2020 P Cr (PLP)

MUHAMMAD QASIM KHAN, J.

Wajid Hussain, Muhammad Nazim alias Kalu and Ghulam Mustafa (hereinafter to be called as "convicts/appellants") faced trial before learned Judge, Anti-Terrorism Court, Faisalabad, in case FIR No.676 dated 27.11.2009 under sections 302/365-A/148/149/201, P.P.C. registered at Police Station Sadar Gojra, District Toba Tek Singh and on conclusion of trial vide judgment dated 23.04.2015, all the three (Wajid Hussain, Muhammad Nazim alias Kalu and Ghulam Mustafa) convicts/appellants were convicted and sentenced as under:- Convicted under section 365-A read with section 149, P.P.C. and sentenced to death; Convicted under section 7(e) of the Anti-Terrorism Act, 1997 read with section 149, P.P.C. and sentenced to death; Convicted under section 302(b), P.P.C. and sentenced to death, and also ordered to pay Rs.500,000/- each as compensation under section 544-A, Cr.P.C., to be paid in proportion to the legal heirs of deceased, failing which to undergo simple imprisonment for six months; Convicted under section 148, P.P.C. and sentenced to rigorous imprisonment for two years and fine of Rs.20,000/-, in default in payment of fine to further suffer simple imprisonment for one month. Furthermore, moveable as well as immovable properties of all the three accused/appellants were also forfeited in favour of the State. Through Criminal Appeal No.864/2015 Ghulam Mustafa and through Criminal Appeal No.843/2015 Wajid Hussain as well as Muhammad Nazim alias Kalu have assailed their above conviction and sentence, whereas, Capital Sentence Reference No.44-T of 2015 has been sent by the learned trial court. All these matters are being decided through the instant judgment.

2. Briefly the facts of the case as shall be seen from FIR (Ex.PG/1) got lodged by Aziz Ahmad Bajwa complainant (PW.6) through written complaint (Ex.PG) are that in the morning of 27.10.2009 the complainant went to his dera and saw that his brother Mubarak Ahmad Bajwa aged about 55 years and one servant namely Sikandar Mehmood Ansar aged 20 years, were not present there, however, their chaddar and shoes were lying on the cots. They were searched but no clue could be found. The complainant further saw that near the cots dandas were lying and there were also marks of tyres. On 08.11.2009 Sikandar Mehmood Ansari came back and informed that they had been abducted, kept at some unknown place and then he was released and that he could not point out the said place.

3. The gist of investigation as well as statements of the prosecution witnesses and the stance of the convicts/ appellants has been given in the impugned judgment of the learned trial court itself, therefore, the same need not to be reiterated here.

4. We have heard the arguments of learned counsel for the convict/appellant, learned counsel for the complainant as well as learned law officer and perused the record with their assistance.

5. It remains an admitted position that the alleged occurrence in this case took place on 27.10.2009 when the complainant went to his dera and found his brother as well as his servant missing, but the matter was reported to the police on 27.11.2009 i.e. after one month of the occurrence. Furthermore, it is mentioned in the FIR itself that Sikandar Mehmood Ansar (servant) came back of his own on 08.11.2009 and told the complainant about their abduction. If this fact is admitted even then the FIR was got lodged nineteen days after the return and disclosure by Sikandar Mehmood Ansari and no justifiable reason exists on the record to explain delay of one month in registration of FIR from the date of occurrence and delay of nineteen days from the date of return and disclosure by Sikandar one of the missing/abducted person. Considering the factor of inordinate and unexplained delay in registration of FIR, the rest of the prosecution case is to be seen with extra care and caution.

