IN THE HIGH COURT OF SINDH, SUKKUR BENCH, SUKKUR

Cr. Appeal No.S-32 of 2016

Appellants:                                        Muhammad Nawaz and others through Mr. Muhammad Ali Dayo, Advocate.

Complainant:                                    Rajabuddin Kalhoro through Mr. Ameer Hussain Solangi, Advocate

State:                                                 Through Mr. Khalil Ahmed Maitlo, DPG

Date of hearing:                                 22.11.2021

Date of decision:                                14.02.2022 

 

J U D G M E N T

 

Zulfiqar Ali Sangi, J:              Through this appeal, the appellants have assailed the judgment dated 20.02.2016 (impugned herein) passed by learned 1st Additional Sessions Judge, Naushahro Feroze whereby they were convicted under Section 302(b) PPC and sentenced to suffer imprisonment for life and to pay fine of Rs.50,000/-each and in case of default, they shall suffer R.I for two years more; besides they were further sentenced u/s 201 PPC to suffer R.I for two years and to pay fine of Rs.10,000/- each, in case of failure, they will also suffer S.I for two months more. However benefit of Section 382-B Cr.P.C was extended to them.

2.                The brief facts of the case as per FIR are that the Complaint owned agricultural land and is Tractor driver. They are four brothers, out of them namely Ali Muhammad aged about 45/50 years was their elder brother, who has four sons and four daughters and they all brothers were residing altogether in one house. His brother was laboring at the brick kiln. Sometimes ago their relative namely Muhammad Nawaz s/o Ghulam Farooque Kalhoro had borrowed an amount of Rs.35,000/- from his brother for construction of his house and some days ago when his brother had demanded the said amount from Muhammad Nawaz, he had become annoyed with him. On 24.10.2007 in the evening at sunset time, complainant along with his relatives each one Ghulam Nabi s/o Moula Bux and Niaz s/o Allah Dino Kalhoro, were returning from Dehat to their village Khan Wahan and were coming on the bank of Khan Wahan Minor, when reached near the culvert of Haji Nasarullah Abbasi, where they saw coming from opposite side on the bank of minor his brother Ali Muhammad with Muhammad Nawaz s/o Ghulam Farooque Kalhoro, (2) Muhammad Qasim s/o Zainul Abdin Kalhoro, (3) Habibullah s/o Shafi Muhammad, Kalhoro, they met with them. Complainant enquired from his brother at this time where he is going, who replied that now Muhammad Nawaz will return his amount therefore, he is accompanying him to his village. Thereafter they came to their village while his brother accompanied Muhammad Nawaz and others, but his brother did not return back home, hence he went to enquire from Muhammad Nawaz about his brother who did not give satisfactory reply to them and said in angry position that they may go away from here. Thereafter they continuously searched their brother and on 30.10.2007 in the early morning they came to know through police that the dead body of a person is floating in the cotton crop water of one Sajjan Phiriro near Khan Wahan minor and the same has been secured on the information of one Farmer namely Allah Wadhayo s/o Ghulam Hussain Kalhoro, therefore, on receipt of such information, complainant alongwith his above named witnesses and nephew Zahid Hussain s/o Ali Muhammad went over there and at about 7.30 a.m reached there and saw that the dead body was decomposed and was lying downward in the cotton crop water in the lands Mud. Complainant and his witnesses and nephew saw the footwear and cap of his brother and identified that it is the dead body of his brother and after necessary formalities and with the help of witnesses and brothers took the dead body to Taluka Hospital, Kandiaro and got it’s autopsy and after interment, complainant appeared and lodged report that the accused persons namely Muhammad  Nawaz, (2) Muhammad Qasim, (3) Habibullah in furtherance of their common object, due to demand of return of borrowed amount, have taken his brother and have murdered him and so also concealed the evidence by throwing his dead body in the thick crops.

3.                 After usual investigation, challan was submitted in court of law. Co-accused Muhammad Qasim and Habibullah were let off by the police and their names were placed in column No.2 of the challan, while present accused were challaned on basis of material collected during the investigation including confessional statement dated 15.11.2007 of appellant Muhammad Nawaz recorded before learned 2nd Judicial Magistrate, Kandiaro.

4.                 After completing all the legal formalities, the trial court initiated trial by supplying copies to the accused as required under Section 265-C Cr.P.C. The charge was framed against the appellants; they pleaded not guilty and claimed to be tried.

