TARIQ SHAMIM, J.---The appellants, namely, Muhammad Asif and Muhammad Aamir both sons of Muhammad Jamil, were tried by the learned Judge Anti-Terrorism Court No.III, Lahore in case bearing F.I.R. No.782 of 2006, dated 1-7-2006, registered with Police Station Lower Mall, Lahore, for offence under sections 302, 364, 392, P.P.C. Read with section 7 of the Anti-Terrorism Act of 1997. The learned trial Judge by virtue of his judgment, dated 8-8-2007, found both the appellants guilty of the offence, convicted and sentenced them as under:-- Under section 364/34, P.P.C. for abduction of Khalid IqbalRigorous Imprisonment for 10 ears with a fine of Rs.50,000 and indefault thereof to undergo S.I. for three months to each of the accused.
Under section 364/34, P.P.C. for abduction of Nadeem Jafri:Rigorous Imprisonment for 10 years with a fine of Rs.50,000 and in default thereof to undergo S.I. for three months to each of the accused.
Under section 7(a) of A.T.A., 1997 for the murder of Khalid Iqbal:Death sentence with a fine of Rs.2,00,000 and in default thereof to undergo S.I. for six months.
Under section 7(a) of A.T.A., 1997 for the murder of Nadeem Jafri:--Death sentence with a fine of Rs.2,00,000 and in default thereof to undergo S.I. for six months.
Under section 302(b), P.P.C. for the murder of Khalid Iqbal.Death sentence as Ta'zir along with compensation under section 544-A, Cr.P.C. of Rs.2,00,000 to the legal heirs of deceased and in default thereof to undergo S.I. for six months.
Under section 302(b), P.P.C. for the murder of Nadeem Jafri:Death sentence as Ta'zir along with compensation under section 544-A, Cr.P.C. of Rs.2,00,000 to the legal heirs of deceased and in default thereof to undergo S.I. for six months.
2. The appellants by filing this appeal have called in question the conviction and sentence awarded to them vide the impugned judgment, whereas the learned trial Judge has sent C.S.R.
No.66-T12007 for confirmation of death sentence.
3. Precisely the allegations against the appellants, according to the F.I.R., recorded by Muhammad Arif, Excise Constable, Hafeez Ahmad, Excise Constable, Bahadur Ali, Head Constable posted in Excise Branch and Muhammad Rafique, Police Constable posted in Excise Branch, complainants, are that on 29-6-2006 during duty hours they were present with Nadeem Jafri Inspector Excise and Khalid Iqbal Head Constable posted in Excise Branch. Aamir appellant rang on Cell Phone No.0333- 4193041 of Nadeem Jafri whereafter Nadeem Jafri informed the officials that Aamir was calling them in the office of Malik Hamid Mehmood alias Bhola for conducting a raid to recover narcotics.
Accordingly Nadeem Jafri and Khalid Iqbal proceeded to the office of Malik Hamid Mehmood to meet the appellants while directing the complainants to wait. Since Nadeem Jafri and Khalid Iqbal did not return for two hours, the complainants tried to contract them on their cell phones but the same were switched off. Thereafter the complainants went to the office of Hamid Mehmood alias Bhola, which was closed. They waited there for some time and then went to their homes. On the next morning (30-6-2006) they came to office and were contacted by the relatives of Nadeem Jafri and Khalid Iqbal who informed the complainants that both the officials had not returned to their homes. Suspicion was cast against Hamid Mehmood alias Bhola, Aamir, Asif and Major (R)
Waseem Aftab, who were permit holders of Excise Department, for abducting the said officials as Nadeem Jafri and Khalid Iqbal, prior to the occurrence, had got registered F.I.R. With Police Station Yakki Gate, Lahore against them. According to the F.I.R. All the above persons had been extending threats to Nadeem Jafri and Khalid Iqbal on account thereof. Consequently, the F.I.R. In the instant case (No. 782 of 2006) was registered on 1-7-2006 with Police Station Lower Mall, Lahore under section 365, P.P.C. During investigation on 27-11-2006 offences under section 364, P.P.C. And section 7 of the Anti-Terrorism Act of 1997 were added and on 9-1-2007 offence under sections 302 and 201, P.P.C. Was also added.
