' IJAZ AHMAD CHAUDHRY, J.---This judgment will dispose of Criminal Appeal No. 717 of 2006 filed by Sher Azam appellant, Criminal Appeal No, 732 of 2006 filed by Mst. Zulfia appellant against their convictions and sentences and Writ Petition No. 8731 of 2006 filed by Masood Ahmad complainant against Sher Azam and Mst. Zulfia respondents for the enhancement of compensation and also for the return of recovered ransom amount to petitioner Masood Ahmad along with Capital Sentence Reference No.17-T of 2007 sent by the learned trial Court under section 374, Cr.P.C. For the confirmation of death sentence of Sher Azam as all these matters have arisen from the same judgment, dated 25-4-2006 passed by the learned Judge, Anti-Terrorism Court No.1, Lahore through which he had convicted Sher Azam appellant under section 7(e) of A.T.A. 1997 and sentenced him to death with forfeiture of his property. He was also convicted under section 7(e) of A.T.A. 1997 and under section 302(b), P.P.C. And sentenced to death with .a tine of Rs.20,000 and compensation amounting to Rs.1,00,000 payable to the legal heirs of the deceased. Mst. Zulfia appellant was also convicted under section 7(e) A.T.A., 1997 and under section 365-A/34, P.P.C. And sentenced to imprisonment for life along with forfeiture of property. She was also convicted under section 7(e) of A.T.A. 1997 and sentenced to imprisonment for life with a fine of Rs.25,000 and compensation amounting to Rs.50,000 to be paid to the legal heirs of the deceased.
2. The occurrence in the present case had taken place on 10-10-2005 at about 1-30 p.m. Within the area of Motia Street, Taj Bagh, 3 kilometers away from Police Station Ghaziabad District Lahore and the statement (Exh. PG) of Masood Ahmad real father of the deceased Anas Masood under section 154, Cr.P.C. Was recorded by Muhammad Aslam Khan S.-I. (P.W.6) on 11-10-2005 on the basis of which formal F.I.R. (Exh.PG/1) was drafted on the same day at 1-45 p.m.
3. The brief facts as narrated in the F.I.R. (Exh.PG/1) by Masood Ahmad (P.W.8) real father of the deceased Anas Masood are that he was residing in House No.10, Motia Street Tajbagh and his Homeopathic Factory was at Infrontary Road. According to the complainant his son Anas Masood aged about six years went out of house at 1-1/2 p.m. After returning from school on 10-10-2005, who was wearing red shirt, blue shorts and slippers in his feet, Anas Masood did not turn up and he disappeared. The complainant got announcement in the Mosques and publication was made in the newspapers in this regard. He also stated that due to not returning of Anas Masood till then, he was worried that Anas Masood might have been kidnapped.
4. After the registration of the case on 11-10-2005 Khalid Saleem S.I. (P. W.12) reached the place of occurrence and inspected the same and prepared rough site-plan Exh.PY. He searched the victim in the area. On 17-10-2005 Masood Ahmad complainant met him near his house and stated that he was receiving phone calls for ransom for release of his kidnapped child. The complainant had given him the number of telephone of above-said calls. He recorded the supplementary statement of Masood Ahmad Exh.P.T. On 22-10-2005 he filed an application Exh.PZ for details of record of telephone numbers provided to him by the complainant. On 19-10-2005 complainant Masood Ahmad informed him that the accused had told him on telephone that the slippers of his kidnapped child were present near the Bore Tree in Taj Bagh Scheme and to identify the slippers and pay the rensom amount for release of his kidnapped child. He along with Masood Ahmad complainant and Afzal P.W. Reached under the Bore Tree mentioned above. The slippers were taken into possession from there. The slippers are P.407/1-2, which were taken into possession vide recovery memo. Exh. PP, attested by Masood Ahmad and Muhammad Afzal P.W. He prepared the rough site-plan of place of recovery Exh.PP/1. On 29-10-2005 Masood Ahmad complainant had informed him on telephone that the accused had demanded ransom amount of Rs.5 lac and the same was placed by him near Harbunspura Road. He reached on that place and on the pointation of Masood Ahmad he prepared Fard Nishandahi Exh.PM, attested by Masood Ahmad and Muhammad Afzal, P. Ws. He also prepared rough site-plan of place of Nishandahi Exh.P.M./1. On 30- 10-2005 he obtained the record of mobile phones from the office of Mobilink Company. The record is P.2 which was taken into possession vide recovery memo. Exh.PB attested by Babar Javed Constable. Thereafter investigation was transferred to Muhammad Akram, S.-I. (P.W.13). On 31-10- 2005 investigation of the present case was entrusted to him On the said date he along with Abdul Qayyum A.S.