' TARIQ PARVEZ, J.---The instant appeal is directed against acquittal order passed by learned Sessions Judge, Haripur, dated 15-12-1993 in a case registered vide F.I.R. No,82, dated 20-5-1991 of Police Station Kotnajibullah.
2. The accused-respondent Munir was arrayed as an accused in the case for having committed murder (Qatl-i-Amd) of Muhammad Asif, brother of Musaib Khan complainant (P.W.8). He was sent up for trial to the Court of learned Additional Sessions Judge, Haripur on 26-10-1991, but ultimately the trial was held and decided by the learned Sessions Judge, Haripur who vide the impugned judgment acquitted the accused-respondent of the charge.
3. Briefly stated the facts of the prosecution case are that Musaib Khan who is the owner of brick- kiln was asleep alongwith Sufi Mehboobur Rehman (P.W.11) and Muhammad Asif deceased in the Verandah of the brick-kiln. It was at 9-15 p.m. When Munir (respondent) is alleged to have gone to them and asked the complainant that he has some important business with Muhammad Asif, on which he got awakened his brother Muhammad Asif. Munir and the deceased started talking to each other and both left the brick-kiln and went towards the adjacent fields, whereas the complainant and Mehboobur Rehman went to sleep. After sufficient time they got up on hearing the report of fire shot and noticed Muhammad Asif being not present on his cot. They started the search but could not find him. However, in the morning at 5 a.m. They found the dead body of Muhammad Asif lying in the fields of Sardar Muhammad.
4. In order to prove its case the prosecution examined 14 witnesses of which Dr. Iftikhar Ahmad (P.W.5) has conducted the autopsy on the dead body of Muhammad Asif deceased on 20-5-1991 at 8-30 a.m. According to his report the deceased was a man of 25/26 years of age and he found the following injuries on his external examination:-- ' Condition of the subject: Stout.
' Injuries:
(1) Fire-arm entry wounds three in number 1" apart from each other each of the size of 1/3" x 1/3" and continuous with injury No,2 in front and upper part of the chest.
(2) Fire-arm exit wound three in number two inches apart from each other each 1/2" x 1/3" and continuation with injury No,1 back of right chest with corresponding cuts marks in Bannyan, handed over to police.
(3) Laceration of the size of 1/2" x 1/4" into skin deep in front of right shoulder.
(4) Fire-arm entry wound of the size of 1/3" x 1/3" into continuation with injury No,5 on back of right palm.
(5) Fire-arm exit wound of the size of 1" x 1/2" into continuation with injury No,4 on the ventral side of right palm.
(6) Abrasion 1" x l" in front of right knee.
(7) Fire-arm entry wound 2" x 1/4" continuation with injury No,8 at lateral side of left ankle.
(8) Fire-arm entrance wound 1/3" x 1/3" into continuation with injury No,7 below injury No,7 on the lateral side left ankle of left foot.
' On internal examination the doctor found walls, ribs and cartilages injured, right pleaurae injured, right lung injured. Right side blood vessels injured. Stomach healthy and contained semi-digested food. Right scapula, sternum, right chest muscles and right side ribs injured and fractured. The doctor has given his opinion about the cause of death and stated that the man died on account of shock and haemorrhage by direct injury to right chest vessels and right lung caused by fire-arm.
Probable time that elapsed between injury and death immediately within two to three minutes and between death and postmotem examination within 12 hours. The doctor handed over to the police five copies of post-mortem report alongwith dead body and blood-stained clothes. According to the doctor the injuries to the vital organ caused by injury No,1 were sufficient in ordinary course of nature to cause the death of the deceased. The post-mortem report alongwith the pictorial consisting on five sheets Exh.P.W.5/1 (five sheets) are in his handwriting and bear his signatures correctly. The Inquest Report Exh.P.W.5/2 also bears his signature and endorsement. The Injury Sheet Exh.P.W.5/3 was also correctly signed by him.
5. Musaib Khan complainant having found the dead body of his brother, while on the spot reported the matter to Abdul Majid, S.-I. (P.W.14) who recorded his report which is Exh.P.A./1. The said S.-I.
Inspected the spot after preparing the injury sheet and inquest report of the deceased. He has drawn the site plan Exh.P.W.14/1. During spot inspection 3 empties of .30 bore pistol P.1 and one lead bullet Exh.P-2 were recovered and were sealed in a parcel through memo. Exh.P.W.6/1. Some blood- stained grass Exh.P.3 and a licence copy Exh.P.4 beside many other articles (not relevant to the facts of the case) were taken into possession from the person of the deceased and in this respect memo. Exh.P.W.6/2 was prepared. Blood-stained garments of the deceased were also taken into possession which were produced by Saifur Rehman F.C. Who had escorted the dead body to the Hospital for post-mortem examination. Blood stained items referred to above were sent to Laboratory and the report of the Chemical Examiner was exhibited as P.W.13/13. Three empties of .30 bore were also sent to the Forensic Science Laboratory. Accused was arrested on 20-5-1991.