4. After completion of necessary formalities challan was submitted in the Court where the appellants were formally charged with the murder and abduction of Nadeem Jafri and Khalid Iqbal to which they pleaded not guilty and claimed trial.
5. At the trial the prosecution examined as many as 34 witnesses. Mst. Tayyaba Khalid (P.W.1) the widow of Khalid Iqbal deceased deposed about threats given by the accused to the deceased.
Mian Muhammad Iqbal, Special Magistrate (P.W.2) held the identification parade of Muhammad Asif appellant on 25-11-2006. Rana Muhammad Ishtiaq (P.W.9) and Afzaal (not produced) participated in the identification parade of Muhammad Asif appellant and correctly identified him.
The Magistrate (P.W.2) prepared, identification parade report Exh.PH. Syed Muhammad Khalid Jaffari (P.W.3) brother of Nadeem Jafri deceased deposed about motive behind the occurrence, Khurshid Iqbal (P.W.4) brother Khalid' Iqbal deceased deposed about receipt of telephone call by Khalid Iqbal from Aamir appellant. Muhammad Maalik (P.W.5), Liaqat Ali Constable (P.W.6) and Javed Iqbal (P.W.7) appeared as formal witnesses. Rana Muhammad Ishtiaq (P.W.9) brother-in- law, of Khalid Iqbal deceased stated that on 20-6-2006 -while he along with his friend Afzaal were coming back to Sodiwal, they saw Khalid Iqbal and Nadeem Jafri in the back seat of a Parado vehicle in front of 33-D, Gulshan-e-Ravi. Aamir appellant was driving the said vehicle and Asif was sitting in the passenger seat on front. Sikhawat Ali Constable (P.W.10), Muhammad Yasin Head Constable (P.W.11), Muhammad Arif. Constable (P.W 12), Muhammad Waris A.S.-I. (P.W.13), Shahbaz Ahmad, A.S.-I. (P.W.14) Muhammad Nawaz Head Constable (P.W.15), Asghar Ali Constable (P.W.16), Saeed Ahmad Constable (P.W.17), Zaiullah Head Constable (P.W.18), Muhammad Rafique Excise Constable (P.W.19.) and Mansoor Akbar Naik (P.W.20) also appeared as formal witnesses.
Hameedudin Chishti, Draftsman (P.W.21) deposed that, on 13-1-2007, on instructions by the, police he inspected the place of occurrence. On 16-1-2007 he prepared scaled site plan Exh.PZ (duplicate Exh.PZ/1) and his statement was recorded by the Investigating Officer. Muhammad Akbar (P.W.22), Muhammad Hussain. Constable (P.W.23), Muhammad Waris Constable (P.W.24), Malik Muhammad Jamil Inspector (P.W.25), Muhammad Ashraf Constable (P.W.26), Maqbool Hussain Constable (P.W.27), Muhammad Imran (P.W.28), Syed Sami Ullah (P.W.29) and Muhammad Athar (P.W.30) also took the witness stand in support of the prosecution case. Muhammad Hussain Sub-Inspector (P.W.31) while he was posted as Sub-Inspector (Investigation) at Police Station Lower Mall, Lahore on 1-7-2006 was entrusted with the investigation of the case. On the same day, he inspected the place of occurrence and prepared site plan without scale Exh.PAC. Ghulam Rasool Inspector (P.W.32), on 28-11-2006, took over investigation of the case. On 9-12-2006 he sent Muhammad Asif appellant to jail on judicial remand and on 12-12-2006 he arrested Muhammad Aamir appellant.
Muhammad Nasir Head Constable appeared as P.W.33. Masood Aziz, S.P. (Organized Crimes), Lahore being a member of the Team constituted by the D.I.-G. For supervision of investigation of the case appeared as P.W.34, Dr. Shabbir Hussain Sapra, D.M.S. D.H.Q. Hospital, Gujrnwala (P.W.8) appeared as witness in whose presence a grave situated in the graveyard of Nai Abadi Badhay was opened and the dead body was exhumed and sample of skin and scalp hair were obtained and sealed in plastic jars for DNA test which was handed over to Liaqat Ali Constable. On the same Jay, in the presence of Ghulam Mustafa Sheikh, Special Judicial Magistrate and police two graves situated in the graveyard of Noshehra Virkan Kalan were opened, dead bodies were exhumed and different specimen were obtained and sealed into plastic jars for DNA test. Later onDNA Testing Agency directed again to take samples from two unknow dead bodies buried in the graveyard of Noshehra Virkan Kalan. Axordingly on 25-1-2007 in the graveyard of Noshehra Virkan Kalan two graves were opened and the dead bodies were exhumed. Samples of teth from both the graves were taken into possession and sealed into plastic jars.
