MUHAMMAD NAWAZ ABBASI, J.- The appellants namely Tabassam Iqbal alias Munno son of Muhammad Iqbal, Imtiaz Hussain alias Taju son of Altaf Hussain, Rizwan Afzal alias Haidri son of Muhammad Afzal, Waseem Iqbal son of Muhammad Iqbal and Yassar Mehmood son of Muhammad Basharat Mirza were tried for the charges under sections 302/396/411/148/149, PPC by the Special Court established for Rawalpindi and Islamabad Capital Territory under Anti-Terrorism Act, 1997. The learned Trial Judge having found the appellants guilty of the charges convicted and sentenced them vide judgment dated 29.3.2000 as under: A. Under Section 148, PPC Rigorous imprisonment for three years with a fine of Rs. 1.0. 000/- to each appellant and in default of the payment of fine to undergo S.I. For one month each.
B. Under Section 460, PPC Imprisonment for life to all the appellants C. Under Section 396/149, PPC For the charges of committing the murder of Muhammad Zaman during the course of dacoity Waseem Iqbal appellant was sentenced to death with a fine of Rs.
1,00,000/-to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C, and in default of the payment of fine to undergo R.I. For one year. The remaining appellants namely Tabassam, Imtiaz Rizwan and Yassar were sentenced to imprisonment for life with a fine of Rs. 1.0. 000/- each to be paid as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C, and default of the payment of fine/compensation to undergo R.I. For one year each.
The appellants on further conviction under section 396, PPC for committing the murder of Piari Jan were sentenced to imprisonment for life with a fine of Rs 1,0, 000/- each to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C, and in case of default to undergo R.I. For one year each.
D. Under Section 411, PPC. Three years R.I. With a fine of Rs. 10,000/- each.
The appellants were however allowed the benefit of section 382-B, Cr.P.C. The appellants have filed Criminal Appeal "No. 434-T/2000 whereas Qamar-uz-Zaman complainant has filed Writ Petition No. 279/2001 for enhancement of sentence and both these matters propose to be dispose of by this single judgment.
2. The appellants were challaned to face the trial in a case FIR No. 423 dated 15.10.1999 registered under section 411/302/396 PPC at Police Station Gujjar Khan, on the report lodged by Qamar-uz- Zaman son of Nizam Din to the effect that his brother Muhammad Zaman with wife Piari Jan of the ages about 60/65 years having married their son and daughter out of the village were living alone in their house in village Hans Damwal. On 15t October, 1999 at Fajar prayer time Tikka Khan" while passing near the house of Muhammad Zaman heard the cries from inside the house and informed the complainant who along with said Tikka Khan on reaching at the house found that outer gate of the house was locked. They while sealing over the wall entered into the house and found that Piari Jan was lying dead whereas Muhammad Zaman being injured was unconscious. Muhammad Zaman was immediately removed to Civil Hospital Gujjar Khan but he succumbed to the injuries before reaching the hospital. The complainant in his supplementary statement made on the same day disclosed that eight golden bangle, four golden ear rings, three gold buttons and a golden chain "belonging to Piari Jan and a cash amount of Rs.1450/- which was wrapped in a cloth with writing on it ":fund Masjad-e-Gulzar Madina" were missing.
Muhammad Jehangir, S.I. On the report lodged by Zamar Zaman at 6.45 a.m. Having registered a case vide FIR Exh.PC proceeded to the civil hospital at Gujjar and having prepared inquest report Exh.PT of Muhammad Zaman handed over the dead-body to Muhammad Murtaza for post- mortem examination. The S.I. Then on reaching at the place of occurrence prepared inquest report of Piari Jan and dispatched her dead-body for post-mortem examination. The Sub-Inspector secured blood-stained earth from the place of occurrence and took into possession Rassi P.25 with 2 strings P.25/1-2 and recorded the statements of the witnesses. Tabassam Iqbal and Riaz Hussain accused were arrested by him on 25.10.1999 and then handed over the investigation to Muhammad Afzal, Inspector PW-15. Imtiaz and Tabassam accused in custody on 27.10.1999 led to the recoveries of golden ornaments and cash. Three golden buttons and golden chain with cash of Rs. 300/- was got recovered by Tabassam Iqbal. Imtiaz accused got recovered Rs 200/- and two golden rings from his residential house. On 2.11.1999 Waseem Iqbal and Yasir Mehmood were arrested on 2.11.1999 and Waseem Iqbal got recovered Rs.500/- and four golden bangles from his residential house whereas Yasir Mehmood led to the recovery of Rs.250/- and four golden bangles from his residential house. Rizwan Afzal was arrested on 29.10.1999 he got recovered Rs.200/- and golden rings from his residential house. The accused also got recovered the firearm and other articles from their residential houses on different dates. The Inspector having finalized the investigation submitted the challan.
3. Dr. Shahida Mir, Women Medical Officer, THQ Hospital, Gujjar Khan, PW-2 conducted post- mortem examination on the dead-body of Mst. Piari Jan on 15.10.1999 and opined that death was the result of suffocation.
4. Dr. Muhammad Mushtaq Ahmad, Medical Officer PW-13 conducted post-mortem examination on the dead-body of Muhammad Zaman and found the following injuries in his person:-
(1) Wound of entry o.5 x 0.5 c.m. On right side of chest.
(2) Multiple burses on face present.
(3) Compression marks (two) on right wrist of ropes 1.00 c.m. Vide and all around it.
