' FAROOQ ALI CHANNA , J.---The appellant has filed instant criminal, appeal against the judgment dated 26-9-2009 passed by IVth Additional Sessions Judge, Karachi, (East), convicting the appellant under section 302(b), P.P.C., in Sessions Case No,690 of 2004, culminated F.I.R No,215/2004, Police Station Shah Faisal Colony, Karachi, under section 302, P.P.C., sentencing him to imprisonment for life and to pay Rs,50,000 as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. The appellant was extended benefit under section 382-B, Cr.P.C.
2. Brief facts of the case are that complainant Jamil-ur-Rehman in his statement under section 154, Cr.P.C, incorporated in F.I.R. No,215/2004 has alleged that one Mairaj approached him fbr his flat on rent required for residents of his sister. The rent was fixed at Rs,2300 per month. After 15-20 days Mairaj came again and paid Rs,5000 as advance money. After one month and ten days, Mairaj came with his sister and maternal niece and settled them in tlat. After 2-3 days both the ladies went away leaving the flat locked, however, they used, to visit flat with, Mairaj. On 7-11-2004 one neighbour informed the complainant that bad smell was emitting from inside the flat, he informed Ilaqa Nazim and police on 15, they came, break open the lock and saw a dead body of female aged about 20-25 years lying in pool of blood. The police after completing codal formalities referred the dead body to, hospital and recorded the statement of complainant.
3. The Investigating Officer carried out the investigation, recorded the statements of P.W., Mst.
Safoora Naz and Mst. Hina, the daughter of deceased. On the basis of their statements, the Investigating Officer arrested appellant Muhammad Saleem, recovered his blood stained clothes on his pointation. During investigation two other witnesses Abid Raza and Mudassar Hussain on seeing the appellant in police custody informed the police that they had seen the appellant Muhammad Saleem while going with deceased lady in the flat and after some time coming out alone, with his bloodstained clothes. After completing the investigation, the Investigating Officer submitted Challan. The trial court framed the charge, recorded the evidence of prosecution witnesses and on the basis of said evidence, found the appellant guilty of murder of deceased Mst.
Yasmeen, and convicted and sentenced him as stated hereinabove.
4. Mr. Anwar Ali Shaikh, learned counsel for the appellant has contended that there was no eye- witness of the occurrence, sole evidence against the appellant was his last seen with deceased that too was about 3-4 days prior to recovery of her dead body. Such last seen evidence being a weak type of circumstantial evidence cannot be relied upon to inspire confidence as evidence for conviction. Learned counsel in support of his arguments has referred to the case laws reported as 1977 SCM R 20 (Nazo alias Ali Nawaz v. The State), PLD 1978 SC 21 (Naqibullah and another v. The State), PLD 1977 SC 515 (Rehmat alias Rehman alias Waryam alias Badshah v. The State) and 1988 PCr.LJ 205 (Jafar Shah and others v. The State). Learned counsel has further contended that last seen witnesses were not the residents of locality, therefore, their presence near the place of occurrence was doubtful, on this point learned counsel has relied upon case-law reported as 2003 YLR 2136 (Muhammad Yousuf alias Fayyaz Hashmi v. The State).
5. Learned A.P.-G. Has candidly stated that it was an unwitnessed incident, however, the prosecution has succeeded to establish the charge by examining the witnesses, who had seen the deceased accompanying the appellant lastly. The prosecution case was also corroborated by recovery of blood stained clothes worn by the appellant at the time of incident, on his pointation.
6. The trial Court while concluding the findings has also observed that there was no eye-witness and the evidence brought on record by prosecution was the last seen of deceased with the appellant, such evidence can be reliable when it is corroborated by medical evidence, circumstantial evidence, recovery and motive behind the incident, the above said corroborative evidence is available in this case.
7. I have examined the evidence of last seen witnesses, Mst. Hina (P.W.10) who as per her evidence had not seen her mother deceased Mst. Yasmeen going with the appellant, Mst. Safoora Naz (P.W.2) told her that she was informed by deceased Yasmeen that the person came at the door was appellant Muhammad Saleem and she had gone with him. (P.W.2) Mst. Safoora Naz, according to her evidence had seen the appellant for a moment when appellant came to the door of her house and called deceased Mst. Yasmeen, she thereafter seen him before the trial Court at the time of her evidence and identified him after about four and half years, such identification after 4 and 1/2 years cannot be relied upon safely. Both the above said witnesses during cross- examination have admitted, that they did inform any person till they came in knowledge about the murder of deceased Mst. Yasmeen that she had left the house with the appellant (her enemy) saying that she will be back within half an hour bui did not come back.
