' RAHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Special Anti-Terrorism Appeals Nos.39 of 2004, 34 of 2005 and 35 of 2005 as common questions of facts and law are involved.
2. The case of the prosecution as per F.I.R. Is that the complainant was running his business at Muscat and mostly remained out of country in connection with his business. His wife Shahnaz Perveen, who was employed in National Bank, along with his son Raghib Abbas aged about 22 years were residing together. On 1-4-2004 his son Raghib Abbas went in his Suzuki FX blue colour car to meet someone at about 10-15 a.m. While he was leaving the house, his mother inquired from him as to where he was going to which Raghib Abbas informed her that he was going to see his friend at Rado Flats, Block 12,. Gulistan-e-Johar. Subsequently, Zeeshan Abbas the brother of the wife of complainant informed his sister Shahnaz Perveen that. He had seen Raghib Abbas going with a girl and a boy in his car at about 11-30 a.m. At about 1-30 p.m. Shahnaz Perveen received a telephone call from unknown person. The caller informed her that her son was with him and in case, she wanted to see him alive, she should pay ransom of Rs,10,00,000 to him. She was perplexed because of that telephone call, therefore, she informed the complainant about the said facts on telephone at Muscat so also her other relatives. They tried to search Raghib Abbas but did not succeed. In the meanwhile they also received another telephone call from the kidnappers who threatened that in case the matter was reported to the police, they would receive the corpse of the abductee, therefore, Shahnaz Perveen did not inform the matter to the police. At about 8-30 p.m.
Another telephone call was received at his house thereby informing Shahnaz Perveen that her son was lying injured in the car and he might be collected. On receipt of telephone call they reached at Singapore Tower where behind Singapore Tower they found Raghib Abbas lying injured and unconscious in his car and blood was oozing from his mouth. Shahnaz Perveen brought him to Jinnah Hospital and from there the injured was shifted to Liaquat National Hospital where he was admitted. It is further averted in the F.I.R. That Raghib Abbas informed his mother Shahnaz Perveen that one Shiraz was his friend. Who used to chat with him by posing himself as a girl and the (Raghib Abbas) informed him the prevailing circumstances of their family including business of his father at Muscat and service of his mother and that he mostly used to remain alone in his house. In the night of 31-3-2004 Shiraz while posing himself as girl asked him that he wanted to meet with him. Sheeraz called him at Rado Flats and when he reached at the requisite time and place, Shiraz along with a girl, who subsequently disclosed her name as Shabana met him. They sat in his car and he proceeded from there. After some distance Shiraz took out weapon and Shabana asked him that her house was situated in Block 19 and directed him to drive the car there. They brought him in Block 19, Gulistan-e-Johar in a bungalow where appellants Khurram, Asif and Athar were present. They took out TT pistols and they started beating him with the butt of TT pistols and asked him that he was rich man and they would receive ransom money from his father. Meanwhile the appellant Shiraz asked his companions that he might be given same treatment as was given to one Muhammadi. On such instance of appellant Shiraz, appellants Athar and Khurram caught hold of his legs, appellant Shiraz also caught him appellant Asif injected an injection on his chest and some time later he talked on telephone with someone by informing him "doctor, nothing had happened with him after injecting first injection". After taking instructions from other side they also injected another injection on his chest. Thereafter, he went unconscious. When he regained his senses, he found himself in hospital. The F.I.R. Further disclosed that the matter was informed to Police Station Gulistane-Johar on telephone. From where Umeed Ali Mirani S.I.P. Visited Liaquat National Hospital and recorded the statement of Raghib Abbas. On 16-4-2004 Raghib Abbas expired in the hospital. The complainant thought that police were doing necessary investigation but was subsequently, informed that all the police officials, who had visited the hospital, were killed in an attack at Police Station Gulistan-e-Johar. He further stated that he visited Police Station Gulistan-e-Johar where he was informed that the present incident fell within the territorial jurisdiction of Police Station Shahrah-e-Faisal, as such, he lodged the F.I.R. Against Shiraz, Asif Khan, Khurram, Athar and Shabana, who kidnapped his son Raghib Abbas aged about 22 years with intention to take ransom money from him and killed him by injecting certain injections. As such, the F.I.R. As stated above, was registered on 25-7-2004 at 8-30 p.m.
