2017 P Cr (PLP)

ABDUL SAMI KHAN, J.

Through this appeal under section 25 of Anti Terrorism Act, 1997 the appellant has challenged the vires of the judgment dated 14.02.2012 handed down by the learned Judge, Anti-Terrorism Court-I, Faisalabad wherein the appellant was convicted under section 365-A, P.P.C. and he was sentenced to death. The appellant was further convicted under section 302(b), P.P.C. and was sentenced to death. He is also convicted for an offence under section 7(e) of Anti-Terrorism Act, 1997 and he was sentenced to death. It has specifically been mentioned in the impugned judgment that the sentence of death passed against Muhammad Safeer appellant would be on three counts. The appellant was also ordered to pay compensation of Rs. 100,000/- under section 544-A, Cr.P.C. to the legal heirs of Ali Haider Muhammad deceased or in default of payment of compensation to further undergo simple imprisonment for six months. The appellant was also convicted under section 201, P.P.C. for causing disappearance of evidence of murder and he was sentenced to undergo rigorous imprisonment for 5 years with fine of Rs. 50,000/- or in default of payment of fine to further undergo simple imprisonment for six months. The benefit of section 382-B, C.P.C. is extended in favour of the appellant. His moveable and immovable properties were ordered to be confiscated in favour of the State. The appellant has challenged his conviction and sentence before this Court through the instant appeal whereas the State has also filed Criminal Appeal No. 501 of 2012 against acquittal of respondents Nos. 1 to 5 mentioned therein. The learned trial court has sent reference under section 374, Cr.P.C. for confirmation or otherwise of the sentence of Muhammad Safeer appellant which was numbered by the Office as Capital Sentence Reference No. 09-T of 2012. We propose to decide all these matters together through the instant consolidated judgment.

2. According to the prosecution story set forth in the FIR the son of complainant namely Ali Haider Muhammad, aged about eight and a half years went missing since 4.00 p.m. on 22.08.2011 who had not returned home. He was searched everywhere in and outside the home. It is mentioned in the FIR that at the time of missing son of the complainant was wearing black coloured shirt and brown coloured pant. He could tell his name and name of his father. The complainant has also affixed his picture with the application. Upon application moved by the complainant formal FIR No. 964 was registered on 22.08.2011 at Police Station Gulberg, Faisalabad in respect of an offence under section 363, P.P.C. During investigation of this case the complainant had got recorded supplementary statement on 27.08.2011 wherein he had mentioned that he had come to know that his son had been abducted by Muhammad Safeer to receive heavy ransom and he had committed his murder regarding which he had also informed his friends Hafiz Muhammad Zubair, Abdullah Khalid and Yasir. Muhammad Safeer along with Yasir on motorcycle had been searching for place to conceal deadbody of Ali Haider. They had been making planning to extract heavy amount as ransom from the complainant but they could not find occasion to conceal the deadbody of the deceased. Later on Muhammad Safeer after dragging deadbody from the house of Muhammad Javed had thrown the same in street No. 09 in front of an Agency of Toffees. It is stated in the supplementary statement that brother of Muhammad Safeer namely Muhammad Rafique, Javed, Irfan were also aware of abduction and murder of the deceased. Thus, the appellant was introduced in this case along with his co-accused through supplementary statement.

3. The prosecution in order to prove its case against the appellant examined as many as eleven prosecution witnesses before the learned trial court. The evidence of extra-judicial confession has been provided in this case by Ahmad Nadeem (PW5) whereas evidence of last-seen has been provided by Rana Shahid Hussain. The complainant himself has appeared as PW7 and he has furnished evidence regarding recoveries. The medical evidence in this case was furnished by Dr. Saeed Akbar Tariq, Demonstrator, Department of Forensic Medicine, Punjab Medical College, Faisalabad who had conducted post-mortem examination on the deadbody of deceased Ali Haider. Allah Rakha, SI and Ameer Muhammad, Inspector PW9 and (PW10) respectively have conducted investigation in this case. Remaining evidence produced by the prosecution witnesses is more or less formal in nature.

