JUDGMENT M.A. ZAFAR, J. - This judgment will dispose of Criminal Appeal No. 1289 of 2008 filed by Asif Masih and Imran Masih appellants, who were convicted and sentenced by learned Addl.
Sessions Judge, Gujranwala vide impugned judgment dated 30.10.2008 as under:- Under Section 302(b). PPC.
Imprisonment for life each and to pay compensation of Rs. 50,000/- in default whereof to further undergo simple imprisonment for six months.
Benefit of Section 382-B, Cr.P.C. Was also extended.
2. Brief facts of the case as disclosed in the written application of Bashir Masih are that he is resident of Nizam pur Sialkoi Road, Mohallah Gulshan Ittefaq Colony Gujranwala and .Is working in WAPDA. On 20.04.2008, Arstiad Masih son of-the complainant was found dead in his house and his dead-body was in a damaged condition. Later oh, the complainant came to know that Arshad Masih has two marriages, he had .Three sons and one daughter from his first wife out of whom Asif Masih and Imran Masih had become of age; there had been serious tension over domestic affairs between them and the deceased Arshad Masih who had just retired from WAPDA. According to complainant the graduity and the house were the bone of contention between Arshad Masih deceased and accused, Asif - Masih and Imran Masih. It was alleged that Asif and Irrirah finding an opportunity murdered Arshad Masih and damaged, his dead-body through fire to conceal the 'occurrence. It is the case of the complainant that Asif Masih and Imran Maih confessed their guilt before Kathu Masih and. Boota Masih.
3. Muhammad Ashraf SI, PW-10 took over the investigation. He reached at the spot, took into possession dead-body of the deceased, prepared Inquest Report Ex.PE, injury statement Ex.PF and sent the dead-body for autopsy. The Investigator recorded statements of the witnesses and on 13.05.2008 he arrested Asif and Imran Masih. During custody on 18.05,2008 Imran accused got recovered two Dandas, which were taken into possession, vide memo. Ex.PB. Site plan of the place of recovery is Ex.PB/1. After completion of formal investigation both the accused were sent to face the trial.
4. At the trial prosecution in order to prove its case produced 10 witnesses in all. The learned public prosecutor closed the case of the prosecution. The accused in their statements under Section 342, Cr.P.C. Pleaded false implication. However, after conclusion of the trial the accused were convicted and sentenced as stated above.
5. Learned counsel for the appellant submits that it was an un-witnessed occurrence. The appellants have been falsely implicated in this case. The only evidence against the appellants is that of joint extra-judicial confession which is a weak type of evidence and that recoveries are planted.
6. Concluding his submissions learned counsel submits that prosecution has failed to prove its case against appellants and they are entitled to acquittal.
7. On the other hand, the learned Deputy Prosecutor General opposes the submissions made by learned counsel for the appellants and submits that the prosecution has proved its case against the appellants through the evidence of extra-judicial confession which is corroborated by the recoveries.
8. I have heard learned counsel for the parties at considerable length and; have gone through the record with their able assistance.
9. The deceased in this case is Arshad Masih while the complainant Bashir Masih is his real father. It was an un-witnessed occurrence. The dead-body was found burnt in his house and proceedings under Section 174, Cr.P.C. Were taken. Later on Boota Masih and Kathu Masih told to the complainant on 12.5.2008 that Asif and Imran had made confession before them about the murder of Arshad Masih and they be got pardoned from the complainant. Boota Masih while appearing as PW-8 in his examination in chief deposed as under: "On 12.5.2008, Asif Masih and Imran Masih accused expressed that they had committed blunder and murdered their father Arshad Masih. They requested for pardon from their paternal grandfather:"
10. Kathu Masih PW-9 in his examination in chief deposed-as under:--- "On 12.5.2008 Asif Masih and Imran Masih accused expressed that they had committed blunder and murdered their father Arshad Masih and they be got pardoned from their paternal grand- father."
From a bare perusal of the above-quoted portion of examination-in-chief of witnesses it is proved that the confession is joint one. In the case of Muhammad Mansha Kosar v. Muhammad Asghar and others (2003 SCM R 477) their lordships of the Honourable Supreme Court ruled that the extra- judicial confession being joint was vague and dismissed the appeal filed against acquittal of the accused recorded by the learned Trial Court and upheld by the Lahore High Court. Similarly in the case of Zafar Iqbal and others v. The State (2006 SCM R 463) their lordships of the Honourable Supreme Court observed that no conviction can be recorded merely on the basis of joint extra- judicial confession.
11. There is no other evidence whatsoever against the appellants to connect them with the commission of offence. So far as recoveries are concerned we may observe that recovery is always a corroborative piece of evidence and loses its significance when the ocular account is disbelieved. The case in hand is even not of ocular account but of joint extra-judicial confession.
12. For what has been discussed above, I am of the considered opinion that the prosecution has failed to prove its case against the appellant and they are entitled to acquittal. Accordingly, instant appeal is allowed, the conviction and sentence recorded against both the appellants is set aside and they are acquitted of the charge. Both the appellants are in jail they be released forthwith if not required in any other case.