3. The police after usual investigation submitted challan in the Court by showing appellants Khurram Mushtaq and Athar Mahmood in custody and accused Sheerazuddin, Shabana and Asif as absconders. The case proceeded against the appellants Khurram Mushtaq and Athar Mahmood. In the trial the prosecution examined 12 witnesses. The appellants, in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. They did not examine themselves on oath but examined two defence witnesses namely Muhammad Mubashiruddin and Muhammad Abrar .Khan.
4. The learned trial. Judge, after considering the. Evidence and hearing the parties' counsel convicted the appellants under section 7(e) of Anti-Terrorism Act, 1997 (hereinafter referred to as "Act, 1997") read with section 365-A, P.P.C.; under section 7(a) of Act, 1997 read with section 302(b), P.P.C. And sentenced each of them to suffer imprisomnent for life and fine of Rs,1,00,000 and forfeiture of properties to the extent of Rs,1,00,000. In case of non-payment of fine the appellants were sentenced to suffer R.I. For 5 years each with direction that after its recovery half of the fine amount should be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Without benefit of section 382-B, Cr.P.C. Vide judgment, dated 19-10-2004. Both the appellants preferred appeal bearing No,39 of 2004.
5. Subsequently, the appellants Abdul Sajjad and Sheerazuddin were arrested. They were tried separately. In that trial the prosecution examined 10 witnesses. The learned trial Judge, after considering the evidence and hearing the parties' counsel convicted the appellants for offences punishable under similar sections as that of appellants in Appeal No,39 of 2004 and they were also awarded similar sentences under the impugned judgment dated 26-5-2005. The appellants have filed two separate appeals bearing Nos.34 and 35 of 2005 respectively.
6. We have heard the Advocates for the appellants, A.A.-G. For the State and perused the record of this case very carefully.
7. The learned Advocates for the appellants have stated that the rosecution has relied upon: (1) dying declaration of the deceased; and (2) identification test of appellants through P.W.3 Zeeshan Abbas and P.W.7 Jamil Ahmed; that the dying declaration of the deceased has not been proved in accordance with law: that the identification of the appellants through their names was not proper as the appellants were not known to any of the witnesses; that the P.W.3 and P.W.7 had improved their statements in the Court from their earlier statements; that the initial story of the prosecution was that one boy and one girl were with the deceased which has been improved by showing that there were two boys and one girl with the deceased at the time of alleged abduction; that the entire story of the prosecution has been changed. They have emphasized that there is delay of more than three months in lodging the F.I.R. Which the prosecution has failed to explain. Therefore, the prosecution story has become doubtful and has been prepared after due consultation so as to involve the appellants in the case.
8. The learned A.A.-G. Has also stated that the case of prosecution rests upon the above pieces of evidence as disclosed above and further added that the house from which the deceased was taken away in an unconscious condition was rented out to appellant Sheeraz; that the P.W.7 had seen the appellants putting the,, deceased in unconscious condition in the car; that P.W.3 had seen the appellants Athar and Sheeraz in the car at the time of abduction; that the dying declaration has been proved; that the delay in lodging the F.I.R. Has been explained, therefore, the prosecution has proved the case against the appellants. He has supported the impugned judgment.
9. First of all we will take up the dying declaration of the deceased. In order to prove the said piece of evidence the prosecution relied upon P.Ws. Shahnaz Perveen, Syed Zeeshan Abbas Zaidi and corroborated by complainant Syed Hussain Abbas. Their evidence reveals that the deceased informed the incident to the witnesses on two occasions at two different places: The first narration was given to his mother Shahnaz Perveen and his maternal-uncle Syed Zeeshan Abbas while they were returning from Jinnah Hospital and going to their house. The second time the deceased disclosed the facts to Shahnaz Perveen and other P.Ws. When he was admitted in Liaquat National Hospital. The evidence of Mst. Shahnaz Perveen, recorded in the first trial reveals that when the deceased was being taken to her house in the car which was being driven by her brother Zeeshan Abbas the deceased disclosed the facts and her evidence on the above point reads as under:-- "In the way to our house, I inquired from my son about the incident and he informed me that accused Shiraz, Athar and one girl by name Shabana were his Cyber friend on internet and they had called him at Rado Centre to which he did and when he came at Rado Centre, Shiraz, Athar and Shabana were present there who came in his car and after some distance when he tried to take turn of the car towards our house the said friend Shiraz took out pistol and kept it on his temple and asked him to drive the car straightly, then the said girl Shabana asked them to take him at her bungalow situated in Gulshan Bungalows, Gulistan-eJohar as such they brought him in that bungalow where two persons Asif and Khurram were already present where Asif and Shiraz had beaten him. They had also fastened his hands with rope. He further informed me that they had also demanded the keys of our house from him to which he had informed that the keys of house are not with him as I was present at my house.. Thereafter they took telephone number of our house from him. They had reiterated to him that they will receive ransom from his father. Sometime later they said that they could not receive ransom from his father and he may be given same treatment as has been given to one Muhammadi. Thereafter the accused Athar and accused Khurram caught hold of his legs and accused Shiraz and Asif caught his hands and also injected a syringe in his chest. The lady accused Shabana was standing near to him at that occasion.
