KHURSHID vs THE STATE

1. ' AJMAL MIAN, J.--By a short order of majority of even date,. We have dismissed the above appeal arising out of a Jail Petition. These are the reasons pursuant to the aforesaid short order.

2. The appellant, Khurshid and the co-convict, Habibur Rehman, were convicted by the Additional Sessions Judge-I, Haripur, in Sessions Case No,15/8 of 1989 under section 302/34, P.P.C. And were awarded death sentence and to Tay fine of Rs,20,000 each which, if recovered, was to be paid to the legal heirs of the deceased. Muhammad Fayyaz son of Feroz Muhammad, through his judgment dated 3-7-1991. They were also convicted under section 377/34, P.P.C. And were awarded sentence of five years' R.I. Each and to pay a fine of Rs,5,000 each, or in default of payment of fine, to undergo further R.I. Of one year. Against the above judgment, the two convicts filed Criminal Appeal No,23 of 1991, whereas the learned Additional Sessions Judge, Haripur, made a reference, namely, Murder Reference No,11 of 1991 under section 374, Cr.P.C. The deceased's father and complainant, Feroz Muhammad, filed Criminal Revision No,26 of 1991 for the enhancement of sentence on the above second count under section 377, P.P.C. He also prayed for payment of compensation under section 544-A, Cr.P.C.

3. The above three matters were taken up by a Division Bench of the Peshawar High Court and were disposed of by a common judgment dated 17-1-1994, whereby death sentence awarded under section 302/34, P.P.C. Was substituted by life imprisonment in respect of both the convicts. The convicts were ordered to pay compensation under section 544-A, Cr.P.C. Amounting to Rs,20,000 each to the legal heirs of the deceased. They were also given the benefit of section 382, Cr.P.C. The conviction and sentence in respect of above second count were maintained.

4. The present appellant sent a Jail Petition which was granted to consider the question, whether the evidence brought on record was sufficiently strong to connect the appellant with the crimes beyond reasonable doubt. It seems that the other co-convict, Habibur Rehman, has not sent any Jail Petition nor he has filed any Criminal Petition.

5. The prosecution case was that the present appellant and the co-convict, Habibur Rehman, hired a Suzuki Pick-up No,ADA-5237 at Pathan Chowk, which was owned by P.W.7 Banaras Khan and of which the deceased was the driver. On 15-5-1988 in the evening at about 6-30 p.m. The deceased before taking the appellant and the co-convict to the place of destination came to his father's house with the two convicts, who were sitting with him on the front seat of the Suzuki Pick-up, and informed him that he was hired by the above two convicts and he was going out. It was also the prosecution case that at about 10-00 p.m. The appellant and the co-convict along with Mirza Shaukat, Advocate, came. To the Police Station Kot Najibullah in the above Suzuki Pickup, where Maghfoor-ur-Rehman, S.H.O was present and who was about to leave for patrolling. They informed him at about 4-00 p.m. The same evening that the two convicts, present appellant Khurshid and his co-convict Habibur Rehman, had boarded the above Suzuki Pick-up for journey to Rawalpindi. It was further alleged that besides them three or four persons, whom they did not know, also boarded the said Suzuki Pick-up. It was also alleged that when Suzuki Pick-up crossed the Village Mang, the driver turned the vehicle towards the jungle where a scuffle started between the driver on the one side and the aforesaid unknown persons on the. Other side and in that process the appellant received injuries in the shape of fractures of his arm and leg. Maghfoorur Rehman, S.H.O. Prepared the injury sheet of the appellant and sent him to the Civil Hospital for treatment; whereas he took the co-convict Habibur Rehman to the place of incident which was located in Jungle 'Kali Tarar' where he found the dead body of deceased Muhammad Fayyaz lying in a ditch. On examination he found stab injuries on the person of the deceased which caused the death. He sent the dead body to the hospital through P.W. Ali Asghar, F.C. No,1190. After visiting the site he was of the view that the offence was committed by the appellant and the co-convict. He, instead of recording the F.I.R. As stated by the appellant and the co-convict, prepared a "Murasila" which he sent through Constable Muhammad Sabir Sultan, F.C. No,1160 to the S.H.O. Police Station Khanpur, within whose jurisdiction the place of occurrence was located. On the basis of the above "Murasila", F.I.R. No,98 was registered on 16-5-1988 at 1-00 a.m. In the morning by Fazalur Rehman, M.H.C. Police Statfon Khanpur. The investigation was conducted besides above Maghfoorur Rehman by P.W.12 Muhammad Fareed, who prepared various "Murasilas" and obtained urethral and paraurethral swa bs of the two convicts. P.W.I2 Muhammad Fareed also secured blood-stained clothes of the two convicts and secured blood-stained earth as well. The co-convict Habibur Rehman led to the recovery of a blood-stained dagger from a bush in the jungle. All the above articles were sealed in parcels. The appellant was examined by P.W.11 Dr. Tariq Qureshi, whereas the postmortem of the deceased was carried out by P.W. 13 Dr. Muhammad Ikramullah, who found the following external and internal injuries on the person of the deceased:-- "External injuries:

(1) Stab wound right cheek 1 in number 1" x 1/2" x skin and muscle deep, bled profusely.