5.             The prosecution in order to support its case examined PW-1 Complainant Muhammad Rajib at Ex-9, who produced FIR of the case at Ex-9/A and further statement recorded before police at Ex.9/B, PW-2 Niaz Ahmed eye-witness at Ex.10, while PW Zahid Hussain being formal witness was given up by learned State Counsel through statement at Ex.11. PW-3 mashir of the case Muhammad Yousif at Ex.12, who produced the mashirnama of dead body, as well as inquest report, memo of vardat and memo of recovery of clothes of the deceased Ali Muhammad at Ex.12/A to D, PW-4 Allah Wadhayo eye-witness at Ex.13, PW SIP Wali Muhammad was given up by learned State counsel through statement at Ex.14, PW-5 learned Magistrate Mr. Altaf Hussain Dayo was examined at Ex.15, who produced the application submitted by I.O before him for recording confessional statement of accused Muhammad Nawaz at Ex.15/A, he also produced the original confessional statement of said accused at Ex.15/B, PW-6 SIP Nazir Ahmed, the author of the FIR, who also secured the dead body and prepared such mashirnama and Chakas Form was examined at Ex.16 and he produced copy of entry of departure at Ex.16/A, PW-7 I.O of the case SIP Mevo Khan was examined at Ex.17, who produced memo of arrest of accused Muhammad Nawaz and recovery of the crime weapon from him, as well as the memo of arrest of accused Juman at Ex.117/A to C, as per record, the Medical Officer Dr. Masood Ahmed who conducted post mortem of deceased Ali Muhammad, before recording his evidence was expired, therefore, PW-8 Medical officer Dr. Mukhtiar Ali being well acquainted with the signature of late Dr. Masood Ahmed, was examined at Ex.18, who produced the inquest report , as well as the post mortem report at Ex.18/A and B and the learned State counsel through statement at Ex.19 submitted the copy of Ballistic Expert report, PW-9 Tapear Mushtaque Ahmed was examined at Ex.20, who produced the sketch of place of vardat at Ex.20/A, in the last, PW-10 corps bearer PC Raza Muhammad was examined at Ex.21, who produced the receipt of handing over the dead body of deceased Ali Muhammad at Ex.21/A, thereafter learned State counsel through statement at Ex.22  closed the side of prosecution evidence.

6.                 On 31.10.2013 statement of appellants u/s 342 Cr.P.C were recorded at Ex.23 to 25, in which  appellant Muhammad Nawaz denied the allegations of prosecution and stated that he himself appeared at PS, where police shown his arrest. He further stated that he was in police custody, hence I.O compelled him to confess the guilt before Magistrate otherwise he will be booked in other cases and he will also commit murder of his son, who was in his custody. He further stated that he did not record the confessional statement voluntarily, the weapon was foisted upon him by the SIO and the PWs have deposed against him at the instance of Nisar Abbasi, he is innocent, hence, prayed for justice. Appellants Muhammad Juman and Abdul Hafeez in their statements denied the allegations of prosecution and stated that they were arrested from their houses; PWs have deposed due to enmity over landed property, hence, they prayed for justice, however, all the three appellants neither examined themselves on oath nor led any defence evidence in their support and prayed for justice.

7.                 Learned Counsel for the Appellants has contended that the Appellants are innocent and have falsely been implicated by the Complainant party; that there were material contradictions in the evidence of prosecution witnesses and the case of the prosecution is not free from shadow of reasonable doubts; that learned trial Court has brushed aside the material contradictions in the evidence and has not examined that there is no eye witness of the alleged incident, even has given unnecessarily weight to the evidence of prosecution witnesses; that learned trial Judge has failed to consider that complainant and PWs have stated in their evidence that they had allegedly lastly seen the deceased Ali Muhammad in the company of the appellants/accused; that there was no any unanimous evidence which could be considered for conviction of appellants; that there was no clear opinion of the Medical Officer as per postmortem report that the death may be occurred due to the injury on the left side of chest posterior interiorly; that the confessional statement recorded by the learned Magistrate was not true nor volunteer and it cannot be relied upon;  that the impugned judgment is clear example of misreading and non-reading of evidence; that a single dent in prosecution case, which seems to be necessary, goes in favour of accused. In support of his contention, learned Counsel placed reliance upon the cases of Asif Mahmood v. The State (2005 SCMR 515), Mst. Roshan Bibi and another v. The State (2007 P Cr. L J 1792), Muhammad Pervez and others v. The State and others (2007 SCMR 670) and Doulat v. The State (PLD 2013 Sindh 23).        

8.                 Learned Counsel representing the Complainant, at the very outset, submitted that though the alleged incident is unseen; however deceased was seen alive lastly with the accused persons; that deceased was going with accused Muhammad Nawaz and others for getting back his loan amount; that after missing of deceased Ali Muhammad, Complainant party searched themselves and also enquired from  Muhammad Nawaz but he did not give satisfactorily reply; that there is no delay in registration of FIR; that during course of investigation, appellant/accused Muhammad Nawaz pleaded his guilt and voluntarily recorded his confessional statement before learned Magistrate; that incriminating weapon was also recovered on the pointation of accused Muhammad Nawaz; that prosecution had examined all the material witnesses, who fully supported the prosecution version; besides medical officer also examined by the prosecution, who supported the prosecution case by producing postmortem report; lastly he submitted that accused persons committed the murder of deceased Ali Muhammad, which is a heinous offence hence learned trial Court has rightly convicted the accused persons. In support of his contention, learned counsel placed reliance upon the cases of Suleman v. The State (2012 YLR 2395), Khan Muhammad and 2 others v. the State (2003 YLR 2175), Nabi Bakhsh v. The State and another (PLJ 2000 SC 419) and Mst. Robina Bibi v. The State (2001 SCMR 1914).  

