P L D 1991 Federal Shariat Court 53 (PLP)

TANZIL-UR‑RAHMAN, C.J

‑On 8‑8‑1988 at 4‑00 p.m., Sher Zaman Khan, ASDPO of P.S. Saddar, Bannu, alongwith P.W.6 Ahsanuddin Khan, S.H.O., and other police officials on receipt of spy information that Sher Afgan appellant No.3, a proclaimed offender was present in the house of Arif Nawaz Khan convict/appellant No.l and that the two were engaged in selling of narcotics at a large scale, the Police party raided the house of Arif Nawaz Khan appellant No.l situated in Azmat Kala. Appellant No.l was found present in his house and from his personal search one .12 bore pistol, a dagger and two cartridges of .12 bore were recovered from him and from his house 650 grams of heroin wrapped in 524 packets were also recovered. Besides this, three charges, 93 rounds of .7, .62 bore and one bandolier and currency notes of Rs.27,450 of various denominations were also recovered contained in a box from the residence of appellant No.l. P.W.6 Ehsanuddin, S.H.O., arrested the appellant No.l, drafted the `Murasila' Exh.PA/I and sent the same to the Police Station Saddar, Bannu, for registration of the case against him which was incorporated in F.I.R. No‑286 Exh.PA by P.W.2 Muhammad Akbar Khan, A.S.I., the same evening. After the completion of the investigation the appellants were challaned and sent up for trial to the Court of learned Sessions Judge, Bannu, who by his judgment dated 18‑8‑1990, convicted all the four appellants before us under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Prohibition Order) and sentenced to four years' R.I., five stripes and a fine of Rs.1,000 each and in default of payment of fine to suffer three months' S.I. Arif Nawaz Khan appellant No.l was further convicted under Article 4 of the Prohibition Order and sentenced to four years' R.I., five stripes and a fine of Rs.1,000 and in default of payment of fine to undergo S.I., for three months. The sentences awarded to appellant No.l were ordered to run concurrently with benefit of section 382‑B, Cr.P.C., to him. Case property of Rs.27,450 was ordered to be confiscated to the State. The unlicensed arms and ammunition were also ordered to be kept intact till the final disposal of the case under section 13, Arms Ordinance against appellant No.l. All the four appellants have now preferred the above appeal against the above conviction and the sentences.

2. The prosecution has examined in all six witnesses. P.W.1 Sher Afzal is a Constable who was entrusted with a search‑warrant to be executed against appellant No.3. P.W.2 Muhammad Akbar Khan, ASI, P.S. Cantt: Bannu, on the `Murasila' sent by Ahsanuddin Khan P.W.6 registered the case. P.W.3. Behram Khan is a Magistrate Ist Class, who recorded confession made by appellant No.l before him. P.W.4 Muhammad Idris Khan, S.H.O., Saddar Bannu partly investigated the case against appellant No.3 and submitted supplementary challan on 14‑2‑1989 against the said appellant. P.W.5 Sardar Bakhsh Khan, ASI, PS Cantt. D.I.Khan, is a witness of recovery. P.W.6 Ahsanuddin Khan, SHO of Shahbaz Garhi Mardan is an Investigating Officer in the case. He is also a recovery witness who prepared and scaled parcels and handed over the same to P.W.2 Muhammad Akbar Khan, A.S.I.

3. P.W.1 Sher Afzal, Foot Constable, under suspension on the day of his examination (in the trial Court), stated that on the day of occurrence he was posted as F.C. Police Station, Bannu Cantt: and was entrusted with a search‑warrant against Sher Afgan accused/appellant No.l. However, he returned the warrant Exh. P.W.1/1 unexecuted as the said accused was not traceable. He was also then entrusted with proclamation notices under section 87, Cr.P.C., against the said accused which were executed by him in accordance with law Exh. P.W.1/2. P.W.2 Muhammad Akbar Khan, ASI, P S Cantt: Bannu, simply stated that on receipt of Murasila Exh. PA/1 he recorded the F I R Exh. PA/1 which bears his signature.

