1. SAIDUZZAMAN SIDDIQUI, J.-The appellant has been convicted and sentenced to death and a fine of Rs. 4,000 (Rs. 2,000 out of the fine is to be paid to the heirs of the deceased on realisation) under section 302, P. P. C. By the IInd Additional Sessions Judge, Sukkur. The appellant is further to suffer R.
2. I. For six months in default of payment of the above fine. This case is also registered as Confirmation Case No. 34 of 1980 as the punishment awarded to the appellant includes death sentence.
3. First information report in this case was lodged by Syed Abdul Hakim (hereinafter to be referred as "the complainant)" on 4th July, 1778 at 10-00 p. m. With --A' Section Police Station, Sukkur. According to the disclosures made in the F. I. R. (Exh. 8) the appellant was responsible for causing the death of the minor son of the complainant Abdul Waheed (hereinafter to be described as "the deceased") by drowning the deceased in the canal. One Yousuf son of Ismail Doctor is also cited in the F. I. R. As a person having a hand in the drowning incident of the deceased. The motive assigned to the appellant for causing the death of the deceased according to F. I. R. Was a grudge which the appellant carried against the complainant on account of a `Faisla' brought by A. S. I., A. Khalique of C. I. A., Sukkur on 3rd April, 1978 on the application of the complainant against the appellant relating to hiring of a bicycle in which the appellant had agreed to pay a sum of Rs. 1,000 to the complainant in instalments. The appellant it is stated in the F. I. R. Was not happy with the above 'Faisla' and had threatened the complainant soon thereafter by sating that this `Faisla' will be costly for the complainant. The basis of accusation in the F. I. R. Against the appellant was the circumstance that the deceased was last seen in the company of the appellant before his death by the witness Abdul Jabbar (P. W. 2). The motive against Yousuf son of Ismail Doctor named in the F. I. R. As an accomplice in the murder of the deceased, was stated to be existence of enmity between the complainant and the said Yousuf.
4. The Police after investigation, however, sent the appellant alone to stand trial for the murder of the deceased.
5. The prosecution in support of the case examined the complainant (Exh. 7), Abdul Jabbar (Exh. 10), Investigation Officer Abdul Quddus (Exh. 22), A. S. I. A. Khalique of C. I. A., Sukkur (Exh. 24), Mohammad TIanif (Exh. 11) one of the mashirs of mashirnamas of dead body of the deceased (Exh.
6. 121 the scene of Vardat where the appellant was last seen with the deceased (Exh.14), securing clothes of deceased (Exh. 15) and the Inquest Report (Exh. 13) and Mohammad Saeed one of the two mashirs of the mashirnamas of arrest of the appellant (Exh. 17) and seizure of register of the Bicycle from the shop of complainant (Exh. 18). On the point of death of the deceased as a result of drowning in the canal, the prosecution produced Doctor A. Rauf M. O. Civil Hospital, Sukkur, (Exh. 19), his post-mortem report (Exh. 20), Police Constable Abdul Fateh (Exh. 21) who took the dead body of the deceased for post-mortem, and Beldar of Rice Canal Sukkur, Mazari (Exh. 23) who had seen the dead body of the deceased floating in the canal and took out the same.
7. It is quite unnecessary in our view, to go into any detail of the evidence in this case relating to the cause of the death of the deceased as it was not disputed at any stage that the deceased died as a result of drowning in the canal. We are equally satisfied that there exists sufficient evidence on record to support the prosecution case to the extent that there was dispute between the complainant and the appellant over the hiring of a bicycle which resulted in making of application by the complainant to C. I. A. Police, Sukkur against the accused and which ended in a `Faisla' brought about by A. S. I. A. Khalique of C. I. A. Where--by the appellant agreed to pay Rs. 1,000 in connection thereto, to the complainant in instalments. The points which need consideration, in our view, in the case are whether the evidence on record established beyond doubt that the deceased was seen last in the company of the appellant immediately before his death and that whether this circumstance alone in the present case is sufficient to maintain the conviction of the appellant under section 302, P. P. C.
8. There is admittedly no eye-witness who had seen the appellant throwing or drowning the deceased in the canal. There is also no eye--witness who had seen the appellant taking the child toward Rice Canal. The solitary witness on the point is Abdul Jabbar (P. W. 2) who has stated in his examination-in-chief before the Court that he had seen the deceased in the lap of the appellant at about 5-30 on the day of incident while going from Shikarpur Road. It has come in the evidence of P. W. 7, Abdul Quddus, the I. O., that the place pointed out to him by Abdul Jabbar (P. W. 2) where he last saw the deceased with the appellant was situated on Shikarpur Road at electric poll near to the junction of 4 roads. There is neither any sketch on record nor any evidence has been produced by the prosecution to show the situation, direction and distance of canal where the dead body of the deceased was found, from the place where the deceased and the appellant were last seen together. The learned Additional Sessions Judge, believed the evidence of Abdul Jabbar (P. W. 2) and in the absence of an explanation forth coming from the appellant in that regard, convicted him of the charge of murder of the deceased.