(2) Stab wounds right chest back side two in number penetrating the thoracic cavity 1-1/2" x 1" and 1" x 1/2".

(3) Stab wounds Tight buttock four in number skin and muscle deep bled profusely of different sizes 1/2-2" and 3/4-1".

(4) Stab wound right thigh back skin and muscle deep bled profusely 1" x 1/2".

(5) Stab wound left buttock skin and muscle deep 2" x 1/2".

(6) Stab wound on epigatrium penetrating the abdominal cavity.

(7) Stab wound right arm one in number 1" x 1/2".

(8) Stab wound left thigh lateral aspect two in imber 2" x 1/2".

2. ' On internal examination the doctor found throax wall, right pleaurae, right lung, abdominal walls, peritonium, mouth and liver injured. Stomach was intact and full of food material."

3. ' The swa bs were taken from the anus of the deceased. The deceased's clothes were also secured.

4. The same were sealed in parcels. The above sealed parcels containing above items were sent to the Chemical Examiner, who submitted his report in the affirmative. Prosecution produced as many as 13 witnesses, whereas the defence examined one witness D.W.1. The two convicts in their statements under section 342, Cr.P.C. Denied the commission of the above two offences for which they were charged. The plea raised by them was that the police in order to save their skin falsely implicated them in the case.

6. There was no direct evidence in the case. However, the trial Court, after analysing the evidence brought before it, concluded that on the basis of the same the prosecution was able to prove the case against the appellant and the co-convict, Habibur Rehman, beyond reasonable doubt. It, accordingly, through the above judgment dated 3-7-1991 convicted the two accused and awarded the aforesaid sentences. The learned Division Bench of the High Court re-appraised the circumstantial evidence and concluded that there was more than sufficient circumstantial evidence to connect the appellant and the co-convict with the commission of above two offences.

5. It also examined the defence plea in juxtaposition with the circumstantial evidence and concluded as follows:-- "(12)The appellants have adopted a peculiar story with regard to happening on the spot at the time of occurrence after admitting their presence on the spot at the relevant time. When we put the two versions in juxtaposition we do not feel any hesitation in rejecting the version of the appellants on the reasons that in the first instance how one can believe that three/four persons boarded the Suzuki with the intention of committing robbery and they were empty-handed and yet they had the courage to rob young men equal in number with them. Secondly, it is interesting to note that no one has been robbed nor have the appellants alleged that money or other valuable was taken away from them by the so-called 'unkown culprits', so much so that the Suzuki Van too, was not snatched away although it was in perfect working condition as it was driven from the spot to the hospital. The guilty conscience of the appellants is further proved by the fact that instead of informing police or going to the hospital, which should have been the natural conduct in ordinary course of life, they approached a Practising Lawyer which fact leads on to the irresistible conclusion that they had something serious on their mind which they wanted to set right before approaching the law enforcing agency. Furthermore, they have stated that some cases of Haraba had taken place and in order to cover the failure in unearthing the culprits in these cases the I.O.

6. Dishonestly mounted the present case over the heads of the appellants. This proposition is totally devoid of facts because the appellants have brought nothing concrete on record to support this contention. Above all that, it does not appeal to common sense that the I.O. Would have concocted a false case against the appellants when there has been no enmity between them nor will this case of murder and sodomy give any benefit in a case of Haraba committed earlier."

7. ' Besides the, above reasoning, the High Court has also relied upon the following:--

(i) That the deceased was last seen with the two accused persons, which fact was testified by.

8. P.W.8 Muhammad Feroz Khan, who identified the' two accused persons on the very night when he saw them in the hospital;

(ii) that the seats of the injuries Nos.3 and 5 were on right buttock and left buttock respectively, whereas injury No,4 was on the back of right thigh and injury No,8 on the lateral aspect of left thigh, which indicated that the deceased resisted the attempt on the part of the two accused to force him to lie prostrate on the ground and in that process, the accused inflicted the above injuries and the appellant received his injury;

(iii) that the clothes secured from the two accused persons and the deceased persons and the deceased and urethral and paraurethral swabs of the two accused persons and the swabs obtained from the anus of the deceased, according to the Chemical Examiner's Report, contained semen and the clothes were also blood-stained. The blood-stains on the accused persons' clothes were of the group of the deceased;

(iv) that P. W.11 Dr. Tariq Qureshi on the query of the Investigating Officer certified that present appellant was aged about 26 years and was capable of performing sexual intercourse and his penis was carrying the marks of rape at his time of examination;

(v) that the co-convict Habibur Rehman led to the recovery of the dead body of the deceased from jungle;

(vi) that the co-convict Habibur Rehman led to the recovery of bloodstained dagger from a bush in the jungle, which was not accessible to the public as it was at an isolated place as indicated from the evidence on record; and 4'(vii) that the two accused persons along with the above Advocate, Mirza Shaukat, came to the Police Station in the aforesaid Suzuki Pick-up, of which the deceased was the driver.

