MUHAMMAD KAMRAN S/O NOUSHEER (Appellant) VS THE STATE (Respondent)

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C ritnirtal Jail Appcal No-453 of 2020

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Vs.

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Mr. Jtrstice Molriltrllllild l(ariltr l(harr A6ilta

l);rtc.s oI'hcirrin1t :I7-l()-2024

I)ccitlcrl ott :14-10-2024

(u).lurlgtttcttt apllrove(l [or Ilcl:ortirtg 1'as

CLiIt 'I IFICA-TE.

Cer-tillecl tIat t[e jpclgurent {'lOrrler is l.rased upoll orenutlciates a principlc ot-larr */dccictes fl questiorr oI larv rv'hiclr is ol Iirst impressiorildistingtrishes/. Or,'cr-rutles' re\;e rses/explains a pt'cviorts dccisioti'

'r' Slriltc nut rvhichcvcr.is rrot applicable.

N O'l'l:: - (i) This slil: is only to [:e ltsccl rvhetr sollle action is to be taktn.

(ii)If the slip is used. thc llcadcr urust. attach it to the top o['tirc tlrst page o[' tlre .i utl gurcnt.

(iii)t{cnrlcr rrirrst irsli tlie.lutlgc n,ritirrg the Judgntcttt u'ltetltcr'tltu: .lurltr;ntutrt is approvccl l'or rcporting,

(iv)'l-lrosc clit'cction.s rvlriclr iu'c llot to tre usccl shoultl tle tlclu'[r--(1. f

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IS*_T.ffii T. OF S INI.}H \bt

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Crl, Jail Appeal No, \t$b of 2020.

Mrrharnmact l(amrnn .t/o Nousher' Mtrslinr, nclult, Pf,escrrtly confined in Centrnl lrrisott, Knrnchi.,,.. * r r r r r *. r * r. r. r. r r., r l * r r. r l, r * . ..Appcllnn t. in pcr$on. ,l.llc StAtC.,,,,,.,,,,,. +,. i r,. ., ...1t:::::::....,,,.,.,,,,.,, Respoflr,lent. - Scnslons []usc N(), I 2l{t/:J# I U FIIt No,200/20 l9 Se ctions "302 PPC.

[]S. Steel'fown.Knrnchi.

APPEA L UNDER SECTIOI{ +1O cR.P,C.

l lonotlrnbL- Sir,

Being tggrievecl atrd dis-satisfied with impugncd jpclgement <lated 24.0:1.20?0, passecl by Mr. Shahicl Ahmed Arvan, l*anred 3rd Additionnl Ses$ious Judge l(arachi, Malir, (Mdcl Crirninal l'rial Corrrt) in Sesr:"ions i.-'ase nrrrnbcr metilir.rrrect above re: The Stnte \Is. It'h,,irg.rrirnarl ?,umran s/o Nousher, bcing outcotne of IllR nirnrber nrcrrtionetl ahove , Prrlice Station 'Steel 'l'(]\t n, I(arachi, irrrrler sections 302 PPC.

Whereby convictirtg and sentent:i:rg tl:e Appellant/ accused hy nrvarcting hinr lifc Imprisonnrent under section 302 (b) FPC and to pay comlrensation of Rs. 10.O0.OnO/-t* lt1;tl heirr: nf deceased in vielv of section 5'ra-A Cr.P.C.

Benefit of section 382 (b) Cr.i).C was also extended.

/ The Appellant/accused in p(:rson has ccrne in appeal bcfore tfiis Hononrable Court with a pra3rer that this Honottrahle Court may be pleasect to call for the R&Ps r:f aforesaid Sessions case, peruse the same, so also the impugned juclgement ancl may furtlrer be pleased after hearing atrd satisfying itself as to the legality, propriefy and rnaintainability of the impugned judgement be pleascd io ,."*pt this appeal ancl rrra] fr.rrther be pleased as a consequence to set-aside the impugned judgement and the conviction arvarded to the appeltant ancl this l{ontturablc Court tnny further be pleased to acquit him from the charged o[[ence, inter-alia on considcration of follorving facts and grortntls:- g1rp"v of tht intpttgnt'J jr.rdgtntrnt in Scssrr''ts Clse No. lll81tOl9 is ntrtrert'rl hettt'tth ntrd trtrrkctl .ts ..\'

FACTS.