-I., Babar Javed Constable, Abdul Salam Constable and Muhammad Aslam Constable went towards Altaf Colony and he arrested Sher Azam appellant and Mst. Zulfia appellant from their house. Mst. Zulfia appellant disclosed that the ransom amount of Rs.4 lac, obtained regarding kidnapping of Unas Masood was present with her in the Iron Box. Zulfia appellant led them towards inside her residential room and got recovered Rs.4 lac P.3 to P.402 which were 400 currency notes of Rupees one thousand each denomination. He took into possession the abovesaid currency notes vide recovery memo. Exh.PR attested by Abdul Salam Constable and Abdul Qayyum A.S.-I. He prepared rough site-plan of place of recovery of Exh.PR/1. Sher Azam appellant and Mst. Zulfia appellant disclosed that after kidnapping Anas Masood, they had murdered him and they had thrown his dead body in the Gurki/Gutter. At first, Sher Azam appellant led them towards the Gurki/Gutter and pointed the place where they had thrown the dead body of the deceased in the Gutter. Sher Azam appellant was brought back towards his house. Thereafter, Zulfia appellant lead us towards the Gurki and pointed the place where they had thrown the dead body of the deceased. Thereafter, Sher Azam appellant and Zulfia appellants were taken together to the Gutter and the cover of said Gutter was lifted and a Gunny bag was found lying in it. They awaited for rising of sun and arranged for the ladder. Abdul Qayum and Babar Javed Constables went inside the Gutter and they brought out the Gunny Bag from the Gutter, which was opened, and the dead body of a child in rotten condition was recovered from the said Gunny bag. The red colour shirt and blue shorts were clad by the dead body, he prepared Fard Nishandahi, recovery and recovery memo. Of possession of dead body is Exh.PC attested by Abdul Qayyum A.S.-I. Babar Javed and Abdul Qayyum Constables. He prepared rough site-plan of place of recovery of dead body Exh.PC/1. Masood Ahmad complainant was called from his house through Muhammad Aslam Constable towards place of recovery of dead body. Mahmood Ahmad and Muhammad Afzal also arrived with Masood Ahmad complainant. Masood Ahmad identified the above said dead body as that of his son Anas Masood. He prepared Fard Shanakhat of dead body Exh.PN, attested by Mahmood Ahmad and Muhammad Afzal P. Ws. And Masood Ahmad complainant. He prepared injury statement of Exh.PF and inquest report Exh.PK. He recorded application for docket Exh.PJ.
Thereafter dead body was taken towards Police Station Ghaziabad. Both the appellants were detained in the police lock-up. The said dead body was handed over to Babar Javed and Abdul Salam Constables for post-mortem examination. After the post-mortem examination Babar Javed and Abdul Salam Constables had produced before him last-worn clothes of deceased, i.e. Shirt P.404, shorts P.405 and a plastic bag P.406, which were taken into possession by him vide recovery memo. Exh.PE, attested by Abdul Salam and Babar Javed Constables. In the Police Station Masood Ahmad complainant had identified Rs.4 lac, recovered from Zulfia appellant given by him as ransom amount. He prepared Fard Shanakhat of currency notes P.3 to P.402 and the Fard Shanakhat is Exh.PD, attested by Abdul Qayyum A.S.-I. And Babar Javed Constable. He also recorded the statements of the witnesses under section 161, Cr.P.C. On 1-11-2005 Masood Ahmad complainant produced before him audio cassette P.409, wherein the conversation of the appellant with the complainant was recorded. He had taken into possession the cassette vide recovery memo. Exh.PU, attested by Jawad Ahmad and Faisal Abbasi P.Ws. Again on 1-11-2005 Khalil Ahmad S.-I. (P.W.12) while returning from Peshawar started investigation of this case. He got inspected the place of occurrence through Draftsma n who produced scaled site-plan Exh.PV/1 before him on 3- 11-2005.. He recorded the statements of Draftsman under section 161, Cr.P.C., on 10-11-2005 he along with Raquia Hanif Lady Constable was present with Muhammad Riaz Inspector in the Police Station where Mst. Zulfia appellant disclosed about the locket and she led them towards her house and got recovered a locket P.1 from an Iron Box in the residential room of her house which was taken into possession by the Investigating Officer vide recovery memo. Exh.PA, attested by him and Raquia Hanif Lady Constable. On 11-11-2005 Sher Azam appellant disclosed before Riaz Ali Inspector about the Churri weapon of offence). Sher Azam appellant led them towards his house and got recovered Chhuri P.408 from underneath a big Iron Box in the Varanda of his house. The Investigating Officer took into possession Churri vide recovery memo.. Exh.P.S. Attested by him and Abdul Ghafoor A.S.-I.