9. 7 The learned counsel, Mr. Sardar Muhammad Ghazi, who has appeared for the appellant, is unable to demonstrate that the reasoning found favour with the two Courts below suffer from any legal infirmity or the inferences drawn by them from the circumstantial evidence brought on record are not warranted in law.

8. Before the High Court it was urged that there were no marks or violence on the anus of the deceased and, therefore, the offence of sodomy was not committed. The above contention was repelled by the High Court as under:--

(18) The contention of the learned counsel for the appellants, while quoting from Modi Text Book, that in case of commission of sodomy there should have been internal and external injury on the anus of the deceased or at least there should have been laceration, lubrication and marks of violence on the anus of the deceased, is not of much force because it has never been alleged by the prosecution that the aggressors had practically succeeded in penetrating their respective penises into the anus of the deceased. When we see the whole scheme of happenings it appears that, through and through, there was a struggle between the deceased and the assailants. This is apparently because the assailants (the appellants) were trying to overpower the deceased for commission of sodomy while the latter was resisting this attempt with the result that the appellant chose to inflict the dagger-blows on him. In such a situation it was humanly not possible for the appellants to effect penetration into the anus. So far as the offence of sodomy is concerned it is complete even without penetration into the anus."

9. We now revert to the case-law in order to examine, whether the judgment under appeal is in consonance with the law enunciated by this Court as to the evidentiary value of circumstantial evidence.

(i) Allah Ditta v. The State PLD 1958 SC (Pak.) 290; ' in which the facts were that the appellant was convicted for the murder of Bahara as he suspected that his wife Mst. Miran had illicit relations with him. The deceased was last seen inter alia with the appellant. The appellant also led to the recovery of the dead body. He also produced a spear-blade which could have been used for causing injuries. This Court, while maintaining the conviction by the Courts below, observed as follows:-- "When in addition, Allah Ditta on the same day produced the spear-blade which is a weapon which could have been used for causing the injuries found on the dead body, it seems to us that bearing in mind the very natural way in which all the evidence in the case has appeared, without loss of time or delay such as might indicate the possibility of fabrication a chain of evidence is established against him upon which a strong case for direct participation in the murder of Bahara can justly be based. In view of the fact that all the evidence is circumstantial it is necessary that cumulatively its effect should be to exclude any reasonable hypothesis of the innocence of the accused. Here, Allah Ditta made no attempt to raise any plea in defence beyond that of mere denial, or to rebut the evidence led against him. The learned counsel on his behalf attempted to put forth a hypothesis that, the motive apart, the remaining facts established against Allah Ditta might prove no more than that he had received information of the location of the dead body and of the spear from some actual participants in the crime, say one of his brother-in-law. On this point, the trial Judge has remarked as follows:-- 'How could he by any chance know that the dead body was buried at that place and the spear- blade was lying at another place particularly when the land where the dead body was buried and the land on which the was standing were neither in his occupation nor owned by him."

(ii) The State v. Manzoor Ahmad PLD 1966 SC 664; ' In the above case, the respondent, Manzoor Ahmad, was convicted for the murder of Shirin Khan by the trial Court. He was sentenced to death by the trial Court on the basis of circumstantial evidence. The prosecution had relied upon the following facts:-- "(1) that Manzoor Ahmad was carrying on a love affair with Saadat Sultana and wanted at one time to marry her,

(2) that as his proposal for the hand of the girl was turned down and she was betrothed to deceased, there was serious jealousy between him and the deceased, particularly, since the Mangni of Mst. Saadat Sultana;

(3) that the girl was even thereafter writing to him and meeting him and that he was not discouraging her from doing so;

(4) that some letters and photographs written by the girl were still in his possession and the deceased was keen to get them back;

(5) that on the day in question the respondent was in exclusive occupation of the room in Siraj Building, as Zakir Hussain had left for Montgomery on the 27th of February, 1959, and did not return till after the murder;

(6) that the respondent on the 1st of March, 1959, called the deceased from the house of his maternal-uncle and was seen entering Siraj Building soon after 11 or 11-30 a.m. Along with the deceased;

(7) that the respondent was about an hour or so later seen to leave the building alone;

(8) that Shirin Khan was last seen alive in the company of the respondent when they both entered Siraj Building;

(9) that the dead body of deceased was found in the room in occupation of Manzoor at about 10 p.m. Of the same day, and .