lincts o[ tlru lir (rsccution cnse ns gler IrlR nre thnt thr cgnrplainant is resirlent of Mr-trec:d Cnbol Gotll Pipri Bin Qitsinr Malir, I(arachi. On I0.05.2010 tlrc son of tltc cotnplninattt trutnely Eiaz Ali who rvas workirlg f,r.q nlecltnnic nerlr tihahtrnz lretrol Plrttrp ffito-tIlisaccusrtlI(anlr[lnnndltiscoIIu)flnionttsetlttlissr"tt: -rat.lir-*h

tflreats to his sor: flor cli,rsittg tlte rvorl< of tnt:chntric clse ltc rvotllcl btr rnurdercd. On sanlc clay, ut nlrottt I 130 lrottrs the compleinant rcccived a call from thc ccll phone of lris sott tlnmely Ejaz Ali bearing No,.0303-20I5307 anrl thr: Ilursorr rlisclosert his nami us Mr:lrammad Alam who told that the son ui tlte complainant was assaulted by lrnife rvith interrtion to comnri'; mttrder by one I(amran I and his companion Aslam and Flafeez rrnrl lhey Ere shiflting him to Al-lflridrnat Hospital for treatment and re quested to come there

I

IN THE HIGH C UR OF DH AT KA RA CHI

Prq.tgrlti t"tr.Irrslfm Moltttrrrrtnil Knrlttr Khau Agha

qRL. I.AIL AI',PIAL NO.453p-r 4020

Appcllant: MuhammarlKarnrans/o'Nousherthrough M/s.lftikharAhmerlshah,RajaZeeshanand Shahrneer Mcmon, Aclvoca tes

Respotrtlct'rt: The State through M/s. Muhammad lqbal Awan, Addl. Prosecutor General, Sindh and Mumtaz Ali Shah, Assistant Prosecutor General Sindh.

Date of Hearirrg: 17,10.2024

Date of Annoutrcetnent: ?4.10.2024

TU GME NT

was triecl in Moltgttnnarl Karim Khary Ag'lra,,I: Appellant Muhammad Kamran ,/ the Model Criminal Trial Court/Addifional Sessions ]udge-ll Malir Karachi in Sessions Case No. 1218 of 201,9 in respect of Crime No. 2fi6 of.2019 registered under Section 302 p.p.C. at P.S. Steel Town, Karachi and after a full-fledged trial vide judgment dated 24.02.20?:0 he was convicted under section 302(b) P-P"C- and sentencerj to suffer irnprisonment for life. He was also directed to pay fine of Rs.i.0,00,000/- to the legal heirs of the deceased under Section 544-A Cr.PC anrl in case of default in payment he shall further unclergo simple imprisonment of six months. Benefit of section 382-8 Cr.P.C. was extent{ecl to the appellant.

2.The brief facts of the case, as per FIR are tlrat the complainant is resitielt of Mureed Gabol Goth Pipri Bin Qasim Malir, Karachi. Orr L0.05.2019 the son of the complainant namely Ejaz Ali who wfls working as mechanic near Shahbaz pelrol Pump and due to tl'ris accused Kamran and his companion used to issue threats to his son for closing the work of mcchanic else he lvoukl be murtlerer-1. on sarne day, at about 1130 hours the complainanb receivetl a eall fronr tle cell phone of his son narnely Eiaz Ali bearing No'0303-2015307 ancl the person I disclosed his name as Muhammad Alam who tolcl that the son of tire complainant was assaulted by knife with intention to cornmit nrurcler by o*e Kamran and his companion Aslam and Hafeez' anci they are shifting him to AI- q

\t# come there urgently' Khirlu"rat l-lospitrrl for t*:atrncut anrl rctluestcd hinr to doctor gave first aid Whcn, tftc corrrplnirrnlrt rcncltctl to r\l-Kfuitlnrnt l-Iospital' (JPMC)' where thc anti strgllcstctl t6 slift tftc pnticrtt nt Jlrrrrnfu l-lospital Karachi to finnalr Hospital but ror.r.rplniunlt, hiursr-'lI tlrroullh nml:ulnncc shiflccl his son instant FItt was t[r" irrjrrrctl !\,i'ts uxpirctl due trl sucfu i6iurics, hence the rr:gisterurl.

sheet against the

3.After conrpletinn of investigatiorr I.O. $ubmittecl charge f,ccusetl persolls to rvhich the appellant pleaci not guilty and claimed trial'

il. The prosecution in arrjer to prove its case examined I witnesses and of accused was exhibitetl various clocuments ancl other items. The statement recorcled u*der section 342 cr.p.c in which he denied all the allegations leveled

against hirn. He, however, clicl not give evidence on oath or call any DW in

support of his defence case.

trial s" After hearing the parties and appreciating the evidence on record the court convicted the appeuant and sentenced him as stated earlier in this

filed this appeal against his conviction' iudgmelt and hence, the appellant has appeal against ,{ The co-accused was acquitted based on a lack of evic{ence and no acquittal l"ras been filed.

