' ASIF SAEED KHAN KHOSA, J.---Muhammad Akram, Muhammad Jahangir, Muhammad Masood and Tariq Mehmood appellants were convicted for an offence under sections 302/149, P. P . C . Vide judgment dated 9-10-1999 rendered by the learned Sessions Judge, Rawalpindi/Judge, Special Court constituted under the Suppression of Terrorist Activities Act, 1975 and were sentenced to death each and to pay a sum of Rs,1,00,000 each to the heirs of Abid Hussain deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months each. The said appellants were also convicted for an offence under sections 148/149, P.P.C. And were sentenced to imprisonment for two years each. Through the same judgment Aurangzeb appellant was also convicted for an offence under sections 302/149, P.P.C.
And was sentenced to imprisonment for life and to pay a sum of Rs,50,000 to the heirs of Abid Hussain decease-I by way of compensation under section 544-A, Cr.P.C, ar in default of payment.
Thereof to undergo rigorous imprisonment for six months. Aurangzeb appellant was also convicted for an offence under sections 148/149, P.P.C. And was sentenced to rigorous imprisonment for two years. The benefit under section 382-B, Cr.P.C. Was extended to all the appellants. The appellants have challenged their convictions and sentences before this Court through Criminal Appeal No,224-T of 1999. Qamar Zaman complainant has also filed Criminal Revision No, 113 of 1999 before this Court seeking enhancement of the sentence passed against Aurangzeb convict-appellant by the learned trial Court. We have heard both these matters together and we propose to decide the same together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Qam4. Zaman complainant was a retired police official and had three brothers out of whom Abid Hussain was the youngest who had retired from the Rangers about two years ago. All the said four brothers owned a jungle situated at a short distance from their village which jungle was looked after by the complainant's youngest brother namely Abid Hussain and he used to visit that jungle every day so as to take care of the same and also to cut wood from there. On 6-9-1996 the said Abid Hussain went to the said jungle at about 8- 00 a.m. But did not return till evening which caused anxiety to the members of the family who looked for him in the jungle but could not find him. During their search for Abid Hussain they, however, could see somebody using a torch off and on. On the next day, i.e 7-9-1996 the complainant party again went to the jungle and found the dead body of Abid Hussain on a path.
The dead body of Abid Hussain had visible injuries present on its chest, arms and legs. It was mentioned by the complainant in the F.I.R. That a few days ago Abid Hussain had told his brothers that Muhammad Jahangir appellant and his brother as also some of their companions used to stealthily cut wood from their jungle and upon his reprimand they had not desisted from the same and were ready to quarrel on that issue. The complainant had expressed a suspicion in the F.I.R.
That his brother Abid Hussain had been murdered by Muhammad Jahangir appellant and his brothers as well as their companions. Leaving the dead body of Abid Hussain in the care of Naseem Akhtar, etc. Qamar Zaman complainant went to Police Station Kaliutg, District Rawalpindi and lodged F.I.R. No,176 there at about 9-15 a.m. On the same day, i.e 7-9-1996 from an offence under sections 302/a; P.P.C. The said F.I.R. Was recorded by Taj Muhammad, Inspector (P.W.15).
3. After recording the F.I.R. Taj Muhammad, Inspector (P.W.15) took up the investigation of this case and went to the place of occurrence. He prepared .An injury statement as well as an inquest report, inspected the spot and recorded the statements of witnesses besides sending the dead body to the mortuary for autopsy.
4. Dr. Sajjad Hussain Raja (PW-10) conducted post-mortem examination on the dead body of Abid Hussain at about 1-00 p.m. On 7-9-1996 and found nine injuries on it. In his opinion the cause , of death was injuries Nos.1,3,7 and 8. All the injuries were ante-mortem and sufficient to cause death in the ordinary course of nature. The probable time elapsing between the injuries and death was opined by him to be between 1 to 10 minutes and that between the death and post-mortem examination was between 10 to 24 hours. According to the doctor injuries Nos.1 to 4, 6 and 9 had been caused by a blunt weapon, Injury No,5 had been caused by a sharp-edged weapon whereas injuries Nos.7 had 8 had been caused by a fire-arm.
