' ABDUL SHAKURUL SALAM, J.---This is an appeal by leave in Criminal Appeal No,602 of 1983 and Murder Reference No,172 of 1983 decided by a learned Division Bench of the Lahore High Court on 30-4-1985.
2. Umar Hayat P.W.6 lodged F.I.R. Ex.P.B. On 22-10-1981 at 5 p.m. At the Police Station Mot Mithan, District Sargodha saying that he is resident of Dera Aliana Dakhli Matila. He resides with his old mother who has very weak eye-sight. He is unmarried. He has a married sister Mst. Sahib Bibi whom he had brought alongwith her two children Mst. Iqbal Bibi aged 7/8 years and Mst. Naziran Bibi aged 3/4 years about 3/4 months ago for helping in the house. Today in the morning about 8/9 a.m. His niece Mst. Iqbal Bibi aged 7/8 years had gone from the house to ease herself in the nearby sugarcane field. She did not come back till afternoon. He alongwith his cousin Abdullah and Manzoor son of Jalal Muslim Sheikh started search. About 3-00 p.m. From inside the sugarcane field belonging to his uncle Mirza they found his niece Mst. Iqbal Bibi lying dead. Her Shalwar having been removed was lying nearby. There were injuries on the mouth, on both sides of neck and chin.
Blood was also coming out from her private parts. Some cruel person had committed rape and killed by strangulation his niece. The deceased had ear-rings which had been taken away.
3. After registration of the case Mashir Ali Shah, S.I., P.W.10 proceeded to the place where dead body was lying. He prepared injury statement Ex.P.E. And inquest report Ex.P.F. And sent the dead body for post-mortem examination. He recorded the statement of Manzoor Ahmed P.W.7 on 23-10-1981 and of Muhammad Anwar P.W.8 and Ghulam Ali alias Gulla P.W.9 on 24-10-1981. He arrested the appellant on 5-11-1981. After completing the investigation, the appellant was put to trial.
4. At the trial besides Umar Hayat complainant who reiterated the contents of F.I.R. Ex.P.B. Lodged by him and the medical evidence P.W.3, Muhammad Yousuf appeared to depose about the arrival of the police at the place of occurrence and recovery of Shalwar of the deceased. P.W.7 Manzoor deposed having seen the deceased and the appellant standing near the sugarcane field of Mirza at about 8/9 a.m. On the day of occurrence i,e, 22-10-1981. P.W. 8 Muhammad Anwar deposed that while Ghulam All P.W.9 was sitting at his Dera the appellant came at about 9 p.m. On 24-10-1981 and confessed having committed rape on Mst. Lqbal Bibi and then killing her and sought his help.
He asked the appellant to come next day which he did not but came on 5-11-1981 when the witnesses produced the appellant at the police station. Ghulam Ali P.W.9 supported him. The investigating officer Mashir All Shah, S.I., appeared as P.W-.10 and deposed about the investigation, recording of statement of Manzoor P.W.7 on 2340-1981 and of Muhammad Anwar P.W.8 and Ghulam Ali P.W. 9 on 24-10-1981 and arrest of the appellant on 5-11-1981.
5. Appellant when examined under section 342 Cr.P.C. Denied the allegations against him and stated that his having been seen with the deceased before the occurrence was fabrication, denied having made any confession and gave the following statement in reply to question No,8 why this case against him:-- "I as well as Manzoor son of Jallah caste Muslim Sheikh, Mst. Sahib Bibi wife of Riaz Muslim Sheikh and Mst. Jallo wife of Manzoor Muslim Sheikh were, resident at the Dera of Ummar Hayat P.W. When Mst. Iqbal Bibi deceased was known to be missing I participated in searching for her and remained present at the Dera and the surrounding area, busy in searching for her dead body. When her dead body was found on the pointing out of Mst. Sahib Bibi and Mst. Jallo Muslim Sheikh, mentioned above, the police were informed. The police apprehended the above-mentioned Muslim Sheikh on suspicion. Likewise, I and the other servants and moeens living at the Dera of Ummar Hayat P.W.
