1. ' MIAN MUHAMMAD NAJUMUZ-ZAMAN J.---Appellants Mst. Zeenat Bibi, Mudassar Hussain, Ghazanfar Shehzad alias Mani sons of Walayat and Sajjad Ahmad son of Muhammad Nawaz along with 4 other co-accused namely Nazir Ahmad, Ihsan Ullah, Rizwan Hussain and Tahir Mehmood were tried in case F.I.R. No, 261/2005 dated 26-5-2005 for the offences under section 365-A/ 171/420/468/471, P.P.0 registered at Police Station Chenab Nagar, District Jhang by the Judge, Anti-Terrorism Court, Faisalabad who vide judgment dated 3-3-2006 while acquitting their co-accused convicted the appellants under section 365-A, P.P.0 read with section 7(e) of Anti Terrorism Act, 1997 and sentenced each of them to death as well as forfeiture of their property.
2. Calling in question the impugned judgment appellants filed separate appeals i.e, Crl.
2. A.No,416/2006 by Mst. Zeenat alias Baby, Ghazanfar Shehzad and Mudassar Hussain and Crl.
3. Appeal No,452/2006 by Sajjad Ahmad whereas trial Court has made a reference (M.R.05/2006) seeking confirmation of death sentence awarded to the appellants. All these matters are being disposed of together by this judgment.
3. Suleman P.W.3 was abducted from the area of Mohallah Darul Nasir, Qasbah Chenab Nagar situated about two kilometers from Police Station Chenab Nagar, District Jhang on 26-5-2005 at 6- 15 p.m. The matter was reported to the police by grandfather of the abductee namely Nazir Ahmad son of Umar Din of the same day at 7.25 p.m through a written complaint Exh. PA on the basis of which formal F.I.R. Exh. PA/1 was entered at the police station.
4. ' Succinctly the facts of the prosecution case as penned in the F.I.R. Are that on 26-5-2005 at 6-15 p.m grandson of the complainant namely Suleman son of Mushtaq aged 18 years was playing cricket along with other friends in the southern ground of the Mohallah. Complainant along with Abdul Nasir P.W.6 and Abdul Hameed residents of Mohallah Darul Nasar Wasti was also witnessing the match when suddenly a light green colour Car bearing Registration No, 3952/IDN Honda with green number plate came inside the ground and stopped near Suleman (his grandson). From the front seat of the car a person wearing uniform of Sub-Inspector Police and from the rear seat one person in plain clothes armed with fire-arms alighted from the car. The person wearing police uniform asked the grandson of the complainant as to whether his name was Suleman. Who replied in affirmative. Thereupon the said person wearing uniform gave 2/3 slaps to the grandson of the complainant and forcibly put him on the rear seat of the car. ,Complainant along with witnesses namely Abdul Nasir and Abdul Hameed tried to intervene when the accused threatened the witnesses with dire consequences while brandishing their weapons and drove the car towards Muslim Colony. Thereafter the complainant went to his home where he on his Mobile No,0300/7701812 received telephonic call from Mobile No,0301/ 6710281 by some unknown person informing him that Suleman, his grandson was with them and that he would be released if Rupees five crore were paid as ransom money otherwise he (grandson of the complainant) would be done to. Death.
4. On the same day at 7-00 p.m. Complainant met Asif Ali Shah S.I.P.W.9 who was present at Chowk Dr. Munir Wala Mohallah Dar-ul-Nasar Gharbi on petrol duty and handed over to him a written complaint Exh. PA. The same was sent to the police station for the registration of formal F.I.R.
