' CH. IFTIKHAR- HUSSAIN, J.-- Appellants Shakeel alias Shahjee, Zahid alias Gaghi and Waheed alias Tedi were tried under sections 460/302 read with section 34, P.P.C. In case F.I.R. No.605, dated 16-12- 1995, registered with Peoples Colony, Faisalabad for on the same day i.e. 16-12-1995 at about 4-00 a.m. In the Office of complainant Ch. Muhammad Nawaz (P.W.7), situated in Street No.2, Mohallah Khalsah College within the area of the aforesaid police station committing dacoity and the Qatl-e- Amd of Hamid Ali, Watchman and Irshad Ahmad, Supervisor and also taking away an amount of Rs.5,00,000 from there and watch from the wrist of deceased Hamid Ali and gold ring from the finger of Irshad Ahmad.
2. On the conclusion of their trial, they were found guilty of the offence under sections 460 and 302(b) read with section 34, P.P.C. And vide the judgment rendered on 15-6-2000 by Mr. Waqar- ulHaq Sheikh, learned Additional Sessions Judge, Faisalabad were sentenced to death as Ta'zir subject to confirmation by this Court and to pay compensation Rs.50,000 each to the legal heirs of the deceased as required under section 544-A, Cr.P.C. And in default to further six months rigorous imprisonment.
3. Appellants Shakeel Ahmad alias Shahjee and Zahid alias Gaghi through Criminal Appeal No.1073 of 2000 and Waheed alias Tedi vide the Criminal Appeal No.1076 of 2000 have challenged their conviction and sentence.
4. The learned trial Court has submitted the above-mentioned Murder Reference (No.341 of 2000) for confirmation of their sentence of death as required under section 374, Cr.P.C.
5. As all the three matters have arisen out of one and the same case, hence are being disposed of by this single judgment.
6. Briefly the facts relevant for the disposal of these matters are that the complainant Ch. Muhammad Nawaz (P.W.7) on 16-12-1995 at about 5-00 a.m. At Chowk Old Chungi, Jaranwala Road, Faisalabad made statement Exh.P.J. Before Dalmeer Javed, S.-I./S.H.O. Of the aforesaid Police Station. The same is to the effect that he has taken contract of loading articles of Koh-e-Noor and Rafhan Mills. He has set up his office in his house situated at Street No.2, Mohallah Khalsah College, Faisalabad. On the preceding night at about 8-00 p.m. He closed his office and directed. His watchman Hamid Ali and Supervisor Irshad Ahmad to go to sleep by bolting the doors. He himself went to his house. At about 4-00 a.m. That day, he received information that Hamid Ali and Irshad Ahmad have been done to death. He reached the spot and found that the locks of the office were lying broken and both watchman and supervisor dead. On checking of his articles, he found that an amount of Rs.5,00,000 was missing from the drawer of the table and gold ring from the finger or Irshad Ahmad and watch from the wrist of Hamid Ali. Their names were engraved on the wrist and the ring.
7. The appellants during the investigation were found involVed in the matter. They on the completion of investigation were challaned to the Court.
8. Learned trial Court formally charged them under sections 460/302 read with section 34, P.P.C.
They pleaded not guilty.
9. The prosecution at their trial produced its 17 witnesses in all. They were:-- "Maqsood Ahmad (P.W.1), Aurangzeb (P.W.2), Razzaqullah (P.W.3), Abdul Hameed (P.W.4), Dr. Masood Iqbal Bokhari (P.W.5), Muhammad Nawab (P.W.6), Ch. Muhammad Nawaz (P.W.7), Muhammad Nawaz (P.W.8), Ghulam Nabi (P.W.9), Muhammad Nawaz (P.W.10), Asghar Ali (P.W.11), Muhammad Shafique (P.W.12), Dr. Tahir Javed (P.W.13), Abdul Sattar (P.W.14), Muhammad Iqbal (P.W.15), Nasir Saeed (P.W.16), Dilmir Javed, S.-I. (P.W.17) and Muhammad Aslam Khan, Inspector (P.W.18). "
10. The reports of the Chemical Examiner Exh.P.BB to Exh.P.HH and that of the Forensic Science Laboratory Exh.P.JJ and that of Serologists Exh.P.BB/1 to Exh.P.HH/1 were tendered in the evidence.
