ROZI KHAN BARRECH, J.--The appellant was involved in case FIR No. 11 of 2019 dated 16.07.2019 registered under section 302/34, P.P.C. at Levies Thana Sunnoi District Kachhi was tried by the learned Additional Sessions Judge, Bhag at Dhadar , (hereinafter "the trial court "). The learned trial court was seized with the matter in terms of the judgment dated 16.10.2019 (hereinafter "the impugned Judgment ") convicted and sentenced the appellant in the following terms:- "The accused/appellant namely Sabir Hussain son of Raza Muhammad is convicte d and sentenced under section 302(b), P.P.C. to suffer imprisonment for life with fine of Rs.2,00,000/- (Rupees Two Lac Only) as compensation to the legal heirs of deceased within the purview of section 544-A, Cr.P.C., or in default to suffer SI for six (06) months. Benefit of section 382(B), Cr .P.C., is extended in favour of accused/appellant".
2. Aggrieved from the impugned judgment, the appellant Sabir Hussain son of Raza Muhammad has assailed his conviction and sentence through Criminal Appeal No.(S) 149 of 2019, while the complainant Abdul Rehman son of Noor Muhammad filed Criminal Revision Petition No.(S) 36 of 2019 for enhancement of conviction awarded to the appellant by the trial court, as the appeal and criminal revision petition are arising out one and the same judgment of the trial court, therefore, the same are being disposed of through this common judgment.
3. The prosecution story as disclosed in the FIR (Ex.P/7-A) recorded on the written report of complainant/ PW-1 Abdul Rehman son of Noor Muhammad (Ex.P/1-A) is that he is resident of SLnnni Shooran and is Mechanic of Motorcycles. His son Nadeem Hussain and Shabir Ahmed are studying in Madrasa Abdul Jalil at Shooran. On 13.07.2019 at evening time his son did not return back to home, so he asked Shab ir Ahmed about his son. He told that he was taken on a motorcycle by accused Sabir Hussain along with two unknown persons on motorcycles.
However , today , i.e. 16.07.2019 at 6:30 a.m., the corpse of his son was found in the water tank of Madrasa. It is further alleged in the report that he is fully confident that his son has been murd ered by the nominated accused Sabir Hussain. Hence the crime report.
4. After completion of the usual investigation, the challan was submitted against the appellant before the trial court, where he was formally charge-sheeted to which he pleaded not guilty and claimed trial. To prove guilt of the appellant, the prosecution examined as many as seven (07) witnesses. After closure of the prosecution evidence, statement of the appellant was recorded under section 342, Cr.P.C., wherein he denied the prosecution allegations and professed his innocence. He, however , refused to be examined on oath under section 340(2), Cr.P.C. or to produce evidence in defence. On conclusion of trial, the learned trial court, after hearing both the sides, convicted and sentenced the appellant as mentioned above, hence, this appeal.
5. Arguments advanced from both sides have been heard. We have also minutely gone through the available record on file with the able assistance of the learned counsel for the parties. Reco rd transpires that no one came forward to furnish ocular account to this unfortunate incident; thus, one may say that it is an unseen occurrence.
The material collected by the prosecution are; last seen evidence furnished by PW-2 (Bashir Ahmed), the pointation of the place of occurrence by the appellant, disclosure of the appellant/accused, recovery of piece of rope and plastic bag on the pointation of the accused and medical evidence.
4. Before dilating upon the above referred circumstantial evidence, we are fully conscious of the principle that if the case is based on circumstantial evidenc e, the prosecution must ensure, that the circumstances from which the ference of guilt is sought to be drawn, must be cogently and firmly established. The circumstances must unerringly point towards the guilt of the accused and when taken cumulatively , should form a chain so complete, that it must demonstrate in all probabilities that the crime was committed by the accused. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency , and they should be such as to exclude every hypothesis, but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and it must be such to show that within all human probability the act must have been done by the accused. In the A case titled Sheikh Muhammad Amjad v. State (PLD 2003 SC 704). The august Supreme Court while dealing with 'circumstantial evidence, has been held that:-- "According to the standard of proof required to convict a person on circumstantial evidence, the circumstances relied upon in support of the conviction must .be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime."
7. First of all, we would take the last seen evidence, which is usually not cons idered to be a strong piece of evidence. In the case in hand the same was furnished by Bashir Ahmed (PW-2). According to this witness, he is a student of Madrasa Abdul Jalil where the deceased was also studying, and he was studying in the said Madrasa from the last six years. On 13.07.2019 the accused Sabir Hussain and two other persons taken the Nadeem Hussain on a motorcycle. On 16.07.2019 at morning time corps of the deceased Nadeem Hussain was found from the water tank of Madrasa.
8. The above story narrated by the PW-2 Bashir Ahmed has neither been corrob orated from the FIR as well as disclosure of the appellant before the police; nor prosecution produced any other corroborating evidence in this behalf. PW-2 Bashir Ahmed stated during cross-examination that he and deceased Nadeem Hussain along with 13/14 students were residing in the said Madrasa and rest of the students are coming from their houses. Neither the teachers of the Madrasa nor other students of the Madrasa were produced by the prosecution before the court to corroborate the version of PW-2. This version of PW-2 establishes his status as a witness of last seen, which is an afterthought and seems concocted and fabricated one. Had he seen the, appellant Sabir Hussain on the very first day of deceased's Nadeem Hussain missing he would have definitely disclosed before the police regarding missing of the deceased, when he was last, seen with one Sabir Hussain, and he would have also inquired from the appellant about the whereabouts of the deceased, but he did not lodge the report on the first day rather his statement was recorded by the levies on 16.07.2019 after three days from missing of the deceased Nadeem Hussain. Despite the fact that he is a nephew of the complainant/PW -1. This fact was also confirmed by PW-4 Abdul Hakeem. He stated during cross-examination that the deceased Nadeem Hussain is the nephew of the son of Abdul. Hameed. It is important to mention here that Abdul Hameed is the father of the PW-2. Admittedly the last seen evidence is the weakest type of evidence unless corroborated by other strong pieces of evidence. It is difficult to award punishment of capital charge on the basis of evidence of last seen. The statement of PW-2 does not find any support from the alleged disclosure of the appellant and other piece of evidence. Thus, this belated story of PW-2 regarding last seen of the deceased in the company of the appellant .is unbelievable and not trustworthy .
