ALI BAIG, J. This criminal appeal under section 410, Cr.P.C. is directed against the impugned judgment dated 28- 11-2017, passed by the learned Sessio ns Judge Ghizer in Sessions case No. 03/2015, whereby the learned Sessions Judge Ghizer/trial Court has convicted the appellant/convict under section 302, P.P.C. and sentenced him to imprisonment for life. Benefit of section 382, P .P.C. was also extended to the appellant/ convict.
2. This judgment shall dispose of Criminal Appeal No.52/2017, filed by the appellant/convict and Criminal Revision No.28/17 filed by the learned Dy. Advocate General on behalf of the State for enhancement of sentence of appellant/ convict from life imprisonment to death as both these matters have arisen out of the same case i.e. FIR No. 24/2014 dated 10.10.2014 and the same judgment dated 28.1 1.2017 passed by the learned Trial Court.
3. Briefly the prosecution case as narrated in the FIR Exh-PW9/A is that on 02.10.2 014 the complainant Syed Qadir Ali Shah SHO Police Station Singul Tehsil Punial District Ghizer received inform ation that the deceased namely Imtiaz with intention to commit suicide has opened fire on himself with fire arm and he was shifted to the Aga Khan Medical Centre Singul in injured condition, where he succumbed to his injuries. Accordingly , the above named SHO/complainant started inquiry/ procee dings under section 174, Cr.P.C. to ascertain the cause of death of the deceased Imtiaz. During inquiry under section 174, Cr.P.C. the above named SHO/complainant found that the present appellant/convict has committed murder of deceased namely Imtiaz and motive behind the occurrence was stated to be that there was suspicion that the deceased had illicit liaison with the sister of the convict/appellant.
4. After registration of formal FIR, the SHO Police Station Singul entrusted the case to Mr. Framan Wali, ASIP Police Station Singul for investigation. Accordingly , the above named I.O. proceeded to the scene of occurrence at Goharabad Punial. Where one Ikram real brother of the deceased produced 30 bore pistol to the I.O. stating that with the fire of the said pistol his brother has died . The above named I.O. took into possession one empty shell of 30 bore pistol and a spent bullet was also taken into his possession by the above named I.O. from the crime scene in presence of marginal witnesses. Postmortem examination of dead body of the deceased was conducted by Dr. Habib Khan Medical Officer Civil Hospital Singul at the house of the deceased and after completion of post mortem examination the dead body of deceased was handed over to the L.Rs of the deceased. The above named I.O. prepared memos Exh-PW -8/A to Exh-PW -8/H. Thereafter the above named I.O. handed over the case/police file to Syed Qadir Ali Shah, the then SHO Police Station Singul fot further proceedings. The above named SHO continued further investigation in the light of evidence collected during proceedings under section 174, Cr.P.C. The SHO/I.O. above named arrested the appellant/ convict and during interrogation the appellant/convict confessed his guilt and he recorded statement of PWs under section 161, Cr.P.C. After completion of usual investigation the above named SHO/I.O. got committed the appellant /convict to the judicial lock up at Gahkuch, after obtaining judicial remand of the appellant/convict from competent Court/ Judicial Magistrate Gahkuch Ghizer . The above named SHO/complainant submitted incomplete challan and complete challan Exh-PW -9/B and Exh-PW -9/C in the Court of competent jurisdiction.
5. On receipt of challan the learned trial court issued summons to the accused / appellant and the State. After providing copies of statements and relevant documents to the appellant as required under section 205(c), Cr.P.C., the learned Trial Court framed charge against the appellant/convict on 25-3-2015, to which the accused pleaded not guilty and opted to contest the case and accordingly the learned trial court summoned the PWs. In order to prove its case the prosecution produced/ examined the 9 PWs in the trial Court and gist of statements of P.Ws are as under:- PW-1 Mst. Nelofer widow of the deceased . She has stated that appellant/convict Ashfaq Hussain had come to her house along with his dog at the time of occurrence and she had given a bread for his dog and he went outside her house and in the meanwhile, she heard report of fire shot and she went to place of occurrence and found her husband lying unconscious condition.
PW-2 Zeeshan . He has stated/ deposed that on 02.10.2014 at the evening time he saw the appellant/convict Ashfaq Hussain escaping from the house the deceased.