6.The facts of the case as well as evidence produced before the trial court find an elaborflte mention in the impugned judgment passed by the trial court and, therefore, the same may not be reproduced here so as to avoid t{uplication and unnecessary rePetition.

T. Learned counsel for the appellant has contended that the FIR was lotlger.t after a delay of.l1hours which has not been adecluately explained; that the dying

declaration of the deceased whereby he implicatecl the appellant in the offence cannot be safell, relied upol"r; tlrat tlris is uot il case of last seen evidence; that there are material cnntraclictions in the cvicletrcc of the witt'tesses which tenr-lers their cvitlence unreliablc; the nppellarrts lrlcntification is in doubt and the recovered knife was foistcd on thc appellant by the police antl that for any or all of the above reason$ the appcltant should be acquitted of tl're cllarge by being extendeil thc benefit of the rloubt. In support of his conLentions he has placeel reliance on the cases of Baeharat All v. Muhammnd $afdar (2017 scMR 1601), Muhamnrad 5, r m, i a z a r i rs

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8.On tlre other hnnrl Ic*rnetl APC nppcnring ()n bchalf of thc Statc has fully supportetl tlrc irttpuyrrwrl iutllimurrt nnd crrntcnrlcd that thc app*al is withtrut r:rcrit atrtl shorrltl bc rllsntissr.d, I'[c ltns conlcndctl thnt tha clying rlcclaration wlrurt'by the tltrt'rlsrtl iruPlicntutl lh* nppcllnnI ln tlrc murtlur can bc safcly rclictl u[)r]n rt,lticlr is rurrtthrtrntctl lry thc Ins[ sur:n cvirlunce nncl the rccovcry of thc nrurrlcl' \vcit[)(]u (krritc) otl tlre appullnn['s pointation. In support of his corrtt'rrtiuns lrc hns plnccrl rclianclr otl tlte cascs of ltayyae Ahmad v. The State (2t117 SCh{R 2026), Muhnrrutrnd Abid v. Thc State (PLD 2018 SC t}"13lr, Mulrarurrrad Ashraf l(lratr Tarcetr v. TIte Statc (1996 SCMR1747), Abdul Khaliq v. Tle St;rte (2021 SCMR 325), Maieed v, The State (2010 SCMtt 55). Muhamnrad Nadeern alias Deenri v. The State (2011 SCMR 87Zl and Muhanunad llyas v. The State (2011 SCMR 460).

9.I have heard the arguments of the learned counsel for the parties, gonc through the entire eviclence which has been read out by the appellant's counsel, and the impugp'red judgment with their able assistance and have considered the relevant law including the case law cited at the bar'

,f 10. At the outset based on the prosecution evidence, especially the merlical evidence and thr: blood stained earth found at the crirne scene I find that the prosecution has proved bevond a reasonable doubt that on 10.05.2019 at L1,30am hours Aijaz Ali (the deceased) was stabbed to death at Gulshan-e-Hacleer,l Double road, Muslim Road coach bus Ada opposite Shahbaz petrol pump Karachi. This fact is not disputed bv the parties.

11.The only question left before me therefore is who stabbed and murtlered the deceascd at the said [ime, date and locatiorr?

L2. Aftcr my reasscssment of thc evidence I finrl that the prost:ctttion has NOT provctl bcyoncl a rcasonat:le cloubt the charge against the appellant for which he was convicted kecping irr vlaw that each crinrinal case is basct{ on its own particular facts, circurnstflnces ancl evirlence for tlte following reasons.

(a)Tht FIR was lodgecl by the complainant/father of the cleceasect after a ctelay of 12 hours lrowever I do not find such dclay to be particularly relevant as such delay has been fully explained. This is because although the deceased was seriously injured at the crime scene he dici not clie immediatcly, instead lre was taken to the local Al Khiclmat hospital wtrrere the complainant reached and then transferred to ]PMC hospital where he died en route and after his body was handed over to the comnlainant w6o took tire l:ody lrome and after completion of police formaliti6 tl-,*n lodgecl.