5. On the same day, i.e 7-9-1996 Taj Muhammad, Inspector (P.W.15) received the last-worn clothes of the deceased as well as post-mortem examination report, prepared a rough site-plan of the place of occurrence and then returned to the police station where at he delivered the case property to the Moharrir for safe custody. On i6-9-1996 he arrested Muhammad Akram appellant and on 21-9-1996 recovered a rifle and four live cartridges from his possession. Muhammad Akram appellant also got recovered two crime-empties and a led bullet from the house of Muhammad Jahangir appellant on the same day. Thereafter, the Investigating Officer got a formal site-plan of the place of occurrence prepared by a Draftsman. On 24-9-1996 he arrested Muhammad Jahangir appellant and on 27-9-1996 he recovered a hatchet from his possession. Muhammad Jahangir appellant also got recovered a cot from his house which, alongwith its Nawar, were also secured by the Investigating Officer. On 18-10-1996 Muhammad Masood appellant was arrested by the Investigating Officer and after obtaining his physical remand his judicial confession was got recorded by him under section 164, Cr.P.C. Before the Area Magistrate on 31-10-1996. On 11-11-1996 Aurangzeb appellant was arrested and on 8-12-1996 Tariq Mehmood appellant was apprehended.
On 16-12-1996 a hatchet was recovered from the house of Tariq Mehmood appellant. Thereafter, Taj Muhammad, Inspector (P.W.15) completed his investigation and submitted a challan.
6. At the commencement of the trial the learned trial Court framed a charge with two heads under sections 148, P.P.C. And 302/149, P.P.C. Against the appellants to which they pleaded not guilty and claimed a trial.
7. During the trial the prosecution produced as many as 15 witnesses in support of its case against the appellants. No ocular account was available with the prosecution in this case and, thus, no.Eye- witnesses had been produced by it. Qamar Zaman complainant (P.W.14) had stated about the motive allegedly entertained by the appellants but he had not himself witnessed or known personally about the alleged motive. Rai Manzoor Nasir (P.W.13) had deposed about the judicial confession allegedly made by Muhammad Masood appellant before him on 31-10-1996. Raja Abdul Aziz (P.W.5) and Fateh Khan (P.W.9) had deposed about the alleged extra-judicial confessions made before them by Muhammad Masood and Muhammad Akram appellants respectively. Said Zaman (P.W.8) had stated about Muhammad Jahangir and Tariq Mehmood appellants having been seen by him with Abid Hussain deceased before Abid Hussain's murder. Recoveries of weapons and other articles from Muhammad Akram, Muhammad Jahangir and Tariq Mehmood appellants were deposed about by Muhammad Akram (P. W .7), Muhammad Akhtar (P. W .4) and Ahmad Nawaz (P.W,2) respectively. Taj Muhammad, Inspector (P.W.15) had stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. ,8. In their statements recorded under section 342, Cr.P.C. All the appellants had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. They had maintained that it was a case of a blind murder and that they had falsely been roped into this case on account of suspicion entertained by the complaint party.
The appellants had opted not to make statements on oath under section 340(2), Cr.P.C. And they had also not produced any witness in their defence.
9. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, they were convicted and sentenced as mentioned and detailed above. Hence, the present appeal and the revision petition before this Court.
10. In support of this appeal it has been argued by the learned counsel for the appellants that it was admittedly an unwitnessed occurrence and the prosecution had failed to substantiate the motive set up in the F.I.R.; the judicial confession allegedly made by Muhammad Masood appellant is exculpatory in nature and, therefore, not worthy of any reliance; the extra-judicial confessions allegedly made by Muhammad Masood and Muhammad Akram appellants ran contrary to the alleged judicial confession made by Muhammad Masood appellant and were even otherwise not worthy of any credence; the last-seen evidence produced by the prosecution was not of such legal consequence; the recoveries allegedly effected in this case from the appellants were not of much avail to the prosecution; and, thus, the prosecution had failed to prove its case against the appellants beyond reasonable doubt. As against that the learned counsel for the complainant and the State have maintained that the prosecution had successfully proved the guilt of the appellants to the hilt and, therefore, the convictions of the appellants recorded by the learned trial Court do not call for any interference by this Court. It has, however, been added by the learned counsel for the complainant that the sentence passed by the learned trial Court against Aurangzeb appellant for an offence under sections 302/149, P . P.0 . Warrants enhancement.
11. We have heard the learned counsel for the parties at some length and have gone through the record of this case with their assistance.
12. It is not disputed by any party to this case that the actual murder of Abid Hussain had remained unwitnessed and, thus, no ocular account of the incident in question is available in this case. It is also admitted at all hands that the motive alleged in the F.I.R. Had remained unproved as Qamar Zaman complainant (P.W.14) had no personal knowledge about the said motive and neither any report was ever lodged at any police station regarding the alleged theft of wood from the complainant's jungle nor any such wood was ever recovered from the appellants possession during the investigation of this case.
