2008 P Cr (PLP)

RUSTAM ALI MALIK, J.

This judgment will dispose of Criminal Appeal No.36 of 1999 as well as Criminal Revision No.56 of 1999 both arising out of the judgment, dated 23-1-1999 passed by the learned Sessions Judge, Lahore whereby he had convicted and sentenced Muhammad Asim Iqbal accused/appellant as under:-- (i) Under section 364-A, P.P.C. Imprisonment for life; (ii) Under section 302(b), P.P.C. Imprisonment for life and (iii) Under section 201, P.P.C. Imprisonment for seven years and a fine of Rs.50,000 and in case of default, to undergo R.I. for six months. The accused/appellant was also directed to pay Rs.1,00,000 as compensation to. the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of default to undergo R.I. for six months.

2. The case against the accused/appellant is based on F.I.R. No.297 of 1997 registered in Police Station Hanjarwal, Lahore under section 363, P.P.C. The formal F.I.R. Exh.P.C./1 was registered on the basis of the application Exh.P.C. of Ghulam Mustafa Sabir complainant wherein he had stated that on the day of occurrence i.e. on 17-7-1997, around 6-30 p.m., his son Muhammad Bi141 Mustafa aged 7 years came out into the street for playing, but did not return. He searched for him of his own in the adjacent area but was unable to trace him out. He suspected that his son had been abducted by anyone. Hence, the matter was reported to the police and it was prayed by him that his son be recovered.

3. After recording the formal F.I.R., the investigation process was set in motion. During the investigation, on the basis of available evidence, the accused/appellant was arrested and was interrogated. Later he was sent to the' judicial lock-up and on the conclusion of trial the challan was submitted against him.

4. The accused/appellant was formally charged by the learned Sessions Judge, Lahore on 4-8-1998 under sections 364-A, 302, P.P.C. as well as under section 201, P.P.C. The accused/appellant pleaded not guilty and the prosecution was thus, asked to produce its evidence.

5. In this case the prosecution examined as many as 17 P.Ws. of them, P.W. 16 is Abdul Ghafoor Khan, Inspector/S.H.O. who had investigated this case. P.W.11 Saeed Ahmad, A.S.-I. and P.W.17 Muhammad Ayyaz Baig S.-I. had also partly investigated the case.

6. Of the other remaining P.Ws., P.W.I is Muhammad Ashiq who claims that on 11th Rabi-ul-Awwal, when he reached near the Bus Stop of Police Station Hanjarwal, Asim Iqbal accused along with a child aged 6 or 7 years who was wearing a red coloured shirt had signaled to him and had requested him to take him on his cycle along with the child as buses were not halting at the bus stop, Chung. He took them both on his cycle to a distance of one or one and a half Kms. and thereafter the accused and the child proceeded towards Ammar Factory. 2-1/2 months later, on seeing the people gathered at the spot 'and on being shown a photograph of the child by the complainant, he had recollected that it was the same child who was carried by him on a cycle. He had then narrated the whole story to Ghulam Mustafa and others.

7. P.W.2 Shahid Naeem claims to have seen the accused going on a cycle carrying a wheat bag on the cycle along with a minor boy namely Bilal on 11th Rabi-ul-Awwal in the evening time. Before he could forbid or stop him, Asim Iqbal had taken the turn in the street. His uncle Ghulam Mustafa complainant sent him behind Asim Iqbal and he followed him and saw that the accused had put down the wheat at Chaudhary Flour Machine and had returned the cycle to the owner of Bismillah Store and again went to the Flour Machine and after getting the wheat weighed he went along with Bilal Mustafa. He followed Asim Iqbal but in the meantime Asim Iqbal along with the minor had entered into "Arslan Video Games" shop and from where he purchased two tokens and gave to Bilal Mustafa. He asked him i.e. Bilal Mustafa to go back to the house but Asim Iqbal said that he will bring back Bilal Mustafa to his house after the game was over.

8. P.W.3 is Sarfraz Muzammil in whose presence Shaukat the owner of Arslan Video Centre, had identified the token shown to him. P.W.3 had also attested the recovery memo. Exh.P.A. by which the tokens P.1/1-2 had been taken into possession by the Investigating Officer.

