1. Mian Muhammad Najum-uz-Zaman, J.--Appellants were tired by Special Judge Anti-Terrorism Court, Sargodha Sargodha, for the offence of abducting Muhammad Yasir aged 12 years for ransom and his murder in case FIR No, 117/2006 for the offence under Section 365-A/302/147/149 PPC read with Section 7 of Anti-Terrorism Act, 1997 registered at. Police Station Gunjial, District Khushab, Trial Court vide judgment dated. 8.9.2006 convicted and sentenced the appellants (accused) which reads as under: "(a) All are convicted under Sections 365-A/34 PPC and sentenced to death penalty each. Entire properties if belonging to accused are also forfeited.
(b) All accused are convicted under Sections 302(b)/34 PPC for committing Qatl-i-Amd of Muhammad Yasir and sentenced to death penalty each. They will aslo pay an amount of Rs, One Lac each as compensation under Section 544-A Cr.P:C., to legal heirs of deceased, in default of payment of which they will further undergo six months SI each.
(c) All accused are convicted under Sections 201/34 PPC for causing disappearance of evidence of offence and sentenced to undergo seven years RI each with a fine of Rupees Twenty Thousand each. In default of payment of fine they will further undergo one year SI each.
(d) All accused are also convicted under Section 7(a) of the Terrorism Act, 1997 read with Section 34 PPC for committing act of terrorism and sentenced to death penalty each. They will also pay rupees fifty thousand each as fine, in default of payment of which they will further undergo three years SI each."
2. Feeling aggrieved by the impugned judgment, appellants have filed appeal through jail i,e, Crl.
2. A.No, 286-J/2006. Trial Court also made a reference i,e, C.S.R. No, 44-T/2006 for the confirmation of death sentence awarded to the appellants. Both these matters are being disposed of together by this single judgment.
3. The facts of 'the case as disclosed in FIR (Ex. PM/1) which was got registered on 16.6.2006 by Muhammad Sagheer complainant PW. 11 read as under:- "I reside with my family members in Bungalow No, 1, Block-B, Qaidabad. I have my shop with the name of Madina Autos situated on the backside of Gunjial Petrol Pump. I have four sons and my youngest son is Muhammad Yasir aged 12 years who is a student of 6th class in Pak Oxford Academy Qaidabad; On 13.6.2006 at about 3.30 p.m. Muhammad Yasir was preont in his house and he told his mother that he was going to his class fellow Hamza. Muhammad Yasir did not return till evening. I in association of Ch. Muhammad Habib son of Bashir Ahmad caste Arain Abdul Rahim son of Abdul Rehman Caste Arain both residents of Qaidabad made search of Muhammad Yasir but he was not traceable. In this regard I got entered report of missing at Police Station Gunjial. On 14.6.2006 I got arranged two .Army Dogs to trace out and both dogs one by one entering in Bungalow of Hajf Muhammad Charragh Utra situated in Qaidabad sat there. Now-a-days in that Bungalow Muhammad Riaz so of Bashir Ahmad caste Chavali resident of Nawan Kot police station Midh Ranjah District Sargodha present Vocational College Qaidabad and Shah Nawaz son of Haji; Ahmad Nawaz caste UTra resident of Utra reside there. I have every suspicion that Muhammad Riaz arra Shah Nawaz alongwith unknown accused by abducting Muhammad Yasir had kept him at some secret place in illegal confinement."
3. Record of this case reveals that on the next day of registration of the case i,e, on 17.6.2006, the complainant was informed by Muhammad Sadiq son. of Muhammad Hanif PW. 12 (resident of the locality) that he and Muhammad Aslam (given up) had seen Muhammad Yasir (deceased) on 13.6.2006 at about 3.30 p.m. sitting in a car bearing Registration No, FDR 242 alongwith Muhammad Asif, Kashif, Mukthar and Muhammad Tahir accused near Girls College Chowk and upon query the accused told him that they were gong to Toba Tek Singh on pleasure trip. Thereafter the complainant received certain telephonic messages from some unknown person about payment of Rs, 30,00000/-as ransom for the release of his son and ultimately deal was struck for Rs, 7,00000/-.
