2023 PLP 17 (YLRN)

KHADIM HUSSAIN TUNIO, J.

By this common judgment, we intend to dispose of the captioned anti-terrorism appeals filed by the appellants Muhammad Irfan, Abdul Hafeez and Allah Ditta who have challenged the judgment dated 23.12.2019 (impugned judgment) passed by the learned Judge Anti-Terrorism Court-XVII, Karachi in Special Case No. 2027/2017 (Re: The State v. Allah Ditta son of Karam Khan and others), outcome of FIR No. 344/2017 under sections 302, 365-A, 377, 201, 75 and 34 P.P.C. read with section 7 of the Anti-Terrorism Act, 1997 (ATA 1997) registered at Police Station Ittehad Town, Karachi. Through the impugned judgment, appellants were convicted under section 364-A, P.P.C. and sentenced to suffer one count of life imprisonment each, under section 302(b), P.P.C. read with section 34, P.P.C. and sentenced to suffer another count of life imprisonment with compensation under section 544-A, Cr.P.C. of Rs.100,000/- each to the legal heirs of the deceased in default whereof to suffer further imprisonment for six months, under section 377, P.P.C. and sentenced to suffer another count of life imprisonment and to pay fine of Rs.50,000/ - each in default whereof to further undergo imprisonment for three months, under section 201, P.P.C. and sentenced to suffer seven years and fine of Rs.50,000/- each in default whereof to suffer further imprisonment for three months more and under section 7(1)(a) of the Anti-Terrorism Act, 1997 and sentenced to suffer another count of life imprison-ment. All these sentences were ordered to run concurrently and benefit of section 382(b), Cr.P.C. was extended to them.

2. Precisely, facts of the prosecution case are that the complainant Faqir Muhammad resided with his family in House No. 2832 of Quaimkhani Colony of Ittehad Town. On 20.09.2017, his nine year old son Asif, after returning from his school (madrasah) returned home and at 1800 hours went out to play. Two hours had passed and Asif had not returned, whereafter the complainant started searching for Asif within his neighbour-hood. He also informed Police Station Ittehad Town about his son's disappearance. Five days later, on 25th the complainant received a phone call where the caller, after confirming complainant's relationship with Asif, demanded Rs.1,500,000/- as ransom for his release while warning the complainant of dire consequences for his son in case their demands are not met. Two days later, the complainant again received a phone call where the caller reassured him of Asif's well-being and sent him a memory card that was left taped to an electric pole which the complainant recovered and found pictures of his son and his audio recording inside. Therefore, the complainant approached the police and lodged the FIR. Then, on 05.10.2017, the complainant after negotiation paid Rs.130,000/- to the abductees through Mobicash on Account Nos. 03032785619 and 03018677017, but refused to release the complainant's son.

3. Usual investigation was conducted by the investigation officer who was informed of the arrest of three accused persons (present appellants) arrested for an offence under section 23(i)(a) Sindh Arms Act, 2013 who had disclosed their involvement in Asif's kidnapping who were then re-arrested by the investigation officer and pointed-out, where the dead body of the minor, who was murdered, was recovered from. On the investigation's conclusion, challan was submitted against the accused. Then, relevant documents were supplied to the accused whereafter a charge was framed against them to which they pleaded not guilty and claimed to be tried. At the trial, prosecution examined as many as fifteen prosecution witnesses namely PW-1 Faqir Muhammad, PW-2 Ghaffar, PW-3 HC Qamar Iqbal, PW-4 ASI Naseer Ahmed, PW-5 SIP Muhammad Umar, PW-6 SIP Ghulam Qadir, PW-7 Aamir Nawaz, PW-8 MLO Sheeraz Ali, PW-9 ASI Muneer Ahmed, PW-10 ASI Muhammad Zubair, PW-11 ASI Muhammad Bashir, PW-12 SI Jan Muhammad, PW-13 Inspector Ghulam Mustafa, PW-14 SI Imdad Ali Abro and PW-15 Inspector Akhtar Aziz, all of whom produced various documents and other items which were duly exhibited, whereafter, prosecution side was closed. Statements of accused were recorded under section 342, Cr.P.C. wherein they denied the prosecution case in toto and pleaded their false implication. However, they did not examine themselves on oath in disproof of the charge. Accused Muhammad Irfan further stated that he was arrested by the Rangers on the instigation of accused Allah Ditta and that he was not involved in Asif's kidnapping.

