2018 PLP 134 (YLRN)

SHEHRAM SARWAR CH., J.

Muhammad Saleem (appellant) along with his co-accused namely Anwaar Haider, Muhammad Ashraf alias Papu, Adil and Yasin was tried by the learned Judge, Anti-Terrorism Court-I, Lahore in case FIR No.342, dated 16.05.2013, offence under section 365, P.P.C. (sections 365-A, 302 and 201, P.P.C. read with Sections 7 and 21-L of the Anti Terrorism Act, 1997 were added later on) registered at Police Station Bhikhi District Sheikhupura for the abduction and murder of Umer Waqas (deceased) son of complainant. Vide judgment dated 26.02.2014 passed by the learned Judge, Anti Terrorism Court-I, Lahore, the appellant has been convicted and sentenced as under:-- "10. ...So I accordingly convict accused Muhammad Saleem under section 365-A, P.P.C. and sentenced to imprisonment for life. He is also convicted under section 7(e) of ATA and sentenced to imprisonment for life. 11....I accordingly convict accused Muhammad Saleem under section 302, P.P.C. and sentenced him to death with compensation of Rs.2-Lac to be paid to the legal heirs of the deceased, in default thereof he further undergo six months S.I. He is also convicted under section 7 ATA and sentenced to death and fine of Rs.50,000/- in default of that he shall further undergo four months SI. Similarly accused has knowingly caused to disappear the evidence regarding dead body of deceased by throwing him in the canal so has committed an offence under section 201, P.P.C. and he is convicted under section 201, P.P.C. and sentenced to imprisonment for five years with the fine of Rs.20,000/- in default of which he shall further undergo two months SI..." All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was extended to the appellant. The appellant was acquitted of the charge under section 21-L of the Anti Terrorism Act, 1997 by the learned trial court. However, through the same judgment, Anwaar Haider, Muhammad Ashraf alias Papu, Adil and Yasin, co-accused of appellant were acquitted of the charges by extending them benefit of doubt and Crl. Appeal No.609 of 2014 filed against their acquittal by the complainant was dismissed for non-prosecution by a learned Division Bench of this Court vide order dated 10.12.2015. Assailing the above convictions and sentences, Muhammad Saleem (appellant) has filed the appeal in hand whereas the learned trial court has sent Capital Sentence Reference No.15-T of 2014 for confirmation or otherwise of Muhammad Saleem, appellant's sentence of death, as required under section 374, Code of Criminal Procedure. As both these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Ex.PB/1) registered on the application (Ex.PB) of Muhammad Ibrahim, complainant (PW.7) is that he was resident of Duniapur District Lodhran. His son Umer Waqas aged about 19/20 years was working in Ejaz Spinning Mills, Kharianwala. On 09.05.2013 after duty hours, Umer Waqas took leave for one day from his shift incharge namely Ramzan alias Bhola for going to Sheikhupura where his relative has died. Umer Waqas also told his incharge that his friends were waiting him outside the gate and he had to go with them. Son of complainant left the mill colony's premises and did not return till 16.05.2013 nor contacted with complainant. The complainant along with Muhammad Ashraf came to Ejaz Spinning Mills, Duniapur to know whereabouts of his son but no information was received. The complainant was sure that some unknown persons had concealed his son after abduction and his phone No.0343-8460852 was switched off. On 16.05.2013, the complainant moved an application (Ex.PF) before the SHO Police Station Bhikhi, Sheikhpura and nominated the appellant as well as his co-accused.

3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in the case. The appellant and his co-accused namely Anwaar Haider, Muhammad Ashraf alias Papu, Adil and Yasin were summoned by the learned Judge, Anti Terrorism Court-I, Lahore to face the trial. Copies of relevant documents were provided to them, as required under section 265-C, Code of Criminal Procedure and formal charge under sections 365-A, 302, 201, 149 and 34, P.P.C. read with Sections 7 and 21-L of the Anti Terrorism Act, 1997 was framed against them on 04.12.2013, to which they pleaded not guilty and claimed trial. After the closure of prosecution evidence, statements of the appellant and his co-accused under section 342, Code of Criminal Procedure were recorded on 21.02.2014 and 24.02.2014, wherein they refuted all the allegations of the prosecution and professed their innocence. In answer to a question as to why the case against him and why the prosecution witnesses had deposed against him, Muhammad Saleem (appellant) stated as under:-- "Complainant and PWs falsely roped me in this case in connivance with police. Police in order to show their efficiency has fabricated false evidence. I am innocent. I have no connection with the commission of any and any alleged recovery shown from me. All the recoveries are false and fabricated." The appellant neither opted to appear as his own witness in disproof of the prosecution allegations as provided under section 340(2) Code of Criminal Procedure nor did he produce any defence evidence. However, after conclusion of the trial, the learned trial court convicted and sentenced the appellant and acquitted his co-accused, as detailed above. Hence this appeal and capital sentence reference.

4. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that there is a delay of about seven days in reporting the matter to the police without there being any satisfactory explanation; that it was an unseen incident; that there is no direct evidence against the appellant; that dead-body of the deceased was not recovered in this case; that identification parade of the appellant has no value in the eye of law; that alleged recoveries of Rs.85,000/- spectacles, slipper and factory card belonging to the deceased at the instance of appellant are inconsequential; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to acquittal.

5. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes this appeal on the grounds that there was no conscious or deliberate delay in reporting the matter to the police; that the complainant's side had no enmity against the appellant for his false implication in this case; that, sufficient evidence is available on record which connects the appellant with the commission of crime; that prosecution case is further corroborated by the recoveries of Rs.85,000/-, slipper, factory card and spectacles at the instance of appellant; that the prosecution has successfully brought home guilt against the appellant beyond any shadow of doubt and there is no merit in this appeal.

6. We have heard arguments of learned counsel for the parties as well as learned Deputy Prosecutor General for the State to their entire satisfaction, given our serious consideration to their respective submissions and also perused the record.

7. This unfortunate incident wherein Umer Waqas son of the complainant was initially abducted and subsequently done to death, as per FIR (Ex.PB/1), took place on 09.05.2013, whereas the matter was reported to the police on 16.05.2013 at 1:00 a.m. i.e. about seven days after the occurrence. The distance between police station and the place of occurrence was just five kilometers. As per prosecution's own story since 09.05.2013 Umer Waqas was not in contact with the complainant but even then he (complainant) did not report the matter to the police and remained mum for about seven days. There is absolutely no plausible or convincing reason for the aforesaid delay in reporting the matter to the police which casts serious doubt about the veracity of prosecution story. Reliance may be placed on case laws titled as "Mehmood Ahmed and 3 others v. The State and another" (1995 SCMR 37) and "Nazeer Ahmad v. Gehne Khan and others" (2011 SCMR 1473).

8. Admittedly, no one had seen the appellant while killing Umer Waqas after his abduction. The dead-body of Umer Waqas was not recovered and even no postmortem examination of the dead-body of deceased was conducted in this case. The complainant had not seen the incident and he merely reported the matter to the police on the information allegedly imparted to him by Shafiq-ur-Rehman (PW.8) and Sardar Ali (PW.9). The whole prosecution case is only based on the confession of Muhammad Saleem (appellant) and Anwaar Haider (accused since acquitted) allegedly made by them before the police during the course of investigation by stating that they had committed the murder of Umer Waqas. Undeniably, under Article 39 of Qanun-e-Shahadat, Order 1984, confession by accused of his guilt under custody of police is not admissible in evidence. Moreover, the appellant was not produced before the learned Area Magistrate soon after his arrest for recording his judicial confession. The confession of the appellant prima facie appears to be untrue because the same is clashing with the story set up by the complainant in the applications (Exh.PB and Exh.PF) wherein the abduction of Umer Waqas for the purpose of ransom is missing. Moreover, the role played by the appellant in the incident in issue had never become available on the record and it had never been disclosed or alleged by the prosecution through independent evidence as to under what circumstances the deceased had been done to death.

9. The most important limb of the prosecution case is the evidence of last seen furnished by Shafiq-ur-Rehman (PW.8) and Sardar Ali (PW.9). It was their claim that on 08.05.2013, they came to Lahore for the purchase of goods for their shop and after getting free from the said job they went to Ijaz Spinning Mills to meet Umer Waqas. When they reached there they saw Umer Waqas alive last time in the company of accused persons who were going somewhere on two motorcycles. Admittedly, both these witnesses were closely related to the complainant as well as the deceased. Moreover, they and the complainant were residents of one and the same village but they told the said fact to the complainant on 15.05.2013 i.e. about seven days after the incident. There is no plausible explanation on behalf of the said witnesses as to why they remained mum for such a long time and did not pass on this information to the complainant. The conduct displayed by the said PWs was nothing but unusual detracting from the veracity of their statements. Why did these witnesses choose to be remained silent? We don't find any answer to the aforesaid question. Therefore, we hold that the story of last seen cooked up by the prosecution is highly improbable and does not appeal to a prudent mind. Even otherwise last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case. Reliance is placed on case law titled as "Altaf Hussain v. Fakhar Hussain and another" (PLJ 2008 SC 687). We have further observed that the story of prosecution with regard to handing over Rs.2,00,000/- as ransom to Muhammad Saleem (appellant) and Akhtar (accused since PO) is of no avail to the prosecution because as per the evidence of Muhammad Ibrahim complainant (PW.7) and Shafiq-ur-Rehman (PW.8) they handed over the ransom amount to the appellant and his co-accused at Motorway Bypass Sheikhupura which was a thickly populated area. Moreover, the appellant along with his co-accused did not try to conceal their identity which is the first and foremost anxiety of the assailants in such like cases. Moreover, keeping in view the financial status of complainant's side the story for payment of ransom amount to the appellant and his co-accused is neither plausible nor believable.

