' BASHIR A. MUJAHID, J.---Muhammad Akram son of Sardar Ali, Amir Sharif son of Muhammad Afzal and Falak Sher son of Muhammad Nawaz have challenged judgment, dated 23-9-1999 passed by Special Judge, Anti-Terrorism Court, Lahore, whereby they were convicted under section 302(b)/34/109, P.P.C., and were sentenced to death on four counts for the commission of murder of Muhammad Shafi, Maqbool, Mst. Hamida and Mst. Rehana Kausar. They were further ordered to pay compensation of one lac each on each count to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C., or in default thereof to undergo six months' S.I. On each count. They were also convicted under sections 392/34/109, P.P.C., and were sentenced to 10 years' R.I. Each and fine of Rs,50,000 each or in default thereof three months' S.I. Each. They were further convicted under section 460/34, P.P.C., and were sentenced for life imprisonment.
2. Brief facts of the prosecution case are that F.I.R., No,319/97 Exh.P.A. Was got recorded by Bashir Ahmad P.W.1 with Police Station Farooq Abad on 31-12-1997 at 12-30 p.m. Alleging therein that the complainant was resident of Farooqabad near the house of Muhammad Shafi son of Muhammad Kathu who was living there for the last 8/9 years alongwith his wife Hamida and had five sons and two daughters who were working and residing at Lahore and Faisalabad. On the same day at 12 noon the children of the locality were playing cricket in the open plot near the house of Muhammad Shafi and their ball was thrown in the house of. Muhammad Shafi and one boy went inside the house to get the ball back who informed the complainant that he had seen the dead body of Muhammad Shafi alongwith another dead body on which the complainant went inside the house and found the dead bodies of Muhammad Shafi in the corridor and of his son Maqbool in a room. He peeped into the adjacent room and saw the dead bodies of Hamida Bibi and Rehana Kausar wife of Maqbool. He stated that they had been murdered by some unknown persons and got the instant case registered with Zia-ul-Haq, S.-I. P.W.13, who after recording the statement Exh.P.A. Of P.W.1, arrived at the place of occurrence and prepared the injury statements of dead bodies of Hamida Bibi vide memo. Exh. P.W., of Rehana Kausar vide memo. Exh.P.S., of Maqbool Exh.
P.Y. And of Muhammad Shafi Exh.P.Z., and inquest report of Muhammad Shafi was prepared vide memo. Exh. P.A.A., of Maqbool Ahmad Exh. P.B.B., Hamida Bibi Exh. P.C.C. And that of Rehana Kausar as Exh. P.D.D. And despatched the dead bodies for post-mortem examination. He took into possession the blood-stained earth from the place where the dead bodies were lying. He also took into possession 2 crime empties P-41/1-2 and crime empty of .32 bore revolver and one missed bullet of .32 bore revolver P-35 and two empties P-42/1-2 of pistol .30 bore vide memo. Exh. P.H.
3. On 1-6-1998 he arrested all the three accused/appellants in the instant case from Police Station Khan Kah Dogran where they were under arrest in some other case.
4. On 10-1-1998 Amir Sharif accused while in police custody led to the recovery of pistol .30 bore P-
45. Magazine P.46 and five live bullets P.47/1-5 which were taken into possession vide memo. Exh.
P.K. On the same day Muhammad Akram accused led to the recovery of revolver .32 bore P.48 alongwith three live bullets P-49/1-3 which were also sealed into parcel vide memo. Exh. P.L. On 18- 1-1998 Muhammad Akram led to the recovery of two golden finger-rings P.59/1-2 one nose pin P.58, ladies clothes P.60, 61, 62 and 63 which were taken into possession vide memo. Exh. P.S. On the same day Amir Sharif accused led to the recovery of one golden chain P.51, one gent wrist-watch P.52, steel chain P.55 and lady clothes P.53, P.54 and P.64 which were taken into possession vide memo. Exh. P.R. These articles were identified by Muhammad Yousaf and Mst. Mukhtaran P.W.4 as belonging to the deceased. The Investigating Officer recorded the statements of the witnesses, completed the investigation and submitted the challan.