13. The alleged judicial confession made by Muhammad Masood appellant before Rai Manzoor Nasir (P.W. i3) on 31-10-1996 has engaged our serious consideration. In this connection it has straightaway been found by us that the alleged confession made by the said appellant (Exh.P.L) is exculpatory in nature as, while implicating his co-accused, Muhammad Masood appellant did not tarnish himself with the same brush while making the said statement and had tried to portray that he had neither caused any injury to Abid Hussain deceased nor he was a free agent in doing what his co-accused had allegedly made him to do. An exculpatory statement of this nature has seldom been relied upon as a judicial confession worth any reliance vis-a-vis co-accused of the maker of such a confession. A reference in this regard may be made to the case of Faqir Ullah v.
Khaliluz-Zaman and others (1999 SCM R 2203). We have further noticed that Muhammad Masood appellant had been arrested by Taj Muhammad, Inspector (P.W.15) on 18-10-1996 and the appellant had remained on physical remand with the local police for 12 days before he had made the alleged judicial confession on 31-10-1996. The above mentioned police officer had stated before the learned trial Court that Muhammad Masood appellant was ready to make a confession on the first day of his arrest but despite obtaining his physical remand twice from the Area Magistrate the said police officer had never mentioned before the Area Magistrate about the stated readiness of the appellant to make a judicial confession. It is also note worthy that the concerned Magistrate had conceded before the learned trial Court as (P.W.13) that the said appellant had not been informed by him that after making a judicial confession that appellant would not be sent back to the custody of the police. A perusal of Exh.P.L confirms the said legal lacuna in this regard. Moreover, it cannot be lost sight of that the same appellant namely Muhammad Masood had allegedly made an extra-judicial confession before Raja Abdul Aziz (P.W.5) on 7-9-1996 wherein he had statedly admitted of himself causing hatchet injuries to Abid Hussain deceased but in his alleged judicial confession on 31-10-1996 no such admission was made by the appellant. This not only establishes that the alleged judicial confession of the said appellant was exculpatory in nature but the same also confirms an apparent contradition between the extra-judicial confession and the judicial confession attributed to the said appellant. All these factors individually as well as collectively have been found by us to be sufficient to discard out of consideration the judicial confession allegedly made by Muhammad Masood appellant.
14. Adverting now to the extra-judicial confessions allegedly made by Muhammad Masood appellant on 7-9-1996 before Raja Abdul Aziz (P.W.5) and by Muhammad Akram appellant on the same day before Fateh Khan (P.W.9) we have noticed that the said alleged confessions had surely been retracted by the said appellants before the learned trial Court as making of the said confessions was denied by them. Both the above mentioned witnesses before whom the said appellants had allegedly made confessions have not been established by the prosecution to be either closely related to the complainant party or to be persons of influence in the area so as to be in any position to help the appellants in the criminal case in question in any manner. It is also not denied that upon making of the alleged confessions by the said appellants those witnesses had never tried 4o apprehend the said appellants or to produce them before the police. Raja Abdul Aziz (P.W.5) had admitted that in his statement before the police (Exh:D.A) he had stated that Muhammad Masood appellant as well as one Azhar Ali had been implicated in the confession allegedly made by Muhammad Masood appellant before him but before the learned trial Court he had consciously and deliberately tried to save and screen Azhar Ali in that regard. This shows that (P.W.5) was not a person upon whom a whole hearted reliance could be placed for convicting a person on a capital charge as he was capable of uttering half-truths or changing his statements.
Even otherwise the alleged extrajudicial confession made by Muhammad Masood appellant before (P.W.5) was in conflict with his alleged judicial confession inasmuch as in the extra-judicial confession before P.W.5 the said appellant had admitted of himself causing hatchet blows to Abid Hussain deceased whereas in the judicial confession causing of injuries by the said appellant to the said deceased was not mentioned. The infirmities mentioned above in the extra-judicial confession allegedly made by Muhammad Masood appellant before P.W.5 are equally relevant and applicable with the same force to the extra-judicial confession allegedly made by Muhammad Akram appellant before P.W.9 It is not disputed that both P. Ws. 5 and 9 are related to the complainant party, although not closely, and, therefore, we have found it to be unsafe to rely upon the alleged extrajudicial confessions. It is needless to observe here the there is a judicial consensus that extra-judicial confession is a very weak type of evidence and in the absence of any strong and independent corroboration the same cannot ordinarily suffice to record or maintain a conviction on a capital charge.
