2006 PLP 231 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

The story of instant abduction for ransom is unfolded through F.I.R. No.4 dated 10-1-2002 of Police Station Kotwali, District Jhang. Sajid Mumtaz son of Mumtaz Hussain, the complainant lives in Mohallah Chandanwala along with his mother, a brother and a sister while his father Mumtaz Hussain is doing job in Saudi Arabia for the last 22 years. On 1-1-2002 at about 4-00 p.m. Abid Mumtaz (8/9), his younger brother went to the nearby shop to make some purchase. He did not return till the fall of night thus, making the whole family perturbed. They conducted search 'during which one Muhammad Ashraf Naul, a nearby shopkeeper informed that Abid Mumtaz minor at about 4-00 p.m. had come to his shop and returned home after buying toffees.

2. The search continued on personal level when, on the night between 4th and 5th of January, 2002, they got the first clue in the shape of a cassette with a letter dated .2-1-2002 purporting to be on behalf of one Sher Khan Pathan. The writer had claimed being in custody of the minor and asked for a ransom of Rs.65,00,000 which, if agreed by the complainant party, they should fly a green flag on their gate visible from the main road. The family was threatened not to be clever and also to distribute among poor all their shops located on Bhakkar Road. Any failure in making payment was to result not only into the death of Abid Mumtaz but also into similar treatment with Sajid, the complainant.

3. The cassette contained the voice of Abid Mumtaz, abductee asking that the money should be paid the same day. The family received another reminder through post on 8-1-2002 making repetition of the previous demand. The complainant informed his father in Saudi Arabia. He too came therefrom and hence the complainant lodged the report on 10-1-2002. Delay is attributed to the apprehension that if reported to the police, the culprits would kill Abid Mumtaz.

4. The police took over the investigation of the case when on 23-1-2002, the complainant informed about dead body of the abductee lying in the area of Chak No.268 on Gojra Road. Five days after the recovery of dead body one Falak Sher (P.W.16) appeared before the Investigating Officer informing him of Azhar Hussain accused having made extra-judicial confession before the witness during the night between 23rd and 24th January, 2002. On 29-1-2002 similar statement was made by Noor Muhammad (P. W.17) regarding extra-judicial confession of Basharat and Mst. Naghma made before him on the night between 24th/25th January, 2002. Likewise Ahmed Taqi (P.W.19) was a witness appearing before the Investigating Officer on 22-2-2002 making disclosure of an extra-judicial confessional made before him by accused Asif Shah. The accused/respondents were arrested thereafter.

5. During investigation a pair of Joggers, a motorcycle, a picture frame with a photograph of Azhar Hussain and his wife Mst. Naghma, Chloroform, a Chhuri and a pair of slippers allegedly belonging to Abid Mumtaz deceased were recovered from the person as well as the house of Azhar Hussain. Jacket and a payment slip of school fee were recovered from Mst. Naghma. The letters through'which demand for ransom was made were also sent to Handwriting Expert for comparison with the sample handwriting of Mubashir respondent. Sniffing dogs were also deployed to identify the culprits. The said dogs sniffed the track leading to an incriminating Azhar Hussain. The prosecution, at trial relied upon the extra-judicial confessions of all the five accused, the evidence of sniffing dogs, three message notes that tallied with the handwriting of Mubashir and the recovery of deceased's jacket with a school fee chit from the house of accused Mst. Naghma. On close of trial, the learned trial Court convicted and sentenced the accused as follows:

Azhar Hussain and????????????? Under sections 365-???????????????????????????? Death and confiscation of Basharat??????????????????????????????? A/114, P.P.C.???????????????????????????????????????? movable properties. -do-???????????????????????????????????????? Under sections???? ??????????????????????????????? Death and compensation of 302(b)/34, P.P.C.?????????????????? Rs.2,00,000 under section 544-A, P.P.C. -do-???????????????????????????????????????? Under section 7-A?????????????????????????????? Fine of Rs.2,00,000 read with section 6(2)(a)???? (Anti- Terrorism Act, 1997) -do-???????????????????????????????????????? Under section 201,?????????????????????????????? 5 years' R.I. and fine of P.P.C.????????????????????????????????????????????????????? Rs.1,00,000 Mubashir and Asif????????????? Under sections 365-???????????????????????????? Imprisonment for life with Shah?????????????????????????????????????? A/114, P.P.C.???????????????????????????????????????? fine of Rs.2,00,000 each. -do-???????????????????????????????????????? Under section 7(b)?????????????????????????????? Imprisonment for life and a of Anti-Terrorism???????????????? fine of Rs.2,00,000 Act, 1997 Mst. Naghma??????????????????????????????????????????????????????????????????????????????????????? Acquitted of all the charges mentioned above. All the accused aforesaid filed the appeal, heard by a learned Division Bench of Lahore High Court wherein the murder reference was answered in the negative and all the accused were acquitted of the charges levelled against them. Such judgment dated 8-1-2003. is challenged through Criminal Petitions Nos.92/L and 145/L of 2003 whereby Sajid Mumtaz, complainant and the State respectively seek leave to appeal.

