SADAQAT ALI KHAN, J.---The instant Criminal Appeal No. 456 of 2010 has been filed by Muhammad Shahid present appellant against the judgment dated 30.11.2010passed by learned Additional Sessions Judge, Liaquatpur according to which the present appellant was convicted and sentenced as under:--- "Muhammad Shahid was convicted under section 302(b), PPC and sentenced to life imprisonment for committing the murder of Abdul Qadeer deceased alongwith compensation Rs.
1,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof six months' S. I. Whereas his co-accused namely Mushtaq Ahmed, Mst. Jameela and Amanullah were acquitted from the charge by the learned Trial Court. Benefit of section 382-B, Cr.P.C. Was also extended to the present appellant Muhammad Shahid in case FIR No. 585, dated 20.12.2007 under sections 302, 364/34, PPC police station Pacca Laran District Rahimyar Khan.
2. The facts of the case has been narrated by the complainant Bashir Ahmed (PW-1) in his statement before the Trial Court. The same statement is hereby reproduced for narration of the facts:--- "Name my son was Abdul Qadeer. He run a shop of Fertilizers, Seed and Khal. He had employed Muhammad Shahid accused as a Munshi at his shop for his business purpose About two years and four months back at about evening time, I alongwith, Muhammad Jamil, Khursheed Ahmad and Abdul Qadeer was sitting at the Dera of mine. Shahid came there and told that fertilizers and Khal had finished. He further stated that he had contacted (BWP) Dealer on phone at Feroza where the above articles i.e. Fertilizers and Khal were available. Qadeer deceased said him that he had to arrange some money. He also stated to Shahid accused that how much money would be required for that purpose on which Shahid accused told him that he (Qadeer deceased) may, arrange about 1,00,000/- or 1,25,000/- rupees for that purpose. On next morning Shahid accused came there. I along with Jamil Khursheed and Abdul Qadeer deceased was present at our Dera.
Qadeer went inside house brought the required money i.e. Rs. 1,00,000/1,25,000/- one Mobile Phone Sonia and motorcycle Super Star. Thereafter Abdul Qadeer deceased went for Pacca Laran along with Shahid accused. Till late evening Abdul Qadeer did not come back. I alongwith Jamil, Khursheed and Ghulam Mustafa went to the house of Shahid accused there Mushtaq accused, Amanullah accused, Mst. Jamil accused and an unknown person met us. They told us that they had received telephone of Shahid accused in day time and it would also receive at about 09:00 p.m. They asked me and PWs to contact them on next morning. On next morning I alongwith Jamil Khursheed went to the accused persons. They told that no telephone had again been received from Shahid accused and they showed their ignorance about Shahid accused. We came back. In or way when we passed form Bazzar, on a turning Abdul Jabbar met us and told that on the previous day Shahid accused wanted to sell a motorcycle and a mobile phone to him but transaction could not be finalized. I came back to my house and I was sure that Shahid had committed murder of my son. Shahid has committed murder of my son for money. About fifteen days after the occurrence I made an application Ex.PA to DSP Liaquatpur".
3. After registration of the case, investigation started and on completion of the investigation, report under section 173, Cr.P.0 was submitted in the Trial Court.
4. Learned Trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 17.04.2008 against present appellant and his co-accused namely Mushtaq Ahmed, Mst. Jameela and Amanullah under sections 302/364/34, PPC to which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Bashir Ahmed PW-1, Khursheed Ahmad PW-2, Muhammad Khalid Constable PW3, Waheed Arshad Constable PW-4, Abid Hameed, ASI PW5, Ch. Muhammad Ilyas, SI PW-6, Ghulam ShabbirAbdul Hakeem PW-8, Dr. Syed Sajid Ali, Medico-Legal Officer PW-9, Muhammad Naeem Patwari PW-10, Muhammad Hanif, S.I PW-11, Muhammad Nadeem PW-12 whereas PWs namely Muhammad Shaukat Ali, ASI, Abdul Haleem Bullo ASI, Ashiq Ali Constable were given up by the prosecution being unnecessary and after producing documentary evidence I . e .Complaint Ex. PA, FIR Ex.PA/1, recovery memo. Of Rs. 45,000/- Ex.PB, recovery memo. Of motorcycle Ex.PC, recovery of dead-body Ex.PD, copy ofFIR Ex.PE, copy of Register Ex.PF, copy of Abbasi Shaheed Hospital CDGK Ex.PG, inquest report Ex.PH, supplementary report of Abbasi Shaheed Hospital Ex,PH, scaled site-plan Ex.PK, rough site-plan Ex.PL, recovery memo. Of snaps Ex.PM closed the prosecution evidence.