Sometime later they talked with someone on telephone and directed to other side that doctor nothing has happened after first injection thereafter they injected another injection in his chest and after the second injection he went unconscious and he regained his sense in the hospital."
10. P.W. Zeeshan Abbas also gave the same facts as mentioned above. With regard to the facts narrated by the deceased to the P.Ws. During the second time in the hospital Mst. Shahnaz Perveen stated as under:- "At Liaquat National, Hospital my son was admitted in Chest Ward where he was provided necessary treatment and he again regained his full senses but he was constantly complaining about severe pain in his chest. On the middle night of 3rd and 4th April, 2004 one Inspector along with 3-4 police officials had visited hospital and had recorded the statement of my son though I had not informed to the police about the incident."
11. P.W. Zeeshan Abbas stated as under:-- "On the second day of his admission in Liaquat National Hospital at about 1-30 a.m. Police also visited and recorded his statement in ICU Chest Ward and I as well as Arif Raza the friend of my brother-in-law were present at that time and my nephew had disclosed all the details to police officials which I have stated to the earlier part of my statement."
12. P.Ws. Gave the details of dying declaration of the deceased when he disclosed the facts to them when they were travelling from Jinnah Hospital to house, but no details of the second time dying declaration was narrated by these witnesses. However, P.W. Shahnaz Perveen disclosed that when her husband reached hospital from Musqat she narrated the facts to him. The complainant Syed Hassan Abbas confirmed the above position of his wife. He disclosed that his wife informed the facts narrated to her by the deceased in the hospital and his evidence on the said aspect is as under:-- "During the course when my son was admitted in hospital and I had reached from Musqat, my wife had informed me that when my son had regained he had informed her that his friend Shiraz used to chat him on internet by posing himself as Shabana and Shiraz, Asif, Shabana, Khurram and Athar had called him and then kidnapped him and they brought him in an empty house by lodging him in the dikki of his own car where they had severally tortured on him and because of severe torture his rib was also fractured. My wife had further informed me that my son Raghib Abbas had further informed her that after torture on him the accused Asif and Shiraz had given him an injection on his chest and after injecting the said injection, they had also talked on telephone by saying that doctor we have injected him but without result, after the talk on telephone, they gave him another injection on the chest due to which he went unconscious."
13. He also stated that when he was in Musqat his wife informed him about the information received by her (she confirmed the same) and she also informed him that his brother-in-law P.W.
Zeeshan Abbas informed her that a boy and a girl was seen by him in the car of the deceased. The complainant further stated that whatever information received by him he disclosed the same in the F.I.R.
14. The P.W.12 S.I.P. Muhammad Aslam disclosed that the complainant had stated that one boy and one girl were seen with the deceased at the time of abduction. From the dying declaration it is clear that two boys and one girl were sitting with the deceased at the time of abduction. The evidence pf Zeeshan Abbas, in the examination-in-chief, shows that he also saw two boys and one girl sitting in the car of the deceased. Mst. Shahnaz Perveen, in her deposition, also stated that P.W.
Zeeshan Abbas informed her that he saw two boys and a girl sitting with the deceased. Their statement is not supported and corroborated by the complainant Syed Hassan Abbas as he disclosed that his wife had informed him that Zeeshan Abbas saw a boy and a girl in the car of the deceased at the time of abduction. This was the initial story which the complainant received at Muscat. The Investigating Officer P.W.12 has fully supported the complainant by disclosing that the complainant had also stated that one boy and one girl were seen with the deceased at the time of abduction. He also stated that initial story of the prosecution was also that one boy and one girl were seen with the deceased at the relevant time. Thus, it appears that the basic story has been changed and the dying declaration to the above extent has become doubtful in view of statement of complainant.