5. Thereafter the Investigating Officer visited the place of occurrence and prepared site plan Exh.PR as well as recorded the statements of the witnesses under section 161 Cr.P.C. On the next day i.e, 27-5- 2005 the police official under the instructions of higher police officers asked the complainant to maintain and keep ,the record of incoming calls made by the abductors. Statedly in compliance with the said instructions complainant deputed one Mehmood his relative for the said job who also installed SIM.No,0300/7701812 in the mobile set which had the facility to record all the calls statedly, at about 1-15 p.m a telephone call was received on the said mobile phone made from Mobile No,0301/6710281 and thereafter another call from the same mobile phone at 5-15 when the abductee Suleman had a talk with his mother. During the investigation conducted by this police officer it transpired that the mobile from which telephone call had been made was purchased from Franchise Office of Star Mobilink, Sargodha. On this information police official visited the said office where he met Tariq Saeed Manager who infortned that the said SIM of Mobile phone was sold by him to one of his dealer namely Dubai Adda No,47. College Road, Sargodha. The said police officer visited the said shop where he met Muhammad Yamin the owner of the store who told him that the said SIM was sold against Identity Card of one Mushtaq Ahmad son of Nazir Ahmad. Copy of SIM jacket P.2 and that of Identity Card was produced before the Investigating Officer who took the same into possession vide memo. Exh. P.B.
6. ' On 3-6-2005 Asif Ali Shah S.-I. P.W.9 (Investigating Officer) got checked the record of Car bearing Registration No,2592/IDN which was allegedly used by the accused persons during the occurrence and it transpired that said number was issued for the registration of car Suzuki Mehran and thus offences under sections 420/468/471 P.P.0 were also added. The Investigating Officer in this regard prepared report Exh.PS.
7. ' Father of the abductee namely, Mushtaq Ahmad P.W.5 was in Japan during the days of occurrence. He on receiving, the information with regard to the abduction of his son flew back and reached Pakistan on 27-5-2005 at 12-00 night. He met Waqar Ahmad and Asghar (P.Ws.) Ahmad who told him that two persons namely Tahir and Rizwan' (co-accused) resident of Channi Qureshian adjacent to the complainants house knew the whereabouts of, abductors of his son.
8. Both the said Rizwan and Tahir met Mushtaq Ahrnad P.W.5 in the house of Waqar Ahmad and demanded Rupees five lacs each for disclosing the name of abductors of his son. The said amount was paid at TDCP hotel on 31-5-2005 and they disclosed the names of abductor as Malik Javaid alias Azam, Rasheed, Sajjad Ahmad and Mudassar Hussain alias Mani. Statedly this disclosure was made in the presence of said Waqar Ahmad and Asghar. On the same night father of the abductee received a call from Mobile Phone No, 0301/6710812 by some unknown person asking for ransom money. Statedly, telephone calls were repeatedly made and finally it was settled that the Rupees one crorc and one lac would be paid as ransom money at Peshawar in, the forn of old currency notes. On 9-6-2005 he (Mushtaq Ahmad P.W.3) was on his way to the pointed place at Peshawar for the payment of ransom and when he 'crossed Noshera City a car having open doors started following him and after covering some distance the car stopped near Peshawar. In the said car three male and one female were present who received the ransom, money, which was placed in red colour bag. The said accused directed Mushtaq Ahmad, to go back and wait for telephone call. On 10-6-2005 at about 12-00 noon when Mushtaq Ahmad was in Faisalabad he received telephone call from the abductors directing him to reach, at motorway and thereafter at Dhobi Ghat. Upon this direction Mushtaq Ahmad along with his brother reached. At Dhobi Ghat and found his son standing at the footpath. On 11-6-2005 at 11-00 a.m. He appeared before the police and got recorded his statement about the recovery of his son as well as produced audio-cassette containing his conversaion with the accused persons which was taken into possession vide memo.
9. Exh.PN.
10. ' On the same day at 1-6-2005 the Investigating Officer also recorded statement of Suleman abductee under section 161, Cr.P.C. And on 12-6-2006 the abductee took the Investigating Officer to the place where he was kept by the accused after abduction i.e, House No, 1102/C, Millat Town, Faisalabad and Fard Shanakhat (Exh.PC) was prepared. The Investigating Officer also obtained warrants of arrest of the accused namely Rizwan Hussain, Tahir, Malik Javaid, Mudassar Hussain, Rasheed, Sajjad, Nazir Ahmad, Ghanzafar Shehzad, Mst. Zeenat and Ehsan Ullah on 6-5-2005. The said warrants remained unexecuted and finally the Investigating Officer after complying with legal formalities got issued proclamation order of the said accused person on 12-9-2005. During his investigation on 27-9-2005 Ghazanfar Shehzad alias Mani and Mst. Zeenat Bibi alias Madam were arrested from Chiniot.
