2019 P Cr (PLP)

ZAHEER-UD-DIN KAKAR, J.

This criminal appeal is directed against the judgment dated 17.07.2018 (the impugned judgment), passed by the Judge, Anti-Terrorism Court, Pishin at Pishin (the trial court), whereby the appellant Ameer Muhammad son of Sirtayaf was convicted and sentenced under section 7(1)(e) of the A.T.A., 1997 to life, besides forfeiture of his property under section 7(2) of the A.T.A., 1997.

2. As per contents of FIR No.56 or 2015, registered with Levies Thana, Chaman, under sections 365-A, 34, P.P.C., that on 30th June, 2015, brother of complainant namely Alla-ud-Din was kidnapped on gunpoint by some unknown accused, when he was on his way to Chaman border. On the following night of 30.6.2015, the accused called the complainant on his cell No.0311-8040006 from the cell No.0321-8040006 of the of abductee and demanded payment of ransom amount of Rs.30,00,000/- in lieu of the release of abductee. The complainant also talked to his abductee brother at the instance of the accused.

3. After formal investigation, report under section 173, Cr.P.C. was submitted before the trial Court and the accused/appellant was sent to face the trial. The trial Court seized with the matter, framed charge against the appellant, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined the following witnesses: PW-1 Muhammad Sarwar. Reader, was witness to recovery memo Ex-P/1-A, whereby the I.O. took into possession photo-state copies of recovery memos of Iron Chain, disclosure memo of the appellant, recovery of Rs.300,000/-, statements of witnesses under section 161, Cr.P.C., total nine qitats of FIR No.57 of 2015. PW-2 Faisal Hameed, Judicial Magistrate, Chaman was witness to identification parade memos, produced the same along with certificates as Ex-P/2-B to Ex-P/4-F. He has also recorded the statement of appellant under section 164, Cr.P.C. and produced the same along with certificate as Ex-P/4-G and Ex-P/4-H. PW-3 Abdul Wali complainant has reiterated the contents of his application and produced the same as Ex-P/3-G (sic). PW-4 Alla-ud-Din is the alleged abductee and brother of the complainant. PW-5 Muhammad Younas Tehsildar/I.O., conducted investigation, recorded statements of witnesses, produced FIR Ex-P/5-J, site map Ex-P/5-K, map of the place of recovery of abductee Ex-P/5-L, incomplete challan Ex-P/5-M and supplementary challan Ex-P/5-N.

4. On completion of prosecution evidence, the appellant was examined under section 342, Cr.P.C. wherein he professed innocence and denied the allegations leveled against him. The appellant did not record his statement on oath nor led any witness in his defence. On conclusion of the trial, the trial Court convicted and sentenced the appellant vide impugned judgment dated 17.7.2018, hence this appeal.

5. Learned counsel for the appellant contended that the impugned judgment is against the facts and law; that the appellant is innocent and has falsely been involved in this case; that there is unexplained delay of about fourteen (14) days in recording confessional statement of the appellant which is inadmissible under the law; that no role has been assigned during identification parade, such type of identification lost its value and not relied upon; that there is no evidence against the appellant that he abducted Alla-ud-Din. He lastly contended that the prosecution has failed to prove its case against the appellant beyond reasonable doubt, therefore, the appellant is entitled for acquittal. Learned Deputy Prosecutor General vehemently opposed the appeal and submitted that the prosecution case is based on ocular evidence of abductee Alla-ud-Din, who has no enmity with the appellant; that all the PWs have fully supported the version of prosecution and corroborated the statements of each other on material points; that during statement under section 164, Cr.P.C., the appellant confessed his guilt and during identification, the abductee identified the appellant. He further stated that the prosecution has proved its case against the appellant beyond any reasonable doubt, therefore, the trial Court has rightly convicted the appellant and the judgment passed by the trial Court does not suffer from any infirmity.

6. We have heard the learned counsel for the parties and have gone through the available record. The prosecution case is based on the following pieces of evidence: i. Statement of the alleged abductee; ii. Retracted confessional statement of the appellant; and iii. Identification of the appellant by the alleged abductee. (i) Statement of the alleged abductee.