11. The appellants in their examination under section 342, Cr.P.C. Have denied the allegation appearing against them in the prosecution evidence. According to them, it was a blind murder and they were innocent and falsely implicated in the case on the basis of suspicion. They, however, have opted not to produce evidence in their defence and to depose on oath in disproof of the allegation appearing against them in the prosecution evidence.
12. The learned trial Court after hearing the parties came to the conclusion that the charge against them stood proved on the record beyond any shadow of reasonable doubt. It so has convicted and sentenced them as mentioned above.
13. It has been contended on their behalf that the ocular account furnished in this case by Ghulam Nabi (P.W.9) is devoid of intrinsic worth; that the evidence of their extra-judicial confession furnished by complainant Muhammad Nawaz (P.W.7) and Muhammad Nawaz (P.W.10) is made up one just to strengthen the prosecution case against them and such type of evidence has always been considered as of weak type; that the medical evidence in this case is inconsequential as no other reliable or confidence-inspiring evidence is available on the record to connect them with the charge that the recovery of crime weapons, amount and the articles allegedly belonging to the deceased persons have been planted upon them and so it could not be used to corroborate the ocular account or any other evidence on the record against them; that in any case the prosecution could not bring home the guilt to them beyond any shadow of reasonable doubt and so the impugned judgment is not liable to be sustained.
14. As against the same, the learned counsel for the State assisted by the learned counsel for the complainant has supported the impugned judgment saying that the different pieces of the prosecution evidence on the record like the ocular account and extra-judicial confession supported by the medical evidence and the recoveries have sufficiently established the guilt of the appellants and so their conviction and sentence has justifiably been recorded.
15. We have carefully considered the submissions made from both the sides with the help of the available record.
16. We have found that the prosecution in this case has relied upon its different sets of evidence on the record against the appellants.
' Its ocular account has been furnished by Ghulam Nabi (P.W.9). He has stated that on 15-12-1995 at about 9-00 p.m. He along with P.W. Mukhtar Ahmad Bajwa went to see Ch. Muhammad Nawaz at his residence situated near Mohallah Khalsah College, Faisalabad. They when reached at his house, Mukhtar Ahmad Bajwa pushed the call bell and upon the same Shakeel alias Shahjee opened the door and they went inside and saw Waheed alias Tedi and Zahid alias Gaghi were coming down the stairs. They were holding blood-stained daggers with them. Waheed alias Tedi took them to the veranda and meanwhile Shakeel came there armed with pistol. He pointed pistol towards them. They begged mercy and stated that they only had come to see Ch. Muhammad Nawaz and have no enmity with them. Hamid Ali deceased was tied up under the stairs. Waheed alias Tedi asked Shakeel alias Shahjee to kill Hamid Ali as he would make their secret public.
Shakeel fired at him with pistol. He again fired at him but the fire missed. He checked the pistol to fire again at him but his own hand was injured. Hamid Ali died at the spot. Shakeel asked them to walk to the North threatening that if they raised alarm they would be killed like Hamid deceased.
After turning them out of the house the appellants went towards the south. They at that time had a small bundle. He also saw the drawers in the room of Ch. Muhammad Nawaz broken and papers were scattered on the floor.
17. He is the sole witness of the prosecution on this aspect of the case. There is no other person, who could say that he had seen the occurrence with his own eyes. Mukhtar Ahmad Bajwa, the alleged witness of the occurrence has not been produced by the prosecution at the appellant's trial.
18. It may be mentioned here that the F.I.R. Exh.P.J. Was lodged by complainant Ch. Muhammad Nawaz. He has mentioned in the same that he received information at about 4-00 a.m. On 16-12- 1995 of the murder of the two deceased persons. He did not name anyone as the accused in Exh. P J.
19. This witness (P.W.9) according to his own showing had gone to the house of Ch. Muhammad Nawaz to see him and had seen the occurrence. According to his showing, the appellants after the incident went away from the house of Ch. Muhammad Nawaz. They when had gone from that place in his presence then why he did not inform Ch. Muhammad Nawaz about the incident is not understandable. This strengthened the belief that he had not seen the incident. Had he seen the same, he would have informed Ch. Muhammad Nawaz.
20. It is also interesting to note here that he in his cross-examination had stated that he did not make statement under section 161, Cr.P.C. Before the police and they went away after the occurrence. It is an interesting to note that he in the cross-examination has stated that he met Ch. Muhammad Nawaz after 3/4 days of the occurrence. This seems very strange that he had seen the incident as narrated by him but still did not inform the complainant for about 3/4 days and this conduct of him really seems unusual and unnatural. He has also stated that he made no statement before the police.
