' NISAR/HUSSAIN KHAN;-Through this common- judgment, we propose to, dispose of instant criminal appeal filed by appellants-convicts Fahimuilah and Kifayatullah against their conviction.As well as connected Cr.R. No, 17-B/ 2012, titled "Daim Khan v. Fahimuilah, etc.'' filed by petitioner-complainant for enhancement of sentence of convicts named-above and Cr,-A. No, 44 B/20.12. Titled, Daim Khan v. Iftikhar Ahmed, etc." filed by appellant-complainant respondents- accused, as all the three are stemming out of the same judgment of learned Sessions Judge. Karak dated in case F.I.R No, 275, dated 12.10.2009, registered u/ss'. 302/201/202/148/149, P.P.C., at Police Station Latamber, Karak. Whereby appellants-accused 'Fahimullah and Kifaydtullah were convicted under sections 302(b)/34, P.P.C, and sentenced to life imprisonment, each, as well as to pay Rs, .1,00,000/- each, as compensation within the meaning of section 544-A, Cr.P.C., to the legal heirs of deceased or in default whereof to undergo 6 month' S.I. While co-accused Kirman Ali, Muhammad Yaqoob Khan and Iftikhar Ahmed were acquitted.
2. The prosecution case is that on 12.10.2009, Shafiq- ur-Rehman, S.H.O, alongwith police contingents, during patrol duty , on receipt of information regarding a dead-body in Algada (rainy- water-course) of Noor Adam Speena Tangi, rushed there, where he found, the dead-body wrapped in a Polythene bag, which was identified by people present there to be that of Luqman son of Ali Marjan aged about 16/17 years, resident of village Tor Adam. Daim Khan complainant (uncle of the deceased) reported on the spot that on the preceding evening at 5 p.m . His nephew deceased Luqman left his house with his co-villagers Fahint, Kifayat (appellants-convicts), Qamar Ali,, Yaqoob Khan and Iftikhar (acquitted co-accused), to attend a feast in a forsaken house of one Shahbaz Khan, where,' the accused named-above, after committing his murder, buried his dead- body in Algada (rainy-water course). He did not allege any enmity with any body. Report of the complainant was drafted in murasila, which was transmitted to the Police Station, on the basis of which, F.I.R mentioned above was registered.
3. On completion of investigation, challan against accused was put in Court, where they were charge-sheeted to which they pleaded not guilty and claimed trial. Prosecution in order to bring home the guilt of accused examined fifteen witnesses. After closure of the prosecution evidence, statements of accused under section 342, Cr.P.C, were recorded, wherein they denied the prosecution allegations and professed their innocence. They, however, declined to be examined on oath as their own witnesses Under section 340(2), Cr.P.C, or to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentenced accused Fahimullah and Kafayatullah, as mentioned above and acquitted the co-accused.
4. Learned counsel for appellants-convicts argued that it is an unseen occurrence while appellants have been convicted by, the Trial Court, on the basis of last seen evidence, which is a weak type of evidence and the same is also not corroborated by any circumstantial evidence; that photographs of the deceased with the sister of accused were produced by Irfanullah. Brother of deceased to the Investigating Officer, after 03 months of the incident, which are manipulated while said Irfanullah has also not been examined; that only accused Muhammad Yaqoob was lastly seen in the company of the deceased, who has been acquitted by the Trial Court; that prosecution has advanced an after-thought story to built-up a motive; that it is a case of no e vide nee, hence, appellants are entitled for acquittal.
5. Learned counsel while defending the acquittal of respondent or accused. In connected criminal- appeal, contended that they have earned double presumption of innocence; that there is no evidence against them, hence, appeal against their acquittal is liable to be dismissed.
6. As against that, learned counsel for complainant contended that though, it is an unseen occurrence, but circumstantial evidence connect the accused with the crime while motive was not known to complainant at the time of his initial report, which was nourished in the mind of the accused; that there is no previous enmity between the parties and delay in lodging the report is also immaterial; that application under section 540, Cr.P.C, for examination of PW Irfanullah was turned down, who was not cited as witness in the Calendar; that there is no mala fide on the part of complainant and in view of the evidence brought on record, appellants .Have rightly been convicted while acquitted co-accused are also liable to conviction. He also argued that sentence of appellants-convict be enhanced from life to normal penalty of death .
7. We have given our anxious- consideration to the respective arguments of the learned counsel for the parties and have scanned the record with their valuable assistance.
8. Admittedly, it is .An unseen occurrence. According to report of complainant Daim Khan, his nephew deceased Luqman Khan left his house on preceding evening at 5 p.m. With appellants- convicts Fahim and Kifayatullah as well as acquitted co-accused Qamar Ali,, Muhammad Yaqoob, and Iftikhar, in connection with a feast program, arranged in a deserted house of Shahbaz Khan. He came to know that accused, after committing his murder, has buried his dead-body. This report was made to Shafiq-ur-Rehman, S.H.O. Police Station Latamber by the complainant, on the spot, who on receipt of informaticp during patrol duty, about a dead-body in "Algada" (rainy-water- course), immediately rushed there and found a dead-body wrapped in a polythene bag, which was taken out from burial gorge and was identified by people present over tnere, who disclosed it being the dead- zody of Luqman son of Ali Marjan aged about 16/17 years, resident of village For Adam. Murasila Exh.PA/f was drafted on the report of complainant and was sent to the Police Station, on the basis of which F.I.R No, 275, was registered against accused. Complainant has not disclosed motive of the crime. Rather, he has specifically stated that they have no enmity with any body.