15. According to the dying declaration, as narrated by the P.Ws., that Sheeraz, Athar and Shabana, who were his cyber friends on internet, had called him at Rado Centre whereas the complainant disclosed that his wife had informed him that Sheeraz, Asif, Shabana, Khurram and Athar had called him and then they kidnapped him. This statement is contradictory to the statement given by the P.Ws. Mst. Shahnaz Perveen and Zeeshan Abbas. The evidence of complainant further shows that Shahnaz Perveen informed him that the kidnappers had brought the deceased in an empty house by lodging him in the dikki of his car whereas no such facts have been mentioned by the above named two P.Ws. That the deceased had informed such facts to them.
16. The dying declaration further reveals that he was given two injections and thereafter he immediately went unconscious. The prosecution led evidence through P.W.7 and Investigating Officer that they secured two syringes from near the bungalow. The said syringes were sent to Chemical Analyzer but the report Exh.53 is negative. The visras and other pieces of organs secured by the Medical Officer at the time of post-mortem examination were sent to Chemical Analyzer for examination. According to the said report nothing was found from which it can be gathered that the deceased was giVen or administered any intoxicant or injection having the effect by which the deceased went unconscious. Thus, the report is in negative. It is pointed out that P.Ws. Found the deceased in unconscious condition lying in the car and then they took him to Jinnah Hospital but no record of Jinnah Hospital has been produced or examined any doctor confirming the position taken by the P.Ws. That the deceased was unconscious when he was brought to Jinnah Hospital.
This aspect of the case also does not prove the assertion made in the dying declaration that immediately after administering him an injection he went unconscious. Thus, the dying declaration, on its material particulars, has neither been supported nor corroborated by any other piece of evidence.
17. It is an admitted fact that the appellants were not known to any of the P.Ws. According to dying declaration the person by the name of Sheeraz posin (himself as a girl was chatting with him. As such, the deceased also did not know appellant Sheeraz. From the dying declaration it is also clear that the remaining appellants Athar, Khurram, Asif alias Abdul Sajjad and absconding accused Shabana were not known to the deceased either by names or faces prior to the incident. It appears that it was the first time when the deceased saw all the appellants. As such, whosoever the persons might be by the names mentioned by the deceased were only known to the deceased through their names and subsequently, by faces and nobody else knew them either, by names or by faces.
An identification of a person is either by name' or by face or by both. If a person is known by his name and by face by meeting with several persons then that person can be identified by name. If a person is known by face without knowing his name then that person can be identified by another person by seeing the face of said person. If a person is not known by name or by face then that person cannot be identified even if a name is told to the other person, or feature of a person is disclosed to the other person.
18. It is possible that several persons having similar names but having different castes can be known to persons. From those persons if a reference is made to a particular person then that persons can be identified through name by taking the surname or caste of that person. These are various modes where a known or unknown person by name or by face can be identified by various persons who had contact with them.
19. In the present case none of the P.Ws. Knew the appellants by name or by face. It was only deceased who, in the beginning, did not know those persons either by names or faces, except appellants Sheeraz and that too by name of Shabana. After meeting Sheeraz he came to know that Sheeraz was posing himself to be Shabana. Thereafter the other persons by the names Asif, Khurram and Athar met with him and he came to know about their names and saw their faces. As such, if the deceased had taken the names of those persons then he would be referring to the persons with whom he met and also knew them by their faces but those persons were neither seen by any of the witnesses nor they knew their names except the names taken by the deceased. Thus, the identification of the appellants by just taking the names by the deceased would not be enough unless it is proved that the appellants are same persons who were seen by the deceased at the time of incident.
20. Thee is no evidence available on record by which the deceased had given the features of all those persons who met with him at the time of incident to the P.Ws. Therefore, the deceased by taking the names which fortunately or unfortunately correspond with the names of the appellants would not be enough to establish the identity of the appellants to be the same persons who met with the deceased. Thus, the prosecution is required to lead some more evidence pinpointing that the appellants are the persons who were seen with the deceased at the time of incident.
