1. ' BASHIR A. MUJAHID, J.---Muhammad Ali alias Shera has challenged judgment, dated 24-6-1999 passed by the Judge, Special Court constituted under A.T.A., Gujranwala whereby he was convicted under section 302(b), P.P.C. For committing Qatl-i-Amd of Wazir Ali constable and was sentenced to death. He was also convicted under section 392, P.P.C. For committing dacoity/robbery and was sentenced to 10 years' R.I. And fine of Rs,50,000 or in default of payment of fine he was ordered to undergo one year's R.I. He was also convicted under section 353, P.P.C. And was sentenced to 2 years' R.I. And fine of Rs,20,000 gr in default of payment of fine he was ordered to undergo 6 months' R.I.
2. ' Brief facts of the prosecution case are that F.I.R. No,57 Exh.P.E./1 was registered at Police Station Satrah, District Sialkot on 18-5-1995 at 11-05 p.m. On the statement Exh.P.E. Of Rashid Ahmad, Constable P.W.13, recorded by Muhammad Yar Gondal, Inspector/S.H.O., P.W.14 at Civil Hospital, Pasroor at 10-30 p.m. Wherein it was stated 'that on 18-5-1995 at 4-50 p.m. The complainant armed with rifle .303 bore alongwith Muhammad Ehsan Ullah, Constable 3/C and Tanvir Ahmad No,347/C armed with kalashnikovs were on patrol duty on motor bikes and were present on Buddha Goraya Road where they came across Wazir Ali, Constable No,1772. He also joined the police party and at 8-15 p.m. They were patrolling in the area of village Koreke where one Muhammad Shahbaz P.W.8 met them and informed the police party that 5 unknown persons present on the bridge of Sem Nala were busy in robbing the passer bye and he had also been looted and the accused had forcibly snatched his wrist watch, 'golden ring and cash amount of Rs,1,220. After receiving this information the police party went towards Sem Nala. The accused on seeing the police party opened fire. The police officials also fired in their self-defence. As a result 9f cross-firing Wazir Ali, Constable was injured and the accused managed to escape from the spot. Wazir Ali was brought to Civil Hospital, Pasroor in injured condition by the complainant where he succumbed to the injuries, and his statement Exh.P.E. Was recorded.
3. ' Muhammad Yar Gondal, Inspector P.W.14 after receipt of information of the occurrence arrived at Civil Hospital, Pasroor and recorded statement of Rashid Ahmad Exh.P.E., sent the same to the police station for registration of formal F.I.R. He took the dead body into possession, prepared the injury statement Exh.P.F. And inquest report Exh.P.G. And handed over the dead body to Muhammad Iqbal and Akbar Ali, Constables for post-mortem examination and he himself arrived at the spot on 19-5-1995 at 9 a.m, and took into possession the blood-stained earth from the spot where Wazir Ali was injured vide memo. Exh.P.D. On the same day after post-mortem examination last-worn clothes of the deceased were produced before ,this witness which were taken into possession vide memo. Exh.P.C. He obtained non-liailable warrants of arrest of accused Abdul Sattar alias Tani, Ghulzar Ahmad alias Gulzari and Muhammad Ali alias Shera (present appellant) who were found involved in the commission of crime. They were not available on which they were declared proclaimed offenders.
4. ' It has been noticed by the learned trial Judge that Abdul Sattar accused was murdered in an police encounter while Gulzar Ahmad alias Gulzari is still absconder and Muhammad Ali alias Shera accused was arrested in some other case who was in District Jail, Sialkot wherefrom he was formally arrested in the instant case and after completion of investigation challan was submitted against him.
5. ' The trial Court framed the charge which was denied by the accused/appellant and he claimed trial.
6. ' During the trial prosecution examined as many as 15 witnesses to prove the guilt of the accused.
7. ' Medical evidence was furnished by Dr. Muhammad Imdad Aasi who on 19-5-1995 conducted post-mortem examination on the dead body of Wazir Ali and found the following injuries:--
(1) Penetrating lacerated wound 1-1/2 x 3/4 c.m. On the right side of lower abdomen front side 16 c.m. Below the umbilicus. Edges were everted. It was wound of exit.
(2) Penetrating lacerated wound 1 x 1 c.m. On the right lateral side of chest on back. The edges were inverted. The wound was directed backward and upward. It was the wound of entry.
(3) Penetrating lacerated wound 1/2 x 1/2 c.m. On the right buttock. The edges were inverted and directed upward and inward. It was a wound of entry.
(4) Lacerated penetrating wound 2-1/2 x 1-1/2 c.m. In midline on back of abdomen 7 c.m. Below the hip joint in middle. It was exit wound.