9. The prosecution case is based on last seen evidence as recorded in the F.I.R., the pointation memo, of the crime spot, allegedly prepared on the pointation of appellant Kifayatullah, photographs of the deceased with Mst. Shabana (sister of accused), recovery of blood-stained earth from the alleged place of occurrence and autopsy report of the deceased. All these pieces of evidence were relied upon by the Trial Court while recording conviction and sentence of appellants.
10, Appellant Kifayatullah was arrested or the very first day of occurrence i.e, on 12.10.2009 and the pointation memo. Exh.PD, was prepared on 15.10.2009, on the 4th day of his arrest. It is alleged by the prosecution that accused Kifayatullah confessed his guilt before the police, followed by pointation of place of occurrence i.e, the deserted house of Shahbaz Khan. However, he did not confess his guilt before the Court. Any confession made by the accused before the police bear no legal worth, nor it can be. Proved against the F accused by virtue of Article 39 of the Qanun-e- Shahadat Order, 1984. No recovery or discovery has been effected on his pointation or from his possession which, could have been q proved in terms of Article 40 of the ibid Order, It is evident' front the record that the alleged place of occunence i.e, the deserted house of Shahbaz Khan, wherefrom die Investigating Officer recovered blood-stained earth and spent bullet from the wall vide recovery memo. Exh.PC, was already in the knowledge of police and recovery memo, was prepared on 12.10.2009, 3 days prior to alleged pointation of crime spot by accused Kifayatullah.
Likewise, the dead-body was also found lying in the "Algada" (rainy-water-course), by people of the locality and was not discovered on the pointation of appellants or any of the accused. Thus, the pointation made by convict- appellant bears no legal value as the alleged place of occurrence was already known to police as well as the complainant. As such, it was not a discovery, which could have been proved pursuant to Article 40 of the Qanun-e- Shahadat Order, 1984.
11. The photographs of the deceased with Mst. Shabana, sister of the accused, were produced by Irfanullah, brother of deceased on 18.01.2010, which were taken into possession vide recovery memo. Exh.PW.6/2, after a period of more than 03 months of the incident. This delayed, production of the photographs* has not plausibly been explained by the prosecution. So much so, that in initial report, no motive of occurrence has been advanced despite the fact that accused were charged therein. Though, the accused remained in police custody, but no incriminating articles like the crime weapons, was recovered from their possession or on their pointation,
12. It is the case of prosecution that all the accused had arranged dinner with the deceased in a deserted house of Shah Baz Khan, but no eatable or any utensils have been recovered from the said house nor any remnant of the dinner could be found.
13. The case of the prosecution is based on the evidence that deceased was lastly seen with the accused. In this regard there is only statement of complainant Daim Khan, who reported the incident to the S.H.O., which was reduced into writing in murasila. As per his report, he has not specifically disclosed that he had seen the deceased in company of the accused, prior to occurrence, but there are general allegations that dinner was arranged on the preceding night by the accused and the deceased was in company of the accused since 5 p.m. In case of last seen evidence, which is always considered as weak type of evidence, the accused cannot be convicted unless it is corroborated by other circumstantial evidence including recovery of dead-body, crime weapon or any other incriminating article. It is settled law that last seen evidence itself would not be sufficient to sustain charge of murder. Rather, such evidence requires further evidence to connect accused with the murder of his companion including incriminating recoveries at the instance of accused, -strong motive for the crime and proximity of time when both were last seen together and'the time of murder. When all these requirements are fulfilled, then accused is required to explain the death; of his companion. For recording conviction about die guilt of accused, apart from inculpatory circumstantial evidence, all other circumstances must be found to be incompatible with the innocence of the accused and incapable of explanation of any other reasonable hypotheses than that of the guilt of accused. In this regard guidance may be had from case titled, "Rehmat alias Rehman alias Waryam alias Badsfiah v. The State" (PL1} 1977 515) and, "Muhammad Amin v. The State" (2000 SCM R 1784).
14. When instant case is tested on die criterion of above-mentioned touchstone, it is found that except the statement of complainant Daim Khan, there is no other evidence which may connect the appellants-convicts with the commission of crime as no recovery has been effected from their possession nor any discovery has been made on their pointation.
15. The medical evidence may establish the cause of death, but it does not identify the assailants.
For recording conviction in a ease of capital charge, there must be an evidence of unimpeachable character, having no shadow of doubt, it is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case*, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, is also well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind is sufficient for acquittal of the accused. It is also well embedded principle of dispensation of criminal justice that acquittal by error is better than conviction by error. The analogy is that no innocent may be punished. I6. The learned Trial Court has erred in Jaw by convicting appellants on the basis of such a weak type of evidence uncorroborated by any circumstantial evidence. It would not be safe to maintain conviction on the basis of such shaky and scanty evidence. Consequently, appeal of the appellants-convicts was allowed and they were acquitted while connected criminal ' appeal and criminal revision, of complainant were dismissed vide our short order of even date. These are the reasons for our short order, which is re-: produced herein below :~ "For the detailed reasons to be recorded, later on, through common judgment, instant criminal appeal is allowed, conviction and sentence of appellants- convicts, recorded by learned Trial Court/ Additional Sessions Judge, Karak vide judgment/ order dated 18.2.20l2, in case F.I.R. No,, 275, dated 12.10.2009, registered under sections 302/201/202/148/149, PPC, at Police Station Latamber District Karak, are set aside and both the appellants-convicts are acquitted from the charge levelled against them in the above-mentioned F.I.R. ( They be set at liberty forthwith, if not required in any other case. As a result of acceptance of instant appeal, connected Cr.R. .No, 17-B/2012, tided "Daim Khan v. Fahimullah, etc" .Has become infructuous and Cr.A. No,44-B/2012, titled "Daim Khan, etc. v Iftikhar Ahmed, etc" is meritless, hence, both, stand dismissed".