' DOST MUHAMMAD KHAN, J.--- Appellants (1) Shahid Shahzad (2) Sohail Ahmad and (3) Adil Shahzad were handed down death penalty on three counts each for crime under section 302(b), P.P.C. They were awarded rigorous imprisonment for three years plus fine of Rs,10,000 each for crime under section 452, P.P.C. And four years imprisonment plus fine of Rs,10,000 each for crime under section 387, P.P.C. By the learned Additional Sessions Judge/Judge, Special Court, Peshawar vide impugned judgment, dated 21-4-2005. They were also directed to pay Rs,50,000 each to the L.Rs, of each deceased, however, benefit of section 382-B, Cr.P.C. Was given to them. This single judgment shall also decide the connected Criminal Appeal No,282 of 2005 titled "Sohail Ahmad v.
The State and others" and Criminal Appeal No,292 of 2005 titled "Adil Shahzad v. The State and others" because questions of law and facts in all the three are identical and because all the three have arisen out of the same judgment.
' Arguments of the learned counsel for the parties heard in considerable detail and evidence/materials placed on record were minutely scrutinized.
2. According to the Murasila report Exh.P.A./1, lodged by Asif Pervez (P.W.2) inside the crime house and taken down by Muhammad Kamal, S.H.O. (P.W.16), the first informant, reported the crime regarding the murder of (1) Samir Zia alias Sunny (2) Imran Riaz and (3) Jangrez, who according to him were done to death in mysterious circumstances by unknown culprits at unknown time on 24- 7-2003 in the crime house situate in Rashid Town within the jurisdiction of Police Station Gulbahar, Peshawar. The report was lodged on the same date at 2300 hours. The complainant was informed about the tragedy by his nephew, namely, Javed and on his arrival, to the crime house, he found the three dead bodies. On the basis of this report, the crime was registered vide No,582 in Police Station Gulbahar under sections 302/ 449/34, P.P.C. Read with Article 14(4) and sections 6/7 of the Anti-Terrorism Act. As the immediate cause for the crime and the culprits were unknown, which made the same a perplexed puzzle for the local police.
3. The District Chief of the Police, it is alleged, confronted with such mysterious crime thus, constituted a team for investigation into it. The investigative team in a desperate search for the culprits, arrested/detained and intensively interrogated many suspects in quick succession. In this wild hunting game, they ultimately laid hands first on appellant Shahid Shahzad showing his arrest on 3-9-2003, whose police custody was obtained and on 9th September, 2003, he made confession Exh.P.Q./1 before the Magistrate. The next person netted was Adil Shahzad, whose arrest is shown on 5-9-2003. His custody was obtained and he too made a confession before the Magistrate on 11-9-2003. The last one, namely, Sohail Ahmad was arrested on 17-9-2003, who also made confession on 23-9-2003.
4. From the crime spot through recovery memos. Exhs.P.C. P.C./1 and P.C./2, blood was secured from three places where, the dead bodies were, lying. Through memo. Exh.P.C./3, 14 pieces of rope Exh.P.4 were secured. Similarly through memo. Exh.P.C./4, 21 yards plastic pipe was secured from near the dead body of Jangrez, deceased. The vomited stuff of Imran Riaz containing blood was secured vide memo. Exh.P.C./5 while through memo. Exh.P.C./6 from near the dead body of Samir Zia alias Sunny, 430 live cartridges of 7.62 bore, one cartridge of .12 bore, one magazine of kalashnikov and one of .222 bore Exhs.P.C./6 to P.C./9 were secured. The recovery memo. Exh.P.C./7 is about a kalashnikov Exh.P.10 with empty magazine Exh.P.11, which was taken into possession from the guard room. The clothes of the deceased were secured through memo. Exh.P.C./8. Through memo.