4. After hearing learned counsel for the respective parties, learned trial Court convicted and sentenced the appellants through impugned judgment as stated supra.

5. Learned counsel for the appellant Allah Ditta has contended that the appellant was arrested on 28.10.2017 and the alleged pointation of the place of incident made by Allah Ditta was already known to the police; that the CDR does not connect the appellant Allah Ditta with the offence; that the DNA report does not implicate the appellant either; that no direct evidence is available on the record against him; that the alleged ransom money has not been recovered either; that the appellant Allah Ditta was arrested from his native village in Punjab and falsely implicated; that there is an eight days delay in the lodging of FIR and in support of his contentions, learned counsel has relied on the case law reported as 2018 PCr.LJ 1465 (Zahir Rahman and another v. The State through A.A.G.), 2018 SCMR 2092 (Hayatullah v. The State), 2016 SCMR 274 (Azeem Khan and another v. Mujahid Khan and others) and 2006 PCr.LJ 1400 (Sabir Ali Waseem v. The State). Similarly, learned counsel for appellant Abdul Hafeez has contended that the appellant has not received any ransom from the complainant; that the only evidence against Hafeez is that furnished by the Allah Ditta; that the mobicash account is not in the name of appellant Abdul Hafeez; that there are several contradictions in the evidence of the prosecution witnesses. However, learned counsel for the appellant Muhammad Irfan while arguing similarly contended that the appellant Muhammad Irfan is innocent and was falsely implicated by the Rangers at the behest of Allah Ditta; that nothing incriminating was recovered from the appellant Muhammad Irfan; that the appellant Irfan did not accompany Allah Ditta and Abdul Hafeez to the place of murder and kidnapping as he was not involved in the said offence; that none of the prosecution witnesses have deposed against him and that no evidence is available on the record to implicate him.

6. Conversely, learned APG for the State has argued that the prosecution has examined fifteen witnesses who have fully supported the prosecution case; that the impugned judgment is legal one and does not suffer from any infirmity or illegality; that sufficient circumstantial evidence is available on the record to connect the appellants with the offence; that appellant Allah Ditta and Abdul Hafeez voluntarily led the police to the place of abduction and murder of deceased Asif, therefore he prays for the instant appeals to be dismissed being merit-less.

7. We have heard the learned counsel for the respective parties and perused the record available before us. Undeniably, the incident took place on 20.09.2017 and per record, dead body of Asif was found on 21.09.2017, however such fact was unknown until later on and the occurrence, went unwitnessed. The complainant lodged the FIR against unknown culprits for the kidnapping and ransom demand for his son Asif on 28.09.2017, eight days after the alleged kidnapping and he was unable to furnish any explanation as to why this delay occurred despite him having received the first phone call for ransom demand on 25.09.2017. Without doubt, it has been established that Asif (deceased) died an unnatural death and was also sexually assaulted prior to that. Initially, the FIR was lodged against unknown accused and then the investigation officer was informed of the arrest of the present appellants in different FIRs for the offence under section 23(i)(a) Sindh Arms Act, 2013 who had allegedly disclosed during interrogation about their involvement in Asif's kidnapping and murder. The appellants were interrogated and re-arrested.