(4) Compression marks (three around the left wrist and 1.00 c.m. Wide each.
Ln the opinion of the doctor, death happened due to Hypovolemic shock, caused by injury No. 1 which resulted in internal hemorrhage and was sufficient to cause death in ordinary course of nature. All injuries were anti-mortem and probable time between injuries and death was 5 minutes and between death and post-mortem was 10 hours.
5. Qamar Zaman PW-8 complainant identified the golden ornaments belonging to Mst. Piari Jan Waseem Iqbal appellant made a confessional statement before Nizakat Hussain on 19.10.1999.
Abdul Karim PW-10 remained associated with the investigation and witnessed the recoveries of golden ornaments and each from the accused during the investigation. The remaining witnesses produced by the prosecution being not of much importance need not to be discussed.
6. The appellants in their statements under section 342, Cr.P.C, denied the charge and placed innocence and also produced witnesses in their defence.
7. Learned counsel for the appellants has contended that extra-judicial confession allegedly made by Waseem Iqbal before Nizakat Hussain was in general terms which was noticeable retracted and therefore was not confidence inspiring. He argued that except this retracted extra-judicial noticeable there was no evidence to connect the appellant with the commission of offence, therefore, their conviction and sentence was not sustainable. The learned counsel submitted that no person from the locality was associated in the alleged recoveries of golden ornaments and cash from residential houses of the appellants and therefore the same would have no evidentiary value. The learned counsel added that even otherwise the recoveries were doubtful as the different items were recovered from the same iron box lying at the same place on different dates. The learned counsel contended that it being an unseen occurrence, the local police on the basis of suspicion having arrested the accused created the evidence of extra-judicial confession of offence held them responsible for the commission of offence. The learned counsel argued that the noticeable has not been able to prove the charge against the appellants beyond reasonable doubt.
8. The learned counsel for the State on the other hand has contended that the extra-judicial confession made by Waseem Iqbal was inculpatory and same would be corroborated by the recoveries of gold ornaments belonging to Mst. Piari Jan from that appellants.
9. We have heard the learned counsel for the partiers and gone through the record. The fateful occurrence took place during the night in the house of the deceased, lt was an unseen occurrence and Qamar Zaman on receipt of information having reached at the spot removed Muhammad Zaman in injured condition to the hospital who was unconscious and succumbed to the injuries while on his way to the hospital whereas Piari Jan was found lying in the house dead. The post- mortem examination of the deceased revealed that they were victim of violence and their death was not natural Nizakat Hussain PW a relative, of the deceased dated that Waseem Iqbal accused while disclosing the commission of offence before him on 19.30.1999 sought his help. The confession made by him was that he and his co-accused named therein having committed the murder of Piari Jan and Muhammad Zaman took away golden ornaments and case amount from their house. Qamar Zaman PW-8, the first informant having claimed identification of the golden ornaments allegedly recovered from the accused stated that same belonged to Mst. Piari Jan.
Fazal Karim PW-10 is the witnesses of noticeable of golden ornaments from the accused. The learned Trial Judge while believing the evidence of recoveries of golden ornaments from the appellants noticeable that notwithstanding the retraction of extra-judicial confession by Waseem Iqabal it was confidence inspiring and being supported by the recoveries was sufficient to notice the conviction. We having examined the evidence are not inclined to accept that Qamar Zaman would be in a position to identify the ornaments allegedly recovered from the appellant and claim that same belonged to Mst. Piari Jan. Therefore, the recovery of ornaments and cash would not be an noticeable evidence to connect the appellants with the commission of offence. This is noticeable that the Investigating Officer instead of effecting different recoveries from the accused on the same day prefer to effect the same in. Parts from the same place on different date, lt is not understandable that the recovery of Pistol etc. From the place from where golden ornaments were recovered was not effected on the same day. Lt is also not understandable that why the Investigating Officer avoided to associate any person from the locality from where the recoveries were affected and associated only Fazal Karim PW-10 in the recovery proceedings from the residential house of all the appellants on different dates. This witness remained associated with the investigation from the date of registration of the case till the submission of the challan and while taking extra-ordinary interest in the case against the appellants has lost his status as an independent person. There is no cavil to the proposition that inculpatory confession made by an accused is admissible against his co-accused and if the same is confidence inspiring can alone be enough to sustain the conviction but it is a settled principle that if such confession is retracted it is not safe to make it basis of conviction without being corroborated from independent source. We have noticed that in the present case the extra-judicial confession made by Waseem Iqbal did not contain the detail of confession of offence and being in general terms would not be reliable, lt is not known that in what manner the occurrence took place and what role was placed by the individual accused and' thus in any case it would be different to use the same against any other person except its maker, lt is common that police in such untraced cases by creating evidence of extra- judicial confession or the last seen shifts the burden to the convicts. We may observe that this type of circumstantial evidence can be arranged easily therefore, same cannot be given credence unless it is confidence inspiring and seeks strong corroboration from independent source and circumstances, ln the present case, the recovery of the golden ornaments from the accused was not established beyond doubt, therefore, the same would have no value to be used as incriminating evidence against the appellant whereas the extra-judicial confession being shaky was, also not confidence inspiring to use against its maker or his co-accused.
10. Having scrutinized the evidence in detail, we found that the prosecution has not been able to discharge the onus of proving the charge against the appellants successfully and therefore, while setting aside the conviction and sentence of the appellants allow this appeal and direct for their immediate release from jail if not required in any other case.
11. For the same reasons Writ petition No.279/2001 is dismissed.