RASHEED AHMED RAZVI, J.---We intend to dispose of both the appeals by this common order since the facts and law involved are similar and identical.
2. Through the judgment in Criminal Appeal No. 12 of 1994 the appellant, namely, Hajjan Shah was convicted and. Was sentenced by the Special Court NO.II(STA), Hyderabad, to suffer imprisonment for life for an offence allegedly committed under section 302, P.P.C. Registered vide F.I.R. No.60 of 1992, P.S. Jam Shoro while the other two co-accused, namely, A.I Raza Shah and Anwar Shah were acquitted under section 245, Cr.P.C. By the trial Court after extending them benefit of doubt. The present appellant was also directed to pay compensation of Rs.60,000 to the heirs of deceased Satabo Shah or in default to undergo further R.I. For six months.
3. In Criminal Appeal No. 13 of 1994 the appellant was convicted again by the same trial Court and was sentenced for 7 (seven) years' R. I. And to pay a fine of Rs.5,000 or in default to further suffer R.I.
For 6 (six) months for the offence under section 13-D, Arms Ordinance, 1965.
4. According to the F.I.R. Which was lodged by complainant Maqbool Shah (now present in Court) on 21-5-1992 at about 12-30 p.m. With Police Station Jam Shoro, it is alleged that the complainant and his younger brother, namely Satabo Shah were residing in Village Bhirya near Jam Shoro Railway Crossing. That on 19-5-1992 at about 11-00 p.m. His brother Satabo Shah went to look after the cattle. That after about half an hour the complainant heard sound of firing. On the next morning the complainant made inquiries about his brother but he was not traceable. Therefore, the complainant presumed that his brother might have gone for some work. On 21-5-1992 at about 10- 00 a.m. The complainant's cousin, namely, Waris Shah found the dead body of Satabo Shah lying in the Forest of Devis (DEVI JUNGLE). It is further stated in the F.I.R. That the complainant went to the place of Wardat with Waris Shah and saw the fire-arm injuries on the stomach of his deceased brother and also noticed that both hands of deceased were cut off. Accordingly, the complainant went to the police Station and lodged F.I.R. Under section 302, P.P.C. Against the unknown persons.
5. On 8-6-1992 the present appellant/accused was arrested from Kotri Suzuki Stand, Jam Shoro in presence of Mashirs Budhal Shah and Allah Bux Shah. On 17th June, 1992 after interrogation the appellant Hajjan voluntarily led the police party to an abondoned house near Jam Shoro Railway Crossing from where after digging earth, one Klashnikov, two magazines containing 7 and 15 live bullets were recovered. Accordingly, a separate case under section 13-D of the Arms Ordinance, 1965 against appellant, Hajjan Shah was registered which is now subject-matter of Criminal Appeal No.13 of 1994. The complainant has also filed a private complaint before the trial Court against appellant Hajjan Shah as well as against other two co-accused on 1-9-1992. The trial Court conducted a preliminary inquiry and three witnesses were examined. Thereafter, the learned trial Court registered the case under section 302/34, P.P.C. On 13-9-1992. However, on 2-2-1993 the trial Court on the joint application moved by the Defence Counsel and the Counsel for the complainant ordered for the amalgamation and consolidation of the direct complaint with the State case.
Accordingly, charge was framed and prosecution had examined eight witnesses in support of the charge. Accused were examined under section 342, Cr.P.C. Who all denied commission of the alleged offence as well as recovery of arms. Appellant Hajjan Shah was also examined on oath.
Defence have also examined three witnesses. On 6th January, 1994 both the impugned judgments were announced and the present appellant was convicted and the other two-accused were acquitted.
