2020 P Cr (PLP)

ASJAD JAVAID GHURAL, J.

Through this criminal appeal under section 25 of the Anti-Terrorism Act, 1997 appellants Hafiz Shahbaz, Imran, Muhammad Ali and Mst. Khadija Bibi have challenged the vires of judgment dated 06.11.2013 passed by the learned Judge, Anti-Terrorism Court-III, Gujranwala in case FIR No.32 dated 07.02.2013, in respect of offences under sections 365-A, P.P.C. and section 7(e) of the Anti-Terrorism Act, 1997, registered at Police Station Kotwali, District Sialkot whereby he was convicted and sentenced as under:- Under section 365-A, P.P.C. Imprisonment for life and to also liable for forfeiture of property each. Under section 7(e) of Anti-Terrorism Act, 1997 Imprisonment for life with the fine of Rs.50,000/- each and in case of default, to further undergo simple imprisonment for six months each. They were held entitled to the benefit of section 382-B, Cr.P.C. and their sentences were directed to run concurrently.

2. The prosecution story unfolded in the crime report (Ex.PB/2) registered on the complaint of Zahoor Elahi (PW-10) is that on 06.02.2013 at about 07:30 p.m. his son namely, Amir Zahoor left the house informing that he had to meet his friend. At about 11:55 p.m. the complainant received a call from cell phone of his son Amir Zahoor where an unknown caller inquired him about his son and thereafter said that his son was in his custody and demanded ransom amount of Rs.20,00,000/-, otherwise his son would be dealt with as had been done with the son of one Haider Pehalwan and would throw the pieces of the dead body in front of his house. After hearing all this he feared a lot and on the next day at about 08:48 p.m. he again received a call from another cell phone i.e. 0322-7333496, wherein the accused repeated the demand of ransom, got established telephonic contact with his son and asked to manage ransom within four hours and switched off the mobile-phone.

3. Iftikhar Ahmed, SI (PW-15) visited the place of occurrence on the same day, i.e. 07.02.2013 and recorded the statements of witnesses under section 161, Cr.P.C. On 11.02.2013 he conducted raid at the rented residential house of appellant Khadija Bibi, arrested her and recovered abductee Amir Zahoor. He recorded statement of complainant as well as abductce on the next day i.e. 12.02.2013 and also got recorded the statement of abductee under section 161, Cr.P.C. on 16.02.2013. He arrested appellant Hafiz Shahbaz, Imran and Muhammad Ali on 13.02.2013 and at the time of arrest certain articles i.e. mobile phones and cash were recovered from their pointation. He got sent the appellants to jail for test identification parade. Muhammad Riaz Inspector (PW-14) got conducted test identification parade of the appellants in jail premises on 18.02.2013. Muhammad Taseer Riaz Inspector (PW-9) interrogated the appellants and during investigation appellant Hafiz Shahbaz led to the recovery of Rs:10,000/-, a mobile phone, pistol and also got recovered vehicle bearing No.LED-10/4075 Suzuki, appellant Imran got recovered Rs:9,000/- and pistol. After completion of investigation he got report under section 173, Cr.P.C.

4. At the commencement of the trial, learned trial Court had framed a charge against the appellants to which they pleaded not guilty and claimed to be tried.

5. The prosecution examined 16-witnesses besides documents Ex.PX to Ex.PX/3. The appellants in their statements recorded under section 342, Cr.P.C., had denied and controverted all the allegations of fact levelled against them. They neither opted to make statements under section 340(2), Cr.P.C., nor produced evidence in their defence.

6. Learned trial Court, upon conclusion of the trial convicted and sentenced the appellants, as stated above. Hence, this criminal appeal.