9.                 Learned Deputy Prosecutor General has mainly contended that all the PWs have deposed in the same line; however some minor contradictions has been pointed out in their evidence which are not of a such standard to make the case as doubtful; that the prosecution evidence is reliable and confidence inspiring. Lastly he prayed that by dismissing instant appeal, conviction awarded by the learned trial Court may be maintained.

10.               I have heard learned Counsel for the Appellants as well as learned Deputy Prosecutor General and the counsel for the complainant and have carefully examined the material available on record with their able assistance.

11.              On reassessment of the entire evidence produced by the prosecution it is established that the prosecution had not proved the case against the appellants beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.

12.              The occurrence in the present case is unseen one, and the case of the prosecution against the appellants is wholly based on the circumstantial evidence i-e (i) last seen evidence of Rajibuddin s/o Nizamuddin (PW-1) and Niaz Ahmed (PW-2); (ii) supplementary statement of the complainant; (iii) recovery of a Pistol and the cartages allegedly used for commission of offence from appellant Muhammad Nawaz; (iv) Confessional Statement of appellant Muhammad Nawaz before the Magistrate; and (v) medical evidence as to post mortem examination of the deceased.

Before examining the said circumstantial evidence it is necessary to state that the standard of care required for relying on circumstantial evidence and the approach to determine sufficiency of such evidence for reaching the conclusion of guilt of an accused person. The circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined. In cases like the present case that rest entirely on circumstantial evidence, it is of the utmost importance that the circumstances should be ascertained with minute care and caution, before any conclusion or inference adverse to the accused person is drawn. The process of inference and deduction involved in such cases is of a delicate and perplexing character, liable to numerous causes of fallacy. This danger points the need for great caution in accepting proof of the facts and circumstances, before they are held to be established for the purpose of drawing inferences therefrom. A mere concurrence of circumstances, some or all of which are supported by defective or inadequate evidence, can create a specious appearance, leading to fallacious inferences. Hence, it is necessary that only such circumstances should be accepted as the basis of inferences that are, on careful examination of the evidence, found to be well-established. A high quality of evidence is, therefore, required to prove the facts and circumstances from which the inference of the guilt of the accused person is to be drawn. There are chances of fabricating evidence in cases that are based solely on circumstantial evidence; therefore, the court, in such cases, should take extra care and caution to examine the evidence with pure judicial approach on strict legal standards to satisfy itself about its proof, probative value and reliability. When there are apparent indications of possibility of fabricating evidence by the investigating officer in making the case, the court must be watchful against the trap, which may misled to drawing a false inference, and satisfy itself about the fair and genuine collection of such evidence. The failure of the court to observe such care and caution can adversely affect the proper and safe administration of criminal justice. The settled approach to deal with the question as to sufficiency of circumstantial evidence for conviction of the accused person is this: If, on the facts and circumstances proved, no hypothesis consistent with the innocence of the accused person can be suggested, the case is fit for conviction of the accused person on such conclusion; however, if such facts and circumstances can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case is to be treated one of insufficient evidence, resulting in acquittal of the accused person. The circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touches the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. Chain of such facts and circumstances has to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain breaks the whole chain and renders the same unreliable; in that event, conviction cannot be safely recorded, especially in the cases of capital charge. Therefore, if the circumstantial evidence is found not of the said standard and quality, it will be highly unsafe to rely upon the same for conviction; rather, not to rely upon such evidence will a better and a safer course. Reliance is placed on the case of Naveed Asghar and 2 others V. The State (PLD 2021 SC 600).

