' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,538 of 1998 and Criminal Appeal No,593 of 1998 filed by Muhammad Jameel and Nadeem Ahmad appellants, who were convicted and sentenced by learned Additional Sessions Judge, Lahore vide judgment dated 1-6-1998 as under:-- Muhammad Death under sections 302(b)/34, Muhammad JameelDeath under sections 302(6)/34, P.P.C. with further direction to pay Rs.25,000 as compensation, in default six months' R.I.
Five years' R.I. and to pay a fine of Rs.5,000 and in default 3 months' R.I. under sections 452/34, P.P.C.
Five years' R.I. and to pay a fine of Rs.5,000, in default three months' R.I. under sections 392/34, P.P.C.
Three years' R.I. under section 411, P. P. C.
Nadeem alias DeemaImprisonment for life and to any compensation to the tune of Rs.25,000 in default six months' R.I. under sections 302(6)/34, P.P.C.
Five years' R.I. and to pay a fine of Rs.5,000 each and in default 3 months' R.I. under sections 452/34, P. P: C.
Five years' R.I. and to pay a fine of Rs.5,000 each, in default 3 months' R.I. under sections 392/34, P.P.C.
Three years' R.I. under section 411, P. P. C.
' Murder Reference No,267 of 1998 for confirmation or otherwise of death sentence of Muhammad Jameel appellant shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 11-30 p.m. On 23-5-1995 while the matter was reported to the police at 1-30 p.m. On the same day by Lal Khan at Katchi Abadi Railway Colony through written complaint Exh.P.A. While the formal F.I.R. Exh.P.A./1 was recorded by Muhammad Younas, S.-I.
3. Briefly stated the facts of the case are that Lal Khan complainant was present on his duty when at 11-30 a.m., his wife informed him on telephone that some unknown persons had committed the murder of his son Javed Mahmood aged 23 years while trespassing in his house. On receiving this information, the complainant, reached home, his son was lying dead in his bed room, his neck was cut by a sharp-edged weapon, a string was lying around his neck and large quantity of blood was lying on his head. On checking, the complainant also found missing cash Rs,5,000 prize bonds in the sum of Rs,10,000 and including two gold lockets.
4. Investigation of the case was taken over by Inspector, Naveed Saeed (P.W.8). He after receipt of information reached at the spot, the complainant appeared before him, got recorded his statement Exh.P.A., then he inspected the place of occurrence, took into possession the dead body of the deceased, prepared inquest report Exh.P.O. And took into possession the blood-stained earth vide memo. Exh.P.H. Later on the investigation was conducted by Karamat Ali Bhatti, S.-I. (P.W.7). He, on 18-6-1995 apprehended the accused. Muhammad Jameel accused while in custody led to the recovery of golden ornaments, cash, prize bonds, watches which were secured vide memo. Exh.P.J.
Nadeem also got recovered golden ornaments and watches etc. Which were taken into possession vide memo. Exh.P.L. Similarly, Naveed also got recovered golden ornaments, watches, prize bonds etc. Which were secured vide memo. Exh.P.K. Nadeem accused also got recovered Chhurri P.11 that was taken into possession vide Exh.P.N. After completion of the remaining formalities, all the three accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 18 witnesses in all. Then the learned D.D.A. Tendered in evidence report of the Chemical Examiner. Statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. After conclusion of the trial; all the three accused were convicted and sentenced as stated above.
6. Learned counsel for Muhammad Jameel, appellant submits that appellant having born on 10-5- 1980 and the occurrence having taken place on 23-5-1995, he was less than 16 years of age.
Further submits that no body was named in the F.I.R., it was an unwitnessed occurrence, the alleged extra-judicial confession being joint one is not admissible in evidence and that the witness of last seen namely Abdul Razzaq belongs to Chakwal and his statement is not trustworthy because he did not narrate either to the complainant or his wife on the day of occurrence that he had seen the accused Jameel, Nadeem and Naveed while scaling over the wall of house of the deceased. So far as recoveries are concerned, according to learned counsel, those are planted one. Concluding his submissions, learned counsel submits that there is no legal evidence on record to maintain the conviction and sentence recorded against the appellant.
7. Learned counsel for the complainant has drawn our attention to page 94 of the paper book to submit that Jameel appellant was arrested on 18-6-1995. Further submits that articles recovered on the pointation of the appellants were mixed up with the other articles and even then were identified by the complainant. Adds that there was no reason on the part of the P.Ws. To falsely depose against the appellants. According to learned counsel, extra-judicial confession was not joint one rather it was made separately. Learned counsel submits that " {{URDU TEXT}}" does not mean that the confession was joint one. Learned counsel submits that Razzaq was an independent witness and he had seen the accused scaling over the wall of house of the deceased and that recoveries of stolen articles were effected from them. Further submits that accused have not produced any defence and it is not a case of false implication. In support of his submissions, learned counsel has relied upon 1991 PCr.LJ 113 and 2000 PCr.LJ (sic).
8. Learned counsel for the State submits that in a case of circumstantial evidence, one end of the chain should touch the neck of the accused while the other the grave of the deceased. Further submits that supplementary statement of the complainant is not admissible in evidence In fact, learned counsel for the State is hesitant in stating whether the prosecution has proved its case against the appellants or not.
