Kh. Muhammad Sharif, C.J.--This judgment will dispose of Crl. Appeal No, 51 (ATA) of 2006, filed by Hamid Mahmood appellant and Crl. Appeal No, 52 (ATA) of 2006, filed by Muhammad Irfan appellant, who were convicted and sentenced by learned Judge, Anti-Terrorism Court, Bahawalpur, vide impugned judgment dated 16.11.2006 as under:-- Hamid Mehmood.
Under Section 365-A/34 PPC imprisonment for life with forfeiture of entire property.
Under Section 302-B/34 PPC death sentence and to pay an amount of Rs, 1,00,000/- to the legal heirs of the deceased as compensation in default whereof further six months S.I.
Under Section 7-A of ATA read with Section 34 PPC Death sentence and to pay an amount of Rs, 1,00,000/- as fine in default whereof further six months R.I.
Muhammad Irfan Under Section 365-A/34 PPC imprisonment for ,life with forfeiture of entire property.
Under Section 302-B/34 PPC imprisonment for life and to pay an amount of Rs, 1,00,000/- to the legal heirs of the deceased as compensation in default whereof further six months S.I.
Under Section 7-A of ATA read with Section 34 PPC imprisonment for life and to pay an amount of Rs, 1,00,000/- as fine in default whereof further six months S.I.
All the sentences were ordered to run concurrently with benefit of Section 382-B Cr.P.C.
2. Murder Reference No, 11 of 2006 for confirmation of death sentence of Hamid Mahmood appellant or otherwise shall also be replied through this single judgment.
3. Brief facts of the case, as narrated by Mazhar Ali Azhar complainant through written complaint Ex.PC, are that on 19.10.2004 at about 7:20 p.m. he proceeded to the neighboring mosque to offer his `Esha' Prayer and `Traveeh'. His minor son Ali Raza, aged about 10 years, also followed him. After completion of prayer he (complainant) returned to his house at about 9:00 p.m. but did not find Ali Raza present there. On inquiry his family members disclosed that Ali Raza had followed him while he was going towards the Mosque. The complainant then carried out search of his minor boy in the neighboring arrears, but whereabouts of the boy could not be traced. He therefore, submitted a written application Ex.PC to the Police of Police Station City Chishtian showing his strong suspicion that his son Ali Raza might have been abducted for commission of un-natural offence or for murder.
4. The investigation of this case was taken over by Ghulam Murtaza Inspector/SHO Police Station City Chishtian. He inspected the place of occurrence and prepared un-scaled site-plan Ex.PB, recorded the statements of the PWs. During the inspection of place of occurrence at about 10:59 p.m. mobile phone of the complainant indicated a incoming calls from telephone number 0631- 79531 wherein Ali Raza was claimed to have been abducted and the complainant was asked to pay an amount of Rs, 10,00,000/-(Ten lac) for his release at Railway Crossing Sugar Mills Road, Chishtian. In view of the situation the section of law was substituted as 365-A PPC and 7 of ATA, 1997. The said Investigating Officer at 12:30 (mid night) made surveillance in the area of railway crossing in plain clothes bit no-body came there. Meanwhile witnesses Muhammad Shahzad Afzal PW-4 and Muhammad Arshad (not produced) joined the investigation and stated that on 19.10.2004 while they were passing through `Baldia Colony', Chishtian they happened to see Ali Raza abductee (now deceased) in the company of Hamed Mahmood and Muhammad Irfan accused on a motorcycle. On 20.10.2004 at about 9:45 a.m. police received information from principal Degree College Chishtian that a dead body of a boy of aged 10/11 years was lying in the plot of the said college. On this information PW-15 Ghulam Murtaza Inspector informed the complainant and rushed to spot. The complainant along with witnesses also rushed there and identified the dead body as the dead body of his minor boy Ali Raza. The boy was looking to have been murdered by strangulating his neck through his shirt. The Investigating Officer prepared un scaled site-plan of place of recovery of dead body Ex.PX, prepared injury statement Ex.PA/3, inquest report Ex.PA/4 and sent the dead body to THQ Hospital Chishtian for post-mortem examination. PW-1 Dr. Tariq Javaid conducted post-mortem examination on dead body and issued postmortem report Ex.PA and opined, the cause of death of the boy as strangulation of neck. The Investigating Officer also secured moulds of foot prints of two persons i,e, one person bare footed and other with shoes from near the place where dead body of deceased was found and took same in to possession vide recovery memo. Ex.PD. Then Investigating Officer traced Telephone Number 0631-79531 where from the complainant had received call for payment of ransom money and it was found a number of PCO of Bahawalnagar owned by Muhammad Jameel and Abdul Qayyum. In their statements the said witnesses stated that on 19.10.2004 at about 11:00 p.m. Hamid Mahmood accused had used their PCO and on his request he was provided privacy. The Investigating Officer carried out search of accused persons, then it revealed that on 26.10.2004 the said two persons appeared at the Dera of Haji Tahir Mahmood (local MPA) in the presence of Muhammad Saeed Jatt, where the said accused confessed to have abducted Ali Raza for the purpose of ransom and then murdered him.
