' MALIK SHAHZAD AHMAD KHAN, J.---We propose to dispose of Murder Reference No,72 of 2007, sent by the learned trial Court, Criminal Appeal No,133-J of 2007, preferred by appellant Muhammad Rahtas Khan, Criminal Appeal No,134-J of 2007, submitted by Ghulam Mustafa appellant, and Criminal Revision No,82 of 2007, filed by Muhammad Anwar Khan complainant, by this single judgment, as all these matters stem out of the judgment dated 18-1-2007, passed by learned Sessions Judge, Mianwali.
2. Ghulam Mustafa and Muhammad Rahtas Khan appellants were tried in case . I. R. No . 294, dated 25-11-2005, registered at Police Station, Sadar Mianwali, in respect of offences under sections, 302, 34 of P.P.C. After conclusion of the trial, vide its judgment dated 18-1-2007, the learned trial Court has convicted and sentenced the appellants as under:-- Ghulam Mustafa Under section 302(b) of P.P.C. To death as Ta'zir for committing Qatl-e-Amd of Mati Ullah deceased. He was also ordered to pay Rs,1,00,000 (Rupees one hundred thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr. P. C. Or in default to suffer simple imprisonment for six months.
Muhammad Rahtas Khan Under section 302(b) of P.P. C. To imprisonment for life as Ta'zir for committing Qatl-e-Amd of Mati Ullah deceased. He was also ordered to pay Rs,50,000 (Rupees Fifty Thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr. P. C. Or in default to suffer simple imprisonment for six months. Benefit of section 382-B of Cr.P.C. Was also extended to him.
3. Brief facts of the case as disclosed by Muhammad Anwar Khan complainant (P.W.10) in F.I.R.
(Exh.PH) are that on 24-11-2005 at 10.00 p.m. (night) he (The complainant Muhammad Anwar Khan P.W.10) along with his sons Mati Ullah and Aziz Ullah went to his land and started irrigating his fields.
After some time the complainant Muhammad Anwar (P.W.10) along with his son Aziz Ullah came back from his fields to his house and went to sleep. The next turn of water was of Ikram Ullah (P.W.
12) which was to start at 3-00 a.m. He (Ikram Ullah Khan (P.W.12)) find, that Mati Ullah was not present at his fields. Ikram Ullah (P.W.12) came to the house of the complainant and told the above mentioned fact to him and, thereafter, the complainant along with Aziz Ullah (son) and Ikram Ullah (P.W.12) started search for Mati Ullah. At about 7-00 a.m. (morning) they found deadbody of Mati Ullah Khan lying in the fields of one Muhammad Anwar son of Bahadar Khan. They noticed the foot- prints of two unknown persons near the deadbody. They also noticed a firearm injury on the chest of Mati Ullah Khan (deceased). The complainant Muhammad Anwar Khan (P.W.10), thereafter, lodged the F.I.R. Exh. PH against unknown accused. He did not express his suspicion against any person. The appellant Ghulam Mustafa and Muhammad Rahtas Khan were implicated in this case through supplementary statement of the complainant, as well as, on the basis of statement of Ahmad Khan (P.W.9) and Gul Sher (given up P.W.). According to the supplementary statement of the complainant Muhammad Anwar Khan (P.W. 10) on 25-11-2005 when he returned from Police Station after lodging the report, Gul Sher (given up P.W.) and' Ahmad Khan, (P.W.11) informed him that on the night of occurrence they had seen Ghulam Mustafa appellant and Muhammad Rahtas Khan appellant committing the murder of Mati Ullah deceased. According to the statement (Exh.
DA) of Ahmad Khan (P.W.11) before the police, on the intervening night of 24/25-11-2005 at about 1- 30 p.m. He along with Gul Sher (given up P.W.), on the request of Ikram Ullah (PW12) was going towards his lands in order to help him to irrigate his fields. As soon as, he (Ahmad Khan P.W.11) and Gul Sher (given up P.W.) reached the fields of one Muhammad Anwar Khan, they heard the noise of hue and cry. They saw in the light of their lanterns that Ghulam Mustafa appellant armed with Kalashnikov and Muhammad Rahtas Khan appellant also armed with Kalashnikov were demanding money from Mati Ullah deceased and on his refusal Muhammad Rahtas Khan appellant made the first fire shot with his Kalashnikov which did not hit Mati Ullah. The second fire shot was made by the appellant Ghulam Mustafa with Kalashnikov which landed on the person of Mati Ullah who fell down. Both the appellants, thereafter, forbade the above mentioned witnesses from telling the incident to anyone, otherwise, they will also face the same consequences as were faced by Mati Ullah deceased.