Were also detained by the police. Interrogation continued for more than a week. At last Musliin Sheikh was first off under the influence of some influential Zamindars but I being a poor man was finally implicated in this case on the basis of false and fabricated evidence when the police failed to trace out the real culprits."
' In reply to question 9 has he to say anything else, he said:- "I am innocent. Muhammad Anwar P.W. Who is a dismissed police constable falsely involved me in this case in order of help the police in showing that the case had not remained untraced."
6. The learned trial Court found the appellant guilty under section 302, P.P.C. And sentenced him to death subject to confirmation plus fine of Rs,10,000 in default 2 years' R.I. And under section 404 P.P.C. And sentenced him to 3 years' R.I. Plus fine of Rs,2,000 in default nine months' R.I. This is vide order dated 1-10-1983.
7. On appeal the learned High Court rejected the evidence of P.W.8 Muhammad Anwar and P.W.9 Ghulam Ali about the extra-judicial confession but relying on the evidence of P.W.7 Manzoor who had deposed about having seen the deceased and the appellant in the morning near the sugarcane and medical evidence, dismissed the appeal and confirmed the death sentence. This is vide order dated 30-4-1985.
8. At the leave stage it was urged on behalf of the appellant that "the mere fact that the accused- petitioner was seen standing near the deceased at about 9 a.m. On the morning of the occurrence is not by itself sufficient to hold that he had been proved to be the murderer beyond any shadow of doubt, without any further corroboration by recovery of articles belonging to the deceased or the extra-judicial confession (which has already been disbelieved by the Courts below)." Leave was granted to consider "whether the well-established principles of appreciation of evidence in criminal cases, have been followed in this case."
9. Learned counsel for the appellant has submitted that the last seen evidence has been tendered by Manzoor P.W.7. According to him he had "informed Umar Hayat (the complainant) and Anwar P.Ws. About his having seen the deceased and the accused together shortly before Degarwela and after late Peshiwela. I made the statement before the Police at the same time when I had informed Anwar and Umar Hayat P.Ws. Because the police had reached the spot simultaneously with my arrival there." He denied that his statement was recorded the next day of the occurrence viz. 23-10- 1981. He was duly confronted with his statement Ex.D A. Learned counsel also pointed out that the witness had admitted that he was a brother-in-law of Muhammad Anwar P.W. And a first cousin of the complainant Umar Hayat. He then referred to the statement of Muhammad Yousaf P.W.3 who is the first cousin of the complainant Umar Hayat and Muhammad Anwar P.Ws. The witness had said that he and other witnesses were present when the police recovered the Shalwar from the place of occurrence, that is, on 2-10-1981. He further stated that the appellant "was also present there at that time and he remained present at the Dera of the complainant till he was arrested by police about 13 days after the occurrence. He used to reside at the said Dera and was arrested from there. He continued doing routine work for Umar Hayat complainant till he was arrested." It was submitted that if the testimon'y of Manzoor P.W.7 about the last seen were correct and he had informed the complainant on the day of occurrence or even a day later, the appellant who was around and with the complainant would not have been left to be arrested 13 days later.
10. Learned counsel for the State has supported the judgment under appeal.
11. At the outset it may be noted that there is no eye-witness. Nor any recovery has been effected from the appellant to connect him with commission of the crime. The learned Division Bench of the High Court has rejected the evidence of P.W. 8 Muhammad Anwar and Ghulam Ali P.W.9 regarding extra-judicial confession on the ground that if the appellant had done so on 24-10-1981 they would have reported the matter to the police and not waited till 5-11-1981 when he reappeared and was produced before the police. Further it may by noted that P.W.8 Muhammad Anwar is first cousin of the complainant and so also is of Ghulam Ali P.W.9. He admitted that he remained a police constable but said that he had resigned and denied the suggestion that he was dismssed. P.W,9 Ghulam Ali admitted being a cousin of Muhammad Anwar P.W. 8 and complainant Umar Hayat P.W.6, and also that the mother of the deceased was his first cousin. Lastly, according to P.W.3 Muhammad Yousuf who is a first cousin of Muhammad Anwar P.W.8 and complainant Umar Hayat P.W.6 and Phopizad (father's sister's son) of Ghulam Ali P.W.9, the appellant was present at the time of recovery of the Shalwar of the deceased by the police i,e, on 22-10-1981. He remained in the Dera of the complainant and continued working there until he was arrested on 5-11-1981. If the two witnesses of the extra-judicial confession P.Ws. 8 and 9 were right that the appellant had confessed before them on 24-10-1981 they would have certainly told their cousin Umar Hayat complainant about that and the latter would have got the appellant arrested straightaway and not allowed him to remain in his Dera and work there until 5-11-1981 when he was arrested. In all the circumstances we are of the view that the learned High Court rightly rejected the evidence regarding the extra-judicial confession.