5. After the completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court. Then copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellant, the charge was framed which was denied by them and they claimed to be tried, The prosecution in order to prove its case produced as many as 14 witnesses. Masood Ahmad complainant appeared as P.W.8 while the medical evidence had been furnished by Dr. Fakhar Zaman (P.W.4) who had conducted the post-mortem examination of Anas Masood. The investigation had been conducted by Khalid Saleem S.-I. (P.W.12), Muhammad Akram S.-I. (P.W.13) and Riaz Ahmad Inspector (P.W.11). The remaining witnesses are of formal nature and need not to discuss here.
6. After the close of the prosecution evidence the statements of the appellants were recorded under section 342, Cr.P.C_ in which they denied the allegations and professed their innocence.
However, to a question that "why this case against you and why the P.Ws. Have deposed against you?" Sher Azam appellant made the following reply which is reproduced as 'L'
"Myself along with my wife have been falsely involved in this false case due to alleged involvement of my brother-in-law Jahangir who was done to death in alleged police encounter along with two others. Had I been involved in this occurrence the police would have given me the same treatment.
Myself being poor person was not in position to have excess to the police as my two minor sons Qasim aged six years and Sohail aged 3-1/2 years were also taken into custody by the police along with my wife from my house. I had nothing to do with this occurrence. Jahangir my brother-in-law was not on visiting terms with us and he was not residing with us. We being the only relatives of Jahangir in Lahore were falsely involved by the police in this case ,to avoid any complications after the false encounter in which Jahangir was murdered. We and other relatives including father of Jahangir did not receive the dead body of Jahangir as we all were not on visiting terms with him."
' Mst. Zulfia appellant adopted the above reply. However, the appellants did not opt to make statements under section 340(2), Cr.P.C. And also denied to produce any defence evidence.
7. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of convictions and sentences against the appellants which is being assailed through the instant appeals and the Capital Sentence Reference has been received for the confirmation of death sentence of Sher Azam appellant.
8. Learned counsel for the appellants contends that the prosecution had miserably failed to prove the case against the appellants; that there was no direct evidence against the appellants; that the circumstancial evidence had been concocted; that the recovery evidence is not believable as it had been witnessed by the police officials and no public witness was joined; that Jahangir was real brother of Mst. Zulfia appellant and brother-in-law of Sher Azam appellant, who was murdered in a fake police encounter and in order to pressurize the appellants for not pursuing the case against the police for the murder of Jahangir both of them (appellants) have been falsely implicated in the present case; that the prosecution evidence is not sufficient to connect the appellants with the commission of the crime and the appellants may be acquitted; that the alleged recovery of dead body was joint one and its pointation was not believable and reliable. .Relies upon Muhammad Aslam v. Muhammad Shafique and another (2004 SCM R 197) and Muhammad Bashir alias Pervaiz and another v. The State (2005 PCr.LJ 1135). Also contends that both the ingredients of section 201 are not fulfilled as laid down in Irshad Hussain and another v. The State 1989 ALD 220(2) that the dead body was not recovered from the place which was in the exclusive possession of the appellants; that the recovery of alleged amount does not connect the appellants with the commission of the crime and locket is easily available in the market; that the recovery of money had been effected on 31-10-2005 but the recovery of locket was shown to have been effected on 10-11-2005 and Chhuri on 11-11-2005 from the same house, the key of which was in possession of the police officials; that the recovery had not been effected on the pointation of the appellants, who are innocent, hence the appeal may be accepted and the appellants may be acquitted.
9. Learned Special Prosecutor for A.T.A. Assisted by the learned counsel for the complainant opposes these appeals on the ground that the witnesses had no enmity or grudge to falsely implicate the appellants in the present case and the dead body was recovered on the pointation of the appellants; that the said piece of evidence is sufficient to connect the appellant with the commission of the crime; that the said evidence is further corroborated by the recovery of Chhuri from Sher Azam appellant which was stained with blood and the report of the Chemical Examiner is positive; that huge amount of Rs.4 lac had been recovered on the pointation of Mst. Zulfia while Sher Azam her husband was a Chowkidar and the presence of such huge amount in the house of the appellants also supports the prosecution story that it was a ransom amount; that locket was also recovered on the pointation of Mst. Zulfia appellant which belonged to the deceased and the prosecution has succeeded in proving the case against the appellants beyond any shadow of doubt and the convictions and sentences may be maintained.
