SHAHID ANWAR BAJWA, J. Prosecution case is that baby Sana age about 3/4 years on 3-7-2009 went missing. She was last seen by her family at 1300 hours. Muhammad Qaism, father of baby Sana went to the Police Station Zaman Town and lodged a report and it was duly recorded- in station diary. The two appellants had rented a house in the locality 13/20 days prior to the date of incident. On 5-7-2009 one girl namely Naghma/Naeema/ Reshma daughter of Abdul Karim/Abdul Rhaim stated that she saw baby Sana being carried in his lap by one of the appellants.
Consequently Mohallah persons caught hold of the appellants and interrogated them and then police was called. Upon interrogation by police the appellants disclosed that they had strangulated baby Sana from neck and after killing her they had put her dead body in a bag in a gutter near Gora Qabrustan. Appellant Noor Muhammad was taken to Police Station and appellant Bashir went with the police party to Gora Qabrustan. He showed the place to the police where he had put dead body and then he put his hand in a gutter and took out a bag. On opening the bag they found one white bag in which dead body of the victim child was found. Dead body was taken to Jinnah Hospital. The postmortem report revealed the following:-- "Tongue protruded out of mouth and is caught between teeth."
Surface wounds:--
(1) Bruise on right mandibulan region 4 CM in diameter.
(2) Bruise on forehead 2 CM in diameter.
(3) Bruise around mouth 3 CM X 1CM.
(4) Vulva found ruptured.
When the abdomen was opened and examined bowls were found protruding outside through vagina. Vaginal swa bs were taken so were clothes of the girl and along with other biological material and were sent for chemical examination. Chemical examination found presence of human sperms both on the vaginal swabs as well as on Pajama of the deceased child. Cause of death was described as "hemorrhagic shock leading to cardio pulmonary failure due to acute injury on Vulva and pouch of Douglas." It was also stated that the child had been subjected to sexual assault.
2. The two appellants were charged with the following:-- "That you on 3-7-2009 at about 1200 to 1300 hours in furtherance of your common intention kidnapped victim baby Sana d/o Muhammad Qasim from Street No,9, Sector 40/C, Noorani Basti, Bangali Para Near Masjid-e-Aqsa, Korangi No,1 Karachi in order to murder the victim baby and thereby you committed offence punishable under section 364-A/34, P.P.C. within the cognizance of this Court.
I, further charge you above named accused that in furtherance of your common intention on above date and time committed rape with victim baby in your house No,592, Street No,9, Sector 40/C, Noorani Basti, Korangi No,1, Karachi and thereby committed offence punishable under section 376/34, P.P.C. within the cognizance of this Court.
I, further charge you above named accused that in furtherance of your common intention on above date, time and place committed murder by intentionally/knowingly causing death of victim baby and thereby committed offence of Qatl-e-Amd punishable under section 302/34, P.P.C. r/w section 7(a) Anti-Terrorism Act, 1997 within the cognizance of this Court.
I, further charge you above named accused that in furtherance of your common intention on above date, time and place after committing offences of kidnapping/rape and Qatl-e-Amd, committed the said offences, effect of which was likely to strike terror and create a sense of fear and insecurity in the family members of victim baby and public and thereby committed an offence punishable under section 7(a)(b) and (c) within the cognizance of this Court."
3. After recording evidence and completion of trial they were sentenced under section 302, P.P.C. to suffer penalty of death by hanging by neck till dead. They were further sentenced to pay fine of Rs,100,000 each as compensation to parents of the girl and in case of non-payment of fine to undergo further imprisonment for 3 years. They were also sentenced to suffer R.I. for 10 years and to pay fine of Rs,10,000 for offence under section 376/34, P.P.C. and in case of default to undergo further imprisonment for one year.
4. Special Criminal A.T.A No,28 of 2009 has been filed by Noor Muhammad and Special Criminal A.T.A. No,29 of. 2009 has been filed by Bashir Ahmed and Confirmation Reference No,3 of 2009 has been submitted by the trial Court.
5. Learned counsel for the appellant Noor Muhammad made the following submissions:--
(1) Inspector Irshad was Investigating Officer who conducted investigation. Under section 19 of the Anti-Terrorism Act, 1997 as the section at the material was, investigation was required to be conducted by a Joint Investigation Team.
(2) First information regarding the child having gone missing was, given to the police at 2200 hours on 3-7-2009. It was duly recorded in the station diary. On 5-7-2009 police was called where the two appellants had been confined by the Mohallah people. Police arrested them and then it is claimed that they confessed and thereafter one was taken to police station and the other, Bashir, took the police party to a place near Gora Qabrustan from where the dead body was recovered. Dead body was sent for postmortem and after postmortem it was handed over to the family of the deceased and thereafter F.I.R. was registered. Learned counsel submitted that the registration of F.I.R. should have been first step. Learned counsel in this regard relied upon Imran Ashraf and 7 others v. The State 2001 SCMR 424 and Akhtar Ali and others v. The State 2008 SCMR 6. The first report as made to police station on 3-7-2009 should have been treated as F.I.R. and what was subsequently stated to the police by Abul-Hashim should have been treated as statement under section 161, Cr.P.C.
It is a case of no evidence. There is no eye-witness to the alleged kidnapping, alleged rape and alleged murder. There was therefore, no evidence against the appellant Noor Muhammad. He relied upon Akhtar All and others v. The State 2008 SCMR 6 and Sanaullah and 3 others v. The State 1999 YLR 815.