4. P.W. 3 Behram Khan is a Magistrate Ist Class, Bannu on the relevant day (Section Officer on the day of his examination in the trial Court) stated that on 15‑8‑1988 the accused Arif Zawaz was produced before him by the local police, Saddar, for recording confessional statement of the accused. He recorded the said confessional statement Exh. PX with certificate appended thereto Exh.PX/1 and the memo of questions Exh.PX/2 under his own handwriting and bearing his signature as well as the thumb impression of the accused. In cross‑examination, he admitted that he was not Ilaqa Magistrate for the police Station Saddar in those days, Voluntarily added that the request of the local police for recording the confession was marked to him by the SDM, Bannu. He also admitted that prior to the recording of the said confession he had granted custody of the accused to the police twice on 9‑8‑1988 and 12‑8‑1988 for three days each. He stated the suggestion as incorrect that the confessional statement of the accused was verbatim copy of the statement recorded by the Investigating Officer and that he had copied the statement of the accused recorded by the police. The accused was given thirty minutes, for pondering. After the expiry of the 30 minutes' time he had given the second warning to the accused. The accused was produced before him at 10.00 a.m. He stated the suggestion as incorrect that he did not disclose his identity to the accused in the memo of questions. Voluntarily added that he had mentioned the fact separately in the certificate Exh.PX/1 given by him. He did not recollect as to who produced the accused for recording the confessional statement. He, however, staled the suggestion as incorrect that under the influence of the local police he did not observe the legal formalities and copied the police statement of the accused without satisfying himself judicially as to the voluntary nature of the confession.

5. P.W.4 Muhammad Idris Khan, S.H.O., simply stated that he had partly investigated the case and submitted supplementary challan against appellant No.l on 14‑2‑1989. P.W.5 Sardar Bukhsh Khan, ASI, who is a material witness, deposed that on the day of occurrence he alogwith Sher Zaman Inspector, Allauddin SILO., and police Nafri was on patrol duty. The S.H.O., on receipt of spy information that Sher Afgan (appellant No:3) the proclaimed offender was present in the house of Arif Nawaz accused (appellant No,1) raided the house of said Arif Nawaz and recovered one .12 bore pistol and a dagger with sheath from the trousers fold, two cartridges of .12 bore were also recovered from the pocket of the shirt of the said accused. In order to make the recovery of narcotics the house of Arif Nawaz accused /appellant No.l was thoroughly searched. 524 packets of heroin weighing 650 grams Exh.P.l contained in a box lying in the residential Kotha of the accused were recovered. Out of the recovered quantity four grams were separated for sending it to the Chemical Examiner while the remaining 646 grams were also sealed in a separate parcel. In addition to the heroin, there were recovered three chargers of Kilashnikov containing 93 rounds of 7.62 bore and one bandolier. An amount of Rs.27,450 Exh.P.2 of different denominations, fully detailed in the recovery memo Exh.PR being the amount sale proceeds of heroin was found in the said box which were also seized and were taken into possession by the S.H.O., vide recovery memo Exh.PR which was signed by him as a marginal witness. In his cross‑examination it was stated by him that he had accompanied the S.H.O., to the house of Arif Nawaz for the first time. He had not gone there previously. The police party was on patrol duty in the area of Shahbaz Azmat Khel and therefrom they rushed to the house of Arif Nawaz for the purpose of raid but he cannot say the distance wherefrom they started towards the house for the raid. Except one Mir Oad Ayaz, a private person none from the public was present at the time of raid. No lumbcrdar or B.D. Member was accompanied by the police party. The police party parked the Government vehicle at a distance of one furlong or less than that from the crime house. Mir Oad Ayyaz was picked up from the village Shahbaz Azhnat Khel. The witness could not tell the boundaries of the crime house. The Kotha wherefrom the recovery was made was pointed out by PW Mir Qad Ayyas to be belonging to the accused Arif Nawaz. The box containing the heroin etc. was locked. The key of the lock was presented to the S.H.O., which was taken into possession by the I.O., in his presence. No identity Card or photo bf the accused Arif Nawaz was recovered from the said box. The box was not taken into possession by the I.O. The witness denied the suggestion that Mir Qad Ayaz was not arrested by the police and that he was subsequently released after witnessing the recovery memo. The suggestion was denied as incorrect that two household women from the said house were taken by the S.H.O., to the Police Station alongwith one Gharib Nawaz. The suggestion was also stated to be incorrect that the accused Arif Nawaz was not available in his house and he came to the Police Station later on, alongwith one Baz Muhammad Khan M.P.A., and that subsequently he was arrested at the Police Station and the two women were allowed to go from the Police Station.