10. The cell phone call data collected in this case is of no help to the prosecution because no competent witness was produced at the trial, who provided the call data. Moreover, no voice record transcript has been brought on record. Similarly from which area the caller made the calls, is also not shown in it. Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In this view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner. Reliance is placed on case law titled as "Azeem Khan and another v. Mujahid Khan and others" (2016 SCMR 274).

11. So far as identification parade of Muhammad Saleem (appellant) along with his co-accused namely Anwaar Haider is concerned, the same does not advance the case of prosecution because the learned Magistrate who supervised the identification parade was not produced before the learned trial Court during the trial. Moreover, it has been brought on record that before the arrest of the appellant and his co-accused the complainant's side was well acquainted with their names as well as faces due to which they had nominated them in this case. If it was so then what was the need of identification parade? But we have not been able to find any answer about the above said question from the record.

12. There is another aspect of the case. Five persons namely Muhammad Saleem (appellant), Anwaar Haider, Muhammad Ashraf alias Papu, Adil and Yasin were implicated in this case. Before the learned trial court, it was the case of the complainant that all the above said accused persons abducted Umer Waqas for the purpose of ransom and subsequently after receiving amount of Rs.2,00,000/- as ransom committed his murder. After conclusion of trial, learned trial court acquitted Anwaar Haider, Muhammad Ashraf alias Papu, Adil and Yasin co-accused of the appellant who were having similar role with that of the appellant and Crl. Appeal No.609 of 2014 filed against their acquittal by the complainant was dismissed for non-prosecution by a learned Division Bench of this Court vide order dated 10.12.2015, therefore, the question, for determination before us, is whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant namely Anwaar Haider, Muhammad Ashraf alias Papu, Adil, and Yasin can be believed against the appellant? In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Shahbaz v. The State" (2016 SCMR 1763), wherein it was held at page 1765 as under:-- "2. ...The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood, post-mortem examination of the deadbody of Aftab Akhtar deceased was noticeably delayed as the same had been concluded in the following morning and the duration between death and post-mortem examination was recorded as about eleven hours. It appears that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. The said story of the prosecution already stands substantially disbelieved to the extent of Muhammad Abbas co-accused and we have found that the same was not free from doubt even to the extent of Shahbaz appellant." It is evident from perusal of the above mentioned judgment of the Hon'ble Supreme Court of Pakistan that testimony of a witness will be acceptable against one set of accused though the same has been rejected qua another set of accused facing the same trial, provided it gets some independent corroboration on material particulars of the case and in the absence of any independent corroboration qua the role attributed to an accused he would also be entitled to acquittal. We have not been able to find any independent corroboration to the extent of appellant for maintaining his conviction on a capital charge.

13. So far as alleged recovery of Rs.85,000/- at the instance of appellant is concerned, the same is immaterial because it was not the case of prosecution that the amount allegedly handed over to the appellant and his co-accused was duly marked. Moreover, such like currency notes are available in wide circulation and no denomination of the said currency notes has been brought on record. As far as alleged recoveries of slipper, spectacles and factory card belonging to the deceased allegedly recovered at the instance of appellant are concerned, the same are ordinary things, easily available in the market. Therefore, we hold that it is not safe to rely on these pieces of evidence.

14. So far as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.

15. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In "Muhammad Akram v. The State" (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan, at page 236, was pleased to observe as under:- "13. ...It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

16. For the foregoing reasons, Criminal Appeal No.139-J of 2014 filed by Muhammad Saleem (appellant) is allowed, convictions and sentences awarded to the appellant vide judgment dated 26.02.2014 passed by the learned Judge ATC-1, Lahore are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Muhammad Saleem, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.

17. Capital Sentence Reference is answered in the NEGATIVE and the sentence of death awarded to Muhammad Saleem (convict) is NOT CONFIRMED.

18. Before parting with this judgment, it is clarified that the observations recorded in this judgment are relevant only for the disposal of this appeal which shall not influence the learned trial court in any manner whatsoever in case of arrest and trial of other co-accused of the appellant who were proclaimed offenders at the time of pronouncement of the impugned judgment. HBT/M-87/L Appeal allowed.