' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Appellant Javaid Sabir alias Pappu along with 5 other accused was tried in case F.I.R. No,118 of 1999, dated 21-12-1999 registered under section 302, P.P.C.
At Police Station Railway, Lalamusa by the Additional Sessions Judge, Gujrat camp at Kharian, who vide judgment, dated 26-6-2003 while acquitting co-accused, convicted the appellant and his co- accused Ali Naqi Shah under section 302(b)., P.P.C. And sentenced them to imprisonment for life as Taazir as well as to pay Rs,25,000 each as compensation to the legal heirs of the deceased or in default whereof to further undergo six months' S.I. Trial Court also extended benefit of section 382- B, Cr.P.C. In favour of the appellant and his co-accused.
2. Challenging his conviction and sentence appellant filed Cri. A. 267-J of 2002 through jail while Ali Naqi Shah accused filed Cri. Appeal No,80 of 2003 which has already been allowed on the basis of compromise between the parties vide judgment dated 12-1-2004.
3. Succinctly the facts of prosecution case are that Muhammad Shabbir Butt complainant on 21-12- 1999 made statement Exh.P.A. To the police that on the night between 20/21-12-1999 when he came home, was informed that some unknown persons had caused fire-arm injury to his brother Muhammad Latif Butt at about 7-00 p.m. When he was coming to his house by crossing the Railway line. The, injured was removed to Lalamusa Hospital and was admitted for medical treatment. On the basis of said statement formal F.I.R. Exh.P.A./1 was registered at Police Station Railway, Lalamusa. Later on Muhammad Latif Butt succumbed to the injuries and section 302, P.P.C.
Was added.
4. During the investigation on 18-5-2001 (after two years of the occurrence) Noor Hayat Gondal S.I.
P.W.14 on receiving a telephonic call from Muhammad Azam S.H.O., P.S. Saddar, Lalamusa about the arrest of certain persons who had confessed their guilt about the murder of Muhammad Latif Butt, formally arrested the appellant along with Ali Naqi Shah. During interrogation by the police in the presence of Muhammad Shabbir Butt P.W.1 and his son Tanveer Shahzad P.W.11, both the accused confessed their guilt, disclosing that they had committed the murder of Muhammad Latif Butt on the abetment of Nadeem alias Rambo nephew of deceased along with Qasim Shah, Asif Shah and Tausif Iqbal co-accused by causing fire-arm injury. Statedly, Nadeem alias Rambo informed them that his uncle Muhammad Latif Butt (deceased) was the checker in a private bus company and used to pass through Railway yard daily in the evening carrying huge amount. .On the day of occurrence, they while armed with deadly weapons sat in the Railway yard and waited for Latif Butt (deceased), at about 7-00 p.m. The deceased came there and on the pointation of Nadeem alias Rambo, they tried to snatch the amount from the deceased and on his resistance Ali Naqi Shah fired at the deceased (Latif Butt) with .12 bore gun and resultantly later on he succumbed to the injury. During the investigation appellant also led to the recovery of gun .12 bore P.1 which was taken into possession vide memo. Exh.P.F. Finally after complying with legal formalities Noor Hayat Gonda S-I. P. W.14 submitted challan before the trial Court where prosecution produced 16 witnesses to prove the charge against the appellant and his co-accused.
23- Muhammad Shabbir Butt P.W.l being a complainant while supporting the prosecution case as narrated in the F.I.R., deposed before the trial Court. Statedly, he along with his son Tanveer Shaukat P.W.Ll was also present when accused persons during interrogation by the police confessed their guilt about the murder of Muhammad Latif Butt Muhammad Ashraf P.W.2 was present when blood- stained earth was taken into possession from the spot by the Investigating Officer. Muhammad Fareed A.S-I. P.W.3 kept the parcels in the Malkhana for safe custody and later on delivered the same to the Constable for onward transmission to the relevant office. Akhtar Naqash Draftsman P.W.4 prepared scaled site plan Exh.P.C. And P.C./l. Javaid Iqbal A.S-I. P.W.5 upon receiving information went to ABS Hospital Gujrat but failed to record the statement of injured because of his unconsciousness. On the next day he entered formal F.I.R. On the basis of statement made by Muhammad Shabbir Butt P.W.l, brother of the deceased. On 23-12-1999 he managed to record the statement of Muhammad Latif Butt deceased in Central Hospital Rawalpindi. Statedly the deceased disclosed that all the four persons had wrapped Chadars and he could identify them if produced before him. On the same day Muhammad Latif Butt expired and this police officer after complying with legal formalities sent the dead body to the mortuary for post-mortem examination.