6. P.W.6 Ahsanuddin Khan, S.H.O., a most material witness deposed that on the day of occurrence he was on patrol duty of the Illaqa. He received a spy information during the patrol duty that Sher Afgan (accused/appellant No.3), a proclaimed offender was present in the house of Arif Nawaz accused. He then raided the `house' of Arif Nawaz situated in village Azmat Khel. Sher Afgan accused was not present in the crime house. However, the person of Arif Nawaz was searched and recovery of arms as stated by P.W.5 were made. As there were complaints against the accused that they were dealing in narcotics, he searched Kotha of Arif Nawaz accused wherefrom he recovered 524 packets of heroin contained in a box weighing 650 grams. From the said box three chargers of Kilashnikov containing 93 rounds and a bandolier were recovered. He also recovered cash amount of Rs.27,450 which were the sale proceeds of heroin. He arrested the accused Arif Nawaz and took into possession the pistol, dagger, alongwith tile sheath, two live cartridges of .12 born and 650 grams of heroin Exh.P.l. Out of which 4 grams were separated for sending it to the Chemical Examiner and the remaining quantity 646 grams of heroin were also sealed in a separated parcel. He drafted Murasila Exh.PA/1 and sent the same to Police Station for registration of the case against the accused which was incorporated in Exh.P.A. He prepared the site plan with footnote which bore his signature and also recorded the statement of P.W.1, and also produced Arif Nawaz for recording his confessional statement by the Magistrate and got the same duty recorded. He also produced the Chemical Examiner's report. He also arrested Aftab Ali and Syed Nawaz respondents 2 and

3. After completion of the investigation the challan was submitted by one Idris Khan S.H.O. In cross‑examination, the witness stated that although they maintain the history sheet of the suspects in the Police Station but he had not kept the history sheet of Arif Nawaz accused. He could not tell the plate where he had received spy information as he had forgotten it and he could not give the distance between the place where he was informed and the house of Arif Nawaz accused. The witness, however, admitted that he was not in possession of any warrant issued under section 22 of the Hadd Order (Prohibition Enforcement of Hadd) Order, 1979. They were not accompanied by any lady Constable at the time of search of the alleged crime house. The box was locked which was not taken into possession by him. After taking the packets into possession they were weighed. The heroin was weighed in the packets containing the same. He did not mention the net weight of the heroin. He had handed over the sample of the heroin to the Muharrir of the Police Station for sending it to the Chemical Examiner. He did not know when the samples were sent to the Chemical Examiner. There was also no mention of the sending of samples in the daily diary. There was no mention in the Roznamcha that Arif Nawaz was arrested and confined in the police lock‑up. Arif Nawaz was not shown in the daily diary.

7. The appellants were examined under section 342 Cr.P.C. They denied the charge and stated to have been implicated falsely in the case. Appellant No.1 Arif Nawaz Khan only came forward to produce evidence in defence. He also examined himself on oath under section 340(2) Cr.P.C. In the examination under section 342 Cr.P.C., Arif Nawaz accused/appellant No.1 while denying the allegations of recovery of heroin also denied the confession as alleged. He stated that‑‑ In fact the S.H.O. brought me to the District Courts and was kept outside the Court and after sometime I was summoned inside the Court and an already drafted statement which is a ditto copy of the police file, was placed before me and 1 was directed by S.H.O. and P.S.I. concerned to thumb impress the same and 1 did accordingly, without knowing the contents of the same. About the money recovered from the house he stated that said amount belongs to my brother Khalil Nawaz who deals in reeds business and the house; is jointly owned by me and my elder brother Khalil Nawaz. As to why the P.Ws had deposed against him the accused stated: "In this case flu; story has been concocted by S.H.O. Ahsanuddin who under the Islamic Law of Haddocks is disqualified to be a truthful witness because while posted as S.H.0., Saddar he received illegal gratification from an accused in a case under section 13 A.Q. and under the direction of District Magistrate Bannu an Anti‑Corruption Police party headed by a First Class Magistrate raided the said S.H.O. and caught him red‑handed alongwith the bribe money and a proper case has been registered against him. I will produce the relevant copies of tile F.I.R., the Raid report etc, in my defence. The rest of (the PWs were his subordinates and acted under his influence. The only disinterested witness in this case was Mir Oad Ayaz Khan who was cited as a marginal witness in the recovery memo but tie was abandoned for no reasons by the prosecution." The appellant also examined himself under section 340 (2) Cr.P.C., which is reproduced below:‑ "On the day of occurrence I was not present in my house when the house search was made by the police. I came to my house at Shamvela and came to know about the occurrence. The police had taken cash amount of Rs.40,000 as well as my stepmother and my aunt were also taken to the P.S. One bore pistol and a charger was also recovered from my house. I and my brother jointly reside in our house. The said amount of Rs.40,000 were left from my deceased father and my brother had intended to make a house for himself with the said money. I went to the P.S. at 9/10 p.m. I was arrested and the women‑folk were released. Mir Qad Ayaz (DW.1) was present at that time in the P.S. I was detained with the police in the P.S. for nine days. I was tortured b the police during, this period I have made no confessional statement in an Court My thumb impression was taken on a white paper by the I.O. in the Court. I was implicated in this case as Sher Afgan accused was reported by my friend and taking shelter with me. I am innocent and falsely implicated in the present case. I produce a photostat copy of the affidavit given by me on 17‑9‑1989 while I was in judicial lock‑up Bannu. The original might be on my bail application."