7. Learned counsel for the appellants submit that the appellants are quite innocent and they have nothing to do with the alleged occurrence; that it is a case of circumstantial evidence, which is not of a such stature to maintain the conviction and sentence of the appellants; that the last seen evidence was neither trustworthy nor reliable; that the test identification parade was joint which has already been disproved by august Supreme Court of Pakistan in plethora of judgments; that during identification parade no role was assigned to any of the accused; that the recovery of abductee from the house of appellant Mst. Khadija Bibi was without any substance, information and to somehow mysterious; that the evidentiary value with regard to the implication of accused, Hafiz Shahbaz, Imran and Muhammad Ali at the instance of co-accused Mst. Khadija Bibi is a big question mark; that the witness of last-seen and the abductee are completely silent with regard to the features, height, physique etc. of the accused persons; that the payment of ransom amount as claimed by the complainant without taking any assistance from the police seems to be an afterthought story; that at the time of recovery of abductee he was found available in the house of appellant Mst. Khadija Bibi but no rope, wire, weapon or anything was recovered from there in order to prove that the abductee was confined there; that the abductee and Mst. Khadija Bibi both aged about 22 to 23 years were found available, which leaves some impression other than as alleged for by the prosecution; that no call data record (CDR) of the cell phone of the accused was obtained by the Investigating Officer to make any connection inter-se and with the complainant as well; that the prosecution has failed to prove the charge against the appellants beyond shadow of reasonable doubt. At the end, learned counsel pray for the acquittal of the appellants.

8. Conversely, learned Deputy Prosecutor General appearing for the State assisted by the learned counsel for the complainant has vehemently argued that it was a case of abduction for ransom; that Javed Bhatti, the witness had seen the accused persons while forcibly taking away abductee Amir Zahoor who was recovered from a rented house of appellant Mst. Khadija Bibi where she was also arrested; that co-accused were arrested after two days of the alleged recovery of the abductee and thereafter they were well identified during test identification parade; that the accused demanded ransom while using cell phone of the abductee and the call date had established contact between the cell phone of the abductee and his father; that the prosecution has succeeded to prove the charge against the appellant to the hilt. At the end, prayer for dismissal of the appeal has been made.

9. We have heard learned counsel for the appellants, learned Deputy Prosecutor General appearing for the State assisted by the learned counsel for the complainant and perused the record.

10. The prosecution case hinges upon the circumstantial evidence comprising of last-seen evidence, identification parade of the appellants, statement of abductee recorded under section 164, Cr.P.C. and then before this Court, Call Data Record and payment of ransom amount. Complainant Zahoor Elahi made a complaint (Ex.PB) to the police stating that on 06.02.2013 at about 07:30 p.m. his son Amir Zahoor left the house showing that he has to meet his friend. At about 11:55 p.m. he received a call from cell phone of his son Amir Zahoor where an unknown caller inquired him about his son and thereafter said that his son was in his custody and demanded ransom amount of Rs.20,00,000/- in lieu of his son's release otherwise his son would be dealt with as had been done with the son of Haider Pehalwan and would throw the pieces of the dead body of his son in front of his house. After hearing all this he feared a lot. On the next day at about 08:48 p.m. he again received a call from another cell phone i.e. 0322-7333496, wherein the accused repeated the demand of ransom, got conducted telephone conversation with his son and asked to manage ransom within four hours and switched off the mobile-phone. After registration of case, the complainant received telephone calls on different occasions from the accused to fulfill their demand and ultimately, when the complainant assured his inability to make the payment of huge amount, they agreed to receive Rs.50,000, which was thrown near Railway Pathak Adalat Garha near electric poll at about 12:30 (midnight) as directed by them on 10.02.2013 and then at 4:00 a.m., he received a phone call of the police about the recovery of his son. The evidence of the complainant is completely silent that who had demanded the payment and to whom he had paid the same? During trial proceedings he did not pinpoint and raise finger towards any specific person, who had made call or received the amount. Furthermore, it was easy for him to get assistance from the police before making payment of ransom but he kept the police in dark. The demand and payment of ransom has never been established and mere establishing contact from the cell-phone of the abductee at the cell phone of the complainant is not sufficient to prove the demand of ransom. Though second call was made through another cell phone yet quite amazingly, after the recovery of cell phones from the appellants, the Investigating Officer did not bother to collect any data to establish contact amongst them. The testimony of the complainant cannot be used against the appellant in any capacity whatsoever.

