' This judgment will dispose of Criminal Appeal No,137-J of 2002 filed by Sikandar Hayat, appellant through jail who was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life for the murder of Allah Yar, Muhammad Azam and Mst. Zarina with further direction to pay Rs,2,00,000 to legal heirs of the deceased, to be distributed equally amongst them, in default six months' R.I. With the benefit of section 382-B, Cr.P.C. The conviction and sentence was recorded by learned Additional Sessions Judge, Sargodha vide judgment dated 23-1-2001.
' Criminal Revision No,118 of 2001 filed by the complainant for enhancement of sentence of the convict shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that on 8-9-1998 at about 6-45 a.m., Iftikhar Ahmad complainant alongwith Mumtaz came at his Dera as usual to water his sugarcane crop and saw that tubewell was not working unusually. Allah Yar servant of the complainant was sleeping outside the house attached with the tubewell. When the complainant went near him to awake him, he saw that a lot of blood was lying under his cot and he was wrapped in a Chaddar. Mumtaz unlocked the door of the house and saw that Muhammad Azam and Mst. Zarina wife Of Azam had also been murdered on their cots separately. It was alleged that some unknown assailants have murdered all the three persons mentioned above on the preceding night by cutting their throats with sharp- edged weapon. On hue and cry of the complainant and Mumtaz, Muhammad Nawaz and Syed Aamer Mustafa attracted towards the spot.
3. Investigation of the case was taken over by Manzoor Hussain A.S.-I. (P.W.12). He, after recording of the formal F.I.R., went to the place of occurrence and found the dead bodies of Allah Yar, Muhammad Azam and Mst. Zarina Bibi. The Investigating Officer prepared injury statement Exh.P.E./2 and inquest report Exh.P.E./3 in respect of dead body of Allah Yar; similarly injury statement P.F.2 and inquest report P.F.3 of Muhammad Azam were prepared and the P.W. Also prepared injury statement Exh.P.D.3 and inquest report Exh.P.D.4 in respect of dead body of Mst.
Zaripa. Blood-stained earth was taken into possession from different three places vide memos.
Exhs.P.J., P.K. And P.H. The rough site-plan Exh.P.M. Of the place of occurrence was prepared by the said witness. Supplementary statements of the complainant and other witnesses were also recorded. The investigation was then taken over by Muhammad Safdar, A.S.-I. (P.W.11). The accused Sikandar Hayat was arrested by the Police of Police Station Malakwal on 11-1-2000 and on the same day he was formally arrested in this case. On 21-1-2000, the accused while in custody led to the recovery of Chhurri P.13 which was taken into possession vide memo. Exh.P.G. After completion of the remaining formal investigation the accused was challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 15 witnesses in all. Then the learned D.D.A. Tendered in evidence report of the Chemical Examiner Exh.P.W., P.O. And P.P., and those of the Serologist Exh.P.R. And P.S. And after that the evidence of prosecution was closed. Thereafter, statement of the appellant was recorded under section 342, Cr.P.C. In which he pleaded false implication. After conclusion of the trial, the appellant was convicted and sentenced as stated above.
5. Learned counsel for the appellant in support of this appeal submits that there being no eye- witness, it was an unwitnessed occurrence; the only evidence against the appellant is that of extrajudicial confession which is very weak type of evidence; the weapon of offence namely Chhurri was allegedly recovered on the pointation of the appellant after more than 2 years of the occurrence and that too was not found to be stained with human blood; the story of the prosecution is improbable and does not appeal to reasons; merely on the basis of abscondence, conviction on a capital charge can neither be awarded nor maintained and that in nutshell the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
6. Learned counsel for the State is not in a position to rebut the submissions made by learned counsel for the appellant. However, learned counsel for the complainant who has also filed criminal revision for enhancement of sentence of the convict appellant opposes the submissions made by learned counsel for the appellant. He submits that in the instant case, three innocent persons were killed by the appellant; ocular account is fully corroborated by medical evidence and the recovery of Chhurri on the pointation of appellant; there is evidence of extra-judicial confession which is corroborated by long abscondence of the appellant and that in fact the prosecution has established its case to its hilt rather sentence of the convict appellant may be enhanced.
7. I have heard learned counsel for the parties and have gone through the record with their able assistance. It is correct that three persons have been murdered in this case but all the same the Court has to see whether evidence is of such quality that it could lead the Court to the only conclusion that it is the persons charged with the offence, who is the actual culprit. The three deceased namely Allah Ditta, Muhammad Azam and Mst. Zarina Bibi had received injuries with sharp-edged weapon. It is not possible for an accused to commit the murder of three persons alone because it is natural that the first deceased after receipt,of injuries with Churri would raise hue and cry and on his hue and cry the other deceased who were sleeping would not wake up. The story of the prosecution that the appellant all alone committed the murder of three persons seems to be unnatural and unconvincing.
' The evidence of extra-judicial confession was furnished by Zafar Iqbal and Burkhudar, P.Ws. 5 and 6 respectively. According to testimony of these two witnesses, the appellant made extra judicial confession before them one and three months after the occurrence in which he stated that before killing the deceased he had given them intoxicant so that they could not resist. No poison was detected as a result of the post-mortem examination conducted on the dead bodies of three deceased. This non-detection of any poison from the dead bodies of the deceased demolishes the case of the prosecution. Barkhudar P.W.6 was related to Muhammad Azam one of the deceased.
Both the witnesses of extra judicial confession did not apprehend the appellant at the time of making confession before them when he was also empty-handed. Both these witnesses neither informed the Police nor the complainant on the same day but they appeared before the Police on the next day. Apart from the facts of the instant case, the evidence of extra-judicial confession is always considered to be a weak type of evidence as has been ruled out by this Court as well as the Hon'ble Apex Court.
' The Chhurri allegedly recovered on the pointation of the appellant was not stained with human blood according, to report of the Serologist.
' Abscondence of the appellant was also not proved on record because Ibrar-ul-Hassan, S.-I.
(P.W.13) had admitted during cross- E examination that there are no papers whatsoever on record in the shape of warrants under sections 87 and 88, Cr.P.C. Or the proclamation. Even otherwise, mere abscondence is no ground to award or maintain the conviction. Reliance can be placed upon 1998 SCMR 198.
' Having heard learned counsel for the parties, attending to the submissions made by the learned counsel for the respective side and the evidence brought on record, I am of the considered view that there are dents in the prosecution story, the benefit of which has to be extended to an accused not as a grace but as a matter of right. By extending the said benefit, I accept the appeal filed by the convict appellant and set aside the conviction and sentence recorded against him by the trial Court. The appellant is acquitted of the charge. He is in jail and shall be released forthwith, if not required to be detained in any other case.
' Criminal Revision No,118 of 2002, filed by the complainant is dismissed.