Exh.P.T./11, 200 U.K. Pounds were taken into possession, which were allegedly given to Muhammad Yasin. This memo. Is dated 20-9-2003 while through memo. Exh.P.T./9 at the pointation of Sohail Ahmad, accused the alleged cellular phone of the deceased Samir Zia alias Sunny Exh.P.22 was recovered from the shop of Sanaullah at Hall 'Road, Lahore, to whom it was allegedly sold by the accused. The memo. Is dated 20-9-2003. Sohail Ahmad, appellant has allegedly pointed out his place and that of his accomplices at the time of crime inside the crime house and memo. To that effect is Exh.P.T./6. On 21-9-2003, the same appellant led the police party and pointed out Motor Car No,8264-LOZ in which the appellants had gone to the crime house. The same was taken into possession vide memo. Exh.P.T./4. The same appellant led the police party to different places where the dagger and crime pistols were thrown/concealed but none was found, the memo. Is Exh.P.T./2 while an amount of Rs,1,00,000, the alleged stolen money, was recovered from one Waheedullah running money changing business, recovery memo. Exh.P.T./1. Through recovery memo. Exh.P.N./2, appellant Adil Shahzad while in custody pointed out his own place and that of his accomplices at the time of commission of crime. This memo. Is dated 7-9-2003 while another memo. Exh.P.N./1 with regard to the same effect was prepared on the pointation of Shahid Shahzad, appellant.
5. Through memo. Exh.P.N., on the pointation of appellant Adil Shahzad, an amount of Rs,50,000 Exh.P.24 was recovered from Muhammad Ashraf, Jeweller Jewellery Market, Charsadda, allegedly given to him by the said accused out of the looted money for the purchase of Jewellery. Appellant Shahid Shahzad pointed out motor car "Honda" used in the commission of the crime which was secured from Khyber Rent-A-Car situated in Cantonment Plaza, Peshawar. One Faisal Ali Baluch, a suspect for the crime, was also arrested, who was produced before the Illaqa Magistrate on 15-8- 2003 for recording his confession, but on refusal, he was sent to judicial lock-up, however, the record is not clear as to when he was exonerated and how he was let free from the judicial lock-up.
The kalashnikov recovered was unlicensed, for which deceased Samir Zia alias Sunny was booked but being dead, prosecution stood abated against him.
6. During the course of interrogation of the appellants, Anis Javed and Arif Javed, the first cousins of deceased Samir Zia alias Sunny, were implicated equal partners in the crime thus, they were arrayed as accused. Anis Javed was arrested and after interrogation he was let free in a clandestine way whereafter, both of them have absconded and are still absconders.
7. All the three dead bodies were subjected to autopsy. Dr. Muhammad Aqeel (P. W.14) performed autopsy on the dead body of Samir Zia alias Sunny and found one entry wound measuring 0.5 c.m.
With surrounding blackening on the right side of head. In cross-examination he stated that except the solitary fire-arm injury, no other injury or mark of violence was observed on the deceased.
8. Dr. Muhammad Adil Jan (P. W.15) conducted autopsy on the dead body of Jangrez "Chowkidar" and found a ligature mark around his neck measuring 23 x 3 c.m. With a protruded tongue.
Surprisingly the M.O. Found a group of 4 stab wounds each 3 x 1 c.m. Above the right eyebrow and another group of stab wounds on the left side of forehead each 3 x 2 c.m. Dr. Muhammad Aslam (P.W.6) conducted autopsy on the dead body of Imran Riaz and found a solitary fire-arm inlet wound on left side of the skull 0.5 c.m. It deserves to mention here that in the case of Samir Zia alias Sunny and Imran Riaz, one bullet from each was recovered which were handed over to the police.
9. At the close of investigation, charge-sheet was filed against the appellants in the trial Court where the prosecution examined 28 witnesses in all while Fazle Akbar, D.F.C. Was examined as S.W.1 who searched for absconding accused but were reported to have absconded.
10. At the very outset, learned counsel for the parties frankly conceded that the crime in question is an unseen one which has taken place at night time inside the house of deceased Samir Zia alias Sunny behind closed doors and the entire prosecution case is based on the following pieces of evidence:---
(i) Confessional statements of the appellants;
(ii) the recovery/discovery of alleged incriminating articles, some on the pointation of the appellants;
(iii) medical evidence;
(iv) the three-fold motives for the crime.
