' GHULAM RABBANI, J.---This petition has been tiled for leave to appeal against the judgment dated 25-10-2010 passed by the Lahore High Court Multan Bench, Multan, whereby Criminal Appeal No, 399 of 2006 filed by the respondents was allowed and they were acquitted of the charges.
2. Saeed Ahmed and Muntazir Abbas were convicted and awarded life imprisonment each under section 302(b)134, P.P.C. With compensation to pay under section 544-A Cr.P.C., to suffer R.I. For 10 years each with fine under section 364, P.P.C. And to suffer R.I. For 5 year each with fine under section 201. P.P.C. Vide judgment dated 12-6-2006 passed by the Additional Sessions Judge, Mailsi.
On appeal they were acquitted extending benefit of doubt vide judgment dated 25-10-2010 passed by a learned Single Judge of Lahore High Court.
3. According to prosecution story, on 2-2-2006 respondents Saeed Ahmed and Muntazar Abbas took deceased Sajjad Ahmad son of the complainant on their motorcycle in his presence, his son Qamar Nawaz and Muhammad Ijaz (P.W.8). Thereafter, the deceased went missing so also the respondents were found absent by the complainant when the latter, in search of his son, went to their house. On 12-2-2006 Ijaz Ahmad (P.W.8) and Muhammad Ashiq (P.W.9) informed the complainant that both the deceased confessed before them to have murdered the deceased, repented it and sought their help to have them pardoned by the legal heirs of the deceased. The complainant, therefore, . Made on 12-2-2006 a report by way of an application which was registered with Police Station Sultanpur on the same day under sections 201, 302 and 364, P.P.C. The motive as alleged, behind the occurrence, was that respondent Saeed Ahmad had suspected the deceased to have developed illicit relations at his house. Both the accused were, therefore, arrested, on the same day, put on trial, convicted and sentenced by the trial Court and later acquitted on appeal, by setting aside the trial Court's Judgment, as noted above vide judgment, impugned herein.
4. In order to establish the guilt against the respondents Nos. 1 and 2, the prosecution adduced evidence to prove that the deceased was "last seen" with them; that both the respondents made "extra judicial confession" and later, "recovery of dead body of deceased" and the "recovery of crime weapons" were made on their indication.
5. As regards "last seen" evidence, suffice to say that it is, well-settled that this is the weak type of evidence needing strong corroboration by other independent and trustworthy evidence to establish guilt of accused persons. Regarding "extra-judicial confession" it is stated that Ijaz Ahmad (P.W.8) and Muhammad Ashiq (P.W.9) deposed that before them both the respondents/accused had confessed to have killed the deceased. Both the afore-noted witnesses are, respectively, none else than maternal nephew and cousin of complainant. Latter is husband of complainant's sister as well. Learned Single Judge has disbelieved their statements by observing that, "there was joint extrajudicial confession which is inadmissible in evidence and cannot be read against the accused/appellants; as exclusive information about the commission of offence imparted to the P.Ws. Is required which is not present in this case but while coming before the court the P.Ws. Under some tutoring used the word "individual", which was got confronted therefore, the improvements made by the P.Ws. Became naked and thus it was not safe to believe their deposition." Theft is no cavil with it that joint confession cannot be used against either of the accused. Equally, in appreciating the evidence on "extra-judicial confession", which itself is a weak type of evidence easily procurable when direct evidence, such as in this case, is not available; utmost care and caution is to be exercised. In this, reference is made to the case of Sajid Mumtaz and others v.
Basharat and others (2006 SCM R 231) and the case of Muhammad Aslam v. Sabir Hussain and others (2009 SCM R 985). Both the P.Ws. Have stated in their deposition that the "extra-judicial" confession was made by the respondents at Adda Chak No,198/WB, which, according to P.W.
Muhammad Ashiq is at a distance of 12 miles from his houses and as per P.W. Ijaz at 12 Kilometer situated at a roadside where buses and wagons stop, pick and drop the passengers, and consists of 12/13 shops on both sides of the road, at said Adda. The latter P.W. Has further stated that they had been sitting at that place for about ten minutes when accused came to them; that the accused had come there by chance; that they immediately left that place after meeting the accused person that they did not tell any person sitting at the said Adda about the extra judicial confession while P.W. Muhammad Ashiq stated that they "did not try ,to overpower the accused persons after their confession". Given due consideration, the evidence so coming from these witnesses appears to be the happenings against normal course of events and with improved version as pointed out by learned Single Judge, it becomes hard to place implicit reliance on their statements to base conviction thereon.