13.               Last seen evidence of Complainant Rajibuddin s/o Nizamuddin (PW-1).                  The complainant in the FIR registered on 31-10-2007 in respect of incident took place on 24-10-2007 has stated that he, Ghulam Nabi and Niaz saw the deceased with appellants Muhammad Nawaz, Habibullah and Muhammad Qasim on 24-10-2007 and on 31-10-2007 he came to know about the dead body through loudspeaker and he went and identified the dead body to be of his brother Ali Muhammad. After the FIR his further statement was recorded wherein he also added two names of other accused persons being Juman and Abdul Hafeez. He in his further statement exhibited in evidence as Ex. 9-B further stated that having free from funeral rites of his brother he remained in search of cause of death of his brother and real accused persons. His statement in respect of search as to the cause of death and of real accused person suggests that he never seen the deceased with the appellants. The complainant even not lodged any NC in respect of missing of his brother for about 08 days nor he made complaint anywhere that he has any suspicion upon the appellants as he seen the deceased lastly with appellants but he remained mum. However, he while examining himself before the trial court has deposed that Muhammad Nawaz had taken a loan from his brother Ali Muhammad and time to time was demanding his amount from accused Muhammad Nawaz who used to become annoyed with his brother. Lastly the accused asked his brother that he will pay the amount on 24.10.2007. Complainant, Muhammad Niaz and Ghulam Nabi were coming from Dehat when they reached at Khan Wahan Minor near the Bridge of Haji Nasuruallah Abbassi, where they saw accused Muhammad Nawaz, Habibullah, Ghulam Qasim and his brother Ali Muhammad. He inquired from his brother Ali Muhammad that where they are going on which his brother replied that accused promised to return his money, therefore, he is going with them to collect his money. His brother Ali Muhammad did not return back at their house, they waited for him about 1 to 4 hours and thereafter they went to search him and went towards accused Muhammad Nawaz but he did not reply properly and asked them to go back as he had not taken their brother thereafter he came back at his house. He further deposed that on 30.10.2007 they heard on the loud Speaker that there was a dead body lying in the land of Sajan Fariro on which they rushed towards there and saw the dead body and identified the same to be of his brother Ali Muhammad. Some bad smell was also coming from the dead body. Thereafter police came at the spot and police referred the dead body for post mortem and after conducting the post mortem they buried the dead body of his brother. He deposed that on 31.10.2007 he lodged the FIR at police station Muhbat Dero. He deposed that after lodging the FIR they themselves investigated and came to know that the accused persons namely Juman Depar and Abdul Hafeez Kalhoro are actual culprits and are real murderer of his brother. Thereafter he recorded his further statement before the police. He deposed that the accused Muhammad Nawaz recorded his confessional statement before the learned Magistrate. During his cross-examination he stated that he did not go to any Nek Mard when his brother did not return at their house. He also during cross-examination admitted that he had not informed the police about missing of his brother. He has also stated that the accused Muhammad Nawaz had taken loan from his brother in presence of Ghulam Nabi and Niaz Hussain. During cross-examination to prove false implication of appellants this witness on suggestions made to him had replied as under:-

“I know the brother of released accused Habibullah namely Roshan Kalhoro. I also know the daughter of deceased Ali Muhammad namely Mst. Ashraf Khatoon, who is my niece. It is incorrect to suggest, that my niece was betroth with brother of released accused Habibullah namely Roshan Kalhoro. It is incorrect to suggest, that Mst. Ashraf Khatoon was given in marriage with Shabbir Kalhoro. It is incorrect to suggest that Roshan Kalhoro was annoyed on the marriage of Mst. Ashraf Khatoon and he used to threaten to my brother for dire consequence. Further says, that accused Muhammad Nawaz was used to issue threats. It is also incorrect to suggest, that released accused Habibuallah also used to threaten that he will commit murder of my brother. It is correct to suggest, that Dr. Nisar Abbassi is our Nek Mard. It is incorrect to suggest, that Dr. Nisar Abbassi has decided our matter privately. It is incorrect to suggest, that as per the decision of Dr. Nisar Abbassi, the released accused Habibullah had given Rs:5,00,000/- to us therefore, we delete the name of accused Habibullah from the F.I.R. It is incorrect to suggest that at the time of lodging of FIR Dr. Nisar Abbassi was with me. It is correct that wife of accused Muhammad Nawaz had expired, he has minor children. It is incorrect to suggest, that when accused Muhammad Nawaz was arrested his minor son was in our custody. It is incorrect to suggest, that I threaten the accused Muhammad Nawaz that since his minor son is in his custody and accused has to confess his guilt otherwise they will murder his son. It is incorrect to suggest, that we had given the name of accused Muhammad Nawaz at the instance of Dr. Nisar Abbassi. It is incorrect to suggest, that I am deposing falsely. I recorded my further statement 5/6 days after lodging the FIR. I cannot give the name that from whom I received the information about guilt of accused persons namely Juman and Abdul Hafeez. The village of accused Muhammad Nawaz is situated about two kilometers away from my village. When we lastly went on the Otaq of accused Muhammad Nawaz where he refused and also threatened us then I and my witnesses altogether go about one Farlong from the Otaq of accused and thereafter I went to my relative Muhammad Dural while my P.Ws came at our village, when my PWs went about one kilometer they saw accused Muhammad Nawaz, Abdul Hafeez and Juman together. The PWs disclosed this fact to me on the next morning. The PWs disclosed this fact about 5/6 days later after recording my further statement. Wadero Akram is our relative, he is a big Zamindar. I do not know whether Roshan Kalhoro is also big Zamindar. I know that Roshan Kalhoro is maternal cousin of accused Abdul Hafeez. I do not know Ahmer Memon. I do not know whether Ahmer Memon sold out the land to Roshan Kalhoro but Akram was interested to purchase that land. It is incorrect to suggest, that I have given the name of accused persons namely Juman and Abdul Hafeez at the instance of Wadero Akram.”

