' ASIF SAEED KHAN KHOSA, J.---Abdur Rehman, Habib-ur-Rehman and Ghulam Mujtaba appellants were convicted for an offence under section 302(b), P.P.C. Read with section 34, P.P.C. Vide judgment dated 16-6-2001 handed down by the learned Sessions Judge, Mianwali and Abdur Rehman appellant was sentenced to death whereas Habir-ur-Rehman and Ghulam Mujataba appellants were sentenced to imprisonment for life each and all the three appellants were ordered to pay a sum of Rs,1,00,000 each to the heirs of Riaz Ahmad deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months each. The benefit under section 382-B, Cr.P.C. Was extended to Habib-ur-Rehman and Ghulam Mujataba appellants. Through the same judgment the learned trial Court had acquitted the appellants' co-accused namely Ghulam Akbar. The appellants have challenged their convictions and sentences before this Court through Criminal Appeal No,907 of 2001 whereas Criminal Revision No,491 of 2001 has been preferred before this Court by a member of the complainant party seeking enhancement of the sentences passed against Habib-ur-Rehman and Ghulam Mujataba convicts-appellants by the learned trial Court. We have heard both these matters together along with Murder Reference No,391 of 2001 seeking confirmation of the sentence of death passed by the learned trial Court against Abdur Rehman appellant. We propose to decide all these matters together through the present consolidated judgment.
2. According to the prosecution's case set up in F.I.R. No,67 registered at Police Station Makerwal, District Mianwali at 5-00 p.m. On 3-11-1999 for offences under sections 148/302/149, P.P.C. Riaz Ahmad deceased had left his house at about 9-00 p.m. On 2-11-1999 and thereafter his dead body was found at a deserted place at about 3-30 p.m. On 3-11-1999. In the F.I.R. The complainant had expressed a suspicion that the deceased had been done to death by Muhammad Hayat, Muhammad Iqbal, Saif Ullah, Muhammad Ramzan and Lal Khan who were inimical towards the deceased on account of a previous murder of one of their relatives. After investigation of this case by the local police the accused persons nominated in the F.I.R. Were let off but the appellants and their co-accused namely Ghulam Akbar were arrested and ultimately a challan was submitted against them before the learned trial Court. The appellants and their co-accused had denied the charge framed against them by the learned trial Court and had claimed a trial. At the conclusion of the trial the learned trial Court acquitted the appellant's co-accused namely Ghulam Akbar but, after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt, the appellants were convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal and the connected revision petition and Murder Reference before this Court.
3. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that no ocular account of the incident in question had been produced by the prosecution and the different pieces of circumstantial evidence produced by the prosecution were utterly unreliable and, thus, the appellants are entitled to be acquitted by this Court. As against that the learned counsel for the State as well as the learned counsel for the complainant have maintained that the prosecution had succeeded in establishing the appellants' guilt to the hilt and, therefore, their convictions recorded by the learned trial Court do not warrant any interference by this Court. The learned counsel for the complainant has gone on to maintain that in the circumstances of this case the sentences passed by the learned trial Court against Habib-ur-Rehman and Ghulam Mujataba appellants ought to be suitably enhanced by this Court.
4. After hearing the learned counsel for the parties and going to the record of this case with their assistance we have straightaway observed that admittedly the murder of Riaz Ahmad deceased had remained unwitnessed. The alleged occurrence had taken place during a night and no eye- witness of the same had been produced by the prosecution before the learned trial Court. In the F.I.R. a suspicion had been expressed by the complainant against five persons other than the present appellants and their co-accused but subsequently the prosecution had let the said nominated person off and had implicated the present appellants and their co-accused for the alleged murder. In this regard the prosecution had produced Master Muhammad Nawaz (P.W.9) to provide the last-seen evidence but the learned trial Court had expressly disbelieved the said witness and had discarded that piece of evidence. The prosecution had also produced Muhammad Ashraf Khan (P.W.10) before the learned trial Court to provide the Waj-takkar evidence but even that piece of evidence and the statement of the said witness had expressly been disbelieved and discarded by the learned trial Court. The prosecution had not set up any motive against the present appellants but had relied upon some extra-judicial confessions allegedly made by the appellants before some prosecution witnesses so as to maintain that a sister-in-law of the appellants was maintaining illicit relations with Riaz Ahmad deceased and it was in that backdrop that the appellants had murdered the deceased. Thus, the motive in this case squarely hinges upon acceptability or otherwise of the testimony of some prosecution witnesses regarding the extra-judicial confessions allegedly made by the appellants before such witnesses.