8. Mir Oad Ayaz, who was cited as prosecution witness in the calendar of the witnesses and was subsequently given up by the prosecution, was produced as a defence witness by the appellant Arif Nawaz. The said D.W.1 deposed that he was present at the time of search of the house of Arif Nawaz and also the house of his aunt and an amount of Rs. 23,850 was recovered. One.12 bore pistol and two or three cartridges of the same bore and a bandolier of Kilashnikov with charger of Kilashnikov were also recovered from the box but no heroin was recovered or weighed in his presence. He had only seen the packets. I was asked to testify the recovery memo on a white paper. He denied the suggestion that he was produced before the Magistrate for recording his statement under section 164 CrP.C. He also denied the suggestion that lie was won over by the defence.

9. Mr. Assadullah Khan Chacnkani, learned counsel for the appellants submitted that the prosecution case rests entirely on the alleged confession of Arif Nawaz, a co‑accused who has retracted therefrom. Even otherwise, there is no corroboration of (lie confession of the co‑accused in the entire prosecution case. The confession was made when lie was in police custody and thus it cannot be said to be made voluntarily. The reliance was placed on a number of decisions namely, Ghulam Ali v. the State PLD 1981 FSC 224; State v. Asfandyar Wali and two others 19.82 SCMR 321; Joygun Bibi v. The State P L D 1960 S.C. 313; Tooli v. The State 1975 P.Cr.L.J 440 Karachi and Abdul Majeed v. The State P L D 1977 Karachi 760. (i) In the first cited case P L D 1981 FSC 224 a Full Bench of this Court held that: "Obviously, a confession of a co‑accused which does not occupy the position of a statement on oath made before a Court of law cannot be made a ground to support conviction of another co‑accused." (ii) In the second case 1982 SCMR 321 the Hon'able Supreme Court of Pakistan referring to section 30 of Evidence Act 1872, observed that: "On the plain language of this section, when several persons are being tried for the same offence and one of the accused makes a confession affecting himself and the other accused, "the Court may take into consideration such confession as against such other person as well as against the person who makes such confession." Clearly, therefore, the confession of a co‑accused is not evidence against another accused, the more so, when it is retracted." For the above view reliance was placed on the observation of Sir John Beaummount in Bhuboni Sahu v. The King P L D 1949 PC 90 that a confession of a co‑accused‑‑ "Does not indeed come within the definition of evidence contained in section

3. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross‑examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act but the section does not say that the confession is to amount to proof. Clearly, there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. The confession of a co‑accused can be used only' in support of other evidence and cannot be made the foundation of a conviction." These observations were approved by the Hon'ble Supreme Court in Zulfiqar Ali Bhutto v. The State P D 1979 SC 53 wherein it was observed that: Nisar Khan's retracted confession might have been of some assistance to the prosecution, if there had been other evidence against Asfandyar to corroborate his retracted confession. But as there is no such evidence, Nisar Khan's confession cannot furnish this crucial link in the case against Asfandyar, and it is, therefore, of no assistance to the prosecution case against him: (iii) In the 3rd case PLD 190(1 SC 313 it was held that "the co‑accused cannot be convicted on the `sole' basis of confession of the fellow accused much less on the retracted confession." This case has already been referred to in the Federal Shariat Court decision cited above. (iv) In the 4th case 1975 PCr.LJ 440 it was observed that: "The confession was recorded on the 3rd day of the arrest of the appellant. There are a number of authorities to the effect that the delay of over 24 hours would normally be fatal to the acceptance of a judicial confession. In the circumstances, the confession must be ruled out." (v) In the 5th case P L D 1977 Karachi 700 it was observed again that appellant was arrested on 31st of March, 1973 and his confession was recorded can 2‑4‑1973. Demonstrably, it was after a delay of more than forty‑eight hours. There is no explanation for the delay by the ASI. It was thus observed that‑ "There is a string of authorities that if there is undue delay in the recording of the judicial confession as it is in the present case no evidentiary value can be placed thereon. The confession was therefore, ruled out of consideration.

10. In Islamic Criminal Law, the confession of an accused against the co‑accused is not acceptable and if there is no other proof against him, he will not be punished on the said confession. It is based on the following haith Translation: "It has been related on the authority of Sa'd al‑Sa'idi that a man came to the Prophet and confessed that he had committed adultery with a woman named by him. The Prophet (p.b.u.h.) sent for tile woman and enquired from her about it. She denied the allegation. The Prophet (p.b.u.h.) punished the male but acquitted the female." (Ibn Qudamah: Al‑Mughni, printed Riadh, Vol. VIII. page 193 (This Hadith is stated in Al‑Sunan, Abu Da'ud).

11. Another Hadith is of the Aseef (servant, labourer). It reads‑ Translation: "It has been related on the authority of Abu Hurairah and Zaid Ibn-e-Khalid that while they were with the Holy Prophet, a man stood up and said (to the Prophet), I beseech you by Allah, that you should judge as according to Allah's laws. Then the man's opponent who was wiser than him, got up saying, (to Allah's Apostle), judge us according to Allah's laws and kindly allow me (to speak)." The Prophet said, "Speak". He said, "This my son was a labourer working for this man and he committed an illegal sexual intercourse with his wife, and I gave one hundred sheep and a slave as a ransom for my son's sin. Then I asked a learned man about this case and he informed me that my son should receive one hundred lashes and be exiled for one year, and the man's wife should be stoned to death." The Prophet said, "By Him in whose Hand my soul is, I will judge you according to the laws of Allah. Your one hundred sheep and the slave are to be returned to you, and your son has to receive one hundred lashes and be exiled for one year. O Unais' Go to the wife of this man, and if she confesses, then stone her to death." Unais went to her and she confessed. He then stoned her to death. It is important to note that the Prophet announced the sentence for the male culprit and ordered Unais to go to the woman and stone her to death if she confessed." In the above narration, it appears cite son had also accompanied his father to the Prophet as the words this my son indicates his presence as also commented by Ibn Hajr "Asqalani in Fath at‑Bari Volume XII, Beirut, pp 136‑

37. Obviously, the punishment to the woman was made dependent on her own confession as borne out of the last words of the Holy Prophet if she confesses, stone her to death.

12. Thus a confession only implicates the accused, but not the co‑accused. This is also based on the concept of individual responsibility. However, it may be 8 considered as Oarinah as circumstantial piece of evidence against the co‑accused and case be a basis for Ta'zir to the co‑accused, if it is corroborated by other independent evidence, (Bahanasi: Nazriyyah al‑Isbat fi'l Fiqh al'Jinai al‑Islami)

13. The Council of Islamic Ideology in its 9th Report on the Islamization of the Code of Criminal Procedure 1898 (then headed by me 1980‑84) also observed that when an accused confessee the crime, he becomes Fasiq (bearing bad character and does not remain Adil (credible) and as such his evidence is not acceptable against the co‑accused. His confession is only restricted to his own self and cannot be extended to any one else. However, his confession can be utilized for further investigation in the matter and if the offence of his co‑accused is proved by corroboration, he will be punished by Ta'zir accordingly. (9th Report of the Council of Islamic Ideology on "Islamization of Laws" pages 14.15).