15. Said Zaman (P.W.8) had, .Stated before the learned trial Court that at about 8-00 a.m. On 6-9- 1996 he had seen Muhammad Jahangir and Tariq Mehmood appellants walking with Abid Hussain deceased in the jungle and the prosecution has relied upon this statement of P.W.8 as the last- seen evidence. The law on the last-seen evidence is quite settled and that is that unless the last sighting of the deceased with an accused person has a close proximity with the death of the deceased so as to rule out any possibility of the deceased having come in contact with anybody else during the interregnum such a last sighting cannot be considered as sufficient proof against such an accused person giving rise to an inference of his guilt. In the present case the last sighting of the deceased with the above mentioned two appellants was at 8-00 a.m. On 6-9-1996 whereas the dead body of the deceased was first discovered by the complainant sometime in the morning on 7-9-1996. It is also critical in this regard that the prosecution has failed to fix the time of death of Abid Hussain with any. Exactitude. Thus, such a long gap of time between the last sighting of the deceased with the above-mentioned two appellants and recovery of his dead body surely cannot meet the test and requirement of proximity in this regard and, 'thus cannot satisfactorily be considered as last-seen evidence. Apart from that the alleged extra-judicial confessions made by Muhammad Masood and Muhammad Akram appellants and the judicial confession allegedly made by Muhammad Masood appellant require the Court to believe that the deceased had been taken by four appellants whereas the last-seen evidence produced by P.W.8 wants the Court to believe that the deceased had been taken away by two appellants. Thus, like the other pieces of evidence discussed above, this piece of evidence relied upon by the prosecution also contradicts the other pieces of evidence and the same is also not worthy of safe reliance.
16. The report of the Forensic Science Laboratory (Exh.P.Z) shows that the rifle .222 bore allegedly recovered from Muhammad Akram appellant had matched with two crime-empties recovered from the place of occurrence but, however, attractive such a piece of evidence may appear to the prosecution, the same has failed to impress us. According to the record the F.I.R. In this case had been lodged on 7-9-1996 regarding the murder of Abid Hussain deceased and on the same day, i,e, 7-9-1996 two of the appellants namely Muhammad Masood and Muhammad Akram had allegedly made extrajudicial confessions before P.Ws.5 and 9 and in those confessions the alleged details of the occurrence as well as of the place of occurrence had come to the knowledge of the complainant party and the local police. It is, therefore, quite strange that despite that the Investigating Officer never visited the spot so as to recover the crime-empties therefrom till 16-9- 1996 when Muhammad Akram appellant was arrested. Even after the arrest of Muhammad Akram appellant on 16-9-1996 the Investigating Officer did not recover the crime-empties till 21-9-1996 when allegedly the crime-empties as well as the rifle had been recovered on the same day. It is unbelievable that the appellants had not even removed the crime-empties from the place of occurrence, i,e, the house of one of the appellants, despite the fact that they had not been arrested in connection with this case for many days after the occurrence. Thus, recovery of a rifle from Muhammad Akram appellant and the crime-empties on the same day by the Investigating Officer and then sending of the same to the Forensic Science Laboratory together have denuded the positive report of the Forensic Science Laboratory of any evidentiary value worth reliance upon. It is also noteworthy that despite recovery of the rifle and the crime-empties on 21-9-1996 the same were admittedly sent to the Forensic Science Laboratory after a delay of 25 days. It may also be relevant to mention here that no witness had been produced by the prosecution to depose about taking of the rifle and the crime-empties to the Forensic Science Laboratory for their comparison and, thus, safe custody of the same during the transit had never been established. Apart from all that the said recoveries had been witnessed by Muhammad Akram (P.W.7) who lived miles away from the place of recovery and, thus, the requirement of section 103, Cr.P.C. In this regard was flagrantly violated. As regards the alleged recovery of a bloodstained hatchet from Muhammad Jahangir appellant suffice it to observe that, the said recovery had allegedly been effected from a house which had no walls and, thus, it could not be said that the said appellant was in exclusive custody of the recovered hatchet. Mehmood Akhtar (P.W.4), the recovery witness produced in this respect, was admittedly related to the complainant party and was, thus, not readily reliable. The hatchet allegedly recovered from Tariq Mehmood appellant was not stained with blood and, thus, the same could not be connected with the offence in question. No recovery of any sort had been effected from Muhammad Masood appellant and Aurangzeb appellant. In these circumstances even the evidence produced by the prosecution vis-a-vis the alleged recoveries effected from the appellants has failed to inspire our confidence.
17. As all the above mentioned pieces of evidence relied upon by the prosecution in this case have not been found by us to be worthy of safe reliance in a case involving a capital charge, and no other evidence is available pointing towards the guilt of the appellants, therefore, we have no hesitation in concluding that the prosecution had failed to prove its case against the appellants beyond reasonable doubt.
18. For what has been discussed above Criminal Appeal No,224-T of 1999 filed by the appellants before this Court is allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and they are acquitted of the charge. They shall be released from jail forthwith if not required in any' other case.
19. For the reasons mentioned above Criminal Revision No,113 of 1999 filed by Qamar Zaman complainant is hereby dismissed.