PW-3 Mst. Bibi Shakoor . She has seen the accused/appellant namely Ashfaq coming out from the house of deceased Imtiaz and she went to the house of Imtiaz deceased where the wife of deceased told her that Imtiaz is lying unconscious in a room. She went to the room where deceased was injured and lying unconscious condition.
In the mean time, Muhsin and Razaq came there and took the injured to the hospital.
PW-4 Sher Qayyum . He has stated that on 02-10-2014 deceased was sitting in his hotel. Appellant/Convict Ashfaq Hussain came there and took away the deceased from the hotel. After about fifteen minutes, he heard about the occurrence.
PW-5 Hussain Khan . He is marginal witness of recovery mem os Exh.PW -5/A, Exh PW-5/B and Exh.PW -5/C vide which the police have taken into possession one 30-bore pistol from the cupboard of house of deceased Imtiaz, one pellet and one empty shell from the room of the deceased.
PW-6 Dr. Habib Khan . He is Medical Officer and has conducted postmortem examination of dead body of the deceased at the house of the deceased situated at Goharabad and has prepared autopsy report Exh-PW 6/A.
PW-7 Akram. He is real brother of deceased Imtiaz. At the time of occurrence, he was presented at village Bubur .
He received information there through cell phone call by his cousin that his broth er Imtiaz has been hospitalized.
He rushed to there and found him dead. He was told that the deceased was fired at home in presence of his babi.
The motive behind the occurrence was that there was allegation of illicit relation of his brother with the sister of the appellant Ashfaq Hussain.
PW-8 Farman Wali. The above named police official has partially carried out investigation of the case of appellant/convict.
PW-9 Sayed Qadir Ali Shah SHO . He was performing his duty as SHO Police Station Singul at the time of occurrence. He has registered criminal case against the appellant/convict under section 302, P.P.C. vide FIR Exh- PW 9/A after inquiry under section 174, Cr.P.C. He has also partially conducted investigation in this case. On completion of investigation he has submitted in complete and complete challans in the trial court.
6. After production/examination of above named 9 PWS and abanding one P.W namely Amjad, the learned District Public Prosecutor closed prosecution evidence vide his closing statement dated 1 1-3-2017.
7. Thereafter , the learned trial court examined the appellant/convict under section 342, Cr.P.C. on 23-9-2017. In his statement recorded under section 342, Cr.P.C. the appellant/convict repudiated the allegation of murder of the deceased Imtiaz levelled against him and professed his innocence. However , the appellant/ convict neither get record his statement on oath under section 340(2), Cr .P.C. nor produced any evidence in his defence.
8. On conclusion of trial, the learned trial court after hearing arguments on behalf of both the parties has convicted the appellant under section 302(b), P .P.C. and sentenced him to suf fer imprisonment for life.
9. Feeling aggrieved and dissatisfied from the impugned judgment dated 27.11.2017, passed by the learned trial court, the appellant has preferred the instant criminal appeal under section 410, Cr.P.C. in this court and the state has filed a criminal revision petition under section 439, Cr.P.C. for enhancement of sentence of the appellant/convict from life imprisonment to death. Through this consolidated judgment both the appeal and Criminal Revision Petition shall be disposed of.
10. The learned counsel appearing on behalf of the appellant/convict 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 judgment passed by the learned trial court is not maintainable and liable to set aside. The learned counsel for the appellant/convict further argued that no eye-witnesses have witnessed the occurrence and no any confessional statement of the appellant/convict" has been recorded by a competent court/ Magistrate. The learned counsel for the appellant/convict further argued that in fact the deceased had committed suicide on 02-10-2014, therefore, the heirs/ relatives of the deceased had not lodged any FIR and Police have themselves lodged FIR on 10-10-2014, after due deliberation and afterthought. The learned counsel for the appellant/con vict further argued that the site plan Exh-PW -8/B has been prepared on the pointation of PW-7 namely Akram who is real brother of the deceased and who was present at village Buber at the time of occurrence and weapon of offence has not been recovered on the pointation of the appellant/convict rather brother of deceased namely Akram PW-7 has produced the same before the police from a cupboard of a room of the deceased. The learned counsel for the appellant/convict further argued that as per court statement of PW-1 namely Mst. Nelopher neighbors of deceased namely Mohsen and Raza had come to the place of occurrence on hearing report of fire shot, but neither their statements under section 161, Cr.P.C. have been recorded by the police nor have they produced before the learned trial court as PWs.