5. The accused denied the allegations and claimed the trial.
6. During the trial prosecution examined as many as 15 witnesses to prove the guilt of the accused.
7. The medical evidence was furnished by Dr. Abdul Bari P.W.7 who on 31-12-1997 conducted the post-mortem examination on the dead body of Muhammad Shafi and found five injuries. Out of those injury No,1 was caused by fire-arm while the remaining four were caused by blunt weapon.
8. On the same day he also conducted post-mortem examination on the dead body of Maqbool Ahmad and found three injuries on his body. Injury No,1 was caused by fire-arm while the remaining two injuries were caused by blunt weapon.
8-A. Dr. Fauqia Asif P.W.9 on 31-12-1997 conducted post-mortem examination on the dead body of Hamida Bibi and found the following injuries:-
(1) A ligature mark 26 on in front and side of neck.
(2) Abrasion 1 x 0.2 on left side of neck, 2 on above from injury No,l.
' On the same day the same doctor conducted post-mortem examination on the dead body of Rehana Kausar and found the following injuries:-
(1) A ligature mark 20 on x 2.5. On in front of neck.
(2) Abrasion 1.5 x .5 on left elbow.
9. Muhammad Yasin was examined as P.W.5 who on 31-12-1997 joined the investigation and attested the recovery memos. Of articles taken into possession by the Investigating Officer from the place of occurrence. He further stated that on 1-1-1998 at about Sehri Time Muhammad Arkam, Amir Sharif appellants and Zulfiqar alias Moulvi Waraich (since dead) came to him where one Abdul Karim was also present and all of them confessed their guilt before him for having committed murder of Muhammad Shafi, Mqbool, Hamida and Rehana and also confessed that they had committed robbery of the articles from the house of the deceased and asked him to get them pardoned from the family. Muhammad Bashir was examined as P.W. 6 who stated that on 10- 1-1998 he joined the investigation and attested the recovery memos. Of weapon of offence got recovered by the accused Muhammad Akram and Amir Sharif. He further stated that Falak Sher accused appeared before him and confessed his guilt for having supplied the weapons of offence to his co-accused for commission of dacoity but not the murder and told that he has been falsely roped in by his co-accused in a heinous offence of murder and asked the witness to get him pardoned from the family. Muhammad Bilal was examined as P.W. 8 who being goldsmith identified the golden articles manufactured by him, purchased by Wali Muhammad father of Rehana Kausar deceased. Wali Muhammad father of Rehana Kausar was examined as P.W. 3 who identified the articles belonging to his daughter. Muhammad Ashraf was examined as P.W.10 who attested the recovery memo. Of stolen articles taken into possession at the instance of the accused. The remaining witnesses are of formal in nature and need not to be discussed.
10. The prosecution evidence was closed by tendering in evidence the report of Chemical Examiner Exh. P.E.E./1, P.F.F./B, P.G.G./C, P.H.H./D and that of Serologist Exh. P.K.K. And of Forensic Science Laboratory Exh. P.J.J.
11. Statements of the accused under section 342, Cr.P.C. Were recorded. They denied the charge and claimed their innocence and false involvement.
12. The trial culminated into conviction of the appellants as mentioned above.
13. Muhammad Akram has challenged his conviction and sentence through Criminal Appeal No,959 of 1999, while Falak Sher and Amir Sharif filed Criminal Appeal No,957 of 1999. The trial Court has sent up Murder Reference No,343-T of 1999 for confirmation of death sentence. Therefore, all these matters are being decided by this single judgment.
14. Learned counsel for appellant Falak Sher has argued that the only evidence on record against him is that of extra-judicial confession made before Muhammad Bashir P.W. 6 and the allegation against him is only that co-accused have implicated him, in the said offence and according to the confessional statement he had provided the weapons of offence; the statement of Muhammad Bashir P.W. 6 has not been corroborated from any other source. The weapons of offence recovered from the co-accused have not been found used in the commission of crime as the report of Forensic Science Laboratory Exh. P.J.J. Is in the negative as the empties taken into possession did not tally with the revolver and the pistol got recovered by his co-accused, therefore, his involvement in the case is doubtful and benefit of doubt be extended in his favour.