6. On the other hand, statement of present appellant was recorded under section 342, Cr.P.C. Who refuted the allegations so levelled against him and has not opted to appear as a witness under section 34Q(2), Cr.P.C. And did not produce the defence evidence and in reply to questions No. 9 & 10 "why this case against you and why the PWs deposed against you?" the present appellant Muhammad Shahid replied as under:--- "I know nothing about the occurrence. The story behind my involvement is that Muhammad Hanif, SI/I.O. Was colleague of my father co-accused Mushtaq. 4n the days of their joint posting some difference took place between the above-said I.O. And my father on account of which their relations inter se were not cordial. The culprits of this case were not traceable, so in order to get rid of investigation of this case and to teach a lesson to my father, Muhammad Hanif, SI/I.O. Has falsely involved whole family members of my co-accused Mushtaq Ahmad including me in this case with the connivance of complainant party.
' All the private PWs are relatives inter se, therefore, they have deposed falsely against me. "
7. Medical evidence was furnished by Dr. Syed Ali, Medico-Legal Officer, Abbasi Shahed Hospital, Karachi, PW9 who on 06.12.2007 at 11:45 p.m. Conducted the postmortem examination on the dead- body of Abdul Qadeer deceased and observed following:--- "External Examination ' The deceased said to have died in the jurisdiction of P.S. Sachil. Deed-body was of male person.
Average 35 years approximately. Circumcised, wearing grey color Shalwar Kameez. Condition of the dead-body was fresh. Rigor mortis was fully developed. Features were identifiable. No sign decomposition. PML start developing on independent parts of body. Eyes and mouth were closed.
Pupois were dilated and fixed. Oozing and bleeding from ear, nose and mouth. Tongue was inside mouth.
Injuries
1. Defuse swelling 4 cm x 2 cm over occipital region.
2. Defuse swelling over nose bleeding positive from both nostrils.
3. Bleeding positive from mouth.
Head.
' Vertical incision giving on scalp to mastoid region. Posterior and interior flaps were retracted.
There was collection of blood with clots seen. Ontampering with scalp there was found present.
Linear fracture seen on occipital region. Corresponding injury on brain manages were seen with collection of blood and clots.
Thorax ' Upon opening the toxic cavity boney cage was intact. There was no free fluid and blood present in the cavity. Both lungs and heart were pale.
Abdomen.
' Upon opening the abdominal cavity there was no free fluid and blood present in cavity. All the viscerae were intact.
Muscles, bones and joints: ' No abnormality detected. Injuries.
Opinion ' Opinion was reserved till the receipt of report from 'Chemical Examiner. As per report of Chemical Examiner bearing No. 697/98 dated 2,2.2008 Ex.PF test performed for 17 substances was found in the negative, so the cause of death which was kept reserved, in now declared as severe head injury lead to cardio-respiratory failure as a result of hard and blunt object". it.
8. After conclusion of the trial, learned Trial Courtwhile acquitting Mushtaq Ahmed, Mst. Jameela and Amanullah co-accused of the appellant, convicted the presentappellant Muhammad Shahid with above-stated sentences. Hence this appeal.
9. Leaned counsel for the appellant contended that:---
(i) the judgment of the Trial Court dated 30.11.2010 is against law and facts on the file and is liable to be set-aside;
(ii) it is submitted that the story of the prosecution is improbable and not believable;
(iii) it is further submitted that piosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned Trial Court wrongly convicted present appellant in surmises and conjectures;
(iv) further submitted that motive is not attributed to the present appellant and nothing was recovered from or on pointation of the appellant and lastly submitted for the acceptance of the appeal of the present appellant.
10. On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:---
(i) prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.
11. I have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as mentioned in application Ex.PA moved by Bashir Ahmed PW-1 for registration of the FIR Ex.PA/1 has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.