6. On the conclusion of the prosecution evidence, statments of the accused under section 342, Cr.P.0 were recorded by thelearned trial Court. In answer to the question as to why the case againstiim and why the P. Ws. Deposed against him, Muhammad Aamir appellat replied:-- "I am having the business of methyl alcohol am methylated spirit since, 1988-99 independently under a vide license. Exh.PQ. I have been falsely involved in this case the behest of Hameed Akhtar ETO, Rizwan Sherwani ET, Director Excise and DG Excise falsely inclusion with police and the legal heirs of Nadeem Jafri and Khalid Iqbal. Hameed Akhtar ETO through Saleem Nadeem Excise Inspector got registered a case F.I.R. No.13 of 1998 at Police Station Mandra Dist. Rawalpindi on 13-1- 1998 falsely. Copy of the F.I.R. Is Exh.DQ/1. F.I.R. Exh.DQ/1 was challenged before honourable Lahore High Court, Rawalpindi Bench, Rawalpindi through Writ Petition Nos. 124 of 1998 and 125 of 1998, certified copies of which I produced along with the order sheet as Exh.DQ/1 and Exh.DQ/3 consisting of 6 leaves and nine leave respectively. Which were decided in favour of the writ petitioners. As a result of order passed by the honourable Lahore High Court, F.I.R. No.1 of 1998, dated 14-2-1998 was registered at Police Station Anti-Corruption Rawalpindi against Excise Officers/officials and police officials. Certified copy of the challan is Exh.DQ/4, copy of charge sheet is Exh.D.W./5 and copy of order sheet is Exh.DQ/6 (order sheet comprises of 5 leaves). The proceedings relating to F.I.R.
Exh.DQ/1 were stayed by the order of honourable High Court. Challan Exh.DQ/4 is pending. Babar Sarfraz Alpha SP and other police officials/Excise officials were pressing me and my brother Asif for a compromise regarding challan Exh.DQ/4 and on our refusal we were falsely involved in this case.
' On 20-11-2004, vide diary No.288, I submitted an application against Rizwan Akram Sherwani ETO to the relevant Minister upon which inquiry was initiated against Rizwan Akram Sherwani ETO. The officersjofficials of Excise Deptt. Through different methods started pressing me and deprived me of my denatured spirit quota. As a result of which I have to file a Writ Petiton No.2265 of 2005 before honourable Lahore High Court, Lahore, which was decided in my favour, copy which is Exh.LQ/7 with certified copies of order, dated 30-6-2005, 14-4-2)05, 9-3-2005 passed in the Writ Petition. Due to disobedience of the orders passed by the honourable Lahore High Court, Lahore I have to move contempt application Crininal Org. No.1096-W/2005, upon which Kh. Shamial Ahrrid, D.-G. Javed Ashraf Dar. A.D.-G Excise, Akram Ashraf Gonal Director Excise, Rizwan Akram Sherwani ETO, had to appear in person, as a result of which they felt aggrieved. Copy of vaich is Exh.DQ/8. Due to these proceedings and enmity. I hay been falsely involved in this case by the officers/officials of Excise Dept. Inclusion with police and relatives of Nadeem Jafri and Khalid Iqbal. I have implicated in this case and the investigation conducted in this case is against law and evidence collected by the police is fabricated. I also submit inn defence copy of my complaint, dated 20-11-2004 as Exh.D/0. I also submit certified copy of pre-arrest bail order, dated 27-7-2006, Exh.DQ/10."
In answer to the same question Muhammad Asif appellant replied as under:-- "My answer to this question is the same as given by my co-accused Aamir and I further submit that I am doing my independent business of methylated spirit, denatured spirit and methyl alcohol under a valid license issued by Excise Department vide registration No.241/87-88 copy of which is Exh.DR consisting consisting of 4 leaves. I filed writ petition No.226 of 2005 in the Lahore High Court Lahore as the Excise officials were not acting in accordance with law in enhancing my quota.
