ALTAF HUSSAIN vs FAKHAR HUSSAIN and another

' IJAZ-UL-HASSAN KHAN, J.---Through this petition, Altaf Hussain, petitioner, seeks leave to appeal against order dated 25-2-2008 passed by learned Lahore High Court, Rawalpindi Bench, Rawalpindi, dismissing Criminal Appeal No,169 of 2004 filed by petitioner challenging acquittal of Fakhar Hussain, respondent, vide judgment dated 1-4-2004 rendered by learned Additional Sessions Judge, Chakwal, in case F.I.R. No,48 dated 12-6-2003 under section 302, P.P.C. Registered at police station, Choa Saidan Shah District Chakwal.

2. Since facts of the case in sufficient detail stand incorporated in the impugned order as well as in the memo. Of petition, therefore, need not be reiterated for the sake of brevity.

3. After registration of F.I.R. At the instance of Altaf Hussain, complainant/petitioner, maternal uncle of Shahid Hussain, deceased, police investigated the matter and submitted challan before trial Court. At the trial, prosecution produced 13 witnesses in support of its case. Respondent in his statement under section 342, Cr. PC. Denied the prosecution allegations and claimed to have been falsely charged. In defence respondent examined 'Muhammad Gulistan, Head Constable.

4. Upon consideration of the material placed before him, learned trial Judge vide judgment dated 1-4-2004 extended benefit of doubt to respondent and acquitted him from the charge of murder of Shahid Hussain, deceased. Petitioner impugned said acquittal of the respondent before learned High Court by filing a Criminal Appeal which has been dismissed as mentioned and stated above.

5. Malik Shahzad Ahmed Khan, Advocate for petitioner, bitterly criticized the impugned judgment and attempted to argue that sufficient material was available to prove that deceased was lastly seen alive in the company of respondent, which has been discarded without any justifiable reason; that the recoveries from the spot coupled with the evidence of motive, extra judicial confession and recovery of weapon of crime i.e, hatchet, inexorably connected the respondent with murder of the deceased; that minor lapses, defect and lacunas on the part of the investigating agency do not become base for the acquittal of the respondent from the charge, that the impugned judgment whereby benefit of doubt has been extended to the respondent underlies an impossible view in as much as the evidence led by the prosecution conclusively established the guilt of the respondent, prosecution evidence taken from any angle is not capable of being construed differently than the guilt of the respondent and strong evidence is available on the record making a full link and chain leading to the guilt of the respondent, which has not beet. Appreciated in its true perspective, resulting in complete failure of justice.

6. We have heard arguments and submissions of learned counsel for the petitioner. We have also gone through the record of the case with his assistance. Learned counsel has not been able to point out any piece of evidence which could persuade us to hold that the findings of fact recorded by learned trial Court as well as High Court are against the evidence brought on record, the impugned judgment are neither perverse nor arbitrary nor against the evidence on file.

7. It is settled principle of law that the last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case. This piece of evidence has been disbelieved by the trial Court as well as learned High Court and rightly so. So far as circumstantial evidence is concerned it does not lead to the conclusion in any manner that the respondent had any hand in the affair and caused the murder in question. Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deteased and other corner to the neck of the accused. Failure of one link will destroy the entire chain.

8. It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.

9. It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.

10. In view of the above, we do not find any substance in this petition, which is dismissed and leave refused.