I

ty thc FIR. As .such dclay in lodging thc FIR is not fatal to the prosecution casc nlthough its contcnts {rs will bc rliscussed later might be very tlctrinrurrt to the prosccution casc. In this respect rcliance is placed on the cilse of Mulrarrurtrrl Natlecnr nllan Dccml v. Thc State (201I SCMR S72)

(t)I fintl that thc pro.secutlon's casc rcsts almost exclusively on (a) the rtyi111r rlcr:lnrntiotr wltich thc deceascd made to the complainant in the nrnbulnncc crl routu to jllMC and (b) so callcd Inst scene evidence each of rvhich I wilt tlcal irr clctail wlth bclow;

Guirlcliucs for tlrc law orr rclying on * dying declaration were set out in the c;rse trf ltiajrci r. Slrtfc (2010 SCMR 55) where it was held as under:- "7. Tlrc evidence of P,Ws.S, 4 and 7 reueals that when theg reached on lhe fire-ann reg;orts tlteg found the d.eceased Mir Shandad tging dead white I[ujeeb-ur-Rehman was aliue but lging in injured cond{lfon wha discloserJ that tlrc appellant Majeed and Ismail had fired at them. P.W.7 apart trom narning the aboue two persons also named Naseer and Bashir. All lhese three u.ritnesses were cross-exflmined but nothing came on record fo discredft tlwir euidence. lYo senbus effort was made ta clwllenge their stafement on the question of dging declaration. From the euidence it has beerr esfablfshed beyond any shadow of doubt that deceased Mujeeb-ur' Rehman made dging declaration immedtately a|ter the inadent, elfrninaffng the. pos.sibilftg of infiuence etc. befare the witnesses makrng the appellant responsible as one ol the acrus ed far causing them fryunes. It ts a well-settled principle of law that if dying declaratron fs made euen before a priuate perso& is free from infiuence and the persons be-fore whom such dging declaratton lros made was exo:mined then it becames substontiue piece of euidence and tor that no corroboration fs required and such ,{ declaration can be made basis of conuiction. ?his Court gnae following gu.tding prlnclples /or relylng upon the dytng declaratton in th.e cflse of Formo,nullah u. Qadeem .I(hcrn 2OOl SCffR 7474,

(i)There is no specified forum befare tuhom such declaration is required to made,

(ii)There ds no bar that it cannat be me.de before a prtuate person.

{iit} There rs rro tegat requirement that the declarafibn must be read ouer or rt must be signed by its maker.

{tu) It should be influence free,

{u) In order to proue such declaratian the person by whom it ruas recorded should be examined.

{ui) ,*rch declaration becomes substantive evidence when it is praued thsf ft uras made by the deceased,

{uii) Corroboration of a dying declaratdorr fs nof a rute of law, but requirement of prud ence "

fuiifl .$uelr declaration when proued lry cogent emdence celn be made a basfs/or eanuiction."

In essence there is no hard and fast rule whether a clying declaration can be believed and can be safely relied upon. Much will depend upon the particular facts and circumstances of the case. In this respect refiance is placed on the case of Ms Zahida Bibi (Supra) i For the following reasons I place no reliance on the dying declaration of the deceased:

t,

11'30am in broad day light

(i)The incitlent occurred on 10.05.2019 nt about rvlren tlre deccasetl was founrl-scriously iniurert try his co-workers PW 3 dcceased however was Ivlulrarrtrt*t{ Razufiq flnd PW 4 Allah Noor, Thc corrscious throug,hottt trut ltc Llid not pcrsonally tell either of these remained conscious witnr-,sst's thnt thr.' appt'llnnt irntl stnbbcil him' Lfc rcveal to thc p'lice' trrrtil his rlr"-nth n ,ruri,t ttr ttf ltttttrn latcr yct tlitl n't rlur$r.s trr l)f's tltnt tltt'nppt'llrrnt lrntl *tn[t[rt'tl him'

(ii)lrrstt-,rtt nflt,r trfirrll tnken frotn tltc wnrtl*t til AI Kidrnat I lop'tital ancl llrt,rr rt,fr'rrr.tl to JI'MC [ltt* tlccensed according tu the eviclence of the ctrnrplilinattt gar,r his tlyirrg dcclnratlon to thclomplainant nlone in the tfuc IPMC he ttritl nnt tell any ,turtrulnu..,r or1 tlte rvny tJ ttri JflMC. Once nt stabbed him.

i;iil *ffi..cr, Dr or airy oth* person tt11r-*.ty opp*llr.nl hactr finst this fact inexplicable.