4. The appellants were, arrested on 4-12-2005 by Malik Muhammad Amir, Inspector/S.H.O. (P.W.14).
On the same day Muhammad Rahtas Khan while in police custody, led the police to a sugarcane field and allegedly got recovered Kalashnikov P-10, 20 live bullets P-12/1-20 magazine P-11. On the same day Ghulam M'ustafa appellant allegedly got recovered Kalashnikov P-7 along with magazine containing 40 live bullets P-9/1-40 from inside a sugarcane field which were taken into possession vide Memo Exh. PF. Muhammad Akram, S.-I. (P.W.13) interrogated the appellants and on 5-12-2005 Muhammad Rahtas Khan led the police party to a sugarcane field and allegedly got recovered wrist watch P-5 which was taken into possession vide recovery memo Exh. PD. On the same day Ghulam Mustafa appellant also led the police to a sugarcane field and allegedly got recovered a gold ring P-6 which was taken into possession vide memo Exh. PE. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed a charge against the appellants on 3-5-2006, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced fifteen witnesses, during the trial.
Muhammad Anwar Khan (P.W.10) is the complainant of the case. Ahmad Khan (P.W.11) is the witnesses of ocular account.
' The medical evidence was furnished by Dr. Azmat Ullah Khan (P. W.6).
' Muhammad Maqsood Patwari (P.W.1), Ghulam Muhammad, A.S.-I. (P.W.2), Ghulam Qasim C/724 (P.W.3), Sher Khan C/192 (P.W.4), Liaqat Hayat (P.W.5), Ikram Ullah, (P.W.12) and Zafar Iqbal (P. W.15) are the formal witnesses. Mehr Zaman (P.W.7) and Azmat Ullah, S.-I..(P.W.9) are the recovery witnesses of watch P-5, gold-ring P-6 and Kalashnikovs P-7 and P-10 from the appellants.
Muhammad Akram, S.-I. (P.W.13) and . Malik Muhammad Amir, Inspector/S.H.O. (PW14) were the Investigating Officers of this case. The prosecution produced documentary evidence in the shape of F.I.R. Exh. PH, memo of possession of blood stained clothes Exh. PB, copy of post-mortem report, etc Exh. PC, memo of possession of wrist watch Exh. PD, memo of possession of gold-ring Exh. PE, memo of possession of Kalashnikovs Exh. PF and Exh. PG, memo of possession of bloodstained earth Exh. PJ, memo of possession of empty cartridges Exh. PK, copy of death report Exh. PM, memo of possession of two blankets Exh. PQ, memo of possession of gold-ring and watch Exh. PR, copy of specimen of signatures Exh. Mark-A, copy of site plan Exh. PA/1,rough site plan of the place of occurrence Exh. PS, site plan without scale Exh. PT, Forensic Science Laboratory Exh. PU, report of Chemical Examiner Exh. PV and that of Serologist Exh. PV/1 and closed its evidence.
' The statements of the appellants under section 342, Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to question "Why this case against you and why the P. Ws. Have deposed against you" both the appellants replied as under:-- Ghulam Mustafa "Aziz Ullah P. W. Son of Muhammad Anwar complainant and brother of the deceased is married to a daughter of Ahmad Khan Malang. Noor Muhammad is the maternal uncle of Ahmad Khan Malang. Ghulam Akbar is son of Noor Muhammad aforesaid. This Ghulam Akbar murdered father of the accused in the year 1998 and had been sentenced to death and is still in the Death Cell and the complainant party in order to pressurize us for compromise has falsely implicated us in this blind murder."
' The appellant Muhammad Rahtas Khan adopted the same plea as taken by Ghulam Mustafa appellant.