8. It is also a matter of record that the appellants Abdul Hafeez and Allah Ditta, during interrogation had given an extra-judicial confession before the police regarding their involvement and then proceeded to lead the police to the place where the deceased had been kidnapped from and then the sewer where the dead body was recovered from. It is trite law now that extra-judicial confession before the police is not an admissible piece of evidence that can be used against an accused as established in the case of Sajjan Solangi v. The State (2019 SCMR 872). PW-14 Akhtar Aziz, the investigation officer, deposed that he did not get the appellants' confessional statements recorded before a Judicial Magistrate even after their extra-judicial confession which again is another surprising aspect of the case as in the presence of a judicial confession recorded as per the guidelines, the case of the prosecution would invariably have been stronger. Therefore, the confession before the police is of no evidential value before this Court. Then comes the pointing-out of the crime scene and the place of murder by the appellants Allah Ditta and Abdul Hafeez. As far as the memo. of inspection of place of occurrence where the murder took place on the pointation of the appellants available at Ex.7/B and memo. of place of occurrence where the dead body was thrown as pointed out by the appellants available at Ex.7/C is concerned, the same does not fall within the ambit of Article 40 of the Qanun-e-Shahadat Order, 1984 as the same did not lead to the discovery of any new facts. The crime scene and the place wherefrom the dead body was recovered had already been visited by the police and the investigation officers, therefore pointation subsequent thereto is not a discovery of a fact within the meaning of Article 40 of the Qanun-e-Shahadat Order, 1984, inasmuch, as nothing was recovered in consequence thereto. Reliance, in this respect, is placed on the case of Mst. Askar Jan and others v. Muhammad Daud and others (2010 SCMR 1604) and the case of Atif-ur-Rehman v. The State (2021 SCMR 324). Furthermore, the complainant had allegedly identified the appellants while they were in custody as being people from his neighbourhood, but unfortunately trial Court took this as an identification by the complainant as the appellants being culprits. It is a matter of record that the incident was unwitnessed and mere identification by the complainant as the appellants living in his neighbourhood proved nothing besides the fact that they were neighbours.

9. The next piece of evidence placed on the record is the CDR report for two cell numbers, one of an individual namely Jam Muhammad Hafeez son of Jam Zahooruddin and perusal of the same does not indicate any contact made from the said number with the complainant. The next mobile number belonged to one Mansoor Ahmed son of Jumman which number was the prime one used for the demand of ransom. Besides the deposition of PW-14 Akhtar Aziz, nothing was brought on record to establish that any of these numbers were in the use of the present appellants who then used the same for the demand of ransom. Akhtar Aziz, in his cross-examination deposed that "It is correct to suggest that I have not recorded the statement of Jam Muhammad Hafeez nor cited him as a witness." Nor did he involve Mansoor Ahmed, in whose name the SIM through which ransom was demanded was made. It is pointed out in the memo. of initial arrest and recovery of the appellants in the case under section 23(i)(a) SAA available at Ex.17/ A that from appellant Allah Ditta, an old G5 mobile phone and a Ufone SIM card was recovered, from appellant Muhammad Hafeez a Nokia phone with two SIM cards was recovered and from appellant Irfan, a Nokia mobile phone with six SIM cards were seized. However, the memo. never mentioned the numbers connected to each of those nine SIM cards recovered in total, which was the failure of the arresting officer and a blow to the prosecution case that could otherwise have proven to be significant in implicating the appellants. Had the numbers been mentioned in the memo, it would have been easier to establish that these were recovered from the appellants which would have made the CDR relevant, however without the same CDR report holds no evidential value against the appellants and establishes nothing besides the fact that the ransom was demanded from the number belonging to one Mansoor Ahmed, an individual not even involved in the present case. PW-14 Akhtar Aziz further deposed in his cross-examination that "It is correct to suggest that during investigation I have not recovered any mobile and SIM number in the name of accused Allah Ditta. It is correct to suggest that in the CDR there is no any mobile SIM or IMEI number in the name of accused Allah Ditta." Moreover, prosecution also failed to produce a transcript or an audio recording of the relevant ransom calls. The Hon'ble Apex Court, in the case of Mian Khalid Pervaiz v. The State (2021 SCMR 522) observed that merely producing call data record without any transcripts of the calls or end to end audio recording could not be used as evidence worth reliance and even if the same were not produced, it should at least be established by the prosecution that the callers on both ends were the same persons whose call data record was being used. The recovered memory card is of no assistance to the prosecution as it does not in any way link any of the appellants to the crime.

