1. Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 291 of 2000 filed by Zaheer Ahmad and Muhammad Azad appellants, who were convicted and sentenced by learned Additional Sessjons Judge, Rawalpindi, vide his judgment dated 10.7.2000 as under:-- Death and to pay Rs, 2 lac as compensation to the legal heirs of the deceased or in default six months SI under Section 302 PPC and Imprisonment for Life and a fine of Rs, 50,000/- or in default one year RI under Section 460 PPC. Murder Reference No, 529 of 2000 for confirmation or otherwise of death sentence of both the appellants shall also be replied through this single judgment.
2. Brief facts of the case, as disclosed by M.st. Pairi Jan are that her son Allah Ditta was employed- in Punjab Army, who had come at home on 'leave, one week earlier and was intended to go back an 3.1.1996. Allah Ditta was married with Mst. Rukhshanda Jabeen and was having one son, namely, Hammad aged about two years. She further stated that Allah Ditta resided in his separate house, whenever he had come on long leave, whereas he used to reside with her at old house, when he had to observe short leave. He was observing these leaves with her at old house. According to complainant, on the previous night he alongwith his wife had left for his in laws house at about 7.00 p.m. and did not come back whereas she had been waiting for him and went to asleep. At about mid night, Mst. Kaneez Begum, mother-in-law of the deceased, came to her house, knocked at and told that some one had killed Allah Ditta and accompanied to the house of Mst. Kaneez Begum alongwith her while weeping and crying. She further narrated that she saw that Allah Ditta is lying in dead condition on a cot, in their drawing room, who was murdered by some person or persons, and her daughter-in-law (Bahoo) Mst. Rukhshanda Jabeen was also present in the drawing room, a place where her son was murdered and his son was murdered without justification.
2. 3.After registration of the formal FIR, Ghulam Rasool SI PW.9 reached at the spot, prepared injury statement Ex. PE and inquest report Ex. PF, recorded the statement of the PWs u/S. 161 Cr.P.C. secured blood stained earth from the spot vide memo Ex. PG thereafter, Sher Muhammad SI PW. 12 formally arrested the accused on 10.9.1996. Both the accused while in Police custody got recovered Churries, which were taken into possession vide memo Ex. PL & Ex. PN respectively. After completion of the remaining formal investigation both the accused were challenged to face the trial.
3. 4.At the trial, prosecution in order to prove its case produced 12 witnesses in all, thereafter, learned DDA tendered in evidence report of Chemical Examiner Ex. PS regarding blood taken on cotton Ex.
4. PS, that of Serologist Ex. PT, reports of Chemical Examiner regarding Chunies Ex. PU and Ex. PV, that of Serologist Ex. PW and Ex. PX and closed the prosecution case, then, the statements of the accused under Section 342 Cr.P.C. were recorded in which they pleaded false implication. After conclusion of the trial, both the accused were convicted and sentenced as stated above.
5. 4-A. Learned counsel for the appellants after having read the prosecution evidence submitted that there was no eye-witness in this case, Mst. Rukhshanda (wife of the deceased) and Mst. Kaneez Begum (mother-in-law of the deceased), PWs. 5 and 6 respectively were joined by the Police with the investigation and they remained for 15 days with the Police, Mst. Rukhshanda Bibi PW did not even mention the features of the assailants in her statement under Section 161 Cr.P.C., even no identification parade was held, the statement of Mst. Kaneez Begum PW is hearsay, she was not present at the spot and that she was told about the occurrence by Mst. Rukhshanda PW. Further submitted that extra judicial confession is joint one which is not admissible in evidence and that the evidence of extra judicial confession before the Police is also not admissible.
6. So far as evidence of wqjtakar given by Muhammad Zaheer PW.8 is concerned, the said witness in his examination-in-chief had stated that he had seen the accused having churris in their hands on the night of occurrence but his statement was recorded five months after the occurrence.
7. Concluding his submissions learned counsel submitted that prosecution has miserably failed to prove its case and both the appellants are entitled to acquittal.
8. 5.Learned Assistant Advocate General has very fairly stated that on this type of evidence which has come in the instant case, neither conviction can be recorded nor maintained.
9. 6.We have heard learned counsel for the parties and have gone through the evidence on record.
10. Nobody was named as assailant in the FIR. Even no description of the accused was stated in the FIR. No identification parade was held. Muhammad Mushtaq, PW.7, furnished the evidence of extra judicial confession. A bare perusal of his examination-in-Chief makes it clear that it was a joint confession, which is not admissible in evidence. The other witness of extra judicial confession is Iftikhar Ahmad PW.11. He deposed that both the accused while in Police custody made the confession which too is not admissible in evidence. The identity of the accused by Mst. Rukhshanda Begum PW before the trial Court after four years is not sufficient as no identification parade was held. The evidence of Mst Kaneez PW is hearsay. She was not present at the spot. Mst. Rukhshanda PW told her about the occurrence.
7. The, evidence of wajtakr was furnished by Muhammad Zaheer PW.8. According to his examination-in-chief, he saw the accused on the night of occurrence running from the house of Zaheer Ahmad, at that time, Azad accused was armed with churri, he reported this ocular account to the police in the morning but his statement was recorded by the Police five months after the occurrence. After scanning the prosecution evidence and the fair statement made by learned law officer, we are of the considered opinion that the prosecution has miserably failed to prove its case against the appellants rather it is a case of no evidence. Resultantly, we accept the appeal filed by convict appellants, set aside the conviction and sentence recorded by learned Additional Sessions Judge, Rawalpindi vide the impugned judgment dated 10.7.2000 and acquit them of the charge. The death sentence of both the appellant is not confirmed and Murder Reference is answered in the negative. Both the appellants are in jail. They shall be released forthwith, if no required to be detained in any other case.