' KHALIL-UR-REHMAN KHAN, J.---Tayyab Hussain Shah, convict was granted leave against the judgment, dated 21-1-1998 of the Lahore High Court whereby his criminal appeal was dismissed and his conviction and sentence of life imprisonment for the murder of Muhammad Anwar Shah deceased was confirmed.
2. Prosecution case, briefly stated, is that Syed Muhammad Athar Shah complainant along with his brother Syed Muhammad Anwar Shah (deceased) was asleep in the courtyard of the house and at about 2-15 a.m. At night the complainant suddenly woke up on hearing report of gun fire and saw his brother Muhammad Anwar Shah soaked in blood. He heard movement of the culprits running away along the western wall. He then opened the door of the Baithak and came out in the street and saw two unknown persons running away towards south. He raised alarm, chased them but the culprits succeeded in fleeing away taking advantage of the darkness of the night. The complainant returned and found his brother to have received fire-arm injuries on the front side of his chest who had succumbed to the injuries. The assailants had climbed over the wall by placing a ladder alongside the western wall and therefrom the shot was fired and this ladder was left by the culprits there. An empty cartridge of 12 bore gun was also found at the place of occurrence. The accused had statedly murdered the deceased for nothing but under a well-thought-over plan and the complainant, who is a Professor in a College was not in position to state in the F.I.R. As to enmity, if any, deceased had with anyone. He stated that he would bring it into light after knowing about it.
The police after recording the F.I.R. Conducted the usual investigation, submitted the challan against Tayyab Hussain Shah, Alam Khan and Saifullah Khan, accused.
3. The prosecution produced in all 18 prosecution witnesses besides producing in evidence Report of Chemical Examiner Exh.P.T., Report of Serologist Exh.P.U. And Report of Fire-arm Expert Exh. P.V.
The accused denied the prosecution version and in their defence produced Mahmood-ul-Hassan Shah, D.W.1, Reader District Magistrate, Mianwali, who produced judicial enquiry report regarding murder of one Ahmad Khan alias Khani and Alain Khan accused was a prosecution witness in that case. Copy of his statement in judicial enquiry was produced as Exh.D.A. While the report of the judicial enquiry was produced as Exh.D.B.
4. The case of the prosecution was that the accused had confessed before Mian Gul Muhammad P.W.9 that Tayyab Hussain Shah along with Alam Khan had murdered the deceased at the instance of Saifullah Khan accused and that Tayyab Hussain Shah had fired fatal shot hitting the deceased while Alam Khan accused was holding the ladder to facilitate the commission of murder. It was Saifullah Khan accused who took the lead in confessing the guilt at the Dera of Mumtaz Hussain P.W., not produced, where all the three accused arrived. Saifullah Khan accused took lead in confessing the guilt and stated that he had to pay Rs,1,60,000 to Muhammad Anwar Shah deceased and for this reason he got murdered the deceased through the two co-accused; that he asked Mian Gul Muhammad P.W.9 to arrange the compromise with his brother and thereafter in sequence Tayyab Hussain Shah and Alam Khan confessed having murdered the deceased.
5. In addition to the extra-judicial confession allegedly made by the three accused which the prosecution sought to prove through the testimony of Gul Muhammad P.W.9, evidence of recovery of gun on the pointation of Tayyab Hussain Shah accused/appellant and the matching report of the empty recovered from the site of Fire-arm Expert Exh.P.V. Was produced.
6. Learned trial Court did not rely upon the retracted extra-judicial confession allegedly made by Saifullah Khan accused as the same was not supported by producing any corroborative material, and so vide judgment, dated 8-5-1994 acquitted Saifullah Khan accused of the charge of conspiracy under section 120-B, P.P.C. Tayyab Hussain Shah appellant and Alam Khan were held guilty of commission of Qatl-i-Amd within the meaning of section 302/34, P.P.C. And both were convicted under section 302/34, P.P.C. And sentenced to life imprisonment. They were directed to pay compensation of Rs,30,000 each under section 544-A, Cr.P.C. Which was to be paid to the legal heirs of the deceased. The penalty of death was not imposed on them as according to the learned trial Court the motive was shrouded in mystery and immediate cause of commission of offence was not established.