' Both the appellants did not opt to make statement on oath under section 340(2), Cr.P.C. But Muhammad Rahtas Khan appellant tendered in his defence attested copy of F.I.R. No, 226 dated 5- 8-1998 under section 302/34, P.P.C. Registered at Police Station Mianwali as Exh. DB and attested copy of F.I.R. No, 419 dated 6-11-1998 under section 302/109 of P.P.C. Registered at Police Station City, Mianwali as Exh.DC. The learned trial Court vide its judgment dated 18-1-2007, found Ghulam Mustafa and Muhammad Rahtas Khan appellants, guilty and convicted and sentenced them as mentioned and detailed above.
6. It is contended by the learned counsel for the appellants that the appellants are not nominated in the F.I.R. In any manner; that the prosecution has produced only one eye-witness' of the occurrence, i.e, Ahmad Khan (P.W.11) whose statement is not reliable for the reason that according to his statement he along with Gul Sher, on the asking of tkram Ullah (P. W.12) went to his land in order to help him in irrigation of his fields but despite the fact that he saw the appellants committing the murder of Mati Ullah deceased, he did not report the matter to anybody and he informed the complainant on the next morning at 9-30 a.m.; that conduct of this witness is highly improbable as he is related to the deceased and the complainant; that recovery of ring and wrist- watch carries no value because it is not mentioned in the F.I.R. Or in the supplementary statement of the complainant that the above mentioned articles were snatched by the appellants; that the alleged recovery of Kalashnikovs P-7 and P-10 at the instance of the appellants also carries no value as there is conflict in the statement of Muhammad Akram, (P.W.13) and Malik Muhammad Arneer, Inspector/ S.H.O. (P.W.14) regarding the arrest of the appellants; that even otherwise the recovery is only corroborative piece of evidence and relevant, only if the primary evidence has been believed; that the appellants are absolutely innocent and have falsely been implicated in the case; that the prosecution could not prove its case against the appellants beyond the shadow of doubt, thus, this appeal be accepted and the appellants may be acquitted from the charges.
7. Conversely, the learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant opposes these appeals on the grounds that the occurrence took place on the intervening night on 24/25-11-2005 and the matter was reported to the police at 8-5 a.m. On the next morning and the bona fide of the complainant is clear from the fact that he did not name anybody in the F.I.R. Exh.PH, that Ahmad Khan (P.W.11) who has absolutely no enmity with the appellants has stated in unequivocal words that in his view it was Ghulam Mustafa appellant who made a fire shot which landed on the chest of the deceased; that the conduct of this witness is proper if whole scenario is taken into consideration; that the appellants are desperate and hardened criminals and involved in many serious cases; that Ghulam Mustafa appellant is involved in nine other criminal cases, whereas, Muhammad Rahtas Khan appellant is involved in six other criminal cases; that because of the fear, Ahmad Khan (P.W.11) did not disclose this incident to the father of the deceased till next morning at 9-30 a.m.; that the statement of Ahmad Khan (P.W.11) is supported by the medical evidence as the witness stated that the deceased Mati Ullah Khan received one firearm injury on his person and the doctor who conducted the post-mortem examination on the deadbody of the deceased also noted one firearm injury on the person of deceased; that the prosecution case is further corroborated by the recovery of ring P-6, wrist watch P-5, Kalashnikov P-7 and Kalashnikov P-10 on the pointation of the appellants and positive report of Forensic Science Laboratory Exh. PU; that there is no mitigating circumstance in this case; that the sentences of the appellants were rightly awarded to them and the same may be maintained, appeals may be dismissed and Murder Reference be answered in the affirmative. So far as Criminal Revision No, 82 of 2007 is concerned, the learned counsel contends that the sentence of Muhammad Rahtas Khan appellant may kindly be enhanced from imprisonment for life to death and the amount of compensation payable by Muhammad Rahtas Khan appellant and Ghulam Mustafa appellant to the legal heirs of the deceased may also be adequately enhanced.
8. We have heard the arguments of the learned counsel for the parties and have also gone through the evidence available on the record with their able assistance.