Concluding his arguments the learned counsel for the appellant/convict argued that the prosecution has miserably failed to prove its case against the appellant/ convict by adducing any cogent and reliable evidence in the trial court and the learned trial court has illegally and wrongly convicted the appellant/convict, hence impugned judgment under appeal passed by the learned trial court may be set aside and the appellan t/convict may be acquitted from the charge under section 302, P .P.C. in the interest of justice.
11. On the other hand the learned Dy. Advocate General and counsel for the complainant controverted the arguments advanced by the learned counsel for the appellant/convict and supported the impugned judgment passed by the learned trial court by contending that the immediately before the occurrence the appellant/convict had come to the house of the deceased and he was seen in the company of the deceased before the occurrence, hence last seen evidence is available against the appellant/convict. The learned Dy. Advocate General and counsel for the complainant further submitted that the Medico Legal Report/ Autopsy report also supports, the prosecution, version, hence the prosecution has prove d its case by producing reliable evidence in the trial Court, and learned trial court has awarded lesser punishment of life imprisonment to the appellant/convict which may be enhanced to death by maintaining the impugned judgment of the learned trial court in the interest of justice.
12. We have heard the learned counsel for the parties at considerable length and perused the record with their able assistance.
13. From perusal of record it transpires that the occurrence was taken place on 02-10-2014 at 6/7 p.m. in a room of house of the deceased namely Imtiaz situated at Goharabad Tehsil Punial District Ghizer and FIR has been lodged on 10-10-2014 at 1200 hours by SHO namely Syed Qadir Ali Shah Police Station Singul after delay of 8 days of the IA occurrence. Initially , it was believed that the deceased has committed suicide as he was found alone in his room at the time of occurrence, therefore, after conducting postmortem examination of dead body of the deceased namely Imtiaz, the dead body of deceased was buried. Thereafter , Police started inquiry proceedings under section 174, Cr.P.C. and during inquiry under section 174, Cr.P.C., the police collected some evidence including Medico Legal Report/Autopsy Report against the appellant/convict and FIR has been lodged on 10-10-2014, by involving present appellant/convict in this case. Admittedly , no eye-witness has witnessed the occurrence as this a blind murder/ occurrence and the learned trial court has convicted and sentenced the accused on the bases of last seen evidence furnished by very close relatives of the deceased.
PW-1 namely Mst. Nelofer who is widow of the deceased Imtiaz has deposed that on 02.10.2014 at evening time the accused and deceased were present outside of their home and in the meantime, she heard report of fire shot.
On hearing voice of fire shot neighbors namely Mohsen and Raza and sister of deceased Mst. Shukoor Bibi came there, but it is astonishing to note that the above named two persons have not been cited as PWs. PW-2 namely Zeeshan who is brother-in-law (salaha) of deceased has deposed in his cow statement that on 02.10.2014 at evening he saw the accused Ashfaq Hussain escaping from the house of the deceased. PW-3 namely Shukoor Bibi who is sister of the deceased has stated that she was present in her house she heard sound of fire and went out of the house and she saw the accused/appellant Ashfaq Hussain coming out of the house of the Imtiaz deceased and ran away . PW-4 namely Sher Qayyum who is cousin of deceased has stated in his court statement that on 02.10.2014 deceased was sitting in his Hotel, the accused Ashfaq Husssain came there and took away the deceased from the Hotel. After about 15 minutes he heard about the occurrence.
14. The above named four PWs who are close relatives of the deceased and have seen the appellant/convict in the company of deceased before the occurrence and have also disclosed that the accused had allegedly illicit liaison with the sister of the appellant, but it is astonishing to observe that the above named PWs have not reported the matter to the police and kept mum for six to eight days of the occurrence, hence their statements recorded under section 161 Cr.P.C. and statements recorded before the trial court seems to be doubtful and are not reliable.
