1. ' MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.--- Appellant was tried by Judge, Anti-Terrorism tourt-I, Gujranwala for the murder of one Husnain boy of aged 6/7 years, in case F.I.R. No,255 of 2004, dated 13-4-2004 for the offence under sections 365-A/302/201, P.P.C. And sections 7(a)/7(e) of the Anti-Terrorism Act, 1997 registered at Police Station Hajipura, District Sialkot. The trial Court vide judgment, dated 2-10-2004 convicted the appellant under section 302(b), P.P.C. Read with section 7(a) of the. Anti-Terrorism Act and sentenced him to death. The appellant was also directed to pay Rs,1,00,000 (Rupees one lac) as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Appellant was also convicted under section 365-A, P.P.C. Read with section 7(e), of Anti-Terrorism Act, 1997 and sentenced to death.
2. Feeling aggrieved by the impugned judgment, appellant has filed the appeal through jail i,e, Criminal Appeal No,331/J of 2004, whereas the trial Court has also made a reference (Murder Reference No,19-T of ,2004) seeking confirmation of death sentence awarded to the appellant. Both these matters arc being disposed of together by this single judgment.
3. Husnain aged 6/7 years was abducted on 12-4-2004 at about 9-30 a.m. The matter was reported to the police on the next day i,e, 13-4-2004 at 8-30 p.m. By Muhammad Akram (father of the abductee). This occurrence took place in Mohallah Shah Abdaal, Behari Colony, Sialkot falling within the jurisdiction of Police Station Hajipura, District Sialkot.
2. ' The facts of the case as narrated in the F.I.R. Are that son of the complainant went out of the house for playing on 12-4-2004 at 9-30 a.m. He did not return, a search was made but in vain and finally the above said case was got registered against some unknown persons about the abduction of Husnain.
3. ' On the same day i,e, on 13-4-2004 a supplementary statement of the complainant was brought on the record stating therein that he had received a telephone message about the payment of Rs,2,00,000 as ransom money for the release of his son Husnain. The complainant recognized the voice of the caller as that of the appellant and the caller on coming to know about the disclosure of his identity switched off the phone.
4. ' Statedly on 16-4-2004 at about 10-00 a.m. Appellant went to the house of Muhammad Jahangir P.
5. W.8 when Mazhar-ul-Haq P.W. (given up) was also present. The appellant asked him for help as he had committed a sin. Allegedly the appellant while confessing his guilt narrated the story of murder which reads as under:-- "That on 12-4-2004 at about 10/10-30 a.m. I (appellant) took Husnain Akram aged 6/7 years on the bicycle at "Garah Nala Aik" under the pretext of catching fish and told the child that I had brought him there in order to extract money from his father. The child started irritating me whereupon I (appellant) while tying down the hands and feet strangulated the child to death and threw the dead body in the water which started floating, whereupon I (appellant) buried the dead body under four/five bricks and came home. On the following day i,e, on 13-4-2004, I (appellant) contacted Muhammad Akram (complainant) on telephone and asked for the payment of Rs,2,00,000 for the life of his son. Upon query by the complainant whether he could talk to his son, (accused/appellant) informed the complainant that he cannot contact his son on telephone and that I could provide him the clothes of his child through a person namely Imran alias Billi resident of his (complainant's) Mohallah and that he (complainant) should pay the money to him."
6. ' On the basis of the confessional statement of the appellant Raza Zahid Hussain, Inspector/S.H.O.
7. P.W.9 arrested the appellant from the house of Jahangir (P.W.8) on 13-4-2004 who during the investigation led to the recovery of dead body of Husnain Akram. The dead body was identified by Jahangir and Muhammad Akram (P.W.7). On examining the dead body the Investigating Officer prepared injury statement Exh.P.K., inquest report Exh.P.Q. And sent the dead body for postmortem examination. Allegedly appellant also led to the recovery of sleeper P.4 of the deceased and the same was taken into possession vide recovery memo. Exh.P.G. Similarly on 19-4-2004 appellant again led to the recovery of two strings P.3/1-2 from the place of occurrence which were taken into possession vide recovery memo. Exh.P.D. The Investigating Officer also got prepared site plan Exh.P.C. Through Muhammad Shehbaz Patwari P.W.4 and finally after complying with legal formalities submitted challan before the trial Court where the prosecution produced nine witnesses to prove the charge against the appellant.
8. ' Muhammad Nawaz constable P.W.1 kept the parcels (case property) in Malkhana for safe custody and later on delivered the same to the constables for onwards transmission to the relevant offices.
