' KHAWAJA MUHAMMAD SHARIF, J.--- This appeal is directed against the judgment, dated 31-7-2006 passed by the learned Additional Sessions Judge, Lahore whereby, after having tried the appellants, they were convicted under section 302(b), P.P C. Each and sentenced to imprisonment for life each with a further direction to pay an amount of Rs,1,00,000 each as compensation to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default whereof to further undergo S.I. For six months each; appellants were further convicted under section 201, P.P.C. And sentenced to seven years' imprisonment with a fine of Rs,5,000 each in default whereof to further undergo R.I. For one month each; under section 364, P.P.C. To ten years' imprisonment with a compensation of Rs,10,000 each in default whereof to further undergo S.I. For two months, all the above sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to the appellants.
2. Brief facts of the case as given by the complainant Haji Muhammad Akram in the (Exh.P.C./1) are that he is publisher, that his real son, namely, Asif Ali alias Amjad (deceased) left the house on 3-2- 2004 at about 2-00 p.m. And was missing till registration of the case on 26-2-2004, for the search of his said son he hired services of military dogs who pointed out the Baithak of Malik Rehmat and, according to the complainant, he had strong suspicion that the said Malik Rehmat and Muhammad Naeem along with their unknown companions had abducted his above said son. The motive statedly was that the above mentioned Malik Rehmat believed that complainant's son Asif had illicit relations with his sister Mst. Nasira coupled with the fact that the deceased had terminated business with them. Further that the accused persons had extended threats to his son in the presence of Imran Aftab and Muhammad Ayub to kill and abduct him. Added that the said Nasira used to write letters to his son in which she had mentioned that the deceased should be careful from his brother and other companions.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where the prosecution in order to prove its case against the accused, produced ten prosecution witnesses during the trial.
4. Learned counsel for the appellants in support of this appeal submits that there is no legal evidence regarding the last-seen that the person who had appeared before the learned trial Court supporting the' last-seen evidence has deposed for the first time in the Court after a period of one year regarding having last-seen the deceased in the company of the accused persons; that he never made such a statement during investigation, so, his statement has no credence, that the extra-judicial confession was a joint one which was made after ten months of the occurrence allegedly before Zubair (P.W.3) wko was an uncle of the deceased and a friend of the said P. W.3, namely, Boota Masih (P.W.2); that the recovery of belongings to the deceased was a merely plantation because such-like fabrications and plantations are very common to connect the innocent persons with the offence; that the post-mortem examination is silent about the cause of death thus, there is no evidence of murder which can connect the appellants with the alleged commission of the offence; that recovery of the dead body on; the pointation of the appellants was a joint one and the method adopted by the police was highly unnatural; that the complainant was not an honest person because on different stages of investigation he tried to falsely implicate different sets of persons, that the prosecution has failed to prove its case against the appellants and that the appellants are entitled to acquittal by this Court.
5. On the other hand, Ch. Jamshed Hussain, Deputy Prosecutor General Punjab appearing on behalf of the State submits that P. W.1 Rana Muhammad Ayub is a witness of last-seen who had seen the deceased in the company of the accused persons; that non-recording of statement under section 161, Cr.P.C. On his part is not fatal to the prosecution case; that P.W.4 Haji Muhammad Akram/complainant and both the witnesses of extra judicial confession, namely, P.W.2 Boota Masih and P.W.3 Zubair have fully implicated the, appellants in the murder of the deceased; that the prosecution case is further corroborated by recovery of dead body on the pointation of the appellants, place of murder and recovery of belongings from the appellants; that the ocular account in this case is corroborated by the medical evidence and recovery of Kassi; that the police has honestly investigated the case; that the prosecution has proved its case against the appellants beyond a shadow of doubt and that this appeal is liable to be dismissed.