8. ' The ocular account was furnished by Rashid Ahmad P.W.13 who was complainant of the case. He supported the version of the F.I.R. And stated that Wazir Ali was also member of the police party and on receipt of information from Shahbaz P.W.8 that three persons were busy in committing robbery on the bridge of Sem Nala who was also deprived of his belongings on which they went to the bridge of Sem Nala and were fired at by the accused. They also retaliated firing in self-defence.
9. Wazir Ali, Constable was injured due to firing of the accused and the accused made their escape good from the spot. Wazir Ali was removed to hospital where he succumbed to the injuries.
10. Muhammad Shahbaz P.W.8 was the star-witness of the prosecution case who stated that he was going to village Koreke on his motorcycle and on the bridge of Sem Nala three persons stopped him and out of them one was Muhammad Ali alias Shera (appellant) present in Court and the accused searched his person and took away his purse containing Rs,1,220 copy of identity card and also removed Seiko watch and golden ring. He was forced to sit near the bridge where other persons were already present who were also robbed by the accused. He managed, to slip away and reached near the village Koreke and informed the police party and accompanied the police officials to the place of occurrence where cross-firing was in progress and a Toyota Wagon came there from the side of Kotli Bawa. He saw the accused persons in the light of the Wagon. Wazir Ali, F.C. Was injured in the firing, who later on died. Masud Ahmad i3hatti Draftsman. P.W.2 prepared the site plan of the place of occurrence. Nazir Ahmad P.W.3 had identified the dead body of Wazir Ali at the time of post-mortem examination. Akhtar Ali, F.C. Got conducted the post-mortem examination and produced last-worn clothes of the deceased before the Investigating Officer and attested the recovery memo. Exh.P.C. Syed Muhammad Hussain, S.-I. P'. W.7 on 30-6-1998 interrogated the appellant in the instant case and sent him in judicial lock-up. Ehsan Ullah, F.C. Was examined as P.W.9. He supported the prosecution story and stated that he was member of police party and on 18-9-1995 at 6-16 p.m. One Noor Muhammad, driver stated that he had dropped three persons from his taxi and out of them one was Gulzar Ahmad alias Gulzari. He also stated that Shahbaz P.W.8 informed the police party about the accused persons busy in committing robbery and thereafter there was exchange of firing and Wazir Ali was injured in the occurrence. Noor Muhammad P.W.11 who was taxi driver stated that the taxi was hired by accused Gulzar Ahmad alias Gulzari who took two %persons in his taxi and all of them were dropped by him between village Julka and Koreke but he refused to identify Muhammad Ali alias Shera appellant.
11. Muhammad Tufail P.W.12 was declared hostile and he stated that the accused had muffled their faces. The prosecution evidence was closed by tendering in evidence the report of Chemical Examiner Exh.P.J. 'arid that of Serologist Exh.P.K.
12. ' Statement of the appellant was recorded under section 342, Cr.P.C. He denied the allegation and claimed his innocence and false involvement.
13. ' The trial culminated into conviction of the appellant who has challenged his conviction and sentence through Criminal Appeal No,1141.1 of 1999 while the trial Court has sent up Murder Reference No,244/T of 1999 for confirmation of death sentence. Both the matters are being decided by this single judgment.
14. ' Learned counsel for the appellant has argued that the appellant was not known to any member of the police party or to Muhammad Shahbaz P.W.8. No description of the accused was given in the F.I.R. Or in the statements of the P.Ws. Recorded under section 161, Cr.P.C. Nothing was recovered from his possession and he is not connected with the commission of crime by any evidence.
15. Therefore, he is entitled for the acquittal.
16. ' Conversely, the appeal has been opposed by the learned State Counsel who has supported the impugned judgment.
17. ' Heard. Record perused.
18. It is admitted fact that the occurrence took place and Wazir Ali Constable succumbed to the injuries received by him during the occurrence, but none of the accused was nominated in the F.I.R.
19. No description as particulars were given either in the F.I.R. Or in the statements of any prosecution witness recorded under section 161, Cr.P.C. Muhammad Shahbaz P. W.8 who was star-witness of the promution has stated that he knew the accused and he identified them in the light of the wagon but he did not know the names of the accused. Nothing has been brought on record that on what basis the appellant was found involved in the instant case. No recovery was effected from his possession. Even the weapon of offence or any article allegedly looted by the accused from Muhammad Shahbaz was not recovered from the appellant. According to Shahbaz P.W.8 many other persons were also looted by the accused but none of them was examined. Therefore, we find that no evidence has been brought on record by the prosecution to connect the appellant with the commission of murder of Wazir Ali or robbery and it was case of no evidence. The appellant was not nominated in the F.I.R., therefore, declaring him as proclaimed offender is no ground to connect him with the commission of crime, and the prosecution has failed to establish its case against the appellant. Therefore, Criminal Appeal No,114/J of 1999 is allowed. Conviction and sentence of the appellant is set aside. He be released forthwith if not required in any other case.