11. ' This case was also investigated by Amjad Hussain Shah S.-I. P.W.10. The investigation was entrusted to him on 29-9-2005 and on 3-10-2005 he along with other police officials was present at Bus Stop Chenab Nagar where complainant Nazir Ahmad along with his son Musthaq Ahmad, father of the abductee, met him and disclosed that at the house of Rasheed Ahmad the remaining accused persons were present. On this information a raid was conducted at the house of Rasheed Ahmad who on seeing the police party managed to flee while throwing away the bag of red colour in the compound of the house.
12. ' From inside the house the raiding party apprehended Nazir Ahmad, Sajjad Ahmad and Ehsan Ahmad accused. From the red colour bag P.15 thrown by Rasheed the raiding party recovered Rs,4,40,000 P.3 to 4 along with photographs P.14/1-3 of Rasheed. These articles were taken into possession vide memo.. Exh.PD. The site plan Exh.PE was also prepared by the police official. The raid was also conducted at Channi Qureshian from where Tahir and. Rizwan were arrested. On 8- 10-2005 this police officer got conducted the identification parade of the accused at District Jail, Jhang through Mr. Saif Ullah Gill, Magistrate P.W.8. Statedly, during the investigation of this case, Rizwan accused led to the recovery of Rupees two lacs. P.11 from his house. The currency notes were taken into possession vide memo. Exh.PL. The site plan of place of recovery was prepared as Exh.
13. PFF on 10-10-2005. On the same day Tahir accused also led to the recovery of Rupees four lacs P.10 from his house. The said currency notes were taken into possession vide memo. Exh.PK and rough site plan Exh.PGG was prepared.
14. ' On 11-10-2005 during the investigation by Amjad Hussain Shah, S.-I. P.W.10, Mst. Zeenat Bibi got produced Rupees two lacs, P.5/1-2 through her mother-in-law namely Mst. Irshad Bibi. The said money was taken into possession vide memo. Exh.PE On 16-10-2005 Ghazanfar Shehzad accused got produced Rupees ten lacs consisting of ten bundles P.6/1-10 which were taken into possession vide memo. Exh.PF. On the same day Ehsan Ahmad accused got produced through his wife Kausar an amount of rupees on lac P.7 which was taken into possession vide memo.. Exh.PPG. Accused Nazir Ahmad got produced through his mother Mst. Allah Rakhi an amount of Rupees ten thousand P.12 which was taken into possession vide memo.. Exh.PM. During the investigation by the said police official, accused Tahir once again led the police party and the P.Ws. To his house and got recovered an amount of Rupees four Lacs P.9 which were taken into possession vide memo. Exh.PJ.
15. The said recovery proceedings were conducted in the presence of Nazir Ahmad P.W.4 and Mushtaq Ahmad P.W.5.
16. ' On 31-10-2005 Ghulam Murataza S.-I. P.W.11 got transferred accused Mudassar who was in confinement at District Jail, Gujranwala in another case and got his identification parade conducted through Magistrate on 11-11-2005 in the premises of District Jail Jhang. During his investigation Mudassar accused on 21-11-2005 got recovered through his mother Rs,15,00,000 P.S which were taken into possession vide memo. Exh.PH.
17. ' The Investigating Agency after complying with legal formalities, finally submitted ehallan before the trial Court where prosecution produced eleven witnesses to prove the charge against the appellants and their co-accused.
5. Trial Court also examined the appellants and their co-accused under section 342, Cr.P.C. The appellants while denying the charges pleaded their innocence. None of the appellants made any statement under section 340(2), Cr.P.C. Nor produced any evidence in defence.
6. Trial Court, after . Appraisal of evidence available on record, vide judgment dated 3-3-2006 convicted and sentenced the appellant as narrated earlier. Hence these appeals.