9. We have heard learned counsel for the parties and have gone through the evidence on record.
Three accused namely Muhammad Jameel, Nadeem alias Deema and Naveed were tried by the learned Additional Sessions Judge. We have been told that Nadeem and Naveed who were awarded imprisonment for life, they have been released from the jail after serving out their total term of sentence. Criminal Appeal No,593 of 1998 filed by Nadeem alias Deema, appellant is disposed of as having been rendered infructuous. Naveed convict has not filed any appeal against his conviction. Now only Muhammad Jameel appellant remains in the field. It is correct that a young man has been murdered in his house but the Court has to see whether in the instant case, the prosecution has been successful in proving its case or not. The answer is in the negative for the following reasons. Firstly, neither anybody was named in the F.I.R. Nor description of any of the accused was stated therein. Three types of evidence, i.e, extra-judicial confession, last seen and recoveries from the accused. The extra-judicial confession was furnished by Muhammad Tanveer (P.W.3) and Muhammad Yaqoob (P.W.4). According to their statements, first of all, all the three accused individually and separately confessed before them that they had committed the murder of Javaid Mahmood son of Lal Khan and also committed dacoity in his house and that they would return the valuables including lockets and watches etc. If the. Witnesses helped them before the police. Both these P.Ws. Were confronted with their statements Exh.D.C. And Exh.D.D. At pages 163 to 169 of the paper book made before the police. In their statements before the Police, both these P.Ws. And Zulifqar (given up) stated that Muhammad Jameel, Nadeem and Naveed accused came to them in the presence of other P.Ws. Where Muhammad Jameel etc. Stated that they have done a blunder of committing the murder of Javed Mahmood son of Lal Khan and had also looted the cash etc. From his house. It is settled principle of law that joint extra-judicial confession is not admissible in evidence. Even otherwise, the conduct of these two P.Ws. Is unnatural because according to them the accused confessed about the guilt before them on 6-6-1995 but they neither apprehended them nor informed the police or the complainant Lal Khan. Further, the police recorded their statements on 10-6-1995 with a delay of four days. All these facts are enough to prove that P.Ws. 3 and 4 are cooked up witnesses. Had the accused made extrajudicial confession, as alleged by the witnesses on 6-6-1995, they must have apprehended the accused or informed the police or the complainant of the case.
' The evidence of last seen was furnished by Muhammad Razzaq (P.W.9) son of Khadim Khan.
Mansab Khan was given up. According to P.W.9, he at about 11/12 noon on 22-5-1995 alongwith Mansab Khan had come to Lahore for the purchase of parts of the tractor, after making the purchase, they decided to go to house of Lal Khan (complainant) who is their relative, when both reached near the main gate of Lal Khan, it was 11/15 or 11-20 a.m. When they saw Jamil, Naveed and Nadeem coming out of the house of Lal Khan and ran towards the railway line which is at the back of house of Lal Khan, all the accused were in hurry and were puzzled, they went to the house of Lal Khan, knocked the door but did not receive reply from the house and that he and Mansab (given up) sat on a cot under the tree. This witness further stated that after a short while wife of Lal Khan alongwith younger son came there, when she entered the house, they heard her shrieks and cries and that when both Razzaq and Mansab entered into the house alongwith others, Javaid Mahmood was lying murdered. This witness never told to Mst. Munawar Begum P.W.5 mother of the deceased or Lal Khan, the complainant, that he had seen the accused coming out from the house of the complainant. He did not even state that the accused were having with them any Chhurri or golden ornaments etc. He also did not inform the police rather he stated that on the next day, they took the dead body of the deceased to their native village in District Chakwal and only on 9-6-1995, i.e, after 13 days after the occurrence, he got recorded his statement before the police. The conduct and the way this witness acted is sufficient to discard his statement.
'No weapon was recovered from the appellant. The Chhurri was recovered on the pointation of Naveed who was awarded imprisonment for life and has not filed any appeal. One of the recovery witness namely Muhammad Razzak son of Ghulam Hassan (P. W.10) is resident of Chakwal. During arguments, much stress was laid by learned counsel for the complainant that recovered articles were mixed with other but Lal Khan complainant recognized the looted articles. It was also vehemently argued by learned counsel for the complainant that the appellants have not produced any defence evidence. It is golden principle of law that prosecution has to stand on its own legs and not to take benefit of case of the defence. As to supplementary statement of the complainant, learned counsel has conceded that in the facts of the instant case, it has got no evidentiary value.
' In nutshell, it is a case of circumstantial evidence and in such-like cases where no ocular evidence is available connecting the accused with the commission of offence alleged against him, it would not be safe to record conviction of the accused particularly when any link in the chain is missing.
Reliance can be placed upon the case of Munawar Shah v. Liaquat Hussain and others 2002 SCM R 713.
' For what has been stated above, we are of the considered opinion that there are doubts in the prosecution case, so while granting the benefit of doubt to the appellant, we accept the appeal filed by Muhammad Jameel, appellant, set aside the conviction and sentence recorded against him by the trial Court and acquit him of the charge. He is in jail and shall be released forthwith, if not required to be detained in any other case. The death sentence of Muhammad Jameel, appellant is not confirmed and Murder Reference is replied in the negative.