ALI BAIG, J.---This Criminal Appeal is directed against the impugned judgment dated 08-9-2018, passed by the leaned Additional Sessions Judge, Diamer in criminal/Sessions case No, 286/201 1 whereby the learned trial court has acquitted the accused/respondents.
2. Brief facts of the case giving rise to the filing of the instant criminal appeal are that the complainant namely Rajmir son of Muhammad Kaber resident of Darkale Tangir got registered FIR No, 15/2016 dated .17-8-2016/ Exh.
PW-10 under S. 302, P.P.C. stating therein that on 15-8-2016 his deceased son namely Sher Afzal had gone to attend marriage ceremony of his cousin namely Irshad Iqbal at the residence of one Amir Hamza. On the same night his deceased son had left the house of Amir Hamza, where wedding ceremony was going on. But he did not return to his home till morning. The complainant started search of his deceased/missing son. On 17.8.2016 the dead body of his deceased son was found near Derkali Mosque in a field of one Shah Thamas. The unknown persons have committed murder of his son by strangulating and causing injuries with sharp edge weapons and stones.
3. In pursuance of the above FIR; investi gation was entrusted to PW-8 namely Abdul Ghani by SHO (PW-10) Mir Ghani who during instigation visited the place of occurrence and prepared site sketch/plan Exh. PW-8, took into possession dead body of deceased vide Exh. PW-6/A . He collected blood stained earth from the place of occurrence vide Exh. PW-6/E, blood stained clothes of deceased vide Exh. PW-6/F. He prepared inquest report/form (35-25) vide Exh. PW-8/A. The above named I.O. arrested the accused/respondents during investigation and he also took into possession three stones on the pointation of accused from the place of occurrence which were allegedly used by the accused as weapons of offence vide Exh. PW-7 and prepared site plan of said recovery vide Exh. PW-8/B. During investigation the above named I.O. recorded statements of all P.Ws.' under Section 161, Cr.P.C. and entered all the proceedings in the Roznamcha. On completion of usual investigation the above named I.O. handed over Police file to the then SHO/PW -10 namely Mir Ghani SIP who submitted complete Challan Exh. PW-10/A before the court of competent jurisdiction for trial of the accused/respondents herein.
4. On receipt of Challan/final police report, the learned trial Court issued summons to the parties and accordingly the DPP/Diamer and respondents entered appearance and the learned trial Court after fulfilling proceedings under Section 265(C) , Cr.P.C. framed charge against the accused/present respondents on 15-12-2016, to which the accused/ respondents pleaded not guilty and opted to contest the case/face the trial. Accordingly the learned trial court summoned the P .Ws.
5. At the trial the prosecution produced 10 P.Ws. and the learned DPP Diamer close d prosecution evidence vide his closing statement dated 20-4-2018, where after the present respondents were examined under Section 342, Cr.P.C. by the learned trial Court. In their statements recorded under section 342, Cr.P.C. by the trial Court the respondents/accused repudiated the allegation of murder of the deceased and professed their innocence.
However , neither respondents got recorded their statements on oath under Section 340(2), Cr.P.C. nor produced any witness in their defence.
6. On conclusion of trial the learned trial court after hearing arguments on behalf of both the parties acquitted the accused/respondents vide the impugned judgment dated 08-9-2018. Whereafter the state has filed the instant criminal appeal under Section 417, Cr .P.C. against the acquittal of the respondents/accused before this court.
7. The learned counsel appearing on behalf of the complainant and learned Dy. Advocate General contended that the impugned judgment passed by the learned trial Court is contrary to law and facts on the record of the case as such the impugned order/judgment passed by the learned trial court is not maintainable and liable to be set aside.
The learned counsel for the complainant and Dy. AG further argued that the prosecution had proved its case by producing reliable circumstantial evidence in the shape of last seen evidence and recovery of weapons of offence i,e, stones from the place of occurrence on the pointation of the respondents but the learned trial court has wrongly acquitted the respondents. The learned Dy. Advocate General and counsel for the complainant further argued that the impugned judgment passed by the learned trial court is result of gross misreading and non reading of the evidence of prosecution as such the impugned judgment passed by the learned trial court is not tenable and liable to be set aside and the respondents may be awarded capital punishment in the interest of justice.
8. On the other hand the learned counsel for the respondents controverted the arguments advanced by the learned Dy. Advocate General and counsel for the complainant and supported the impugned judgment passed by the learned trial Court by contending that since the prosecution has miserably failed to prove its case against present respondents, therefore the learned trial court has rightly acquitted the accused/respondents. The learned counsel for the respondents further argued that last seen evidence is weak type of circumstantial evidence and statements of P.Ws namely Mst. Nargis, Mst. Aasia and Mst. Sumbul were recorded under section 161, Cr.P.C. by police after 10 days of the occurrence and the above named P.Ws who had allegedly seen the deceased in the company of the respondents prior to the occurrence are also close relatives of the deceased and conviction cannot be based on the basis of solitary last seen evidence of the above names ladies/PWs, when nothing is in corroboration.
9. We have heard the learned counsel for the parties and perused the record with their able assistance.
10. From perusal of record it transpires that the present respondents/ accused were not nominated in the FIR and FIR was lodged against some unknown person/persons and names of last seen evidence/witnesses have also not been disclosed in the FIR and admittedly it is an unseen occurrence. Even dead body of the deceased was also not recovered on the pointation of the present respondents/accused. Motive behind the occurrence was also not mentioned in the FIR.