9. P.W.4 is Shaukat Ali the owner of the Video Shop himself while P.W.5 is Muhammad Bashir in whose presence the accused had made a disclosure and thereafter had pointed out the spot where he had thrown the deceased in the Canal. In his presence, token P.2 and shoe P.3 were also taken into possession vide memo. Exh.P.D. which was attested by him.

10. P.W.6 is Bashir Ahmad who is a witness of extra-judicial confession.

11. P.W.7 is Muhammad Afzal, a Supervisor of Telephone Exchange at Multan Road. He claimed that on 17-7-2003 around 7-30 p.m. he boarded a wagon from Chungi Multan Road and that Asim Iqbal accused had also boarded a wagon along with the child aged about 7 years. He got down from the wagon at Thokar Niaz Baig and the accused and the child had also alighted from the wagon at that place and in his view the accused had signalled a man aged 45 years and after talking to him the said person had taken the child on a cycle towards Shahpur Kanjaran. About 2 or 2-1/2 months latter, Ghulam Mustafa met him in the Telephone Cabinet of Chungi Multan Road and narrated the story about the kidnapping of his son and also had shown to him the photograph of his son Bilal Mustafa and then he had recollected that he was the same boy whom he had seen with Asim Iqbal while boarding the wagon and thereafter going away along with a person on a cycle towards Shahpur Kanjaran.

12. P.W.8 is Ali Nawaz' who along with one Anwar was going on a tractor trolley carrying bricks and when they reached near the flour mills situated on the canal around Isha prayer's time, Asim Iqbal came from the canal side, signalled his tractor trolley to stop and Asim Iqbal accused sat on the left side of the mud-guard of the tractor and when the tractor trolley reached at Thokar Niaz Baig, he alighted therefrom the tractor and thanked Anwar, the driver of the tractor and also shook hands with him. P.W.8 claims to have later identified the photograph of a minor boy and the photograph of the accused appearing in a magazine. He and Anwar had later brought the magazine to the house of Soofi Sahib (the complainant) and narrated the whole story before him.

13. P. W.14 is Ghulam Mustafa Sabir who is the complainant in this case. He supported the prosecution story.

14. P.W.15 is Muhammad Saleem Hussain, Judicial Magistrate Section 30, Lahore who on 17-11-1997 had recorded the statement Ech. P. F. of Muhammad Asim Iqbal accused/appellant under section 164, Cr.P.C.

15. On 15-11-1998, the Prosecutor closed the case for the prosecution after tendering in evidence report of Forensic Science Laboratory Exh.P.J.

16. On the conclusion of the prosecution evidence, the statement of the accused under section 342, Cr.P.C. was recorded and wherein he denied all the incriminating circumstances. When asked as to why this case against him and why the P.Ws. have deposed against him, he replied as under: "Wife of Ghulam Mustafa was a corrupt lady due to which my father and other respectables of the Mohailah asked the complainant to stop his wife from her immoral life, hence the complainant became inimical and got involved me in this false case. Complainant also wanted to purchase the house from my father but my father refused, therefore, the present false case has been concocted. No such occurrence has taken place. Bilal Mustafa has never been abducted nor he has been murdered. He is still alive but the complainant has concealed him. All the witnesses are interested one and most of them are closely related to the complainant. Due to said reasons I have been involved in this case."

17. The accused did not make statement on oath under section 340(2), Cr.P.C. nor did he produce any evidence in defence. After hearing the arguments, the learned trial Court convicted and sentenced the accused as aforesaid vide his judgment, dated 23-1-1999.

18. Aggrieved of the impugned judgment, the appellant has filed the appeal (Criminal Appeal No.36 of 1999). For enhancement of sentence awarded to the accused in this case, Ghulam Mustafa Sabir complainant has filed a revision petition (Criminal Revision No.56 of 1999). Both these matters are being disposed of through this judgment.