4. Thereupon on 20.6.2006 (Muhammad Sagheer PW. 11) complainant asked his nephew Muhammad Shahid son of Muhammad Shabbir (PW. 13) to hand over the money to the accused, he also provided him a mobile phone bearing No, 0300-6083617 for getting instructions from the accused qua time and place for making the payment. Allegedly the ransom amount was received by Mazhar Iqbal and Pervaiz appellants on 21.6.2006 at about 3 p.m. at Flood Block near SIDHAI HEAD WORKS. The accused told the witness that Yasir would be available at Iqbal Chowk where he (witness) waited for many hours .-but Yasir never turned up and on the same night i,e, on 21.6.2006 he came back to Quaidabad and told the facts to Muhammad Sagheer PW. 11.
5. In the light of said evidence, Ghulam Hussain Inspector PW. 14 arrested Muhammad Asif, Muhammad Kashif, Muhammad Tahir and, Muhammad Mukthar on 25.6.2006. On the same day Muhammad Asif appellant got recovered dead body of Muhammad Yasir from a canal in the presence of witnesses. Feet of dead body were intact whereas animals had eaten the remaining parts of the body. The trouser was also stuck in his feet. Statedly the dead body was identified by Muhammad Sagheer, Muhammad Habib and Muhammad Aslam from the birthmark on the right foot of the body and from the trouser of the deceased. The investigating officer in this regard prepared identification memo Ex. PQ as well 4 rough site-plan of the place of recovery of dead body i,e, Ex. PW. The investigating officer also prepared injury statement Ex PX, inquest report Ex. PY and sent the dead body to the mortuary for post-mortem examination. Statedly thereafter remaining accused persons also one by one pointed out the place of recovery of dead body and memos in this regard are Ex. PR, Ex PS and Ex. PT. Statedly during the investigation on 28.6.2006 Muhammad Asif led to the recovery of rupees on lac P. 6/1-100, two telephone cards P. 7/1-2, one mobile phone without SIM. These articles were taken into custody vide recovery memos Ex. PI. On the same day, Muhammad Kashif, Muhammad Tahir and Muhammad Mukthar also led to the recovery of Rs, 1,00000/each P. 8-1/100, P. 9/1-100, P. 10/1-100 which were taken into custody vide recovery memos Ex. PJ- Ex. PK, Ex. PL respectively.
6. Muhammad Pervaiz and Muhammad Mazhar were arrested on 30.6.2006. Similarly on 8.7.2006, Muhammad Pervaiz led to the recovery of Rs, 1,0000/- P. 3/1-100, one mobile phone P. 4 which were taken into custody vide recovery memo Ex. PG. He also got recovered pistol 30-bore p. 13 alongwith three live bullets P. 14/1-3. These articles were taken into custody vide recovery memo Ex. PAA. On the same day, Muhammad Mazhar led to the recovery of Rs, 1,00,000/- in two packets of denomination of five hundred each P. 5/1-200 which were taken into custody vide recovery memo Ex. PH. He also led to the recovery of pistol .30 bore alongwith two live bullets P. 16/1-2 which were taken into custody vide recovery memo Ex. BB.
7. During the investigation Muhammad Asif appellant also got recovered Car No, FDR 242 (P. 1) which was found parked at Moon Rent a Car Jinnah Market, Toba Tek Singh, the same was taken into custody vide recovery memo Ex. PD.
4. The investigating officer after complying with legal formalities finally submitted challan before the trial Court where prosecution produced fourteen witnesses to prove charge against appellants.
8. Mirza Muhammad Saeed Draftsman PW. 1 prepared site-plan Ex. PA and Ex. PA/1. Ashir Shafiq PW. 2 being the owner of Show Room titled "Moon Rent a Car' deposed that the car bearing Registration No, FDR 242 was hired by Muhammad Asif from his Show Room on 13.6.2006 at about 8. a.m. The same was returned on 14.62006. The said car was again hired by him on 21.6.2006 and returned on 22.6.2006. This witness had also placed on record receipt book and its carbon copies Ex. PB and Ex.