12. The learned High Court relied on medical evidence and "last seen" evidence furnished by P.W.7 Manzoor son of Bahawala for upholding the conviction of the appellant. Medical evidence by itself would not connect the appellant with the crime. Therefore, it is the "last seen" evidence which has led to maintaining the conviction of the appellant. In this behalf reference may be made to precedents which lay down the principles governing the efficacy of such evidence. In the case of Karamat Hussain v. State, 1972 SCM R 15 learned Chief Justice of this Court, Mr. Justice Ha.Moodur Rehman at p. 19 of the report held that "if the extra-judicial confessions are disbelieved and the recoveries are not connected with the crime in question, then it is clear that, in a case of this nature, where the motive is of an extremely weak nature, no conviction can be based merely on the evidence of the fact that the deceased was last seen together with the appellant. In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused." In the case in hand, extra-judicial confession has been disbelieved, no recoveries were effected from the appellant nor any motive alleged against him. In the case of Nazo v. State 1977 SCM R 20 it was held that the evidence of a witness who had some connection with the deceased about having last seen the deceased and the accused requires corroboration. In the present case P.W.7 Manzoor who deposed about last seeing the deceased and the appellant is a first cousin of the complainant and there is not corroboration of his evidence whatsoever. In the case of Rehmat v. State, PLD 1977 SC 515 after a survey of precedents, the learned Chief Justice of this Court Mr. Justice Muhammad Yaqub Ali observed that: "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. 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." In the present case there are no recoveries made from the appellant, nor motive alleged, though the element of proximity is there. Yet according to the prosecution evidence itself rather than the explanation of the appellant, the appellant remained at the Dera of the complainant Umar Hayat P.W.6 and continued doing his routine work from the day of occurrence 22-10-1981 until he was arrested on 5-11-1981 according to P.W.3, a first cousin of the complainant and if the witness of the 'last seen' P.W.7 Manzoor had informed the complainant of last seeing the deceased and the appellant the seme day of occurrence viz. 22-10-1981 as he deposed, then the complainant would not have allowed the appellant to work at his Dera and would have handed him over to the police straightaway. Further, the witness is a first cousin of the complainant and his testimony required corroboration as laid down in Nazo v. State 1977 SCM R 20 which is not there at all. The learned High Court fell in error in proceeding to examine this aspect of the case by holding that since there was no enmity with the appellant, the ipsi dixit of the witness of the last seen together P.W.7 Manzoor was sufficient to uphold the conviction of the appellant. Absence of the first was no guarantee about the truth of the latter. The evidence of Manzoor P.W.7 about last seen together needed examination, analysis and critical appreciation. He was an interested witness being cousin of the complainant. If his testimony were correct, neither he nor his relative witnesses and certainly not his cousin complainant would have kept the appellant in his Dera and allowed him to continue with his routine work for the next thirteen days. The conduct of all concerned would be most unnatural.
Therefore, the solitary statement of P.W.7 of last seen together in all the circumstances of the case cannot form safe basis for maintaining the conviction of the appellant in accordance with the principles laid down in the precedent cases noted above and the state of evidence on record.
Hence, his appeal is allowed. His conviction and sentence are set aside. He shall be set at liberty forthwith if not required in any other case.