6. We have heard Mr. Syed Madadally Shah, Advocate for the appellant, Mr. Abdul Latif Ansari, Assistant Advocate-General, Sindh and have also heard the complainant. We have also perused paper book of the case. It is contended by Mr. Syed Madadally Shah, that the alleged crime is an unseen incident, and therefore, the prosecution was under heavy burden to bring home guilt of the accused beyond reasonable doubt. He has also stated that name of the present appellant was not mentioned in the F.I.R. And it was at very belated stage that such accused were implicated in the alleged offence. Mr. Shah has referred to the case of Israr v, The State 1994 SCMR 108, Muhammad Yousuf v. The State 1994 SCM R 1148, Bashir Ahmed and others v. A.I Muhammad and others 1994 SCM R 1157 in support of his contention that where benefit of doubt is extended to the acquitted co- accused then in absence of strong, reliable and corroborative evidence, the other accused is not liable to be convicted. That he is also entitled for the benefit of doubt. Learned Assistant Advocate- General as well as the complainant have wholeheartedly supported the impugned conviction order.
7. It is settled principle of the administration of justice that if the prosecution witnesses are discredited in respect of majority of accused, it is never treated to be safe to believe their evidence in respect of other accused unless there is some independent and strong corroboration. Therefore, it can be said that if on the same set of evidence one accused is acquitted then on the same evidence the other co-accused cannot be convicted unless such evidence is distinguishable. In the case of Feroze Khan v. Fateh Khan and 2 others 1991 SCM R 2220, identical plea was raised before the Hon'ble Supreme Court which was accepted by the Supreme Court in the following words:--- ....But, as further contended by him, the first-mentioned set of accused was acquitted on account of extension of benefit of doubt, therefore, the remaining accused cannot be convicted on the basis of the testimony of the same witnesses. The proposition seems to be correct. See (i) Sher Hassan v. The State PLD 1959 SC 480 and (ii) Sadaruzzaman v. The State 1990 SCM R 1277. "
For further reference, see the cases of;
(1) Rehmat and others v. The State PLD 1959 SC (Pak.) 109;
(2) Noor Ahmad Alias Gujjar v. The State 1989 SCM R 438;
(3) Sher Hassan v. The State PLD 1959 SC (Pak.) 480;
(4) Munawar A.I v. The State PLD 1993 SC 251;
(5) Muhammad Aslam and others v.' The State 1988 SCM R 940;
(6) Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11, and
(7) Syed Gulzar Hussain v. The State 1985 PCr.LJ 1329.
8. It is an admitted position that the name of the present appellant as well as the names of other acquitted co-accused were not mentioned in the F.I.R. On the contrary it was claimed by the complainant that some unknown persons have killed Satabo Shah. Even during investigation when P.W. Warts Shah, Paryal Shah and Miskeen Shah were examined under section 161, Cr.P.C. By the Investigating Officer they had not stated anything about the present appellant which fact was admitted by the Investigating Officer, Allah Ditto, in his evidence. It is also proved fact that the names of P.W. Naseer Ahmed Schto and P.W. Hussain Bux were never mentioned before the Investigating Officer either by the complainant or the other three P.Ws. As mentioned hereinabove.
For the first time on 23-5-1992, (after 4 days of alleged incident) the complainant was informed by P.Ws. Naseer Ahmed and Hussain Bux that on the date of incident they have seen the present appellant and the other two co-accused emerging from the Devi Bushes who were armed with deadly weapons. Except this piece of evidence there is no other evidence against the appellant.
The learned trial Court has disbelieved prosecution evidence against the two acquitted co- accused and convicted the present appellant on the grounds that a Klashnikov was recovered at the pointation of this appellant. The learned trial Court has appreciated the prosecution evidence in the following words:--- "Once the testimony of P.Ws. Naseer Ahmed and Hussain Bux becomes doubtful, we are left with no other evidence against the accused Anwar Shah and A.I Raza Shah. Complainant Maqbool Shah, in his subsequent, Direct Complaint, has only tried to corroborate the version as given by P.Ws. Naseer Ahmed and Hussain Bux (and P.W. Sanjar Shah who was not examined by prosecution). It is most significant that the complainant owned his F.I.R., and he never questioned the veracity of investigation. Throughout, the complainant never alleged any mala fides on the part of investigation agencies, in challenging only accused Hajan Shah, and not implicating the accused A.I Raza Shah and Anwar Shah. According to complainant party, there was no apparent enmity between accused and deceased Satabo Shah, Therefore, in my view there is no reliable evidence against accused A.I Raza Shah and Anwar Shah.