9. The occurrence in this case took plate on the intervening night of 24/25-11-2005 in the fields of one Muhammad Anwar Khan son of Bahadar Khan situated in the area of village Gulmiri, Police Station Sadar, Mianwali. No time of occurrence has been mentioned in the F.I.R. The matter was reported to the police on the next day at 8-5 a.m. By the complainant Muhammad Anwar Khan (P.W.11) and formal F.I.R. Exh. PH was also registered on the same day at 8-5 a.m. At Police Station Sadar, Mianwali. It was alleged by the complainant Muhammad Anwar Khan (P.W.10) that on 24-11- 2005 at 10-00 p.m. (night) it was his turn of water. He (The complainant Muhammad Anwar Khan P.
W,10) along with his sons Mati Ullah and Aziz Ullah went to his land and started irrigating his fields.
After some time he (the complainant Muhammad Anwar P.W.10) alongwith his son Aziz Ullah came back home and went to sleep. On the said night the next turn of water was of Ikram Ullah (P.W.12) which was to start at 3-00 a.m. He (Ikram Ullah Khan P.W.12) did not find present Mati Ullah at his fields. Ikram Ullah (P.W.12) came to the house of the complainant and told the above mentioned fact to him and, thereafter, they along with Aziz Ullah (son of the complainant) started search for Mati Ullah. At about 07.00 a.m. (morning) they found the deadbody of Mati Ullah Khan lying in the fields of one Muhammad Anwar son of Bahadar Khan. They noticed the foot-prints of two unknown persons near the deadbody. They also noticed a firearm injury on the chest of Mati Ullah Khan (deceased). The complainant Muhammad Anwar Khan (P.W.10), thereafter, lodged the F.I.R. Exh. PH against unknown accused. He did not express his suspicion against anybody. The appellant Ghulam Mustafa and Muhammad Rahtas Khan were implicated in this case through the supplementary statement of the complainant, as well as, on the basis of statements of Ahmad Khan (P.W.11) and Gul Sher (given up P.W.). According to the supplementary statement of the complainant Muhammad Anwar Khan (P.W. 10) on 25-11-2005 when he returned from Police Station after lodging the report, Gul Sher (given up P.W.) and Ahmad Khan (P.W.11) informed him that on the night of occurrence they had seen Ghulam Mustafa and Muhammad Rahtas Khan appellants committing, the murder of Mati Ullah deceased. According to the statement before the police of Ahmad Khan P.W.11 (Exh. DA), on the intervening night of 24/25-11-2005 at about 1-30 p.m. He along with Gul Sher (given up P.W.) on the request of Ikram Ullah (P.W.12) was going towards his land in order to help him to irrigate his fields. As soon as, he (Ahmad Khan P.W.11) and Gul Sher (given up P.W.) reached the fields of one Muhammad Anwar Khan, they heard the noise of hue and cry. They saw in the light of lantern that Ghulam Mustafa appellant was armed with Kalashnikov and Muhammad Rahtas Khan appellant was also armed with Kalashnikov. They were demanding money from Mati Ullah deceased and on his refusal Muhammad Rahtas Khan appellant made the first fire shot with his Kalashnikov at Mati Ullah Khan which did not hit him. The second fire shot was made by the appellant Ghulam Mustafa with Kalashnikov which landed on the person of Mati Ullah who fell down. Both the appellants, thereafter, forbade the above mentioned witnesses from telling the incident to anyone, otherwise, they will also face the same consequences as were faced by Mati Ullah Khan deceased.
10. As discussed earlier no eye-witness was mentioned in the F.I.R. The prosecution later on introduced two eyewitnesses namely Ahmad Khan (P.W.11) and Gul Sher (given up P.W.) in the case.
Gul Sher the alleged eye-witness was not produced by the prosecution before the learned trial Court and the prosecution case hinges only on the statement of Ahmad Khan (P.W.11). According to him he witnessed the occurrence on the intervening night of. 24/25-11-2005 at 1-30 a.m. (night). It was brought on the record during cross-examination of the complainant Muhammad Anwar Khan (P.W.10) that Ahmad Khan (P.W.11) was his Chachazad in the second degree, whereas, Gul Sher (given up P.W.) was his Phuphi2ad. The above mentioned eye-witnesses are related to the deceased but their conduct is unnatural. They did not make any attempt to take the deceased to the hospital in order to save his life. They also did not come to the house of the complainant to inform him regarding the above mentioned incident. They had allegedly seen the murder of their close relative but they did not report the matter to any one or to the police till the next day.
