' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 1324 of 1999 filed by Zafar Iqbal, Haq Nawaz and Muhammad Saleem, appellants who were convicted and sentenced by Special Judge Anti-Terrorism Court, Sargodha vide judgment dated 16-12-1999 as under: ' Death with a fine of Rs, one lac each in default 10 years' R.I. Under sections 302 and 34 P.P.C. And 14 years' R.I. With a fine of Rs,10,000 each in default three months' R.I. Under sections 392 and 34 P.P.C.
' Murder Reference No, 44/T of 2000 for confirmation of death sentence or otherwise shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at unknown time and date at a distance of 20 kilometers from Police Station Nowshera District Khushab while the matter was reported by Mst.
Ghulam Fatima at 3 p.m. On 2-5-1995 and the formal F.I.R. Exh.P.M was recorded by SI/SHO.
3. Briefly stated the facts of the case are that Mst. Ghulam Fatima, the complainant is widow of Muhammad Ashraf deceased. She alleged in the F.I.R. That at 7 p.m. On. 1-5-1999 her husband Muhammad Ashraf (deceased) went to PAF Base Sakesar on a motorcycle to sell the milk but did not return back till late night when at mid-night Nazar Muhammad son of Sultan, driver informed her that her husband along with motorcycle was lying dead in between Sakesar and Phulwari Road. Upon this, the complainant alongwith Mumtaz Ahmad Khan, Fateh Sher and Khuda Bukhsh went to the place on a vehicle where the dead body was lying. The dead body was having fire-arm injuries on mouth and abdomen. The .Complainant left Fateh Sher and Khuda Bukhsh to safeguard the dead body and went to the police station along with Mumtaz Ahmad Khan, Lambardar. She stated in the F.I.R. That she neither had only suspicion on anybody nor her husband had any enmity with anyone. .4. After registration of the formal F.I.R., Jehan Khan S.I. (P.W.15) proceeded to the place of occurrence where the dead body of Muhammad Ashraf (deceased) was lying, prepared the injury statement Exh.P.H, inquest report Exh.P.I, inspected the spot, took into possession blood-stained earth vide memo. Exh.P.C, also secured three crime empties vide memo. Exh.P.D, also prepared the site plan with scale Exh.P.N, on 6-5-1999, the I.O. Recorded the statements of Muhammad Sharif and Allah Bukhsh, P.W.s, also recorded the statements of Dost Muhammad and Mian Muhammad Ramzan P.Ws. On 8-5-1999, on 14-5-1999 got prepared the site plan from the Patwari and on 17-5- 1999, Zafar Iqbal, Haq Nawaz and Muhammad Saleem accused were arrested, Zafar Iqbal accused during the interrogation led to the recovery, of double barrel gun P.14, along with ,five live cartridges P. 15/1-5, handkerchief P. 16, I.D Card P. 17 and cash amount of Rs,3,000 which were taken into possession vide memo. Exh.P.J. On the same day Haq Nawaz, accused while in custody led to the recovery of gun P. 19 along with three live cartridges P. 20/ 1-3, cash of Rs,35,000 which were secured vide memo. Exh.P.K. Similarly, on the same day, Muhammad Saleem accused got recovered revolver P. 23, bullets and Rs,2,300 and driving license of the deceased which were taken into possession vide memo. Exh.P.L.After completion of the remaining formal investigation, all the three accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 15 witnesses in all, then the learned PP tendered in evidence report of the Chemical Examiner Exh.P.0 , report of the Serologist Exh.P.Q and closed the prosecution case. Thereafter, statements of the accused were recorded under section 342, Cr. P.0 in which they pleaded innocence and claimed false implication.
6. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.0 and other relevant material available on record, learned counsel for the appellants submits that the appellants were not named in the F.I.R., it was an un-witnessed occurrence, it was a case of joint extrajudicial confession, there is conflict between extra-judicial confession and the medical evidence, conduct of the P.Ws. At the time when they were making the extra-judicial confession is unnatural, so far as witnesses of wajtakar are concerned, their statements were recorded with an inordinate. Delay without any proper explanation and that the recoveries are planted upon them. Further submit that the 'articles allegedly recovered from the appellant belonging to the deceased such as handkerchief and NIC etc, are of not much value which the appellants would keep with them even for 23 days after the occurrence. Adds that the recoveries of firearms from the appellants is of no avail because there is no report of the fire-arms Expert on record. Concluding the submissions, learned counsel for the appellants submit that the prosecution has failed to prove its case against the appellants and-the appellants are entitled to acquittal.
7. Learned counsel for the State supports the judgment of the learned trial Court and submits that the prosecution has proved its case against the appellants through extra-judicial confession and the evidence of wajtakar.
8. We have heard learned counsel for the parties and have gone through the record with their able assistance. In the instant case, the prosecution has produced three types of evidence, namely, extra-judicial confession furnished by Dost Muhammad and Mian Raman, P.Ws. 10 and 11, evidence of wajtakar provided by Noor Sultan and Muhammad Sharif, P.Ws. 7 and 9 respectively and the evidence of recovery witnessed by Nazar Muhammad A.S.I. And Rehan Khan S.I., P.Ws. 13 and 15. The public witness was given up by the prosecution.
9. F.I.R. In the instant case was lodged by Mst. Ghulam Fatima, widow of the deceased. According to F.I.R., nobody had seen the deceased being murdered by anybody. Nobody was named in the F.I.R..
The complainant was informed by Nazar Muhammad about presence of dead body of the deceased along with the motorcycle. The deceased, according to F.I.R. Had fire-arm injuries on his mouth and abdomen. She (complainant) stated in the F.I.R. That she had no suspicion against anybody and that her husband had no enmity with anyone. During the course of investigation and after recording of extra-judicial confession, appellants were arrested on 17-5-1999 by Jehan Khan SI(P.W.15). The most important evidence, according to prosecution, was that of extrajudicial confession. The witnesses of extrajudicial confession are Dost Muhammad and Mian Ramzan P.W.10 and 11. Mian Ramzan (P.W.I1) was related to the deceased and the complainant/party because niece of the deceased was married to his brother Sher Khan. A perusal of the statements of P.Ws.10 and 11 recorded by the Police under section 161, Cr. P.C. Exh.D.0 and Exh.D.D shows that it was a joint extra- judicial confession. Before the learned trial Court, both these witnesses tried to make it purely a extra-judicial confession and not joint. Both were duly confronted with their statements Exh.D.0 and Exh.D.D. Mian Ramzan (P.W.11) had made another improvement by stating that the accused had also told them during the extra-judicial confession that they had also committed dacoity on the person of the deceased which fact does not find mention in the statement of Dost Muhammad (P.W.10). The conduct of both the witnesses of extra-judicial confession was unnatural because they did not apprehend the accused and produced them before the Police. It may also be noted that according to the statements of Dost Muhammad before the learned trial Court, three shots were fired on the body of the deceased Muhammad Ashraf, one fire was shot by Zafar Iqbal which hit Muhammad Ashraf deceased and then two fires were shot by Haq Nawaz with his gun while Muhammad Saleem who was armed with a pistol remained present at the spot. To the same effect was the statement of Mian Ramzan P.W.11 but the statements of both these P.Ws. Are in clear conflict with the medical evidence because according to doctor (P.W.12) who conducted post- mortem examination on the dead body of the deceased at 8-30 p.m on 2-5-1999 there were only one fire arm injury on the person of the deceased while the remaining injuries were with blunt weapon. So, the most important piece of evidence with the prosecution that is extrajudicial confession is belied/contradicted by the medical evidence. Even otherwise, statement of Dost Muhammad (P.W.10) was recorded by the Police 7/8 days after confession of the accused.
Similarly, statement of Mian Ramzan (P.W.11) was recorded by the Police 3 days after the extrajudicial confession. So, we do not believe the extra-judicial confession being in-admissible in evidence and also being in conflict with the medical evidence.