9. PB/1 and PB/3. Dr. Asif Mahmood (MO) PW. 3 conducted the post-mortem examination of Muhammad Yasir. In this opinion time between death and post-mortem was 7 to 14 days. Imran Siddiq PW. 4 was present when Muhammad Asif appellant got recovered car bearing Registration No, FDR 242. He was also present when Inspector took into possession photo copies of receipts Ex.
10. PB to PB/3 and photo copy of NIC of Muhammad Asif vide recovery memo Ex. PE. Muhammad Aslam ASI PW. 5 was present when Muhammad Asif appellant' got recovered dead body of Muhammad Yasir from a canal situated in Tehsil Kamalia, District Toba Tek Singh. The dead body was stuck up with a bamboo fixed in the canal and he (witness) retrieved the dead body from the canal. He also took the dead body to mortuary for post-mortem examination and handed over the last worn cloths of deceased to the investigating officer. He was also present when Muhammad Pervaiz and Muhammad Mazhar appellants got recovered ransom money. Haji Muhammad Saleem PW. 6 was present when Muhammad Asif, Muhammad Kashif, Muhammad Tahir and Muhammad Mukthar appellants led to the recovery of ransom money and other articles as narrated earlier. Muhammad Zubair PW. 7 deposed that on 19.6.2006 the complainant of this case requested him for a loan of Rs, 70,000/- because his son was abducted and he was in need of money. Statedly his witness issued a cheque pertaining to ABL Johar Abad Branch and thereafter got encashed the same from the Bank and handed over the money to the complainant. Statedly there were eight packets in total, six packets contained currency notes of Rs, 1,000/- denomination whereas two packets were of Rs, 500/- denomination currency notes. The stamps of the bank were also available on the packets. Muhammad Ramzan PW. 8 being the Bank employee of ABL Johar Abad Branch, as Cashier, deposed that on 19.6.2006 Muhammad Zubair had presented a cheque of Rs, 7,00000/- which was encashed and that all the packets were having official stamp of the bank. Ghulam Shabbir ASI PW. 9 entered formal FIR Ex. PM/1 upon receiving complaint Ex. PM. Syed Azhar Ali Bokhari Civil Judge/Judicial Magistrate Khushab PW. 10 supervised the identification parade which was held on 4.7.2006 at Shahpur Jail and prepared proceedings Ex. PO. Statedly during the identification parade proceedings, witnesses' had identified Muhammad Pervaiz and Muhammad Mazhar appellants. Muhammad Sagheer PW. 11 being the complainant of this case deposited about the abduction of his son and thereafter making report to the police as well as making arrangement for the ransom money. He also received telephonic messages from the accused persons for the payment of ransom. He was also present when the dead body of his son was recovered at the instance of Muhammad Asif appellant and the same was identified by him.
11. On 17.6.2006, complainant was informed by Muhammad Aslam and Muhammad Sadiq about seeing the deceased in the company of appellants and thereafter his supplementary statement was brought on record. He further stated that Muhammad Asif and Kashif are his real nephews.
12. Muhammad Sadiq PW. 12 had seen he deceased in the company of Muhammad Asif, Kashif, Mukhtar and Muhamamd Tahir appellants near Girls College Chowk on 13.6.2006 at about 3.30 p.m., he also informed the complainant in this regard on 17.6.2006. Muhammad Shahid. PW. 13 deposed about receiving ransom money by Mazhar Iqbal and Muhammad Pervaiz appellant. He also identified both the said accused persons during the identification parade proceedings.
13. Ghulam Hussain Inspector PW. 14 conducted the formal investigation as observed earlier.
5. Learned trial Court also examined all the appellants under Section 342 Cr.P.C. Appellants while answering to question. "Why this case against you and why the witnesses have deposed against you?" made the replies which read as under: Muhammad Asif : I am innocent. I have been involved due to reason that myself and my brother Muhammad Kashif accused often demanded price of land owned by our mother, which she inherited from her father and father of complainant situated in Chak No, 117/NB. The inherited property of my mother was usurped by Muhammad Sagheer complainant. That land is quite valuable. Complainant had asked us that he would provide us a house after construction and for that a plot be purchased and for that was should pay initial amount in this context after selling our can After selling the vehicle was provided to the 'owner of plot rupees one lac but thereafter complainant resiled from his undertaking, which caused us not only loss of property of our mother but also of rupees one lac. I had been working with complainant for about three years for which no wages were given to me.
