This judgment shall dispose of Cr. Appeal No, 1776/05 (Shaukat Ali u. The State) filed against conviction, and Cr. Appeal No, 148-J/07 (Muhammad Ahmad v. The State) filed against conviction and Cr. Rev./No, 907/05 (Zafar Ali u. The State and others) filed for enhancement of sentence of aforesaid appellants and Nazir Ahmad (who has not filed any appeal) as these arise out of the same judgment dated 29.9.2005 passed by the learned ASJ-III, Pakpattan Sharif, whereby, after having been tried, the accused were convicted and sentenced as under:-- Shaukat Ali, Muhammad Ahmad and Nazir Ahmad u/S. 460 PPC to undergo 10 years R.I. u/S. 396 PPC to undergo 10 years R.I. And fine of Rs, 50,000/-, in default whereof to undergo further S.I for 6 months each.
All the sentences were ordered to run concurrently. Benefit of Section 382-B PPC was extended to the appellants/accused. Nazir Ahmad convict has not challenged his conviction and sentence.
However, I am of the view that it is duty of the appellate Court to impart justice and if any illegality is found on record the Court can appreciate his case on merits as well. So case of Nazir Ahmad convict/accused is also taken up along with case of his co-accused as his case is at part with that of his co-accused.
2. As per FIR brief facts of the case as stated by the complainant Zafar Ali (PW.7) are that in the night between 30/31st January, 2004 at about 1.00 a.m. 7/8 persons armed with deadly weapons trespassed into his house while scaling over the wall. He(complainant) along with his wife, mother, aunts and other children were sleeping in their separate rooms whereas his father was sleeping in his separate drawing room. The complainant peeped through a hole of his room and witnessed the above said 7/8 persons/dacoits bringing his father from the drawing room into the courtyard. They tried to fasten his father, on his resistance, one of them caused sota blow on his temple and the forehead resulting in serious injury. They confined the other inmates in a separate room and then took away household articles including clothes, cash, ornaments, motorcycle, tape recorder and identity card of the complainant etc. and made good their escape. On hue and cry, the neighbour came there and got the inmates free by unlocking the door of the room. Complainant described the features of the accused and stated that he could identify them.
3. After formal investigation the challan was submitted in the Court. Charge was framed against the accused to which they pleaded not guilty and claimed for trial.
4. In order to prove its case, the prosecution produced as many as 15 prosecution witnesses. The accused when examined under Section 342 Cr.P.C, they denied the allegations leveled against them and pleaded their innocence. None of the accused produced any defence evidence nor examined themselves on oath as required under Section 340(2) Cr.P.C.
5. At the conclusion of trial, the accused were convicted and sentenced as mentioned above.
6. I have heard the learned counsel for the parties and gone through the whole evidence with their able assistance.
7. Admittedly this is a case wherein none of the accused was nominated in the FIR. However, the descriptions of accused were mentioned in the FIR. Later on the appellants were nominated as accused on the basis of supplementary statement dated 10.2.2004 made by Zafar Ali complainant (PW.7). While appearing in Court he deposed in his cross-examination that after a few days of the occurrence he suspected upon Muhammad Ahmed and Shaukat Aliaccused(both appellants) who were arrested and they Confessed their guilt. So any confession made by the accused in custody of police is inadmissible in view of the provisions of Article 39 of Qanun-e-Shahadat Order, 1984. The other eye-witness of the case was Mst. Asia Bibi (PW.11) wife of the complainant. She while appearing before the Court did not utter even a single word that she identified both accused who were present in the Court. Although aforesaid PW.7 stated that accused Shaukat Ali gave a blow on the head of the deceased yet in the present case, no identification parade was held nor the weapon of offence i,e, danda used in the occurrence was recovered from him. Identification of accused by aforesaid PW.7 at the trial would be of no relevance in that score. Reliance can be placed on 2007 SCM R 1944.
8. It would be important to mention over here that Zafar Ali (PW.7) admitted as correct that he had not got recorded correctly the name and features of Shaukat Ali accused in the FIR (Ex.PC/1) and identified him later. He also stated as under:-- "It is correct that I had got recorded in my statement to the police dated 22.6.2004 that the occurrence was committed by Fayyaz Ahmad son of Sharif of 19/SP. Volunteered that I had said on the basis of suspicion. It is correct that during the investigation I have been raising suspicion on different persons during the investigation. The above quoted portion of evidence would show that this is a case of no evidence against the appellants and evidence of aforesaid PW.7, PW.9 and PW. 11 would not be safe, for conviction and sentence of the appellants.
