' ASIF SAEED KHAN KHOSA, J.---Vide judgment dated 16-10-2003 rendered by the learned Anti- Terrorism Court, Peshawar Mir Zaman, Nadeem alias Nomi, Jan Muhammad, Jamshed Khan, Samin alias Samino and Ihsanullah appellants were convicted for an offence under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 7 of the Anti-Terrorism Act, 1997 and were sentenced to death each on two counts. Through the same judgment the appellants were also convicted for an offence under section 397, P.P.C. Read with section 149, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 and were sentenced to rigorous imprisonment for seven years each. The appellant were also convicted by the learned trial court for an offence under section 412, P.P.C. Read with section 149, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 and were sentenced to rigorous imprisonment for seven years each. All the sentences of imprisonment passed against the appellants were ordered to run consecutively.
These convictions and sentences of the appellants had been recorded in connection with case F.I.R. No,624 registered at Police Station Nowshera Kalan, District Nowshera on 21-9-2000 in respect of an offence under section 17(4) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979. During the investigation section 13 of the Pakistan Arms Ordinance, 1965, section 411, P.P.C. And section 4 of Suppression of Terrorist Activities Act, 1975 had been added to the F.I.R.
The appellants had challenged their convictions and sentences before the Peshawar High Court, Peshawar through Criminal Appeal No,686 of 2003 which had been heard along with Murder Reference No,37 of 2003 by a learned Division Bench of the said Court' Vide judgment dated 18-5- 2004 the learned Division Bench of the Peshawar High Court, Peshawar dismissed the appellants' appeal and confirmed their sentences of death. Hence, the present appeals by leave of this Court granted on 24-5-2007.
2. We have heard the learned counsel for the parties at some length and have gone through the record of this case with their assistance.
3. The long and short of the case against the appellants is that they had committed a dacoity and had looted a vehicle transporting cash for a bank and in the process two persons namely Zulfiqar Hussain and Tanosh had been done to death. It is admitted at all hands that the appellants had not been nominated in the F.I.R. And they had also not been properly described therein. After arrest of the appellants they were put to a test identification parade supervised by Mr. Gohar Ali, Tehsildar (P.W.17) during which only Zubair Khan Complainant (P.W.10) had identified Samin alias Samino appellant. It is not disputed that the other injured eye-witness namely Samar Gul (P.W.11) had not been associated with the test identification parade at all and also that even Zubair Khan complainant (P.W.10) had not identified any other appellant apart from Samin alias Samino in the parade. The record of this case shows that Zubair Khan Complainant (P.W.10) had admitted before the learned trial Court that all the appellants had been shown to him at the police station before holding of the test identification parade. The statement made by Mr. Gohar .Ali, Tehsildar (P.W.17) further shows that Samin alias Samino also had not been identified by Zubair Khan complainant (P.W.10) with reference to any role allegedly played by the said appellant during the incident. In these circumstances the evidentiary value of the test identification parade had been reduced to nothing.
4. According to the prosecution Nadeem alias Nomi and Jan Muhammad appellants had confessed their guilt before a Magistrate through their statements recorded under section 164, Cr.P.C. Which statements had subsequently been retracted by the said appellants. The law on the point is quite settled that a retracted confession must be corroborated by some other independent evidence and the same seldom suffices by itself to record a conviction on the basis of the same. In the case in hand the weapons and the cash recovered during the investigation did not stand connected with the alleged offences and there was no other piece of evidence produced by the prosecution to provide any corroboration to the retracted confessions attributed to the said appellants. Updn our repeated queries the learned Additional Advocate-General, KPK has pointed but that the only piece of evidence available in this case against Mir Zaman, Jamshed Khan and Ihsanullah appellants was in the shape of recovery of some cash from their custody. He has, however, conceded that nothing had been brought on the record of this case to connect the recovered cash with the alleged offences. There is no other evidence available in this case. For whatever its worth, it may be mentioned here that during the pendency of these appeals before this Court a compromise has already been affected between the heirs of the two deceased and all the appellants, though the offences involved in this case are non-compoundable.
5. For what has been discussed above a conclusion is inescapable B that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. All these appeals are, therefore, allowed, the convictions and sentences of the appellants recorded and upheld by the learned courts below are set aside and the appellants are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case.