ABDUL HAMEED BALOCH, J. This Criminal Acquittal Appeal is directed against the judgment dated 11.12.2020 ("impugned judgment") passed by the Additional Sessions Judge/MCTC, Harnai ("trial Court"), whereby the private respondent/accused was acquitted of the charge in case FIR No. 34/2020, lodged with Police Station Saddar Harnai, under sections 302, 34, P.P.C.
2. Brief facts of the prosecution case are that on 14.09.2020 the complainant Abdul Qadeem Shah lodged the referred FIR against unknown accused persons, alleging therein that between the midnight of 13th and 14th September, 2020 his brother namely Zahid Shah did not return to house, as such they started his search and lastly found his dead body over a protection band.
3. After submission of challan and full dressed trial, the trial court vide impugned judgment acquitted the private respondent of the charge. Hence this appeal.
4. The learned counsel for the appellant/complainant contended that the impugned judgment, passed by the trial court is illegal, perverse based on misreading and non-appraisal of evidence, as there is sufficient incriminating material available on record but the trial court overlooked the same.
5. We have heard the learned counsel for the appellant and have perused the record. The record reveals that on 14.09.2020 on the written application of complainant the FIR was lodged against unknown accused persons and after six days of lodgment of FIR, the complainant submitting an affidavit nominated the accused/private respondent. After completion of investigation the investigating officer submitted challan. In order to substantiate the accusation, the prosecution examined nine witnesses. PWs-8, 10 and 11 conducted the investigation. PW-1 Abdul Qadeem Shah reiterated the content of application as Ex-P/1-A. The complainant subsequently filed an affidavit and nominated the accused. PW-2 Tariq Shah is the witnesses who handed over his SIM to Abdul Wadood. PW-3 Zahir Shah is last seen witness. PW-4 Maroof Shah produced 22 qitat of telephone data as Ex-P/4-A. PW-5 Dr. Wazir Khan Medical Officer DHQ Harnai produced MLC of deceased as Ex-P/5-A. PW-6 Mumtaz Patwari produced site plan Ex-P/6-A. PW-7 Noor-ud-Din produced blood- stained shirt of deceased as Ex-P/7-A. PW-8 Muhammad Hussain produced FIR as Ex-P/8-A, inquest report Ex-P/8-C, subsequent application of complainant Ex-P/8-J. PW-11 Investigating officer of crime branch produced FSL report Ex-P/11-B.
6. The prosecution case rest on circumstantial evidence, consisting upon last seen evidence, FSL report, medical evidence. The complainant nominated the accused/respondent through subsequent application Ex-P/8-J, but failed to describe the source of information in respect of involvement of accused/respondent in the commission of office. Any subsequent application made during the investigation to the police would neither be equated with the FIR nor as part of the FIR. In this regard reliance is placed on the case of Muhammad Saleem v. State 2010 YLR 2115.
7. So far FSL report is concerned, the FSL report is corroborative evidence. The conviction cannot be awarded only on the basis of corroborative evidence without substantive piece of evidence. It is settled principle of law that one tainted piece of evidence cannot corroborate another tainted piece of evidence. In this regard reliance is placed on the case of Muhammad Ali v. State 2005 PCr.LJ 830.
8. Now adverting to the medical evidence, which is meant to test the veracity of ocular account.
The ocular testimony and corroborative evidence are to read together. The medical evidence has confirmed the unnatural death of deceased. The medical evidence is only for confirmation of ocular evidence regarding seat of injury, weapon and etc., but medical evidence itself does not constitute any corroboration qua the identity of accused to prove culpability. When the case hinges on circumstantial evidence, utmost case is required to reach the just conclusion. The circumstantial evidence is like a chain and every chain should be linked with the other, if any chain misses, then its benefit should be given to accused. In this regard reference can be made to case of Muhammad Sharif v. State 1997 SCMR 866. In the case of Naveed Asgher v. State PLD 2021 SC 600, it has been held as under:
31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through. some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness Or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person.32 Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners.
35. Before parting with the judgment, we feel constrained to. observe though at the cost of some repetition but for the sake of clarity that in a criminal trial an accused person cannot be convicted on the basis of mere "suspicion" or "probability" unless and until the charge against him is "proved beyond reasonable doubt", a standard of proof required in criminal cases in almost all common law jurisdictions. An accused person cannot be deprived of his constitutional right38 to be dealt with in accordance with law, merely because he is alleged to have committed a gruesome and heinous offence. The zeal to punish an offender even in derogation or violation of the law would blur the distinction between arbitrary decisions and lawful judgments. No doubt, duty of the courts is to administer justice; but this duty is, to be performed in accordance with the law and not otherwise. The mandatory requirements of law cannot be ignored by labelling them as technicalities in pursuit of the subjective administration of justice. One guilty person should not be taken to task at the sacrifice of the very basis of a democratic and civilised society, i.e., the rule of law. Tolerating acquittal of some guilty whose guilt is not proved under the law is the price which the society is to pay for the protection of their invaluable constitutional right to be treated in accordance with the law. Otherwise, every person will have to bear peril of being dealt with under the personal whims of the persons sitting in executive or judicial offices, which they in their own wisdom and subjective assessm ent consider good for the society.
9. So far, the last seen evidence is concerned. The last seen evidence was generally regarded a weak type of evidence unless corroborated by other strong piece of evidence. Punishment of capital charge would not be based on last seen evidence. The PW-3 claimed to have seen the deceased accompanying with accused. Said witness was chance witness. The prosecution could not conclusively prove that the deceased was killed shortly after alleged last seen. In case of circumstantial evidence conviction could not be recorded on the strength of last seen evidence. In this regard reliance is placed on the case of Sanaullah v. State 2020 MLD 659, whereby it has been held as under: "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 basis of evidence of last seen. The statement of PW-2 does not find any support from alleged confessional statement 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."
10. The standard of appreciation of evidence in appeal against the acquittal is quite different. The order of acquittal of accused by court of competent jurisdiction carries doubt presumption of innocence and the court seized with acquittal appeal are obliged to be very careful in dislodging the presumption. Reliance is placed on the case of Mst. Anwar Begum v. Akhtar Hussain Alias Kaka 2017 SCMR 1710, whereby it has been held as under:
6. In criminal cases every accused is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. Very strong and cogent reasons are required to dislodge such presumption. The reasons given by the learned High Court, in paras 9 and 11 of the impugned judgment, have not been found by us to be arbitrary, fanciful or capricious warranting interference by this Court.
11. The appellant has failed to point out any illegality and irregularity in the judgment impugned.
The trial Court has properly appreciated the statements of prosecution witnesses and has come to just conclusion. The findings of acquittal are not perverse and ridiculous. The trial court has passed a well-reasoned judgment which warrants no interference by this court.
Thus, in view of above, the criminal acquittal appeal is dismissed in limine.