Admittedly , it is an unseen and blind occurrence. The dead body was found lying in a room of house of the deceased. At the time of occurrence wife of deceased PW-1 namely Nelofer was present in the house of deceased and she has not seen the appellant/convict while opening fires on the deceased. The PWs 1 to 4 are witnesses of last seen evidence and they are close relatives of the deceased and their statements are not corroborated by any other independent and impartial witnesses. The last seen evidence is weak type of evidence and last seen evidence cannot be considered enough to sustain conviction on murder charge when witness had some connection with deceased and unless the same is corroborated by independent and confidence inspiring evidence which is lacking in this case. Weapon of offence and empty shell of .30 Bore Pistol were not recovered on the pointation of appellant/convict and site plan has not been prepared on the pointation of appellant/convict rather site plan was prepared on the pointation of the real brother of deceased namely Akram PW-7 who was not present at the place and at the time of occurrence. The weap on of offence i.e. .30 bore Pistol was handed over to the police by PW-7 namely Akram from a cupboard of house of deceased and weapon of offence is admittedly owned by the deceased. At the time of occurrence PW-7 Akram was present at village Bober as admitted by him in his statement recorded by the learned trial court. The deceased was shifted to Aga Khan Medical Centre Singul in injured condition where he succumbed to his injuries, but the prosecution has failed to cite any doctor or staff of Aga Khan Medical Centre Singul as PW. PW 6 Dr. Habib Khan has conducted postmortem examination of dead body of deceased in the house of deceased at Goharabad, which is not permissible under law, hence, Medico Legal Report/ Autopsy Report is also very doubtful and is not admissible.
15. It is evident from the perusal of record that the occurrence was unseen which took place in a room of house of the deceased at evening time. The prosecution case is based on the circumstantial evidence/last seen evidence, therefore, utmost care and caution is required for reaching at the just conclusion/decision of the case.
16. It is well settled law that in such like cases, the chain link should be go inter connected with each other that its one ends touching the dead body while the other end goes around the neck of the accused and if any chain link is missing then its benefit should be given to the accused. In this regard, guidance/wisdom has been drawn/sought from the judgments of superior courts (1) PLD 1966 SC 664 (2) 1999 SCMR 1034 (3) 1992 SCMR 1047 (4) 1996 SCMR 188 (5) 2008 SCMR 1103 (6) 2009 SCMR 407 (7) 2009 SCMR 1107 (8) 2011 SCMR 1127, (9) 2013 (sic) and 2003 YLR 1364 . Moreover , in this case, the prosecution/ police had recorded the statements of witnesses under section 161, Cr.P.C. after delay of 6 to 8 days of the occurrence despite the fact four PWs are close relatives of deceased which delay itself robbed the statements of its credibility . It is settled law that credibility of a witness is looked with serious suspicion if statements under section 161, Cr.P.C. were recorded with a delay without offering any plausible explanation. Thus evidence of last seen furnished by PWs 1 to PW-4 is not reliable and the story narrated by the PW-1 to PW-4 on the face of it seems to be more concoction and false as they have remained silent for about 6 to 8 days of the occurre nce and motive set-up/ disclosed in their statements could not be proved by adducing any reliable evidence.
17. After hearing arguments advanced by the learned counsel for the parties and perusing the relevant record with their able assistance, we are of the view that the case of prosecution is doubtful in nature in respect of the present appellant/convict. The evidence available on record is in no way sufficient to lead to a conclusion that the appellant/ convict can be convicted of the offence alleged against him. So, we are not incline d to subscribe to the conclusion that arrived at by the learned trial Judge that the prosecution has succeeded to bring home the charge against the accused beyond any reasonable doubt. The findings of the trial court are not based on any solid evidence.
18. Having regard to the above mentioned facts and circumstances of the case, we are of the considered opinion that the prosecution has failed to prove its case against the appellant/convict beyond any shadow of doubt. Thus, while accepting the appeal of the appellant/ convict, we set aside the conviction and sentence recorded against the appellant/ convict by the learned Sessions Judge Ghizer and acquits the appellant/convict of the charge levelled against him. The connected Criminal Revision Petition No.28/2017 being meritless stands dismissed. Certified true copy of this judgment be placed on the file of Cr . Revision No.28/2017.
19. Both the appeal and revision petition stand disposed of in the above terms. The appellant be released forthwith if not required to be detained in any other case. File.