6. Mr. Asghar Ali. Gill, Advocate, while appearing on behalf of the complainant, has not denied that as far as extra-judicial confession is concerned that is a joint one; he contends that in the last lines of his cross-examination of P.W.3 Muhammad Zubair stated that "we brought the skeleton with clothes over in a Carry Dabba in police station. The Carry Dabba was brought by the police. I escorted the dead body to the mortuary at about 9.00 p.m."; that P.W.6 Dr. Khalid Hussain who conducted postmortem examination on the dead body of the deceased on 4-1-2005 gave opinion to the effect that "after that in his opinion the body is advanced stage of putrefaction and soft findings were not elicit-able. Histopathology report was suggestive of ante-mortem injury to the heel bone. The injury was caused by sharp-edged weapon. Its nature of being homicidal cannot be ruled out at this belated stage. I have seen the report of Bacteriologist Exh.P.F. And my report on it is Exh.P.F./1 which is, in my hand and bears my signatures:' that as per P.W.3 Muhammad Zubair the appellants, one after another, pointed out the place of burial of the dead body of the deceased which is a strong piece of evidence to connect the appellants with the murder of Asif Ali alias Amjad; that P.W.4 Haji Muhammad Akram who is complainant of the case and father of deceased Asif Ali alias Amjad stated during the trial in his cross-examination that he had narrated before the police that accused Asim Saeea was the real culprit who guided him to nominated Rehmat, Naeem and Ghulam Mustafa as he was close friend of his deceased son Asif Ali alias Amjad but this fact was not challenged by the defence; that the place where the dead body was buried, was pointed out by the present appellants which was not contradicted by them; that there is evidence of recovery of watch, finger ring, cheques and identity card of the deceased from the appellants; that the dead body of the deceased was identified from the clothes; that the complainant had no reason to falsely involve the appellants in the case; that the circumstances do not tell lie while the people can tell lie; that Asim is the main accused in this case and that appeal filed by the appellants against their conviction is liable to be dismissed.
7. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
8. In the instant case F.I.R. Was lodged by P.W.4 Haji Muhammad Akram on 26-2-2004 about an occurrence which took place on 3-2-2004. He is father of Asif Ali alias Amjad deceased. According to the contents of the said F.I.R. His real son, namely, Asif Ali alias Amjad (deceased) had left the house on 3-2-2004 at about 2-00 p.m. And was not traceable, the complainant for the search of his said son hired services of military dogs who pointed out towards the Baithak of Malik Rehmat and, according to the complainant, he had strong suspicion that the said Malik Rehmat, Billu son of Farzand and Muhammad Naeem, along with their unknown companions, had abducted his above said son. The motive in the instant case is very necessary for a just decision of the case which has been given by P.W.4 Haji Muhammad Akram, who is father of deceased Asif Ali alias Amjad, after 23 days of the occurrence. According to the complainant, the above mentioned Malik Rehmat believed that complainant's son Asif had illicit relations with his sister Mst. Nasira Bibi coupled with the fact that the deceased had terminated business with the said Malik Rehmat and further that the said Malik Rehmat had extended threats of dire consequences to his son in the presence of Imran Aftab not produced. According to the complainant, the said Malik Rehmat and his companions had threatened his deceased son, in front of his partner Muhammad Ayub, for his abduction and consequent killing. He further stated in the F.I.R. That the said Nasira used to write letters to. His son which she has mentioned that the deceased should be careful from his brother Malik Rehmat etc. ' It is pertinent to mention here that P.W.4 Haji Muhammad Akram made a supplementary statement on 29-3-2004 i.e. One month and three days after the registration of the F.I.R. Involving Muhammad Asim, Jameel Abbas and Hafiz Shafique in the case. Name of Imran appellant is not mentioned in the said statement. Muhammad Naseem, Asim Saeed, Jameel Abbas and Haji Shafique were declared innocent during the course of investigation while Ghulam Mustafa and Malik Rehmat were found guilty.
' It would not be out of place to mention here that during the hearing of a petition under sections 22-A/22-B Cr.P.C., learned counsel for the complainant requested the learned Justice of Peace to direct the police to record statements of Amer Shahzad and Rana Ashraf about the alleged extra- judicial confession of Malik Rehmat and Ghulam Mustafa, who are not appellants before this Court.
The Police while complying with the order of the learned Judge, recorded their statements in which they stated that Malik Rehmat and Ghulam Mustafa admitted before them that they had committed the murder of Asif Ali alias .Amjad deceased, but, these witnesses were given up by the prosecution. Then again on 29-12-2004, complainant made another supplementary statement in which he named the present three appellants as killers of his son Asif Ali alias Amjad deceased.