10. We have heard the learned counsel for the parties at length and also perused the record with their assistance. No doubt the prosecution has succeeded in proving that on 10-10-2005 Anas Masood aged about six years son of the complainant Masood Ahmad was found missing after having been abducted and there is also some evidence that the ransom was claimed by the assailants, who had abducted Anas Masood and an amount of Rs.5 lac was paid to them on-16- 10-2005. It is also established that the dead body of Anas Masood was recovered from a Guttar.
However, for maintaining the convictions the evidence is needed which pinpoints the role of the appellants and their participation in the incident.
11. To prove such evidence that the appellants were the abductors and were involved in the present case the prosecution has produced the evidence in the shape of the recovery of dead body on the pointation of the appellants, the recovery of Rs.4 lac from the house of the appellants on the pointation of Mst. Zulfia appellant, the recovery of locket belonging to the deceased and recovery of blood-stained Chhuri on the pointation of Sher Azam appellant.
12. The most important piece in the present case was the recovery of dead body allegedly effected on the pointation of the appellants. According to the prosecution on 31-10-2005 house of the appellant was raided and they were apprehended. Then on their pointation dead body was recovered from the Guttar vide recovery memo. Exh.PC. To prove the said recovery the prosecution produced Babar Javaid Constable (P.W.2), Abdul Qayyum A.S.-I. (P.W.7), Abdul Salam Constable (P.W.10) and Muhammad Akram S.-I. (P.W.13). The statements of these witnesses are not found worthy of reliance as according to the recovery memo. Exh.PC it was a joint recovery which had been effected on the pointation' of both the appellants and they led the police to the place of recovery which was a deserted Guttar where the dead-body was lying in a gunny bag and the said recovery memo. Was signed by the said witnesses. At the trial the witnesses made dishonest improvements while appearing as P.Ws. P.W.7. Abdul Qayyum A.S.-I. During the examination-in- chief stated that it was a joint recovery and by placing the ladder in the said Guttar, the dead body was got recovered by both the. Appellants but this fact does not find mention in his statement before the police and he was duly confronted with his said statement Exh.DB. P.W.2 Babar Javaid Constable also stated that it was a joint recovery while P.W.10 Abdul Salam Constable also claimed that both the appellants had jointly pointed out the place where the dead body was lying and it was recovered. There are contradictions in the statements of the three witnesses about the manner of effecting of recovery of dead body from the Guttar. On the other hand P.W.13 Muhammad Akram S.-I. Who is the Investigating Officer had given a different story that firstly the dead body was pointed out by Sher Azam appellant. Then he was brought back to home and then the place of recovery was pointed out by Mst. Zulfia appellant and thereafter both the them were taken jointly at the place of recovery and the recovery of dead body was effected from the said Guttar. The purpose of introduction of this new story by Muhammad Akram S.-I./Investigating Officer appears to cover up the lacuna in the prosecution evidence for effecting the recovery jointly from the appellants which is inadmissible in evidence. So the recovery of dead body on the pointation of the appellants cannot be relied upon due to the conduct of the witnesses and due to the contradictions in their statements. Even otherwise it has been admitted by P.W.2 Babar Javaid Constable that the recovery was effected from the street and number of persons had gathered at the time of recovery but none of the public witnesses were joined in the recovery proceedings. We find that it is not safe to rely upon the recovery of dead body on the pointation of the appellants and the prosecution has failed to prove the same through the evidence of unimpeachable character.
13. So far as recovery of an amount of Rs.4 lac is concerned we have noticed that the deceased was abducted on 10-10-2005, F.I.R. Was got registered on 11-10-2005 and the assailants contacted the complainant on 29-10-2005. It is strange that in spite of the registration of the case and the police investigation which was going on in the present case, the amount of Rs.5 lac was allegedly paid to the assailants but neither the number of currency notes were noted down not specific marks were made on the currency notes for identification. So it cannot be said that the amount of Rs.4 lac which was recovered allegedly on the pointation of the appellant Mst. Zulfia from her house was the same amount which was paid as ransom on 29-10-2005 by the complainant party to the assailants who had abducted the deceased for ransom. Moreover, there is no evidence that the said amount was collected by the appellants from the place where it was laid by the appellants after the telephonic conversation with the abductors for the payment of ransom or the appellants had collected the same as their share from the actual culprits. Even otherwise we are not inclined to accept the said recovery of amount as the said recovery was shown to have been effected only in the presence of the police officials whose statements cannot be relied upon due to their conduct and the public witnesses were not joined though the house of the appellant Mst. Zulfia was situated in the street.