11. Barrister Zahur-ul-Haq, learned counsel for the defence invited our attention to the statement of Amir Khan (P.W.21), ex-servant of the deceased Samir Zia alias Sunny. He stated that the police suspecting his involvement in the crime thus, was arrested on or after the night of occurrence at about 3-00 or 4-00 a.m. And was kept in the dungeon cell of C.I.A. Police wherefrom, he was brought to Police Station East Cantt. On his arrival there, he noticed accused Shahid Shahzad in the lock-up of the police station. He further stated that after his arrest, he was detained in the lock-up of Police Station Faqir Abad for two nights and was then taken back to the C.I.A. Dungeon cell where, he was detained for many days. He could not say as to whether appellant Shahid Shahzad was tortured by the police of Police Station Cantt. Any how, according to him the appellant was apparently disturbed. He disclosed that he was arrested from Faisalabad by Aziz Khan, D.S.P. And Rashid Khan, S.-I. And that he saw the father of Samir Zia alias Sunny deceased in Police Station Gulbahar talking to the police. He has further stated that he was tortured/beaten by the police and his children and wife were also brought to the C.I.A. Dungeon cell and that he was extended dire threats that in case he did not disclose the true facts, he would be implicated in the instant case.
He has also deposed that after remaining in illegal custody of the police for some days, he was lodged in Central Jail, Peshawar and that his wife was also beaten by the police to extract confessional statement from her and that in the process of beating his wife, the police also injured his minor kid. He further stated that after he saw Shahid Shahzad, accused in police station lock-up on the third day thereafter, he was produced by the police before the Magistrate with an inducing promise that on giving tutored statement as desired by them (police), he would be released.
12. After extracting the desired statement from him, it was made a foundation albeit fallacious for structuring a false theory thereon thus, the defence counsel pointed out that investigations from the very inception were extremely dishonest and being unseen crime, many persons having either acquaintance or those having grudge against deceased Samir Zia alias Sunny were suspected by the police and ultimately when ,the statement of Amir Khan (P.W.21) was procured through coercive and third degree methods then, the investigative staff turned its guns towards the appellants enroping them in the present case, therefore, he argued, that the confessional statements of the appellants must be seen in the above background and because it was sensitive case which was given wide publicity by the print media hence, much care and caution is required in the appraisal of evidence which was least observed by the learned trial Court without realizing that necks of three innocent persons were involved. He also argued that the confessional statements and the medical evidence are not only inconsistent but are selfclashing/self- destructive which must have a fatal bearing on the true and voluntary nature of the confessions and because confession of Sohail Ahmad, accused drops a hint that deceased Samir Zia alias Sunny was maintaining illicit relations with the sister of absconding accused Anis Javed and that she was abducted by him on her wedding night but was returned on persuasion of the elders of the area and that the deceased was still compelling her to get divorce from her husband and to marry him besides the deceased had also raped the daughter of his guard (Chowkidar), namely, Amir Khan.
13. On record, the arrest of appellant Shahid Shahzad is shown on 3-9-2003 while P.W. Amir Khan's categorical statement has confirmed his arrest on or the second night of occurrence. He has testified as an eye-witness to the illegal arrest and detention of Shahid Shahzad. The occurrence has taken place on 24-7-2003 at unknown time but most probably in the night thus, an inescapable conclusion would be that appellant Shahid Shahzad was arrested in the night on 25/26-7-2003. The illegal arrest and detention for more than a month of the appellant has been dishonestly suppressed by the prosecution. Here a begging question looks askance arises that after going through the ordeals of ruthless interrogation while kept in illegal detention, nothing was extracted from him otherwise, he would have been surely produced before the Magistrate for recording his confession or at least he might have been taken to the so-called locations of the recovered articles but the entire record is absolutely silent and judicial mind remains seriously disturbed with regard to this episode. When Amir Khan (P.W.21) was examined at the trial and he made this shocking disclosure, a single effort was not made by the prosecution requesting the trial Court for declaring him as a hostile witness nor requested for permission to re-examine him thus, in our view, what he has deposed on oath on the face of prosecution, was accepted true by it without any reservation or exception. In our view, this being the most crucial point from where the Court has to take the first step towards the appraisal of the evidence including the confession of the appellants because it is well-settled principle that once it is established that investigation conducted was dishonest or unfair, the Court must be on guard and shall exercise extraordinary care and caution so that it might not be deliberately taken to a wrong conclusion due to misleading tactics of the prosecution.