According to the statement of the complainant Muhammad Anwar Khan (P.W.10) when he returned from the Police Station after lodging the report Gul Sher (given up P.W.) and Ahmad Khan (P.W.11) informed him that they had seen the appellants causing the death of Mati Ullah (deceased). He has further stated that the above mentioned witnesses met him at the spot at about 9.00/9.30 a.m.
When he came back after lodging the report. According to the statement of Ahmad Khan (P.W.11) before the learned trial Court, he made his statement before the police on the following day at 05.30 p.m. He has stated in his examination-in-chief that he informed the complainant Muhammad Anwar on 25-11-2005 at 9-30 a.m. Muhammad Anwar Khan (P.W.10) has stated during his cross-examination that Gul Sher (given up P.W.) and Ahmad Khan (P.W.11) met him at the spot when he came back after lodging the report. At about 9-00/9-30 a.m. And they informed him that they had seen the occurrence. Muhammad Akram, S.-I. (P.W.13), the Investigating Officer, has stated in his cross-examination that he reached the place of Occurrence at 9-30 a.m. On 25-11- 2005. There is no plausible explanation given by the prosecution as to why Ahmad Khan (P.W.11) did not get his statement recorded before Muhammad Akram, S.-I. (P.W.13) when he visited the spot on 25-11-2005 at 9-30 a.m. Muhammad Akram, S.-I. (P.W.13) has also stated that he remained present at the place of occurrence for 03/04 hours. The explanation furnished by Ahmad Khan (P.W.11) regarding his non-reporting the matter to anyone, was, that due to the fear of the appellants he did not inform any one regarding the incident, immediately. The said explanation is not convincing because the appellants were not arrested on the following day of the occurrence when he made his statement before the police and they were still at large. The appellants were arrested on 4-12- 2005. No explanation has been furnished by Ahmad Khan (P.W.11) as to how his fear was removed on the following day. The natural and immediate conduct of Ahmad Khan (P.W.11) and Gul Sher (given up P.W.) would have been to go to their close relative, Muhammad Anwar Khan (P.W.10) in order to inform him about the murder of his son or to inform the police regarding the occurrence.
Thus, inordinate delay and silence of Ahmad Khan (P.W.11) creates doubt about his veracity. The delay in recording the statement of a prosecution witness by police without furnishing any.
Plausible explanation is fatal to the prosecution case and the statement of such witness was not reliable. In this regard we respectfully refer the case of Rahat Ali v. The State (2010 SCRM 584) wherein at Page No, 588 the Hon'ble Supreme Court has held as under:-- "The story narrated by P.W.2 that after the abduction he went to sleep in the house also does not seem to be true because in such a situation he could not have gone to sleep when his parents were abducted. His natural and immediate conduct would have been to go to his uncle or to his mother who was first wife of deceased to inform her about the incident. Thus, there is inordinate delay of silence of P. W.2 which creates doubt about his veracity. Delay of 24 hours, 4 days and 15/20 days in reporting the matter to the police or recording the statement of witnesses by the police has been found adersely affecting the veracity of witnesses as held in the cases of Muhammad Sadiq v. The State PLD 1960 SC 23, Sahib Gul v. Ziarat Gul 1976 SCMR 236 and Muhammad lqbal v. The State 1984, SCMR 930, respectively. It has also been observed by this Court that delay in recording the statement without furnishing any plausible explanation is also fatal to the prosecution case and the statement of such witness was not relied upon in the case of Syed Muhammad Shah v. State 1993 SCMR 550. Therefore, the evidence of P.W.2 is coming Within the scope of above rules laid down by this Court. Hence, his statement cannot be safely relied upon in the peculiar facts and circumstances of the present case."
' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of Ghulam Qadir and 2 others v. The State (2008 SCM R 1221) and Syed Saeed Muhammad Shah and another v. The State (1993 SCM R 550).