21. This was an important matter. He but neither bothered to inform the complainant about the same nor the police.
' This all seems a very strange conduct on his part. The story narrated by him, thus seems not believable. The same rather is absolutely devoid of intrinsic worth. He in the above circumstances of the case seems not a reliable witness. The learned trial Court, therefore, has erred in believing him. His evidence, therefore, is discarded.
22. The evidence of extra-judicial confession of appellants Shakeel Ahmad alias Shahjee and Zahid alias Gaghi has been furnished by Muhammad Nawaz (P . W . 10) . According to him, these appellants about one month and 3/4 days of the occurrence have confessed to have murdered the deceased persons and having taken away Rs.5,00,000 and tape-recorder from the office of Ch. Muhammad Nawaz complainant. He is the sole witness on this aspect of the prosecution case. His statement does not get support from any other independent evidence/witness. It is needless to mention here that such type of evidence has always been considered to be weak. It cannot be relied upon unless corroborated by some other source of unimpeachable character. He is related to deceased Arshad. It appears from his evidence that till the alleged confession of these appellants before him the identity of the appellants was not known to him. It, therefore, seems very strange that why they had gone to him to confess their guilt. They could have known that their such disclosure before him could expose them to penal consequences. It, therefore, was not expected that they could confess their guilt before him. The story narrated by him seems to be made up one to strengthen the prosecution case. The same, however, is absolutely not confidence-inspiring. The same has wrongly been relied upon by the learned trial Court. The same, therefore, is discarded.
23. The evidence of the alleged extrajudicial confession of appellant Waheed alias Tedi has been furnished by complainant Ch. Muhammad Nawaz (P.W.7). According to him on 15-1-1996, he was present in his office along with Ehsan Elahi. In the meanwhile, this appellant came to him and confessed before him that he along with Shakeel Ahmad alias Shahjee and Zahid alias Gaghi murdered the deceased persons and apologized from him and sought for pardon and he but had handed over him to the Investigating Officer. There is no support to his such evidence. This appellant has denied to have made any such confession before him.
24. Furthermore, the alleged confession of this appellant before him was on 15-1-1996. It, thus was about a month after the alleged incident. It in no way is available from his evidence that if there was any suspicion with this witness against him till such time. Hence this appellant appears to have no reason with him to confess his guilt before him because he must have known that in event of such disclosure, he would land himself in trouble. The story narrated by this witness too, thus seems to be made up one and not confidence-inspiring. The learned trial Court has erred in believing the same. The same too is discarded.
25. As regards the medical evidence, it though has established that the death of both the deceased persons have occurred due to injuries sustained by them. It but could not establish more than that. This could not lead to the clue of the culprits. This could only be used to support or corroborate any other incriminatory evidence against the appellants on the record.
26. The ocular account of the prosecution and the evidence regarding the alleged extra-judicial confession of the appellants has been found to be without any intrinsic worth or confidence- inspiring. The medical evidence, therefore, could not be used to corroborate the same. The medical evidence, therefore, is inconsequential in this case.
27. As regards the evidence of recovery of currency notes from the appellants, it has appeared that the notes produced in the trial Court had borne the date of the bank subsequent to the happening of the incident. The incident pertained to 16-12-1995. The stamp on these currency notes is of 14-1-1997 and March, 1999. This, thus, appears that these were not the currency notes, which in fact were taken away by the culprits from the office of the complainant. So this recovery is not worth the while. The same has wrongly been relied upon by the learned trial Court.
28. As regards the evidence regarding the recovery of crime weapons from the appellant and the alleged articles of the deceased persons i.e. Gold ring and wrist watch, the same too is inconsequential as all this could maximum be used to corroborate any other evidence on the record tending to connect the appellants with charge against them. There is not available any such convincing evidence against them. The evidence of these recoveries, therefore, could not be of any consequence to the prosecution case.
29. We, therefore, are of the considered view that the prosecution as per its evidence on the record has failed to bring home the guilt to the appellants beyond any shadow of reasonable doubt. The learned trial Court, therefore, has erred in convicting and sentencing them. The impugned judgment, therefore, is not liable to be sustained.
30. The above-mentioned appeals brought by the appellants, therefore, are accepted and the impugned judgment set aside and they are acquitted of the charge giving them the benefit of doubt. They are in custody. They be set at liberty forthwith, if not required in any other case.
31. The murder reference is answered in the negative. The death sentence is not confirmed.