' After making deep scrutiny of the evidence/materials on record, the indefeasible inference is that this tragic incident being an unseen crime became a challenging task for the police and because of the level of pressure exerted by the higher hierarchy including the I.-G.P., the investigative staff thus, indulged in third degree tactics hunting each and every one upon whom suspicion, however, slight that might be fell. In this way illegal arrests were made and many suspects were detained without the sanction of law and Court, however, the way the appellant Shahid Shahzad was grilled and was given gruesome treatment is simply horrifying and in this background, his confession which is substantially self-exculpative, was procured but bereft of legal worth is deficient to carry conviction on a capital charge. He has admitted only subordinate facts to the main crime and has excluded his role altogether in the main crime. His confession is almost a copy of his statement under section 161, Cr.P.C. Barring few omissions. It consists of 8 pages and contains so much minute details which, a man of high calibre would not be able to recapitulate after passing of a long time and that too under considerable stress and strain. The confession also reveals that the deceased Samir Zia alias Sunny was a young man of questionable character, had sexually assaulted women and girls of respectable families thus, had earned many enemies for himself. In any case, the confession does not fulfil the acid test of being voluntary and true as apparently it was extracted from him after going through the ordeals of illegal arrest and detention for longer duration besides substantially self-exculpative. Another aspect, a glaring one is that, while by-passing the Illaqa Magistrate, deliberately, his confession was procured through Duty Magistrate and no reason has been given for this departure from established practice.
14. The way, the confession of Shahid Shahzad, appellant was obtained/procured through illegal means then, it would be highly unsafe to rely on the rest of confessions of the two appellants because they in probabilities have had the same ruthless treatment at the hands of the police like Shahid Shahzad, appellant. The perusal of these two confessions would show that substantially a different story has been introduced with a startling disclosure that Anis Javed, absconding accused had his own axe to grind because the deceased Samir Zia alias Sunny had established illicit relations with his sister, namely "Gurrya" (doll) and the deceased also abducted her on the night of her wedding with another person but was returned under the pressure of the local elders and that the deceased was still pressing her very hard to get divorce from her husband and to marry him. This fact, a telling one, would show that the motive for the crime, a grave one, lay with Anis Javed, accused. After his arrest and detention by the police and then letting him loose has remained an unresolved and unchasable mystery. The third person in the line having similar motive was the ex-Chowkidar of the deceased Samir Zia alias Sunny, whose daughter was raped by him and he too was after his life. From the above established facts on record, we have found the prosecution setting up one motive and then jumping to another one and so on and so forth.
16. Sohail Ahmad, appellant has stated in his alleged confession that for accomplishing the job of robbing off deceased Samir Zia alias Sunny, assistance of another person was also required because of the armed guard always present in his house thus, services of Adil Shahzad, appellant, his maternal-uncle, were hired. It is further stated that pistol with a fitted silencer was needed and for that his cousin, namely, Abbas was deputed who purchased it for Rs,3,300. Here, the main link in the chain is absolutely missing because neither the said Abbas was arrested/traced out nor the person from whom the pistol was purchased, was interrogated thus, this important aspect of the story is shrouded in mystery. All the three appellants have planned for depriving Samir Zia alias Sunny, deceased of his money and for that they went in a car which was got on rent. They visited the deceased Samir Zia alias Sunny's house but were told that he was not there thus, Shahid Shahzad, appellant informed the deceased Samir Zia alias Sunny through phone from a nearby PCO, upon which he came to his house. From which PCO the call was made is a muffled face till date thus, due to another missing link the chain stands broken:
17. According to the confession when deceased Samir Zia alias Sunny was forced to hand over money or bank cheque, they were told by the deceased that he has not a single penny in his bank account. Here a big question mark poses fatal consequences is that when the deceased was having no money in the bank account, how he kept handsome amount of Rs,2,50,000 and U.K.
Pound Sterling 1200 in his house/pocket. From whom the Pounds Sterling were obtained by the deceased besides the Pakistani currency amounting to Rs,2,50,000 plus Rs,7,000 is equally a matter of serious debate.
' What is muic intriguing in the confession is that, the deceased gunman and Imran Riaz both were sent' for bringing meal while the job could be done by a single person but leaving apart this aspect, it is the case of the prosecution that both returned with meal, however, when the first Investigating Officer visited the crime house, no dish and no meal was found in the crime house or around the scene of crime. The fact is enough to demolish the genuineness of the confession and is a big question mark for which the prosecution has no plausible answer to give. The money changer, namely Gul Marjan, who was called on phone by Samir Zia alias Sunny deceased to give him some dollars, who refused to accede to the request because deceased was having no money in his account with him. When Gul Marjan was examined as (P.W.23), he in his examination-in-chief disclosed that father of deceased Samir. Zia alias Sunny used to deal in the sale and purchase of dollars with him and that one noon Samir Zia alias Sunny deceased had rung him at his shop telling him that he was in need of money but he refused because he was not used to advancing money on phone. According to the consistent stance of the prosecution, the crime took place at night time and phone call was made to the money changer at that very time but Gul Marjan has shown it a noon time. Here the story gets a sharp twist because according to the complainant at noon time he had seen a green colour car in the crime house of deceased Samir Zia alias Sunny while according to the three confessional statements of the appellants, they visited the crime house at night time. The clash between the two statements is drastically irreconcilable and is fatal to the prosecution case.