14. When our demand in this regard was on extreme, at that time some unknown persons abducted his son. Complainant finding it a golden chance that culprits were untraceable, to put pressure on us to waive our demand involved myself and may brother Kashif accused in his case falsely. While doing so having connivance with police evidence was fabricated. My brother Kashif accused is a student of MA. By no means we had any reason to commit the crime of our own near and dear.
15. Muhammad Kashif : My version is the same as of my co-accused and brother Muhammad Asif. In addition to that I state that on 13.6.2006 I had gone to the house of complainant to make demand for our property and money and for no other purchase. I had been associating complainant for couple of days for search of deceased and I could not make demand because of missing of deceased. I am a students of Part I of M.A. English in Faisalabad University and on 24.7.2006 I had to appear in my first paper in examination. I was enjoying very good academic record.
16. Muhammad Tahir : My father had moved an application against SHO Police Station city Toba Tek Singh because of which he was annoyed with our all family members. On 24.6.2006 when police went there, he got me involved in this false case and also associated him to create false evidence against me. I was the student of 2nd year and studying in Government Municipal Degree College Toba Tek Singh. I am quite innocent.
17. Muhammad Mukhtar : I am innocent. I am a poor man. On the asking of Muhammad Ashfaq son of Ahmed Khan caste Janjua Rajput R/o Chak No, 695/37 GB and Maqbool Ahmad son of Muhammad Akram caste Rajput R/o Chak No, 693/35 GB the police has dishonestly made me an escape goat in this case.
18. Nothing was recovered from me and I was arrested by the police on 24.6.2006. Investigation of this case was dishonestly conducted and fabrication in evidence has been made against me.
19. Muhammad Pervez: My version is the same as of my co-accused Mazhar @ Shah.
20. Muhammad Mahzar: I am innocent in this case as I have been falsely involved in this case. I was arrested by police on 24.6.2006 alongwith other accused where after I was kept under illegal confinement till the date on which I was shown to be arrested. During this period I was repeatedly shown to the witnesses and even my photographs were drawn. By way of fabrication made by complainant and police I have been involved falsely in this case with which I have no concern whatsoever.
21. None of the appellants made statement on oath as required under SectiOn 340(2) Cr.P.C. nor produce any evidence in defence.
22. Learned trial Court after perusing the evidence and hearing learned counsel for the parties vide judgment dated 8.9.2006 convicted and sentenced the appellants as narrated earlier.
6. Learned counsel of the appellants while challenging the legality of the impugned judgment submitted that it is a case of fantastic engineered fabrication and the appellants, had been falsely involved in this case with mala fide intention. Learned counsel submitted that from the medical evidence it could not be determined as to whether the dead body was that of Muhammad Yasir deceased for whose murder six persons have been sentenced to death. Further submitted that the entire case of the prosecution rests upon circumstantial evidence but the chain of circumstances which should touch the dead body and neck of the appellants is not complete. Learned counsel submitted that the evidence i,e, last seen, demand and payment of ransom, recovery of dead body as well as ransom money and crime weapon at the instance of the appellants, was tailored during the investigation. Learned counsel further submitted that according to prosecution case Muhammad-Zubair PW. 7 had arranged for the money to be paid as ransom by the complainant; the cheque was to encashed by him through Allied Bank Limited 'ABU and Muhammad Ramzan (PW. 8) bank officer (cashier) had encashed the cheque but unfortunately none of the said witnesses made any statement before the police officer during the investigation and for the first time had deposed before the trial Court. It was submitted that same was the position with regard to Ashir Shafiq PW. 2 who statedly had rented out the car to Muhammad Asif and Kashif in which allegedly Muhammad Yasir was abducted. Learned counsel submitted that Muhammad Sadiq (PW. 12) statedly had seen the deceased in the company of appellants Muhammad Asif, Kashif, Mukhtar and Muhammad Tahir on 13.6.2006 but he never bothered to inform the complainant till 17.6.2006 whereas the house of complainant was only few feet away from his house. Submitted that said conduct of the witness was sufficient to doubt his credibility and his evidence could not be relied upon. Learned counsel further argued that the First Information Report i,e, Ex. PM/1 is silent with regard to .the appellants and during the trial while realizing their mistake in order to strengthen the case prosecution introduced Ex. PP 'Missing Report' lodged by the complainant at Police Station Gunjial District Khushab and the entry of Ruptt No, 23 dated 13.6.2006 (this report indicates that Kashif appellant was present at the time Muhammad Yam deceased had left the house to see his friend). Learned counsel further argued that recovery of dead body at the instance of Muhammad Asif appellant and thereafter pointing out of the place of occurrence by the remaining accused persons and preparation of "Fard Nishandahi" could not be relied upon because the facts available on the record do indicate that all the accused together were taken to the pointed place. Learned counsel further pointed out that the evidence of recovery of ransom money at the instance of appellants was a classic example of fabrication because the dates on the stamps of the bank, affixed on the recovered bundles of currency notes do not tally with the story of the prosecution. Learned counsel argued that the case in hand is nothing but a pack of lies and the impugned judgment is liable to be set aside.