Certified copy of Writ Petition No.226 of 2005 is Exh. DR/1 consists of 15 leaves. In the said writ petition Lahore High Court Lahore passed order, dated 9-3-2005 Exh.DR/2 is the certified copy of the said order and the said writ petition was disposed of vide order, dated 30-6-2005 which is Exh.DR/3. Due to disobedience of the orders passed by the honourable Lahore High Court Lahore have to move contempt application Criminal Original No.1095-W/05, upon which Kh. Shamial Ahmad D.G. Javed Ashraf Dar. ADG Excise, Akram Ashraf Gondal Director Excise, Rizwan Akram Sherwani ETO, had to appear in person, as a result of which they felt aggrieved, copy of which is Exh.DR/4, which consists of 9 leaves. I submitted form L-32/tansfer permit for bringing the consignment and also deposited Rs.66,000 in this respect on 23-5-2005 but. The ETO Rizwan Akram Sherwani did not extend the date and had refused to deliver the permit mala fide, copy of which is Exh. DR/5. A case F.I.R. No. 34 of 2000 was registered against me at Police Station A-Division Gujrat on 1-3-2000 with mala fide by the officials of Excise deptt. In order to pressurize me for effecting compromise with Saleem Nadeem Excise Inspector etc. The said case was got cancelled, copy of the same is Exh.D.R./6. Due to these proceedings and enmity I have been falsely involved in this case by the officers/officials of the Excise Deptt. In collusion with police and relatives of Nadeem jafri and Khalid Iqbal. I have falsely been implicated in this case and the investigation conducted in this case is against law and evidence collected by the police is fabricated. The police have involved me in order to show their Karwai and to save their skin."
7. Muhammad Aamir and Muhammad Asif, appellants, did not appear as witnesses in their own defence to disprove the allegations/ charges levelled against them as required under section 340(2), Cr.P.C. On the conclusion of trial and after hearing the arguments of the parties the learned trial Court convicted and sentenced the appellants as aforementioned vide its judgment, dated 8- 8-2007.
8. We have heard the learned counsel for the appellants as well as the learned Deputy Prosecutor- General at length and have also gone through the record with their able assistance.
9. The instant case rests on circumstantial evidence as there is no direct evidence of involvement of the appellants in the crime and even the dead bodies of the deceased have been recovered till date.
10. The F.I.R. In this case was lodged by Muhammad Arif (P.W.12) and other officials of the Excise Department. According to the contents thereof in the presence of Muhammad Arif (P.W.12) and others Nadeem Jafri, Excise Inspector received telephone call from Aamir appellant on his Cell.
Phone No.0333-4193041 whereafter Nadeem Jafri informed the complainant and others that Aamir wanted him to come to the office of Malik Hamid Mehmood alias Bhola (acquitted accused) for conducting a raid in order to recover narcotics. Thereafter Nadeem Jafri Excise Inspector and Khalid Iqbal Head Constable left the office while telling the complainant and other officials to wait for their return. The complainant and the other officials waited in the office for two hours and then they tried to contact Nadeem Jafri whose mobile phone was switched off. Thereafter the complainant and Bahadur Ali etc. Proceeded to the office of Malik Hamid Mehmood which was found closed, therefore, they returned to their homes. Since Nadeem Jafri and Khalid Iqbal had not returned during the night, therefore, their relatives contacted the complainant and others and consequently the F.I.R. Was lodged for abduction of the said two persons solely on the basis of suspicion. After registration of the F.I.R. The case was investigated and subsequently section 365, P.P.C. Was deleted and instead sections 364, 392, 302, 201, P.P.C. And section 7 of the Anti Terrorism Act of 1997 were added. Muhammad Arif Constable Excise (P.W.12) in his statement recorded before the learned trial Court has deposed on the same lines as the F.I.R. Not much reliance can be placed on the F.I.R. Which by itself is not sufficient to prove the case of the prosecution, particularly as the same is based on suspicion only and till date the dead bodies of the deceased have not been recovered.
