance is placed upon the A case titled Khalid Javed and another v. The State (2003 SCMR 1419). In paragraph-14 of the said judgment, it has been held that:-- "With reference to above discussion, there is yet another area of the case which needs elaborate consideration i,e, after how much time from lodging F.I. R. Exh. P. 0 complainant Naveed Anwar got recorded supplementary statement Exh.DB. This aspect of the case engaged our attention quite for some time during hearing because delay in recording supplementary statement would be an important factor which is likely to give rise to an inference that second version contained in it was introduced by the prosecution after deliberation and if it is so, it will adversely affect the prosecution case.
' The evidentiary value of last seen and the circumstantial evidence has been highlighted by the august Supreme Court in a judgment titled Ibrahim and others v. The State (2009 SCMR 407), wherein it was held that:-- "11. We have heard the learned counsel for the parties at length and have also scanned the entire record of the case. Undeniably, it was an unwitnessed occurrence and the prosecution case rested on circumstantial evidence. It is well settled that circumstantial evidence should be like a well-knit chain whose one end should point to the accused and the other to the deceased.
(12)
(13)After considering the above noted facts, we are of the opinion that the evidence of last seen furnished by. P. Ws. 9 and 10 and the evidence of identification test, were not worthy of any credence."
' No other person has been examined, who had seen the deceased in the company of appellant- accused. If at all the said witness would have seen the deceased in the company of the appellant-accused, he could have informed to the parents of the deceased during the period of his missing. Statement of the said witness does not seem to be genuine as it was made after the recovery of deadbody of the deceased, therefore, not safe to rely upon the sole statement of this witness. Moreover, this statement has been contradicted by the shopkeeper because he deposed that at accused was alone. Upto a case titled ' Fida Hussain and 495:-- that time appellant- Reliance is placed Bashir Ahmad v. Others 2010 SCMR.
"Had they seen the deceased in the company of the accused on the night when the deceased was murdered, they would have informed the complainant the next day when the dead body of the deceased was discovered but they did not do so."
' As held above by the apex Court, here in the case in hand, the information of last seen conveyed by one P.W., was neither conveyed to the police nor to the complainant.
12. The other evidence believed by the trial Court for conviction of the appellant-accused is his retracted confession. It does not ring true as the same was recorded after the lapse of three days.
During this period, the appellant-accused remained in police custody and thereafter this statement was recorded. This period of custody casts doubts about the genuineness of confession. The confession even if not retracted, per se not be sufficient to connect the appellant- accused with the crime but in the instant case same was retracted and there is no corroborative evidence. The prosecution has failed to explain the delay of three days in recording of the confessional statement. It seems that the confession is not voluntary, thus, not confidence inspiring. The appellant-accused could not be convicted on such a retracted and uncorroborated confessional statement. More so, there is no other incriminating evidence available against appellant-accused. Reliance is placed upon the case titled Siddiqullah v. The State and another (PLO 2009 Peshawar 1). In paragraph-10 of the said judgment, it was held that:-- "10. The confessional statement of appellant Abdur Rafiq was recorded after four days of police custody while that of appellant Juma Khan was recorded after 11 days of his custody. This delay in recording confessions was not explained. Thus the confessions were certainly not voluntary.
Indeed, under Article 43 of Qanune-Shahadat Order, 1984, on the basis of confessional statement alone, conviction can be recorded, and may be used against co-accused, provided it is proved, inspiring confidence, and corroborated by the other reliable and cogent evidence. Corroborative evidence is lacking in this case, and we do not deem it safe to rely only on the retracted and un corroborative confessional statements for the conviction of the makers, and the co-accused.
Needless to say, no other incriminating evidence available against the appellants to connect them with the crime. In the circumstances, the prosecution was unable to prove its case against the appellants to the hilt, and they are not liable to conviction. The convictions and sentences of the appellants recorded by the trial Court are, therefore, not maintainable, hence, set aside."
' Besides, there are certain legal requirements which are to be fulfilled while recording the confessional statement of an accused which includes a full fledged confession, supported by some evidence, the accused should have strong motive and must have actively participated.
Reliance placed on the case titled Hasrat v. The State 1995 PCr.LJ 1938. In paragraph-9 of the judgment, it was held that:- "Confession of co-accused must fulfil three requirements, firstly, that there should be full-fledged confession whereby he must implicate himself in the commission of the crime substantively to the same effect as he implicates the co-accused. Secondly, that there is some supporting evidence from untarnished quarters and thirdly that the confessing accused had a strong motive to kill the deceased and must have actively participated in the transaction. "
13. The other circumstance which was considered while recording conviction against the appellant-accused was the recovery of blood-stained "chhuri". In our view, this aspect of the case is also not of any significance because it is not proved on the record that the same "chhuri" was used in commission of offence. It is simply stated in F.S.L report that knife was stained with human blood. However, there is nothing available on the record to prove that the said human blood was of the IE deceased, thus, neither the recovery of "chhuri" nor F.S.L report can be used against the appellant-accused. The other important aspect of the case is that it is in the evidence of P.W.8 Fidaullah who is the witness of recovery memo, has stated that no blood was found on the articles recovered on the spot of occurrence. The relevant portion of the said admission is reproduced below:-- 'the land/field was a bit wetly as a preceding night rain had fallen. No blood stainds were found on the articles recovered mentioned above.
' In this view of the matter it is not believable that the churri recovered was used in the commission of offence .The other witness - Ghulani. Muhammad examined as P.W.9 stated that "chhuri" was stained with blood which was packed and sealed into parcel in his presence. Self- conflicted evidence of both the witnesses is not believable as their statements are not consistent on one and the same fact, happened in their presence. Moreso, it is shown that recovery of "chhuri" was effected at the instance of the appellant. However; the recovery was of no consequence as the "chhuri" was not bloodstained (as per statement of P.W.8 Fidaullah). Needless to mention that the evidence of recovery of weapon is even not corroboratory in nature as same is inconsistent, therefore, such recovery cannot be made the basis for conviction.
14. As far as medical report is concerned, it only narrates the cause of death and nothing for connecting the accused. Moreover, the motive is also lacking and thus the case has become meritless.
15. To sum up, we have reached to the following conclusion:--
(a) There is no ocular evidence at all against the appellant-accused,
(b) It is based on last seen evidence but as required, the chain is broken and the evidence cannot be relied upon,
(c) The last seen evidence available in this case is self-contradictory,
(e) No motive is available.
16. For what has been discussed above, we are of the firm view that the prosecution has not been able to bring home guilt against the appellant-accused beyond any shadow of doubt and the learned trial Court has erred in awarding conviction and sentence to the appellant-accused. We, therefore, accept the instant appeal, set aside the impugned judgment of conviction and sentence dated 29-9-2008 passed by learned Additional Sessions Judge-V, Bannu and acquit the appellant7accused of the charges levelled against him. He in be set free forthwith if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.