(10) that the respondent absconded from Lahore leaving his belongings in the room occupied by him and remained absconding for over two years for which he has offered no satisfactory explanation."

10. ' However, the High Court upon appeal set aside the above conviction. This Court allowed the acquittal appeal and convicted the respondent under section 304, Part -I, P.P.C. And awarded seven years' R.I. Hamoodur Rahman, J. (as his Lordship then was) commented upon as follows on the question as to how a Court should examine the circumstantial evidence in order to ascertain the factum, whether the charge has been proved or "Even in a case of this kind where there is no direct evidence to show as to in what precise manner the victim came to be killed the Court has yet to discharge its onerous duty of determining whether the death was caused by the felonious act of some other persons and if so, what offence, if any, has been committed by such a person. It is not sufficient in such a case to say that since there is no direct evidence to connect any one with the felonious act the guilt cannot be fixed. It is precisely in such cases that I conceive it to be duty of the Court to examine the probabilities in the light of the indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place the articles found there, the motive for the crime and the other surrounding circumstances proved. This is what I now propose to do."

(iii) Allan ditto v. The State 1968 SCM R 378; in which the conviction of the petitioner under section 3p2, P.P.C. Was founded on the following circumstantial evidence:--

(i) that the deceased was last seen with the accused;

(ii) that the accused had the exclusive knowledge of place where body of the deceased was buried;

(iii) that recovery of articles of deceased at the instance of the accused; and

(iv) that the clothes secured from the person of the accused stained with blood.

11. ' This Court, while declining leave to appeal, concluded as under:- "The learned counsel has pointed out that the place where the dead body was lying buried, had been freshly sprinkled with water and two fingers were visible, hence it could have been easily seen by any one passing by that way. He has, therefore, attempted to argue that the story that the dead body was recovered at the instance of the petitioner was false. He has also contended that the other circumstances which the Courts below relied were also not sufficient to establish that this petitioner was responsible for this murder.

12. ' We are unable to accept the above contentions. We are satisfied that the deceased was last seen with the petitioner; that the petitioner has exclusive knowledge of the place where the body was lying buried; that the sleepers of the deceased were recovered from the well at his instance and that human blood present on the clothes that were secured from his person. Courts below have rightly held that the above circumstances fully bring home the charge of murder to the petitioner."

(iv) Allah Ditta v. The Crown 1969 SCM R. 558; ' in which the facts were that the appellant was convicted for the murder of Mst. Sairan on the basis of circumstantial evidence that the deceased was last seen besides having motive. The background of the case was that a few days before the material date Mst. Sairan had sold a buffalo on credit to the appellant and that at the time when she met her death, she was attempting to get the buffalo back under pressure of her parents. The same was recovered by her father independently on the morning of the date of incident. The body of Mst. Sairan was found after some delay from the jungle. She was allegedly seen entering in the jungle in the company of the appellant. This Court maintained the above conviction and while dismissing the appeal observed as follows:- "Msf. Sairan went on towards the well, and Fajja proceeding on his way, looked back after covering another 100 Karams, probably in order to see if Allah Ditta was following him. It was then that he saw Allah Ditta and Mst. Sairan standing together, nor far from the well, and quite evidently, his identification of the two persons is worthy of implicit acceptance. The time coinciding with that at which Sher Muhammad and his companions saw the couple entering the Jungle, even if these three persons could not be absolutely sure of the identity of the woman, since they were certain of the identity of Allah Ditta, their testimony read with that of Fajja places the matter beyond doubt.

13. His reticence towards the deceased's brother may well have been due to the suggestion of her adultery, which receives support from the fact that her trousers were found at a distance from the body.

14. ' Other circumstances of implication have also been accepted by the High Court, but with these it is unnecessary for us to deal. The two matters we have dealt with, coupled with Allah Ditta's failure to furnish an explanation for the disappearance of Mst. Sairan who was last seen alive in his company he denied the allegation are in our view amply sufficient to sustain the findings of the Courts below, and we accordingly dismiss the appeal."

10. From the above reports, it is evident that the circumstance, namely, that the deceased was last seen with the accused persons is a reliable piece of evidence if corroborated by other pieces of circumstantial evidence which are interlinked and which clearly connect the accused persons with the commission of the offence charged with. In the present case the quantum and 'the nature of circumstantial evidence is far better than the cases referred to hereinabove. In the case of The State v. Manzoor Ahmad (supra), this Court has even set aside an acquittal judgment of the High Court though the conviction was founded on the circumstantial evidence which included inter alia the fact that the deceased was last seen with the accused person.