5. The Investigating Officer arrested the accused and on 30.10.2004 PW-12 Haji Iftikhar Ali produced a Motorcycle No, 8658/BNF P-8 (then used by the accused for transporting the victim) photo copy of registration book P-9 and rent register P-10 were taken into possession vide recovery memo.
Ex.PH and accused Hamid Mahmood got recovered golden locket P-1 and wrist watch P-2 (belonging to deceased Ali Raza) and same was taken into possession vide memo. Ex.PJ. The accused also got recovered a pistol .30 bore P-11, two magazines P-12/1-2 and five live rounds P- 13/1-5 which were taken into possession vide memo. Ex.PK. The identification parade was also held by Police to identify the foot prints of two accused. PW-17 Noor Ahmad tracker (Khoji) is shown to have identified the foot prints of the accused in the identification parade being conducted by PW- 16 Mr. Zakaullah Bajwa Magistrate. On receipt of identification proceedings, accused was sent to judicial lock up and after completion formal investigation challan was submitted to the learned trial Court.
5. At the trial, prosecution in order to prove its case produced seventeen witnesses in all. Thereafter learned PP after the daring in evidence report of Chemical Examiner Ex.PZ closed the prosecution evidence, then statements of accused under Section 342 Cr.P.C. were recorded in which they pleaded their innocence. However, after conclusion of trial the appellants were convicted and sentenced as stated above by the learned trial Court.
6. After having read the entire prosecution evidence, statements of accused recorded under Section 342 Cr.P.C. and other material available on record learned counsel for the appellant namely Hamid Mahmood in support of this appeal submits that it is a case of no evidence; that no-body was named in FIR; that there is extra judicial confession in this case; that it is a case of last seen evidence; that this case is politically motivated with three divergent versions; that according to FIR there is no mention of telephone number of complainant mobile on which he had received telephone call from appellant; that no ransom was given to the accused person; that prosecution witness of alleged PCO was not owner of PCO; that appellant had divorced his first wife who was working in house of a very famous man at Lahore; that in fact son of Muhammad Akbar Wains MNA was married at Lahore in the house of said famous man and this fact has been mentioned by the DPO in his Press Conference; that on 23.10.2004 RPO had written a letter to DPO concerned that how this blind murder had taken place; that DPO while making Press Conference did not mention the fact that in the morning the appellants had allegedly made extra judicial confession before Muhammad Tahir Mahmood Late MPA PW-8; that in fact the appellant had divorced his first wife who was working in the house of son in law of Muhammad Akbar Wains MNA and said lady manoeuvred this false case got registered by the influence of Muhammad Akbar Wains MNA and famous man living in Lahore; that the prosecution has proved its case against the appellant and he is entitled to acquittal.
7. Learned counsel for Muhammad Irfan submits that extra judicial confession is joint one; that it is impossible that Shehzad PW-4 along with prosecution witnesses had seen the appellant along with co-accused and the abductee; that prosecution has failed to prove its case against the appellant and he is entitled to acquittal.
8. Learned DDPP assisted by learned counsel for the complainant submits that it was not a case of joint extra judicial confession. He has relied upon 2007 SD 361 and submits that all the prosecution witnesses except the complainant are not related intense. Learned counsel has referred the statement of Haji Iftikhar PW-12 who .gave the motorcycle on rent to Hamid Mahmood accused on 19.10.2004 at 3/4.00 p.m. and he knew Hamid Mahmood appellant from his childhood; that in the brief facts of inquest report the evidence which was collected by the Investigating Officer till that time was evidence of last seen and evidence of making telephone calls by Hamid Mahmood appellant to the complainant; that prosecution has proved its case against the appellants beyond any shadow of doubts and the appeals filed by the appellants are liable to be dismissed.