13. According to FIR Ex.PA/1 occurrence took place on 05.12.2007 at 07:00 a.m. Whereas FIR was registered on 20.12.2007 at 12:30 (noon) with an unexplained delay of 15 days on the written application Ex.PA moved by Bashir Ahmed complainant/PW-1 real father of Abdul Qadeer deceased.
14. Bashir Ahmed PW-1 stated that on 5.12.2009 at 07:00 a.m. Present appellant Muhammad Shahid came at his Dera where he along with Jameel (given up PW) Khursheed PW-2 and Abdul Qadeer deceased was sitting and Abdul Qadeer brought the required money i.e. Rs. 1,00,000/- one mobile phone Sony and one Motorcycle Super Star and proceeded towards Pakka Laran along with Muhammad Shahid present appellant and when Abdul Qadeer deceased did not come back till late evening he alongwith Jameel (given up PW), Khursheed PW-2 and Ghulam Mustafa (given up PW) went to the house of Muhammad Shahid accused where Mushtaq, Amanullah and Mst.
Jameela (acquitted accused) and unknown persons met them and told that they had received telephonic call of Muhammad Shahid present appellant in day time and at about 09:00 p.m. Who asked them to contact on the next morning but on the next morning position was same. Bashir Ahmed PW-1 further stated that when they were passing from Bazar, on turning Abdul Jabbar (PW notproduced) met them and told that on the previous day, Muhammad Shahid appellant wanted to sell a motorcycle and mobile phone to him but transaction could not be finalized. He further stated that thereafter he moved a written application Ex.PA for registration of the FIR Ex.PA/1 for the murder of his son Abdul Qadeer.
15. I think that the above-stated explanation furnished by Bashir Ahmed PW-1 for the delay of 15- days in lodging of the FIR Ex.PA/1 is neither plausible nor acceptable because in case of abduction and murder of his son he being real father of Abdul Qadeer deceased could not have trace Abdul Qadeer deceased without registration of the case. His natural and immediate conduct would have been to go to police station for registration of the case. Thus, there is inordinate delay of 15-days in lodging of the FIR Ex.PA/1 which creates doubt about the veracity of the prosecution story. Reliance is placed on case titled Mehmood Ahmad and 3 others v. The State and another (1995 SCM R 127) in which Hon'ble Supreme Court of Pakistan has observed at page 131 as under:--- "Although, in some circumstances a delay of two hours may not be of much importance, yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate".
16. Further the same view has been reiterated by the Supreme Court of Pakistan in case titled Rahat Ali v. The State (2010 SCM R .584) in which Hon'ble Supreme Court of Pakistan has observed at page 588 as under:--- "the story narrated by PW-2 that after the abduction he went to sleep in the house also does not seem to be true because in such a situation he could not have gone to sleep when his parents were abducted. His natural and immediate conduct would have been to go to his uncle or to his mother who was first wife of deceased to inform her about the incident. Thus there is inordinate delay of silence of PW-2 which creates doubt about his veracity. Delay of 24 hours, 4 days and 15/20 days in reporting the matter to the police or recording the statement of witnesses by the police has been found adversely affecting the veracity of witnesses as held in the cases of Muhammad Sadiq v. The State PLD 1960 SC 223, Sahib Gul v. Ziarat Gul 1976 SCM R 236 and Muhammad lqbal v. The State 1984 SCM R 930, respectively. It has also been observed by this Court that delay in recording the statement without furnishing any plausible explanation is also fatal to the prosecution case at the statement of such witness was not relied upon in the case of Syed Muhammad Shah v. The State (1993 SCM R 550). Therefore, the evidence PW-2 is coming within the scope. Of above rules laid down by this Court. Hence his statement cannot be safely relied upon inthe peculiar facts and circumstances of the present case."