 

 

14.              The evidence of PW-2 Niaz Ahmed is examined carefully who was the witness of last seen, he deposed that accused Muhammad Nawaz received Rs.35,000/- as loan from Ali Muhammad to construct his house and the same was received by accused in his presence. Ali Muhammad used to demand his money from accused Muhammad Nawaz on which accused Muhammad Nawaz was annoyed with Ali Muhammad. On 24.10.2007 at sun-set time when he, complainant, Ghulam Nabi were coming from their land towards their houses, when they reached at the Bridge/Pull of Haji Nasuruallh Abbassi where they met with Muhammad Nawaz, Habibullah son of Shafi Muhammad, Muhammad Qasim son of Zainal Abdeen and Ali Mohammad. The complainant Rajab Ali asked from his brother Ali Muhammad that where you are going on which Ali Muhammad replied, that accused Muhammad Nawaz asked him that he is giving his money, therefore, he is going with him for getting his money from him. After reaching their village they waited for Ali Muhammad but after passing of sufficient time Ali Muhammad did not come thereafter he, Rajab and Ghulam Nabi went at the house of Muhammad Nawaz and inquired from him about the brother of complainant Rajab on which accused Muhammad Nawaz did not reply them properly and asked them to go back then Rajab left them there and went away and they came at their village when they reached near the wooden Bridge where they met with Hafeez son of Qabool, Juman son of unknown by caste Depar, who asked them that why they are behind them. On 30.10.2007, the police made announcement on the Loud Speaker that the dead body is laying in the land of one Sajan Fariro. After hearing the news he alongwith Zahid Hussain and others left towards the pointed place where they saw the dead body, it was mostly destroyed, they identified the dead body through Sleeper and Cap, thereafter police shifted the dead body for completing the formalities and on 31.10.2007 the complainant lodged this FIR. On 03.11.2007 the police recorded his statement.“During cross-examination he admitted that the complainant is his cousin. Further he stated that he went at Dehal for Fateh Khuwani at Dargah, when they departed from the Dargah it was about sun-set time. Deceased Ali Muhammad alongwith complainant went to Dr. Nisar Abbassi that the accused Muhammad Nawaz is not returning their amount. He knows Roshan Kalhoro who is brother of one released accused Habibullah. On suggestions made on behalf the appellants he stated as under:-

“It is incorrect to suggest, that daughter or deceased was engaged with Roshan Kalhoro. Further says, that there was only talks of marriage in between them. It is correct to suggest, that deceased contracted marriage or his daughter to other persons. It is incorrect to suggest, that released accused Habibullah and his brother Roshan Kalhoro were annoyed with deceased. I know Dr. Nisar Abbassi. It is incorrect to suggest, that Dr. Nisar Abbassi had privately decided the matter in between complainant and released accused Habibullah in the sum of Rs:5,00,000/- as KHOON BAHA. It is incorrect to suggest, that after faisla Dr. Nisar Abbassi deleted the name of released accused Habibullah from the FIR. It is incorrect to suggest, that Dr. Nisar Abbassi was available at the time of registration of FIR at P.S. It is correct to suggest, that when we saw dead body, the dead body was not able to identify. It is incorrect to suggest, that the name of accused Muhammad Nawaz is given at the instance of Dr. Nisar Ahmed Abbassi. When deceased was missing we did not made complaint to our Nek Mard but we were searching the deceased with our own side. We searched the deceased in our friends and relatives. It is incorrect to suggest, that I am deposing falsely at the instance of Dr. Nisar Ahmed Abbassi and being relative of complainant. The distance in between Otaq of accused Muhammad Nawaz and
Wooden Bridge is about half kilometer. The complainant went away from the Otaq of accused Muhammad Nawaz. We remained at the Otaq of accused Muhammad Nawaz about 2/3 minutes. We went by foot. It was 8-00 p.m and 9-00 p.m when we reached at the house of accused Muhammad Nawaz. Accused Muhammad Nawaz remained in his house and we came to our village. We only saw accused Muhammad Juman and Abdul Hafeez at the wooden bridge. I also stated before the police in my statement that we only saw accused Hafeez and Juman at the wooden Mori. We met with the complainant in morning time and we disclosed the complainant that we saw two persons at wooden Mori namely Abdul Hafeez and Muhammad Juman. I know Akram Kalhoro, who is Zamindar and our relative. It is correct to suggest, that accused Abdul Hafeez and Roshan Kalhoro have their own agricultural land. I do not know whether Ahmer Memon sold out his land to Roshan Kalhoro whereas the Akram was interested to purchase the said land. Akram also give help to us in this case. It is incorrect to suggest, that at the instance of Akram we have given the name of accused Abdul Hafeez and Muhammad Juman Kalhoro.”