20. ' Murder Reference No,244/T of 1999 is answered in negative. Appeal allowed 2002 YLR 2176 [Lahore] Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Shenvani, JJ MUHAMMAD AMIN and others---Appellants versus THE STATE---Respondent Criminal Appeals Nos.34/J, 38/J and 41/J 1999, heard on 15th April, 2002. ----Ss. 302/324/34---Explosive Substances Act (VI 0' 1908), Ss.3 & 4---Appreciation of evidence--- Accused were neither named in F.I.R. Nor their descriptions were given in the F.I.R. And no identification' parade was held---Fourteen eye-witnesses had appeared in Trial Court, but none of them had stated against accused persons and even did not identify the accused before Trial Court---Accused did not lead to recovery of any incriminating article---Only incriminating evidence produced by prosecution against accused was extra judicial confession allegedly made by two accused persons before prosecution witnesses---None of prosecution witnesses before whom extra-judicial confession was allegedly made by accused, apprehended accused at the spot and none of them informed the police on that very day about that incident---Statements of prosecution witnesses with regard to extra- judicial confession of accused were not worthy of any credence---Even otherwise extra judicial confession was a very..Weak type of evidence--- Prosecution having not been able to prove its case against accused, convictions and sentences awarded to them by Trial Court, were set aside and accused were ordered to be released.
21. [pp. 2178, 2179] A & E
(b) Qanun-e-Shahadat (10 of 1984)--- ----Art. 3 7---Extra-judicial confession--- Evidentiary value---Extra-judicial confession is a very weak type of evidence. [pp. 2178, 2179] B & C Sarfraz Khan v. The State and 2 others 1996 SCMR 188; Gul Muhammad v. The State PLD 1958 (W.P.)
22. Kar. 133; of Muhammad Riaz and 3 others v. The State PLD 1994 Pesh. 102 and Khubaib Ahmad v. The State 1992 SCMR 398 ref.
(c) Penal Code (XLV of 1860)--- ----Ss. 302/324/34---Appreciation of evidence---If there was no other evidence like last seen, recovery of deed body on pointation of accused, or recovery of any incriminating article on pointation of accused, case of prosecution would fail. [p. 2179] D Ch. Nazir Ahmad for Appellant (at State expenses).
23. A.H. Masood for the State.
24. Date of hearing: 15th April, 2002.
25. ' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,34/J of 1999, 38/J and 41/J of 1999, directed against the judgment dated 20-2-1999 passed by the Judge, Special Court, Gujranwala, whereby he convicted all the appellants under section 302/34, P.P.C. And sentenced them to death sentence. They were also convicted under section 324/34, P.P.C. To undergo 10 years' R.I. On each count. Under section 3 of Explosive Substances Act, 1908 they were sentenced to life imprisonment on each count and under section 4 of the said Act they were sentenced to undergo 7 years' R.I. Each. All the sentences were ordered to run concurrently.
2. The facts of the case in brief as narrated by the complainant through Exh.P.A. Are that the complainant Muhammad Javid was standing in front of his shop at about 6-19 p.m. After hearing voice of Bomb blast. All of a sudden another bomb blast took place in the shop of Muhammad Hayat and smoke spread all over there. Shops of the complainant and Muhammad Hayat fell down and it created panic among the people in Main Bazar Kamoke. As a result of bomb blast Muhammad Asghar, Shahzad Javed, Muhammad Ar;f, Irfan, Muhammad Latif, Arif, Bashir Ahmad, Munawar Bibi, Amjid, Saeed Ishtique, Tariq, Ikram, Zahid, Ulfat Shahzadi, Muhammad Afzal Shahid, Amjid Ali, Rashid, Muhammad Hussain, Tahira Munir and Muhammad Akhtar received injuries.
26. Muhammad Akhtar after receiving serious injuries was removed to Hospital. The matter was reported to the police.
3. The local police after receiving information about the occurrence completed all the necessary formalities and Muhammad Nawaz, S.I. Alongwith his subordinates proceeded to the spot and he prepared rough site plan Exh.P.T. He also took into possession the blood-stained earth from the place where dead body of Irfan was lying vide memo. Exh.P.D. He also took into possession the blood-stained earth from the place where dead body of Muhammad Shahid was lying vide memo.
27. Exh.P.E. He al so received last-worn clothes of Irfan which were stained with blood vide memo.
28. Exh.P.B. And last-worn clothes of Muhammad Shahid were also taken into possession through memo. Exh.P.C. By him. He also prepared inquest reports Exh.P.U. And Exh.P.V. In respect of Shahid and Irfan respectively. Photographs of all the injured were taken by the Investigating Officer. The challan of the case against the appellants/accused after investigation was. Prepared by the local police and the same was submitted for trial.