7. On appeal, filed by Tayyab Hussain Shah and Alam Khan convicts, learned Judge of the High Court vide judgment, dated 21-1-1998 accepted the appeal to the extent of Alam Khan, set aside his conviction and sentence and acquitted him of the charge. The appeal of Tayyab Hussain Shah was dismissed. The conviction of Tayyab Hussain Shah, who was shown to have been arrested on 24-2- 1993 and who according to the prosecution evidence had got recovered a .12 bore gun on 2-3-1993, which was found matched with the crime empty taken into possession by the Investigating Officer when he visited the place of occurrence on 22-6-1990 coupled with the extrajudicial confession and the factum of absconsion due to late arrest in the year 1993 was maintained considering that the above-noted material provided sufficient basis to hold him guilty.
8. Having gone through the evidence on record with the assistance of the learned counsel for the parties as well as the judgments of the learned trial Court and the High Court, we are of the considered view that learned Courts below had failed to evaluate the evidence on record in proper perspective. We propose to examine the evidence on record on the question of extra-judicial confession, abscondence and recovery of the gun with which the crime empty was found to be matching as per Report Exh.P.B.
9. Taking first the extra judicial confessions statedly made by Tayyab Hussain Shah appellant before Gul Muhammad P.W.9, it is pertinent to note that there appears no convincing reason for Tayyab Hussain Shah to go to Mian Gul Muhammad P.W.9 for the purposes of making a confession of the guilt. It is so apparent from the following cross-examiantion of Gul Muhammad P.W.9:-- "I have no intimacy with Tayyab Shah accused and he never visited me in his life nor I visited him earlier making the confessional statement. I do not know the name of father of Tayyab Shah accused. I had not told the police the name of father of Tayyab Shah in my statement under section 161, Cr.P.C. (Confronted where the father's name of Tayyab Shah accused is recorded)....I had no connection with all the three accused persons present in the Court."
' Moreover, Mian Gul Muhammad P.W.9, in his examination-in-chief stated that he along with Mumtaz Hussain P.W. Was sitting at his Dera at about Eshavela on 3-10-1990 where he was also present; there Saifullah, Tayyab Shah and Alam Khan accused came and sat in front of them and firstly Saifullah made the confessional statement, then Tayyab Shah and lastly Alam Khan. This confession was admittedly made at the Dera of Mumtaz Hussain P.W. Who was not produced, addressing Mian Gul Muhammad and not Mumtaz Hussain P.W. It was so clearly stated by this prosecution witness in his cross-examination as he stated therein that he had stated in his statement Exh.D.B that accused when arrived they had said Assalam-o-Alaikum and addressed him alone confronted not recorded). This witness who is a retired A.S.I. Of Police appears to have coined an excuse or an explanation for non-production of Mumtaz Hussain P.W. As a witness during the trial by saying that it was he who was addressed and the confession was made to him alone.
The non-production of Mumtaz Hussain P.W. During the trial shows that the accused had not made any confession and the police had coined the extra-judicial confession and to support that concoction retired police official who is otherwise related to the family of the deceased has been made to speak about the alleged extra-judicial confession. Mumtaz Hussain, as admitted by Mian Gul Muhammad P.W.9 in his cross-examination was nearer in relationship to the deceased than Mian Gul Muhammad P.W. As sister of Mumtaz Hussain is the widow of the deceased whereas Mian Gul Muhammad was a distant cousin of Mumtaz Hussain and cousin of the deceased. Had the judicial confession been in fact made, Mumtaz Hussain, P.W., brother-in-law of the deceased would have naturally come forward to prove that confession. The testimony of Mian Gul Muhammad P.W.
