' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,748 of 2002 filed by Muhammad Nawaz, appellant and Criminal Appeal No,110/J of 2002 filed by Nabi Ahmad and Shafique, appellants who were convicted and sentenced by learned Judge Anti-Terrorism Court No,1, Lahore vide judgment dated 16-42002 as under:-- ' Death and to pay compensation of Rs,One lac each, in default R.I. For six months under section 302/34, P.P.C. And ' Three years' R.I. Each under section 411, P. P. C . With the benefit of section 382-B, Cr.P.C.
' Murder Reference No,32-T of 2002, for confirmation or otherwise of death shall also be replied through this single judgment.
2. Occurrence in this case had taken place at unknown time and date while the matter was reported by Muhammad Ashraf, Incharge Police Post Marh Balochan at 3-30 p.m. On 12-12-1999 and the formal F.I.R. Exh.P.G./2 was recorded by Muhammad Siddique, A.S.-I.
3. Briefly stated the facts of the case are that Muhammad Ashraf S.-I. Alongwith other Police Officials while on patrol duty when reached at 6-30 p.m. On the bank of Saim Nala, they saw a car bearing Registration No,SGF/7344 standing and on the checking of the same, a dead body was found lying on the pillion seat. From the personal search of the deceased a Driving Licence alongwith a letter in the name of Muhammad Walayat, A.S.-I. Were recovered. It was alleged that the deceased was done to death due to some enmity with fire-arm.
4. Investigation of the case was taken over by Muhammad Ashraf, S.I. He prepared the inquest report Exh.P.J., injury statement Exh.P.J./1, took into possession the car in which the dead body of the deceased was lying vide memo. Exh.P.B., Driving License and a letter recovered from the personal search of the deceased were taken into possession vide memo. Exh.P.A., rough site-plan Exh.P.J./3 was also prepared by the Investigating Officer, the investigation was also partly conducted by Abdur Rashid, Inspector (P.W.12), he arrested Shafique and Nabi Ahmad accused on 21-5-2000, on the personals search of Shafique accused, a revolver was secured vide memo: Exh.P.L., similarly from the personal search of Nabi Ahmad accused, a ring P.10 was recovered and taken into possession vide memo. Exh.P.K., Ghulam Nabi, S.-I. (P.W.13) recorded the statements of witnesses of extrajudicial confession and Muhammad Shafique, S.-I. (P.W.14) also carried out investigation.
However, after completion of investigation, all the four accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 14 witnesses in all. Then the learned PP tendered in evidence report of the Chemical Examiner Exh.P.M. And closed the case of prosecution. After that, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. However, after conclusion of the trial, Sarfraz accused was acquitted while the remaining three accused were convicted and sentenced as stated above.
6. Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submits that there being no eye-witness in this case, it was an unwitnessed occurrence. Further submits that only evidence against Muhammad Nawaz appellant is that of extra-judicial confession which was allegedly, made before Bashir Ahmad P.W.6 at a belated stage and that no other accused had made extra-judicial confession. Adds that extrajudicial confession made by an accused cannot be used against his co-accused as provided in Islamic Laws. Further adds that even according to extra-judicial confession made by Muhammad Nawaz, appellant, Shafique appellant did not fire at the deceased at the time of occurrence. According to learned counsel for the appellants, it was a case of circumstantial evidence and in a case of such nature, every chain should be linked with each other. It is submitted that recovery of pistol does not connect the appellants with the murder of the deceased. The recovery of ring from Nabi Ahmad appellant, according to learned counsel is planted one because according to Dr. Muhammad Maqsood Sain (P.W.3) who conducted post-mortem examination on the dead body of Walayat deceased had stated that after said examination, he handed over a ring of the deceased to the Police but no recovery memo. Was prepared by the Investigating Officer.
Further submits that recovery of Police Card and NIC on the pointation of the appellant near from the Saim Nala is not believable because those were not of precious quality and there was no need on the part of the appellants to have concealed the same. Concluding his submissions, learned counsel submits that prosecution has miserably failed to prove its case against the appellants and they are entitled to acquittal.