11. In the F.I.R. The motive behind the occurrence was stated to be the F.I.R. Lodged by Nadeem Jafri Excise Inspector against the appellants at Police Station Yakki Gate on account whereof the appellants were extending threats to the said officials. It has been observed that in the trial pimccdhigs the prosecution did not produce the said F.I.R. In order to establish the motive behind the occurrence. It has come out in the evidence of Muhammad Arif (P.W.12) that the appellants were not nominated in that case and in fact they had nothing to do with the said crime. Khalid Iqbal Head Constable was not even a prosecution witness in that case. The witness has candidly conceded that no one from the accused side was an accused in that case. Thus, in view thereof, it can be safely concluded that the prosecution has failed to prove the motive behind the occurrence at the trial.
12. The other piece of evidence which has heavily been relied upon by the prosecution is threats extended by the appellants to the deceased prior to their disappearance. In the said regard Muhammad Arif (P.W.12.), Mst. Tayyaba Khalid widow of Khalid Iqbal (P.W.1) and relatives of Nadeem Jafri deceased appeared before the learned trial Court and got their statements recorded. We have noticed that the statements made by the said witnesses are lacking in details, particularly as to the dates, time etc. Even otherwise nothing turns on mere threats extended by the accused persons. According to the own showing of the prosecution there was strong resentment and strained relations between Nadeem Jafri and the appellants on account of chequered history of criminal litigation, complaints, Court cases etc. The detail of which has been provided in the statement recorded by Aamir appellant in terms of section 342, Cr.P.C. In the above background as to why and under what circumstances Nadeem Jafri and Khalid Iqbal had left to meet the appellants on one telephone call is a complete mystery.
13. In order to prove the last seen evidence the prosecution produced Rana Muhammad Ishtiaq (P.W.9) who, stated before the trial Court that on 29-6-2006 he and his friend Afzaal were present at Band Road from where at about 8-30 p.m. They proceeded to 33-D Gulshan-eRavi, Lahore where in a Toyota Parado being driven by Aamir appellant they observed Khalid Iqbal and Nadeem Jafri sitting in the back seat of the vehicle while Asif appellant was sitting in the back seat of the vehicle while Asif appellant was sitting in the passenger seat on the front. According to this witness he had seen the appellants and the deceased in the light of street bulb. This witness appeared before the police and got his statement recorded under section 161, Cr.P.C. For the first time on 22- 8-2006 which is approximately two months after the disappearance of the deceased. In his testimony he has not been able to provide any plausible explanation for not approaching the police or the complainants earlier. Testimony furnished by this witness is not free from doubt and cannot be relied upon. It has been noticed that witness also identified Asif appellant in an identification parade held in the Camp Jail on 25-11-2006. Firstly the identification parade was held after about five months of the occurrence and secondly it was held in the presence of Muhammad Hussain, S.-I. (P.W.31), which on account thereof cannot be considered as a valid and reliable piece of evidence. It is worth noting that the identification parade was held in order to prove the last seen evidence furnished by Rana Muhammad Ishtiaq (P.W.9) which in our view is not only lacking but is replete with doubts. This witness is also a witness of extra judicial confession purportedly made by the appellants. We agree with the argument advanced by the learned counsel for the appellants that the confession was in fact a joint confession which was made in the presence of the police and, therefore, admissibility of the same is highly questionable. In the light of the above discussion, we reject the evidence of last seen as well as the identification parade.
14. In the course of investigation a wooden rack with smear of blood and empty of .32 bore pistol were recovered from the office of the appellants. Blood was obtained on cotton swab from the rack and sent for DNA test. Although DNA test report discloses that sample obtained from the rack matched with the DNA of Khalid Iqbal, however, the fact remains that in the absence of any other incriminating material mere detection of a smear of blood of Khalid Iqbal would not be sufficient to base conviction. Even otherwise, the admissibility of DNA test report is questionable. It has also been noticed by us that if the murder of the deceased had taken place in the office, blood stains would have been found on other articles in the office apart from a mere smear on the wooden rack (Exh.PF). Another aspect which makes the recovery unreliable is the time which had elapsed between the occurrence and the recovery of the aforesaid items which is approximately six months. There was sufficient time for the appellants to have dispose of the wooden rack or at least the empty of .32 bore pistol apparently recovered from the office of the appellants. Further doubt about the recovery of empty is created by the evidence furnished by Ghulam Rasool Inspector (P.W.32) in which he has stated that on 12-12-2006 while being posted at police Station Lower Mall, Lahore he arrested Muhammad Aamir appellant and on his personal search he recovered a number of items including a .30 bore licensed pistol along with some livebullets and magazines which were taken into possession vide memo. Exh.PU. The empty recovered from the spot as well as the pistol were sent to the Forensic Science Laboratory where according to the report Exh.PAP the empty was wedded with the weapon recovered. It is amazing that empty of .32 bore pistol had matched with .30 bore pistol P-7 recovered from the said appellant. This obviously makes the evidence of recovery of empty highly doubtful. Even otherwise, it has come out in evidence that no independent witness from the locality was associated by the Investigating Officer with the recovery proceedings. The only witness, apart from the police officer is Rana Muhammad Ishtiaq (P.W.9), who is the brother of Khalid Iqbal whose testimony has already been disbelieved by us.