I{u trir.tr a fr:*, hours nft*, reaciring the JpMc. I iVi,1- rv*ultl nn injured lrut conscious man not immediately tell the porJo,l* u,ho tliscovcred him at the warclat, the police *ho- toak him from the rvarr.lat to the Al Kidman hospital and the D/s at the hospital the This would have been the key i.t*ntit1, of rvho hac{. -ita, Ttut b"d him.

qr*rtio,. ort all these pdbple s mind especially the police yet the deceased ,ii.l not mention to any of th**, even after he was transferred to JPMC, tlat the appellant had stabbed him but only told his father alone in the to ambulance en route to JPMC. I find that such conduct does not appeal logic reason or common sense.

(iii)Most significantly, the complainant lodged his FIR about 12 hours after his son/deceased had given hirn his dying declarakion yet there i: n? rnention in tl're FIR of his son's/deceased dying declaratlon. Again I find this completely inexplicable. How could the complainant forgotten to have mentioned such important fact, iJ not the key fact in this case, iust a few hours later when he lodged his FIR. Instead he nominates three separate person's in the FIR based on hearsay evidence of one Muhammed Alam r,r,ho dicl not give evidence two of whom were not named in the dying delcaration. Once again, I find that such conduct ctoes not appeal to logic reason or colTrnon sense.

(iv)Again significantly in his 5.342 Cr.PC statement no question r.vas put to the appellant that the deceased made a dying declaration rvhich implicated the appellant in the cleath of the deceased yet the trial court placetl reliance on the deceased'r .lyilg declaration. It is well settler"t bv now that all the evidence must be put'to the accuser.l at the tirne of his recording his 5.342 Cr.PC statement and any evirlence which is not F:ut tp him antl has a chancc to cxplain cannot be userl to lead to the copr,'ictiorr of the accuserl and rnust tlc rliscartlctl. Iu this rcspect relinnce is prl;1sr*11 o* the case r:f Imtiaz alias Taj (Supra)

The key piece of avidence ngaintt the accused was the dying cleclaration of the deceased whiclr I havc dlscarcle cl for the reasor.* *r*ntionecl so what other evidence renraine agninst the accused. ,U"r-

(v)Flaving excludecl thc dying dcclarntion fronr consirleration sincc therc was no eye witncss to the murdcr thc other picce of tvirlence against the appellant is so called last seen evidence and as such the case is basecl on

circumstantial evidence which the court must vipr^, t.-irr caution. In this respect retiance is ptaced ;'h;':;--Jli?:H?[rl,.$ M.,iahid Khan (2016 SCMR 274) which held as under; "' ' h

"ltt cilses of circumstantial euidence, the Courts are to take extrnordlnary cfire and caution before relying on the sfiffie. Cfrcrtntsf nntinl uridence, eutn d supparttd by defecliue ar innrfuqunle euidtnce, crttutot be mnrte [,n.+is far conuiclion ofi fi r:rrlrflnl chnrgc, More ynrtiailnrly, wlrcn tlwre nre indicntions o{ dcsigrt irr tlw yrrpttrnlian of n cnse or inlraducing nny pieu of rtthrimlcrl ntidurce, llw Courl shoulil nlu,nys be windfirl to tnl<t wtrnordiilfiry yrcrmtliorts, so thnt tlw possibility of it being lrlifurntrly rrrislrrl inlo filsc inftrancc nnd pntcntly wrang rurtrlrtsftul i.s lo be nild out, llwrt[oru hard nnd fast rules sltould ln' nyylird for rnrcltlly nnd nnrrowly cxrutining cirutmstnntinl rt'frlrttre frt sttdt rdsrs llcrnrrse chnnrcs of fnbricnting such eaidence tu'l1 nlrrrtys llrrrr,. To justify tlrc iufcrence of guilt ol an rrrt:rsrd lrcrso,r, the circruttstnntlnl caiitfice fifitst tte o,f a quality to ln incontpatible tuitlt tlrc innocence ,I tlrc rtrtttsei. Il suclt circuusttrtttiul cuideuce is *ot of thnt standard and quality, it would bc highly dangerous to rely ultott tlrc sante by awarding capital yutrishmenL The better ^r nnd snfe course would be not ta rely upott it in securing the enrls of justice."