15. Learned counsel for Muhammad Akram and Amir Sharif appellants had argued that it was unwitnessed occurrence; the circumstantial evidence consists of the statement of Muhammad Yasin P.W. 5 which is of extra-judicial confession made by Muhammad Arkam and Amir Sharif accused alongwith Zulfiqar alias Maulvi Waraich (since dead) which was joint statement and the same is inadmissible under the law. The empties taken into possession from the spot did not tally with the weapons of offence allegedly got recovered from those two appellants. Therefore, recovery of weapons is of no use to the prosecution and has no corroborative value; that only one firearm injury was found on the deceased Muhammad Shafi and Maqbool each and the remaining injuries have not been explained. Likewise how Hamida and Rehana Kausar were done to death by strangulation? The injuries caused by blunt weapon on the deceased have not been explained by the prosecution. Nothing has been brought on record to prove the dacoity which was allegedly committed by the accused during the offence of murder. Therefore, recovery of stolen articles belonging to the deceased from the possession of the accused/appellants does not connect them with the commission of murder and dacoity. The case against the appellants is based on surmises and conjectures and the conviction is not sustainable under the law.
16. Conversely the appeal has been opposed by the learned counsel for the complainant and for the State. They have supported the impugned judgment.
17. Heard. Record perused.
18. First we take up the case of Falak Sher appellant. The only evidence against him is his confessional statement made before Muhammad Bashir P.W. 6 wherein he stated that his co- accused are implicating him in the commission of murder but he only had supplied the weapon of offence to them but these weapons have not been found used in the commission of offence as the report of the Forensic Science Laboratory Exh. P.J.J., is in the negative and the recovery of those weapons from the possession of co-accused is immaterial. The statement of Muhammad Bashir has not been corroborated from any other independent source. Therefore, in our view the prosecution has miserably failed to connect Falak Sher accused with the offence. Thus by extending benefit of doubt we accept Criminal Appeal No,957 of 1999 to his extent and acquit him of the charge. He is directed to be released from jail forthwith if not required in any other case.
19. So far as the case of Muhammad Akram and Amir Sharif is concerned, statement of Muhammad Yasin P.W.5 regarding their confessional statement before him is a joint confession by both the appellants alongwith their co-accused Zulfiqar alias Maulvi Waraich (since dead) which being joint confession has got no evidentiary value and the same is discarded. The remaining evidence against them is of recovery of weapons of offence. The empties taken into possession from the spot did not tally with pistol and revolver got recovered by these two accused, therefore, this recovery is immaterial and does not connect them with the commission/murder of four deceased. Therefore, they are acquitted of charge under sections 302/460/34/109, P.P.C. The other evidence against them is recovery of articles from their respective houses. These articles were duly identified by the prosecution witnesses Wali Muhammad, Mst. Mukhtaran Bibi and also Muhammad Bilal being goldsmith who had manufactured these for Rehana Kausar deceased. After re- appraisal of evidence we consider that the prosecution has successfully established its case against both these appellants under section 392/34, .P.P.C. Therefore, their sentence and conviction under section 392/34, P.P.C., is maintained and their appeals to that extent stand dismissed. Benefit of section 382-B will be available to them.
20. Resultantly Criminal Appeal No,959 of 1999 to the extent of Muhammad Akram and Criminal Appeal No,957 of 1999 of Amir Sharif are partly accepted.
21. Death sentence awarded to the appellants is not confirmed. Murder Reference is answered in the negative.
' For the reasons recorded in our detailed judgment of even date passed in Criminal Appeal No, 959 of 1999 this criminal appeal is accepted to the extent of Falak Sher appellant No,1 and the appellant is ordered to be released forthwith if nor required in any other case.