9. Khalid Javed constable P.W.2 took the parcels (case property) to the offices of Chemical Examiner and of Pathologist and delivered the same intact. Dr. Zahid Ghani P.W.3 conducted the post- mortem examination on the dead body of the Husnain Akram son of Muhammad Akram.
10. According to him the parts of the body i,e, skull, scalp, skin, subcutaneous tissues and muscles were completely decomposed. The doctor also collected pieces of different parts of the body for getting the opinion of Chemical Examiner about the availablility of poison if any and in the opinion of the doctor the time that lapsed between death and post-mortem was from two days to ten days. The doctor on perusal of the report from the office of Chemical Examiner, dated 27-5-2004 stated that tranquilizer was detected from the above said articles, however, quantitative estimation is not possible. Muhammad Shahbaz Patwari P.W.4 prepared the scaled site plan Exh.P.B. And Exh.P.B./1. Asghar Ali, constable P.W.5 took the dead body to the mortuary for post- mortem examination and later on produced the last-worn clothes of the deceased to the Investigating Officer which were taken into possession vide recovery memo. Exh.P.C. Zulfiqar Ali constable P.W.6 was present when the appellant led to the recovery of two strings P.3/1 which were taken into custody vide recovery memo. Exh.P.D. Muhammad Akram P.W.7 being the complainant of this case while supporting the prosecution case narrated the efforts made by him for the recovery of his son, demand of ransom money by the appellant, recovery and identification of the dead body of his son. Muhammad Jahangir P.W.8 as narrated earlier deposed about the extra- judicial confession of the appellant. He also narrated about the recovery of dead body of Husnain Akram deceased and his sleepers. Rana Zahid Hussain, Inspector P.W.9 conducted the formal investigation as narrated earlier.
11. ' The public prosecutor tendered in evidence report of the Chemical Examiner Exh.P.M. And of ,Bacteriologist Exh.P.N. While closing the prosecution case.
12. ' Learned trial Court also examined the appellant under section 342, Cr.P.C. Who while, answering to the question "why this case against you and why the P.Ws. Have deposed against you?" Replied as under:-- "I am innocent. The complainant and all the P.Ws. Of this case are from the same brotherhood and lived in the same Mohallah. They were not on good terms with me and with my family members because my father and all my family members fully supports Abdullah Khalid son of Khalid General who contested election against the brother of Jahangir P.W. Namely Rubani (given up P.W.) and Mazhar-ul-Haq (given up P.W.) in the local bodies election, and strongly opposed the aforesaid persons. They hatched conspiracy after the blind murder of Husnain Akram and false and fabricated evidence produced against me and indulged me in this false case. The P.Ws. Of this case under the mysterious extra-judicial confession concocted the story against me. Due to the election grudge, I have been falsely involved in this case."
13. ' Appellant did not make any statement under section 340(2), Cr.P.C. However, produced one defence witness Muhammad Shafi D.W.1. This witness brought the record of the election proceeding held in Shahab Pura Halqa No,49 Sialkot, according to which Khalid Abdullah has been declared as a returned candidate whereas names of Mazhar-ul-Haq and Rabbani fall at Serial Nos.11 and 22 respectively in the list of candidates. Appellant also tendered in evidence the photocopy of Nikahnama Mark "A" and Mortgage Deed Mark "B".
14. ' Learned trial Court after appraisal of evidence vide judgment, dated 2-10-2004 convicted and sentenced the appellant as narrated earlier.
15. ' It was argued. On behalf of the appellant that the accused/ appellant was falsely involved in this case because of his political rivalry with the complainant party, the entire evidence relied upon by the prosecution was tailored during the investigation of this case, the medical evidence contradicts the other pieces of evidence collected by the agency in order to' connect the appellant with the commission of this offence, the appellant never got recovered the dead body, sleepers of the deceased nor ever called to the complainant of this case for the payment of ransom money and that in the circumstances learned trial Court had erroneously convicted and sentenced the appellant. Conversely Special Public Prosecutor while supporting the impugned judgment vehemently opposed the arguments raised by counsel for the appellant.
16. ' After hearing learned counsel for the parties and perusing the record, we have observed that the entire case of the prosecution rests upon the circumstantial evidence in the form of identification of the appellant through voice on the telephone, the extra-judicial confession of the appellant made before Muhammad Jahangir P.W.8, the recovery of the dead body of Husnain Akram, sleepers of the deceased P.4 and two ropes P.3/1-2 (crime weapon) at the instance of the appellant, motive for this occurrence and the medico-legal reports.