So far as the case of accused Hajan Shah is concerned, I find that accused Hajan Shah was the only person who was arrested by police as being the culprit, and was subsequently challaned before this Court. During interrogation he voluntarily led the police and Mashirs, to produce the weapon which was used by him in commission of murder of Satabo Shah."
9. The "last seen" evidence is always treated as weak piece of evidence by this Court to sustain a conviction unless it is independently and strongly corroborated. This question was considered by the Hon'ble Supreme Court in the case of Munawar Hussain alias Asghar A.I v. The State 1991 SCM R 1601 where the appellant was convicted to imprisonment for life by the trial Court. His appeal was dismissed by the learned Judge of the Lahore High Court against which he preferred leave petition before the Supreme Court which was granted. His appeal was allowed and he was set at liberty with the following observation:--- "It is well established law regarding the 'last seen' evidence, that normally it requires corroboration.
Reference may be made In re: Karamatullah Khan's case PLD 1972 SC 15, Nazo alias A.I Nawaz v The State 1977 SCM R 20, Rehmat alias Rahman 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 . . . . "
10. As far as recovery of Klashnikov is concerned, it is argued that one Mashir P.W.1 Budhal Shah is not the person from the same locality and that he has admitted in his cross-examination that he is closely related to the deceased and to the complainant. This witness has further admitted that the area from where the alleged recovery was effected is a thickly populated area consisting of several shops, hotels and houses. The second Mashir P.W.2 Allah Ditto is Sub---Inspector Police and on the date of alleged recovery was posted at the same police station as Additional S.H.O. In the background of these facts, we are of the considered view that the prosecution has not made proper and effective efforts to pick up the independent and respectable persons as Mashirs of recovery from the same locality despite the fact that such opportunity was available. The burden was upon the prosecution to show that what were the circumstances which compelled them to choose these Mashirs, one of whom is closely related to the deceased and the complainant while the other Mashir is a police officer posted in the same police station. No explanation is available on record for non-compliance of section 103, Cr.P.C. Which creates doubts in the alleged recovery of weapon at the instance of accused. We are fortified in our view by the case of Muhammad Azam v.
The State PLD 1996 SC 67 and the case of Mushtaq Ahmad v. The State PLD 1996 SC 574. In the last reported case, the Full Bench of the Hon'ble Supreme Court accepted the appeal of convict and set aside the conviction/sentence passed by a Special Court, S.T.A. On the following ground, inter alia:- -- ---...Keeping in view the above factual background and also the factum that Iftikhar Ahmad, D.S.P.
(P.W.3), who headed the raiding party, admitted that people from the locality had gathered at the Dera at the time of their raid, non-compliance with the requirement of section 103, Cr.P.C., namely to call two or more respectable inhabitants of the locality where the search was to be made as witnesses to the recovery was not warranted and justified applying the above legal principles are deduced from the case-law. Since the recoveries of the alleged Klashnikov and the handgrenade constituted the alleged offences, which were the subject-matter of the two trials, trial Court and the High Court should have appraised and scrutinized the evidence of the aforesaid police personnel with care and caution and should also have taken into consideration the factum that there was no justifiable reason not to comply with the above requirement of section 103, Cr.P.C
11. In view of the above discussion of facts and law, we are of the considered view that the prosecution has failed to prove charge beyond reasonable doubt and that the present appellant is also entitled for the benefit of doubt as extended by the learned trial Court to the other two accused. In these circumstances, we allow both these appeals, set aside the conviction/sentence and acquit the appellant.