' KH. MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,183-T of 1998 and Criminal Appeal No,32 of 1998, filed by Muhammad Akbar s/o Imam Bakhsh and Allah Wasaya s/o Rab Nawaz who were convicted and sentenced by Judge, Special Court established under the Anti-Terrorist Activities Act, 1997 to undergo death sentence under section 302/34, P.P.C. For the murder of Muhammad Nawaz and also to pay Rs,1,00,000 as compensation to the legal heirs of the deceased and in default to undergo six months' R.I. Each. The time of occurrence is not given in the first information report but the date is between 28/29-6-1996 and the matter was reported to the police station at 4 p.m. On 29-6-1996 through Exh.PE by Haq Nawaz, real brother of the deceased.
2. The prosecution case as disclosed in the F.I.R. Exh.PE which was based on the statement of Haq Nawaz s/o Muhammad Yagoob caste Qaisrani resident of Jhok Bodo Tehsil Taunsa is that his younger brother Muhammad Nawaz was watchman in Forest Department and he came to attend Qul ceremony of his close relative and about 10-00 a.m. He along with deceased was present at his house where Muhammad Akbar s/o Imam Bakhsh came and he told him that he had to go to Allah Wasaya s/o Rab Nawaz resident of Basti Lakhani for an urgent piece of work and in the meanwhile the maternal nephew of the complainant Muhammad Akhtar came on a Suzuki motorcycle for which Muhammad Akbar requested that the same be given to him for journey which was handed over to Muhammad Akbar and then Muhammad Akbar accused along with Muhammad Nawaz deceased left for Basti Lakhani. When both persons did not return till evening from Basti Lakhani, his son Jamshaid Iqbal informed him in the evening that he found Muhammad Nawaz deceased, Akbar and Allah Wasaya accused persons on Kacha way between Lakhani and Jhok Bodo where they were taking motorcycle as the motorcycle was not in working condition and all of them were pushing the same. It was stated in the F.I.R. That Jamshaid lqbal was an employee with Dr. Riaz Ahmad along with Muhammad Sadiq his cousin. An offer was made to Nawaz deceased to accompany Jamshaid but Akbar accused replied that they would come on foot and he might go away. On the morning of 29-6-1996 at about 9 a.m. His nephew Abdul Qayyum informed the complainant that Akbar accused told him that on the last night Muhammad Nawaz deceased was not feeling well. He became sick suddenly and was lying at Bund Hayat Wala (213-::.l94) but his said nephew when reached the said place, Muhammad Nawaz &ceased was not present there and after that he could not be traced out and finally Muhammad Nawaz deceased was found lying dead at Bund Bholon Wala . The complainant along with Rab Nawaz. Saeed and other reached on the said place and found the dead body of Muhammad Nawaz deceased having marks of violence on neck and tongue of deceased and other various parts of The body of Muhammad Nawaz were in poor condition. The shirt of the deceased was lying near the dead body. It was stated that he was murdered by Akbar and Allah Wasaya accused persons and enmity between Muhammad Akbar and Muhammad Nawaz was a dispute over agricultural land for which civil and criminal litigations was going on but was decided before the said murder. Whereas Allah Wasaya accused person suspected illicit relations of Muhammad Nawaz deceased with his wife.
3. The Investigating Officer after registration of the first information report took into possession blood-stained earth' vide memo Exh.PF. He arrested both the appellants on 7-7-1996. Muhammad Akbar appellant got recovered golden ring Exh.P1 on 10-7-19% which was taken into - possession vide memo. Exh.PG. He also got recovered Soti P2 which was taken into possession vide memo.
Exh.PH on the same day. Muhammad Akbar appellant on the same day got recovered motorcycle P3 belonging to Muhammad Akbar Karim P.W. Which was taken into possession vide memo. Exh.P.I.
Allah Wasava appellant got recovered identity card P4 of the deceased, purse of the. Deceased P5 which were taken into possession vide - memo. Exh.PK on 10-7-1996.
4, The prosecution in order to prove its case examined 1 I P.Ws. The appellants claimed themselves as innocent and false application.
5. As the learned counsel for the appellants had not appeared on the last date of hearing, we had also appointed Mr. Mukhtar Ahmad Butt, Advocate at State expenses to defend the appellants.
6. Both the learned counsel for the appellants after reading the prosecution evidence submit as under:-- ' That it was an un witnessed occurrence; that all the witnesses are closely related to the deceased; that the recovery has been planted on the appellants; that all the links of the chain of this case which is based on circumstantial evidence.. !Do not connect with each other'; that extrajudicial confession is a joint one which was jointly made by the appellants before Muhammad Musa P.W.6 father-in-law of the deceased which is not admissible in evidence. They also submit that as far recoveries are concerned, that are violative of section 103, Cr.P.C. They also submit that there is delay in lodging the F.I.R. And it was an un witnessed occurrence. Lastly they submit that on such tainted evidence no reliance can be placed and the appellants are entitled to acquittal.
7. On the other hand learned A. A.-G. Representing the State very candidly conceded the submissions made by the learned counsel for the appellants. He submits that prosecution has failed to prove its case against the appellants and in such-like cases benefit of doubt must be given to the appellants.
8. We have heard the learned counsel for the parties and have perused the record.
9. In view of the statement of the learned A.A.-G. Who has not supported the prosecution case coupled with the fact that it was an un witnessed occurrence, the confession allegedly made by the appellants is a joint one which is not admissible in law. All the witnesses produced against the appellants are closely related to the deceased. No independent witness has been produced. There is also violation of section 103, Cr.P.C. There is also delay in lodging the F.I.R. The prosecution has also failed to prove motive against the appellants. While - extending the benefit of doubt the sentence awarded to Muhammad Akbar and Allah Wasaya appellants by the Judge, Special Court, established under the Anti-Terrorism Act, 1997, D.G. Khan Division, is set aside. The murder reference is replied in negative. The death sentences are not confirmed.
10. In this view of the matter, we direct that the appellants shall be released forthwith if not required in any other case.