 

 

15.              In the case in hand the witnesses alleged that they have lastly seen the deceased with the appellants on 24-10-2007 and the dead body was recovered on 30-10-2007 till then they were silent and have not stated such fact to any one nor any NC report was made about the missing of the deceased. Even on 30-10-2007 when they came to know about the recovery of dead body through the police, they did not disclose the police that they had lastly seen the deceased with the appellants. It is settled principle of law that Last seen evidence is merely a circumstantial evidence, and that too is a weak type of evidence, which alone could not sustain the weight of a capital punishment, and would require other independent corroborative evidence to effect conviction. In a case of murder, where the prosecution case rested on "last seen" evidence, then corroboration would be required from other circumstantial evidence; each piece of such evidence would have to be proved to complete the chain, stemming from the accused being "last seen" with the deceased, leading to his death. To achieve this, the prosecution had to prove that the death of the deceased took place in close proximity to the time and place, where the accused was "last seen" with the deceased. Thus, the evidentiary value of the "last seen" evidence of an accused with the deceased would depend upon the facts and circumstances of each case, and for a court to reach a conclusion of guilt of the accused, such circumstances must not only be proved, but must also be found to be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt. Reliance is placed on the cases of Khurshid v. The State (PLD 1996 SC 305) and Muhammad Amin v. The State (2000 SCMR 1784).

 

16.              Supplementary statement of the complainant and its value.                        The F.I.R. is the document which is entered into under section 154, Cr.P.C. book maintained at the police station at the application of the complainant. It brings the law into motion. The police under section 156, Cr.P.C. started investigation of the case. Any statement or further statement of the complainant recorded during investigation by the police would neither be equated with F.I.R. nor read as part of it, therefore, subsequent supplementary statement is also considered as statement recorded under section 161, Cr.P.C. which is not signed or thumb-marked as held by the Honourable Supreme Court in Khalid Javed V. The State (2003 SCMR 1419) and Falak Sher alias Sheru v. The State (1995 SCMR 1350). The Honourable Supreme Court in cases of Syed Saeed Muhammad Shah v. The State (1993 SCMR 550), Amir Zaman v. Mehboob and others (1998 SCMR 685), Zulfiqar Hussain v. The State (2011 SCMR 379), Abid Ali v. The State (2011 SCMR 161) and Tahir Abbas v. The State (2003 SCMR 426), has held that supplementary statement recorded subsequently to the F.I.R can be viewed as improvements made to the witness's statement. It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness as has been held by the Honourable Supreme Court of Pakistan in case of Akhtar Ali and others V. The State (2008 SCMR 6).

17.              In the case in hand complainant saw the deceased with appellant party on 24-10-2007 and thereafter complainant party heard about the dead body of deceased through announcement made by the police on loud speakers and then went and identified the dead body as of deceased Ali Muhammad, but they did not disclose that the said deceased Ali Muhammad was last seen with the appellant party nor complainant disclosed about any dispute of money with the deceased. After the postmortem was conducted and dead body was buried then on 31-10-2007 FIR was registered in which names of Muhammad Nawaz, Muhammad Qasim and Habibullah were shown as accused. The accused Muhammad Qasim and Habibullah later on were declared as innocent and not sent for trial by the police. The appellants Muhammad Juman and Abdul Hafeez were introduced by the complainant first time on 06-11-2007 through further statement and in the further statement complainant even not disclosed the source of such information as to how he came to know about the real accused persons who committed the murder of his brother and the question arose that as to why he was silent for such a time till disclosure of other accused persons. There is no independent corroboration to the further statement of complainant and the same is hereby discarded.

18.              Recovery of crime weapon from appellant Muhammad Nawaz allegedly used for commission of offence.                    There is no eye witness of the incident of murder and there is also no evidence as to who used the weapon and which weapon was used at the time of committing murder of deceased Ali Muhammad. Only the appellant Muhammad Nawaz in his confessional statement stated that co-appellant Muhammad Juman has fired from Cartages Pistol (Desi Pistol) upon the deceased. There is no evidence in respect of kind of weapon used in the commission of offence or in respect of carrying of weapon by the appellants at the time when deceased was lastly seen with the appellants. No recovery of the empty of cartages from the place of vardat which match with the recovered pistol. The doctor also during cross-examination stated that “It is fact that at present it cannot be said that injury was caused either with bullet or cartridge.” Even otherwise, simplicitor recovery of even crime weapon from the accused without any direct or substantive evidence is not sufficient to convict the accused. Reliance can be place on the  case of Pervez Masih Vs. The State (2005 P. Cr. L.J. 1232), wherein a Full Bench of Honourable Federal Shariat Court has held as under:

“However, we are afraid evidence of the recovery of crime weapon by itself being evidence of purely corroboratory nature, in the absence of any direct or substantive evidence alone, was not sufficient to bring home charge against the appellant.”