17. Bashir Ahmed PW-1 and Khursheed Ahmed PW-2 are not the eye-witnesses of the occurrence.
Khursheed Ahmed PW-2 admitted in cross-examination that he is close friend and neighbourer of the complainant Bashir Ahmed PW-1. Bashir Ahmed PW-1 stated that Muhammad Shahid was employee as Munshi at his shop of Fertilizer, Seeds and Khal for his business purpose and about two years and four months back, from the date of recording of his statement before the Trial Court i.e. 6.4.2010 at about evening time he alongwith Muhammad Jameel (given up PW), Khursheed Ahmed PW-2 and Abdul Qadeer deceased was sitting at his Dera where Muhammad Shahid present appellant came and told 'that Fertilizer and Khal had finished and he had contacted dealer at phone at Feroza where the above-stated articles were available and Abdul Qadeer deceased said the complainant that he had to arrange some money and also asked Shahid present appellant that how much money is required for that purpose on which Muhammad Shahid present appellant told the deceased Abdul Qadeer that about Rs. 1,00,000/- or Rs. 1,25,000/- is required for the purpose. Bashir Ahmed PW-1 further stated that on the next morning, Muhammad Shahid present appellant came at his Dera when he alongwith Jameel (given up PW), Khursheed PW-2 and Abdul Qadeer deceased was present there and Abdul Qadeer deceased went inside the house and brought Rs. 1,00,000/- or Rs. 1,25,000/- mobile phone Sony and Motorcycle Super Star and went with Muhammad Shahid present- appellant for Pakka Laran and did not come back tilllate evening.
Khursheed Ahmed PW-2 stated the same story as narrated by Bashir Ahmed PW-1. Bashir Ahmed PW-1 stated in cross-examination that he stated in his application Ex.PA that on the first day of the occurrence, he alongwith Muhammad Jameel (given up PW), Abdul Qadeer deceased and Khursheed PW-2 was sitting at his Dera which was confronted with Ex.PA where the name of Abdul Qadeer deceased was not mentioned. He further stated that he had mentioned in his application Ex.PA that Shahid had told him that Fertilizer and Khal had finished which was confronted with Ex.PA where Khal was not mentioned. He stated that he had mentioned in Ex.PA that Munshi Shahid present appellant had contacted with dealer on phone. Which was confronted with Ex.PA where not so recorded. He stated that he had mentioned in Ex.PA about arrangement of the amount Rs.
1,25,000/- which was confronted with Ex.PA where only Rs. 1,00,000/- was mentioned. He admitted that he had not produced any register of account of Khatajar just to show that Shahid present appellant was his Munshi. Abdul Hakeem PW8 stated that on 5.12.2007 he alongwith Muhammad Afzal (given up PW) was sitting at hotel of Haji and saw that Shahid was riding motorcycle whereas Abdul Qadeer deceased was sitting on the rare seat. In cross-examination, he stated that he had seen Muhammad Shahid present appellant and deceased in the morning but does not remethber the exact time. He stated that he had recorded in his statement before the police that Shahid present appellant and Abdul Qadeer deceased were on motorcycle which was confronted with his statement Ex.DB where motorcycle was not mentioned.
18. Admittedly, it is a case of circumstantial evidence and Bashir Ahmed PW-1, Khursheed Ahmed PW-2 and Abdul Hakeem PW-8 are the witnesses of last seen evidence and their statements were recorded on 26.12.2007 with unexplained delay of 15-days without any plausible explanation and it is settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. Is recorded with delay without offering any plausible ,explanation. Reliance is placed on case titled Muhammad Khan v. Maula Bakhsh and another (1998 SCM R 570) in which Hon'ble Supreme Court of Pakistan has observed at page 575 as under:--- "it is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.0 . Is recorded with delay without offering any plausible explanation".
19. Further last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously niissing in the instant case and it is procured easily at any time during the investigation whenever prosecution has no direct evidence.
20. In view of the above, the evidence of Bashir Ahmed PW-1, Khursheed Ahmed PW-2 and Abdul Hakeem PW-8 is not believable and same is disbelieved. Reliance is placed on case titled Altaf Hussain and others v. Fakhar Hussain and another (PL 2008 SC 687) in which Hon'ble Supreme Court of Pakistan has observed at page 689 as under:--- "It is settled principle of law that the last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case. This piece of evidence has been disbelieved by the Trial Court as well as learned High Court and rightly so. So far as circumstantial evidence is concerned it does not lead to the conclusion in any manner that the respondent had any hand in the affair and caused the murder in question. Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain"
21. Khursheed Ahmed PW-2 stated that about two months after the occurrence Muhammad Shahid present appellant while in police custody got recovered money,.Mobile phone Ex.P1, Parchi regarding list of Fertilizer P-2 from inside the Jasti Box and pair of shoes of Abdul Qadeer deceased P-3/1-.2 from underneath the Jasti Box which were taken into possession through recovery memo.
Ex.PB attested by him.
