1. JUDGMENT M. A. ZAFAR, J.- This judgment will dispose of Criminal Appeal No. 34-ATA-2007 filed by Muhammad Majid appellant, who was convicted and sentenced by learned Judge Anti-Terrorism Court, Bahawalpur, vide impugned judgment dated 06.06.2007 as under:- U/s. 396. PPC.
2. Imprisonment for life with a fine of Rs. 50,000/- and in default thereof to further undergo six months'
3. S. U/s. 302(b). PPC.
4. Imprisonment for life and to pay an amount of Rs. j 50,000/- as compensation to the legal heirs of the deceased and in default thereof to further undergo six months' S. U/s. 7(a) of ATA. 1997.
5. Imprisonment for life with a fine of Rs. 50,000/- and in default thereof to further undergo six months'
6. S. All the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C.
2. The facts as emanated in the complaint Exh.PE/1, then recorded on the statement of Muhammad Majid, who himself was later on found as one of the accused, are that he was serving under this "Chacha Zaad" Imtiaz Ahmad a goldsmith at Kabirwala, District Khanewal. On 24.04.2005 he alongwith Imtiaz Ahmad brought gold ornaments and gold to Sadiqabad where they did some business and stayed night in the house of one Muhammad Jameel goldsmith. Next day i.e. 25.04.2005* they came to Rahimyar Khan and carried out their business and spent night in Abdullah Hotel, Rahimyar Khan. Next day Imtiaz Ahmad went to Sadiqabad and he (Majid) himself did business in Rahimyar Khan. Imtiaz came back at about 6:00 p.m. Thereafter, they did their business and supplied gold ornaments in Sadiqabad Bazar. At 11:30 p.m. They both left their hotel and proceeded to railway station in order to board on train, but near the railway station four armed persons came on a car, assaulted on them and made firing. Imtiaz Ahmad after receiving injuries due to the said firing died there and then, while he (Majid) also received injuries. The accused snatched away the cash and gold etc. PW-13 Abbas Akhtar, Inspector recorded statement of Majid Ex.PE/1, prepared complaint and sent the same to Police Station City B. Division, Rahimyar Khan for registration of the case. On the basis of which PW-12 Ghulam Qadir, ASI registered formal FIR Ex.PE.
7. PW-13 Abbas, Inspector took up investigation and during the investigation some clue lead to the involvement of Muhammad Majid, complainant of the case, Zeeshan alias Kaka, Muhammad Jameel and Mushtaq alias Makha. Hence investigation took up a twist. The I.O. Prepared injury statement Ex.PD/2 and inquest report Ex.PD/3 of deceased Imtiaz. He also prepared injury statement of Muhammad Majid Ex.PA/1 and managed to send the dead-body of Imtiaz to hospital for autopsy, whereas PW-7 Dr. Nawazish-ur- Rehman conducted autopsy and prepared postmortem report Ex.PD. He found following injury on his person:- "A lacerated wound about 2 cm x 2 cm on right side of neck with inverted margins at the junction of neck and thorax. .No burning present. Blackening was present. On deep dissection wound No. 1 track downward and to the left side and damaged the major vessels on right side of the neck and damage trachea."
8. During investigation Ishtiaq Ahmad and Tahir Mahmood made their statements to the effect that Muhammad Majid had made extra-judicial confession before them in respect of this occurrence.
9. PW-14 Muhammad Akbar, ASI (retired) also carried out investigation of this case, secured blood- stained earth from the place where deceased Imtiaz received firearm injuries, made it into a sealed parcel and took into possession vide recovery memo. Ex.PF. He collected two empties and took the same into possession vide recovery memo. Ex.PG, prepared rough site plan Ex.PH and took car into possession through recovery memo. Ex.PJ. PW-1Dr. Azmat Yaseen examined injured Muhammad Majid and issued medico legal report Ex.PA. Following injury of firearm was found of his person:- "There is lacerated wound size 1 x 1/2 in ch oval shaped margins inverted. Blackening present around the wound. Wound was on the lateral side of the mid thigh (Right side) KUO X-Ray Right thigh and referred to Ortho-Surgeon for expert opinion. Injury No. 1 was KUO."
10. Scaled site plan Ex.PB and Ex.PB/1 were got prepared through PW-2 Muhammad Rafique tracer.
11. Muhammad Zubair Bangash. Inspector > PW-10 formally arrested Muhammad Majid accused on 07.09.2005 when he was produced before him by the witnesses. Thereafter, accused Muhammad Majid and Zeeshan alias Kaka were sent up to face the trial, while remaining two co-accused Muhammad Jameel and Mushtaq alias Makha could not be arrested and challan under Section 512, Cr.P.C. Was submitted against them. Hence this case.
3. Learned counsel for the appellant submits that the only evidence against the appellant is that of extrajudicial confession, which is a weak type of Evidence. To elaborate his argument, learned counsel submits that the conduct of both the witnesses of extra-judicial confession, who are closely related to the deceased, casts doubt about alleged confessional statement of the appellant as they did not apprehend the appellant when he made the confession before them.
12. According to learned counsel, had the appellant made confession before the PWs as alleged they would not have allowed the accused to escape. With regard to conduct of the PWs, learned counsel has also drawn our attention to statement of Muhammad Zubair, PW-10, Investigating Officer.
13. Next submits that no recovery whatsoever was effected from the appellant.
14. Learned counsel has also obliquely pressed into service the acquittal of Zeeshan co-convict of the appellant, who was acquitted on 19.12.2006 on account of compromise between him and legal heirs of Imtiaz Ahmad deceased.
