Abdul Hameed Dogar, J.--This appeal with the leave of Court is directed against the judgment dated 18.9.2002, whereby learned single Judge of the Lahore High Court, Lahore had dismissed the appeal of the appellants and maintained their convictions and sentences under Sections 302/34 PPC to imprisonment for life. As regards the sentence in default of payment of compensation of Rs, 100,000/- to the legal heirs of deceased, it was reduced to 6 months S.I. However benefit of Section 382-B Cr.P.C. was extended to them.
2. Brief facts of the case are that on 9.12.1997 at about 9:00 a.m., an FIR No, 790 of 1997 was lodged at the behest of the complainant Muhammad Amin, that during the preceding night his brother Muhammad Munir alias Bagga slept for the care of cattle after tethering them in the cattle-shed.
The complainant awoke up and went to the cattle-shed at about 4:30 a.m. and called his brother but did not receive any response and saw on the light of burning a match that his brother Muhammad Munk was lying on a cot smeared with blood who had four bullet injuries on his chest and was found dead.
3. During investigation, Police recovered blood stained earth and an empty bullet and a led bullet, last worn clothes of deceased i,e, Shalwar, Qameez and Sweater and prepared such memos.
4. During investigation conducted by Sheikh Bashir Ahmed, DSP PW.13, appellants were arrested on the basis of statement of Bashir Khan, PW.6 alongwith Abbas Khan (given up PW), who saw them lastly coming out of the house of the complainant on 9.12.1997 at about 2:30 a.m. while they were going to mosque for offering. Tehajjad prayer. Recoveries of Pistols alongwith bullets were effected from the possession of appellants Zafar Iqbal and Azhar which were not sent to Fronesic Science Laboratory.
5. At trial, prosecution examined as many as 12 witnesses. On autopsy. Dr. Zulfiqar Ahmed M.O.
PW.13 found the following injuries on the person of deceased:-- "1. A fire-arm lacerated wound of entry 2 cm x 2 cm, skin deep with aberrant collar on front of chest, on left side 4 cm from the clavicle and 10 cm from the mid line of the body.
2. A fire-arm lacerated wound of entry measuring 2 cm x 1 cm with aberrant collar skin deep on front of the chest on left side, 5 cm from the mid line of the body.
3. A fire-arm lacerated wound of entry measuring 2 cm x 2 cm with aberrant collar going deep on the front and left side of the chest, 6 cm from the clavicle and 3 cm from the mid line of the body.
4. A fire-arm lacerated wound of entry measuring 2 cm x 2 cm with aberrant collar going deep on front and left side of the chest, 10 cm from the clavicle 2 cm from the mid line of the body.
5. A fire-arm lacerated wound of entry measuring 2 cm x 2 cm, skin deep with aberrant collar on the right side of the abdomen 6 cm from the umbilicus, horizontally.
6. A fire-arm lacerated wound of entry measuring 2 cm x 2 cm with aberrant collar going deep on the right side of the abdomen, 8 cm from the umbilicus, horizontally.
7 A fire-arm lacerated wound of exit measuring 3 cm x 2 cm with averted margins on back of the chest on left side, 7 cm from the mide line of the body.
8. A fire-arm lacerated wound of exit measuring 3 cm x 2 cm with averted margins on back side of abdomen on right side at the level of Ll, 4 cm from the mid line of the body."
6. Learned ADA, closed the prosecution evidence after tendering report of Chemical Examiner, Ex.
P.Q, report of Serologist Ex. P.R, report of F.S.L. Ex. P.S. in evidence.
7. In statement recorded under Section 342 Cr.P.C. the appellants denied the case of the prosecution and claimed innocence. They however, did not examine themselves on oath and also produce any evidence in defence.
8. We have heard Dr. Babar Awan and have gone through the record and the proceedings of the case in minute particulars.
9. It is mainly contended by learned counsel for the appellants that in this case the conviction has been based only on joint extra-judicial confession made by the appellants which is defective in law and is not corroborated by any other piece of evidence. In support, he relied upon the cases reported as "The State vs. Kamal Khan alias Maloo and another (1993 SCM R 1378) and "Wazir Muhammad and another vs. The State" (2005 SCM R 277). He also pointed out that learned Single Judge in High Court who convicted the appellants on the basis of joint extra judicial confession, has taken a different view in the case of "Maqsood Ahmad and others vs. The State" (2005 YLR 1128). He submitted that the last seen evidence furnished by Bashir Khan PW. 6, has been disbelieved by the Courts below. Even the recoveries have been disbelieved as the same were not sent to Forensic Science Laboratory for examination report.
10. On the other hand, learned counsel for the State controverted the contentions and argued that the prosecution has successfully proved the case against the appellants.
11. We have given anxious thought to the contentions and agree with the arguments advanced by Dr. Babar Awan. This Court in the case of "The State vs. Kamal Khan alias Maloo and another" as referred supra, has disbelieved extra judicial confession made by the accused being a joint confession and maintained the acquittal of the accused. Similarly, Shariat Appellate Bench of this Court in the case of Wazir Muhammad referred supra has also disbelieved the extra-judicial confession and has acquitted the accused on the ground that it was a weak type of evidence and requires strong corroboration. We have also gone through the case of "Maqsood Ahmed" referred supra, whereby learned same Judge of the High Court has acquitted the accused giving him the benefit of doubt while disbelieving the joint extra-judicial confession and other similar circumstances.
12. Accordingly, we are of the opinion that prosecution has failed to prove the case against the appellants. The appeal is allowed, convictions and sentences of the appellants is set-aside. They shall be released forthwith if not required in any other case.