19. The learned counsel for the appellant has argued that according to the contents of the F.I.R. there was no eye-witness of the abduction of the minor child nor it was mentioned therein that the complainant himself or any other person had seen the accused taking away the minor with him; that the accused/appellant was not previously known to the P.Ws. but no test identification parade was held in this case which was very essential; that there was no evidence on record to show that any person had seen the accused committing Qatl-i-Amd of the deceased and there was no proximity of time between the death of the deceased and the last-seen evidence and that even otherwise evidence of last-seen is a very weak type of evidence and statement of a witness in that respect without corroboration by any independent piece of evidence was of no value.

20. About the statement of P.W.6 Bashir Ahmad regarding extra-judicial confession of the accused, he has argued that extra-judicial confession is also a weak type of evidence and in the absence of any independent corroboration the same cannot be relied upon. He has argued that the alleged confessional statement of the accused as recorded by P.W.15 Muhammad Saleem Hussain, Judicial Magistrate Section 30 could not be legally relied, upon as the same had not been recorded in accordance with law; that the accused was brought direct from police custody before the learned Judicial Magistrate for recording his statement and was again handed over to the police after recording his statement and the Magistrate did not ask the accused how long he had remained in police custody and as to why the confession was being made by him and the Magistrate did not assure the accused that he will not be handed over to the police after recording his statement and there was no explanation available on record to show that it was not safe to take the accused to the judicial lock-up after recording his confessional statement; that the law provides safeguards to obtain a voluntary and precisely recorded statement and it was essential that in recording a statement or confession under section 164, Cr.P.C., the provisions of that section were strictly followed; that the procedure provided under the High Court Rules and Orders for recording such a statement was not followed in this case and hence such a retracted confession could not be acted upon; that the absence of enmity or interest of a P.W. with the accused does not stamp his statement with truth and the mere absence of enmity of a witness is not sufficient to bring home charge of murder against the accused, if evidence of such a witness is found to be inherently unreliable; that the absence of a motive for the complainant or a P.W. to falsely implicate the accused does not mean that evidence of such a witness must be accepted without questioning the same; that where there was a belated statement of a P.W. recorded under section 161, Cr.P.C., his statement is to be looked with serious suspicion; that the pointing out of the place by the accused where he had allegedly thrown the child in the canal has no evidentiary value; that the dead body was never recovered and that the shoe of the deceased and the tokens were also not got recovered by the accused, rather the same were taken into possession by the Investigating Officer himself from the place of occurrence i.e. the place where the accused had allegedly thrown the child in the canal; that the evidence produced by' the prosecution in this case is replete with inconsistencies and contradictions and does not inspire confidence; that the prosecution has miserably failed to prove any of the charges against the accused/appellant and hence the appellant is entitled to be acquitted.

21. In support of his arguments, the learned counsel for the appellants has placed reliance on a number of authorities including (1) Muhammad Mubeen and another v. The State 2002 PCr.LJ 729, (2) Sanaullah and another v. The State 2003 MLD 1563, (3) Muhammad Ashiq v. The State 1990 PCr.LJ 368, (4) Tayyab v. The State 1995 SCMR 412, (5) Muhammad Baqa alias Baqir v. The State 2000 PCr.LJ 465 (Quetta), (6) Munir Ahmad and others v. The State 1988 PCr.LJ 116 (Lahore), (7) Ghulam Hussain alias Rafaqat v. The State 2002 PCr.LJ 779 (Lahore), (8) Manzoor Hussain and another v. The State 2002 YLR 1726 (Lahore), (9) Khuda Bux and another v. The Crown 1969 SCMR 390 and (10) Hashim v. The State PLD 1960 (W.P.) Kar. 160.

22. On the other hand, the learned, counsel for the State has supported the judgment of the learned trial Court and has argued that there is' sufficient evidence on record to warrant conviction and that there is no force in the appeal filed by the accused/appellant. The learned counsel for the State assisted by the learned counsel for the complainant has argued that the prosecution has produced sufficient evidence in this case to warrant conviction; that although there was no eye-witness in this case of the offence of Qatl-i-Amd, yet there was sufficient circumstantial evidence which warrants conviction of the accused. Relying on Muhammad Sharif v. The State 1969 SCMR 521 and Intizar Hussain and another v. State 1995 PCr.LJ 1630 the learned counsel for 'the complainant has argued' that the mere fact that the person making confession was remanded back to police custody, does not make the confession involuntary. In support of his contention the learned counsel for the complainant has also placed reliance on Naqibullah and another v. The State PLD 1978 SC