(d)Likewise irr the case of Fayyaz Ahmed V State (2017 SCMR 2026) the great care and caution in which circumstantial evidence needed tc be scrutinized was emphasized especially when dealing with a capital case in the following terms;

"To belieue or rely on circurnstantial eaidence, the utell settle.d and deeply entrenched princiyle fs, that it is inryeratiae lar the Prosecutiotr to proaide all linlcs in chain an unbroken one, where ofle end of the sante touclrcs the dead body and tlrc other the neck o! the accused. Tlte present cnse is of such n nature where mnfly links nre missing in tlrc chnin.

To cnrry canaiction 0t1 a capitnl chnrge it is essentinl thnt cattrts Itnve ta deeply scnttinize the circumstnntinl euidence becmtse .fnbricrrting of suclt euidence is not u"nclmruon fis rpe hnue noticed irt same cfises thtts, uery ninute nnd nnrroru exnninntion of tln sttw is necsssnry to sec-Ltre tlrc ends of justice and thnt tlw Prosecution lms to establish the cnse beyond nll rensonnble doubts, resting on circurnstnntial eaidence, "Rensonnble Doubl" daes not tnefin nny doubt but it nrust be nccontpnnied by arch reflsons, sulficient Io perumde n judtcinl nind for plncing relinnce orr il. lf it is shart of suclr stanrlnrrl, it is Isetter to dismrd the snme so thnt an lnnocent persoil tuight not Ise sntt to gnllotus, To draw an infercnce of guilt lrom suclr eaidence, tlrc Courf lrns to ayplry its juillcinl tttind ruith deep tlrcugltt nnd tuitlt extrn cflre and cnnlfott nnd rulrcueuer thtre ilre ofie or sornr inillrutlorrs, shorulng the ileslgrt ol tlrc Prosecution of munufaclurlng nud yrepnrntiort of n cnse, the Courts lmue to shaw rcluclnnce to belleae it unless it is iudir.itlly sntisfierl nbout the ytttt' of accused prrson tuul thc required clmrrr is mnrfu ont wlthout tttissittg link, otheruuise nt rnn1onr rcliance on sudt euldtn* would result in failure of justice,,. It nmy nlso. be kepl in ruind thnt sorttetinrcs tlw inztestignting ngetrcy collects cirrumstnntisl eaidence seelrs nppirentt"y belieasble _lrurueuer, if the strict stondn-rds of scnit:.iny nre apltlied tlrcre woulrl nppenr ,fintty cracks oni ,lou.ttts irt the

safite wliclt sre always inherett therein mfi in thst cnse n)

Cortrfs Imve to rliscard nnd rlisbelieue the smne," fttold ndded) Turning to the circunrstantial evidence in terms of Iast seen evidence, The test for last seen evidence has been set out in the following cases in the following terrns;

Irr Fayyaz's cnse (Supra) at P.2030 al, Para 7 it was hcld as under relSardirrg lnst $eetl evirlerrcc;

"Tlte last seetl evidetrce is onc of such categories of evideltce. Itl this category of cases some fundamental principles nrust be followed arrd the Prosecution is under- legal oLrligation to fulfill the same, Boille of which may be cited bclow:-

(i)There must be cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused and those reasons must be palpable and prima facie furnishecl by the Prosecution,

(ii)The proximity of the crime scene plays a vital role because if within a short distanre the deceased is done to death then, ordinarily the inference would be that he did not part ways or separated from the accused and onus in this regard would shift to the accused to furnish those circum.stal'lce.s under which, the deceased left him and parted ways in the course of transit.

(iii)The timing of that the deceased was last seen with the accused and suhsequently his murder, must be reasonably close to each other to exclude any possibility of the deceased getting away from the accused or the accused gefting away fronr him.

(ir)There must be some reasons and objects on account of which the deceased accompanied the accuseci for accomplishment of the same towards a particular destination, otherwise giving comPany by tl're deceased to the accused would become a question mark.

(u)Additionally there must be sorne motirre on the part of the accused to kill the cleceaserl otherwist-' thc' Prosecution has to furnish evirlence that it rvas during the transit that something happerreci abnontral or unpleasant wlrich tnotivated the accuser,l in killing the dcceased.