7. On the other hand, learned Assistant Advocate-General assisted by learned counsel for the complainant submits that there is extra-judicial confession made before Bashir Ahmad P.W.6 who is an independent witness and had no enmity whatsoever against the appellants. Further submits that confession was made on 6th and 7th May, 2000, it was reported to the Police on 17-5-2000, that is prior to arrest of the accused persons, so the confession rings true. Adds that confession is corroborated from the recoveries and that P.W.8 Muhammad Abdullah A.S.-I. Has proved that the pistol recovered on pointation of one of the appellant was issued to the deceased on 7-10-1998 by him as he was Moharrar of the Malkhana of Police Lines, Hafizabad. Further adds that the appellants are persons of desperate character and many cases were registered against them prior to the instant one. The duty of patrolling was being done by the deceased under the order of the SDPO. Both the learned counsel support judgment of the trial Court. Learned counsel for the complainant has however, relied upon PLD 1972 Supreme Court 363.
8. We have heard learned counsel for the parties and have gone through the record. In the instant case, the F.I.R. Was lodged by Muhammad Ashraf, S.-I. Incharge Police Post Marh Balochan on 12- 12-1999 for the murder of Walayat, A.S.-I., the deceased. For the just decision of this case, the dates are of great importance. The extrajudicial confession was made by Nawaz appellant before Bashir Ahmad P.W.6 on 6th or 7th of May, 2000. F.i.R. Was recorded on 12-12-1999. The post-mortem on the dead body of the deceased was conducted on 13-12-1999. According to P.W.6 only confession was made by Nawaz though he was accompanied by other accused. According to the statement of Bashir Ahmad, P.W.6, Muhammad Nawaz alongwith his co-accused admitted to have committed the murder of the deceased 10/15 days prior to making of the confession. If the statement of Bashir Ahmad is believed, then the deceased was murdered on 25th or 26th April, 2000 while the matter with regard to death of the deceased had already been reported to the Police on 12-12-1999 and the post-mortem was conducted on 13-12-1999, that is, four months prior to making of extra- judicial confession, so the story of the prosecution that Muhammad Nawaz appellant stated before Bashir P.W.6 that he alongwith other accused committed murder of the deceased 10/15 days prior to 6th or 7th of May, 2000 is totally false. Even Bashir Ahmad P.W.6 did not report the matter to the Police till 17-5-2000. He even did not bring this fact to the notice of the complainant party till 18-5- 2000. This witness has also admitted during cross-examination:-- "It is correct that, I am often called at the P.S. By the Police when any occurrence takes place."
' Apart from this there was no need on the part of Nawaz, appellant to have made confession before Bashir Ahmad. P.W.6 because he was neither related to the complainant nor was person in authority.
' The other evidence against Nawaz appellant is that of the recovery of purse, Police Identity Card and NIC near from Saim Nala. The first question arises that those were not such articles which ought to be concealed or kept by the accused. Moreover the Saim Nala was adjacent to the place of recovery of the said articles, so the same could have been easily thrown in the said Nala. The recovery of ring belonging to the deceased from one of the appellants is also of no avail to the prosecution because at the time of conducting post-mortem examination on the dead body of the deceased had handed over a ring to the Police but the same was never taken into possession by the police and later on the same was planted upon the appellant. The recovery of revolver on the pointation of the appellant does not connect the accused with the commission of offence.
' It is a case of circumstantial evidence. In a case of such nature, chain should be linked in such a manner that it could lead the Court to the only conclusion that it was the person/s charged who had committed the offence but this important fact is missing in the instant case.
' After having analyzed the entire prosecution case in the light of evidence on record and hearing the submissions made by learned counsel for both the sides, we are of the considered opinion that the prosecution has not been able to prove its case against the appellants beyond any shadow of doubt rather the defence has been able to create dents in the prosecution story. So, while extending the benefit of dents in the prosecution story, we accept the appeals, set aside the conviction and sentence recorded against the appellants by the trial Court and acquits them of the charge. The death sentence of all the three appellants is NOT confirmed and Murder Reference is replied in the NEGATIVE. All the appellants are in jail. They shall be released forthwith, if not required to be detained in any other case.