' Although it was claimed by Ahmad Khan (P.W.11) that he informed the complainant Muhammad Anwar Khan (P.W.10) about the incident on 25-11-2005 at 9-30 a.m. But presence of Ahmad Khan (P.W.11) and Gul' Sher (given up P.W.) has not been shown in the Inquest Report Exh. PU prepared by Muhammad Akram, S.-I. (P.W.13) who had stated that he visited the spot on 25-11-2005 at 9-30 a.m.
And remained there for 03/04 hours.
' The fact of making a request by Ikram Ullah (P.W.12) to Ahmad pan (P.W.11) and Gul Sher (given up P.W.) to help him to irrigate his fields has not been mentioned in the F.I.R. Which shows that the story of prosecution regarding the presence of above mentioned eye-witnesses is a result of an afterthought. As discussed earlier the occurrence in this case took place on the intervening night of 24/25-11-2005. No time of occurrence has been mentioned in the F.I.R. But according to the statement of Ahmad Khan (P.W.11) the occurrence took place at about 1-30 a.m. (night). Ahmad Khan (P.W.11) has also admitted during his cross-examination that the occurrence took place on a dark night. He has not claimed that there was any moon light. As per site plan Exh. PN the deceased Mati Ullah was present at the time of occurrence, at Point. No,1, whereas; Ahmad Khan (P.W.11) and Gul Sher (given up P.W.) were present at point No, 2 which was situated on the northern side of Mati Ullah, at a distance of 5-karams from Point. N6.
1. The appellants Muhammad Rahtas Khan and Ghulam Mustafa have been shown in the site plan, to be present at points Nos. 3 and 4 which were situated on the southern side of Mati Ullah at a distance of 4-Karmas from point No,
1. Thus, there was total distance of 9-Karams (49.5 feet) between the eyewitnesses Ahmad Khan (P.W.11), Gul Sher' (given up PW) and the appellants. The identification of the appellants in the darkness of night and in the flickering light of the lanterns from the distance of 9-Karams (49.5 feet) is not free from doubt. The identity of an accused in the darkness of night in the light of lantern is usually considered a weak type of evidence and it is not safe to rely upon the same. A reference in this respect may be made to the cases of Nazir Ahmad v.
Muhammad Iqbal and another (2011 SCM R 527) and Aurangzeb v. The State through Advocate- General (2008 PSC Cr1. 965).
' We have noted that Ahmad Khan (P.W.11) has admitted during his cross-examination that he did not produce lantern before the police. No lantern has been taken into possession by the Investigating Officer through any recovery memo. The evidence of identification in the lantern light is insignificant, when the lantern on the basis of which, the appellants were identified was not taken into possession by the Investigating Officer. Reference in this respect may be made to the cases of Umar Hay at, and others v. The State 1997 PCr.LJ 1508 and Abdul Hameed alias Hameeda v. The State (1989 PCr.LJ 1041).
' According to the evidence of sole eye-witness, i.e, Ahmad Khan (P.W. 11) the appellants committed the murder of Mati Ullah deceased as they were asking him (the deceased) to pay them the money or he would be abducted for ransom and on his refusal the appellants committed his murder but surprisingly the appellants did not snatch any money or any valuable article from Ahmad Khan (P.W.11) and Gul Sher (given up P.W.).
In the light of above, we are of the considered view that evidence of the sole eye-witness Ahmad Khan (P.W.11) is not worthy of reliance.
11.. According to the prosecution case a wrist watch P-5 and ring P-6 of Mati Ullah deceased were recovered on the disclosure of both the appellants and on the pointation of Ghulam Mustafa appellant on 25-12-2005 which were taken into possession vide the recovery memos Exh. PD and Exh. PE attested by Mehr Zaman (P.W.7) and Zia Ullah (given up P.W.). It is interesting to note that the complainant Muhammad Anwar Khan (P.W.10) did not mention in the F.I.R. Exh. PH, as well as, in his statement before the trial Court, that any articles of Mati Ullah Khan deceased were snatched by the appellants or the same was missing from the body of the deceased. So much so, the sole eye-witness of the occurrence namely Ahmad Khan neither mentioned in his statement before the police Exh. DA nor in his statement before the trial Court that any wrist-watch or gold-ring of the deceased Mati Ullah was snatched by the appellants at the time of occurrence. He has simply stated in his both the above mentioned statements that money was demanded by the appellants and on the refusal of Mati Ullah deceased his murder was committed by the appellants. In view of the above, when there is no evidence regarding snatching of wrist-watch and gold-ring from Mati Ullah deceased the alleged recovery of ,the said articles from the possession of the appellants, is of no avail to the prosecution case.