9. We have found after hearing the learned counsel for the appellant and the learned Asstt.
10. Advocate-General more than one reasons to accept this appeal and refuse to confirm the conviction and sentence awarded to the appellant. In the first place, we may state, on the very outset that in a murder charge against an accused, it is not always and in all cases that the circumstantial evidence alone, of the accused and the deceased having been together alive, furnishes a ground sufficient to convict the accused of the charge of murder. The circumstantial evidence of this nature, is after all, a weak type of evidence and therefore, in our view, before it is relied upon in isolation for basing a conviction on the charge of murder, the circumstances, must not only be proved beyond any doubt and that they are not only capable of arousing a suspecion in the mind as to the guilt of the accused, but are such that any plea of innocence advanced by the accused is incompatible with the circumstances and are quite incapable of being explained on any other reasonable hypothesis except the guilt of the accused. The view expressed by us as above finds full support from the two decisions of the Supreme Court in the cases of Rehmat alias Rehman v. State (PLD 1977 SC 515) and Naqibullah and others v. State (PLD 1978 SC 21). The following passage from Rehmat's case at page 520 of the report fully illustrate the state of law on the point :- On a balance of the decided cases it appears that the circumstance of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder.
11. Further evidence is required to link the accused with the murder of his companion such as incriminating recoveries at the instance of the accused, a strong motive or the proximity of the time when they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person who was last seen alive in his company."
12. Rehmat's case was later referred by the Supreme Court in Naqibullah's case (at page 34) of the report as follows:- "The matter was also examined at some length in a recent unreported judgment of this Court in Rehmat alias Rehman v. The State (Criminal Appeal No. 52 of 1976, decided on 5th April, 1977). On the whole the evidence of the deceased having been last seen alive in the company of the accused was regarded as a weak type of circumstantial evidence to base a conviction on it."
13. We now turn to the examination of the circumstantial evidence in this case. The learned counsel for the appellant contended before us that the evidence of Prosecution Witness No. 2 Abdul Jabbar is not worthy of reliance in the case. It is urged by the learned counsel that although the name of Abdul Jabbar was mentioned in the F. I. R. As the only witness who had seen the deceased with the accused immediately before the incident but this witness was examined by the Police after about a week of the lodging of the F. I. R. We may mention here that the name of Abdul Jabbar (Prosecution Witness No. 2) is mentioned in the F. I. R. At the fag end of the report as the person who had seen the deceased in the lap of the accused but neither the place where the witness had seen the deceased and the accused together nor the time when they were seen together is mentioned in the F. I. R. No explanation whatsoever has been offered by prosecution for recording the statement of this witness who was the only material witness in the case after seven days of the lodging of F. I. R. In his cross-examination Abdul Jabbar stated that his statement was recorded by the Police on the next day of incident at Police Station, while Abdul Quddus, S. H. O. `A' Section, who was Investigation Officer, stated before the Court that he examined the witness Abdul Jabbar on 11th July, 1978. In these circumstances it is rightly contended by the learned counsel for the appellant that the examination of this witness by the Police after about 7 days of the incident' makes his statement extremely doubtful and not worthy of reliance. The learned counsel referred us to the case of Qabil Shah v. The State (PLD 1960 Kar. 697) where the Court did not believe a witness examined by the Police after about 48 hours of the incident. There is yet another circumstance which casts doubt .On the veracity of this witness. The complainant had his shop near the Pan Biri Cabin of the witness Abdul Jabbar. It is also in evidence that the complainant and the witness Abdul Jabbar are residing in the same Goth and their houses are near each other. The complainant was informed by his womenfolk at about 7 p. m. On the day of incident that the minor Abdul Waheed (deceased) was missing. The complainant in his cross--examination before the Court stated that before disappearance of the child, he and his servant Imtiaz had seen the child standing near the cabin of witness Abdul Jabbar. In these circumstances it is quite unbelievable that until 9.00 p. m. The witness Abdul Jabbar did not know about the disappearance of child or was not informed by the complainant about it. In the natural course, Abdul Jabbar would have been the first person to whom the complainant would approach to enquire about the child as the deceased was seen by the complainant just before his disappearance near the cabin of witness Abdul Jabbar. It is also not without significance that the complainant's servant Imtiaz who was stated by the complainant to have seen the deceased before his disappearance in front of cabin of Abdul Jabbar, when examined in Court as a defence witness did not state that he had seen the deceased near the cabin of witness Abdul Jabbar. On the contrary he stated that the deceased had come to the shop of complainant in the absence of complainant and left the shop at about 2- 00 p. m. This witness further stated that witness Abdul Jabbar is related to complainant. These assertions made by this witness were not challenged in cross-examination and there was also no suggestion that he was won over by the defence or was hostile to complainant In these circumstances in the absence of any other corroborative piece of evidence we are not prepared to place reliance on the sole testimony of Abdul Jabbar (Prosecution Witness No. 2) in this case. Even if it be believed that the deceased was seen last alive in the company of the accused, the circumstances in the case are not such, that this evidence alone is sufficient to uphold the conviction of accused for murder of the deceased. We B would accordingly refuse to confirm the conviction and sentence awarded to the accused by the Additional Sessions Judge, Sukkur and accept the appeal setting aside his conviction under section 302, P. P. C. The appeal was accepted by us on 8th of March, 1981 by a short order and the appellant was ordered to be set at liberty if not required in any other case and these are our reasons.