MUHAMMAD ISMAIL and others vs The STATE

1. ' SAEED KHAN KHOSA, J.

2. Criminal Miscellaneous Application No, 884 of 2012 ' For the reasons mentioned in this miscellaneous application the same is allowed and the delay in filing of Criminal Appeal No,89 of 2013 is condoned. Disposed of.

3. Criminal Appeal No, 89 of 2013 2.Muhammad Ismail, Muhammad Iqrar, Khalid Hussain and Shakir Ali appellants had allegedly murdered three persons namely Azizur-Rehman, Sham-us-Din and Muhammad Shahid during the night between 3/4.01.1998 in Basti Muhammad Pur in the area of Police Station Basti Malook, District Multan and for commission of the said offences they were booked in case FIR No, 1 registered at the said Police Station during the following morning. After a regular trial the appellants were convicted by the trial court on three counts of the charge under section 302(b), P.P.C. and were sentenced to death each on each count and to pay compensation to the heirs of each deceased besides having been convicted and sentenced for offences under sections 364, 392 and 411, P.P.C. Later on an appeal filed by the appellants before the High Court failed and their convictions and sentences recorded by the trial court were upheld and confirmed. Hence, the present appeal by leave of this Court granted on 22.04.2013.

4. 3.Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

5. 4.The occurrence in this case had taken place during a night in the month of January and according to the FIR the murders in issue had remained un witnessed. The culprits had been described in the FIR as unknown and before the trial court the prosecution had produced some pieces of circumstantial evidence only. The waj-takker evidence was provided by Muhammad Arshad (PW9) who ordinarily resided about 100 miles away from the place of occurrence and the stated reason for his presence in the village of occurrence during the fateful night had remained far from being established through any independent evidence whatsoever. The prosecution had produced Haq Nawaz (PW4) and Abdul Shakoor (PW5) who had claimed to have seen some of the appellants throwing two deadbodies in a well during the fateful night which throwing of the dead bodies had statedly been seen by them in the light of a torch. The conduct displayed by the said witnesses has been found by us to be far from being satisfactory, usual or even natural because on their own showing the said witnesses had, after witnessing throwing of the deadbodies in a well, gone to their own houses and had slept during the night and when they returned to the relevant place in the morning the local police had already reached there. The statements made by the said witnesses show that at the relevant time the faces of the deadbodies stood muffled whereas the faces of the appellants were not muffled which had failed to make any sense because it was the identity of the culprits which needed to be concealed rather than the identity of the deadbodies.

6. The prosecution had also relied upon a positive report of the Forensic Science Laboratory regarding matching of some crime-empties with the firearms allegedly recovered from the custody of Muhammad Ismail and Muhammad Iqrar appellants, a positive report of the Chemical Examiner and a positive report of the Serologist confirming that the Chhurri allegedly recovered from the custody of Khalid Hussain appellant was stained with human blood and an alleged recovery of a gun of Sham-udDin deceased from the custody of Shakir Ali appellant. It was also alleged by the prosecution that some robbed cash had also been recovered from the custody of the appellants. It is not disputed that the cash allegedly recovered did not stand connected with the robbed amount. For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been B violated in that regard. The prosecution had also maintained that some of the appellants had made an extra judicial confession but the High Court had itself discarded the evidence relating to the extra-judicial confession as the same was not only unnatural but was also inadmissible in evidence as the extra judicial confession attributed to the appellants was a joint confession. The only other piece of evidence remaining in the field was a judicial confession allegedly made by Muhammad lqrar, Khalid Hussain and Shakir Ali appellants before a Magistrate under section 164, Cr.P.C. but admittedly the said judicial confession had been retracted by the C appellants before the trial court and in the absence of any independent corroboration such retracted judicial confession could not suffice all by itself for recording or upholding the appellants' convictions. The record also shows that the appellants had submitted an application before the trial court maintaining that they had never been produced before a Magistrate for recording of their confessions and that the confessions judicial confession deposed about by the relevant Magistrate show that it attributed to them were bogus. The proceedings of recording of the had never been mentioned in those proceedings that before recording the confessions the handcuffs of the appellants had been removed. The statement made by the concerned Magistrate before the trial court shows that some police constables did remain in the courtroom at the time of recording of the confessions.

5. For what has been discussed above a conclusion is irresistible that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded and upheld by the courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case.