As regards confession attributed to Saifullah Khan and Alam Khan has not been relied upon. In the circumstances noted above Mian Gul Muhammad P.W. Cannot safely be relied upon as against Tayyab Hussain appellant.
' It is also to be noted that Saifullah Khan had joined the police investigation as admitted by him on 5-8-1990 and was let off by the police on 20-8-1990 as there was nothing incriminatory by then with the police against him. Mian Gul Muhammad P.W. Admitted that the alleged confession was made by Saifullah Khan alongwith his two co-accused after Saifullah had been let off by the police and even after payment by him of the loan to the deceased. How then Gul Muhammad could be believed that Saifullah accompanied with the other accused had come to seek his help in the murder case when he had already been let off and he had returned amount of loan as well?
' It is also worth noticing that if Saifullah and the other co-accused were to seek help from Mian Gul Muhammad retired police official, why should they come to the Dera of Mumtaz Hussain P.W. And not to the residence of Mian Gul Muhammad and how would they know that Mian Gul Muhammad would be available at the Dera of Mumtaz Hussain at that day and the time of their visit. No explanation whatever, is available on the record.
' The extra-judicial confession is a weak type of evidence and cannot be made basis to determine the question of guilt or innocence till it is corroborated by other incriminating and confirmatory evidence. In view of the features noted above the statement of Mian Gul Muhammad P.W.9 fails to inspire confidence and we entertain serious doubt as to the truthfulness of this witness. This Court has always insisted on availability of independent piece of direct or substantial evidence in corroboration of the retracted confession for basing conviction in order to ensure safe administration of justice. (See Bahadur Khan v. The State (PLD 1995 SC 336) and Allah Ditta v. The State (1977 SCM R 251).
' The other piece of evidence is the recovery of gun statedly at the pointation of the appellant. No member of the public was made to join the said recovery. The plea of the accused was that the gun had been planted on him and this fake recovery was proved by the police witnesses namely, the Investigating Officer along with the Foot Constable. The plea is that the said recovery is of no evidentiary value as the same was made in violation of requirements of section 103, Cr.P.C. In the case of State through Advocate-General, Sindh v. Bashir and others (PLD 1997 SC 408) Ajmal Mian, J., as he then was, later Chief Justice of Pakistan, observed that requirements of section 103, 'Cr.P.C.
Namely that the two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. If, however, the statement of the police officer indicated that no effort was made by him to secure two Mahsirs from public, the recoveries would be doubtful. In the instant case, from the statement of the Investigating Officer it is apparent that no efforts were made to join any member of the public to witness the said recovery. In the overall circumstances of the case, we do not find it safe to rely on the said recovery. Once recovery of gun is considered doubtful the report of the fire-arm expert that the empty statedly recovered from the spot matched with the gun loses its significance .
' So, we are left with the alleged abscondence of the convict. His arrest has been shown as having been made on 24-2-1993 i,e, 2 years, 8 months and 2 days after the occurrence. It appears from the evidence on record that the convict was already in jail. As such the period of his abscondence is not ascertainable. Moreover, the explanation given in this respect by the convict is that he was never named as accused in the F.I.R.; he was residing in Dera Ismail Khan since 1988 in connection with his business and had no knowledge of the commission of the murder of Anwar Shah deceased and none of his family members resided in Wandhi Ghund Wali; in those days they resided in native village Chakbandi, Tehsil and District Mianwali. It is correct that the appellant was not named in the F.I.R. And in any case his mere abscondence cannot be made basis for holding him guilty of the offence.
In view of the features noted and the reasons given above, the prosecution cannot be said to have established the guilt of the appellant beyond reasonable shadow of doubt. In the circumstances, giving him befit of doubt, the appellant is also found entitled to acquittal.
' It was in these circumstances that vide our short order, dated 8-12-1999 we had accepted the appeal, set aside the impugned judgment of the High Court and ordered the release of the appellant forthwith if not required to be detained in any other case.