11. The case of the prosecution primarily hinges upon the circumstantial evidence which is in the shape/ nature of last seen evidence and recovery of weapon of offence / three stones from the place of occurrence on the pointation of present respondents. In support of above strings of circumstantial evidence Mst. Aasia P.W-2, Mst. Sumbul P.W- 3 wives of the complainant, Mst. Nargis daughter of Rajmir , the complainant appeared before the learned trial court as witnesses during trial Mst. Aasia (P.W-2) is step mother of the deceased, Mst. Sumbul (P.W-3) is real mother of the deceased Sher Afzal and Mst. Nargis (PW -4) is real sister of the deceased.
12. The above named three P.Ws have stated in their statements recorded before the learned trial court that on 15.8.2016 they along with deceased Sher Afzal had gone to attend marriage ceremony of one Irshad Iqbal. At about 12/01 a.m. they were sitting in the lawn, in the meanwhile the deceased left/ departed along with the present respondents/ accused. P.W.-2 namely Mst. Aasia inquired from the deceased as to where he is going but before his response, the accused/respondents replied that they are going to Government School for a musical party . The next morning the accused/respondents returned to the home but the deceased did not return. On 17.8.2016 the dead body of decease was found near Darkaly Mosque. Accused Muhammad Iqbal was interested to marry with wife of the deceased Sher Afzal. The accused first made attempts to compel the deceased to divorce his wife but when the deceased declined to do so, they committed murder of deceased Sher Afzal. The motive surfaced during recording of the statements of the above named PWs, under Section 161, Cr.P.C. which were also recorded belatedly .
13. The above named three witnesses who have allegedly seen the deceased in the company of the respondents prior to the occurrence are closely related to the deceased but it is astonishing to note that the occurrence was taken place on 15.8.2016 and their statements under section 161, Cr .P.C. have been recorded by police on 25-8- 2016 after lapse of ten days of the occurrence and prosecution has also failed to explain this inordinate delay in recording the statements of above name d last seen witnesses/evidence, thus delay in recording of statement of above named P.Ws creates serious doubt regarding the genuineness of their statements which is fatal to prosecution's case. It has been held/obse rved by the Hon'ble Supreme Court Pakistan in case titled "Rahat Ali v.
State " reported in 2010 SCMR 584 that delay in recording statements of PWs under Section 161, Cr.P.C. without furnishing any plausible explanation is also fatal to the prosecution case and statement of such witnesses should not be relied upon and statement of such witnesses was not relied upon in case titled "Syed Muhammad Shah v.
State " 1993 SCMR 550. Hence, statements/ evidence of P.Ws 2 to 4 is coming within the scope of above rules laid down by the Hon'ble Supreme Court of Pakistan thus the statements of P.Ws 2 to 4 cannot safely relied upon in the peculiar facts and circumstances of the present case as the above named three P.Ws are also close relatives of deceased and no impartial witness has seen the deceased in the company of respondents prior to occurrence.
14. In the above back-drop it is noticed that the story of prosecution revolves around the statement of three witnesses namely Mst. Aasia (PW-2), Mst. Sumbul (DW-3) and Mst. Nargis (PW-4), who appeared before the trial court in support of evidence of last seen and they have also stated regarding motiv e behind the occurrence and as per their statements the deceased Sher Afzal was last seen alive company of the respondents while leaving the house of Irshad Iqbal. It was marriage ceremony in the house of Irshad Iqbal and many other people might be present in the house of Irshad Iqbal but neither any impartial person saw the deceased Sher Afzal nor heard about him.
15. Even otherwise it is settled principle of law that the evidence of last seen is always regarded as a weak type of evidence and such evidence was not sufficient to award conviction in a capital charge. In order to award conviction of a person on the basis of last seen evidence, the prosecution is required to produce some other independent piece of evidence which may provide sufficient corroboration. In the absence of such corroboration it is not considered safe to award conviction solely on the basis of last seen evidence. In this regard reference can be made to the reported judgments of superior Courts reported in 2008 SCMR 1 103 and 2018 PCr .LJ 310.
16. Moreover , except recovery of some stones from the place of occurrence on the pointation of accused/ respondents there is no any other independent piece of evidence which provide corroboration to the case of the prosecution.
17. In the above back-drop it can safely be concluded that except the evidence of last seen, the prosecution has not been able to place on record any other circumstance which may connect the respondents with the commission of alleged of fence.
18. So far as evidence of last seen is concerned, it is pertinent to mentioned here that according to statements of P.Ws. 2 to 4 the deceased had left the house of Irshad Iqbal situated at Darkali Tangir in the company of respondents and subsequently went missing. The P.Ws 2 and 3 are wives of the complainant and PW-4 is daughter of complainant but surprisingly the compla inant has not mentioned in the FIR that the deceased had left the house of Irshad Iqbal in the company of respondents/accused. This aspect of the instant case creates doubt regarding the correctness of claim of P.Ws. namely Mst. Asia (P.W-2), Sumbul (P.W.-3) and Nagir (PW-4) and renders them unworthy of any evidence.
19. In view of above discussion, the learned Dy. A.G. and counsel for the complainant have failed to point out any illegality or irregularity in the impugned judgment of trial Court and misreading and non-reading of evidence of prosecution, thus this criminal appeal being devoid of any merit is dismissed and the impugned judgment dated 8.9.2016 passed by the learned trial Court is maintained. File.