7. In his statement before the trial Court, PW-4 Alla-ud-Din, the alleged abductee, stated that in the afternoon of 30.6.2015 he left Chaman in a Taxi. A little ahead, the driver and rest of the three passengers armed with pistols and kalashnikov suddenly got over him and blind folded him on board the Taxi and took him and chained him into a room of a house, where a person namely Fazal-ur-Rehman was also brought and chained with him. The accused demanded ransom of Rs.30,00.000/- for his release and subsequently, he was released on 10.7.2015 in lieu of the payment of Rs.13,00,000/ paid by his father as a ransom money. To corroborate the statement of PW-4, the prosecution failed to produce father of the alleged abductee and Fazal-ur-Rehman. It is well settled princip1e of law that if a best piece of evidence is available with a party and same is withheld by him, the presumption as enumerated under Article 129(g) of the Qanun-e-Shahadat Order, 1984 come into play. The presumption will ultimately be drawn against the prosecution that the said witness(s) was/were not supporting the complainant's/prosecution version. Thus, the statement of the PW-4 is excluded from consideration. (ii) Confessional statement of the appellant.

8. As far as confessional statement of the appellant under section 164, Cr.P.C. (Ex-P/2-G) recorded by the Judicial Magistrate is concerned, perusal of the record reveals that the alleged occurrence took place on 30.6.2015 and the appellant was arrested on 16.7.2015. He was produced before Judicial Magistrate, Chaman (PW-2) on 30.7.2015 after 14th day of his arrest for recording his statement under section 164, Cr.P.C. but such delay has not been explained. It is a settled law the delay of over 24 hours would normally be fatal to the acceptance of judicial confession as law laid down by the Hon'ble Supreme Court in Naqeebullah's case PLD 1978 SC 21 coupled with the fact that prosecution had failed to explain the delay in recording the confessional statement. This fact created doubt qua the confessional piece of the evidence. Reliance in this regard is placed to the case of Khan Muhammad and another v. The State 1981 SCMR

597. It is also well settled that the confessional statement of an accused must be recorded as early as possible. In this behalf reference may be made to this Court judgment in the case of Shoukat Saeed v. The State PLD 1978 Quetta 1, wherein, after having taken into consideration number of the judgments of the Hon'ble Supreme Court, it was observed: "No doubt confessions obtained after a long period of detention in police custody have rightly been looked upon with suspicion and that casts a duty on the Court to scan the confession and other evidence deeper and to look for any other evidence which may taint the confession itself, but surely a short period of detention in police custody for 24 hours preceding the recording of confession would not make it inadmissible." In the case of Khalid Javed and another v. The State 2003 SCMR 1419, it was held as under: "It may be observed with justification that a statement which has been recorded after a considerable delay from the date of arrest without offering any explanation for not producing the accused before the Magistrate as early as could be possible creates a doubt on its voluntariness." In the circumstances of the instant case and the principle laid down by the Hon'ble Supreme Court, the unexplained delay in recording of the confessional statement of the appellant lost its evidentiary value. (iii) Identification of the appellant by the alleged abductee.

9. As far as identification of the appellant by the PW-4 is concerned, the record reveals that on 28.7.2015 after 13th day of his arrest, the appellant was put to a test of identification parade in presence of Judicial Magistrate, Chaman. Though the appellant was identified by PW-4, but the identification parade memo (Ex-P/2-B) reveals that the appellant was identified by PW-4 without any reference to the role allegedly played by him during the occurrence due to which the identification parade has lost its value. In this regard, reliance is placed on the case of Sabir Ali alias Fauji v. The State 2011 SCMR 563, wherein it was held by the Hon'ble Supreme Court as under: "6...It is also settled principle of law that role of the accused was not described by the witnesses at the time of identification parade which is always considered inherent defect, therefore, such identification parade lost its value and cannot be relied upon. See Ghulam Rasul's case (1988 SCMR 557), Mahmood Ahmed 's case (1995 SCMR 127) and Khadim Hussain's case (1985 SCMR 721)... Similar view was also taken by the Hon'ble Supreme Court in the case of Muhammad Fayyaz v. The State 2012 SCMR 522.

10. Moreover, as mentioned above, the identification parade has been conducted after 13th day of the arrest of appellant and in such a situation, possibility of the witness having seen the appellant prior to the identification conducted by the Judicial Magistrate, Chaman cannot be ruled out. In this regard, reference is made to the case of Nazeer Ahmed v. Muhammad Iqbal and another 2011 SCMR 527, wherein it was held as under: "Identification parade having been conducted after 24 days of the arrest of the accused, possibility of the witnesses having seen them could not be excluded." For the above reasons, the appeal is accepted, the impugned judgment dated 17.07.2018, passed by the Judge, Anti-Terrorism Court, Pishin at Pishin is set aside and while extending benefit of doubt the appellant Ameer Muhammad son of Sirtayaf is acquitted of the charge, in FIR No.56 of 2015, registered with Levies Thana, Chaman District Killa Abdullah. The appellant being in custody is ordered to be released forthwith, if not received in any other case. JK/94/Bal. Appeal accepted.