15. Concluding his submissions, learned counsel submits that the prosecution has miserably failed to prove its case against the appellant and he is entitled to acquittal.
4. Learned Deputy Prosecutor General opposes the submissions made by learned counsel for the appellant and submits that there is sufficient evidence on the record in the shape of extra-judicial confession to maintain conviction against the appellant. He submits that the PWs had no ill will or enmity to falsely depose against the appellant. He supports the judgment of the learned Trial Court.
5. We have heard learned counsel for the parties at length and have gone through the- record with their able assistance.
16. The deceased in this case in Imtiaz Ahmad while Ishtiaq Ahmad, who is pursuing the case, is his real brother.
17. The facts as disclosed in the complaint Ex.PE/1 authored by Muhammad Majid (now convict/appellant) are that he was serving under his chacha zaad Imtiaz Ahmad (deceased) a goldsmith at Kabeerwala, District Khanewal, on 24.04.2005 the complainant along with Imtiaz brought gold ornaments to Sadiqabad where they had some business and stayed for a night in the house of one Muhammad Jameel goldsmith; on 25.04.2005, both the complainant and deceased came to Rahimyar Khan and stayed there for a night in Abdullah Hotel; on the next day, that is 26.04.2005, Imtiaz deceased went to Sadiqabad and the complainant did business in Rahimyar Khan; Imtiaz came back and at about 6:00 p.m. Thereafter, they did their business and supplied gold ornaments in Sadiqabad Bazar.
18. At 11:20 p.m. They both left the hotel and proceeded to railway station in order to board on a train but near the railway station four persons armed with fire-arms came in a car, fired as a result of which Imtiaz died there and then, and the complainant also received injuries. It was also alleged that the accused had snatched away the cash and gold etc. During the course of investigation, Ishtiaq Mahmood and Tahir Mahmood made statements before the Investigator that Majid accused had made extra-judicial confession before them for committing the murder of Imtiaz in order to loot him after hatching conspiracy with Zeeshan. On the basis of the confessional statement of Majid, he along-with Zeeshan was sent to face the trial.
19. It was an unwitnessed occurrence, The only evidence against he appellant is that of extra-judicial confession. The witnesses of the said confession are Ishtiaq Ahmad PW-8, who is real brother of the deceased and Tahir Mahmood PW-9, brother-in-law (Behnoee) of the deceased, who is resident of Lahore and came to Kabirwala two/three days prior to the statement made by accused before them. In whole of their statements, there is no mention pf the time and the date when the accused allegedly made confessional statements before the PWs.
20. Ishtiaq Ahmad PW-8 in his cross-examination at page 3 deposed: "After his (Majeed accused) statement in our Baithak, we could not apprehend him as he slipped away."
21. The other witness of extra-judicial confession namely Tahir Mahmood PW-9 in his cross- examination at page 3 deposed as under:- "When accused Majeed had made his confessional statement to us, we had become annoyed, however, could not apprehend the accused and we had just gone to Rahimyar Khan where we had made our statements to the I.O."
22. Here we may reproduce few lines from the examination-in-chief and cross-examination of Inspector Muhammad Zubair PW-10:-- "On 7.9.2005 said Ishtiaq Ahmad, Tahir, Arshad Javid and Muhammad Akram produced Muhammad Majid accused before me and stated that accused Muhammad Majid had confessed the offence of commission of murder of Imtiaz."
23. In cross-examination at pages 3 and 4 the witness deposed: "It is correct that in their statement u/s. 161, Cr.P.C. The said witness did not mention the date and time when the accused made confession in their presence."
24. "It is correct in statement of Arshad Javid PW recorded u/s. 161, Cr.P.C. He disclosed to have heard confessional statement after passing a period of 2012 vz months of the occurrence. It is also correct that similar position is about Muhammad Tahir witness. The period mentioned by witnesses was approximately which may fall in the month of July or around about it."
25. "These witnesses themselves had brought the accused on 7.9.2007."
26. From a minute reading of the above-quoted portion of the evidence of the PWs it is clear that there is no mention of time and date when the appellant allegedly made confessional statements before the PWs. It is also proved on the record that both the PWs. It is also proved on the record that both the PWs of the confession though are closely related to the deceased neither informed the Police soon after the confession nor produced him before the Investigator. Had the appellant made confession as alleged by the PWs on the time, date and place, they must have hauled him up especially when it was not the case of the prosecution that at that time the appellant was armed.
27. This conduct of the PWs casts serious doubts on the veracity of evidence of extra-Judicial confession.
28. There are also material fatal contradictions in the statements of the witnesses of extra judicial confession inasmuch as they in their statements have stated that the appellant after making confession slipped away while the Investigator PW-10 deposed that the accused was produced by the PWs before him on 07.09.2005, so much so he stated in Court that appellant was produced before him on 06.09.2005 but he asked the witnesses to produce the appellant on the next day i.e. 07.09.2005.
29. The settled law is that extra-judicial confession is a weak type of evidence and no conviction can be recorded without strong corroboration. Reliance can be placed on the case of Wazir Ahmad vs. The State (2005 SCM R 277). In the instant case, except extra judicial confession, there is no other evidence whatsoever in the shape of recovery.
30. From the above analysis of the evidence on the record and after attending to the submissions made by learned counsel from both the sides, we are of the considered opinion that the prosecution has failed to prove its case against the appellant rather it is a case of no legal evidence to connect the appellant with commission of offence. Resultantly, the appeal filed by the convict/appellant is accepted, the conviction and sentence recorded against the appellant by the learned Trial Court is set aside and he is acquitted of the charge.
31. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.