2016 P Cr (PLP)

ABDUL SAMI KHAN, J.

Through this single judgment, we intend to dispose of Criminal Appeal No.2176 of 2009 titled as "Imran Masih v. The State" filed by the appellant and Reference under section 374, Cr.P.C. sent by the learned trial Court for confirmation or otherwise of death sentence of the appellant, numbered as Capital Sentence Reference No.44-T of 2009 titled as "The State v. Imran Masih" as both these matters have arisen out of the same judgment dated 21.12.2009.

2. Imran Masih appellant was tried by learned Judge Anti-Terrorism Court No.IV, Lahore in case FIR No.990/2006 dated 19.12.2006, for the offences under sections 365-A, P.P.C. and 7 of the Anti-Terrorism Act, 1997, registered at Police Station Harbanspura, Lahore, who vide judgment dated 21.12.2009 convicted the appellant under section 365-A, P.P.C. and sentenced him to death with forfeiture of his properties. Imran Masih appellant was also convicted under section 7(e) of the Anti-Terrorism Act, 1997, and was sentenced to death with forfeiture of his properties.

3. Brief facts of the case as stated by Muhammad Zahid Anwar complainant (PW-11) in his application for registration of FIR (Ex.PA), on the basis whereof FIR (Ex.PA/1) was registered at Police Station Harbanspura, Lahore are that the complainant was residing with his family at Ganj, Mughalpura, Lahore. His brother Mobeen Anwar owned a house in Mehar Fayyaz Colony within the area of Police Station Harbanspura, Lahore. He was intending to let out the same on rent and in this regard, he had contacted with many dealers including one named Shah who also happened to be a deed writer. On 13.12.2006, said Shah property dealer-cum-deed writer called his brother and got finalized a rent deal regarding the said house with a party at monthly rent of Rs.8000/- with advance payment of Rs.30,000/- in pursuance of which the possession of said house was handed over. On 19.12.2006 at about 11:00 a.m. the said property dealer-cum-deed writer called Mobeen Anwar and asked him to reach at the rented house for the purpose of executing rent deed as well as settlement of terms and conditions thereof, whereupon the complainant and his brother Mobeen Anwar reached there. The persons present there asked them to come in. As soon as the complainant and his brother entered in the house, they saw four persons, out of whom two were 30/35 years and other two were 25/26 years of age. They captured the complainant and his brother and pushed them in a room and after blind folding the complainant took his brother away in a white coloured car which had already been parked there.

4. After registration of the FIR, investigation of the case was conducted by Muhammad Arham Inspector and Muhammad Yousaf Inspector. During investigation of the case on 28.12.2006, Imran Masih appellant was implicated by the complainant in this case. He was already confined in District Jail Sialkot in connection with some other case, from where he was summoned and was formally arrested in this case. After completion of investigation, the report under section 173, Cr.P.C. was submitted against the apellant. At the commencement of trial, the learned trial court after observing legal formalities prescribed in the Code of Criminal Procedure, 1898, framed charge against the appellant on 17.04.2008 to which he pleaded not guilty and claimed trial.

5. To substantiate its version at the trial, the prosecution produced as many as thirteen witnesses before the learned trial Court. Ocular account was furnished by Mobeen Anwar abductee (PW-3), Imran Shah abductee (PW-5), Muhammad Zahid Anwar complainant (PW-11) and Babar Munir (PW-12). Muhammad Yousaf Inspector (PW-7) and Muhammad Arham Inspectors (PW-10) testified about the investigation conducted by them. Muhammad Farhan (PW-13) deposed regarding identification parade of the appellants. The remaining prosecution witnesses more or less are formal in nature.

6. After completion of the prosecution evidence, the statement under section 342, Cr.P.C. of the appellant was recorded by the learned trial Court, wherein he professed his innocence and pleaded false implication in the case. However, he did not opt to get record his statement under section 340(2), Cr.P.C. and did not produce any witness in his defence.

7. At the end of trial, after thrashing entire evidence and evaluating the arguments advanced by learned counsel for the parties in support of their respective versions, the learned trial court found the prosecution's case against the appellant to have been proved beyond reasonable doubt, convicted and sentenced him as mentioned and detailed in paragraph No.2 above. Hence, the instant appeal and connected Capital Sentence Reference before this Court.

8. Learned counsel for the appellant, in support of this appeal, contends that the judgment passed by the learned trial Court is against law, facts and material available on the file; the appellant is absolutely innocent, he has been falsely implicated in this case merely on the basis of suspicion; there are lot of discrepancies between statements of prosecution witnesses recorded during trial by the learned trial Court, so the conviction and sentence of the appellant cannot be maintained on the basis of such evidence; Muhammad Zahid Anwar complainant and Babar Munir PW did not identify the appellant as the accused who committed this occurrence, whereas the evidence adduced by Mobeen Anwar and Imran Shah abductees suffers from material irregularities; even otherwise, their statements could not get corroboration from independent corner; the appellant was shown to Mobeen Anwar abductee and Muhammad Zahid Anwar complainant by the investigating officer before his identification parade, therefore, the identification parade has not been conducted in accordance with law and the same bears no force; the recovery of Rs.10000/- and pistol .30 bore allegedly effected from the appellant is highly doubtful and has been planted on him just to strengthen the case of prosecution; the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; thus, this appeal be accepted and the appellant be acquitted from the charge.