7. After hearing the learned counsel for the parties at great length and going through the record of the case we are of the A view that case against the appellants is full of doubts, thus the conviction and sentence! Passed by the trial is not sustainable: Firstly, according to the , F.I.R. This occurrence took place on 26-5-2005 at 6-15 p.m and the matter was reported to the police against some unknown persons through a written complaint presented by Nazir Ahmad son of Umar Din complainant P.W.4 before Asif Ali Shah S.I P.W.9. During the cross- examination complainant had admitted that complaint was written at his house by one Zaheer- ud-Din son of Noorud-Din but the said writer was never produced before the trial Court. Admittedly, complainant of this case is not conversant with the English language and could not read English words, thus it was not possible for him to read the registration number of the car in which allegedly his grandson was abducted. This witness had admitted that the said number was entered in the complaint on the dictation of other witnesses. Admittedly, this witness also knew nothing about his mobile number nor number of the mobile from which the call was received at his mobile phone.
18. Statedly, this mobile number might have been told to the scriber by the witness who were also present with him at that time. According to his (complainant) statement Abdul Nasir and Abdul Hameed P:Ws. Were present at that time but Abdul Nasir (PW.6) while deposing before the trial Court had not made any statement in this regard whereas Abdul Hameed was given up. Thus the possibility that the F.I.R. Was registered after deliberation could not be ruled out.
19. Secondly, according to the facts narrated in the' F.I.R., on the day of occurrence i..e. 26-5-2005 before the registration of this case, complainant on his Mobile Phone No, 0300/7701812 had received message/call, from another Mobile Phone No, 0301/6710281 about the demand of ransom money amounting to Rupees five crore. On the other hand the bare perusal of the statement of Asif Ali Shah S.I P.W.9 (Investigating Officer) reveals that. On the next day of occurrence i.e, 27-5-2005 SIM of Mobile Phone No, 0300/7701812 was installed in the mobile set under his instructions and thereafter on the said day at 1-15 p.m as well as at 5-15 p.m calls were received from Mobile No,0301/6710281. We have also observed that the investigating agency did not collect any data from the office of the Mobile Phone Company to trace out the identity of the caller and the city from where the call was made.
20. Thirdly, the case of the prosecution is that Suleman son of Mushtaq Ahmad (P.W.3) was abducted for ransom and according to the abductee (Suleman P.W.3), after his' abduction he was taken to a house in Faisalabad, which was situated in a thickly populated area, he was kept in a room attached with bath-room where he remained under confinement of the accused persons for almost 16 days. Statedly, during this period he was- taken out of the house many a time and the as narrated by the abductee is repellant to common sense, if Suleman son of Mushtaq Ahmad (P.W.3) was abducted for ransom then there was no occasion for the accused persons to keep him in a house situated in a thickly populated area as well to take him out of the house at many occasions to visit Faisalabad city. We have also observed that the statement of this abductee reveals that he had many occasion to raise alarm to attract the attention of other peoples when the accused took him out of the house but he never opted to adopt the said modus operandi and gave flimsy explanation that since he was under threats he did not raise any alarm.
21. Fourthly, according to the prosecution case Mushtaq Ahmad P.W.5 father of the abductee was informed by Waqar and Asghar P.Ws. That co-accused of the appellants namely Tahir and Rizwan- could tell the whereabouts of the abductors and both of the said accused met the witness in the house of Waqar P.W where both of them demanded Rupees five lacs each for providing the information about the real culprits and statedly on receiving the amount they disclosed the name of appellants and other co-accused as mentioned above who had participated in the occurrence.
22. We have observed that said Waqar Ahmad while appearing before the Court as P.W.7 did not support the prosecution case and he was declared hostile. The second witness in this row namely Asghar was given up by the prosecution having been won over, thus the prosecution has failed to prove the link through which complainant party had come to know about the identity of the accused persons who allegedly had abducted Suleman P.W.3.
