' This appeal has been preferred by Imtiaz Ahmad son of Gulzar Ahmad, Muhammad Ashraf son of Ghulam Qadir and Wahid Bakhsh son of Khuda Bakhsh against the judgment dated 28-4-2001 passed by the Additional Sessions Judge-I, Layyah, whereby he convicted all the three appellants under section 302/34, P.P.C. And sentenced to imprisonment for life each with compensation of Rs,20,000 each. In default of payment of compensation to further undergo simple imprisonment for three months each. They were also convicted under section 460, P.P.C. And sentenced to imprisonment for ten years each. Benefit of section 382-B, Cr.P.C. Was also awarded to them.
2. The afore-referred appellants along with one Sonhara (proclaimed offender) were indicted by the police in case F.I.R. No,361 of 1998 registered at Police Station Saddar Layyah, on 21-12-1998, 4 for offence under section 460, P.P.C. During investigation section 302/34, P.P.C. Were also added.
3.F.I.R.. Exh.P.B was recorded on the statement of Rustam Ali, P.W.4, brother of the deceased by Amir Abdullah, Inspector/S.H.O. P.W.8.
4.It was stated in the F.I.R. That the complainant and his brother Abdul Hameed had constructed a shop near their house where they were running a grossary store. It was further stated that at about 9-00 p.m. Abdul Hameed left for shop to sleep there and about Sehriwela Abdul Waheed P.W.3, son of the deceased, was sent to the shop to wake up Abdul Hameed, who returned after some time and informed that his father was not present at the shop. Thereafter, the complainant went to the shop for the same purpose and saw that Abdul Hameed was not present on the cot lying in the Veranda of the shop. Meanwhile, Atta Muhammad alias Atti reached there. The complainant took a match box from him and in the light thereof he saw that the door of the shop was opened and his brother Abdul Hameed was lying on the ground inside the shop with face downward. The complainant raised alarm, which attracted Abdul Waheed P.W.3, Ali Muhammad father of the complainant and other persons. Abdul Hameed had already died and his dead body was put on the cot. On search, the complainant discovered that the amount from the safe, a carton of soap, cigarettes and packets of tea had been stolen: The Identity Card of the deceased was also missing.
5. After recording the F.I.R., Amir Abdullah P.W.8 reached the place of occurrence, sent the dead body to the mortuary, inspected the site and recorded the statements of the P.Ws.
6. On 20-3-1999 Wahid Bakhsh and Muhammad Ashraf, appellants, were formally arrested in the instant case, as they were already in police custody in a case F.I.R. No,47 of 1999 of the same Police Station. On 18-4-1999 Imtiaz Ahmad, appellant, was also formally arrested, he was also in police custody in the above referred case. All the appellants were arrested by Muhammad Khan P.W.10.
On 23-3-1999 Wahid Bakhsh led to the recovery of Identity Card P.5 relating to Abdul Hameed deceased, six notes of denomination of Rs,100, six Life Buoy Soap, six packets of Lux, four packets of Supreme Tea and one packet of Embassy cigarettes from his house. The said articles were taken into possession vide memo. Exh.P.C. On the same day, Muhammad Ashraf also led to the recovery of currency notes of Rs,600 of denomination, of Rs,100, six packets Lux Soap, six packets of Life Buoy Soap, one carton of Desi Soap (gaye soap) containing 20 packets from his residential house and the same were taken into possession vide memo. Exh.P.D. On 18-4-1999, appellant Imtiaz Alimad led to the recovery of one packet of Royal cigarette, three packets of Lux. Soap, one packet Cells (Chanda Battery Cell), two packets of Brooke Bond Tea and six packets of Millon Soap from his residential house. The same were taken into possession vide memo. Exh.P.E, by the P.W.10.
7. Charge was framed against the appellants under sections 460/302/34, P.P.C.. As the appellants denied the charge and claimed the trial, the same ensued.
8. During trial the prosecution produced 10 witnesses in support of its case. P.Ws. 4 and 5 stated about the extrajudicial confession of the appellants. P.W.6 Dr. Muhammad Tariq Amin furnished the medical evidence. P.W.8 stated about the registration of the case and initial investigation while P.W.10 appeared as Investigating Officer of the case. The rest witnesses were formal in nature.
9. After the closure of the prosecution case, the statements of the appellants were recorded under section 342, Cr.P.C., who pleaded their innocence and stated that they were falsely involved in this case and they never made any extra-judicial confession. They also stated that on the date of confession they were already in the custody of police. However, they did not appear as witness as contemplated by section 340(2), Cr.P.C. And closed their evidence after submitting a copy of the remand application Exh.D.C.
10. The learned counsel for the appellants has argued that no incriminating evidence was available against the appellants, while the learned counsel appearing on behalf of the State has argued that extra-judicial confession in the circumstances of the case was reliable and the appellants were rightly convicted.
11. I have heard the learned counsel for the appellants as well as the learned counsel for the State and gone through the record. The case of the prosecution rests upon:- . (a) the extra-judicial confession,
(b) the medical evidence and
(c) the recoveries.
12. P.Ws.4 and 5 are the witnesses before whom, according to the prosecution, the appellants made confession. P.W.4 is also complainant of the case and brother of the deceased. While P.W.5 is from the brotherhood of the complainant, who was by chance sitting in the shop of P.W.4 when the appellants made their confession. A perusal of the evidence shows that the appellants were previously not known to P.W.5, while only Imtiaz appellant was known to P.W.4. Some other persons were being suspected as accused and there was no suspicion against the present appellants.
There is no reason whatsoever on record to convince as to why the appellants should go and confess before the two P.Ws. Although the witnesses have tried to state that the appellant had made confession of their guilt independently yet the perusal of their statements shows that it was, if at all, a joint confession. The manner in which the alleged extra-judicial confession was made by appellants before the above referred P.Ws. Is totally unconvincing and unnatural. Despite the confession neither the appellants was apprehended nor the matter was reported to the police immediately after the confession. It was on 10-3-1999, a day after the confession of the appellants, that the P.Ws. Approached the police and reported the matter. Major improvements have been made by the two P.Ws. During their examination and also contradicted each other on material particulars relating to the confession.
13. According to P.Ws.4 and 5, a cloth was put in the mouth and nose of Abdul Hameed by the appellants who died due to axpheria and strangulation. While according to the post-mortem examination report the deceased received eight injuries on his person. Dr. Muhammad Tariq Amin P.W.6 admitted that injuries Nos.4 and 8 could be caused by repeated blows with a blunt weapon.
The medical evidence, therefore, does not support the version given by the P.Ws.4 and 5, who are silent about injuries Nos.4 and 8.
14. Now coming to the recoveries. First of all, all the recoveries effected from the appellants related to the articles, which are easily available at every glossary store and are not helpful to the prosecution, to arrive at the conclusion that the articles recovered from the appellants were the same which were stolen during the occurrence. It is hard to believe that anybody would keep Identity Card of the deceased with him so as to produce the same to the Police; when he is arrested. No independent witness was associated while effecting recoveries and no explanation was made as to why the provisions of section 103, Cr.P.C. Were violated. The recoveries were also belated, therefore, the same cannot be used for the purposes of corroboration.
15. A perusal of the impugned judgment shows that the trial Court was influenced by the involvement of the appellants in some other theft cases, which can hardly provide corroborative evidence in the instant case.
16. The nutshell of the above discussion is that the prosecution has failed to prove its case beyond doubt, therefore, I allow this appeal, set aside the impugned judgment dated 28-4-2001 passed by the Additional Sessions Judge-I, Layyah and acquit the appellants of all the charges. They would be released from Jail forthwith, if not required in any other case.