(ui)The quick reporting of tht mattcr rvithout any undue delay is essential, otherwise the prosecution storlr would bccorne doul:tful for the reason that the story of last seen was tailored or designed falsely, involving accused Person.

Beside the above, circumstantial evidence of Iast seen must be corroborated by independent,

evidence, coming from unimpeachable source because uncorroborated last seen evidence is a weak tyPe of evidence in cases involving capital punishurent.

(vii)Tlrc rccovcry of the crime weapon from the accused ftrttl tltc opinion of the expert must be carried out in a tr.nrrspnrerrt nntl fair tnanner to cxclude all possible tlnubts, which lnay arise lf it is not done in a proper nrttl fair lnflt1tler.

(rriii) 'l'he Court has also to seriously corrsider that whether tlre dccraser{ was having any contributory role in the cnusq of his dcath inviting tlrs trouble, if it was not a pre-planned and calculated murder,"{Bold added) 11 tlre latel ca$e of Muhanrmed Abid V State (PLD 2018 SC S13) which delyed furthel into the cloctrine of "last seen together" evidence it was hehl as unrler at P.817 Para 6:

"The foundation of the "last seen together" theory is based on principles of prot:ability and cause and connection and requires L. cogent reasons that the deceased in normal and ordiuarll course was suPposed to accompany the accused. 2. proximity of the crime scene. 3. small time gap hefween the sighting and crime. 4. no possibility of third person interference 5. motive 6. time of death of victim. The circumstance of last seerl together does not by itself necessarily tead to the inJerence that it was the accused who committed the crime. There must be something more estahli,shing connectivity between the accused and the crime" (bold added).

Returning to the ca$e in hand.

(r)In fact there is no last seen evidence. This is because no witness actually saw the deceased with the appellant before the incident. Instead the wifnesses say that they saw the appellant running away after they ruere shown where the deceased was lying injured. It rt'as not unusual for the appellant to be in the vicinity as he workecl for the same bus co*piny as the deceased and the witnesses ''n'ho found the injured deceased which was near their place of work. So simply to conclude that because the deceased was seen running away that he comtnitted tlte crime is not sustainable in lan'' (l:) The witnesses wlro saw the appellar"rt ruuniug away clo not say how far away he was from them and whether they saw him from the back or the front so there might even be sotne doubt about the identity of the appellant. Furthennore, according to the evil{ence the witnesses found the injured deceasett after tlre body was pointed out to thenn after tl're deceased had been stabbed and was lying injured so it is unclear lrow long the witnestes weJe shown the Tnjuiecl bociy after the cleceasecl was stabbecl. It i.toes ,-,ot appeal to logic, commonsense and reason tha-t if the appellant hact stabbed the deceased and seriously iniurecl him that he-woulcl just hang around the crime scene. He would have rnade his escape good before the body was found. ,

(c)Nonc of tht'witncsses who gavc evirlcncc in respect of the last $eer1 cvirlcrrcr are narred in tlrc FII{ artd they nll gave their A.161 Cr,PC statunrr:nts 4 to 5 rlnys aftcr thc incident which also brings their evitl*ncc irrttr tloubt rluc, to .*uch long tlelay in recording their so tnlh-.rl I'yc wittrr'ss S,'161 Cr.PC statcments.

(tl)'I.trr' prnsccution hns not provcd through any eviclence the rnotivt-', as ttt why thc nppcllant would murcler the cleceased' (r') As suclr I rlo not find tlrat this case tneets the legal requirements of circurrrstautial cvirlcrrce and/or last seen evidence which in any cveut rnust tre corroborated by evidence from an unimpeachable sourcc which is not available in this case.

(l)Eveu the rccovery of the murder weapon (knife) is in doubt- Whilst some witnesses state in their evidence that it was recCIvered at the wardat other witnesses (police) state in their evidence that iurrnediately after they arrested the appellant on the same day he lcad the police orr his pointation to a hotel where he had hidden the rnurder u'eapon from where it was recovered which aPpears to be a material contradiction when placed in juxta position with the other evidence on record.

13.Based upon the above discussion I find tlrat there are doubts in the prosecution case and thus by extending the benefit of tl're doubt to the appellant I hereby acquit hirn of thc charge and set aside the impugned judgment and allow the appeal. I'he appellant shall be released unless he is wanted in any other custorly case.

J E 2-'l ),{ er-1