11. I may observe that while appraising the circumstantial evidence the Court is to keep in mind the location of the incident If the place of incident is a place where no witness was available and the accused had the exclusive knowledge about the incident, the simpliciter denial on the part of the accused will not be sufficient to nullify the circumstantial evidence of the nature which directly connects him with the commission of the offence charged with. But he should raise a plea of the nature which on being tested on the touchstone of probabilities warrants a reasonable hypothesis of the accused's innocence.

15. I may further observe that in criminal cases though the Courts are supposed to follow the well- settled principles of Criminal Jurisprudence, namely, that an accused person is presumed to be innocent that the prosecution is to prove a criminal case against an accused person beyond reasonable doubt and in case two views are possible; the view which favours the accused person, should be preferred; and that all benefit of doubts should be extended to the accused, by, at the same time, the Courts should also take notice of the changing circumstances of the present days.

16. Even in cases where eye-witnesses are available they refuse to appear as witnesses in support of the prosecution case: either because of fear or on account of being won over by the accused party. The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the investigating agency/prosecution, provided the same have not prejudiced the accused in the fair trial. The people are losing faith in the criminal judicial system for the reason that in most of the criminal cases the criminals get away without being punished on technicalities.

12. I am of the view that the two Courts have properly evaluated the circumstantial evidence and have correctly drawn inferences from the same. There seems to be no legal error of the nature which may warrant interference by this Court with the concurrent appraisal/finding. The circumstantial evidence referred to hereinabove inter alia in para. 6 seems to be such which clearly connect the appellant with the commission of the offences, for which inter alia he was charged with. The cumulative effect-of the same appears to be that it excludes any reasonable hypothesis of the appellant's innocence. The appeal has no merits. It is, accordingly, dismissed.

17. (Sd.)

18. AJMAL MIAN, J.

19. (Sd.)

20. FAZAL ILAHI KHAN:J.

21. ' MUKHTAR AHMAD JUNEJO, J.--Appellant Khurshid was tried with co-accused Habibur Rehman in Court of the Additional Sessions Judge-I, Haripur of having committed murder of deceased Muhammad Fayyaz after subjecting him to sodomy of 15-5-1988 at 10-00 p.m. At conclusion of the trial, both the accused were convicted for the offence punishable under section 302/34 of P.P.C.

22. And were sentenced Co death and to pay a fine of Rs,20,000 each. They were also convicted for the offence punishable under section 377 of P.P.C. And were sentenced to undergo R.I. For five years and to pay another fine of Rs,5,000 each or to undergo further R.I. For one year. In appeal their conviction was not interfered with and so also the sentence except that the sentence of death was replaced with the sentence of life imprisonment vide Peshawar High Court's judgment dated 17-1- 1994, against which only the appellant has filed this appeal with learn of this Court.

23. ' Case against the appellant and co-accused Habibur Rehman was, that they along with an Advocate namely, Mirza Shaukat came at Police Station Kot Najibullah on 15-5-1988 at 10-00 p.m.

24. Carrying information that on that day at 4-00 p.m. Muhammad Fayyaz driving Suzuki No,5431/ADA towards Rawalpindi was killed by their unknown co-passengers during a quarrel after the Suzuki was diverted to a jungle. That in the process arms of the appellant were fractured. The S.H.O.

25. Recorded "Murasla" and sent it to the S.H.O., Khanpur Police Station, who registered the case.

26. ' During investigation police secured dead body of the deceased at instance of Habibur Rehman.

27. Clothes of the appellant and Habibur Rehman were smeared with blood and they were last seen with the deceased by latter's father Muhammad Feroz Khan. On the basis of such evidence, investigating police thought that the deceased was subjected to sodomy and killed by the appellant, and Habibur Rehman, who wanted to rob him of his Suzuki. On such allegations the appellant and Habibur Rehman were challaned and tried. At conclusion of their trial, they were convicted as already mentioned for the offences punishable under sections 302/34 and 377 of P.P.C. Their conviction was maintained by the Peshawar High Court, which altered their sentence from death to life imprisonment leaving rest of the sentences intact. Appellant's Jail Petition challenging High Court's judgment dated 17-1-1994 was converted into appeal and leave for the same was granted. .

28. ' Sardar Muhammad Ghazi, Advocate argued for the appellant, while none appeared for the State.

29. After conclusion of the arguments, my learned brothers Ajmal Mian, J. And Fazal Ilahi Khan, J. Were of the view that conviction of the appellant did not require interference. I was of the other view. The appeal was, therefore, dismissed in view of the majority view, under a short Court order.