14. The next piece of evidence is the recovery of blood-stained Chhuri on the pointation of. Sher Azam appellant on 11-11-2005 from the house and recovery of locket on 10-11-2005 on the pointation of Mst. Zulfia appellant. This piece of evidence cannot be relied upon as locket is easily' available in the market and could easily be planted to strengthen the prosecution case. It will be relevant to point out here that the complainant in his statement under section 154, Cr.P.C. Did not get mentioned that the deceased was wearing any locket at the time of abduction. Even otherwise the said recovery of locket was shown to have been effected in the presence of Khalid Saleem S.-I.
P.W.12 and Ruqia Hanif Constable P. W.1 but no public witness was joined in the recovery proceedings.
15. Similarly the recovery of blood-stained Chhuri from Sher Azam on 1 1 - 11-2005 is also not believable as earlier the house was raided on 31-10-2005 and Rs.4 lac was recovered on the pointation of Mst. Zulfia appellant, but the said articles were not recovered. According to Abdul Qayyum A.S.-I. P.W.7 both the appellants were the residents of the said house and the house was locked and the key of the house was handed over to a friend of appellant Sher Azam but he did not disclose the name of said friend to whom the key was handed over by him. It was also explained by P.W.7 that at the time of recovery of Chhuri the key was taken from said friend. So according to P.
W.7 house was not locked was not in the exclusive possession of the appellant at the time when the recovery of Chhuri and locket had been effected, but the house was in possession of the friend of the appellants to whom key was handed over by the Investigating Officer It is also strange that the recovery of Rs.4 lac had been effected on 31-10-2005 and on the said date the police had searched the house but neither the Chhuri nor locket could be recovered on the said date. It is also strange that the police had gone to the same house on 10-11-2005 for effecting the recovery of locket but the police could not get recovered Chhuri and if the Chhuri, which was shown to have been recovered on 11-11-2005. Both the recoveries had been effected in the presence of the police officials and no public witness was joined. We are of the view that these recoveries do not pinpoint about the participation of the appellant in the alleged crime and possibility of F false implication of the appellants in the present case at the behest of the police cannot be ruled out as it is an admitted fact that Jehangir was real brother of Mst. Zulfia appellant and brother-in-law of Sher Azam appellant. He was murdered in a police encounter along with two others namely Saeed and Abdul Karim and case F.I.R. No.1195 was registered at Police North Cantt. Lahore on the complaint of Muhammad Rafique Inspector on 31-10-2005. The story narrated in the said F.I.R. (Exh.DD) discloses that the police in order to arrest the accused of the present case F.I.R. No.528, dated 10-10-2005 had constituted a raiding party including the witnesses of the present case and Mst. Zulfia and her husband Sher Azam appellants were arrested. Then the police party went to the house of Said Rahim and all the three accused Saeed, Fazal Karim and Jahangir succeeded in running away, who were chased and they also started firing at the police whereupon in self-defence the firing was made on them and all the three were murdered in police encounter. There is no direct evidence against the appellants and the circumstantial evidence led by the prosecution is not found sufficient to link the appellants with the alleged commission of the crime. Mere heinousness of the offence is not a ground that the accused should always be convicted, but the prosecution is bound to produce the evidence of unimpeachable character and weakness of the defence plea cannot be used for the benefit of the prosecution.
16. As a result of the above discussion Criminal Appeal No. 717 of 2006 filed by Sher Azam appellant and Criminal Appeal No. 732 of 2006 filed by Mst. Zulfia appellant are accepted, their convictions and sentences are set aside and both the appellants are acquitted from the charges, who shall be released from jail forthwith, if not required in any other criminal case. .
17. Capital Sentence Reference No. 17-T of 2006 sent by the learned trial Court for confirmation of death sentence awarded to the appellant Sher Azam is not confirmed.
18. Writ Petition No. 8731 of 2006 filed by Masood Ahmad complainant in view of above discussion is meritless, which is dismissed accordingly.