4. In his statement recorded under section 342, Cr.P.C. the appellant had controverted the allegations leveled against him by the prosecution and he had also professed his innocence. He has neither opted to appear before the learned trial court to adduce evidence under section 340(2), Cr.P.C. on oath nor has opted to produce defence evidence to prove his innocence.

5. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond any reasonable shadow of doubt and, thus, convicted and sentenced him as mentioned and detailed above. Hence, this appeal before this Court.

6. Learned counsel for the appellant submits that the prosecution has miserably failed to prove the case against the appellant beyond any reasonable shadow of doubt. Learned Deputy Prosecutor General assisted by learned counsel for the complainant submits that the prosecution has proved the guilt of the appellant to the hilt.

7. We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have also scanned the record with their able assistance.

8. Admittedly the appellant is not named in the FIR which has initially been registered simply under section 363, P.P.C. for missing of Ali Haider deceased. In the FIR Rana Khurram Mahmood, complainant (PW7) has neither expressed suspicion of abduction of the deceased by anybody nor had he mentioned that his son was abducted for heavy ransom. The deadbody of Ali Haider deceased was found from street No.09 in front of Agency of Toffees, situated at Mohammad Pura after two days, i.e. on 24.08.2011 of lodging the FIR/disappearing of the deceased. The appellant has been introduced in this case for the first time on 27.08.2011 after about five days of registration of case through a supplementary statement made by the complianant after three days of the recovery of deadbody. Even in the supplementary statement got recorded by the complainant no source of information has been mentioned. Law is quite settled on the point that the supplementary statement without source has got no value in the eyes of law. Reliance can be placed on the cases of Naeem Akhtar v. The State (1996 SCMR 511) and Abid Ali alias Ali v. The State (2011 SCMR 161).

9. From the evidence of the prosecution available on record, it is clear that the case of the prosecution hinges upon extra-judicial confession, last seen evidence, recoveries and medical evidence. Now we shall first discuss the extra judicial confession allegedly made by the appellant before the prosecution witnesses. The prosecution has examined Ahmad Nadeem (PW5) to prove the extra-judicial confession allegedly made by the appellant in this case. Admittedly this witness is not familiar to the appellant prior to taking place of alleged occurrence in this case so in this eventuality it does not appeal to a prudent mind that why the appellant chose this witness to express his secret before him to whom he was not known prior to occurrence, knowingly that his such confession would take him to gallows. On the other hand this witness had admitted his old business relationship with the father of the complainant because during his cross-examination he had admitted that he remained President of D Ground Traders Association and on the fateful night he went to the house of the complainant late in the night. This witness has stated in his evidence that his manager has told the complainant on telephone regarding confessional statement allegedly made by the appellant before him and one Sheikh Ilyas (given-up) but none of the investigating officers has either associated his manager with the investigation or has brought on record any tangible material on the record of investigation to prove this particular fact. Although one Sheikh Ilyas was also present at the time of making confessional statement by the appellant and his co-accused Muhammad Rafique yet the fact remains that he has not been produced by the prosecution before the learned trial court to adduce evidence in this regard, therefore, the evidence of extra-judicial confession made by sole witness, i.e. Ahmad Nadeem (PW5) could not find support. As stated above Ahmad Nadeem (PW5) has good business relations with the father of the complainant, therefore, he is an interested witness in this case. Law is quite settled that the evidence of an interested witness can only be relied upon when the same is corroborated by an independent and impartial corner which is missing in this case. An overwhelming analysis of the evidence with regard to extra-judicial confession gives an implied impression to us that the prosecution has manufactured extra-judicial confession in this case to strengthen the case against the appellant after taking legal advice in this regard.

