This appeal is directed against the judgment dated 4-4-2000, whereby appellant namely Abdul Qayyum son of Muhammad Shafi was convicted under section 396, P.P.0 and sentenced to life imprisonment. A fine of Rs,50,000 was also imposed upon him and in default of payment of fine he was to suffer further R.I. for two years. The fine if realized was to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C, in case F.I.R. No,278 of 1995, registered at Police Station Saddar, Shujabad, on 18-12-1995, for an offence under section 397, P.P.C, rendered by Ch. Zaffar Hussain, Judge, Special Court (Established under the Suppression of Terrorist Activities Act, 1975), Multan.
2. The law was set in motion on the statement (Exh.PA) of Muhammad Hussain P.W.6, recorded at the spot on 18-12-1995 at about 5-00 p.m. by P.W.16 Ghulam Mustafa, Inspector. Formal F.I.R. bearing No,278 of 1995 Exh.PA/1 was registered at Police Station Shujabad, by Munawar Hussain, Headconstable P . W . 1 on the basis of complaint Exh.P.A.
3. According to F.I.R. Fayyaz Hussain (deceased) son of P.W.6 Muhammad Hussain was running a medical shop in Mouza Chah Imam Din situated in Mouza Shah Musa and he also lived there. It was further stated that the deceased kept a motorcycle Honda CD-70 for transporation. According to F.I.R. on 18-12-1995 at about 2 p.m. Bahadar Ali P.W.13 informed the complainant that his son Fayyaz Hussain was murdered by two unidentified persons, who had also snatched away his motorcycle.
4. After registration of the case P.W.16 reached the spot and took the blood-stained earth in possession vide memo. Exh.PNN.
5. Abdul Qyyum, appellant, alongwith other co-accused was arrested by P.W.16 on 18-12-1996. On 25-2-1996 the accused led to the recovery of driving license, registration book and purse belonging to the deceased and the same were taken into possession vide memo. Exh . PK attested by S. H 0 . /P. W.16 and Riaz Hussain, P.W.9, Muhammad Sajjad P.W. was not produced. On the same day the appellant also led to the recovery of Carbine P-11 in the presence of the afore-referred witnesses, which was also taken into possession vide memo. Exh.Pl.
6. After completion of investigation, Abdul Qayyum, appellant, Abdul Rasheed and Muhammad Akram were sent up to face the trial. Abdul Rasheed and Muhammad Akram absconded during trial, while Abdul Qayyum, appellant, was convicted by the trial Court, who has filed the instant appeal.
7. During trial, the prosecution in support of its case produced 16 witnesses in total. Muhammad Hussain P.W.6 supported the narration of F.I.R. P.W.5 Dr. Rana Muzaffar Iqbal furnished the medical evidence and submitted post-mortem report of the deceased Exh.PC. P.W.9 Riaz Hussain testified about the recoveries effected from the appellant. Maqbool Ahmad P.W.10 and Nazar Hussain P.'W.12 were cited as witnesses before whom the appellant made the confession. P.W. 15 Allah Rakkah Ansari, Magistrate 1st Class stated that the appellant alongwith other co-accused has confessed before him and he recorded the confessional statement of the appellant under section 164, Cr.P.C, Ghulam Mustafa P.W.16 testified about the investigation. Rest of the witnesses were formal in nature.
8. After the closure of the prosecution case statement of the appellant was recorded under section 342, Cr.P.C, who denied his involvement in the case. However, neither he appeared as witness in his defence nor abduced any defence witness.
9. I have heard the learned counsel for the parties and have also gone through the record of the case. It was an unwitnessed occurrence committed by unidentified persons and the case of the prosecution rests only on the circumstantial evidence consisting of extra-judicial confession, judicial confession and recoveries.