 

19.              Confessional Statement of appellant Muhammad Nawaz before the Magistrate.                   Legal jurisdiction of the Judicial Magistrate for recording the confessional statement of an accused was vested under S. 164, Cr.P.C., which provided wide power to the recording Judicial Magistrate to refuse recording the confession, if it found the same to lack voluntariness. However once, the certificate of correctness was signed, then the jurisdiction to adjudge the relevancy of confessional statement, within the contemplation of Arts. 37, 38, 39 & 40 of the Qanun-e-Shahadat, 1984 vested upon the Trial Court, and not the Judicial Magistrate, who recorded the same. It is settled principle of law that a judicial or extra-judicial confession could be made sole basis for conviction of an accused, if the court was satisfied and had believed that it was true and voluntary and was not obtained by torture, coercion or inducement.  The appellant was arrested on 06-11-2007 and while he was in custody of police his confessional statement was recorded on 15-11-2007.

20.              Appellant in his confessional statement not disclosed the names of accused Muhammad Qasim and Habibullah for which complainant stated in the FIR that he saw the deceased with appellant Muhammad Nawaz, Muhammad Qasim and Habibullah. The appellant also stated in his confessional statement that daughter of the deceased Ali Muhammad was the wife of appellant and such fact has been concealed by the complainant even during cross-examination he negated such suggestions in respect of the matrimonial affairs. However the mashir during cross-examination admitted and stated that “There is relationship in between Ali Mohammad and accused Mohammad Nawaz”. Further appellant in his confessional statement stated that on 24-10-2007 he along with Abdul Hafeez and Muhammad Juman took the deceased from hotel for payment of his outstanding and in the cotton crop Muhammad Juman with straight fire upon deceased from Cartosi Pistol. He not stated a single word about the meeting with the complainant and the witnesses anywhere during such episode. Such aspect of the case reflects that the confessional statement of appellant was not true. Learned Magistrate who recorded the confession of appellant has admitted that appellant was arrested on 06-11-2007 and produced before him on 07-11-2007 and 12-11-2007 for remand and then on 15-11-2007 for recording statment. During such period though the appellant was brought by the police before the Magistrate two times for physical remand he never asked the Magistrate for recording his confessional statement and its recording after laps of 10 days  while appellant was in custody of police reflects that the said confessional statement was not volunteer.

21.              The Honourable Supreme Court in case of Mohammad Aslam Vs. Sabir Hussain (2009 SCMR 985) has held that evidence of Extra-Judicial confession is always treated as a weak type of evidence. In another case of Abdul Mateen Vs. Sahib Khan (PLD 2006 S.C 538) Honourable Supreme Court held that the evidence of extra judicial confession must be proved by evidence of a very high unimpeachable character. In the case of Tajammal Hussain Anjum alias Phalo Vs. State (2018 P. Cr. L.J. 598) [Lahore] it was held by Honourable Lahore High Court that extra judicial confession is not admissible in evidence and has no value in the eye of law. For reliance on the confessional statement the Court is required to satisfy as to whether the accused has got recorded a true and volunteer confessional statement which both conditions are missing in the case in hand and there is no corroboration to the confessional statement of appellant.

22.              Thus, the only evidence to link the accused with the crime was his confession. This single piece of evidence could not be more than circumstantial evidence, and would not alone, suffice to prove that accused was guilty of committing murder of the deceased Ali Muhammad. It is settled by now that when the judicial confession of accused had been legally discarded, then there remained no reliable evidence, other than mere suspicion of him being part of the crime. In these circumstances, one could safely conclude that the prosecution did not produce sufficient trustworthy evidence to prove the charge against the accused.

23.              Medical evidence as to post mortem examination of the deceased.                        In the case in hand the “last seen evidence”, “supplementary statement” of the complainant, “confessional statement” of the appellant Muhammad Nawaz so also the “recovery of crime weapon” has not been believed by this court as discussed above there remains only medical evidence. After the dead body was recovered postmortem was conducted and there is no ocular evidence in respect of weapon used in the commission of offence as entire incident was unseen. The pistol recovered from the appellant if for the sake of understating is stated to be proved by the prosecution even then the recovery of said pistol is not helpful to the prosecution in absence of recovery of empty shell from the place of vardat. There remains nothing recovered from the place of vardat to match with the pistol. It is trite of law that medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury; therefore, the recovery of pistol is also of no help to the prosecution in the present case. Reliance is placed on the case of Sajjan Solangi v. The State" (2019 SCMR 872).