A bare perusal of all the three confessional statements of the appellants would show that these were self-clashing and self- G contradictory on crucial aspects. Indeed the same were more like a blame game between the three, one involving the other by giving selfexculpative statement while the other attributing the crime to the opponent exonerating himself of the principal crime. The inconsistency between the three confessional statements is more than sufficient reason to make the same of doubtful credentials.
' The combined study of the three confessional statements and other relevant evidence connected therewith render the entire story I untrue and unbelievable. In the case of Rashid Ali Khan and another v. The State 1992 PCr.LJ 1320 it was held that when there is a choice to accept the statement of one or the other witness, re-benefit of doubt must go to accused. Almost similar view was taken by the Honourable Supreme Court in the case of Sikandar v. The State PLD 1963 SC 17.
18. Leaving apart the above serious infirmities in the evidence/ confessional statements, the unrebuttable fact is that the appellants were detained without lawful authority for a longer duration and even if the false date of their arrest shown by the police is taken to be correct, their confessions were recorded on 6th day of their arrest and that too when they had at the earliest cooperated with the police as at their instance the alleged recoveries were made and if they were so diluted and willing to confess, why they were not produced at the earliest for recording their confessions. True that delay per se in recording confession of an accused cannot be held fatal but in the facts and circumstances of the present case, the delay in recording the confessions is more than fatal for the prosecution. Reliance in this regard may be placed on the view taken by the Honourable Supreme Court in the case of Khalid Javed and another v. The State 2003 SCMR 1449.
19. It is also an admitted fact that this tragic incident got a front page space in all the print media thus, getting publicity at a large scale which fact forced the investigation agency to show progress in the case by employing dirty tactics. In the case of Syed Saeed Muhammad Shah and another v.
The State 1993 SCM R 550 the apex Court held a view that a case which receives extraordinary publicity then, evidence in such case must be scrutinized deeply and with extra-degree of care and caution. Moreover, all the three appellants have retracted the confessional statements and because in the peculiar circumstances very K strong corroboratory evidence was required to reinforce or augment the same which is missing in the case.
20. The prosecution has initially set up a motive reflected in the so-called confessions of the appellants to the effect that the appellants wanted to loot the money of the deceased Samir Zia alias Sunny but in the next breath it set up another motive implicating Anis Javed and his brother as their sister was raped by the deceased Samir Zia alias Sunny and was abducted on the night of her wedding which is more grave and impulsive in nature. The matter does not end here as the third motive set up for the crime is that the deceased was of a questionable character and he had also raped the daughter of "Ex-Chowkidar", whose blood was equally boiling with element of revenge thus, we have found the prosecution setting up one motive relating to one set of the accused and then jumping over it and laying hand on another thus, the so-called confession do not get corroboratory support from the consistently inconsistent motives set up by the prosecution.
21. The next item of evidence is the medical reports. According to the prosecution story, the deceased were tied with ropes before they were done to death but the Medical Officers who conducted autopsy on the dead bodies did not find rope prints/marks thereon. Another aspect most disturbing in nature is that Jangrez's (Chowkidar) death was due to strangulation but in one of the confession it was stated that one kitchen knife blow was given by one of the appellant while the other one stated that the deceased's throat was also cut with the knife. In sharp contrast, the Medical Officer has found two groups of stab wounds each one of 4 wounds and no knife cut was found on the throat of this deceased thus, in our view, the medical evidence too is of no help to the prosecution.
22. Now we will deal with the next piece of evidence which relates to the recoveries/discoveries effected at the instance of the appellants. The pointation of the scene of crime by the appellants does not fall within the definition of discovery and in no manner fulfils the requirements of Article 40 of the Qanun-e-Shahadat Order, 1984. The recovery of an empty, live bullets of 7.62 bore along with a kalashnikov rifle and cartridges of .222 bore and one of .12 bore cannot be held to be incriminating recovery because according to the prosecution no such weapon was used in the commission of the crime rather this fact cuts the prosecution story from its roots level suggesting that the occurrence has taken place entirely in a different manner and has been committed by different persons who were armed with such weapons and not the .30 bore pistol attributed to the appellants.