10. As far as the medical evidence is concerned, the same includes post-mortem report that establishes the cause of death of deceased Asif, DNA report that establishes the relationship of the deceased and the complainant being his biological father and the fact that unnatural offence was committed with deceased Asif. The investigation officer failed to obtain DNA samples of the appellants, despite their arrest, for its matching with any sample found on the deceased to establish that it was in fact the appellants who had committed the said unnatural offence with him. In the absence of the same, medical evidence is merely confirmatory evidence as far as establishing death goes. The Hon'ble Apex Court has observed in the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600) that:-- "The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person. Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners." (emphasis supplied)

11. The incident being unwitnessed has no ocular account, and the only evidence available on the record is circumstantial. When considering circumstantial evidence, the Hon'ble Apex Court in the case of Fayyaz Ahmed v. The State (2017 SCMR 2026) has observed that:- "

5. To believe or rely on circumstantial evidence, the well settled and deeply entrenched principle is, that it is imperative for the Prosecution to provide all links in chain an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. The present case is of such a nature where many links are missing in the chain. To carry conviction on a capital charge it is essential that courts have to deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubts, resting on circumstantial evidence. "Reasonable Doubt" does not mean any doubt but it must be accompanied by such reasons, sufficient to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows, To draw an inference of guilt from such evidence, the Court has to apply its judicial mind with deep thought and with extra care and caution and whenever there are one or some indications, showing the design of the Prosecution of manufactur-ing and preparation of a case, the Courts have to show reluctance to believe it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without any missing link, otherwise at random reliance on such evidence would result in failure of justice." (emphasis supplied)

12. Similar view was again taken in the case of State v. Ahmed Omar Sheikh (2021 SCMR 873). In the present case, knowing that the incident was unwitnessed, it was incumbent upon the prosecution to do its best in proving an unbroken chain of events that would act as circumstantial evidence to establish the guilt of the appellants. Alas, it failed to do so and an innocent 9 year old's death went in vain. We are also disturbed to note that the investigation officer miserably failed to investigate the case properly by involving all possible parties such as the owners of the cell, numbers or even getting DNA samples of the appellants despite knowing that an unnatural offence had been committed. Then, trial Court based its conviction in a case involving capital punishment on the basis of evidence without adjudging its probative value and on the gruesome nature of the offence. Without doubt, the offence committed was gruesome where a 9 year old innocent soul lost its life at the hands of ill-minded assailants, but this ruthless murder could not set the scales of justice against the appellants by prejudging them as the culprits. This aspect was elaborately discussed by the Hon'ble Apex Court in the case of Naveed Asghar and 2 others (supra). Criminal administration of justice still demands that an accused be presumed innocent until proven guilty, and that proof of guilt must also be beyond reasonable doubt which then leads us to the golden rule of benefit of doubt. To award such benefit of doubt, as held by the Hon'ble Apex Court in the recent case of Gul Muhammad and another v. The State through PG Balochistan (2021 SCMR 381), it is not necessary that there must be many circumstances creating doubt, even a single one creating enough doubt in the prudent mind is sufficient to grant benefit of the same to the accused.

13. For the foregoing reasons, we find that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt. Resultantly, their convictions and sentences awarded by the learned trial Court through impugned judgment are set aside, the appellants are acquitted of the charge and the impugned judgment being not sustainable in law is set aside as well. Consequently, captioned appeals are allowed. The appellants be released forthwith if not detained in any other cases. JK/M-86/Sindh Appeals allowed.