11. Javed Bhatti (PW-12) had claimed before the learned trial court that he had seen three male and one female standing near a white Carry Dabba at about 07:30 p.m. when he along with one Muhammad Tahir was standing in street No.2 near A-N Traders factory. Amir Zahoor abductee came close to them while hearing call on cell phone and on reaching near Carry Dabba they pushed him inside and on gun-point took him away. On 18.02.2013 he participated test identification parade in jail premises and out of 60-dummies identified the appellants Shahbaz, Imran and Muhammad Ali. The sole statement of the said witness with regard to the last-seen evidence could not get corroboration from any other source of evidence. The material witness namely, Muhammad Tahir who was accompanying the said witness did not appear in support of the prosecution. During cross-examination, he admitted that his residence was at village Patwal whereas the complainant and the abductee were permanently residing at Muhammad Pura at the distance of 20/22 kilometers from his village, he was serving as a driver of the complainant for last about 3/4 years, the complainant was his relative and he had been receiving the salary of Rs.9,000/- per month. The person (Javed Bhatti PW-12), who was driver of the complainant remained in the company of the complainant but he disclosed and got recorded his statement before the police with the questionable delay of 24-hours, which by itself renders his authenticity to be legally unacceptable in view of the dictum laid down in case titled "Muhammad Asif v. State" (2017 SCMR 486) wherein it has been held as under:- "There is a long line of authorities/precedents of this court and the High Courts that even one or two days unexplained delay in recording the statement of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon."

12. Furthermore, he was a chance witness being resident of 20/22 kilometers away from the residence of the complainant and his unnatural conduct for neither making an attempt to rescue the abductee nor any effort to furnish information to the police or the complainant and disclosing this fact on the next day by itself speaks volume with regard to his authenticity being counter to human conduct as envisaged under Article 129 of Qanun-e-Shahadat Order, 1984.

13. So far as the test identification parade is concerned, appellant Hafiz Shahbaz, Imran and Muhammad Ali were arrested at the instance of their co-accused Mst. Khadija Bibi and they were sent to judicial lockup for the purpose of test identification parade, which was conducted jointly in the jail premises on 18.02.2013 along with 60-dummies in one go and in the same row wherein Javeed Bhatti (PW-12) identified the appellants being the actual culprits. Undoubtedly, he had not given the features, height, complexion and body physique etc. of any of the accused persons in his statement recorded under section 161, Cr.P.C. or at any subsequent stage up to the learned trial court. Anyhow, the practice of joint identification parade in one go with multiple dummies has been disapproved by august Supreme Court of Pakistan. We seek guidance from case titled "Gulfam and another v. The State (2017 SCMR 1189)" wherein it has been held as under:- "The prosecution had maintained that the present appellants had correctly been identified by the above mentioned eye-witnesses during a test identification parade conducted and supervised by a Magistrate but we note that the parade so conducted and held was a joint parade in which both the present appellants had been made to stand along with many other dummies. Holding of joint identification parade of multiple accused persons in one go has been disapproved by this Court in many a judgment......"