6. Qazi Ghulam Asfia S.H.O. (P.W.15) took up further investigation and on 27-5-1991 Munir respondent while in custody has pointed out different places to the Investigating Officer including the one where he has inquired from Malik Arshad (P.W.3) about the brick-kiln of the deceased. Beside, on his pointation a sketch map of the place where the deceased was done to death was also prepared. Similarly, sketch map of the places where he was confronted with Shamrez (P.W.9) and Musaib Khan (P.W.8).
' The accused-respondent is alleged to have led the police party to the house of Asghar Shah in Khalabat Township and produced a pistol Exh.P.16 which was lying underneath the pillow of a 'Charpoi' for which memo. Exh.P.W.5/1 was prepared. With the pistol a bandolier containing a magazine and 5 live cartridges of .30 bore were also recovered. Sketch map, where accused- respondent is said to have met Khalilur Rehman (P.W.4) was also prepared by Qazi Ghulam Asfia, S.H.O. The examination-in-chief of P.W.13 also refers to number of other places of which sketch maps were prepared, but we would not like to refer to them including few of which we have made reference above, as nothing was recovered pursuant to any such information which are hit under Article 43 of the 'Qanun-e-Shahadat'. They being inadmissible, except the recovery of the pistol.
The pistol Exh.P.16 was sent to the Fire-arms Expert for comparison with the three empties already sent and report of the Expert is Exh.P.W.13/14.
7. The case of the prosecution hinges on circumstantial evidence consisting of last seen evidence furnished by Musaib Khan (P.W.8) and Sufi Mehboobur Rehman (P.W.11). Malik Arshad (P.W.3) has testified having seen the accused-respondent on 19-5-1991 at 8-30 p.m. And on inquiry he has told the respondent as to where the brick-kiln of the deceased was situated. Khalilur Rehman (P.W.4) deposed, having seen the respondent on 20-5-1991 at 7-00 a.m. With a pistol and bandolier and on inquiry informed the P.W. That respondent was proceeding to inform his relatives about the 'Nikah' of his sister which was to take place in the evening. Shamrez Khan (P.W.9) testified that at 10-30 p.m. On the night of occurrence he was coming in his tractor when he identified Munir accused in the light of the tractor and on inquiry respondent is said to have told him that he has some urgent work. This witness is alleged to have offered the respondent to get a lift in the tractor which he refused.
8. Musaib Khan (P.W.8) brother of the deceased is the complainant of the case and has furnished the evidence in respect of deceased having accompanied the respondent on the night of occurrence and so is the statement of Sufi Mehboobur Rehman (P.W .11).
' The prosecution also adduced some evidence by producing Maulvi Abdul Qayyum (P.W.7) who has performed the 'Nikah' of sister of respondent on 20-5-1991. It was necessitated because motive was missing in the report and was introduced at the trial which was to the effect that the deceased was having illicit relation with Mst. Fozia sister of the accused.
9. Learned A.A.-G. Assisted by learned counsel for the complainant Mufti Muhammad Idris, Advocate and Haji Muhammad Iqbal argued the case at quite sufficient length and submitted that the prosecution has succeeded in bringing home the charge against the respondent through unimpeachable circumstantial evidence which consists of last seen, seen immediately before the occurrence in the vicinity of the scene of occurrence and also after the occurrence by independent P. Ws. Further, that the empties recovered from the spot have matched with the pistol recovered at the pointation of the accused-respondent. It was argued that the pistol was recovered from a place which was sufficiently away from the village of the accused and was concealed in a manner which could be only in the knowledge of the respondent and none else. Motive was also highlighted and it was argued that the fact that the respondent hushed up 'Nikah' of his sister Mst. Fozia on the following day preceding the night of occurrence furnishes sufficient corroboration to the evidence of the prosecution.
10. Learned counsel for accused-respondent, while arguing the case at the very outset submitted that the respondent has attained double presumption of his innocence, first, that every accused is presumed to be innocent unless proved guilty and secondly, by an order of acquittal in his favour by the learned trial Judge. It was argued that a judgment of acquittal, ordinarily is never set aside or interfered with unless same is perverse and foolish.
' On merits it was argued that last seen evidence is the weakest possible type of circumstantial evidence as held by superior Courts. The recovery of the pistol was also challenged as it was not only belated but was witnessed by persons who are not only related to the deceased but were neither locals nor noteables of the area. In the same breath it was argued that the empties allegedly recovered on the date of occurrence have not been supported by the recovery witness.