21. Placing reliance on Daulat Ali and others v. Muhammad Aslam and others 1998 MLD 944 (FSC), he has argued that where the Court believes a confession, judicial or extra-judicial, retracted or unretracted, to be voluntary and true, it can convict the accused on its sole basis. On the basis of this authority, he has argued that where relevancy of confession is established, its evidentiary value would be a matter of prudence only, rather than of law. He has argued that besides judicial confession and extra-judicial confession, there is evidence of last-seen in this case and admittedly in this case the P.Ws. did not have any enmity with the accused/appellant and they had no reason to falsely implicate him in a case of this nature. He has argued that the mere fact that the dead body of the deceased was not found nor the post-mortem examination was conducted, does not mean that the deceased could be alive because the accused had pointed out to the Investigating Officer the place where he had thrown the deceased in the canal and from the canal bank the Investigating Officer had recovered the shoe of the deceased as well as the token which was given to the deceased by the accused on the day of occurrence. He has argued that under the peculiar circumstances of the case the accused/appellant should have been awarded capital punishment but the learned trial Court, without any lawful justification had awarded him life imprisonment for committing Qatl-i-Amd of an innocent child. He has submitted that in this respect the complainant who is the father of the deceased child has filed the revision petition and which under the circumstances of the case should be accepted and while maintaining the conviction of the accused, his sentence under section 302(b), P.P.C. be enhanced to death. He has argued that merely an irregularity or omission in recording confession of an accused person by the Magistrate cannot affect the prosecution case and the only thing to be observed is the voluntaries of confession; that while appearing before the learned trial Court the accused had made no complaint that the confession was the result of coercion, threat or use of any third degree methods. He has argued that specific questions to be asked from the accused were not important and the only thing to be seen was that the accused sufficiently understood the consequences of his confessional statement; that the retraction will be immaterial if the accused person had done nothing to retract lawfully from his confessional statement and did not move for retraction till such time that statement under section 342, Cr.P.C. was recorded and hence such a delayed denial of confession would not amount to a retracted confession. He has requested that under the circumstances, the conviction recorded by the learned trial Court against the accused/appellant be upheld and the sentence awarded to him under section 302(b), P.P.C. be enhanced to death. In support of his contentions, the learned counsel for the complainant has placed reliance on (1) Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others PLD 1972 SC 363, (2) State of Tamil Nadu v. Nalini AIR 1999 SC 2640, (3) Syed Kabir Hussain Shah v. The State PLD 1984 SC (AJ&K) 82, (4) Sain Gul Wali Khan v. The State 2003 PCr.LJ 1264, (5) Daulat Ali and others v. Muhammad Aslam and others 1998 MLD 944, (6) Khan Muhammad and others v. The State 1999 SCMR 1818, (7) Khalid Javed and others v. The State 2001 PCr.LJ 1968 (Lahore), (8) Tariq Hussain Shah v. The State 2003 SCMR 938 (Supreme Court), (9) Asif Ali v. The State 1998 PCr.LJ 1708 (F.S.C.), (10) Gulsher and another v. The State 1998 PCr.LJ 1274 (Karachi), (11) Ali Akbar v. State 2001 PCr.LJ 890, (12) Moazam Shah v. Mohsan Shah and another PLD 2001 SC. 458, (13) Muhammad Afzal v. Ghulam Asghar and others PLD 2000 SC 12 and (14) Sh. Muhammad Amjad v. The State PLD 2003 SC. 704.

23. I have carefully considered the arguments and also have perused the record, as well as the illuminating authorities cited as precedents from both sides. Admittedly, it was a very tragic incident in which the complainant who is the father of the victim lost his child aged 6/7 years. For a man there can be no greater shock or grief than this one. However, the Court has to act on the basis of evidence on record and not on the basis of human emotions.