22. Muhammad Hanif, SI/I.0 of this case PW-11 stated that on 1.2.2008 he arrested Shahid present appellant who during that integration on 5.2.2008 disclosed and got recovered Rs. 45,000/- which was taken into possession through recovery memo Ex.PB and on the same dayMuhammad Shahid present appellant got recovered mobile phone Sony P-1, one Parchi P-2 pertaining to account and pair of black shoes P3/1-2 which was taken into possession through recovery memo. Ex.PB.
23. I have myself perused recovery memo. Ex.PB wherein I found that Rs. 45,000/- have not been marked with any exhibit number and same were also not marked with exhibit number during the statements of Khursheed Ahmed PW-2 and Muhammad Hanif, SI/I.O. Of this case PW-11. So, the alleged recovery of Rs. 45,000/- is disbelieved. Further it is also strange that Muhammad Shahid present appellant after the occurrence brought shoes P3/1-2 pertaining to Abdul Qadeer deceased to his house and kept the same intact and produced before the I.O. On 5.2.2008 to create evidence against him so evidence of recovery of the shoes pertaining to Abdul Qadeer deceased is also not believable and same is disbelieved. Likewise, recovery of mobile phone P-1 without SIM and Parchi P-2 pertaining to account allegedly recovered on the pointation of Muhammad Shahid present appellant is not believable because Bashir Ahmed PW-1 never stated in his statement before the Trial Court that mobile phone P-1 was belonging to Abdul Qadeer deceased and he had identified the same and further Parchi P-2 is related to his business of Fertilizer and admittedly no identification memo. Of above-stated articles has been prepared by the I.O. Muhammad Hanif, SI PW-11.
24. Bashir Ahmed complainant PW-1 stated in his written application Ex.PA rega
25. Ch, Muhammad Ilyas, SI police station Model Colony, Karachi PW-6 stated that dead-body wrapped in a sack was found lying at Bismillah Centre, Sohrab Goth upon which FIR No. 579 of 2007 under section 302/34, PPC was registered at police station, Model Colony,rding the motive as under:- {{URDU TEXT}} ' As evidence of recoveries of4ks. 45,000/-, mobile phone Soni P-1 has been disbelieved by me so motive has not been proved which even otherwise is based on suspicion and suspicion is always remains suspicion and cannot take place of proof. Karachi on 6.12.2007.
26. Doctor Syed Sajid Ali, Medico-Legal Officer Abbasi Shaheed Hospital, Karachi PW-9 stated that on 6.12.2007 at about 11:45 he conducted post-mortem examination on the dead-body of unknown male deceased (since identified the dead-body of Abdul Qadeer deceased) and in cross- examination he stated that the condition of dead-body shown by him as fresh in Ex.PG means that the person might have died one/two hours before the post-mortem examination.
27. Without discussing further medical evidence, it is settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime. Reliance is placed on case titled Altaf Hussain and others v. Fakhar Hussain and others (PL 2008 SC 687).
28. Mushtaq Ahmed, Mst. Jameela and Amanullah co-accused of the present appellant have been acquitted by the Trial Court through impugned judgement by disbelieving the prosecution evidence to that extent. Bashir Ahmed PW-1, Khursheed Ahmed PW-2 found to have falsely implicated three above stated accused out of four and conviction of remaining accused on the basis of the same evidence cannot beA relied upon without independent corroboration which is missing in the instant case and prosecution has not filed any appeal against the acquittal of Mushtaq Ahmed, Mst. Jameela and Amanullah. Reliance is placed on case titled Akhtar Ali and others v. The State (2008 SCM R 6).
29. From the facts and circumstances narrated above, I a.m. Persuaded to hold that prosecution has badly failed to bring home guilt of the appellant to the hilt and the learned Trial Court was not justified in convicting him while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradiction especially unreliable story deposed by Bashir Ahmed complainant PW-1, Khursheed Ahmed PW-2 and Abdul Hakeem PW-8. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellant. The Criminal Appeal No. 456 of 2010 filed by Muhammad Shahid, present appellant is accepted and conviction and sentence awarded by the learned Trial Court vide judgment dated 30.11.2010 is set aside and the appellant is ordered to be acquitted of the charge in case FIR No. 585, dated 20.12.2007 under sections 302, 364/34, PPC police station Pacca Laran District Rahimyar Khan. He is on bail. His surety stands discharged.