2006 PLP 1223 (MLD)

RAHAMT HUSSAIN JAFFERI, J.

This judgment will dispose of Special Anti-Terrorism Appeal No.46 of 2004 and Confirmation Case No.16 of 2004 as they arise out of a common judgment.

2. Brief facts given rise to the present appeal and confirmation case are that on 11-6-1998 P.W.5 Hoot Khan was residing on the first floor of the House No.1653 situated in Surjani Town. On the ground floor the landlady Mst. Shamim Bai was residing. P.W.5 was residing with his family viz., wife, daughters,-and son. At about 2-00 p.m. P.W.5 along with his family members was present in the house when two persons, out of them one was armed with pistol and other was armed with knife, entered the house. They beat the complainant and tied his hands and hands of his wife. Thereafter, they started committing robbery in the house. They took cash of Rs.7,000 from the house. They also snatched a golden chain from P.W.5 and his daughter deceased Momal. During the course of robbery the culprits played tape recorder with'its full volume. After committing the robbery one of them took deceased Momal on the ground floor whereas other culprits was kept standing there. At about 4-00 p.m. two more culprits brought the landlady Mst. Shamim Bai. Her hands were tied. She was made to sit with P.W.S. The landlady informed the name of one of the culprits as Amjad Lodhi. She further informed the complainant that three culprits were rapping his daughters. After some time one of the culprits started guarding them from 4-00 p.m. to 7-00 p.m. the landlady disclosed the name of said person as Riaz, the present appellant. Thereafter three culprits came there and they put all the inmates of the house in a bathroom and locked the door. After some time the tape recorder was stopped, therefore, they started raising cries presuming that the culprits had gone. The neighbours opened the door of the bathroom. They went downstairs and found the dead bodies of Momal, Shamim Bai, Asifa, Maqsood and Shahnaz. Thereafter, police arrived at the scene of incident.

3. The police after usual investigation arrested acquitted accused Amjad Khan, Rehan and Abdul Azeem Qureshi and challaned them in the Anti-Terrorism Court where they were tried and convicted on 15-7-1999. They preferred appeal before this Court, which was allowed and they were acquitted.

4. The appellant was shown absconder in the challan. He was arrested on 29-8-1999. He was produced before a Magistrate for holding identification test through P.W. Hoot Khan, who identified the appellant to be one of the culprits. Then the police submitted the challan before the Court against the appellant. On 18-11-2004 the learned Judge, Anti-Terrorism Court No.III framed the charge against the appellant. The prosecution examined 9 witnesses. The accused denied all the allegations of the prosecution and claimed to be innocent.

5. The learned trial Judge relying upon the evidence of P.W.5, identification test and recovery of golden chain convicted the appellant under section 7(a) of Anti-Terrorism Act, 1979 (hereinafter referred to as 'Act, 1997') read with section 302(b), 396, P.P.C., 6(c) of the Act, 1997 and 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to death. The learned trial Judge also imposed fine of Rs.5,00,000 or in default thereof he was directed to suffer' R.I. for 5 years without benefit of section 382-B, Cr.P.C. The appellant was dissatisfied with the said judgment, therefore, he has preferred the present appeal. The learned trial Judge has sent Reference under section 374, Cr.P.C. for confirmation of death sentence.

6. We have heard the Advocate for the appellant, A.A.-G. for the State and perused the record of this case very carefully.

7. The learned Advocate for the appellant has stated that the prosecution case rests upon three pieces of evidence viz., (1) ocular testimony consists of P.W.5; (2) identification test; and (3) recovery of golden chains. He has stated that the ocular testimony is full of exaggeration and improvements as P.W.5 has improved his evidence from his earlier statement in which he did not name the appellant nor any role was assigned to him; and that the witness is untrustworthy. As regards the identification test he has stated that it is a corroborative piece of evidence which cannot be relied upon without substantive piece of evidence which the prosecution has failed to prove in accordance with law. As regards the recovery of golden chains, he has stated that no witness has deposed that the appellant had produced any golden chain before the police or witnesses, therefore, the said piece of evidence" cannot be used against the appellant.