Muhammad Tauqeer MHC P.W.6 kept the parcel of gun recovered at the instance of appellant in Malkhana for safe custody. Khan Muhammad .A.S-I. P.W.7 was present when Javaid Sabir appellant led to the recovery of .12 bore gun which was taken into possession vide memo. Exh.P.F. He also signed the recovery memo, in this regard. Dr. Khalid Faiz P.W.8 medically examined Muhammad Latif Butt when he was still alive and prepared Medico-legal report Exh.P.H. This report reveals that injured had one fire-arm wound on lateral aspect of left thigh and clinically there was deformity and fracture of left femur. Dr. Naveed Iqbal P.W.9 conducted post-mortem examination on the dead body of Muhammad Latif and observed the same injury as mentioned in the Medico-legal report. In his opinion the said injury was sufficient to cause death in the ordinary course of nature.
Fazal Hameed FC, P.W.10 kept the parcel in Malkhana for safe custody and later on handed over the same to Constable for onward transmission to the relevant office. Tanveer Shahzad P.W.Ll was present along with his father Muhammad Shabbir Butt P.W.l when the accused persons confessed their guilt. Haji Muhammad Sarwar D.S.P. P.W.12 lodged F.I.R. Exh.P.A./l and entrusted the investigation to Javaid A^S-I. Adalat Khan FC P.W.13 took the parcel to the office of Chemical Examiner and delivered the same intact. Noor Hayat Gondal S-I. P.W.14 conducted investigation as narrated earlier. Waqar Ali Constable P.W.15 was present when the accused allegedly confessed their guilt during the investigation. Muhammad Azam Baloch, S-I. P.W.16 arrested the appellant and his co-accused Ali Naqi Shah and informed the Railway Police Lalamusa about the arrest and confession of the accused and ultimately handed over the custody of accused to the said police officer.
6. Learned D.D.A. Tendered in evidence report of Chemical Examiner Exh.P.M., that of Serologist Exh.P.N. And Forensic Science Laboratory Exh.P.Q. And closed the prosecution case.
7. Trial Court also examined the appellant and his co-accused under section 342, Cr.P.C. All of them while denying the charges pleaded innocence.
8. Trial Court after appraisal of evidence available on record vide judgment dated 26-6-2002 convicted and sentence the appellant as narrated earlier.
9. With the able assistance of the learned counsel for the parties, record of this case has been perused.
10. On the night between 20/ 21-12-1999 some unknown persons caused fire-arm injuries to Muhammad Latif Butt and later on during the investigation it transpired that the appellant along with other accused had participated in this occurrence in order to rob Muhammad Latif Butt deceased. The entire evidence of the prosecution to connect the appellant with the commission of this offence is in the form of extra-judicial confession of appellant and recovery of .12 bore gun.
Statedly after two years of the occurrence appellant and his co-accused Ali Naqi Shah were arrested by Muhammad Azam Baloch S-I. P.W.16 when he was posted at Police Station Saddar, Lalamusa and during interrogation by the police both of them in the presence of Muhammad Shabbir Butt P.W.l and Tanveer Shahzad P.W.Ll, confessed their guilt about causing injuries to Muhammad Latif Butt deceased. Under Article 39 of Qanun-e-Shahadat, 1984 confession by accused of his guilt under custody of the police which is not made in the presence of Magistrate, in the absence of any strong corroborative piece of evidence, is of no legal value. In the present case admittedly the appellant and his co-accused confessed their guilt when they were being interrogated by the police after their arrest, thus this piece of evidence cannot be used against the appellant. Even otherwise, the statements of Muhammad Shabbir Butt P.W.l and Tanveer Shahzad P.W.Ll are absolutely silent about the confession of guilt by the appellant. Their statements are only to the extent of the confession by Ali Naqi Shah co-accused of the appellant.
' The second limb of prosecution case is the recovery of crime weapon at the instance of the appellant. It is interesting to note that there is nothing on the record to show that gun recovered at the instance of the appellant was ever used during this occurrence and in this view of the matter, this piece of evidence is also of no legal value.
' For what has been discussed above, it is clear that it is a case of no evidence against the appellant and his conviction and sentence is not sustainable. Accordingly, the instant appeal is accepted, conviction and sentence of the appellant is set aside and he stands acquitted from the charge. .The appellant who is in jail, shall be released forthwith if not required in any other case.