9. On the other hand, learned Deputy Prosecutor General appearing on behalf of the State opposes the submissions made by learned counsel for the appellant and submits that the complainant has narrated each and every detail of the occurrence in the FIR (Ex.PA/1), which was lodged by him without any deliberation and consultation; by lodging the FIR against unknown accused, the complainant has shown his bona fide by not involving any innocent person in this case; the appellant has actively participated in this occurrence and he was duly identified by Mobeen Anwar abductee (PW-3) during the course of identification parade; he was found involved during investigation and during the trial, the prosecution has successfully brought his guilt to the hilt; as the appellant was successfully identified by Mobeen Anwar abductee (PW-3) and Imran Shah abductee (PW-4) during trial before the learned trial Court, therefore, non-identification of the appellant by Muhammad Zahid Anwar complainant (PW-11) and Babar Munir (PW-12) is not fatal to the case of the prosecution; the PWs had no enmity, ill-will or grudge against the appellant to falsely involve him in this case of heinous nature and even otherwise, the defence has failed to bring on record any ulterior motive of the complainant side for his false implication; the prosecution case stands proved from all corners and independent corroboration in the shape of recovery of weapon of offence as well as the share of appellant from the amount of ransom is available on the record of this case; since there is no mitigating circumstance in this case, so the sentence of death has rightly been awarded by the learned trial Court to the appellant, the same be maintained, appeal be dismissed and Capital Sentence Reference be answered in affirmative.

10. We have heard the learned counsel for the appellant and learned Deputy Prosecutor General and have gone through the entire record with their able assistance.

11. As per FIR (Ex.PA/1), the occurrence took place on 19.12.2006 at 11:00 a.m. and the matter was reported to the police by Muhammad Zahid Anwar complainant (PW-11) by moving application for registration of FIR (Ex.PA) before the concerned Station House Officer, in consequence of which FIR (Ex.PA/1) was chalked out at Police Station Harbanspura, Lahore on the same day at 11:00 p.m. The place of occurrence is at a distance of about two and half kilometers from the police Station. There is a delay of twelve hours in reporting the matter to the police, but even then the appellant is not named therein as the culprit of the occurrence and in this eventuality, the FIR (Ex.PA/1) does not render any sort of corroboration to the case of the prosecution.

12. The prosecution has tried to prove its case against the appellant through the statements of Mobeen Anwar abductee (PW-3), Imran Shah abductee (PW-5), Muhammad Zahid Anwar complainant (PW-11) and Babar Munir (PW-12) who furnished the ocular account. Apart from the statements of above said witnesses, the prosecution has also placed on record the evidence regarding identification parade of the appellant, recovery of weapon of offence from the appellant and his share from the amount of ransom. We have observed that the prosecution came before the learned trial Court with two stories. One is incorporated in FIR (Ex.PA/1), as narrated in paragraph 3 of this judgment that Imran Shah (PW-4) called Mobeen Anwar abductee (PW-3) and asked him to come at the place of occurrence. When Mobeen Anwar abductee (PW-3) reached at the spot along with his brother Muhammad Zahid Anwar complainant (PW-11), the persons present there abducted him. Later on, Imran Shah (PW-4) introduced another story that firstly the accused abducted him and later on, they managed to call Mobeen Anwar abductee (PW-3) through Imran Shah (PW-4) who intended to rent out his house. On receiving call from Imran Shah abductee (PW-4), Mobeen Anwar abductee (PW-3) came to the spot along with his brother/complainant Muhammad Zahid Anwar and there on gun point, the accused also abducted Mobeen Anwar abductee (PW-4) for ransom. A keen examination of the record shows that Muhammad Zahid Anwar complainant while appearing in the witness box as PW-11 narrated almost the same facts as he has mentioned in his application (Ex.PA) and his version was supported by the statement of Babar Munir (PW-12), however, both these witnesses refused to identify the appellant as the person who along with co-accused had abducted Mobeen Anwar (PW-3). At the closure of his examination in chief, Muhammad Zahid Anwar complainant (PW-11) explicitly stated that the appellant is not known to him. He had neither seen the appellant previously nor he can recognize him and as such he has nothing to depose against the appellant. Like-wise, Babar Munir (PW-12) also remained unable to identify the appellant as the culprit of this case. Both these witnesses were declared hostile by the learned trial Court and on the request of learned Public Prosecutor, opportunity to cross-examine them on behalf of the prosecution was granted, but nothing beneficial for prosecution could be extracted from their mouths to establish that they deposed falsely only to save the skin of the appellant from the consequence of this case. We have also gone through the statement of Mobeen Anwar abductee who appeared before the learned trial Court as PW-3 and deposed that Imran Masih appellant and his co-accused abducted him from his house, when he and his brother Muhammad Zahid Anwar complainant (PW-11) went there to settle the terms and conditions regarding lease of his house to them. Mobeen Anwar abductee (PW-3) admitted that his brother Muhammad Zahid Anwar complainant (PW-11) was also present at the spot at the time of occurrence, however, we have already noted above that Muhammad Zahid Anwar complainant (PW-11) could not identify the appellant as the perpetrator of this offence, therefore, this fact creates doubt about the claim of Mobeen Anwar abductee (PW-3) that Imran Masih appellant took part in his abduction. So far as Imran Shah (PW-4) is concerned, he is not mentioned in FIR (Ex.PA/1) as the abductee of this case. According to Imran Shah (PW-4), he was recovered by the police along with Mobeen Anwar abductee (PW-3) when they raided at a house, situated in Altaf Colony, Lahore. It is an interesting fact that during the trial of co-accused of the appellant namely Mubashar Bhutto, Asfar and Adnan, Imran Shah (PW-4) appeared before the learned trial Court as DW-1 on 26.07.2007 and controverted the case of the prosecution. Moreover, in his statement before the learned trial Court during the trial of Imran Masih appellant, Imran Shah (PW-4) categorically admitted that the appellant was not previously known to him, but even then he did not join the identification parade of the appellant in order to prove his involvement in this occurrence. In these eventualities, we are unable to understand as to how this witness can be considered as reliable.