24. In this case it is an admitted fact that no one had seen the accused/appellant committing Qatl-i-Amd of the victim i.e. Bilal Mustafa by throwing him in the canal. None of the P.Ws. had claimed that he had seen the accused/appellant doing so. Admittedly, the dead body of the deceased was never found and hence there is no report of post-mortem examination, etc. on record. Similarly, there is no direct evidence so far as the charge under section 201, P.P.C. is concerned as nobody had seen the accused/appellant causing the evidence of the offence of Qatl-i-Amd to disappear with the intention of screening himself from legal punishment. It has already been mentioned above that in the F.I.R. itself, there is no mention of any person as a culprit. Later while appearing in the Court as P.W.14, the complainant stated that in the course of search for his son he had come to know that Asim Iqbal accused who was his neighbour had carried away his son for any wrong object. He also stated that on the day of occurrence he was getting repaired the electric bell of his house from Shahid Naeem P.W. when Asim Iqbal accused while carrying a bag of wheat on a cycle passed near him. At that time Shahid Naeem was present there with him while Bilal Mustafa (deceased) was playing in the street and that in his presence Asim Iqbal accused carried his son and went towards the Bazar. He followed him but by then they had crossed the turn of the street and had gone up to the "Best Tuition Centre". He then came back and sent Shahid Naeem P.W. after them. After a while, Shahid Naeem came back and told him that Asim Iqbal had left the bag of wheat at "Chaudhry Flour Machine" for grinding purposes and had handed over the cycle to the owner of "Bismillah General Store" and thereafter had carried Bilal Mustafa to Arslan Video Games Shop situated in the main Bazar of Gulshan-i-Abbas Colony where Asim Iqbal purchased token for Bilal Mustafa and he promised Shahid Naeem P.W. that after playing for some time, he will leave Bilal Mustafa at his house. However, thereafter Bilal Mustafa did not come back and he started in his search. In the course of search, around 9-30 p.m. Asim Iqbal met him while carrying a ploythene bag (shopper) in his hand containing Atta and he inquired from him about Bilal Mustafa and in reply he told him that he had sent back Bilal Mustafa from Arslan Video Centre and that moment he did not suspect Asim Iqbal and that after a while he joined him in search of Bilal Mustafa. Therefore, it is clear that the statement of the complainant in that respect is hearsay evidence as it was based on the information provided to him by Shahid Naeem P.W. Similarly, the prosecution has also examined P.W.3 Sarfraz Muzammal and P.W.4 Shaukat Ali the owner of "Arslan Video Centre". P.W.6 Bashir Ahmad was examined as a witness of extra-judicial confession. P.W.7 Muhammad Afzal had met the complainant about 2 or 2-1/2 months after the occurrence and who after seeing a photograph of Bilal Mustafa had recollected that he was the same boy whom he had seen along with Asim Iqbal while boarding a wagon and then going along with the accused on a cycle towards Shahpur Kanjaran. P.W.8 had seen the photograph of a minor boy and of Asim Iqbal accused in a Magazine which was brought to him by Anwar driver and he had identified the photograph of the minor boy and that of Asim Iqbal and then he had reached the house of Soofi Sahib (the complainant) and had narrated the story before the complainant (of giving lift on the tractor trolley to the accused upto Niaz Baig).

25. The prosecution has examined in this case the Judicial Magistrate Section 30 as P. W.15. He had recorded the judicial confession of the accused on 17-11-1997. During the cross-examination, he stated that he did not remember if Asim Iqbal had been brought from jail or whether he was on physical remand at the time when his statement was recorded. He also did not remember whether he had recorded the statement of the accused. He had asked the Investigating Officer whether he had brought the accused from jail or whether he was on physical remand. He also did not remember if after recording his statement, Asim Iqbal was handed over to the police or he was sent to jail. However, it is apparent that the accused was produced before him from the police custody and after recording his statement he was again handed over to the police. There is nothing on record to the effect that the Magistrate had given him any assurance that after recording his statement he shall not be returned to the police custody. It is correct that in all cases where the accused was handed over to the police after recording his statement, merely this fact will not vitiate the proceedings, if the aforesaid fact did not adversely affect the interest of the accused. But in this case the investigation was mainly conducted after recording the aforesaid statement of the accused under section 164, Cr.P.C. Even the recoveries were effected thereafter and the accused had also remained on physical remand. It was held in Mst. Bakht Bano v. The Crown PLD 1950 Lah. 68 that where the directions of the High Court for recording confession of an accused person were not followed, the confession could not be considered as duly made and was, therefore, inadmissible. It was held in Munir Ahmad and others v. State 1988 PCr.LJ 116 that where the accused was brought to the Court for recording evidence direct from police custody and was handed over to police after recording his statement and the Magistrate had not specifically questioned the accused as to how long he had remained in police custody and about any torture or inducement made to him and where no question was put to the accused as to why he was making confessional statement and where the Magistrate had not assured the accused for not handing him over to the police, the confessional statement so recorded was not voluntary and such a statement would be inadmissible in evidence. The same view was held in Khuda Bux and another v. The Crown 1969 SCMR 390 and Hashim v. The State PLD 1960 (W.P.) Kar.