23. Conversely learned Special Prosecutor while supporting the impugned judgment submitted that through legal and plausible evidence the charge stood established against appellants; the said evidence clearly indicates that appellants after abducting Muhammad Yasir for ransom had committed his murder. Learned counsel submitted that during the investigation ransom money was also recovered from the appellants and this factor renders ample corroboration to the other circumstances available on the record. Learned counsel further submitted that Muhammad Asif and Muhammad Kashif who are real brothers are also the real nephews of the complainant thus it was very easy for them to abduct Muhammad Yasir they on 13.6.2006 alongwith other co-accused namely Muhammad Tahir and Mukhtar were seen by Muhammad Saddiq PW. 12 while sitting in a car alognwith the abductee; the said car was obtained by the said brothers on rent from Ashir Shafiq PW. 2 who while supporting the prosecution case had deposed before the trial Court as well as produced the receipts issued by him for renting out the car. Learned counsel further argued that the recovery of dead body at the instance of Muhammad Asif and thereafter pointing out the place of occurrence by the remaining accused persons was a strong corroborative piece of evidence leaving no room to create doubt qua the involvement of appellants and in the present case learned trial Court while relying upon the evidence produced by the prosecution had rightly convicted and sentenced the appellants.
7. After minutely going through the record and hearing lengthy arguments of learned counsel for the parties, we have observed that it is a case of circumstantial evidence i,e, last seen, demand/payment of ransom, recovery of dead body at the instance of Muhammad Asif and pointing out of the place of recovery of dead body by other accused recovery of incriminating articles at the instance of accused, Identification Parade and surrounding circumstances.
24. The wheel of investigation started moving upon the information of the complainant Muhammad Saghere PW. 11 qua the abduction of his son when he lodged FIR at Police Station Gunjial on 16.6.2006 at about 7.40 p.m. and reported about the non-availability of his son who statedly was missing since 13.6.2006. The facts narrated in the FIR reveal that prior to the registration of the case upon the basis of a report of missing person services of army dogs were hired and they took the investigating officer to the house of Muhammad Riaz son of Shabbir Ahmad and Shah Nawaz son of Haji Ahmed Nawaz. Thereafter the matter was inquired into but as it is apparent from the statement of Ghulaw Hussain Inspector PW. 14 both the said persons were found' not involved in the case. We have observed that. Ruptt about missing person find mentioned in FIR was not forwarded to the trial Court alongwith challan and later on during examination-in-chief of complainant (Muhammad Sagheer PW. 11) application of the complainant Ex. PP about the non-availability> of his son and Report Gumshadugi at Police Station Gunjial, i,e, Report No, 23 dated 13.6.2006 Ex. PP/1 were placed on the record. This report revels that on the day of occurrence at about 3 p.m.