6. So far as the statement of complainant Aziz Ahmad Bajwa (PW-6) is concerned, the same remains limited to the extent that he visited the dera, found his brother and servant missing, some dandas were lying there and he also noticed marks of tyre at the place of occurrence. His rest of the statement revolves around what he was told by Sikandar (PW-7). a) As regards the statement of complainant to participate in identification parade, the same is of no avail to the prosecution for the reason that admittedly he had neither seen the occurrence nor seen the convicts/ appellants at the time of occurrence; therefore, there remains no question of his identifying the convicts/appellants; b) Furthermore, the complainant while appearing in the witness box although stated as to how the entire occurrence and subsequent events ensued but he did not mention that all these facts were told to him by Sikandar one of the alleged abductee, whereas, according to the FIR all these details were informed to the complainant by said Sikandar Mehmood; c) In his examination in chief, while giving details of occurrence, the complainant states that "four unknown persons while armed with deadly weapons came on two cars. One car parked behind the 'dera' whereas other car was parked near the fodder cutter, in the 'dera'". This part of statement of the complainant neither finds support from the statement of Sikandar Mehmood as PW-7 nor it is in line with the contents of the FIR, because Sikandar Mehmood (PW-7) during his statement before the court in clear terms states that it was one car which came at the dera and neither there any mention about second car nor there is further detail where those had been parked, whereas, as shall be seen from the above the complainant who admittedly is not witness of the occurrence has given details which are otherwise non-existent from the record, because even the FIR is totally silent about the names and number of the accused or the vehicle.

7. Coming to the statement of Sikandar Mehmood one of the abductee (PW-7) made before the court, he made number of improvements on most important aspects of the case and he was duly confronted by the defence during cross-examination. Relevant portions from his statement are reproduced hereunder:- "I stated in my statement recorded under section 161 of Cr.P.C. that Molvi Afzal pushed me in the white colour car." (Confronted with his statement Exh.D.A, where it is not so recorded.) "I stated in my statement Exh.D.A that the accused gave a fist blow on the face of Mubarik Ahmad." (Confronted with Exh.D.A, where it is not so recorded.) "I stated in my statement Exh.D.A that accused kept us in a `dera' consist of one room." (Confronted with Exh.D.A where room is not mentioned.) "I stated in my statement that the accused told us that DSP was coming and we have to tell all the correct fact to the Deputy/DSP otherwise he would be killed and demanded the contact number of our relatives and family members but we refused." (Confronted with Exh.D.A. where it is not so recorded.) "I stated in my statement that accused released me after 13 days of the abduction." (Confronted with Exh.D.A where it is not so recorded.) In addition to the above, we have noticed that in his statement before the court this witness has specifically mentioned one Molvi Afzal as one of the accused of the occurrence. Furthermore, according to the statement of Sikandar Mehmood (PW-7) himself, said Molvi Afzal had also inflicted him a blow with pistol, but no such person was associated during investigation or sent up to face trial and there is nothing on the record that Sikandar Mehmood was ever medically examined to establish the factum of injury purportedly sustained by him. It therefore, becomes obvious that the witness has materially changed his stance and it is well settled proposition of law as declared by the Hon'ble Supreme Court of Pakistan in the case "Farman Ahmed v. Muhammad Inayat and others" (2007 SCMR 1825), statement of a witness improving his version subsequently to strengthen the prosecution case, being improved dishonestly, could not be relied upon and once such improvements are found to be deliberate and dishonest, it would cast serious doubts on veracity of such witness.