30. ' The majority judgment giving reasons for dismissal of appellant's appeal, as authored by my learned brother Ajmal Mian, J., a renowned Judge with excellent knowledge of law, has been perused by me. For the reasons which follow, I am unable to persuade myself to agree with the majority view that the circumstantial evidence brought on record in the case connects the appellant with commission of the offences in question. The reasons in support of my humble view, that the prosecution has not been able to bring home the charge for any offence against the appellant, follow:-- ' The only evidence brought by prosecution against the appellant in the case consists--

(i) evidence of last seen;

(ii) voluntary appearance of the appellant with co-accused Habibur Rehman and an Advocate before S.H.O. Kot Najibullah on 15-5-1988; Atid

(iii) evidence of recovery.

31. ' Assessm ent of the evidence is to be made on the touchstone of the observations made in the majority judgment that in criminal cases the Courts are supposed to follow the well-settled principles of criminal jurisprudence, namely, that an accused person is presumed to be innocent, that the prosecution has to prove a criminal case against an accused person beyond reasonable doubt and in case two views are possible the view which favours the accused should be preferred and that all benefits of doubt should be extended to the accused. Admittedly there is no ocular evidence against the appellant as argued by Sardar Muhammad Guhazi, learned counsel for the appellant, and this is substantiated by record. The appellant is not alleged to have taken police to the place where the dead body was lying, or to the place from where "Pesh Qabza" was recovered.

32. ' Both, the trial Court as well as the High Court appear to have read in the evidence something which is not there. In this way conviction of the appellant is based on presumption, conjectures and hypothesis. For supporting conviction aid has been taken from case-law which is inapplicable to facts of this case. It has, therefore, become necessary to examine the evidence at this stage to assess its probative value and to see if it was sufficient for conviction of the appellant.

33. ' First piece of evidence is, what is called evidence of last seen. P.W. Muhammad Feroz Khan (P.W.8), father of the deceased, claimed to have last seen his son Muhammad Fayyaz on the day of occurrence at 6-30 p.m. With Muhammad Banaras's Suzuki carrying two unknown persons. He added that on the following night at 2-00 a.m. He learnt about murder of his son from Muhammad Banaras P.W.7, who had employed the deceased to run his Suzuki on hire. Muhammad Feroz Khan claimed to have seen dead body of the deceased in the Civil Hospital, Haripur, where he saw two persons, one admitted in the emergency ward and the other in police custody, with their clothes stained with blood and identified them to be the same persons, whom he saw with the deceased on the preceding day at 6-30 p.m. Muhammad Feroz Khan admitted in cross-examination that no identification parade of the accused was held 'before any Magistrate, and that his Police statement was recorded on the third day although two S.H.Os. Were available in the hospital where he saw the accused. It is a settled principle of law that late examination of a witness by police, adversely affects value of his evidence at the trial. In Sahib Gul v. Ziarat Gul and others (1976 SCM R 236) evidence of an eye-witness was not relied upon, as he besides being related to the complainant was examined by police four days after the occurrence. Erstwhile West Pakistan High Court at Karachi in the case of Qabil Shah and others v. State (PLD 1960 Kar. 697) looked with suspicion the evidence of the witnesses examined on 9-1-1958 in respect of an incident dated 7-1-1958. In the instant case police statement of Muhammad Feroz Khan was recorded with delay of three days, although two S.H.Os. Were present in the hospital, where he saw the persons who were accompanying his son on the preceding day at 6-30 p.m. Delay in recording police statement of such an important witness reduces value of his evidence.

34. Even otherwise, the evidence of last seen is a weak type of circumstantial 'evidence. In the case of Najibullah and another PLD 1978 SC 21 it was observed that on the whole the evidence of the deceased having been last seen alive in the company of the accused was regarded a weak type of circumstantial evidence to base a conviction on it. In the case of Rehmat v. State (PLD 1977 SC 515) it was held that on a balance of the decided case 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 and that further evidence is required to link the accused with the murder of his companion. Evidence of last seen is a kind of circumstantial evidence, in respect of which settled position of law is, that it cannot be accepted against any accused unless it is incompatible with any other hypothesis than that of guilt of the accused. See Mst. Sairan alias Saleema v. State PLD 1970 SC 56 and 1969 SCM R 388.

35. ' The evidence of recoveries is mainly against convict Habibur Rehman who has not filed appeal. It was he, who led police to the place where dead body of Muhammad Fayyaz was lying and to the place from where a blood-stained Pesh Kabz was recovered. This evidence cannot be used against the present appellant.

36. ' The only evidence of recovery against the appellant, came from S.I.P. Muhammad Farid Khan P.W.12, who deposed that he as S.H.O. Khanpur took into possession under memo. Exh.P.W-1/2 a trousers, a shirt and a "Chaddar" (sheet of cloth) produced by PC Qaim Khan. The memo. Exh.PW- 1/2 is about recovery of a semen and blood-stained trousers, a blood-stained shirt, a bloodstained-sheet and a bottle containing swabs. S.H.O. Khanpur recovered said articles from P.C.

