ABDUL SHAKURUL SALAM, J.---This appeal by leave arises on the following circumstances:--
1. According to prosecution case in the night between 3/4-9-1984, Muhammad Ramzan, complainant (P.W. 1), his brothers Muhammad Azam and Muhammad Anwar (deceased) alongwith their family members were sleeping in their house. They heard knocking at the door. He and his brothers woke up. He called out who was outside. The person outside replied that he was Munawar Hussain alias Asghar Ali, a friend of Muhammad Anwar. He be sent out. He and his brothers came out. Munawar Hussain (appellant) said that he was taking Muhammad Anwar with him. Muhammad Anwar while going, asked the door to be kept open as he would be coming back.
They were half asleep when they heard about 1'O clock sound of firing from the road side. He and his brother Muhammad Azam came out but could see nothing. Both the brothers went back to sleep. About morning prayer time, he, his brother Muhammad Azam and cousin Rehmat Ali went out to ease, they saw at the metalled road their brother Muhammad Anwar lying in blood. Some unkown person had killed him by firing. They did not suspect anybody nor had they any enmity with anybody. Muhammad Ramzan, P.W.1, complainant lodged F.I.R. Exh.P.A. At Police Station Saddar Gujrat at 7-00 a.m. On 4-9-1984 which was recorded by Aman Ullah Bajwa. Being dissatisfied with the investigation, Muhammad Ramzan, complainant filed a private complaint before the Illaqa Magistrate on 7-5-1985 in which he mentioned that Muhammad Yousuf P.W.2 as an eye-witness.
The trial was held on the basis of the story given in the private complaint. Munawar Hussain alias Asghar Ali appellant was tried alongwith two others namely, Zafar Iqbal and Sardar Khan under section 302/34, P.P.C. All the three were found guilty by the Additional Sessions Judge, Gujrat vide his judgment, dated 22-9-1986 and he sentenced them to imprisonment for life and a fine of Rs.3,000 each, in default to further undergo 3 months' R.I. They were also ordered to make a payment of Rs.3,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, in default to further undergo R.I. For three months each. On the convicts' appeal, two of them namely, Zafar Iqbal and Sardar Khan. Were acquitted but .The appeal of the appellant Munawar Hussain was dismissed. Compensation under section 544-A was enhanced from Rs.3,000 to Rs.10,000. This is vide judgment of the learned Judge of the Lahore High Court, dated 1-1-1987.
2. At the leave stage it was argued on behalf of the appellant that "the High Court has maintained petitioner's conviction only on the basis of the testimony of Muhammad Ramzan complainant who has stated that it was accused-petitioner who had taken away the deceased with him on the night of the occurrence and has not relied on the testimony of the so-called eye-witness, Muhammad Yousaf P.W.2. He pointed out further that there is no evidence available on the record by way of recoveries or otherwise to connect the petitioner with the murder in question. The learned counsel submitted that the conviction of the petitioner cannot be maintained merely on the ground that the deceased was "last seen alive in the company 9f the accused it was further submitted "that when the statement of the accused-petitioner was recorded under section 342,-Cr.P.C., the said circumstance i.e. Taking away the deceased with him on the night of the occurrence, was not even put to him and, therefore, the evidence of Muhammad Ramzan, P.W. With regard` to the said allegation was inadmissible against the accused-petitioner".
Leave was granted to consider "whether the well-established principles relating to the appreciation of evidence in-criminal cases specially regarding the evidence of "last seen alive together" have been correctly applied by the High Court and also to the effect of the omission to put this piece of evidence against the petitioner to him while recording his statement under section 342, Cr.P.C. At the trial".
3. Learned counsel for the appellant has referred to the evidence of Muhammad Ramzan, P.W.1 and read out the following portions of his statement:--- "At about one and a half year back, I and my brother Anwar Hussain were sleeping in our house. At about mid-night time the accused Munawar Hussain knocked our door and told that he was coming straight from Kuwait and wanted to lay flowers over the grave of his wife. He took my brother Anwar Hussain alongwith him to such grave. After some time we went to sleep. Anwar Hussain deceased did not return to the house.
Munawar Hussain lives in Kuwait and his wife was Mst. Azara. All the accused had suspected Mst.
Azra having illicit relations with Anwar Hussain deceased. Anwar Hussain deceased and Munawar Hussain accused had remained intimate friends and were on family terms. Out of this suspicion, the accused in collusion with each other, have caused the murder of Anwar Hussain. The Police did not care for our contention and mishandled the case."
Learned counsel submitted that in view of the above statement, Anwar Hussain deceased would not have gone in the middle of the night with the appellant to lay flowers on the grave. Nor the complainant would have allowed, nor gone to sleep without care. Further, he reiterated the contentions raised at the leave granting stage.
4. Learned counsel for the State has admitted that there is no corroborative evidence as regards the `last seen' evidence and also that this was not put to the appellant when he was examined under section 342, Cr.P.C.
It is well-established law regarding the `last seen' evidence, that normally it requires corroboration.
Reference may be made In re: Karamatullah Khan PLD 1972 SC 15; Nazo alias Ali Nawaz v. The State 1977 SCMR 20 Rehmat alias Rhaman alias Waryam alias Badshah v. The State PLD 1977 SC 515.
The circumstance of last seen was not even put to the appellant when he was examined under section 342, Cr.P.C. After hearing the learned counsel for the parties we are of the view that the conviction of the appellant in the circumstances cannot be maintained. His appeal is, therefore, allowed. He shall be set at liberty forthwith if not required in any other case.