9. The other piece of evidence against three convicts is their extra-judicial confession, before Muhammad Aslam (PW.9) who is from the `Baradari of the complainant and Muhammad Khalid (PW. 10) who is maternal nephew of the complainant. Both eye-witnesses stated that both the appellants and co-convict. made extra-judicial confession before them on 6.2.2004 and their statements under. Section 161 Cr.P.0 were recorded on 12.2.2004 and during the interregnum admittedly they participated in the funeral, Rasm-e-qul and Fateh Khawani but they did not tell the complainant or the 1.0. about extra judicial confession made by the appellants and their co- convict Nazir Ahmad, that version runs counter to the stance of complainant (PW.7) in his statement made. Muhammad Aslam(PW.9) further admitted as correct that.both the appellants had not disclosed the name of any person in his presence and he also admitted that he had no relationship or acquaintance with Shaukat Ali accused prior to the disclosure/extra judicial confession and that fact would show that why a person will approach that prosecution witness who is neither known to him nor has any relationship with' him. Similar statement was made by Muhammad Khalid (PW. 10). He also stated that after making extra-judicial confession the accused asked them to produce them before the police and thereafter they went away. This statement also does not inspire confidence that if a person makes a statement of confession about murder of maternal grand father of a witness, still he is allowed scot free by the said PW. Even otherwise it is a settled proposition of law that extra-judicial confession is a very weak type of evidence. The same cannot be relied upon for the purpose of conviction and sentence in a case of capital punishment unless the same is corroborated by other admissible and confidence inspiring evidence, so the evidence of aforesaid PW.9 and PW.10 is also of no avail in the facts and circumstance of the case.
10. During the investigation nothing was recovered at the behest of Muhammad Ahmad accused/appellant whereas identity card of the complainant Ex.PH and an amount of Rs, 3200/- EX.PE were recovered at the behest of appellant Shaukat All and proved through aforesaid PW.7 and Muhammad Khalid (PW. 10), and that too in violation of the provisions of Section 103 Cr.P.C. particularly when the place from where the alleged recoveries were effected was an isolated house where nobody was residing and Muhammad Khalid PW. 100 who was a witness of extra- judicial confession and recovery was a resident of 20 K.M away from the place of occurrence.
11. For what has been discussed above, I am of the considered view that this is a case of no evidence against the appellants and the prosecution has failed to prove its case against the appellants beyond any shadow of doubt. Consequently, both the 'appeals are allowed and conviction and sentence of the appellants awarded to them ride judgment dated 29.9.2005 passed by the learned Addl. Sessions Judge-III, Pakpattan Sharif is set aside and they are acquitted of the charge. The appellants shall be released forthwith if they are not required in, any other criminal case.
12. As far as case of Nazir Ahmad co-convict of the appellant is concerned, he has not filed an appeal to challenge his conviction and sentence passed by the learned trial Court. However. I am of the view that it is the duty of the appellate Court (High Court) to impart justice. Although statutory right of appeal to any convict on a trial held by the Sessions Judge or ASJ has been provided under Section 410 Cr P.C, whereby a convict as a right can demand an adjudication from this Court either on a question of fact or on a question of law or on both but that is a procedural issue but our religion Islam gives less importance to the procedural issues and lays emphasis in maintaining justice and equality and whenever it comes in the notice of the Court that any procedural or technical reason would cause injustice of great form and if any illegality is found on record during the hearing of any connected matter, this Court can appreciate the case of that one on merits who is being deprived from the relief to which he was entitled because this Court can exercise visitorial powers in respect of Courts below in cases where appeal or. leave to appeal were not filed. Even otherwise it is basic principle of jurisprudence that latent power always lies with the head of the institution and wherever he finds any wrong he can rectify the same and this Court being a' Court of appeal and having full control and superintendence over the Courts below could exercise the same to avoid the miscarriage of justice.
13. In view of above discussion after appraisal of evidence I have found that case of Nazir co- convict is at part with his coaccused/appellants so he cannot be deprived of the benefit which is being extended to them, so his conviction and sentence vide judgment dated 29.9.2005 passed by the learned ASJ-III, Pakpattan Sharif is also set aside and he is also acquitted of the charge. He be released forthwith, if he is not required in any other criminal case.