10.P.W.10 Maqbool Ahmad and P.W.12 Nazar Hussain were cited as witnesses before whom the appellant made confession. During trial P.W.10 did not support the prosecution case to the extent of confession by the appellant. Nazar Hussain P.W. 12 stated that three accused confessed their guilt turn by turn before him and P.W.10. According to him the confession was initially made by Muhammad Akram, co-accused, who allegedly admitted firing at the deceased and thereafter the appellant repeated the story given by Muhammad Akram co-accused. Neither exact words, which were used by the appellant have been repeated nor any detail account has been given. This P.W. admitted that after confession of the accused, they immediately informed the police about the confession of the accused and their statements were recorded.
11.In the interest of justice the police, diaries of the case were looked into as envisaged by subsection (2) of section 172, Cr.P.C, and the same show that confession was made before the aforereferred witnesses an 25-2-1996. It knocks out the story of extra-judicial confession, as admittedly the appellant was arrested on 18-2-1996 and could not make confession before the P.Ws on 25-2-1996. Maqbool Ahmad P.W.10, who was cousin of the deceased and identified his dead body, stated on oath that no confession was made before him. In these circumstances, the story of extra-judicial confession cannot be believed.
12.P.W.15 Allah Rakkah Ansari, Magistrate 1st class, testified that he recorded the statement of the appellant Exh. P.2 under section 164, Cr . P. C . , wherein he admitted his guilt. A perusal, of the confessional statement of the appellant shows that the same was recorded by. the Magistrate on Oath, which rendered it inadmissible in evidence._ Reliance is placed on the cases of Haq Nawn v.
The State (1999 PCr.LJ 1381 DB), Ghulam Rasul v. The State ('.992 PCr.LJ 720 DB) and Muhammad Baksh v. The State (PLD 1956 SC (Pak.) 420).
13.The confession of all the three accused were recorded on the same day by the Magistrate. He did not ask from the appellant about his date of arrest and whether he was tortured by the police or not. It is not mentioned in the proceedings conducted by the learned Magistrate that the appellant was not handed-over to the police after the confession.P.W.16 moved an application Exh.
PN for recording the confession of the appellant and it has been mentioned in the said application as to when the appellant was arrested in this case.
14. P.W.9 Riaz Hussain, real brother of the deceased, appeared as recovery witness. Not only he was a close relative of the deceased but he was not a resident of the locality also. According to him, he reached the police station on his own at about 8-00 a.m. and thereafter joined the recovery proceedings, which were completed by 12-30 p.m. On the other hand, P.W.16 Ghulam Mustafa, Inspector, the other recovery witness, stated that- P.W.9 had come to the police station at about 10-00 a.m. and the recovery proceedings were completed by 2-30/3-00 p.m. These material discrepancies cannot be ignored. P.W.9 also admitted that all the accused were in handcuffs together when they led to the recoveries. It was further admitted by this P.W. that the accused lived jointly, with their family in the house. P.W.16 also admitted that brother and parents of the appellant lived in the same house. The place of recovery was surrounded by other houses. The appellant was already in custody and they were all the time available for the Inspector/Investigation Officer to associate witnesses from the locality as required by section 103, Cr.P.C. It also does not apply to reason as to why the appellant should keep the empty purse, driving licence and registration book of the motorcycle belonging to the deceased with him for such a long time. The purse was empty and the driving licence was of no use to the appellant as the motorcycle was not recovered from him. As far as the recovery of Carbine P-11 is concerned, the same was not used during the occurrence. It appears in the circumstances of the case that the police planted fake recoveries upon the appellant.
15. The medical evidence supports the prosecution version to the extent that Fayyaz Hussain. died due to fire-arm injury but it alone cannot lead to a person who caused- it. In the case of appellant it lends no support to the prosecution case as the injuries found on the person of the deceased were caused by bullets, which according to prosecution case were fired by Muhammad Akram, absconding co-accused.
16.The upshot of the above discussion is that the prosecution has failed to prove its case against the appellant Abdul Qayyum beyond doubt, therefore, extending the benefit of doubt to the appellant I allow this appeal, set aside the conviction and sentence passed by the trial Court and acquit Abdul Qayyum appellant of all the charges. The appellant would be released from Jail, if not required in any other case.