10. The last-seen evidence has been provided by Rana Shahid Hussain (PW6) who allegedly seen the deceased in the company of the appellant on fateful evening when he visited the house of Sheikh Nasir, neighbour of Rana Mehmood-ul-Hassan father of the complainant and grandfather of the deceased. He has categorically stated that on that day, 22.08.2011 one Sheikh Riaz (given -up) was with him. Admittedly the prosecution has not produced Sheikh Nasir and Sheikh Riaz before the learned trial court in support of last-seen evidence. Rana Shahid Hussain (PW6) is not resident of the locality where the deceased was residing, therefore, the most important witness of last-seen evidence would be Sheikh Nasir, neighbour of Rana Mehmood-ul-Hassan who alleged to have seen the deceased in the company of the appellant along with Rana Shahid Hussain (PW6) on the fateful evening but it is intriguing to note here that instead of his own neighbour the complainant has examined Rana Shahid Hussain (PW6) to adduce last-seen evidence who is a related witness and hale from the same family. He is also friend of the complainant and admittedly doing business of cloth as was the complainant. Even otherwise he has got recorded his statement under section 161, Cr.P.C. after six days of the occurrence and has not explained any reason why he remained mum for six days when according to him they returned on third day of the occurrence. It is settled law that belated statements recorded under section 161, Cr.P.C. unless the delay is validly explained by the witnesses or prosecution have got little value in the eyes of law and the same cannot be believed. Reliance in this regard can be placed on the case of Ghulam Qadir and 2 others v. The State (2008 SCMR 1221). The relevant paragraph is reproduced as under:- "His statement under section 161, Cr.P.C. was recorded at very belated stage on 4-3-1999. Needless to emphasize that belated examination of a witness by the police may not be fatal to the prosecution case but where the delay is unexplained, accused has not been named in the FIR and circumstances justify that the open FIR and delay have purposely been manoeuvred to name the accused later, such managed delay and gaps adversely affect the prosecution case. The version of Muhammad Azam would denude his statement of all legal values, Mehmood Ahmad v. The State 1995 SCMR 127". Reliance can also be placed on 2010 SCMR 584, 1998 SCMR 570 and 1993 SCMR 550(8). Thus, we are of the view that he has been manufactured by the complainant through PW6 to strengthen the case against the appellant and procure his conviction.

11. Now adverting to recoveries allegedly effected in this case. Rana Khurram Mahmood, complainant (PW7) himself appeared before the learned trial court and he. has deposed about recoveries allegedly effected from the appellant and his co-accused. According, to him one string (P-9), Shoes of Ali Haider (P-10/1-2), a shirt of Safeer (P-11), his pant (P-12), a piece of cloth (P 13), a bed sheet (P-14), a plastic bottle (P-15), an empty bottle of liquor (P-16) from the Bethak of Irfan co-accused who has already been acquitted of the charge by the learned trial court. He further stated before the learned trial court that the appellant has also got recovered locket (P-17) of Ali Haider and his own NIC (P-18) from his own house. We have given our anxious consideration over recoveries effected in this case and we have observed that only two articles belonging to the deceased have allegedly been recovered from the appellant during investigation of this case, i.e. Shoes of Ali Haider (P-10/1-2) and locket (P-17) but it is astonishing to note that at the time of recovery of deadbody from street No. 09 the complainant (PW7) was present but he has not stated that the deadbody was recovered without shoes. Even in the FIR he has not mentioned that his son was wearing locket when he disappeared. A perusal of examination-in-chief got recorded by the complainant (PW7) shows that the deadbody was recovered after two days of disappearance of deceased, i.e. on 24.08.2011 and on third day, i.e. 25.08.2011 Sheikh Riaz and Rana Shahid Hussain have told him that they have seen the deceased in the company of the appellant but admittedly the complainant (PW7) has introduced the appellant in this case as an accused person on 27.08.2011 and there is no explanation as to why he kept mum for two days when he had duly been informed by Sheikh Riaz and Rana Shahid Hussain. This fact cast serious doubt in the statement adduced by Rana Khurram Mehmood, complainant (PW7), thus, a worthy reliance cannot be thrown on his statement to maintain conviction of the appellant in this case. It is admitted at all hands that the deadbody of the deceased had neither been recovered from the exclusive possession of the appellant (or on his pointing out) nor on his disclosure rather the same has been recovered from an open place in front of an Agency of Toffees (candies) in street No.

09. It is also admitted at all hands that nobody had seen the appellant committing murder of the deceased or throwing his deadbody rather death of the deceased remained in mystery in this case.