17. ' When the F.I.R. Was, lodged nobody knew about the identity of the actual culprit and the appellant was brought into the picture on the basis of a supplementary statement of the complainant stating therein that the complainant had identified the voice of the appellant when he demanded Rs,2,00,000 as ransom money for the life of his son (Husnain Akram). Admittedly during the days of occurrence complainant was running a shop in his house where he had also installed a telephone which was used by him as a PCO (Public Call Office). Admittedly the complainant was also maintaining the record about the ingoing and outgoing calls. The complainant also had the facility of CLI at his telephone connection. It is strange that the complainant never noticed that number of the caller who had demanded the ransom money. The F.I.R. And the data available on the record is silent in this regard. Similarly during the investigation no attempt was made by the Investigating Officer to collect any data about the telephone from which allegedly the appellant had called the complainant for the payment of ransom money. Even otherwise it is not easy to identify a person through his voice on the telephone and this type of evidence cannot be accepted except with the pinch of salt..
18. ' The second limb of the prosecution case is the extra-judicial confession of the appellant. Statedly on 16-4-2004 at 10 a.m. Appellant visited Muhammad Jahangir P.W.8 and confessed his guilt when Mazhar-ul-Haq P.W. (given up) was also present. We are unable to understand as to why the appellant would confess his guilt before the said witnesses when admittedly there is no evidence on the record to show that they were. The influential people of the area who could pressurize the complainant for compromise with the appellant. We have also observed that according to Muhammad Jahangir P.W.8, appellant while confessing his guilt explained that before strangulating Husnain Akram deceased he tied down the hands and feet of the deceased but the Investigating Officer who prepared report Exh.P.K. And Dr. Zahid Ghani Dar P.W.3 who had conducted the post-mortem examination never observed that hands and feet of the deceased in tied down position.
19. ' According to post-mortem report coupled with report from the office of Chemical Examiner Exh.P.M. Tranquilizer was detected from the visceras but the statement of Muhammad Jahangir P.W.8 is absolutely silent with record to the confession of the appellant qua the administration of tranquilizer to the deceased and in this view of the matter we find much force in the arguments of learned counsel for the appellant that the medical evidence contradicts the other evidence collected by the prosecution to connect the appellant with the commission of this offence. Even otherwise it is well-settled that this type of evidence i,e, extra-judicial confession, is a weak type of evidence which is normally concocted when there is no direct evidence to connect the accused with the commission of crime.
20. ' The prosecution has also relied upon the evidence of recovery i,e, recovery of dead body, sleepers P.4 of the deceased, two strings P.3/1-2 (crime weapon) allegedly effected at the instance of the appellant. We have observed that none of the prosecution witness except the Investigating Officer has stated that the dead body or the sleepers of the deceased were recovered at the pointation/instance of the appellant. The recovery memo. Of sleepers Exh.P.G. Is only to the effect that during the spot inspection recovery was effected. This document is absolutely silent about the presence of the appellant at the relevant time, similarly memo. Of identification of dead body, clothes, sleepers of the deceased i,e, Exh.P.F. Prepared at the spot is also silent about the presence of the appellant We have also observed that the Investigating Officer never prepared any memo.
21. Of pointation of the place of recovery of the dead body or the sleepers of the deceased at the instance of the appellant. With regard to the recovery of strings, the prosecution has relied upon the statement of the police official Zulfiqar Ali (P.W.6), whereas the independent witnesses were very much available at the time of recovery proceedings and there is no explanation on the record as to why they were not asked to join the investigation. Even otherwise the recovery of the said strings is of no use *because we see no evidence on the record to show that the said strings were used by the appellant to commit the murder of Husnain Akram. In the said view of the matter this piece of evidence (recovery evidence) relied upon by the prosecution being full of doubts is also not worth reliance.
22. ' The motive for this occurrence as spelt out from the data available on he record was the abduction of child for the purpose of ransom but in the absence of any cogent evident as discussed above. We hold that prosecution has also failed to prove this limb of its case as well, ' The crux of the above discussion is that the prosecution has failed to connect all the links of chain connecting the appellant with the commission of this heinous offence. Case of the prosecution is full of doubts and appellant is entitled to get the benefit of the same. Accordingly while allowing this appeal, conviction and sentence of the appellant is set aside, he stands acquitted from the charge, he shall be released forthwith if not required to be detained in any criminal case.
23. 'Resultantly death sentence awarded to the appellant is not confirmed and murder reference i,e, Murder Reference No,19-T of 2004 is answered in the negative.