23. Fifthly, the recovery of money (ransom money) case property was never effected at the instance of G any of the appellants and according 'to the prosecution's own case money (case property) was produced by the relatives of the appellants/accused, during the investigation of this case. We have observed that according to the prosecution case rupees one crone and one lac were paid -by the complainant party as ransom money to the appellants and their co-accused but it has not been explained by the prosecution as to from where huge amount was collected by the father of abducted for making the payment i.e, from the Bank or friends/relatives etc. Nor it is clear from the evidence whether the bundles of currency notes which were handed over to police/Investigating Agency by the relatives of the accused had the stamp of any bank from where the money was withdrawn. On the other hand statement of Mushtaq Ahmad P.W.4 reveals that the ransom money paid by him also contained a. Bundle of currency notes bearing Serial No, DR. 8169401-500 but the said bundles of notes as it is apparent from Exh.PD, were recovered from the bag which was thrown away_ Rashid Ahmad accused when he fled away from his house at the time of raid. Even otherwise the production of a huge money before the police by the relatives of the accused is not sufficient to say that the appellant had committed the offence. It is difficult to accept the contention of the learned counsel I for the complainant that money taken into custody by the police during the investigation of this case at the instance of appellants was the ransom money paid by the father of abductee to the accused.
24. Sixthly, the evidence of identification of the appellants is also full of doubts. Not only that the learned Magistrate while holding the identification parade had not complied with all the legal formalities as required under the law as well as find mentioned under the High Court Rule's and Orders, we have also observed that the appellants were put to the test of identification parade after almost four and a half months of the occurrence and after more than 10/12 days of their arrest. The complainant of this case namely Nazir Ahmad P.W.4 .Said nothing about his participation in the identification parade proceedings whereas the evidence of the Magistrate Saif Ullah Gill (P.W.8) reveals that complainant had also participated in the proceedings. We have also observed that the Magistrate did not make any effort to establish the identity of the P.Ws. Who had participated in the identification parade by obtaining their signatures, thumb-impressions or mentioning the number of their identity card.
25. ' Mudassar Hussain appellant had a scar on his nose, which was very prominent in nature, as stated by Saif Ullah Gill, Magistrate P.W.8. The said marks was sufficient to identify the accused but before putting Mudassar Hussain appellant to the test of identification parade the Magistrate made no arrangement for concealing the said mark or adding the dummies having the same kind of marks on their person. Admittedly, the accused during the identification parade had also raised objection that they had already been shown to the witnesses.
26. ' The stand taken by Abdul Nasir (P,W.6) was that at the time of abduction Mudassar Hussain appellant was driving the car whereas the statement of Suleman (P.W.3) abductee is absolutely silent in this regard but had stated that he had seen Mudassar Hussain at the place he was kept under confinement.
27. ' Musthaq Ahmad P.W.5 while deposing before the trial Court stated that at the relevant time three male and one female were present in the car when he handed over the ransom money but he neither gave the description of those persons or their role nor identified my of the appellants except Mudassar Hussain during the identification parade. Similarly, before the trial Court he only stated that the said three male accused were present in the Court but never picked them out from the accused who were being tried, similarly he gave no explanation about the role of Mudassar Hussain when he delivered the money to the accused.
28. ' Suleman (abductee) P.W.3 claimed to have seen the accused person at the place he remained confined for sixteen days and had ample opportunity to have good glimpses of each of the accused but strangely during the identification parade he only picked out three accused. No doubt, before the trial Court witnesses had identified some of the accused but this identification after many months of the occurrence is also not reliable and cannot satisfy the -requirement of law for proving the identification of the culprits. (Asghar Ali alias Saba and others v. The State and others (1992 SCM R 2088).
29. Seventhly, the co-accused of the appellant namely Ahsan and Nazir have already been acquitted by the L trial Court while disbelieving the prosecution case. Though allegedly they had also participated in the occurrence and during, the investigation money (case property) was also produced before the Investigating Agency by their relatives like other accused persons but they have been acquitted because none of them was identified by the witnesses during the identification proceedings. In this view of the matter as observed earlier that since the evidence of M identification parade qua the appellants is full of doubts and not reliable, then the case of appellants is not distinguishable.
30. ' The said lacunas are sufficient to doubt the, credibility of the prosecution case entitling the appellants to earn the benefit of the same and their acquittal from the charges. Accordingly, both these appeals (Crl.A. 416/2006 and Crl.A.452/2006) are accepted, conviction and sentence of the appellants are set aside and they stand N acquitted from the charges.. The appellants shall be released forthwith if not required in any other case.
31. ' Death sentence is not confirmed and the murder reference is answered in the negative.