8. After discarding the statements of above two prosecution witnesses, the prosecution is left with identification parade of the convicts/appellants, confessional statement allegedly made by Wajid Hussain one of the convict/appellants and recovery of purse/wallet and CNIC allegedly belonging to the deceased. As regards identification parade, it has been noticed that:- a) Sikandar Mehmood (PW-7) in his statement before the court has not mentioned the features, descriptions, heights or ages of the convicts/appellants and furthermore no specific role has been assigned by him to the convicts/appellant. Even his statement appearing in Ex.DA is also silent on above aspects. In this view of the matter, when PW-7 had not given the personal features of the accused and also had not assigned them specific roles, his statement about identifying the accused would remain useless or at least not free from doubt; b) In continuation to the above, it has been observed by us that Ghulam Rasool Inspector (PW-12) who had partially investigated the case states that on 24.02.2015 he joined all these convicts/ appellants in the investigation of instant case, whereas, their formal arrest in this case was shown on 03.03.2015 and on 04.03.2015 they were sent to judicial lock up, but their identification parade was got arranged on 09.03.2019 and no plausible reason exists on the file to explain that if the convict/appellants had already been arrested then why they were not put to identification parade at the earliest, whereas in order to eliminate the possibility of the accused being known to the witnesses prior to the test identification parade it is desirable that a test identification should be conducted as soon as possible after the arrest of the accused. c) Identification was supervised by Allah Yar Bhatti, Magistrate Ist Class (PW-13) but this witness admitted that he had not mentioned the height, colour, features, body structure, shave and beard of the dummies and also that all the dummies sitting along with suspect accused Wajid Hussain were not of exact similarity with his beard; d) It is admitted by Allah Yar Bhatti Magistrate Ist Class (PW-13) who had supervised the identification parade admitted that Wajid Hussain bears sign of small mole on left side of his face below the left eye, which could be seen from a distance of four feet, Wajid Hussain also had sign of small pox on the center of his forehead above the nose. Ghulam Mustafa convict/appellant had moles on his face, which was visible from 5 to 8 feet. Similarly, there were signs of wound on both hands of accused Muhammad Nazim alias Kalu. This being the position when it is admitted that convict/ appellants were having specific identification marks, it was incumbent for the Magistrate supervising the identification parade to have ensured that accused/dummies were not only similar in feature but their special identification marks, if any, must have been covered, so that the witnesses could not use such mark to their benefit and identify the accused, which element is badly missing in the instant case. All the above factors when considered jointly render the identification parade a nullity in the eyes of law.

9. Now coming to the retracted confessional statement of Wajid Hussain convict/appellant, it is matter of record that said statement was recorded by Rana Muhammad Ilyas Bashir Civil Judge Ist Class, Okara (PW-14). a) It is admitted by the said judicial officer that the accused did not confess that he himself had committed the assassination mentioned in the confessional statement. We have also seen that Wajid Hussain convict/appellant does not provide details from the stage of abduction and has not mentioned that how or in what manner Mubarak Ahmad was kidnapped; he also does not include himself in the act of beheading, digging of the land and then burial of said Mubarak. In this view of the matter, when the maker is exonerating himself from important allegations then his such statement at the most can be termed as exculpatory confession, which cannot be regarded as confession and has little value even against the maker. Reliance is placed on Pervaiz Iqbal's case (DB) PLD 1976 Kar. 583). b) In addition to the above legal position, the statement which is being referred as confessional statement of Wajid Hussain convict/appellant was subsequently retracted by him during trial and there is settled law on the point that conviction cannot be based on retracted confession alone, and in order to record conviction it is imperative for the prosecution to bring on record corroborative piece of evidence. Reliance has been placed Abdul Latfi's case (PLJ 1999 SC 264). c) Apart from the fact that it was exculpatory and retracted statement, the same also lacks required corroboration from any other source for the reason that if the deceased had been killed as told by Wajid Hussain convict/ appellant then the Investigating Officer must have taken the accused/convict to the place where the deceased was beheaded and also the place where he was buried, but it is matter of fact that no such effort was made by the Investigating Officer; d) Furthermore, the dead body or its Skelton also could not be recovered; as such the death itself carries a question mark, because otherwise, no proof about death of Mubarak Ahmad is available on the file; e) Another important aspect of the matter is that proceedings with regard to recording of confessional statement were initiated through an application filed by Muhammad Aslam Sub-Inspector for getting the statement of Wajid Hussain convict/appellant recorded, when he was produced before Rana Muhammad Ilyas Bashir Civil Judge Ist Class, Okara (PW-14) for the purposes of obtaining his judicial remand in case FIR No.466/20145 under section 13/20/65 of Arms Ordinance registered at Police Station Saddar Gujrat. During cross-examination Rana Muhammad Ilyas Bashir Civil Judge Ist Class, Okara (PW-14) in clear words states that "It was the time of Maghrib prayer, when I completed the proceedings with regard to the recording of confessional statement of the accused....". Subsequently although he denied to have completed the confessional statement of the accused after the closing hours of the court, but after above clear statement his subsequent explanation on the face of it appears to be an attempt to cover up his legal fault. When the Magistrate (PW-14) himself admits that proceedings were completed at Maghrib time, it means that he had recorded the statement after court hours. The Lahore High Court Rules and Orders Volume III, Chapter 1 in its rule 1 provides that trials shall be conducted during Court hours at court houses only. Rule 7 of the same chapter provides an exception that the hearing of a case taken up before closing hour may continue for a short time after that hour. Thereafter, Chapter 13 of the Volume III, which deals with confessions and statements of accused persons, its rule 6 categorically provides that confessions should be recorded in open court and during court hours unless there are exceptional reasons to the contrary and if there are exceptional reasons for recording confessional statement after court hours, then the Magistrate is bound to record in writing all such exceptions why he has recorded the statement after the close of court hours and what was the urgency in this respect, otherwise, the proceedings become doubtful and possibility cannot be ruled out that there was apprehension that if the matter is adjourned for the next day, the accused may not make a statement which could involve him in the commission of any offence. f) Moreover, it is right of every accused to get the facility of an Advocate and after court hours no such facility could be availed. If there were exceptional reasons, then the court must have specifically put question to the accused present before the court that whether he would like to engage a counsel and unless his counsel is present confessional statement after court hours should not be recorded. The courts dealing with such matters must carefully observe and implement the instructions and guidelines provided in the relevant rules and the pronouncements of the superior courts. g) From the statement of Magistrate PW-14, it appears that he has not followed the procedure for recording confession/ statement of the accused and apparently he acted in haste to record confessional statement after court hours without any legal justification. All the above pointed lacunae not only render the entire proceedings with regard to recording of confessional statement illegal but also require proper counseling to Rana Muhammad Ilyas Bashir Civil Judge Ist Class, Okara (as he was posted on 18.11.2014). Office is directed to place a copy of this judgment before Director General, District Judiciary for the needful in the light of above observations.