4. The prosecution in order to prove its case has produced as many as 27 witnesses including Investigating Officer, eyewitnesses, Doctor and other relevant persons. After tendering in evidencF reports of Chemical Examiner Exh .P.T . Exh. P. I J. And those of Serologist Exh.P.V. And Exh.P.W.
29. Learned D.A./S.P.P. Closed the prosecution evidence. Thereafter, statements of all the appellants were recorded under section 342, Cr.P.C. In which they pleaded not guilty and claimed to be tried.
5. Learned counsel for the appellants in support of this appeal submit that appellants are not named in the F.I.R. Nor their descriptions were given in the F.I.R. No identification parade was held in this case, that although, there were 21 injured P.Ws. But 14 have appeared before the trial Court and none of them took the name of any appellant. Nobody even identified the appellants in the Court, that both the witnesses of extra-judicial confession are Muhammad Ashraf P.W.24 and Muhammad Ishaque P.W.27. According to their statements the extra-judicial confession was made 13y lqbal and Iftikhar alias Khari accused before them separately on separate dates and except that there is not an iota of evidence to connect the appellants to the instant crime and that no reliance car pureed on these witnesses for maintaining the conviction and sentence awarded to the appellants.
6. On the other hand learned State Counsel submits that except extra-judicial confession there is no other evidence on record. He has halfheartedly supported the judgment of the trial Court.
7. We have heard the learned counsel for the parties and also have gone through the record available on the record. In the instant case occurrence had taken place on 10-6-1996 at 6-10 p.m., matter was reported to the police by Muhammad Javaid P.W.16 on the same day at 6-40 p.m.
30. There were two deceased persons namely Irfan and Muhammad Shahid and 21 injured P.Ws. But neither any accused was named in the F.I.R. Nor description of any accused was given in the F.I.R.
31. After the arrest of the accused no accused was put to the identification parade. Fourteen eye- witnesses have appeared in the trial Court but in their statements they have not stated a single word against the appellants. They even did not identify the appellants before the trial Court.
32. Appellants did not lead to the recovery of any incriminating article. The only incriminating evidence produced by the prosecution against the appellants was statement of Muhammad Ashraf and Muhammad Ishaque P.W.24 and P.W.27 respectively who had stated that Iqbal accused had made extra-judicial confession before Muhammad Ashraf while Iftikhar alias Khari accused had made confession before Muhammad Ishaque P.W. After the extrajudicial confession was made before these two P.Ws. None of them apprehended the accused an at the spot d even none of them informed the police on that very day about this fact. They did not even inform the police to get them arrested in the instant case. Their statements are not worthy of any credence. Even this Court and the Honourable Supreme Court have held that extra-judicial confession is a very weak type of evidence. In this regard we would like to mention here the headnote "A" of a judgment from the Honourable Supreme Court i,e, 1996 SCMR 188 titled as Sarfraz Khan v. The State and 2 others which is reproduced below:-- "----Art. 37---Confession---Extra- judicial confession is a weak type of evidence which can easily be procured whenever direct evidence of the crime is not available and the Courts, therefore, while placing reliance on it have emphasized the use of utmost care and caution."
33. ' Similarly headnote "A" of Gul Muhammad v. The State PLD 1958 (W.P.) Kar. 133 is also reproduced below:-- "Confession--- Extra-judicial--- At best a weak piece of evidence---Must create belief that it was made and was true, before it could be made sole basis of conviction."
34. ' Then there is headnote "H" of PLD 1994 Pesh. 102 titled as Muhammad Riaz and 3 others v. The State. The same is also reproduced below:-- "----S. 164---Confession implicating other accused Confessional statement alone cannot from sole basis for conviction of other co-accused, moreso when the same is tainted with doubt as to its voluntary nature and veracity of other details mentioned therein."
35. ' Even in headnote "C" of 1992 SCMR 398 titled as Khubaib Ahmad v. The State same is given asunder:-- "(c) Confession---In a case punishable with death as Qisas extra-judicial confession, held was no evidence."
36. The abovesaid judgments would show that extra-judicial confession had always been treated as very weak type of evidence and when there is no other evidence like last-seen, recovery of the dead body on the pointation of the appellants, recovery of any incriminating article on the pointation of the appellants which are lacking in the instant case, case of the prosecution fails miserably.
8. After hearing the learned counsel for the parties and going through the evidence recorded by the learned trial Court, we are of the considered opinion that prosecution has not been able to prove its case against the appellants. In this view of the matter, the appeals filed by the appellants are, accepted and convictions and sentences awarded to them are set aside. Murder Reference is replied in the negative. The appellants are behind the bars. They are ordered to be released forthwith if they are not required in any other case.
37. Death sentence is not confirmed.