' M.A. SHAHID SIDDIQUI, J.---This judgment shall dispose of Criminal Appeal No,43 of 2004 and Criminal Appeal No,42 of 2004 filed by Muhammad Ramzan and Sher Zaman appellants both arising out of the same case.
2. Muhammad Ramzan alias Dhurla and Sher Zaman appellants have been convicted by the learned Additional Sessions Judge-I, Mianwali under section 302(b), P.P.C. In case F.I.R. No,30 dated 13-3-2003 Police Station Wan Bhachran District Mianwali for committing qatl-i-amd of Haq Nawaz real brother of Muhammad Ismaeel complainant. Both the appellants have been sentenced to imprisonment for life and directed to pay Rs,1,00,000 each to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default of payment therefore a suffer S.-I. For six months.
3. According to the prosecution Haq Nawaz deceased who vide with this family at Bannu came to Phathi Tharukhelanwala and stayed in the house of Muhammad Ramzan accused. He was scheduled to go back to Bannu on 17-1-2003 but he did not go. On 13-3-2003 Sher Muhammad P,W.5 found a skeleton in the sarkandas near Chah Dharalanwala. On his information Muhammad Ismail complainant reported the mater to the police. After the registration of the case the Investigating Officer ceased. I.D. Card of Haq Nawaz deceased and his torn shirt. The skeleton was detained by Dr. Muhammad Ashfaq P.W.2 who could not give the duration between the death and the post-mortem examination. However, he had found four metallic foreign bodies which he handed over to the police. On 29-3-2003 the Investigating Officer recorded the statements of Ghulam Jilani, Sher Zaman and Sher Muhammad P.Ws. In which they deposited about the extra- judicial confession made by Muhammad Ramzan, Muhammad Sharif and Sher Zaman appellant on 14-3-2003. Sher Zaman appellant while in police custody got recovered a .12 bore pistol Exh.P-7 and Muhammad Ramzan accused a hatchet Exh.P-8.
4. The motive for the offence was that Muhammad Ramzan appellant had developed illicit relations with Mst. Riffat Batool wife of Haq Nawaz deceased therefore, to remove Haq Nawaz from the way Muhammad Ramzan along with other co-accused committed the murder of Haq Nawaz.
The. Learned Trial Court relying upon the extra-judicial confession made by the appellants before Sher Muhammad P.W.5 and their recovery of the aforementioned two weapons held the appellants guilty under section 302(b), P.P.C. Vide impugned judgment and sentenced them as detailed in opening paragraph of this judgment.
5. After hearing the learned counsel for the parties and going through the record it has been found that the prosecution case hinges on the testimony of Sher Muhammad P.W.5 who had found a skeleton on 13-3-2003 and in whose presence the appellants confessed their guilt. There is no other evidence whatsoever to connect the appellants with the occurrence. In the absence of recovery of any empty the recovery of pistol from Sher Zaman appellant is of no consequence. There is nothing on the record to show that the deceased had sustained any injury with sharp-edged weapon, therefore, the recovery of hatchet Exh.P-8 is also un2 consequential. The evidence of extrajudicial confession is a weak type of evidence which is normally fabricated in cases which are unwitnessed. Even otherwise the extra-judicial confession of the accused being joint cannot be treated as a legal evidence. I am constrained to observe that the prosecution has miserably failed to bring home the charge against the accused. The judgment of the learned Trial Court cannot be sustained. I therefore, accept both the appeals and set aside the convictions and sentences awarded to the appellants. Muhammad. Ramzan and Sher Zaman appellants stand acquitted.
They are on bail. Their sureties stand discharged.