8. The other witness Abid Raza in his evidence has admitted that he was not the resident of same locality where the incident had taken place, nor he had any personal work requiring his presence in the locality. Per prosecution P.W. Abid Raza all the time accompanied his friend Mudassar, who was locating flat on rent. It is pertinent to mention that said Mudassar has not been examined by the prosecution. However, it appears from the evidence of Party Abid Raza that all the time his presence near the place of incident was fortuity. According to him on 4-11-200 ; lie came alone with his friend Mudassar to clean the flat, and while going to offer prayer, they saw the appellant going with deceased in the adjacent flat, simultaneously after cleaning the flat while they were going, they saw appellant coming-out of the flat with blood stained clothes. Again on 22-11-2004, he and Mudasar went to the owner of flat, for return of advance money, the police came there along with the appellant in their custody, they identified the appellant and informed the police that they had seen the appellant on 4-11-2004 going with he deceased in the adjacent flat and after some time coming out of flat with blood-stained clothes. It is pertinent to mention that the complainant in his statement before the police and during evidence before the trial Court has never stated about the presence or meetings of P.W. Abid Raza at any stage. P.W Abid Raza during cross-examination has stated that in the year 2004, he was salesman of juice of some UNKNOWN COMPANY, this reflects his weak memory. In the circumstances, P.W. Abid Raza seems to be a chance witness rather setup witness. It appears from the circumstances of this case that there are no impeachable circumstances to believe chance witness, as such his evidence should be overlooked.
9. The date of incident is also doubtful. Per prosecution deceased Mst. Yasmeen was murdered on 4-11-2004 whereas, according to postmortem report, the postmortem was conducted over the dead body on 8-11-2004 and the duration between the death and postmortem was 2-3 days, which means the deceased was murdered on 5th or 6th November as such the medical evidence is in conflict with the prosecution case. In such like a situation prosecution has failed to bring on record other evidence to fill the lacuna of medical evidence.
10. It is further case of prosecution that due to fear of appellant Muhammad Saleem, deceased Mst.
Yasmeen along with her daughter Hina shifted from her residence to the house of her friend's sister P.W. Safoora, Naz, however later on proceeded with him without showing any fear, apprehension or threat to her life, which appears to be un natural and unreliable story, makes the prosecution case doubtful.
11. The next evidence is the recovery of blood-stained clothes of appellant, on his pointation from a house situated on 2ndd floor, Bakra Piri Road, the said recovery was effected on 22-11-2004 about 18 days after incident, such recovery does not attract to a prudent mind that a person, involved in a murder will leave any piece of evidence intact for 18 days when he had sufficient opportunity and time to destroy the same, no one can be expected to keep blood stained clothes at his home. The Investigating Officer has also not recorded the statement of owner of the house, to recognize the appellant as his tenant. The evidence of mashir of recovery S.-I. Muhammad Kamran is also contradictory, according to the memo of recovery the appellant led the police party, opened the lock and entered the house, whereas the mashir during cross-examination has admitted that at the time of arrest no key of lock was recovered from the appellant, the house was not locked and it was bolted. In view of above facts, the alleged recovery has lost all its confirmatory value hence cannot be relied upon.
12. The Investigating Officer while conducting the investigation had failed to discharge his duty honestly and properly. Per prosecution the incriminating weapon i,e, Churri was recovered from the place of incident, the same had to be sent for forensic examination to detect the finger prints on it, which could be a strong evidence and important clue to reach the assailant. The Investigating Officer also failed to examine/interrogate the main character of the prosecution story i,e, Mairaj, who approached the complainant for hiring his flat and had also visited the flat along with his sister and her daughter. It is also astonishing that the complainant had not identified the deceased Yasmeen to be the sister of Mairaj, though he had seen the sister of Mairaj when came to reside in flat. In these circumstances the examination/interrogation of Mairaj was very important to ascertain whether deceased Mst. Yasmeen was his sister, if Mairaj admitted that deceased was his sister why he did not come forward to follow the incident of her murder.
13. For the foregoing reasons, I have come to the conclusion that the prosecution has failed to make out a case of murder of deceased Mst. Yasmeen against the appellant Muhammad Saleem without any shadow of reasonable doubt. 1, therefore, set aside the impugned judgment dated 26- 9-2009 and thereby set aside the conviction and sentence and acquit the appellant from the charge of murder by extending him benefit of doubt. Appeal is allowed.
' Office is directed to issue release writ directing the. Superintendent, Central Prison, Karachi to release the appellant forthwith, if not required in any other case.