24.              In the present case the complainant party has made dishonest improvements as has been discussed above. It is settled principle of law that deliberate and dishonest improvements made by a witness in his statement to strengthen the prosecution case cast serious doubts on his veracity, and makes him untrustworthy and unreliable. It is quite unsafe to rely on testimony of such witness, even on facts deposed by him other than those improvements unless it receives corroboration from some other independent piece of reliable evidence. Both the witnesses made dishonest improvements in their evidence in order to strengthen the prosecution case, complainant stated that they met with the accused persons when his deceased brother was with them and PW-2 stated that accused persons and deceased were at the other side of bridge. The complainant had not disclosed the source as to wherefrom he came to know about the accused persons and if the further statement of complainant is correct then the version given by him in the FIR is incorrect. The complainant in respect of relations of matrimonial affairs had denied, however the PW-2 and the mashir admitted the same. The complainant stated that he and his witnesses altogether moved about one Farlong from the Otaq of accused and thereafter he went to his relative Muhammad Dural while his P.Ws came at their village, when his PWs went about one kilometer they saw accused Muhammad Nawaz, Abdul Hafeez and Juman together. The PWs disclosed this fact to him on the next morning. The PWs disclosed this fact about 5/6 days later after recording his further statement. It reflects that neither the complainant saw the deceased with the appellants nor the witnesses seen them together. Even these facts they have not disclosed before the police at the time when dead body was recovered or in the FIR which though was registered one day after the dead body was recovered. There is no any evidence with the prosecution to connect the appellants with the commission of murder of deceased in between the “last seen” on 24-10-2007 and recovery of dead body of deceased on 30-10-2007 and even after one day from the recovery of dead body till the FIR was registered on 31-10-2007, such facts creates very serious doubt in the case of prosecution.

25.              It is settled principle of law the Court (s) must never be influenced with severity of the offence while appreciating evidence for finding guilt or innocence because severity of an offence could only reflect upon quantum of punishment. Therefore, even such like tragic cases, the Courts are always required to follow the legally established position that it is intrinsic worth and probative value of evidence which plays a decisive role in determining the guilt or innocence and not heinousness or severity of offence. Honourable Supreme Court in case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), has held as:-

"29. The plea of the learned ASC for the complainant and the learned Additional prosecutor General, Punjab that because the complainant party was having no enmity to falsely implicate the appellants in such a heinous crime thus, the evidence adduced shall be believed, is entirely misconceived one. It is a cardinal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or innocence of an accused person. Even evidence of uninterested witness, not inimical to the accused may be corrupted deliberately while evidence of inimical witness, if found consistent with the other evidence corroborating it, may be relied upon. Reliance in this regard may be placed on the case of Waqar Zaheer v. The State (PLD 1991 SC 447)."

 

26.              It is a well-established principle of administration of justice in criminal cases that finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case is decided merely on high probabilities regarding the existence or nonexistence of a fact to prove the guilt of a person, the golden rule of giving "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 Constitutional Courts, will be reduced to a naught as has been held by the Honourable Supreme Court of Pakistan in case of Muhammad Luqman v. The State (PLD 1970 SC 10).

27.              It is well-settled principle of law that the prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases, namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. If the prosecution fails to discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right, not as of concession as has been held by Honourable Supreme Court of Pakistan in case of Tariq Pervez v. State (1995 SCMR 1345).

28.              The rule of giving benefit of doubt to accused person is essentially a rule of caution and prudence, and is deep rooted in our jurisprudence for safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): “Avert punishments [hudood] when there are doubts” and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment. The Honourable Supreme Court has quoted probably latter part of the last mentioned saying of the Holy Prophet (peace be upon him) in the case of Ayub Masih v. State (PLD 2002 SC 1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." Reliance also is place on the case of Naveed Asghar and 2 others V. The State (PLD 2021 SC 600).

 

29.              Keeping in view the golden rule of giving benefit of doubt to an accused person for safe administration of criminal justice, I am firmly of the opinion that all the circumstantial evidence discussed above is completely unreliable and utterly deficient to prove the charge against the appellants beyond reasonable doubt. The prosecution has miserably failed to complete the chain of circumstances so as to establish conclusively the guilt of the appellants in a manner that can rule out every hypothesis inconsistent with their innocence. The circumstantial evidence tendered by the prosecution is not found to be like a well-knit chain, one end of which can touch the dead body of the deceased persons and the other the neck of the petitioners. I find that the missing links have been liberally filled up by the court below, apparently being influenced by the heinous nature of the charges involved in the case, on the basis of surmises and conjectures, and this has resulted in grave injustice. The court below have overlooked serious pitfalls and grave infirmities in the prosecution evidence by adopting a superficial and cursory approach, not befitting the seriousness of the crime charged in the present case. The appeal is therefore allowed. The impugned judgment dated: 20-02-2016 passed by 1st Additional Session Judge N. Feroze in Session case No. 321 of 2007 re- The State v/s Muhammad Nawaz and others arising out of FIR No. 108 of 2007 U/Ss 302,201 and 34 P.P.C is set aside and the appellants are acquitted of the charges. They shall be released forthwith, if they are not required to be detained in some other custody case.

 

 

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