7. As would be obvious from the foregoing narration of facts that the prosecution at trial placed reliance upon:-- (i) letter demanding ransom alleged to have been written by Mubashir accused; (ii) recovery of joggers and motorcycle of Azhar Hussain accused; (iii) recovery of jacket and a slip regarding payment of school fee of deceased Abid Mumtaz from Mst. Naghma accused; (iv) picture frame containing photograph of Azhar and his wife Mst. Naghma from their house through which it was suspected that the deceased boy had identified the culprits; (v) chloroform used in the occurrence; (vi) Chhuri/knife being weapon of offence; (vii) a pair of slippers of deceased Abid Mumtaz; (viii) sniffing dogs evidence leading to Azhar Hussain and (ix) extra-judicial confession of all the accused.

8. The learned Judges in the High Court have extensively dealt with each and every aspect and have advanced plausible reasons for discarding such evidence. We would like to take up the aforesaid pieces of evidence. Taking up the letter demanding ransom allegedly written by Mubashir, suffice it to say that different samples on two different occasions were sent, the first being insufficient for the purposes of comparison, but it is not proved as to in whose presence the second category of samples were obtained from Mubashir accused. Like done by A the High Court, we have also gone through a few samples, the writing wherein was so bad that it was not at all legible muchless comparable by the Expert. This matter, as a circumstantial evidence, was never put to the accused when examined under section 342, Cr.P.C. This shortcoming requires the remand of case but the choice of conclusion would be made after appraising all the remaining aspects of the case.

9. The moulds of footprints and tyres have been lifted from the place where the dead body of deceased was found. The prosecution claims that such moulds stood compared with the joggers and motorcycle belonging to Azhar Hussain accused. Such comparison is totally unworthy of credence because both the moulds were found unfit for comparison.

10. The recovery slip regarding payment of school fee and the jacket of the deceased are the next pieces of evidence relied upon by the prosecution. The High Court rightly rejected this evidence on the ground that neither the jacket was proved to be that of Abid Mumtaz nor the payment of fee stood independently proved from the quarter concerned.

11. The picture frame containing the picture of Azhar Hussain and his wife Mst. Naghma, to our mind has been a useless effort altogether of the prosecution. It is said that the deceased was done to death because he had identified the aforesaid two culprits from the picture lying in the house. It is simply ridiculous because the pictures of the inmates of a house are normally and invariably found in ones house. There is nothing special about it. Moreover, the boy was allegedly kidnapped from a public place by his alleged neighbours who must have been identified there and then. It is not the case of the prosecution that at the time of occurrence and for all times to come, all the accused had been moving about and around with their faces muffled and that therefore, the only source of identification was the picture involved.

12. There is not an iota of evidence that the boy Abid Mumtaz either at the time of occurrence or at any subsequent stage was administered chloroform. Neither there is any medical report to that effect nor it can in any manner be inferred from the post-mortem report. Recovery of chloroform is as useless as the remaining recoveries alleged.

13. The Chhuri/knife does not carry any stains of blood and thus, is reduced to normal Chhuri usually found in every household as kitchen knife.

14. Much stress is laid on the recovery of 'a pair of slippers allegedly belonging to Abid Mumtaz deceased. It is but a matter of common and obvious observation that the deceased must have been having only one pair of slippers which he had been wearing at the time of abduction and thereafter till his death. He did not have any occasion to keep a spare pair of Chappals with him. Amazing it is to observe that Sajid Mumtaz, complainant (P.W.21) categorically maintained that when the dead body was found, it wore the Chappals then recovered by the police as Exh.P.18/1-2. When the pair of slippers remained on the person of the deceased till the recovery of his dead body, it is not known as to which pair was it that got recovered from the place or places of the accused.

