Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 289-J-2003 filed by Aurangzeb @ Guddu and Imran Sohail appellants, who were convicted and sentenced by Judge Anti Terrorism Court-I, Gujranwala vide his judgment dated .20.5.2003 u/S. 302(b) PPC and u/S. 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 SI. Both the appellants were also convicted U/S 201 PPC and sentenced to seven years RI each and a fine of Rs, 20,000/- each and in default, three months SI.
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, FIR was registered by Muhammad Afzal, Moharrai.
3. Munir Ahmad SI PW.11 after sending the complaint Ex. PK to the P.S. took into possession three bottles lying near the dead body vide recovery memo Ex. PE. He also prepared inquest report Ex. PL, application for postmortem examination Ex. PL/1, inspected the place of occurrence, prepared site- plan Ex. PM, he also got prepared the photograph of the deceased Ex. PN, issued advertisement about the dead body Ex. 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 Sohail 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 Ex. PE. On 27.12.2002 Imran Sohail accused got recovered a wrist watch, which was taken into possession vide memo Ex. 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, 5000/- was recovered on the pointation of accused Aurganzeb while Rs, 2,000/- on the pointation of accused Imran Sohail, which were taken into possession vide memo Ex. PJ and Ex. 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 Ex.PQ, report of Bacteriologist Ex. PR and closed the prosecution case, then, the statements of the accused-appellants were recorded u/S. 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 u/S. 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 Haider Ali PW. 10, who is real maternal uncle of the deceased; Haider Ali, PW 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 PW; there was no need on the part of the appellants to create an evidence against them by making extra judicial confession without asking PW to get them pardoned from legal heirs of the deceased; PW.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 PW.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 Ex. PN too was not identifiable. According to doctor PW. 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 PWs being related to the deceased was 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, PW.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 PW-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 Aurangzeb was an employee; this witness PW.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 PW.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 PW 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 PWs 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 PW.10. He is real maternal uncle of the deceased. The alleged confession was made at Gujranwala while Haider Ali, PW belongs to Sialkot. Even the conduct of Haider Ali PW 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 PW. 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, PW, father of the deceased made an application on 3.12.2003 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 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-Shahadat Order, 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 versus The State (2001 S.C.M.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. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.