8. Conversely, the learned A.A.-G. has stated that the case rests upon the abovementioned three pieces of evidence that the ocular testimony is reliable and trustworthy. However, he has admitted that the P.W.5 has made improvements in his statement from his earlier statement but that can be ignored. He has further stated that ocular testimony is corroborated by identification test of the appellant through P.W.S. As regards the recovery of golden chains, he has stated that the prosecution has not led any evidence to show that the golden chains were produced by the appellant but on the contrary one of the witnesses P.W.4 has not supported the prosecution case, therefore, he has not relied upon the said piece of evidence.

9. We have given due consideration to the arguments, gone through the material available on the record and found that the prosecution has led three pieces of evidence to prove the charge against the appellant (1) ocular testimony; (2) identification test; and (3) recovery of golden chains.

10. As regards the ocular testimony, it consists of only P.W.5 who gave the same details of the incident as mentioned in the earlier part of the judgment and need not be repeated. The witness was cross-examined and his attention was drawn towards the statement made by him before the Court during earlier trial and was specifically asked that he did not state that the accused Riaz had taken away his daughter on the ground floor when accused Amjad Lodhi remained as guard on him and his family; that Mst. Shamim had not informed him that accused Amjad Lodhi was brother of Babar Lodhi who had come along with three terrorists and was molesting the modesty of his daughters in the house; that the accused Riaz had also snatched the ear ring from Mst. Shamim Bai when she was made hostage; and that the accused Riaz also remained as guard at them from 4-00 to 7-00 p.m. The witness denied the said suggestions of the defence counsel but stated that he had stated such facts in his earlier statement. Under the law, the learned trial Judge was required to confront the said portions of his statement with his earlier statement recorded by the Court but it appears that the same was not made by the learned trial Judge. The earlier statement of P.W.5 Hoot Khan is available in the paper book at page

37. Under Article 91 of Qanun-e-Shahadat Order, 1984 a presumption of genuineness is attached to the judicial record of the Court and statement recorded by the Court, therefore, we have verified the above portions of the statement of P.W.5 with his earlier statement and found that the witness did not state such facts in the said statement, as such, he has made improvements in his statement before the Court. In such a situation the Hon'ble Supreme Court of Pakistan in the case of Saeed Muhammad Shah v. State (1993 SCMR 550) observed that if the improvements are made by a witness in his statement then such improvements are unworthy of reliance and the evidence of witness requires corroboration. The said rule is fully applicable to the facts and circumstances of the case. Therefore, the abovementioned statements made by the witness, which have been proved to be improvements, are required to be taken out of consideration being unworthy of reliance and the evidence of witness requires corroboration.

11. If the above portions of evidence are taken out of consideration then there is nothing left with the prosecution to implicate the appellant through this witness. As such, the oral evidence is insufficient to involve the appellant with the commission of this crime. As regards the facts which were told to the P.W.5 by the landlady Shamim Bai, it is pointed c out that Shamim Bai has not been examined, as such, the said facts have become hearsay that is inadmissible in evidence, as such, the same are discarded. Thus, the oral evidence is unworthy of reliance hence it is discarded.

12. As regards the identification test, suffice it to say that the said piece of evidence can be used as a corroboration to the substantive piece of evidence. In the present case the substantive piece of evidence is in the shape of ocular testimony of P.W.5 that has already been discarded. As such, there is no substantive piece of evidence in this case. It is well settled that if there is no substantive piece of evidence then no conviction can be based on solely corroborative piece of evidence.- In the present case there is no substantive piece of evidence, as such, there is nothing left to be corroborated by the above piece of evidence. Thus the identification test carries no weight in the present circumstances of the case.

13. As regards the recovery of chains, we have examined the evidence and found that the prosecution has not led arty evidence to show that the appellant had produced the golden chains. On the contrary, P.W.4, who was the Jeweller to whom it was alleged that the appellant had sold the golden chains has not supported the prosecution case as he categorically stated that the appellant did not bring chains before him. Even the evidence of P.W. 1 shows that the golden chains were produced by one jeweller before the A.S.-I. and he had acted as mashir to the said recovery. From the above evidence it appears that the prosecution has led evidence to show that the golden chains were produced by some jeweller and not by the appellant. The prosecution has also not relied upon the said piece of evidence.

14. After considering the material available on the record we are of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt, therefore, we had extended the benefit of doubt to the appellant while passing the short order.

15. Above are the reasons of our short order dated 9-5-2006, by which we had allowed the appeal and dismissed the confirmation case. H.B.T. /R-20/K??????????????????????????????????????????????????????????????????????????????????? Appeal' allowed.