15. Coming to the evidence of sniffing dogs, one has to keep in mind that this exercise was conducted by Malik Sikandar (P.W.7). His dog while sniffing the track led to the accused Azhar Hussain with whom he grappled. Malik Sikandar could have been the only person to prove this pointation but he totally failed to identify said Azhar Hussain in Court. The Investigating Officer did not arrest him there and then considering that such evidence was insufficient and lest that, by resorting to arrest, he might resort to injustice. The fact is quite the reverse of it. The Investigating Agency has made .sufficient concoctions, tailorings and paddings but the conscience of the Investigating Officer did not prick. He reacted `justly' to the only evidence that seldom falters provided the dogs are sufficiently trained from an approved centre.

16. The demolishing evidence on record would suggest that the very evidence of sniffing dogs is contradictory as well as self-destructive when claimed that after smelling the dead body of Abid Mumtaz the dogs sniffed to lead to Azhar Hussain. The date of deploying the dogs is 10-1-2002 whereas the dead body was found on 23-1-2002 having been buried on 24-1-2002. Moreover, the main witness namely Malik Sikandar in this behalf and the Investigating Officer are damagingly contradicting each other by giving the date of such exercise as 10-1-2002 and 26-1-2002 respectively. Naturally, the Investigating Officer cannot be true because much before 26-1-2002, the dead body had been buried. The Investigating Agency has altogether been working on wrong premises with a self-coined theory that the sniffing dogs could lead to the culprits only if they are made to smell the dead body. While on the other hand, the fact is that if properly trained, the sniffing dogs could have led to the abductee or for that matter, the culprits even after smelling any cloth or other usable of the deceased already available at home. The clothes or the things used by the abductee should only be those where aroma of his body still dwells. The misconception sustained by the Investigating Officer has led to all the controversies mentioned above.

17. Last but not the least are the extra-judicial confessions of all the accused, out of whom those of Basharat and Mst. Naghma are joint one. This requires somewhat detailed discussion. This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra-judicial confessions staring from Ahmed v. The Crown PLD 1951 FC 103-107 up to the latest. Extra-judicial confession has always been taken with a pinch of salt. In Ahmed v. The Crown, it was observed that in this country (as a whole) extra-judicial confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extra-judicial confession, the Court must inquire into all material points and surrounding circumstances to "satisfy itself fully that the confession cannot but be true". As, an extra-judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction.

18. It has been further held that the status of the person before whom the extra-judicial confession is made must be kept in view, that joint confession cannot be sued against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by this Court.

19. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.

20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off, (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such-like heinous offences where fear dominates and is always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confident. In the instant case the position of the witnesses before whom extra-judicial confession is made is such that they are neither the close confident of the accused nor in any manner said to be sharing any habit or association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration.

21. Another most important and natural purpose of making extra-judicial confession is to seek help from a third person. Help is sought firstly, when a person is sufficiently trapped and secondly, from one who is authoritative, socially or officially. The witnesses in hand before whom the confessions are said to have been made are of no social or official status. One Falak Sher (P.W.16) is a junior clerk in the office of the Deputy Commissioner, the other Noor Muhammad (P.W.17) is a petty fodder-seller and the third Ahmed Taqi (P.W.19) is a teacher in a private school. It is yet to be answered as to what help could they have rendered to the accused when involved in a heinous case of murder as well as abduction for ransom. Least to mention that the dead body having been recovered on 23rd, none of the accused had any apprehension of being suspected, involved or arrested on the day of making extra-judicial confessions. These are absolutely unnatural.

22. As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. P Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions. Such confessions by now, have become the signs of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesses with the maker of confession and what, above all is the position or authority held by the witness.

23. Seen in the above perspective and also that the extra-judicial confessions of Basharat and Mst. Naghma were joint, all are excluded from consideration. In view of what we have been confronted with on record, all the pieces of circumstantial evidence in the instant case are not worthy to be placed reliance upon. The learned High Court was right in recording acquittal of the respondents. There being no force in the petitions, both are hereby dismissed and leave to appeal refused. N.H.Q./S-141/SC??????????????????????????????????????????????????????????????????? Leave to appeal refused.