23. Neither the crime pistol was recovered nor the magazine of the rifle ass well as the SIM of the cellular phone of the deceased at the instance of the appellants which would have created some nexus between the appellants and the crime.
24. We are now left with three different recoveries which require deep thought and consideration.
The recovery of some amount in the shape of local currency from two different places at the instance of the appellants is highly doubtful because the father of the deceased Samir Zia alias Sunny reached Peshawar on the third day of the occurrence who was supposed to know that how much amount the deceased was having with him but he did not state before the police in his statement under section 161, Cr.P.C. About the missing of money both in the shape of local currency and sterling pounds albeit every nook and corner of the crime house was searched by the police at five different occasions. How and from where the deceased Samir Zia alias Sunny got the money and kept in his house is another begging question which has received no answer thus, this aspect of the story appears to be a concocted one moreso, when the witnesses connected therewith have direct nexus with the father of deceased Samir Zia alias Sunny hence, the same cannot be safely relied upon particularly, when it is not fairly established that the recovered money was got identified through some witness showing that it was with the deceased Samir Zia alias Sunny at the fateful time. In the case of Sultan v. The State 1972 PCr.LJ 435 it was held that such recoveries are not sufficient to carry conviction on a charge entailing death penalty.
25. The next item of evidence relied upon by the prosecution is the "Honda" car which was allegedly used by the appellants for going to the crime house and that was obtained by them on rent from Khyber Rent-A-Car Peshawar. The owner of the Rent-A-Car service, namely, Haji Asif (P.W.5) was examined at the trial, who in unequivocal words stated in examination-in-chief that it was the police party which visited his show room and on its instance he took the car Exh.P.1 from his show room to the CIA Headquarter, Peshawar. This statement completely falsifies the Investigating Officer plea that the motor car was recovered at the instance of one of the appellants which was found parked in Khyber Rent-A-Car show room. This witness has further stated that he is illiterate and the receipt Exh.P.Z. Which too was a photo copy was not in his handwriting. It is established practice of Rent-A-Car services that whenever a person rents a car then, his full particulars with address and copy of identity card are obtained and pasted on the register maintained by the owner which is not the case in hand. Again one of the prosecution witnesses stated that the car was of green colour while the other has shown its colour as golden. In any case, the dishonesty committed in fabricating this piece of evidence by the police has shattered the confidence of the Court and it would be highly unsafe to rely upon such a planted recovery. In the case of Muhammad Mustafa v. The State 1992 ALD 362 it was held that mere plantation of pistol falsely against the accused is sufficient to discard the entire evidence of the prosecution thus, we have no hesitation in discarding this piece of evidence.
26. The next piece of evidence relied upon is the cellular phone of the deceased Samir Zia alias Sunny which was taken away by the appellants. According to the prosecution, the cellular phone was sold out at Lahore and was recovered from the purchaser shop. One Faiz Ahmad Gulshan, S.-I.
Police Station Qilla Gujar Singh, Lahore appeared as (P.W.25) and in cross-examination stated that the recovery was effected on 20-9-2003 while the recovery memo. Exh.P.T./7 prepared at the instance of Sohail Ahmad, appellant is dated 22-9-2003. Here, a question arises as to what evidence was led to show that the recovered cellular phone was the p operty of the deceased Samir Zia alias Sunny because no receipt or any other document was furnished to create a link between the two. The father of deceased Samir Zia alias Sunny at a later stage had produced an empty box of the cellular phone but it cannot be relied upon as the same could be easily managed from the open market. In any case it was not sufficient proof to tag the two with each other.
Another aspect, an intriguing one, is that Sohail Ahmad, appellant stayed at Lahore Hotel and other places at different occasions as per his confession but neither the Guest Registers of the Hotel were taken into possession nor anyone was examined from the staff to prove this aspect beyond reasonable doubts. Peshawar is the biggest market of cellular phone business. The snatched mobile phones are invariably sold in "Bara Market famous for smuggled goods and availability of such stolen articles". There appears no sense in the story that the appellant might have taken that much of trouble taking the cellular phone to Lahore. It is also not less than intriguing that after purchase three months thereafter the cellular phone was lying intact with the shopkeeper at Lahore and was not sold to anyone. Again, no receipt was produced given to the shopkeeper or to the appellant by the shopkeeper while effecting the transaction. The recovery of pounds sterling is equally fraught with grave doubts because under the State Bank Regulation foreign currency deposited with licensed currency changer, it must be entered in the record otherwise, it is an offence. No record was produced in this regard muchless a proper receipt.