Appellants were arrested on 5-1-2005.
' It is important to note here that P.W.1 Rana Muhammad Ayub was in fact a witness of last worn clothes of the deceased and the letters written by Nasira, a sister of Malik Rehmat, to the deceased, but he also introduced a new story qua last seen and too after a period of one year. He was duly confronted with Exh.D.A.
Then there are two witnesses of the extra-judicial confession i.e. Boota Masih (P.W 2) and Muhammad Zubair (P.W.3).- P.W.3 is the real maternal uncle of the deceased while it has come on record that P.W.2 is his friend. I have gone through their statements with the able assistance of the learned counsel for the parties and are consistent qua its joint nature which has not been denied by the learned counsel for. The complainant. It is settled by now by the Superior Courts of the country including the Apex Court that the joint extra-judicial confession is a very weak type of evidence and is inadmissible in evidence, so, is ruled out of consideration.
' Much stress has been laid on the recovery of a skeleton on the part of the appellants. According to P.W.3 Muhammad Zubair and P.W.4 Haji Muhammad. Akram the said skeleton was identified from the clothes. According to them, those clothes were of deceased Asif Ali alias Amjad. In order to reach at a just decision of the case, this Court reversed back to the contents of the F.I.R. In which it was never mentioned about the clothes which the deceased was wearing at the time of missing.
Furthermore, P.W.3 Muhammad Zubair was not present at the time of leaving the house by the deceased, so, how he can identify the deceased's dead body from his clothes which was a skeleton and was under putrefaction. The deceased had left his house on 3-2-2004, according to the prosecution, the dead body/skeleton of the deceased was pointed out by the appellants about eleven months after the occurrence. P.W.6 Dr. Khalid Hussain who conducted the postmortem examination and had deferred his opinion till the report of the Bacteriologist, has given his opinion as under (when he was recalled and reaffirmed):--- "After that in the opinion the body is advanced stage of putrefaction and soft tissues findings were not elicitable. Histopathology report was suggestive of ante mortem injury to the heel bone. The injury was caused by sharp-edged weapon. Its nature of being homicidal cannot be ruled out at this belated stage. I have seen the report of Bacteriologist Exh.P.F. And my report on it is Exh.P.F./1 which is in my hand and bears my signatures".
In the above statement, P.W.6 admitted that the dead body was in the advanced stage of putrefaction. He also found one injury on the heel of the deceased with a sharp-edged weapon. I may state here that h was just impossible that the dead body of the deceased could have been identified after eleven months of the occurrence.
' Now this Court is left to discuss another piece of evidence of recovery which the prosecution has brought on record against the appellants. Appellant Asim. Saeed, got recovered Identity Card, two cheques, a watch, a finger ring and another finger silver ring allegedly belonging to the deceased. I may state here that these articles were not even mentioned in the F.I.R. By the father who had lodged the F.I.R. Coupled with the fact that no accused would be of such foolish type that he would keep these articles for such a long period of one year although those were of no monetary value even. In my considered view the alleged recovery of the above mentioned articles on the part of the appellants is of no avail to the prosecution. So far as recovery of "Kassi", which was not blood- stained, is concerned, that is not believable because "Kassis" are very easily available in the open market, so, its plantation on the appellants cannot be ruled out.
' While coming to the motive part of the prosecution case, in my opinion there is no motive against the appellants because the motive, if any, was against the earlier set of accused persons, namely, Malik Rehmat, Billu son of Farzand and one Muhammad Naeem which was to the effect that the deceased had illicit relations witli a sister of Malik Rehmat. They were not even tried by the learned trial Court. In fact in this case I have noticed that the complainant on every stage has been changing his versions about the accused persons. It is a case about which this Court can say with certainty that it is full of doubts against the appellants, so, in this view of the matter and while granting benefit of doubt to the appellants this appeal is allowed, the impugned judgment is set aside, the appellants are acquitted from the case, they are behind the bars and shall be released forthwith if not required to be detained in any other case.