' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,289-J of 2003 filed by Aurangzeb alias Guddu and Imran Sohail appellants, who were convicted and sentenced by Judge Anti-Terrorism Court-I, Gujranwala vide his judgment, dated 20-5-2003 under section 302(b), P.P.C. And under section 7(a) of the Anti-Terrorism Act, 1997 to Death with the further direction to pay Rs,2,00,000 (two Lacs) each as compensation to the legal heirs of the deceased or in default thereof, six months' S.I. Both the appellants were also convicted under section 201, P.P.C.
And sentenced to seven years R.I. Each and a fine of Rs,20,000 each and in default, three months'
S.I.
2. Facts of the case are that on 4-10-2002 Munir Ahmad, S.-I. Was present at Ali Gee Town in connection with his patrol duty and security measures, where he found a dead body of an unknown person lying under the tree on the Kacha Path, Raj Kot near Jannat Town. The dead body was burnt by sprinkling the kerosene oil. On his complaint, F.I.R. Was registered by Muhammad Afzal, Moharrar.
3. Munir Ahmad S.I. P.W.11 after sending the complaint Exh.PK to the P.S. Took into possession three bottles lying near the dead body vide recovery memo. Exh.PE. He also prepared inquest report Exh.PL, application for postmortem examination Exh.PL/1, inspected the place of occurrence, prepared site plan Exh.PM, he also got prepared the photograph of the deceased Exh.PN, issued advertisement about the dead body Exh.PN/1. On 21-11-2002 Muhammad Aslam, Shakeel and Ashraf came at the Police Station who checked the advertisement and also identified the photograph of Arshad deceased. On 23-12-2002, Haider Ali and Muhammad Afzal joined the investigation and made their statements that the accused namely Aurangzeb alias Guddu and Imran Shoail are involved in the murder of Arshad deceased and they be arrested, then, both the accused-appellants were arrested on 26-12-2002. On the pointation of accused Aurangzeb alias Guddu, Photograph, purse and handkerchief (romal) were recovered, which were taken into possession vide memo. Exh.PE. On 27-12-2002 Imran Sohail accused got recovered a wlist watch, which was taken into possession vide memo. Exh.PF. On 6-1-2003 on the pointation of the accused the Investigating Officer got recovered Rs,7,000. Out of the said amount, Rs,5,000 was recovered on the pointation of accused Aurangzeb while Rs,2,000 on the pointation of accused Imran Sohail, which were taken into possession vide memo. Exh.PJ and Exh.PJ/1 respectively. After completion of the investigation and other legal formalities, the accused/appellants were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 11 witnesses in all, thereafter, learned P.P. Tendered in evidence report of Chemical Examiner Exh.PQ, report of Bacteriologist Exh.PR and closed the prosecution case, then, the statements of the accused-appellants were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication.
5. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record learned counsel submits that there is no eye-witness in this case; the case rests on circumstantial evidence and extra-judicial confession having come from the mouth of Hiader Ali P.W.10, who is real maternal uncle of the deceased; Haider Ali, P.W. Was never asked by the appellants to help them; he was not previously known to the appellants; when the appellants allegedly after making confession ran away, no hue and cry was made by the P.W. There was no need on the part of the appellants to create an evidence against them by making extra-judicial confessional without asking P.W to get them pardoned from legal heirs of the deceased; P.W.10 neither went to the Police Station nor informed father of the deceased on the same day but informed the Police on the next day, so the evidence of Haider Ali P.W.10 does not advance the case of prosecution. It was submitted by learned counsel that the deceased was identified by his father through a photograph which photograph Exh.PN too was not identifiable. According to doctor P.W.1, who conducted postmortem examination on the dead body of the deceased, the scalp was burnt and blackened and that face and neck were severely burnt and roasted. The P.Ws. Being related to the deceased were also stated to be interested witnesses.
' As to recoveries, learned counsel for the appellants submits that the articles allegedly recovered on the pointation of the appellants were never mentioned in the application, dated 3-12-2002 moved by Muhammad Aslam,' P.W.6 father of the deceased. To support his submissions, learned counsel has relied upon 1996 SCM R 188, 2000 SCM R 528 and 683.