5. According to the prosecution Habib-ur-Rehman appellant had made an extra-judicial confession before Master Nazeer Ahamd (P.W.6) at 11-00 a.m. On 4-12-1999 at the house of the said witness. The said witness was a paternal uncle of Riaz Ahmad deceased's wife and was admittedly a teacher at a local school. During his cross-examination the said witness had categorically admitted that 4-12-1999 was a working day and the school-time on that day was between 8-45 a.m. To 2-45 p.m. That witness had further acknowledged that the said school was situated one mile away from his house and also that he was not on leave from the school on 4-12-1999. If that be so then that witness was not supposed to be available at his house at 11-00 am. On 4-12-1999 so as to receive Habib-ur-Rehman appellant at his house at that time and to hear him to confess his guilt. The lie told by this witness in this regard is, therefore, self-evident. According to the prosecution Ghulam Mujataba appellant had confessed his guilt before Saif Ullah (P.W.8) at 10-00 a.m. On the same day, i.e, 4-12-1999 and Abdur Rehman appellnt had made an extra-judicial confession before Nasir Mahmood Khan (P.W.11) at 8-30 a.m. On the same day, i.e, 4-12-1999. Saif Ullah (P.W.8) was 'a uterine brother of the father of Riaz Ahmad deceased and association of Nasir Mahmood Khan (P.W.11) with the complainant party had also been established on the record. It is of critical importance to mention here that all the three appellants are real brothers and their acquitted co-accused namely Ghulam Akbar is their father. Even Ghulam Akbar co-accused had allegedly made an extra-judicial confession before Amir Abdullah (P.W.7) at 9-00 a.m. On the same day, i.e, 4-12-1999. We have found it to be quite curious and unbelievable that these three brothers and their father had left their house on the same day and had confessed their guilt before four different persons on the same day and the person before whom they had made their extra- judicial confessions lived within a radius of about 100 Kilometers. Such a claim of the prosecution has been found by us to be too fantastic and far-fetched to be believed. We have also observed that all the four witnesses of the extra-judicial confession had made divergent statement regarding their going to the police together or separately and had, thus, contradicted each other on that score. Admittedly the said witnesses had not apprehended the appellants and their co- accused on the basis of their confessions and had statedly let them go freely. It is settled law that an extra-judicial confession is a very weak type of evidence and in the case in hand such weakness of this kind of evidence produced by the prosecution has been worst confounded by the unbelievability of the prosecution's case in that regard. We have, therefore, decided not to place any reliance upon the evidence produced by the prosecution regarding the extra-judicial confessions allegedly made by the appellants.
6. The only other piece of evidence left in the field against the appellants is in the shape of recovery of pistols from the possession of Abdur Rehman and Ghulam Mujataba appellants and the alleged recovery of a purse of the deceased, E National Identity Card of the deceased and a sum of Rs,127 belonging to the deceased from the possession of Habib-ur-Rehman appellant. It may be observed in this context at the outset that mere recovery of the weapon of offence or of articles of the deceased may not by itself suffice to hold an accused person guilty on a capital charge because recovery is generally meant to provide corroboration but it becomes of little evidentiary value if there is no other evidence left in the field to provide corroboration to. Be that as it may, .The evidence regarding the recoveries produced by the prosecution in this case has also failed to inspire our confidence. The pistol allegedly recovered from the possession of Ghulam Mujataba appellant had not matched with any crime-empty and, thus, the said recovery was legally inconsequential. Although the report submitted by the Forensic Science G Laboratory (Exhibit-PT) shows that all the four crime-empties recovered from the place of occurrence had matched with the pistol allegedly recovered from the possession of Abdur Rehman appellant yet the recoveries of the crime-empties from the spot as well as of the pistol from the said appellant's possession have been found by us to be quite doubtful. Availability of the crime-empties at the place of occurrence had not been mentioned in the relevant column of the Inquest Report (Exhibit-PC).
Master Nazeer Ahmad (P.W.6) and Master Muhammad Nawaz (P.W.9) had deposed about the alleged recovery of a pistol from the possession of Abdur Rehman appellant. Both the said witnesses were related to the deceased and no independent witness from the relevant locality had been associated with the alleged recovery of pistol. Thus, the requirements of section 103, Cr.P.C.
Had flagrantly been violated in that regard. The relevant pistol had been recovered from an open place which was accessible to others. Master Nazeer Ahmad (P.W.6) has already been disbelieved by us regarding his testimony in respect of the extra-judicial confession allegedly made before him by Habib-ur-Rehman appellant and, thus, he cannot readily be relied upon in respect of his testimony regarding the alleged recovery from Abdur Rehman appellant. Similarly Master Muhammad Nawaz (P.W.9) has already been disbelieved by the learned trial Court regarding the last-seen evidence provided by him and, therefore, he is not worthy of much credit regarding his testimony in respect of the alleged recovery from Abdur Rehman appellant. The valet of Riaz Ahmad deceased allegedly recovered from the possession of Habib-ur-Rehman appellant did not carry any distinguishing mark so as to establish that it belonged to Riaz Ahmad deceased and to none else. The cash of Rs,127 had remained unconnected with the deceased. If the culprits committing the alleged murder had chosen to commit the murder in the darkness of a night so as to conceal their identity then it was unbelievable that they would have taken away and kept the National Identity Card of Riaz Ahmad deceased with them for their subsequent implication and incrimination in this case on the basis thereof. The fabrication of all other pieces of evidence by the prosecution in this case has made us quite reluctant to rely upon such an alleged recovery from the possession of Habib-ur-Rehman appellant and, thus, we have decided not to accept this piece of evidence and to hold it against the appellant.
7. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. Criminal Appeal No,907 of 2001 is, therefore, allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and the appellants are acquitted of the charge by extending the benefit of doubt to them. Abdur Rehman and Ghulam Mujataba appellants shall be released from the jail forthwith if not required in any other case. Habib-urRehman appellant has already been admitted to bail by this Court by suspending his sentences during the pendency of his appeal. His bail bond and sureties shall stand discharged.
8. For the reasons recorded above Criminal Revision No,491 of 2001 is dismissed.
9. Murder Reference No,391 of 2001 is answered in the negative and the sentence of death passed by the learned trial Court against Abdur Rehman appellant is not confirmed.