37. Qaim Khan as per H.C. Khan Afsar P.W.1. P.C. Qaim Khan P.W. I did not support this evidence, except his statement that he was witness to the memo. Exhs.P.W.1/3 and P.W-1/1. No witness claimed to have recovered said articles from person of appellant Khurshid. Dr. Tariq Qureshi P.W.11, who examined the appellant, did not claim to have recovered any article from person of the appellant.

38. Evidence of recovery against the appellant is therefore zero.

39. ' In the judgment of the trial Court as well as in judgment of the High Court, an erroneous view has been taken that the "evidence of last seen" coming from Muhammad Feroz was not denied.

40. Appellant Khurshid in his statement under section 342, Cr.P.C. Denied specifically that the deceased took him and the co-convict in a Suzuki to his house in T.I.P. Colony, for informing Muhammad Feroz that he was leaving. This evidence, according to the appellant, was planted to create circumstantial evidence against him. The Courts below took no note about late examination of Muhammad Feroz Khan by police. Trial Court went to the extent of discussing in the judgment, the contents of police statement of P.W. Mirza M. Shaukat, Advocate, who was never examined as a witness, setting down a new record of treating contents of a police statement to be evidence. The trial Court castigated the appellant and the co-convict for disclosing that they were accompanying the deceased at the time of the incident and expected them to prove their innocence. Trial Court was not free of doubt about the accused being guilty and hence it remarked as below:-- "The chain of circumstances established against the accused person raises a strong probability that he is guilty of the offence charged."

41. Word 'probability" indicates mind of the trial Judge of not being sure about the accused being guilty. Trial Court took view that' after sodomy with the deceased, the accused had done to death the deceased. This view was based on presumptions, conjectures 'and probabilities. Trial Court took the appellant to task because he refused to give statement on oath to rebut the prosecution evidence. If the dead body was lying naked and the trousers' string was torn, it cannot be assumed that the deceased - was subjected to sodomy by the appellant.

42. ' The High Court itself was in doubt about the actual sodomist and murderer being the appellant or the co-accused, as is clear from the following observations made in the impugned judgment:-- "... ...However, the evidence to determine the specific role of each appellant at the last stage of stabbing is not very luminous. The number of injuries inflicted by each of the appellant and the portion of body over which each one of them caused the injuries cannot be discerned from the record. It is also not possible to determine as. To which of the injuries proved fatal and who out of the two caused those injuries. With sharp-sighted eyes we were endeavouring to find the one, among the appellants, who was more active and vigorous in pursuing the devilish designs up to the tragic end but the evidence on this particular point is a bit hazy and does not appear as fully established."

43. The High Court departed from the principle that doubt about commission of an offence by an accused should be reflected in the acquittal of that accused rather than in praising lesser sentence.

44. The trial Court as well as the High Court appear to have leaned towards the prosecution under an impression that it was for the appellant to prove his innocence. It is a settled position of law that the onus in a criminal case always lies on the prosecution, and it never shifts. In the case of Hakim Ali v. The State 1971 SCM R 432 it was observed as follows:-- "The onus in a criminal case always lies on the prosecution. It never shifts to the accused. It is wrong therefore to think that because the accused persons did not tell the whole truth the prosecution must succeed. The prosecution has always to succeed upon the strength of its own case and not the weakness of the defence case. It is not necessary for the defence to establish the innocence of the accused persons. It is enough if it has succeeded in casting a serious doubt upon the prosecution case."

45. ' An 'effort has been in the Courts below to supplement the prosecution evidence with certain isolated parts of statement of the appellant recorded under section 342, Cr.P.C. In this respect it is relevant to refer to the case of Sadiq v. State PLD 1967 SC 356 where it was observed as below:- "The visible defects of falsity and inconsistency in the statements of the accused persons cannot be relied upon, as furnishing proof in support of the prosecution case, whose acceptance must rest on a proper appreciation of the facts and circumstances proved. The correct principle is that falsities appearing in the statements of accused persons do not bar the allowances to them of an advantage that the law permits, on the basis of facts that are found on a consideration of all the evidence and circumstances that can be accepted in the case."

46. ' In the case of Faiz v. State 1983 SCM R 76 where conviction of two out of nine accused was based on their own statements, it was held by a learned Bench of this Court as follows:-- "The accused is questioned only on matters found incriminating against him in the evidence. His reply or narration is not tested or completed either by cross-examining him or by putting him further questions. The state of his mind is not probed. His bare statement about it exists on record, for whatever its worth. In the absence of any other evidence it has to be accepted as a fact, though apparently not fully established. Applying this principle consistently followed by Courts, the appellants," ' on their version of the occurrence, which was the only version left in the field to fall back upon, were entitled to acquittal."