21. In order to prove the identity of such persons the prosecution has relied upon the evidence of two witnesses namely Zeeshan Abbas and Jamil Ahmed.
22. First, we will deal with the evidence of Zeeshan Abbas recorded during the first trial. His evidence reveals that on 1-4-2005 at about 11-15 or 11-30 a.m. He was coming from his Bank and going to house of his sister P.W. Shahnaz Perveen for taking her car as he had to go to Regional Office. He took a bus and alighted from it at Rado Stop where he purchased a cigarette. While he was smoking he saw the car of his sister coming in which one girl and one boy were sitting on the rear seat of the car. His nephew deceased Raghib Abbas was driving the car whereas one person was sitting on the front seat beside him. After seeing the car from a distance of about 20 or 25 paces he called the deceased but he might had not heard his voice as he drove away his car. He then went to his sister's house, informed such facts to his sister and thereafter they received the call from the culprits. He further stated that he knew all the friends of the deceased but the girl and the boys sitting in the car were unknown to him. In the cross-examination he admitted that he had a car but on that date his car was taken away by his brother, therefore, he went to the house of his sister to take her car.
23. From the above statement it is clear that the witness was accustomed to a luxury life as he owned a car and was travelling in it. In such a situation the person having a car would seldom take a bus to go to the house of his sister. The condition of the buses is well-known to everybody. It is not appealing to the common sense that a person accustomed to travelling in a car would travel in a bus to go to the house of his sister. His natural conduct would have been either to hire a taxi or a less expensive rickshaw to go to the house of his sister. If the story would have that he had hired a taxi or a rickshaw then there was no occasion for him to reach at Rado Centre because the taxi and the rickshaw would have directly taken him to the house of his sister. It appears that the story of bus has been developed in order to make improvement to show his presence at the place of Rado Centre and to fit in the circumstances of the case.
24. Nevertheless, his evidence reveals that he saw the car of the deceased coming from a distance of 20 to 25 paces i,e, about 70 or 80 ft. He called his nephew but he did not respond and drove away the car. His evidence further reveals that he saw two boys and a girl sitting in the car. In such a situation the natural conduct of a person, after seeing the car, identifying it to be the car of his sister, his first reaction would be to see the driver as to who was driving the car and after identifying him he would have given general glance to the car to see as to how many persons were sitting in it.
If he saw male and female sitting, in the car then his next reaction would be to see the girl to identify her so as to understand whether the girl was their own relative or some unknown girl and thereafter he would look at the other two occupants of the car. The car, according to the P.W. Was in moving condition. The witness was standing at a distance of about 70 or 80 ft. Away from the car. The car must have taken few seconds in passing the witness and by doing so it must have changed its position and in such a situation it is not possible for the witness to have clearly seen the faces of the other occupants of the car except the person known to him, particularly in normal circumstances as the witness did now know that his nephew was being abducted. Hence he could have not remembered the faces of other persons and that too for a long period of four months.
25. This witness further deposed that on 30-7-2004, after about four months of the incident, identification test was held in which he picked out appellant Athar to be the person sitting on the front seat of the car when he saw the deceased at Rado Centre in the car. We have already discussed the manner in which he saw the occupants of the car and have observed that it was not possible for the witness to have clearly seen the faces of the other occupants of the car. In such a situation the identification test after four months of the incident appears to be highly doubtful. Even otherwise the identification test is a corroborative piece E of evidence when the substantive piece of evidence is disbelieved then the corroborative piece has lost its full effectiveness.
26. We have already observed that the evidence of P.W. Zeeshan Abbas is not confidence-inspiring.
He exaggerated the story and improved the same so as to fit in the circumstances of the case.
Therefore, the evidence of this witness cannot be safely relied upon for identifying the appellant Athar without any corroborative piece of evidence, which is lacking in this case.
27. In the second trial he identified appellant Sheeraz in the identification test held on 15-12-2004, after eight months of the incident, to be the person who was sitting on the rear seat of the car.
During the second trial he stated that he reached at the Rado Centre and was lightening cigarette, when he saw the car of his sister parked at a distance of about 10 or 15 paces. Where he saw, his nephew deceased sitting on the driving seat whereas one lady and a boy were sitting on the rear seat, other boy was sitting on the front seat, they were strangers to him and then the car of his nephew passed from him from a distance of about 10 or 12 ft. The remaining evidence of this witness is similar as given in the first trial. Therefore, the said facts are not repeated.