160. Hence, the judicial confession recorded in this case by the Magistrate had not been recorded in accordance with law as the accused, had been produced from the police custody and had been sent back to the police custody and the accused had not been asked as to how long he had been in police custody after recording his statement and as to why he was making,, the confessional statement nor was he assured that he shall not be sent back to the police custody after making the statement.

26. Now remains the question of evidence of last-seen but since there is no direct evidence available in this case regarding the Qatl-i-Amd of the deceased, the evidence of last-seen becomes irrelevant because there is no proximity between the time when the deceased was seen with the accused and the time when he was allegedly thrown in the canal by the accused. So far as the evidence regarding the extra-judicial confession of the accused is concerned, the same can be taken into consideration after it is corroborated by other independent evidence on material points. So far as the Qatl-i-Amd of Bilal Mustafa deceased is concerned, even the extra-judicial confession of the accused is not corroborated by any other independent evidence because, as mentioned above, nobody had seen the accused committing the murder of the deceased. But the statement of P.W.6 Bashir Ahmad regarding the extra-judicial confession of the accused concerning abduction of the minor son of the complainant by the accused is somehow corroborated by other available evidence on record. It is corroborated by the statement of P.W.2 Shahid Naeem and then by the statement of P.W.4 Shaukat Ali who is the owner of "Arslan Video Centre". There does exist evidence on record that the accused had taken along the minor while he was playing in the street. He had also taken him along to the "Arslan Video' Centre". The minor was a child of about 7 years of age. There is nothing` on record to indicate that the accused had taken the permission of the legal guardian of the minor boy i.e. Bilal Mustafa while taking him along from place to place. Obviously when the F.I.R. was lodged, the complainant was not aware as to who had taken along his son and it was only subsequently, that it came to light that he had been taken along by Asim Iqbal accused. Hence, although in this case there is no evidence regarding the Qatl-i-Amd of the minor i.e. Bilal Mustafa by the accused nor there is available any evidence for the offence under section 201, P.P.C., yet it stands proved on record that the accused had kidnapped Bilal Mustafa aged 7 years, the minor son of the complainant either in order that he may be murdered or may be so disposed of as to be put in danger of being murdered. It may also be mentioned here that even during the, investigation it had been found that it was the accused/ appellant who had taken along the minor on the day of occurrence and had been roaming about with him. Hence, although the charges under section 302(b), P.P.C. and section 201, P.P.C. are not proved on record against the accused beyond reasonable doubt, yet the charge under section 364-A, P.P.C. stands clearly proved against Asim Iqbal accused and he is thus, liable to be convicted for the said offence.

27. In view of what has been stated above, the conviction recorded against the accused/appellant on the charges under section 201, P.P.C. and section 302(b), P.P.C. as well as the sentence awarded to him by the learned trial Court for the said offences is set aside. However, his conviction on the charge under section 364-A, P.P.C. is upheld. But under the peculiar circumstances of the case, the sentence of imprisonment awarded to the accused/appellant under section 364-A, P.P.C. is' reduced to 10 years' R.I. He will be also entitled to the benefit under section 382-B, Cr.P.C.

28. With the above modification in the impugned judgment, the appeal filed by Muhammad Asim Iqbal accused/appellant is dismissed.

29. For the reasons recorded in this judgment, the revision petition filed by the complainant (Criminal Revision No.56 of 1999) is also dismissed. N.H.Q./M-341/L Order accordingly.