47. ' In the case of Rahim Baldish v. Crown PLD 1952 FC 1 it was held that where the conviction is based entirely on the statement of the accused then that statement should be taken into consideration in its entirety. In the case of Wali Muhammad v. State 1969 SCM R 612 it was observed by a learned Bench of this Court that the version of the accused may appear unconvincing, but on that ground alone the accused cannot be convicted, as the prosecution has to prove its case.

48. ' Aforesaid authorities can be read in light of the general principles of administration of criminal justice, some of which are given in the cases of Abdul Jabbar v. The State PLD 1964 SC 84 and Muhammad Fazlul Karim v. State PLD 1964 SC 792. In the former case it was held that suspicion even though strong, cannot be accepted by itself as incriminating proof. In the latter case it was held that in a criminal case, the onus is on the prosecution' to prove their case and the accused cannot be convicted merely on proof of his having told an untruth in relation to one or more of the facts alleged against him.

49. ' An effort has also been made by the Courts below to convict the accused on the basis of probability as to what must have happened after the appellant diverted the Suzuki on his own to a jungle, assuming that the Suzuki carried none else except the accused and the deceased. This approach is not consistent with the principles of justice. It was held in the case of Muhammad Luqman v. The State PLD 1970 SC 10 as follows:-- "It may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from the evidence in a given case. Mere conjectures and probabilities cannot take, the place of proof. If a case were to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of ' benefit of doubt' to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the superior Courts, will be reduced to a naught."

50. ' In the majority judgment support has been taken from the following judgments, in arriving at the conclusion that the circumstantial evidence in the case seems to be such which clearly connects the appellant with the commission of the offences:--

(i) Allah Ditta v. State PLD 1958 SC (Pak.) 290.

(ii) State v. Manzoor Ahmed PLD 1966 SC 664.

(iii) Allah Ditto v. State 1968 SCM R 378.

(iv) Allah Ditta v. Crown 1969 SCM R 558.

51. With utmost regard for the opinion expressed in the majority judgment, in my humble view said cases may not apply to facts of the instant case. In (i) above appellant Allah Ditta produced before Police, on the same day, spear-blade and pointed out a place from where dead body of the deceased was dug out. In the instant case, the dead body of Muhammad Fayyaz and the weapon of offence were recovered at the pointation of Habibur Rehman and not appellant Khurshid, as per deposition of Inspector Mahfoozur Rehman P.W.9. Moreover the dead body in the instant case, was not lying buried, before its recovery, as in the cited case. In (ii) above, two high spirited young men fought in a closed room in first floor of a suburban building, over lover of a girl and the knife injuries caused to the deceased had cut through his vocal organs, making impossible for him to raise cries.

52. In said case, the deceased and the accused were seen, at 11-00 or 11-30 a.m., by a witness, entering a building in which the accused was living in a hired room, and at about noon time the same witness saw the accused coming out of the building all alone and later on dead body of the deceased was seen in the hired room of the accused. It was in the context of these facts that a Bench of this Court observed in the said case that the inference was legitimate that the deceased met his death at the hands of the accused, for the circumstances cannot be explained away upon any other hypothesis consistent with the total innocence of the accused. In (iii) above, the dead body of the deceased was dug out before a Magistrate from a place, at instance of the accused who (along with two others) was seen with the deceased, by a witness. There was also recovery of blood-stained clothes from the accused who led police to a well from where shoes of the deceased were recovered. In the instant case, the dead body of the deceased was not dug out from earth but it was lying on ground and the police was led to the place of recovery of the dead body, by the co-convict and not by the appellant. In (iv) above, there was evidence of at least four persons, who claimed to have seen the deceased and a lady entering a jungle in company of the accused. This was followed by recovery of dead body of the deceased with her trousers separated.

53. Before concluding, I .Am to observe that the appellant cannot be convicted on the basis of his having gone to the Police Station to report commission of a murder. His voluntary appearance at the Police Station speaks volumes about his bona fides. Prosecution has failed to furnish explanation about existence of a lacerated wound on left upper arm of appellant Khurshid noticed by Dr. Tariq Qureshi P.W.1.

54. For the foregoing reasons, I am of the view that the prosecution has not been able to prove case against the appellant beyond reasonable doubt, and his conviction and sentence by the trial Court was wrong and so also maintenance of his conviction and sentence by the High Court.

55. Consequently I accept this appeal and set aside the conviction and sentence of the appellant and order his I acquittal.

56. (Sd.)

57. MUKHTAR AHMAD JUNEJO, J.

58. ORDER OF THE COURT ' In view of the majority opinion, the above appeal has no merits. It is, accordingly, dismissed.

59. (Sd.)

60. AJMAL MIAN , J.

61. (Sd.)

62. FAZAL ILAHI KHAN, J.

63. ' I append my minority judgment.

64. (Sd.)

65. MUKHTAR AHMAD JUNEJO, J.