28. It is pointed out that at the time when the witness saw the deceased in the car he did not know that the deceased was being abducted, therefore, there was no occasion for this witness to have minutely seen the occupants of the car. One can understand that he might have minutely seen the face of the girl to identify her as to whether she was known to him or otherwise. The time was very short and in doing so he would have not been able to minutely seen the faces of the other occupants of the car. Particularly, the person sitting at the back because there was obstruction of the persons who were sitting on the front seats between the persons sitting on the rear seat. Thus, in such a situation the witness could have not seen the faces of the male occupants clearly which he could have remembered for a long period of eight months. Thus, his evidence in the second trial in respect of accused Sheeraz is also not confidence-inspiring hence it is discarded. Similar is the case with identification test, which was held after eight months. The reasons are same as mentioned above.
29. Second phase of evidence, through which the identity of the appellants is being proved by the prosecution is through P.W. Jamil Ahmed. His evidence reveals that on 1-4-2004 at 6-00 or 7-00 p.m. He finished his wooden work in Gulshan Bungalows. He was returning, when he reached near the Bungalow No,76 he found three or four persons trying to put an unconscious person in a car. He inquired from them as to what happened to that person whereupon they informed him that the unconscious person was not feeling well. Therefore, they were putting him in the car. In the meanwhile a lady came out from the bungalow and asked those persons to take the unconscious person to hospital immediately. Thereafter he went away. His evidence further reveals that on 29- 7-2004 after finishing his work in Gulshan Bungalow he was returning. At about 6-00 or 7-00 p.m.
He reached the same Bungalow No,76 and found some police officials and Mohallah people collected there. On inquiries, he came to know that 3/4 months back a boy was killed in that bungalow. He saw a Suzuki FX car available there and one person was weeping near the said car.
On inquiries he came to know that the said person was the father of the deceased boy. After hearing the above facts he informed to a person standing there, the facts which he saw on 1-4- 2005. The said person immediately went to police and thereafter police inquired from him and he narrated the said facts to the police. He also saw two persons in custody, they were handcuffed.
They took the police party inside the said bungalow. He identified the said two persons to be the persons, out of those four persons who were putting an unconscious, person in the car.
30 In the cross-examination he admitted that he did not state in his police statement that on the second occasion he informed the facts which he saw on first occasion to a person. Thus, it appears that he improved his statement by adding the above facts in the evidence which he did not disclose to the police at the time of recording his statement. However, from the above portion of the statement it appears that the said person had directly informed the police and then the police inquired from him about the incident. This statement is not supported by the Investigating Officer who disclosed that a police constable had informed him about P.W. Jamil Ahmed. Therefore, he called the P.W. Jamil Ahmed.
31. From the statement of this witness it is clear that the complainant also saw him at the said house but the complainant did not state that P.W. Jamil Ahmed was ever seen by him at the said house when he visited the house along with police on 28-7-2004. Thus, the presence of P.W. Jamil Ahmed has not been established through any independent and reliable source.
32. The evidence of P.W. Further reveals that he did not identify the car in which the unconscious person was being taken away nor he gave the number or colour of the said car nor the car was produced in Court or shown to the witness. By mentioning Suzuki FX car would not be enough to pinpoint the exact car in which a person was put in unconscious condition.
33. Furthermore, the most important fact in the case is the identity of the unconscious person.
There is no evidence on the record to show that this witness had ever seen the deceased during his lifetime or after his death. As such, the identity of the person who was seen by the witness in unconscious condition has not been proved, hence the said unconscious person has not been connected with the deceased.
34. From the above position it is clear that evidence of this witness, without proof of his presence at the scene of incident or the identity of the person who was seen by him in unconscious condition, cannot be safely relied upon. Therefore, his evidence is of no help to the prosecution.