14. In Islamic law, so far as retraction from confession is concerned, it has two aspects: If an admission is made in respect of an individual's right it cannot be retracted by the maker of admission against himself on the principle. The man is caught by his admission (acknowledgement); and if it is made in respect of the right of Allah (or the society) it can be retracted. It has, therefore, been laid down in the Islamic law of Hudood that the execution of Hadd punishment shall be suspended when a person retracted `before or during the enforcement of Hadd, because his retraction shall also be a sort of information which carries with it the probability of truth like confession and nothing will be there to disprove or falsify this information. So doubt is created by retraction after confession. Therefore, according to the Hadith of the Holy Prophet the Hudood punishment shall be repulsed by doubts. This principle is contrary to Qisas and Hadd Oazf as in both these cases, the rights of men are mainly involved. By admission, acknowledgement or confession, the right of one man is admitted by the other, against himself (the maker), which shall not become nugatory by retraction whereas a confession not involving an individual's right, may be retracted. 14‑A. According to a narration, when Ma'iz felt the intensity of the Rai m punishment during stoning, he tried to escape but those who were deputed for the purpose, followed him and continued stoning him till death. When this incident was brought to the notice of the Holy Prophet, he said, "why did you not let him go" Thus, the Holy Prophet equated his escape to retraction. It is, as said, a cause to absolve from Hadd punishment if the Hadd punishment has been awarded on the basis of confession. Therefore, in the circumstance when a person retracts from his confession, his retraction shall be accepted and he shall be absolved from Hadd punishment, unless the Hadd punishment is proved by evidence. (For details see Islami Qawaneen Hudood, Qisas, Diyat and Ta'zirat Qanuni Kutab Khana Lahore 2nd Edn., pp. 61 to 65.

15. It is also narrated from the Holy Prophet that a thief was brought before the Holy Prophet. On his making confession before the Holy Prophet, he said to him that "I think, you have not committed theft." This Tradition signifies that to seek clarification about confession will be a virtuous and laudable act and the Qazi before whom a confession is made should first satisfy himself that the confession is voluntary and true.

16. In the instant case, it is established from the record that the accused Arif Nawaz was arrested on 8‑8‑1988 and twice the remand was taken for three days each and on the last day when the second remand was going to expire the accused is alleged to have been produced before P.W3, a First Class Magistrate. The confession, as such, was recorded after about 6 days of arrest on 15‑8‑1988. The delay in recording the confession remains unexplained. It cannot of certain, be said that the confession, if at all made by the accused, was voluntary.

17. The learned counsel for the State conceded that there is no evidence on record against the other accused except the confessional statement of the accused Arif Nawaz. He, however, submitted that a confessional statement of a co‑accused can be used as a proof against a person making it and the same can be taken into consideration as a circumstantial evidence against the co‑accused at the joint trial for the same offence. Reliance was placed on a decision of this Court in Gul Munir and another v. The State P L D 1991 FSC

92. It is true that a confessional statement made by an accused may be used against other co‑accused as circumstantial evidence, which means that it can be taken into consideration as a corroborative piece of evidence, that is, if there is other direct independent evidence connecting the co‑accused with the commission of offence. But, it is settled law that the confessional statement "alone" cannot form the "sole basis" for the conviction of the other co‑accused and more so when the alleged confession is tainted with doubt as to its voluntary nature, and, above all, retracted subsequently.

18. Learned counsel states at the Bar that appellant No.1 Arif Nawaz Khan on completion of the sentence has been released by the jail, authorities in accordance with law, after giving benefit of section 382‑B Cr.P.C., as such he does not press his appeal, which having become infructuous stands dismissed.

19. In result, this being a case of no evidence the appeal is accepted. The conviction and sentences passed against appellants Nos. 2, 3 and 4 are set aside. Appellant Aftab Ali and Syed Nawaz alias Syed Wali are on bail and present in Court. They are set at liberty. Their bail bonds are discharged. Appellant No.3 Sher Afgan who is undergoing sentence is ordered to be released forthwith, if not required in any other case. The money recovered in the case be returned to appellant No.l. M.BA./592/F.S.C. Appeal accepted.