10. As regards recovery of wallet P.1 allegedly belonging to deceased Mubarak along with his CNIC P.2, it has been observed that:- a) Except the statement of the complainant before the court, he had not stated anywhere either in the FIR or in his complaint that CNIC and wallet of his deceased brother were missing. b) In the same terms although Sikandar gave other details but no where mentioned in his statement Ex.DA that at the time of kidnapping wallet and CNIC of the deceased were also with him. c) Furthermore, the alleged occurrence took place 26/27.10.2009 and the alleged recoveries of wallet and CNIC of the deceased were effected on 27.03.2015 i.e. almost six years after the occurrence. i) Firstly it is repellent to common sense that the convict/appellants who were so careful that they beheaded the deceased and then buried him so as to remove any trace, but at the same time they would keep the belongings of the deceased including his wallet and CNIC with them, to be subsequently recovered and used against them; ii) Secondly, those articles were allegedly got recovered by convict/appellant Nazim Hussain from room of a dera. There is no further detail that where those articles had been kept, whether those were lying in open place in the room or had been hidden in box, etc; d) Furthermore, it has not come on the record that who was the owner of the dera where from allegedly wallet and CNIC were got recovered by Nazim Hussain convict/appellant and no other person from the vicinity was associated in recovery proceedings and similarly statement of none of such person from the area was recorded who might have seen the convict/appellants ever visiting the said dera. All the above grounds of sufficient to disbelieve the recovery of wallet or CNIC allegedly belonging to Mubarak deceased.

11. For what has been discussed above, we are of the firm view that prosecution has failed to bring home the guilt against the convicts/ appellants beyond any shadow of doubt. Consequently, Criminal Appeals Nos.864/2015 and 843/2015 are allowed, convictions/sentences against all the three convicts/appellants are set-aside and they are acquitted of the charges. They shall be released forthwith if not required in any other case. Capital Sentence Reference is answered in the negative. SENTENCE OF DEATH IS NOT CONFIRMED. JK/W-8/L Appeals accepted.