35. The prosecution also examined one estate agent Noorul Islam on the point that the above mentioned House No,76 was in possession of, the appellant Sheeraz on 27-3-2004. His evidence reveals that through him the said house was let out to appellant Sheeraz at monthly rent of Rs,4,000 and security deposit of Rs,20,000 which he paid and possession was given to him on 27-3- 2004. Such rent agreement was executed which he produced as Exh.22. A perusal of this agreement reveals that it was executed on 1-4-2004. The owner received the deposit of Rs,20,000 on the said date. The possession was handed over to Sheeraz on the said date. However, the documentary evidence produced by the witness has falsified him. As such, the house in question was not in possession of the appellant Sheeraz on 27-3-2004 but he might have received the possession of the house after execution of rent agreement i,e, on 1-4-2004. If appellant Sheeraz took the house on rent on 1-4-2004 then he must have been busy in executing the sale agreement during the morning time. Therefore, he could have not been present during the morning hours at the place as alleged by the prosecution or during evening hours. Even otherwise it is against the natural conduct of a person that if a person had committed an offence and he wanted to conceal the evidence then he would do so in such a manner where nobody could see him in doing the same. If anybody had put an unconscious person with a guilty conscious in a car then the natural conduct of the said person would have been that the car should have been parked inside the house and then the unconscious person could have been put in it and thereafter it could have been drove away so that nobody could see him putting an unconscious person in a car. Even otherwise there was no justification for a lady accused to come out from the house for simply telling the persons to take the unconscious person to hospital immediately so as to be heard by P.W. Jamil.
36. All these facts clearly show that the P.W. Jamil is an untrustworthy and unreliable witness.
37. As regards his evidence in the second trial he gave the same details as mentioned above. He further stated that during the second occasion he was working in a Bungalow No,100. The appellants examined the owner of the said bungalow Umer Farooq as D.W.4 who stated that he did not engage P.W. Jamil, carpenter in his house to do wooden work in the month of April, 2004 or earlier to that. This witness was cross-examined by the learned Special Prosecutor but could not get anything from him to discredit his evidence. From his evidence it is clear that the stand taken by P.W. Jamil that on the second occasion he was working in Bungalow No,100 has been falsified.
Therefore, his evidence has become highly doubtful.
38. The appellant Asif alleged that he had enmity with the P.W. Jamil Ahmed as he worked in the house of his father where he committed theft; therefore, he has been involved in the case. Such defence was put to the witness but he denied. The appellant examined his father D.W.2 Abdul Sadiq Khan, who deposed that P.W. Jamil Ahmed carpenter was introduced to him by D.W.1, Arain, worked in his house. The P.W. Jamil Ahmed committed theft from the house, therefore, he was detained and then D.W.1 Arain was called who intervened in the matter and on return of property P.W. Jamil was allowed to go. In support of the evidence the appellant examined Sher Ahmed Arain D.W.1 who stated that he had estate agency and he had introduced P.W. Jamil to D.W.2 Abdul Sadiq for doing wooden work. D.W.2 called him in his house to settle the matter with P.W. Jamil Ahmed as he committed theft from the house, after reaching the house of D.W.2, he intervened into the matter.
P.W. Jamil Ahmed apologized his conduct and then on his request he was forgiven by D.W.2. Both the witnesses were cross-examined by Special Prosecutor. They successfully passed the test of cross-examination and nothing came on record to show that they were speaking lies or a set up witnesses. From the evidence it is clear that appellant Asif was already known to P.W. Jamil Ahmed but he denied the said fact by showing appellant Asif as an unknown person. The P.W. Jamil Ahmed had strong motive to falsely implicate the appellant Asif. As such, his evidence cannot be safely relied upon. Therefore, his evidence is also discarded in the second trial.
39. As regards the delay in lodging the F.I.R. It is pointed out that the incident took place on 1-4- 2004 at 11-30 a.m. The F.I.R. Was lodged on 5-7-2004 at 8-30 p.m. At Police Station Shah Faisal Colony. As such, there is delay of about more than 3 months in lodging the F.I.R. The case of the prosecution, set up at the initial stage, was that S.I.P. Umeed Ali Mirani of Police Station Gulistan-e- Johar was informed who, visited and recorded the dying declaration in the hospital but after few days the Police Station Gulistan-e-Johar was attacked resulting the destruction of entire record, therefore, the delay in lodging the F.I.R. The evidence led by the prosecution is against the above initial stand taken by the prosecution as the complainant, in his deposition with regard to delay, in lodging the F.I.R. Stated as under:-- "During the whole episode when my son Raghib Abbas remained admitted in hospital we constantly received threatening calls from the kidnappers not to lodge any case else, they would also kill my other son. Because of such threats and our constant remaining disturbed and attending the hospital and after death of my son our remaining busy in his funeral, I did not lodge the F.I.R. My wife and other relatives had also advised me during the course of treatment of my son Raghib Abbas not to contact with the police to save the life of my other son."