13. As regards the contention of learned Deputy Prosecutor General that the appellant was duly identified by Mobeen Anwar abductee (PW-3) during identification parade, we have carefully perused the proceedings of identification parade (Ex.PP), according to which the appellant was identified by Mobeen Anwar abductee (PW-3), but except PW-3, no other eye-witness including Imran Shah (PW-4) and Muhammad Zahid Anwar complainant (PW-11) took part in the identification parade. No doubt Mobeen Anwar abductee (PW-3) successfully identified the appellant during identification parade, however, we are conscious of the fact that Muhammad Yousaf Inspector/investigating officer (PW-7) who produced the appellant before the Area Magistrate concerned so as to send him to judicial lock-up for the purpose of his identification parade, categorically admitted that the complainant and the abductee both were also accompanying him at the time, when the appellant was produced by him before the learned Area Magistrate for judicial remand. So, possibility cannot be ruled out of consideration that the appellant was exposed to Mobeen Anwar abductee (PW-3) before his identification parade, as such the identification parade has become doubtful and does not provide any help to the case of the prosecution.

14. So far as the recovery of pistol .30 bore and cash Rs.10,000/- from the appellant is concerned, we have observed that a pistol .30 bore was recovered from him on 19.02.2008 vide memo Ex.PF and on the same day, he also got recovered Rs.10,000/- vide memo Ex.PG from the wall of a Rajbah bridge. According to the FIR, the occurrence took place on 19.12.2006 and it does not appeal to our mind that the appellant kept the above said articles in safe custody for a period of one year and two months only to enable the investigating officer to recover the same and create corroborative evidence against him. Even otherwise, we have already disbelieved the ocular account and in this eventuality, the recovery of pistol .30 bore and cash Rs.10,000/- has become inconsequential.

15. After having looked into the prosecution case from all angles, we observed that Muhammad Zahid Anwar complainant (PW-11) and Babar Munir (PW-12) expressly denied to recognize the appellant as the accused who had participated in this occurrence. Although Mobeen Anwar abductee (PW-3) tried his best to support the prosecution version before the learned trial Court, but his stance was severely hurt by his brother Muhammad Zahid Anwar complainant (PW-11), who was allegedly present at the spot at the time of his abduction, whereas the credibility of Imran Shah abductee (PW-4) is badly shaken by his admission that during trial of the co-accused of appellant, conducted previously by the learned trial Court, he appeared as DW-1 to refute the allegations of prosecution. Apart from the above, we have already held that identification of the appellant during identification parade and the recovery of pistol .30 bore as well as cash Rs.10,000/- from him are of no help to the case of the prosecution. Thus, we have come to an irresistible conclusion that the prosecution has failed to prove its case against the appellant beyond the shadow of doubts. It is universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused not as a matter of grace, but of right. In "Ayub Masih v. The State" (PLD 2002 Supreme Court 1048), while quoting a saying of the Holy Prophet (PBUH) that "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent", and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', the learned Apex Court of our country has been pleased to observe as under:- ".......It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent".

16. The same proposition came up for consideration in the case reported as "Muhammad Akram v. The State" (2009 SCMR 230), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "

13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".

17. For what has been discussed above, the case of the prosecution is full of contradictions, improvements and doubts, the benefit of which must go to the appellant. Since, the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, this appeal is allowed, the impugned judgment is set aside and the appellant is acquitted from the charge. He is behind the bars and shall be released forthwith if not required to be detained in any other case.

18. Capital Sentence Reference is answered in negative and sentence of death awarded to Imran Masih appellant is not confirmed. HBT/I-15/L Appeal allowed.