9. We have heard learned counsel for parties at very great length. In the instant case the FIR was registered on the statement of Mazhar Ali Azhar on 19.10.2004 at 10:05 p.m. about an occurrence which took place on the same day at 7:20 p.m. for kidnapping his son Ali Raza aged 10 years. We may state here that in cases of dacoity, robbery and kidnapping for ransom names of accused are not mentioned and their names only come on record after the investigation. This is a case of circumstantial evidence. There is evidence of last seen, extra judicial confession and recovery of articles belonging to deceased and motorcycle which was taken on rent by Hamid Mahmood appellant. The press conference of DPO which has been produced by defence itself and all the telephone record of PCO from where telephone calls were made by Hamid Mahrnood to the complainant is available on record. Then there is an evidence which has come on record from the mouth of Muhammad Shehzad Afzal PW-4. 11e had seen on 19.10.2004 when he was accompanying with Muhammad Arshad given up PW-, at 8:00 p.m., Hamid Mahmood and Muhammad Irfan appellants in the company of Ali Raza on the motorcycle while Ali Raza was sitting between both of them. He was thoroughly examined. He has no animus against the appellants and he is not related to the complainant party. His evidence is up to the standard. Then there is evidence of Muhammad Tahir Mahmood late MPA. According to his statement on 26.10.2004 both the appellants came at his Dera and one after the other they made their extra judicial confession in which they had confessed to have committed the murder of deceased. Learned counsel for the appellants laid much stress that it is a joint extra judicial confession. We have gone through the statement of Muhammad Tahir Mahmood PW-8, according to which it is not a joint extra judicial confession because first of all Hamid Mahmood accused made extra judicial confession and thereafter Muhammad Irfan accused made extra judicial confession who repeated the same story which was narrated by Hamid Mahmood appellant and thereafter both the appellants were apprehended.
Muhammad Tahir PW-8 is not related to complainant and there is no reason to disbelieve his evidence. Then there is evidence of Abdul Qayyum PW-6 who stated that he was operating PCO of one Shabbir (not produced) and on the same night when he was going to home at about 10:45 one Sheikh Hameed came to his PCO for making telephone call and at about 11:00 p.m. Hamid Mahmood appellant also came to PCO and asked to make a private telephone call and privacy was provided to him and he made telephone calls to complainant on his mobile bearing No, 0300- 6980093. There are three calls which were made on 19.10.2004. The time of calls is 10.56, 10.59 and 11.00 p.m. and same were made from PCO No, 79531. In this regard prosecution also produced Nazar Hussain PW-13 Revenue Officer, Bahawalpur who brought the record of PTCL Telephone No, 59531 (PCO) installed at Bahawali Chowk Bahawalnagar for month of October, 2004 when the occurrence had taken place. Then there is a evidence of Haji Iftikhar Ali PW-12, he stated before learned trial Court that on 19.10.2004 at 4:45 p.m. Hamid Mahmood accused who was known to him from his childhood took, the motorcycle bearing No, 8658 on rent and thereafter returned the same on the same night. His name is mentioned in the register which was produced by him before police along with registration book of motorcycle. Muhammad Javaid Iqbal PW-5 identified the dead body of Ali Raza deceased in whose presence police took into possession a pair of sleeper P-4/1-2 of deceased vide recovery memo. Ex.PF. He is also the recovery witness of chain, Locket -of Ali Raza, wrist watch, pistol, handkerchief, Identity card and service card. We would like to refer to the Press Conference of DPO. The relevant portion is reproduced for the just decision of this case which is as under :- {{URDU TEXT}}
10. Then there is another evidence against the appellants i,e, inquest report. We have gone through the brief facts of inquest report with the assistance of learned counsel for the parties. The Investigating Officer at the time of preparing inquest report had mentioned the names of accused persons. He had also mentioned the statements of prosecution witnesses of last seen and telephone calls which were made by appellants on 19.10.2004 from the PCO owned by Abdul Qayyum PW-6. Learned counsel for the complainant had relied upon 2007 SD 361 and submits that in the said case the extra judicial confession was the same and it was held by their lordships when two accused are present together and made their extra judicial confession one after the other, it cannot be termed as joint extra judicial confession. As far as contention of learned counsel for appellants that no ransom was paid to the appellants is concerned, we may state here that payment of ransom does not matter and when the ransom is demanded, offence under Section 365-A PPC is applicable. The contention of learned counsel for the appellants that Hamid Mahmood appellant had divorced his first wife and she was working in the house of a very famous man and son of Muhammad Akbar Wains MNA was married in that house and she manoeuvred to get a false case registered through the influence of said man. We may state here that it is impossible that how on the asking of a female working in the house she manoeuvred to get the case registered against her ex-husband.
11. After having heard learned counsel for the parties and going through the evidence on record we may state here that it is correct that it is a case of circumstantial evidence but we are of the view that every link of the circumstantial evidence is linked with each other and it has come on record that the appellants had committed the murder of a innocent minor boy. In this view of the matter, the prosecution has proved its case against the appellants beyond any shadow of doubt therefore, both the appeals fail and are hereby dismissed. The convictions and the sentences recorded by learned trial Court vide impugned judgment are maintained in toto. The death sentence awarded to Hamid Mahmood appellant is CONFIRMED and Murder Reference is answered in the AFFIRMATIVE.