27. It is settled principle and rule of law that once investigation is found extremely dishonest then, procuring and fabricating of evidence against accused becomes a possibility which cannot be lightly ruled out.
28. In the case of Muhammad Irshad and another v. The State 1999 SCM R 1030 the apex Court held that in a murder case evidence must come from unimpeachable source and be supported by strong circumstances which might remove inherent doubts attached to such evidence given by partisan witnesses. Similar view was expressed by the learned High Court of Lahore in the case of Jehangir Hayat v. The State PLD 1999 Lah.
285.
29. It is nobody case but of the prosecution that deceased Samir Zia alias Sunny was of a questionable character and was in the habit of bringing women of easy virtue to his house besides he had committed the detestable acts of raping girls and women and abducted one of them on the night of wedding thus, through his own misdeeds he had earned several enemies, therefore, the possibility that this tragic crime was committed in a very planned manner by a group of trained culprits cannot be ruled out.
30. In the case of Mushtaq Ahmad v. The State 1990 SCM R 405, dying declaration of the two deceased were disbelieved because one of the deceased was having the repute of questionable character due to which he had earned so many enemies and while extending benefit of doubt to the appellants the apex Court disbelieved the prosecution case and acquitted the accused.
31. Now coming to the plea raised by Syed Zafar Abbas Zaidi, Advocate learned counsel for the complainant that video snap shots were prepared during the pointation process of the different spots thus, made at the instance of the appellants is a valid piece of evidence in view of Article, 164 of the Qanun-e-Shahadat Order, 1984 but when we have already disbelieved the evidence on this score and the confessions of the three appellants, these videos are of no legal worth because admissibility of such evidence is one thing while its legal worth and judicial efficacy is entirely another aspect and when the scene of crime and other relevant facts were already in the knowledge of the local police then, pointation by the appellants of such places and articles cannot be taken into consideration. The apex Court in the case of Gulistan and others v. The State 1995 SCM R 1789 held that dishonest preparation of F.I.R. By Investigating Officer, prosecution evidence in such a case must be appreciated with care and caution. Here, in this case we have found that many items/pieces of evidence were fabricated, procured or dishonestly planted by the Investigating Officer making the entire case highly doubtful and judicial mind remains disturbed about the complicity of the appellants in the crime rather the whole story of the prosecution has been rendered absolutely unreliable.
32. Another aspect which shall not go unnoticed is that the appellants were detained in a dungeon cell of CIA Headquarter at Peshawar giving a horrifying picture all around with a full black out. They were detained there in isolation for many days without the sanction of law and permission of the Court. Such detention, in our view, was illegal and must have direct bearing on the so-called confessions attributed to the appellants.
33. The Honourable Supreme Court in the case of State v. Bashir and others PLD 1997 SC 408 has held that CIA Headquarter/post is not a police station, therefore, its staff/officers are not authorized to conduct investigation into cognizable offences. This illegal detention apart, the dungeon cell has been specially designed by the CIA and is equipped with modern gadgets of torture for interrogating hard core criminals/ terrorist/militants of high profile where staying for a short duration as an accused/suspect is a nerve breaking process. Why the appellants were not kept in Police Station Gulbahar within the jurisdiction of which the crime was committed and why they were made to shuttle from there to the CIA cell and then to Police Station East Cantt. In our view, these tactics were employed to extract confessions from the appellants through coercion, torture and fear of death. No reason muchless plausible has been given for the procedure adopted. On the question of looting of money of deceased Samir Zia alias Sunny, his character and with regard to some of the recoveries, the statement of Akbar Khan, S.-I./ Investigating Officer is more than sufficient to throw away the entire case of the prosecution.
For what has been discussed above, we are of the firm view that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubts thus, extending them benefit of doubt, all the three appellants are acquitted of the charges levelled against them. They be set at liberty forthwith if not required in any other case. All the three appeals are thus, allowed while murder reference sent by the trial Court is answered in the negative.
' These are the detailed reasons for our short order of the even date.