12. Coming to the recovery of Kalashnikov P-7 on the pointation of Ghulam Mustafa appellant and recovery of Kalashnikov P-10 from the possession of Muhammad Rahtas Khan appellant and positive report of Forensic Science Laboratory Exh. PU, we have noted that F there are contradictions in the prosecution evidence regarding the date of arrest of the appellants. The empties were allegedly recovered from the spot on 25-11-2005 and the same were allegedly sent to the Forensic Science Laboratory on 2-12-2005, whereas, according to the report of Forensic Science Laboratory Exh. PU the empties were received at the Laboratory on 3-12-2005, i.e, just one day prior to the alleged date of arrest of the appellants (4-12-2005). As mentioned earlier, the prosecution evidence regarding the date of arrest of the appellants is contradictory.
' According to the statement of Malik H Muhammad Amir, Inspector/S.H.O. (P.W.14) the appellants were arrested on 4-12-2005 and the Kalashnikov P-7 and Kalashnikov P-10 were recovered on the pointation of Ghulam Mustafa and Muhammad Rahtas Khan appellants, respectively, on the same day, whereas, according to the statement of Muhammad Akram, S.-I. (P.W.13) Ghulam Mustafa appellant and. Muhammad Rahtas Khan .Appellant were arrested on 5-12-2005. As there is conflict in the prosecution case regarding the date of arrest of the appellants, therefore, possibilities cannot be ruled out that the appellants were arrested prior to the date as mentioned by the above mentioned prosecution witnesses and empties were sent to the Forensic Science Laboratory, after their arrest, therefore, it is not safe to rely upon the alleged recoveries of the weapons of offence on the pointation of the appellants and report of Forensic Science Laboratory Exh. PU.
' Even otherwise, the evidence of recovery is only of corroborative in nature and conviction of the appellants cannot be sustained merely on the basis of recovery of Kalashnjkovs P-7 and P-10 and positive report of FSL (Ex.PU).
' In the case of MUHAMMAD AFZAL alias' ABDULLAH and others us.
THE STATE and others (2009 SCM R 436), the Hon'ble Supreme Court of Pakistan at pages 443 and 444 has held as under:- "After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be".
' Similarly, in the case of ABDUL MATEEN V. SAHIB KHAN and others (PLD 2006 Supreme Court 538), at page 543, the following dictum was laid down by the Hon'ble Supreme Court of Pakistan:-- "It is a settled-law that, even if recovery is believed, it is only corroborative. When there is no evidence on record to be relied upon, then there is nothing which can be corroborated by the recovery as law laid down by this Court in Saifullah's case 1985 SCMR 410."
' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of MUHAMMAD YAQUB v. THE STATE (1971 SCM R 756), and NEK MUHAMMAD and another v. THE STATE (PLD 1995 Supreme CoUrt 516).
13, In the light of above discussion, well are of the view that the prosecution has failed to prove its case against the appellants namely, Ghulam Mustafa, and Muhammad Rahtas Khan, beyond the shadow of doubt, therefore, by extending the benefit of doubt, we accept the above mentioned appeals, and set aside the convictions and sentences awarded to the, appellants, namely, Ghulam Mustafa, and Muhammad Rahtas Khan. The appellants Ghulam Mustafa, and Muhammad Rahtas Khan are in jail. They shall be released forthwith if not required to be detained in any other case.
' For the foregoing reasons Criminal Revision No,82 of 2007 filed by the complainant seeking enhancement of sentence of Muhammad Rahtas Khan and amount of compensation stands dismissed. Death sentence awarded to the appellant Ghulam Mustafa is not CONFIRMED and Murder. Reference is answered in the NEGATIVE.