6. The next piece of evidence is of "recovery of dead body". The record shows that it was recovered from a canal with water about 3 feet. Deep. Death of deceased is said to have taken place within 5/10 minutes from the injuries and the recovery was effected 8/10 days thereafter, as has been opined by the Medical Officer Dr. Akhtar Hussain (P.W.5). P.W.8 Ijaz Ahmad, who acted as witness of "extra-judicial confession", also acted as an attesting witness of recovery of dead body. He stated in his evidence that "skin of deceased was present but some head hair were missing. No foul smell was coming from the dead body. Dead body was swollen to some extent." His statement does not appear to be in line with medical evidence in which Medical Officer while giving his opinion that the dead body starts smelling after 48 hours round about, deposed that, "the head-hair of the dead body and skin were pealed off and it had turned into black colour and whole dead body was swollen." Thus, this piece of evidence also becomes doubtful. Learned Single Judge has also disbelieved the recovery of dead body, rightly so; and while doing so, he has observed as follows:-- "Even otherwise, as per medical evidence, the dead body of the deceased was not identifiable as it was at the stage of purification as the skin and hairs were peeling off, therefore, the fact whether it was dead body of the same deceased as claimed by the prosecution is also full of doubt."
7. The remaining piece of evidence is recovery of crime weapons from respondents. It may be stated that the respondents/accused were reportedly arrested on 12-2-2006 from the Chakki of respondent/accused Saeed Ahmad. Neither memo of arrest has been produced on record nor it is said that it was prepared; if so, who acted as the attesting witnesses of arrest. After about four days of their alleged arrest, it is stated that crime weapons were recovered in presence of none else than above-noted close relatives of complainant, namely P.Ws. Ijaz Ahmad and Muhammad Ashiq of whom the former was examined to testify, as witness, to every piece of evidence. Learned Single Judge has disbelieved this piece of evidence and rightly so, by observing that, "the recovery of Chhuri, wooden Baa, and iron kassi in the absence of any 'independent corroboration cannot be believed and safely can be said to have been planted upon the accused/appellants in order to strengthen the prosecution case and to bring the story in line with the medical evidence." Besides, it may be stated that on this point the case of prosecution is that the crime weapons were recovered from "Chakki", and adjacent "Hens room" in presence of above named two witnesses who attested memos of recoveries (Exhs.PJ and PK). P.W. Muhammad Ashiq when confronted in his cross-examination,, stated that, "I did not see chairs cots or boxes in the hens room. Nor I saw the said articles in the chakki room as I did not enter the chakki room and the hens room and only police along with the accused persons entered the chakki room and hens room." (Underlining is ours). Thus, the entire process of recovery of crime weapons becomes doubtful and cannot be used against the respondents.
8. Lastly, as far as motive is concerned, learned Single Judge has stated that "it is unequivocally admitted by the Investigating Officer that he has not collected any material in this regard, therefore, evidence of motive was also lacking in this case." Be that as it may; even the allegation made in this case that the deceased was being suspected to have developed illicit relations at the house of respondent Saeed Ahmad without disclosing in the evidence the name or relationship of any person muchless a female relative of the respondent Saeed Ahmad, being vague, appears to be not believable.
9. Learned counsel for petitioner has heavily criticized the impugned judgment by saying that the prosecution had succeeded in proving guilt against the respondents; that on proper evaluation of the evidence both the respondents were rightly convicted and sentenced whereas, the Appellate Court failed to appreciate the available evidence in its true perspective and acquitted the respondents in derogation of well-settled principle of law, therefore, impugned judgment was liable to reversal. Having discussed the matter in the foregoing paragraphs, we, however, do not find ourselves inclined to agree with the learned counsel. The respondents Nos. 1 and 2 have rightly been acquitted by way of impugned judgment which calls for no interference. This petition is, therefore, dismissed and leave refused.