14. Iftikhar Ahmad SI (PW-15) along with other police officials conducted raid at the rented house of appellant Mst. Khadija Bibi and recover abductee Amir Zahoor and also arrested her at the spot. During cross-examination he admitted that the said appellant disclosed the names of the remaining appellants due to which he arrested them on 13.02.2013. It is a matter of surprise that the investigating officer recovered abductee Amir Zahoor on 11.02.2013 and let him go to his house without recording his statement and on the next day on 12.02.2013, he recorded his statement and also that of his father Zahoor Elahi for the reasons best known to him for such lapses, which shows the real possibility that he was tutored by some legal expert. The delay in making statement under section 161, Cr.P.C., as held in the preceding paragraph, renders the testimony of an eye-witness/material witness unacceptable. Furthermore, the investigating officer did not disclose before the trial court that how he got information about the presence of the abductee in the house of appellant Mst. Khadija Bibi. Admittedly, neither any witness named Mst. Khadija Bibi as an accused nor had they given her feature but the police conducted raid at her house of its own, which creates serious doubt with regard to the mode and manner of the recovery of alleged abductee especially when he admitted that "no rope, chain or any incriminating material like weapon was recovered from the place of recovery of abductee

It is correct that till 12.02.2013, the abductee did not describe description, features, colour or any identification mark of the accused. It is correct that except abductee and Mst. Khadija accused no other person known to the accused

When we entered in the said house, the abductee was in a room while standing in nervousness, no rope or Azar Band was recovered from the above said place. At that time, abductee was not tied.

The place of arrest of the accused falls within the jurisdiction of Police Station Cantt., Sialkot. I did not inform Police Station Cantt. about my raid. I have not obtained call data of mobiles recovered from the accused. I did not take into possession mobile phone or SIM and its snaps. I have not got medical examination of abductee for the purposes of Zina-Bil- Jabar nor I have conducted investigation on that point. It is correct that abductee and accused Mst. Khadija Bibi are young and healthy. I did not collect call date of any cell phone". In such state of affairs when the abductee was found in the house of appellant Mst. Khadija Bibi and he was free to move being not tied then what was his purpose to stay there. Admittedly, the abductee and Mst. Khadija Bibi were about 22/23 years of age and were available in the house of Mst. Khadija Bibi. The question arises how the lady could constrain the movement of the abductee. It appears that something else was concealed and the drama was played just to show that Amir Zahoor had been abducted and without any information, any clue, any feature of surface, the police reached at the house where the abductee was found sitting along with a young girl. The stance of appellant Mst. Khadija Bibi in her statement recorded under section 342, Cr.P.C. is that Amir Zahoor (abductee) wanted to marry her but his parents were not willing. This plea has much force being close to the reality and supersedes the entire prosecution version.

15. The prosecution evidence could not qualify to prove even a single instance connecting the appellants with the commission of crime. In the cases of circumstantial evidence, the prosecution was bound to build the chain of interlinking circumstances and if any link of the chain is found missing, whole of its case would be destroyed. In the cases of circumstantial evidence, there always remains the chance of fabrication, therefore, the Courts are required to take extra care and caution and examine the case narrowly and if the co-existing circumstances destroy the inference with regard to the accused's guilt, the same cannot be relied upon. Reliance is placed on case titled "Hashim Qasim and another v. The State" (2017 SCMR 986) wherein it has been held as under:- "

circumstantial evidence may sometimes appear to be conclusive but it must always be narrowly examined, if only because this count of evidence may be fabricated in order to cast suspicion on another, therefore, it is all the more necessary before drawing inference, if the accused's guilt from circumstantial evidence to be sure and that there are no other co-existing circumstances, which weaken or destroy the inference then, in that case alone it may be relied upon otherwise, not at all." In view of the above settled principle of law, we are not in agreement with the observation made by the trial Court qua the reasons for conviction and sentence of the appellants on the basis of the available evidence. We have come to the irresistible conclusion that the prosecution has miserably failed to substantiate the charge levelled against the appellants through confidence inspiring evidence.

16. The epitome of above discussion is that the appeal in hand is allowed, the conviction and sentence of appellants Hafiz Shehbaz, Imran, Muhammad Ali and Mst. Khadija Bibi are set aside and they are acquitted of the charge by giving the benefit of doubt to them. They are directed to be released from jail forthwith, if not required to be detained in connection with any other case. JK/S-76/L Appeal allowed.