9. The complainant has knowledge about missing of ' the deceased on 13.07.2019, but despite that, the complainant did not lodge the report, and he lodged the report on 16.07.2019 at 10:30 a.m. Nothing came on record about lodgment of the report of missing of the deceased by the complainant in Levies Thana. It has also come on record that the dead body of the deceased was recovered from the water bank of the Madrasa on 16.07.2019 at 6:30 a.m., and the FIR was lodged on, the same date at 10:30 a.m., with a delay of four hours from the recovery of dead body of the decesed. The lodgment of the FIR with delay by the complainant creates a reasonable doubt in the prosecution case. Reliance in this behalf is placed in the case of Mehmood Ahmed and 3 others v . The State and another (1995 SCMR 127 ).
10. So far as the alleged disclosures of appellants is concerned, it may be stated that as provided by Articles 37, 39 of the Qanun-e-Shahadat Order , 1984, a confession made by an accused person, while he is in police custody , is not admissible. However , if something related to the case is recovered or any fact is discovered in consequence of information conveyed by the accused person, then the information so received would be admissible in evidence to the extent of recovery if corroborated with other piece of- evidence within the purview of Article 40 of the Qanun-e- Shahadat Order , 1984 because then, the presumption would be towards its truthfulness but if nothing in consequence of the disclosure is recovered or discovered, then the information so received by itself would not be admissible.
11. Now turning towards the recovery of alleged rope and chappal of the deceased, according to PW-5 Bilal Khan, Levies Sepoy , on 31.07.2019 during the course of investigation that the accused/appellant disclosed about the murder of the deceased and on his pointation the motorcycle used, in the commission of the alleged offence was recovered from his house and further recovered a piece of rope and chappal of the deceased and plastic bag from .the place of occurrence and the same were taken into possession through recovery memo.
12. The PW-5 stated during cross examination that the recovered articles were not sealed. No sealed parcel was' made by the investigation agency , and the alleged rope and chapped are easily available in the village or at any place. There is also nothing on the file that the piece of rope was used/caused the death of the deceased. It is also imperative to note that recovery of the article cannot be termed as discovery , when it was not recovered from any hidden place and if in the normal course. Reliance in this context can be made on the case titled Mst. Askar Jan and others v . Muhammad Daud and others (2010 SCMR 1604 ).
13. The accused was arrested on 17.07.2019, and the alleged disclosed was made by, the appellant on 31.07.2019 with a delay of 14 days under the custody of the police which this not made in the presence of the Magistrate in the absence of any strong circumstantial piece of evidence is of no legal value.
14. So, we hold that the story of last seen cooked up by the prosecution is nothing but afterthought because the same does not appeal to the prudent mind. Even otherwise, evidence of last seen is the weakest type of evidence, unless corroborated with some independent piece of evidence it cannot be relied upon. Reliance in this regard is placed on the case of Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103). Moreover , the august Supreme Court of Pakistan in its recent judgment titled as Muhammad Abid v. The State and another (PLD 2018 Supreme Court 813 ) has given an exhaustive view about the theory of last seen which is reproduced as under:- "5. ...The theory of last seen together is one where two persons are 'seen togeth er' alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption can be drawn that the person alive is the author of the other's death. Time gap between the sighting and the occurrence should be such as to rule out possibility of somebody else committing the crime. The circumstance of the deceased being last seen in the company of the accused is not by itself sufficient to sustain the charge of murder . There must be evidence to link the accused with the murder of his companion, such as incrim inating facts as recovery , strong motive and the proximate time when they were last seen together and the time when the deceased was killed. Last seen evidence as circumstantial evidence must be incompatible with the innocence of the accused and should be accepted with great caution. It must be scrutinized minutely so that no plausible conclusion should be drawn there- from except guilt of the accused.
6. The foundation of the "last seen togeth er" theory is based on principles of proba bility and cause and connection and requires I. Cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused 2. Proximity of the crime scene.
3. Small time gap between the sighting and crime 4. No possibility of third person interference S. Motive. 6 Time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime."
15. The whole prosecution case is based upon circumstantial evidence. It is settled principle of law that to base conviction on circumstantial evidence there should be an interlinking chain of credible and cogent corroborative evidence available on the record, which needless to mention is totally missing in this case.
In view of the above discussion, we are of the view that the prosecution failed to prove the guilt of the accused/ appellant beyond the reasonable doubt. In case any doubt is created then the benefit will go to the accused not to the prosecution. The evidence collected by the prosecution is a tainted piece of evidence as such they do not corroborate with each other . We are of the opinion that the learned trial Judge was not justified in relying upon these pieces of tainted evidence for the conviction of the appellant. Accordingly , we allow the appeal, set aside the judgment and conviction of the appellan t, and he is at liberty if not warranted in any other case. The appeal is hereby accepted.
Hence, the Criminal Revision Petition No.(S) 36 of 2019 filed by the petitioner is dismissed.