40. Thus, it is clear that the prosecution has changed the cause of delay and has improved the case so as to fit in the circumstances of the case and to justify inordinate delay in lodging the F.I.R.
41. However, we have examined the record in ordef to ascertain whether S.I.P. Umeed Ali Mirani of Police Station Gulistan-e-Johar ever reached the hospital for recording the dying declaration of the deceased. The evidence of P.W.2 Shahnaz Perveen reveals that in the night of 3rd and 4th April, 2004 one Inspector along with 3/4 police officials visited the hospital and recorded the statement of the deceased, but she further added that she did not inform the police about the incident. The evidence of P.W.3 Syed Zaheen Abbas Zaidi reveals that on the second day of the admission of the deceased in Liaquat National Hospital, at 1-30 a.m. Police also visited and recorded the statement of the deceased. He further disclosed that they did not lodge the F.I.R. Because of the fear of the accused and safety of the family of his sister. He did not disclose as to on whose information police arrived at the scene of incident.
42. Finding the defect in the prosecution story about the source of information supplied to the police the prosecution tried to fill the gap by moving an application under section 540, Cr.P.C. For examining Syed Arif Raza. The application was allowed and Syed Arif Raza was examined as court- witness No,3. His evidence reveals that on coming to know about the admission of deceased in the Liaquat National Hospital, Karachi he went there. He re-inquired from P.W.2 Shahnaz Perveen. She, informed him that they did not report the matter to the police. On receipt of such information he informed the S.H.O. Police Station Gulistan-e-Johar from his mobile phone. In response to his call the S.I.P. Along with three police officials visited the hospital and recorded the statement of the deceased. His evidence further reveals that while he was recording the statement of the deceased doctor arrived and interrupted the police from recording his statement, therefore, the S.I.P. Stopped recording the further statement of the deceased. He disclosed, in the cross-examination that the Police Officer did not obtain permission from the doctor nor the S.I.P. Contacted the doctor for recording the statement of the deceased. He further stated that he did not talk with the deceased as the doctors had disallowed him to do so.
43. From the above statement it is clear that the deceased was not in a position to give statement.
Therefore, the doctors had restrained the witness from talking to the deceased. It is not appealing to the common sense that the Police Officer of the rank of S.I.P. Would directly enter into ICU and would start recording the statement of deceased without permission of the doctor. The police knew that for recording such statement the permission of doctor was essential for the reason that the doctor should be present at the time of recording such statement. Thus, it appears that the evidence was led in order to make the evidence in consonance with the earlier stand taken by the prosecution in the F.I.R. About the cause of delay in lodging F.I.R. Without realizing the fact that the complainant had disowned the said stand in his statement recorded on oath before the Court. It is further pointed out that the incident did not take place within the jurisdiction of Police Station Gulistan-e-Johar, but it was committed within the jurisdiction of Police Station Shah Faisal Colony, therefore, the complainant lodged the F.I.R. At the said police station. It is also pointed out that the P.W. Arif, informed the police official, after coming to know from Shahnaz Perveen about non- registration of F.I.R. Thus, the source of information was Shahnaz Perveen but she did not support or corroborate the P.W. Arif. As such his evidence on the above point is hearsay evidence. If the foundation on which information supplied to the police is not proved then superstructure on such foundation automatically falls.
44. After considering the material available on the record we are of the considered view that the prosecution has miserably failed to prove sufficient cause for delay in lodging the F.I.R. As such, it has materially M affected the prosecution story and preparation of such story after due consultation cannot be ruled out.
45. The learned A.A.-G. Could not point out any other evidence connecting the appellants with the commission of this crime. The evidence produced by the prosecution connecting the appellants is insufficient, untrustworthy and unreliable. Therefore, through that evidence involvement of the appellants have not been proved.
46. In the light of what has been discussed above the case of the prosecution is highly doubtful against the appellants, therefore, they are entitled to the benefit of doubt which was accordingly given to them while passing the short order.
47. Above are the reasons of our short order dated 14-12-2005, by which we had allowed the appeals.