12. The medical evidence has been furnished in this case by Dr. Saeed Akbar Tariq, Demonstrator, Department of Forensic Medicine, Punjab Medical College, Faisalabad (PW11). The medical evidence has only described the physical position of deadbody when the same was recovered on 24.08.2011 and it does not point out any clue or connection with the commission of murder by the appellants. Even otherwise the medical evidence is only used for confirmation of ocular evidence with regard to seat of injury, time of occurrence and weapon of offence, etc. but medical evidence itself does not constitute any corroboration qua the identity of an accused person to prove his culpability. Reliance in this regard can be place on the case of Muhammad Sharif and another v. The State (1997 SCMR 866). There is yet another important factor in this case that as anal swabs taken by the doctor from the anus of deceased and the same were sent to the Office of Chemical Examiner and according to report of Chemical Examiner the swabs were found to be stained with semen which fact shows that it was a case of sodomy and murder but the prosecution to give heinous touch to the occurrence has tried to introduce abduction and demand of ransom. The prosecution has not procured any evidence about sodomy and there is no report of DNA regarding matching of semen. The DNA report (Ex. CA) in this case only proved that deceased was son of the complainant. Admittedly neither the ransom has been demanded in this case nor the same has been paid and the prosecution failed to prove this aspect of the matter. We may observe here that by exaggerating the matter and converting the case of sodomy and murder into abduction for ransom and murder the prosecution has ruined its whole case due to ill-advice. Thus, the medical evidence does not provide any support to the case of prosecution.

13. Admittedly, the witnesses of prosecution who have furnished evidence of last-seen and extra-judicial confession are related to business community and they are previously known to the complainant and his father so they are interested and related witnesses and their testimony has not been supported or corroborated by any independent witness in this case. The other witnesses of extra-judicial confession (Sheikh Ilyas) and last-seen evidence (Sheikh Riaz) have not been produced by the prosecution before the learned trial court in support of evidence adduced by PW5 and PW6, therefore, an adverse inference under Article 129(g) of Qunan-e-Shahadat Order, 1984 can be drawn that had they been produced, they would not have supported the case of prosecution. Moreover on the same set of evidence the learned trial court has acquitted Muhammad Yasir, Abdullah Khalid, Hafiz Zubair Akbar, Muhammad Javaid and Muhammad Irfan co-accused so the same set of evidence cannot be believed qua the culpability of the appellant. It is dilemma in our society that people used to involve innocent persons in criminal cases by cooking up false stories which usually end into acquittal even guilty persons. This is what, as happened in this case, the prosecution by changing the complexion of occurrence tried to entangle maximum persons in this case.

14. We may observe here that law is quite settled on the point that to prove the case through circumstantial evidence in criminal case, the chain of circumstances should be so strong and solid that one end should start right from the toe of the deceased and the same should encircle a dense grip around the neck of the accused on the other side. A slight break in the chain of circumstances would definitely make the grip of chain loose and also breaks the geometrical progression of the chain especially when the same has been built up on the basis of feeble or shaky evidence. It is also settled law that not many circumstances creating doubt in the prosecution case are required but only one circumstance creating doubt in the prosecution case is enough to acquit the accused. Reliance can easily be placed upon 2009 SCMR 230 wherein the Hon'ble Supreme Court has held as under:- "For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts

Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right." Similar view was affirmed in the cases of Tariq Pervez v. The State (1995 SCMR 1345) and Muhammad Akram v. The Slate (2009 SCMR 320). It is also golden principle of Islamic jurisprudence that it is better to acquit ten guilty persons than to convict a single innocent person.

16. The upshot of our discussion made above is that clouds of doubts are, looming large in this case rendering the same to be based on polluted evidence of interested witnesses who have been procured at belated stage to create evidence just to strengthen the case of prosecution. Thus, the prosecution has failed to prove its case against the appellant beyond any reasonable shadow of doubt. Criminal Appeal No.100-J of 2012 is, therefore, allowed and the appellant is acquitted of the charge by extending benefit of doubt to him. He shall be released from the jail forthwith, if not required to be detained in connection with any other case.

17. From the discussion made above, Criminal Appeal No. 501 of 2012 against acquittal of respondents Nos. 1 to 5 therein is dismissed. Capital Sentence reference No. 09-T of 2012 is answered in negative and the sentence of death passed against Muhammad Safeer appellant on three counts are not confirmed. JK/M-217/L Appeal accepted.