10. Now, we take up the evidence of wajtakar. In this regard, two witnesses, namely, Noor Sultan and Muhammad Sharif, P.Ws. 7 and 9. According to Muhammad Sharif, P.W., 7 he alongwith Allah Bukhsh was returning from Sakesar and when reached on Sakesar road in front of Stage No, 4 they saw Zafar Iqbal and Haq Nawaz accused armed with shotguns while Muhammad Saleem armed with pistol coming from the spot where later on it was found that Muhammad Ashraf had been killed.
On the questioning of this P.W., the accused did not reply in a reasonable manner. Later on, the P.W.
Came to know that Muhammad Ashraf had been killed at a place where the accused were coming. During the cross-examination, this witness admitted that his house is at a distance of 15 kilometers from the place of occurrence. He also admitted that there is a check post at Bouring and nobody can go to the Air Base without the entry card issued by the Base authorities He also admitted that Allah Bukhsh did not possess the gate pass. This witness was confronted with his statement Exh.P.B. He admitted that house of Muhammad Saleem appellant was at a distance of 3 kilometers and that, of Haq Nawaz accused was at a distance of 30/35 kilometers. This witness further admitted that he kept mum till 6-5-1999 and when his conscious pricked then he made statement before the Police. According to this witness, he had gone to jungle on that night in search of his missing camel. He even did not give the time when he saw the three accused persons on 1-54999. Above all, this witness did not see the deceased in the company of the accused so, he cannot be termed as a witness of wajtakar. Then there is statement of Noor Sultan P.W.7. He stated before the learned trial Court that at about 8 p.m. On 1-5-1999 he went to the shop of Muhammad Sial at PAF Base Sakesar to purchase some articles. In his presence and also in the presence of Zafar Iqbal, Haq Nawaz and Muhammad Saleem accused, Muhammad Sial shopkeeper made payment of Rs,9,500 for supply of milk to him to Muhammad Ashraf deceased. This witness further stated that Zafar Iqbal was wearing a mufflor which he identified later on when he came to know that Muhammad Ashraf had been murdered. The important witness in this case should have been Muhammad Sial shopkeeper who had paid Rs,9,500 to Muhammad Ashraf deceased but he was never produced by the prosecution. Merely seeing the accused persons at the shop of Muhammad Sial at the time when he was getting Rs,95,000 from Sial cannot connect the appellants with the commission of the offence.
' Next are recoveries. So far as recovery of fire-arms from appellant are concerned, since there is no report of the Fire Arms Expert on record, so the same is of no help to the prosecution. The recovery of handkerchief, national Identity Card, civilian card belonging to Muhammad Ashraf deceased is concerned, in our view those are of no such importance that the accused would keep the same with them after 23 days of the occurrence. Further the same were not mentioned in the F.I.R. By the complainant. As far as recovery of cash amount from the appellant is concerned, it has got no evidentiary value for the reason that the currency notes had no special features to show that those were the same currency notes which were handed over to Muhammad Ashraf deceased by Muhammad Sial shopkeeper and above this, Muhammad Sial has not been produced by the prosecution.
In our view, in fact it was an un witnessed occurrence. The case is based on circumstantial evidence. Even the dead body was not recovered on the pointation of the appellants. Had the appellants killed the deceased with the intention to commit a dacoity, they must have taken the motorcycle alongwith them but the same was taken into possession by the Police from near the dead body of the deceased. There is clear cut conflict between the extra-judicial confession and the Medical evidence. Recoveries are of no significance in the absence of report of the fire-arms Expert. The evidence of wajtakar we have disbelieved.
' As a consequence of the above discussion we are of the considered opinion that the prosecution has failed to prove its case against the appellants rather the appellants have been able to create dents in the prosecution story. The benefit of dents/doubts has to be extended ungrudgingly to the accused. Applying the same principle, appeal filed by three appellants is accepted, conviction and sentence recorded against them by the learned trial Court is set aside. All the three appellants are in jail. They shall be released forthwith, if not required to be detained in any other case. The death sentences of the appellant is not confirmed. Murder Reference is replied in the negative.