' JAWAID NAWAZ KHAN GANDAPUR, J.--- Accused Hasrat son of Muhammad Salim and Raza Muhammad son of Khawaj Muhammad were tried for the murder of their co-villager Ali Farman son of Abdul Qayum, in his shop situated in Azam Chowk of the same Township on 26-6-1989, at unknown time, by firing at him with pistols, in furtherance of their common intention. On the conclusion of the trial, the Additional Sessions Judge, Haripur vide; his judgment, dated 29-11-1992 acquitted Raza Muhammad accused while he found accused Hasrat guilty of the charge of murder and thus convicted him under section 302, P.P.C. And sentenced him to life imprisonment and also to pay a fine of Rs,50,000 or in default thereof to further undergo R.I. For two years with the direction that out of the fine, if realized, half of it be paid to the heirs of the deceased by way of compensation.
2. Feeling aggrieved, Hasrat has challenged his conviction and sentence by way of this appeal, whereas Abdul Qayum complainant has filed the following (two) revision petitions:--
(i) One for enhancement of sentence in respect of the convict, and
(ii) the other against acquittal of Raza Muhammad, for his retrial according to law.
3. By this judgment we propose to dispose of all the three connected matters.
4. The prosecution story, in brief, as reflected from the record, is that Ali Farman deceased had set up a shop/library in Azam Chowk, Khalabat Township, Haripur and very often used to sleep therein at night. The deceased, on the fateful night, as usual, after taking his dinner at 10-30 p.m., left home for his shop. It was at 2 p.m. That Ashraf (P.W.8) heard a report of fire shots and on coming out from his Baithak saw the two accused, named above, running from Azam Chowk towards Chohr Road, in street light. At morning time on 26-6-1989, at 5-45 a.m. Abdul Qayum (P.W.9) heard hue and cry about the murder of his son and thus rushed to the shop where, on arrival, he found his son lying murdered inside the shop, with bullet injuries. According to him, Hasrat appellant intended to cultivate illicit relations with Shaukat (C.W.), his nephew, and thus a quarrel took place between Hasrat appellant and the deceased over this affair. Since the deceased used to reprimand Hasrat appellant on this account, therefore, an altercation, between them, took place on the evening of the eventful night. It was then that the appellant held out a threat to the deceased with dire consequences while parting from him.
5. On the arrival of the police at the spot on 27-6-1989 at 6-30 a.m. Abdul Qayum (P.W.9) made a report (Exh.P.A./1) narrating the facts mentioned above, in substance. As a consequence thereof a case was registered against Hasrat appellant vide; F.I.R. And later Raza Muhammad accused (since acquitted) was also added on the basis of supplementary statement of the complainant.
6. Usual police investigation started and after its completion, the local police submitted a charge sheet under section 302/34, P.P.C., against the appellant, and the acquitted accused in the Court of Ilaqa Magistrate who, in turn, sent the same to the Court of Additional Sessions Judge, Haripur, for trial. Both the accused, at trial, denied the charge, claimed trial and ascribed the case to suspicion and They categorically repudiated the prosecution allegations and termed the recoveries, allegedly effected in the case, as fake and fictitious. The appellant also retracted from confessional statement made by him before a Magistrate and alleged that the same was extracted from him by employing third degree methods.
7. The prosecution, in order to establish its case, produced as many as 12 (twelve) witnesses and also examined Shaukat as Court-witness. The appellant also appeared as his own witness and refuted the charge levelled against him and attacked the validity of the confessional statement as well as the recoveries effected in the case by the Investigating Officer.
8. There is no denying of the fact that in the case in hand there is no ocular evidence. The prosecution, in order to establish the guilt of the appellant, has, in the main, placed reliance on confessional statement (Exh.P.W.13/3) recorded by Magistrate 1st Class, Abdul Wahid (P.W.13) on 4- 7-1989. Since this confession furnishes the principal evidence in the case, we deem it proper to reproduce the full recitals thereof to adjudge the culpability of the appellant:-- {{URDU TEXT}}
9. After a perusal of the confessional statement of Hasrat appellant, in extenso, we cannot ignore a significant fact, at the very outset, that the confessional statement is self-exculpatory in its nature and contents. Confession of a co-accused must fulfil three requirements i,e,:-- Firstly that there should be full fledge confession whereby he must implicate himself in the commission of the crime substantively to the same effect as he implicates the co-accused; ' Secondly that there is some supporting evidence from untarnished quarters and ' Thirdly that the confessing accused had a strong motive to kill the deceased and must have actively participated in the transaction.
10. In the case in hand, as already stated above, the appellant did not implicate himself at all although he alleges his presence without doing any overt act. Beside this, he demonstrates that he himself had no motive at all to join hands with his co-accused to kill the deceased. It may be stated here that there is no independent evidence, worth the name, to indicate that the appellant had any dispute or altercation with the deceased before the occurrence.
11. The weapon recovered from the person of the appellant according to the report of the Arms Expert, is not linked with the commission of the crime. There is not an iota of evidence to show that the appellant was armed at the time of occurrence or that he had used any fire-arm.
12. Apart from this, there is no clear and cogent evidence to show that the appellant was last seen in the company of the co-accused or the deceased, at the relevant time and place, as alleged by the prosecution.
13. It is indeed noteworthy that the doctor has found two injuries, one supposedly caused by bullet and the other by pellets. Who has used the shot gun, there is complete black out, and we have no way of knowing as to who possessed the shot gun or who caused the injury with the same. This fact alone has made the confessional statement totally false and baseless. Thus, all the requirements to make the confession admissible in evidence are lacking altogether. A vague, retracted and self- exculpatory confession (Exh.P.W.13/3) is not covered by Article 41 of the Qanun-e-Shahadat or section 3 of the Old F Evidence Act and therefore, it does not constitute "evidence" under any provision of Law of evidence. If this retracted confession is excluded, from our line of consideration, for the reasons stated above, the entire prosecution case falls to the ground.
14. Needless to mention that on the basis of a confession of a co-accused, which is self- exculpatory in its nature and contents and is not supported by any other cogent evidence worthy of credence, the conviction of the appellant cannot and should not be sustained. We, therefore, feel no hesitation in accepting this appeal.
15. Consequently we set aside the conviction and sentence passed on the H appellant. He should be set at liberty forthwith, if not required in any other case.
16. The revision petitions, for the enhancement of the sentence and also for the retrial of the acquitted accused, ipso facto, stand dismissed.
17. The above are the reasons for our short order, dated 12th June, 1995.