25. Muhammad Kashif appellant was present in the house of complainant, he took Muhammad Yasir out of the house with him but returned later on. Thereafter Yasir after staying about 20/25 minutes in the house left to see his friend and thereafter never returned. This Ruptt i,e, No, 23 dated 13.6.2006 was never formally proved by the prosecution during the trial by producing the another or other evidence. We have also observed that signatures of the complainant on the statement made by him while lodging FIR and on the application Ex. PP do not resemble. In this backdrop of the matter we hold that it is not safe to rely upon Ex. PP and Ex. PP/1.
26. The important piece of prosecution case is the evidence of last seen. Statedly on 13.6.2006 at about 3.30 p.m. Muhammad Sadiq W. 12. alongwith Muhammad Aslam (given up) was going to Lahore when he saw the deceased in the company of Muhammad Asif, Muhammad Kashif Muhammad Tahir and Muhammad Mukhtar (appellants). Upon asking the witness was informed by the appellants that they were going to Toba Tek Singh on a pleasure trip. Thereafter he left for Lahore and came back on 16.6.2006 when his wife informed him about the non-availability of Muhammad Yasir and on the next day he informed the complainant about the said facts. We have observed that this witness was the resident of Quaidabad District Khushab and accused were the residents of District Toba Tek Singh. It is not clear from the data available on the record as to how this witness knew the accused persons and had the frankness to ask them about their programme. The conduct of this witness while asking the accused as to what they were doing near the Girls College seems to be unnatural. Statedly he was going to Lahore when he saw the deceased in the company of appellants but this witness never gave any explanation about his purpose to visit Lahore, nor the Investigating Officer collected any information about his visit at Lahore. Admittedly this witness had come back to his home on 16.6.2006 when his wife informed him about the non- availability of Muhammad Yasir but he never bothered to inform the complainant about seeing his son in the company of accused on the same day though admittedly the house of complainant was only few yards away from his house. The silence of the witness for many hours is yet another factor to doubt his credibility. Even otherwise it is well settled that the evidence of last seen is very weak types of evidence and it is not safe to rely upon the same without any support from the independent corroborative piece of evidence. In the circumstances of this case we do not feel 'persuaded to rely upon the statement of this witness.
27. The case of the prosecution is that after the abduction of Muhammad Yasir, complainant of this case Muhammad Sagheer PW. 11 (father of the abductee) received many telephonic calls from some unknown person demanding ransom for the release of his son. Initially Rs, 30,00,000/- were demanded but ultimately it was settled that payment of Rs, 7,00,000/- would be made for the release of the abductee. As stated by the complainant for the first time he received call about the abduction of his son and demand of ransom for his release on 15.6.2006 in the morning on his PTCL Number i,e, 770717. Since there was no `CU facility with the telephone apparatus (later on he got the said facility from the concerned quarters) complainant could not notice the number. thereafter he received many calls till 18.6.2006 and on 19.6.2006 after receiving many calls from Telephone No, 0334-7519177 finally at 12.15 noon it was decided that Rs, 700,000/- would be paid as ransom. The complainant also talked to his son on the said number as well. This means on 15.6.2006 complainant had come to know that his son had been abducted for ransom but while lodging FIR this fact was never disclosed to the police. Similarly after the availability of CLI facility the complainant though had noted the number of the caller i,e, 0334-7519177 but we have observed that no attempt was made by the agency to collect the telephone record or to find out as to whom the number was issued, nor any attempt was made to get hold of the persons who- had sold the SIM of the said number. During the investigation allegedly Muhammad Asif and Muhammad Pervez appellants got recovered mobile phone but in the absence of any data to connect these items with the commission of crime, this recovery evidence is of no legal value.
28. Statedly in order to arrange money for payment to the accused, Muhanitnad Sagheer PW. 11 contacted Muhammad Zubair PW. 7 who withdraw the desired amount i,e, Rs, 7,00000/-through a cheque from ABL. The said cheque was encashed by Muhammad Ramzan PW.