' With this background, learned counsel for the appellants submits that the prosecution having failed to prove its case, both the appellants are entitled to acquittal.
6. Learned counsel for the complainant submits that Haider Ali P.W.10 though related to the deceased had no enmity whatsoever with the appellants; in such like cases the accused approaches the near relations to get pardon, he while appearing before the trial Court has fully supported the case of the prosecution; he know the appellants because he had been visiting the shop of Anwar ul Haq, where accused Aurganzeb was an employee; this witness P.W.10 has stated before the trial Court in clear terms that the accused while making extra-judicial confession stated that he should get them pardoned; no explanation was got by the defence counsel before the trial Court for going to the. Police Station after 24 hours and that the appellants had not challenged during cross examination that it was not the dead body of son of Muhammad Aslam P.W.6. Further submits that wrist watch, handkerchief and photograph of the deceased were recovered on the pointation of the appellants. Adds that the accused had made extra-judicial confession on 22-12- 2002 while Muhammad Aslam P.W. Submitted application to the Police on 3-12-2002 so it was not possible for Muhammad Aslam to have mentioned the fact of extra-judicial confession in the said application. Lastly submits that P.Ws having no enmity with the appellants, there was no question of their false implication.
7. Learned counsel for the State adopts the arguments advanced by learned counsel for the complainant.
8. We have heard learned counsel for the parties and have gone through the evidence on record.
The prosecution case rests on extra-judicial confession and recoveries from the appellants. It was an unwitnessed occurrence. The evidence of extra-judicial confession was furnished by Haider Ali P.W.10. He is real maternal uncle of the deceased. The alleged confession was made at Gujranwala while Haider Ali, P.W. Belongs to Sialkot. Even the conduct of Haider Ali P.W. Is most unnatural. He did not raise any hue and cry when the appellants made confession before him and ran away from him. He neither went to house of father of the deceased nor informed the Police on the day when the confession was made before him. There is no supporting evidence to the statement of Haider Ali P.W. Even otherwise, it is settled law that extra judicial confession is a weak type of evidence and this evidence alone without any corroboration is not sufficient to maintain any conviction thereon.
' Now, we take up the recoveries. According to case of the prosecution, Muhammad Aslam, P.W.
Father of the deceased made an application on 3-12-2004 showing suspicion against the appellants but did not mention about the articles, such as, wrist watch, photograph and handkerchief of the deceased. Those articles were taken into possession from an open place of the house of the appellants. The said articles were not so much expensive that those were to be kept so that same could be used as evidence against the appellants themselves. The recovery of three bottles lying nearby the dead body of the deceased is of no B significance for the reason that those were not recovered on the pointation of the appellants.
'It was submitted by learned counsel for the complainant that the appellants pointed out the place where they had burnt the dead body of the deceased. So far as this evidence is concerned, as nothing incriminating was discovered therefrom by the Police, the same cannot be of any consequence to the prosecution. In fact this evidence is inadmissible as it cannot be considered as exception to Article 40 of Qanun-e-Shandat, 1984. The appellants allegedly pointed out the place to the Police as being the place where the dead body of the deceased was burnt and as the same did not lead to discovery of any fact for the purpose of Article 40 of the said Order, this evidence cannot be relied upon as a corroboratory evidence. One weak piece of evidence cannot corroborate another similar evidence. Reliance can be safely placed on the case of Ziaul Rehman v. The State (2001 SCM R 1405). This precedent on all fours applies to the case in hand. In the report, there was only evidence of extra judicial confession and pointation by the accused of the place where the dead bodies were thrown and their Lordships of the Hon'ble Supreme Court set aside the conviction and sentence and acquitted the convict.
' After having attended to the submissions made by learned counsel from both the sides and going through the evidence on record, we are of the considered opinion that the prosecution has miserably failed to prove its case against the appellants rather there are doubts and doubts floating on the surface of the record. So while extending the benefit of doubt, we accept the appeal, set aside the conviction and sentence recorded against both the appellants by the trial Court and acquit them of the charge. The death sentence of both the appellants is not confirmed and Murder Reference is replied in the Negative. Both the appellants are in jail. They shall be released forthwith, if not required to be detained in any other case.