15. In the course of investigation car bearing No.LXO-860 was recovered from a house in Model Town, Gujranwala. Mere recovery of the vehicle without any evidence to connect the same with the crime is obviously of no consequence. Similarly the Parado Jeep bearing registration No. LWC-1600 was stopped by S.P., C.I.A., in front of Sareena Hotel, Islamabad and was taken into possession vide memo. Exh.P.W. There is no evidence to connect this vehicle with the commission of murder with the execution of evidence furnished by Rana Muhammad Ishtiaq (P.W.9) who had last seen the deceased in a similar jeep but the witness did not disclose the registration number of the vehicle and as stated earlier having disbelieved his testimony there is no occasion for us to accept the same to the extent of recovery of the said vehicle.
16. Another piece of evidence against the appellants is the evidence of tracking does furnished by Mansoor Akbar Naik (P.W.20) who took the dogs to the office of Aamir appellant. The clothes and shoes of the deceased were wrapped in a shopper and after sniffing the shopper the tracking dogs took a tour of the ground, went inside the office and sat there. This piece of evidence by itself does not prove anything which even otherwise is not considered reliable for the purpose of conviction.
17. Much emphasis has been laid by the learned Deputy Prosecutor-General on the result of polygraph test administered to Muhammad Aamir appellant on 16-12-2006 by Malik Jamil Inspector (P.W.25). According to this witness as a result of the test, he found that the statement made by Aamir appellant before the Investigating Officer implicating himself in the murders as correct. In the first instance this appears to be a confession made by the appellant before the police officer and secondly the polygraph test which originated in the United States of America is considered to be highly unreliable. Normally this test is not administered to accused charged with criminal offences. However, the test is used for ancillary purposes i.e. Ascertaining the integrity of employees dealing with money and financial matters by banks and corporations. Therefore, the evidence of polygraph test for reasons stated above is of no avail to the prosecution and cannot be relied upon.
18. After the occurrence three dead bodies were recovered from the canal where apparently the appellants had dumped the dead bodies of Nadeem Jafri and Khalid Iqbal. The dead bodies were buried by the police in a graveyard being unclaimed. During investigation in the said dead bodies were exhumed and DNA tests were conducted in order to determine whether the dead bodies were those of Nadeem Jafri and Khalid Iqbal. From the evidence available on the record including DNA test results the dead bodies were not found to be those of the aforesaid persons. As has been mentioned earlier in this judgment, the dead bodies of Nadeem Jafri and Khalid Iqbal have not so far been recovered by the police.
19. It has been noticed that Waseem Aftab, Hamid Mehmood alias Bhola and Muhammad Akram, co-accused of the appellants, were acquitted by the learned trial Court on the same set of evidence. The acquittal of Hamid Mehmood alias Bhola, co-accused of the appellants, in whose office the deceased had gone after receiving phone call from Aamir appellant has created serious doubt about the veracity of prosecution case. It has not come out anywhere in the evidence that any effort was made by the police to collect evidence from the office of said Hamid Mehmood alias Bhola.
20. Now adverting to the defence plea taken by the appellants it has been observed that there is chequered history of complaints, criminal cases and litigation between the appellants and officials of the excise department including Nadeem Jafri. On account thereof, false implication of the appellants at the instance of the officials of the Excise department cannot be ruled out.
21. The upshot of the above discussion is that the prosecution has failed to bring home the guilt of the appellants. Consequently, we acquit the appellants of all the charges by extending them benefit of doubt. Criminal Appeal No.973 of 2007 is accepted, conviction and sentences awarded to the appellants by the learned trial Court are hereby set aside.