8. Statedly money was in the form of seven bundles containing currency notes with denomination of Rs, 1000/- and two bundles with currency notes of denomination of Rs, 500/-. This money was obtained from the Bank on 19.6.2006. The same was handed over to Muhammad Shahid PW. 13 for onward transmission to the accused persons at the pointed place. Record of this case reveals that after their arrest five bundles containing currency notes of Rs, 1,000/- were recovered from the appellants except Muhammad Mazhar who allegedly led to the recovery of Rs, 1,00000/- in the form of two bundles of Rs, 500/- denomination. We have observed that on the said packets/bundles there are certain stamps affixed by the Bank bearing different dates qua 'cash paid/cash received' and these dates on some of the packets do not tally with the date of occurrence as fixed by the prosecution witnesses. Some of the packets have the stamps dated 14.7.2006 showing it to be 19.6.2006. Similarly some of the packets have two stamps, on the front side the stamp (received cash) is dated 27.6.2006 and on the back stamp (cash paid) is dated 19.6.2006, whereas on the packet of currency nots of Rs, 500/- on the front cash received is dated 21.6.2006 and on the back stamp of 'cash paid' is 19.6.2006. Trial Court specifically asked Muhammad Ramzan (PW. 8), Bank employee to give explanation in this regard but he was not in a position to give any proper reply. The case of the prosecution is that money was received from the bank on 19.6.2006 but the said discrepancy in the dates affixed on packets of currency notes recovered at the instance of appellants is sufficient to doubt the credibility of this piece of evidence and the possibility that this evidence was tailored later on could not be ruled out. The said amount was allegedly received by Muhammad Pervaiz and Muhammad Mazhar from Muhammad Shahid PW. 13 on 21.4.2006 and later on the same was allegedly recovered from the appellants on 28.6.2006 and 8.7.2006 i,e, after 10 and 15 days. It means that the accused had plenty of time to dispose of the money instead of keeping it with them for presenting the same before the police after their arrest during the investigation. We have also observed that during the recovery proceedings the investigating agency never bothered to comply with the requirements of Section 103 Cr.P.C. though the places of recovery were situated at populated areas, independent and respectable witnesses of the areas were very much available but they were not made to join the recovery proceedings. Record of this case also reveals that at the instance of Muhammad Pervaiz and Muhammad Mazhar two pistols alongwith live bullets were also recovered but the recovery of these articles is' of no legal value because there is no evidence on the record to show that the said weapons were ever used during the occurrence. Allegedly after his arrest, Muhammad Asif appellant also led the recovery of dead body of Muhammad Yasir from a Canal which was taken into custody and identified by the complainant.
29. The post-mortem of Muhammad Yasir was conducted by Dr. Asif Mehmood PW. 3 who, observed in the following manner:- "It was a putrefied body of a young body in a wooden box. On 'examination head, neck, both upper limbs, thoracic and abdominal muscles as well as muscles of both lower limbs were missing, There was clinical fracture of clavicle vertebrae No, 4.
30. On thorax examination all ribs were present and intact whereas all other organs-were missing.
31. On abdominal examination all were missing. In my opinion cause of death was throat cutting. Time between injuries and death was immediate whereas between and post-mortem it was 7 to 14 days.
32. The said observation of doctor is sufficient to show that the dead body was not identifiable but the claim of the complainant is that he had identified the body because of the mole on the foot and trouser of his son. On the other hand, we have observed that the doctor during the cross- examination had admitted that there was no mole mark on any part of the body of the deceased.
33. Thus the claim of the complainant qua identification of the dead body of his son has no legs to stand. As far as identification through trouser of the deceased is concerned. We have observed that the complainant of this case while lodging FIR or even when making statement before the trial Court never bothered to give description of the clothes worn by his son at the time he left the house rather the demeanor of his evidence is that he was informed by his wife about the non- availability/missing of his son but she (wife of the witness) was never produced either before the Investigating Officer or before the trial Court. Thus the identification of the dead body through the trouser is also highly doubtful and in the circumstances we hold that E the prosecution has failed to prove that the dead body allegedly recovered at the instance of Muhammad Asif appellant was that of Muhammad Yasir deceased (son of Muhammad Sagheer complainant).
