1. MUHAMMAD FARRUKH MAHMUD, ].- Saeed Ahmad petitioner has sought his post-arrest bail in case F.I.R. No. 108 registered at Police Station, Saddar, Arifwala on 2.3.2002 for an offence under Sections 452/337-F(ii), PPC.
2. The precise allegation against the petitioner is that he while armed with a chhuri trespassed into the house of the complainant and injured Maqbool Ahmad son of the complainant.
2. "The evidence of witnesses is due to relationship with the deceased and also suspicious of this murder and due to my relationship with Zafar Iqbal who was the class fellow of Muhammad Shafique deceased."
3. While Zafar Iqbal to the same question No. 12 replied as under:-- "The evidence of the witnesses is due to relationship with the deceased and also suspicious of this murder against me because the deceased was my class fellow."
4. Muhammad Abdullah, accused appeared in his defence as DW1 and stated that he was innocent and DSP kept him in illegal custody for 1-1/2 month and caused physical torture and produced him before the Magistrate and handed over a written statement to be produced before the Magistrate and the statement under Section 164, Cr.P.C, was not voluntary and of his free will and he has been falsely implicated.
5. The trial culminated into conviction of the appellant as mentioned above. The appellants have filed Crl. Appeal No. 107/1997 challenging their conviction and sentence. The complainant has tiled Crl.
6. Revision No. 91/1997 for enhancement of sentence of Zafar Iqbal, accused. While the Trial Court has sent up Murder Reference No. 147 of 1997 for confirmation of death sentence of Muhammad Abdullah accused under Section 374, Cr.P.C. All the matters are outcome of the same judgment, therefore, are being .Decided by this judgment.
7. Learned counsel for the appellants has argued that the only evidence against Zafar Iqbal appellant is of last seen by Muhammad Drees, PW-6 who is real brother of the deceased and son of the complainant and this- fact has not been mentioned in the F.I.R, and has been disclosed in supplementary statement of the complainant recorded by the I.O; and conviction cannot be maintained merely on the basis of evidence of last seen.
8. As far as case of Muhammad Abdullah appellant is concerned, his judicial confession was not recorded after observing-the legal formalities by the Magistrate. The same was recorded admittedly after more than seven days. He remained in police custody which cannot be relied upon, therefore, the appellants be acquitted of the charge.
9. Conversely, the appeal has been opposed by learned counsel for the complainant and for the State and they supported the impugned judgment. learned counsel for the complainant has pressed his revision petition for enhancement of sentence of Zafar Iqbal.
10. Heard. Record.
11. None of the appellants were nominated in the F.I.R. It has been admitted by the Investigating Officer that apart from both, the appellants other persons were also interrogated in the case. The case of the prosecution is based on circumstantial evidence which can only be made basis for conviction when it excludes all hypothesis of innocence of the accused and no link in the chain is found missing as held in Ch. Barkat Ali Vs. Major Kararn Elahi Zia (1992 SCM R 1047), Muhammad Fayyaz Vs. The State (PLD 1984 SC 445), Ali Khan Vs. The State (1999 SCM R 955). The evidence at Zafar Iqbal is only statement of Muhammad Drees, PW-6 who is real brother of the deceased and son of the complainant. He stated that during the night he had seen that Zafar Iqbal, appellant took away Muhammad Shafique deceased but this fact has not been ^mentioned in the F.I.R, and no sufficient explanation has been furnished for not informing the. Complainant before he went to the Police Station for getting the F.I.R, recorded, and as per law declared by Hon'ble Supreme Court in a case Ghulam Mustafa Vs. The State (PLD 1991 SC 718), the last seen evidence cannot be considered enough to sustain conviction on murder charge when the witness had some connection with the deceased and independent corroboration is required to rely upon such evidence, but In the Instant case no corroboration against Zafar Iqbal appellant is available on the record to the statement of Muhammad Drees, PW-6. The last seen evidence has been declared weak type of circumstantial evidence t As far case of Muhammad Abdullah appellant is concerned, the only evidence against him is his judicial confession Ex.PK made before Rai ]ayed Ahmad, Resident Magistrate PW-8 which was admittedly recorded on 6.3.1995. Raja Manawar Hussain, DSP PW-11 has admitted that Muhammad Abdullah was arrested on 27.2.1995 and the confessional statement was recorded after seven days of the arrest of Muhammad Abdullah, appellant. No satisfactory explanation has been furnished for delayed recording of confessional statement and the accused was also hot told that he would not be sent in the police custody by the Magistrate. The confession recorded after 5 days of arrest was not relied upon in case Azeem Shah Vs. The State (PL] 1987 Quetta 96) and in cast Uaqat Bahadur Vs. The State (PL) 1987 FSC 31), the judicial confession was also considered doubtful when the accused was not produced before the Magistrate soon after his arrest and the conviction cannot be based on retracted confession alone as held by Hon'ble Supreme Court in case Abdul Latif Vs. The State (PLD 1999 SC 264).
12. Keeping in view all the circumstances of the instant case and re-appraisal of evidence, we are convinced that the prosecution has failed to establish its case against the appellants beyond shadow of doubt and by extending benefit of doubt they are acquitted of the charge by accepting their Crl. Appeal No. 107/1997 and setting aside their conviction and sentence. Death sentence of Muhammad Abdullah, appellant is not confirmed.
13. Murder Reference is answered in the negative.
14. Crl. Revision No. 91/1997 filed by the complainant is dismissed having no force.