Moreover, the empties though sent earlier but were returned from the Laboratory and for sufficient time the alleged crime pistol and empties remained in the custody of the police, therefore, the question of fabrication/plantation cannot be ruled out.
' It was also argued that complainant who has given the version of last seen evidence was not present on the night of occurrence and it was due to a false motive lurking in the mind of the complainant's side that on the death of the deceased, the complainant chose to involve the respondent in the crime.
11. We have heard the arguments of the learned counsel for the parties and have gone through the entire evidence. The occurrence took place on night between 19/20-5-1991 while the report was made at 8 a.m. On 20-5-1991. It was made on the spot to the Investigating Officer, though the dead body was recovered at 5 a.m. We fail to understand as to what the complainant was doing between 5 a.m. To 8 a.m. And why he did not leave for Police Post/Police Station to make the report.
No plausible explanation appears in the report for such delay nor any explanation has been tendered at the trial. It has come in the evidence that the house of complainant is in the close vicinity of the brick-kiln he being a married person was not ordinarily supposed to be sleeping in the brick-kiln instead of house. So, is the case of Sufi Mehboobur Rehman P.W. Neither of them have taken single step for informing the police within time as was required by them in the ordinary course of life. It is in the statement of P.W. Musaib Khan that after having found the dead body he left the brick-kiln and went to his house to inform the relatives and when came back, was still on the spot when the police arrived. This statement of his is contradicted by Sufi Mehboobur Rehman (P.W.11) who has said that the police arrived in the absence of the complainant and that it was he who offered statement to the Investigating Officer in the absence of Musaib Khan complainant.
' The time of report as given to be 8 a.m. Has been put to serious doubt by P.W.6 Muhammad Ayub to whom the sister of the deceased is married. According to him, he learnt about the occurrence at 5-30 in the morning and at the same time the police arrived at the spot. He is the witness to the recovery of the three empties and has stated that all the empties/recoveries were effected between 6 and 6-30 a.m. He has further stated that the dead body was despatched to the mortuary at 7 or 7-30 a.m. About the recovery memo. It was stated that he has signed the same but according to him (God knows what was written thereon).
12. The statement of Malik Arshad seems to be unnatural as according to the complainant the deceased and the accused were friends, therefore, there arose no occasion for the respondent- accused to have asked about the location of the brick-kiln as Muhammad Asif deceased was his friend. Khalilur Rehman (P.W.4) has said to have seen the respondent at 7 a.m. On 20-5-1991 and has stated that at that time the pistol was hanging on the side of the body of the respondent. It is unbelievable that an accused would carry along the crime weapon on his person and will display it in such a manner so to be nakedly noticed. This witness has never appraised the complainant as to the conduct of the accused- respondent as alleged by him in his statement. Shamrez Khan `(P.W.9) was examined by the police on 28-5-1991. He has seen the accused on the night of occurrence at 10-30 p.m. Which statement in no manner provides any incriminating link.
The ov erall perusal of the statements of all these witnesses in its comparison inter se does not inspire confidence for the purposes of making of a story of providing evidence of seeing before the occurrence and thereafter. We would, therefore, disbelieve all these witnesses.
13. Now coming to the recovery of pistol, the witness to the recovery is one Haji Sultan Afsar (P.W.12).
According to his statement it was Asghar Shah who produced the key of the room wherefrom the alleged recovery was made. The abode of this witness is 10 kilometres away from the place of recovery. We failed to understand what necessitated the police to make him a witness of the recovery instead of people from the locality and more particularly Asghar Shah from whose house the recovery was effected and it was he who has produced the key.
' As earlier observed that the recovery of empties has been put into doubt by the marginal witnesses. Recoveries of empties and their safe custody is also open to serious doubt because they were twice sent to the Fire-arms Expert and were received in the police station the possibility of tampering with such recoveries cannot be excluded. In this background the positive report of the Firearms expert cannot furnish sufficient corroboration to the other evidence of the prosecution which by itself required corroboration.
14. The well-established principle of criminal jurisprudence is that in case of circumstantial evidence each piece of such evidence shall be proved to the hilt and it shall be in the form of a chain, if one link of such chain is weak or broken the remaining link, also looses its significance. In cases of circumstantial evidence conviction can only be recorded if all circumstances put together exclude all hypothesis of the innocence of the accused and leads to the definite conclusion that it was only the accused who has committed the offence and none else.
15. For the reasons recorded above we see no force in the State appeal and the same is dismissed.
The judgment of acquittal dated 15-12-1993 is upheld. The accused is discharge of the bonds executed by him in pursuance to order dated 28-1-1998 of this Court.