34. Another limb of the prosecution case is "Fard Nishandahi" prepared at the instance of Muhammad Kashif, Mukhtar and Muhammad Tahir appellants. Allegedly the said appellants led the Investigating Officer in the presence of witnesses to the place where the dead body of Muhammad Yasir was thrown by them. We have observed that the dead body had already been recovered when these appellants were taken to the place of recovery and "Fard Nishandahi" was prepared.
35. Similarly Muhammad Sagheer PW. 11 (complainant) who statedly was present when appellant led to the Investigating Officer to the place of recovery stated that all the accused were taken together and first of all Asif accused pointed out and got recovered the dead body, the remaining accused were at a distance of one hundred yards from there. Statedly after the recovery of dead body by Asif accused then Kashif accused led to the place. This means the proceedings of recovery of dead body and pointing out the place of occurrence by the accused was the joint exercise of the accused. We have also observed that though the case of the prosecution is that Muhammad Asif appellant led to the recovery of dead body but no recovery memo was prepared in this regard and admittedly in the inquest report the recovery of dead body has been written at the instance of Muhammad Kashif.
36. About the payment of ransom money case of the prosecution is that after making arrangement complainant Muhammad Sagheer PW.11 handed over Rs, 7,00000/- and mobile phone to Muhammad Shahid PW. 13 alongwith Muhammad Habib and asked them to go to Multan for the payment of ransom. Statement of this witness is to the extent that he went to the pointed place where Mazhar Iqbal and Pervez appellants met him and took the money. The said accused were not known to him previously and statedly they were identified by him during the Identification Parade proceedings. We have observed that while deposing before the trial Court this witness made certain improvements and during the cross-examination was got confronted with his previous statement. Statedly the amount was paid by them to the accused persons who had come on foot and the place where the money was handed over was not an isolated place. It was near Iqbal Chowk. It is very strange that they made no attempt either to apprehend the accused or to raise hue and cry, to ask for help of people. They also never bothered to inform the police of the area before going to the pointed place. Admittedly the police had already started investigation but no information was conveyed to the police about making the payment before sending Muhammad Shahid PW. 13 at Multan. Similarly nor before handing over the money any effort was made to get affixed specific marks on the packets of currency notes to establish the identity after the recovery of the same. Accordingly to prosecution case the money allegedly received by Muhammad Pervaiz and Muhammad Mazhar was later on recovered from their co-accused and on the basis of the same it is being presumed that all the appellants belong to one party but admittedly there is no other evidence on the record to show the association of the said appellants with the remaining accused/appellants. We have also observed that both the said appellants i,e, Muhammad Pervaiz and Muhammad Mazhar were also identified by Muhammad Shahid PW. 13 during the Identification Parade but since the recovery of ransom money has already been disbelieved by us the identification of these appellants by the witnesses is not sufficient to take the case of the prosecution to some logical conclusion.
37. Prosecution has also relied upon the statement of Ashar Shafiq PW. 2 who had rented out the car to Muhammad Asif appellant in which allegedly Muhammad Saddiq PW. 12 had seen the deceased in the company of accused persons. We have observed that this witness never made statement to the police under Section 161 Cr.P.C. and for the said lapse no explanation has been given by the Investigating Officer. Even otherwise if statement of this witness is accepted to be true even then the same would be of on help to the prosecution because Muhammad Saddiq PW. 12 has already been disbelieved because of rendering highly doubtful evidence.
38. It is well settled that the standard of proof required to convict a person on circumstantial evidence, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime.
39. In this case no doubt the prosecution has tried its best to build up case against appellants but the same is a house of cards which has to fall. The aforesaid circumstances of the case in our view are sufficient to doubt the credibility of the prosecution case because in a case of circumstantial evidence, all the circumstances should be linked with each other so closely so as to make a chain starting from the dead body and touching the neck of the accused but in the present case the evidence relied upon by the prosecution is not wroth reliance and many links of the chain are missing and it would be unsafe to rely upon the prosecution case. Accordingly while extending benefit of doubt in favour of the appellants this appeal is allowed, conviction and sentence of appellants is set aside and they stand acquitted from the charge. They shall be released forthwith if not required to be detained in any other case.
40. Resultantly death sentence awarded to Appellants is not confirmed and murder reference i,e, C.S.R.
41. No,44-T/2006 is answered in the negative.