2006 PLP 903 (YLR)

ASIF SAEED KHAN KHOSA, J.

Jamat Ali, Mushtaq Ahmad, Tariq Masih and Zulfiqar Ali appellants were convicted for an offence under section 302(b), P.P.C. read with section 34, P.P.C. vide judgment dated 10-6-2002 rendered by the learned Additional Sessions Judge, Gujranwala and were sentenced to imprisonment for life each and to pay a sum of Rs.50,000 each to the heirs of Muhammad Rafique deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo rigorous imprisonment for six months each. All the appellants were also convicted by the learned trial Court for an offence under section 460, P.P.C. and were sentenced to rigorous imprisonment for five years each. The sentences of imprisonment passed against all the appellants were ordered by the learned trial Court to run consecutively and the benefit under section 382-B, Cr.P.C. was extended to them. Jamat Ali and Mushtaq Ahmad appellants have challenged their convictions and sentences before this Court through Criminal Appeal No.1012 of 2002 whereas Tariq Masih and Zulfiqar Ali appellants have preferred Criminal Appeal No.240-J of 2002 before this Court assailing their convictions and sentences. I have heard both these appeals together and I propose to decided them together through the present consolidated judgment.

2. According to the prosecution's case Muhammad Rafique deceased was done to death the night between 17/18-2-2001 in his own house situated in Naveed Colony within the area of Police Station, Baghbanpura, Gujranwala. F.I.R. No.66 was lodged in respect of that murder by a neighbour of Muhammad Rafique deceased namely Muhammad Yousaf at 10-45 a.m. on 18-2-2001 at Police Station Baghbanpura, Gujranwala for an offence under section 302, P.P.C. read with section 34, P.P.C. Section 460, P.P.C. was subsequently added to the F.I.R. After completion of the investigation a challan was submitted before the learned trial Court and after holding as full dressed trial the learned trial Court acquitted three co-accused of the appellants but after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt it convicted and sentenced the appellants as mentioned and detailed above. Hence, the present appeals before this Court.

3. I have heard the learned counsel for the parties and have gone though the record of this case with their assistance.

4. According to the F.I.R. lodged in this case the alleged murder of Muhammad Rafique deceased had remained unwitnessed. Subsequently Ghulam Mustafa (P.W.10), a son of Muhammad Rafique deceased, had claimed to have witnessed the alleged murder but such claim of the said witness had expressly been rejected by the learned trial Court. The prosecution had produced Muhammad Akram (P.W.11) and Zulfiqar Ahmad (P.W.12) before the learned trial Court and they had claimed that the appellants had made an extra-judicial confession before them in respect of commission of the said murder. I have noticed that that Muhammad Akram (P.W.11) had acknowledged before the learned trial Court in so many words that the extra-judicial confession allegedly made by the appellants was joint confession. It is settled law that a joint extra-judicial confession is inadmissible in evidence. During the investigation no weapon had been recovered from the possession of Jamat Ali and Mushtaq Ahmad appellants whereas blood-stained Chhurries had allegedly been recovered from the possession of Tariq Masih and Zulfiqar Ahmad appellants. Such recoveries had, however, been expressly disbelieved by the learned trial Court and the evidence produced by the prosecution in that respect was ruled out of consideration. Different motives had been set up by the prosecution at difference stages of this case but the same had also been expressly disbelieved by the learned trial Court. The only remaining piece of evidence left in the field is the medical evidence which could not by itself point an accusing finger towards any of the appellants.

5. For what has been discussed above a conclusion is irresistible and inescapable that the prosecution had failed to prove its case against all the appellants beyond reasonable doubt. Both the above mentioned appeals are, therefore, allowed, the convictions and sentences of all the appellants recorded by the learned trial Court are set aside and the appellants are acquitted of the charge. Jamat Ali and Mushtaq Ahmad appellants have already been admitted to bail by this Court after suspending their sentences during the pendency of their appeal. They shall be released from the jail forthwith if not required in any other case. H.B.T./J-82/L Appeal allowed.