(4) There is no last seen evidence as far as appellant Noor Muhammad is concerned. Therefore, there is in any case no evidence against appellant Noor Muhammad.
(5) Statements under section 161, Cr.P.C. were recorded on 11-7-2009 i,e, 6 days after the registration of F.I.R. This creates doubt on entire case of the prosecution. Learned counsel relied upon Muhammad Yameen alias Raja v. The State and others 2009 SCMR 84 and Imran Ashraf and 7 others v. The State 2001 SCMR 424. Identification parade has no evidentiary value because firstly identifiers are not witnesses of the incident, secondly dummies in the two sets were the same and thirdly throughout proceedings doors and windows of the Court remained open. Learned counsel relied upon Muhammad Yameen alias Raja v. The State and others 2009 SCMR 84 and Imran Ashraf and 7 others v. The State 2001 SCMR 424.
(6) Application under section 540, Cr.P.C. was filed for calling of Inspector Muhammad Sarwar of S.P. Office Traffic Zone Airport to produce the Pakistan Medical Search Council Certificate and a list of police personnel who appeared for test of hepatitis 'C' because it was claimed that appellant Noor Muhammad was tested on that date. That application was rejected by the trial Court without any cogent reasons. In any case that application was filed on 27-7-2009 and it was decided on 28- 7-2009 and without giving an opportunity to the appellant to challenge that decision, final judgment was announced on 31-8-2009. Learned counsel relied upon 2001 SCMR 434.
(7) Memo of arrest shows that besides the appellant Bashir other person arrested was Bashir son of Taj Muhammad. Therefore, appellant Noor Muhammad was not arrested and has been subsequently implicated.
(8) There is contradiction in the statement of P.W. Muhammad Yasin. In his statement under section 164, Cr.P.C. he stated that it was Noor Muhammad who was carrying baby girl in his lap and in his evidence he stated that it was accused Bashir who was carrying baby girl in his lap. It is martial contradiction which has been completely ignored by the trial Court.
(9) It was a case of simple kidnapping, sexual assault and murder. No deposition was made and no evidence was produced regarding any terror having been caused in the community or locality.
Therefore, in any case it was not a case which could attract the provisions of the Anti-Terrorism Act.
The case should have been tried by ordinary Sessions Court.
(10) There is contradiction between the ocular evidence and the medical evidence. It is stated by P.W. Abu-Hashim that the two appellants informed the police when police came there that the girl had been killed by strangulating her but the medical evidence does not state any. strangulation.
(11) It is claimed by prosecution that one Baby girl informed her father who informed father of the deceased girl that she had seen one of the accused persons giving Rs,5 to the deceased girl. Name of the girl who had seen such thing is variously stated Naghma/Naeema/ Reshma and name of her father is variously stated as Abdul Karim and Abdul Rahim. Neither girl nor her father was produced as a witness.
(12) No witness has deposed against appellant Noor Muhammad and there is no corroboration of any of the statement of any of the witnesses.
(13) Appellant is a married person with 5 grown up children including grown up daughters and could never have committed such a heinous offence.
(14) Appellant is innocent and has been falsely implicated and convicted without any evidence against him.
6. Mr. Ghulam Hussain Qureshi, learned counsel for appellant in Appeal No,29 of 2009 besides making many of the submissions made by learned counsel for appellant in Appeal No, 28 of 2009 made the following submissions:
(1) In the station diary recorded on 3-7-2009 it is recorded that informant was Qasim father of the deceased girl. Abul-Hashim who claimed himself to be real brother of Qasim when he came in the witness box he stated that it was he who lodged information.
(2) Fact that father of the Baby girl and her mother were not produced as witnesses means that baby Sana never went missing.
(3) Identification parade cannot be relied upon firstly for the defects submitted by Mr. Abdul Wahab Baloch and secondly one witness identified Noor Muhammad as one who was carrying bag and the other witness identified Bashir as the who was carrying the bag in which dead body was allegedly taken for disposal.
(4) It is claimed that extra judicial confession was made. No conviction can be based on extra judicial confession. In this regard learned counsel relied upon Dhani Bakhsh and another v. The State 2006 PCr.LJ 1671, Mst. Irshad Bibi v. Iftikhar and others 2008 SCMR 841 and Abdul Mateen v.
Sahib Khan and others PLD 2006 SC 538.
(5) There is a distance of about 15 KM between Korangi where kidnapping, rape and murder are alleged to have been taken place and Gora Qabrustan from where dead body is stated to have been recovered. It seems un-natural that somebody after committing murder would carry dead body from Korangi to Gora Qabrustan just to throw it in a gutter.
(6) Identification parade was held after 10 days and has therefore no value in law. Moreover witnesses have already seen accused persons and therefore identification parade is of no evidentiary value whatsoever. Learned counsel relied upon Syed Hashim Ali v. The State 2006 PCr.LJ 1576, Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538.
(7) Recovery cannot be a sole piece of evidence upon which conviction can be based. Recovery needs independent corroboration. Learned counsel relied upon Allah Bux Laghari v. The State and others 1993 PCr.LJ 408.
(8) Statement under section 154, Cr.P.C. indicates that it was a joint extra judicial confession. No conviction can be based on a joint extra judicial confession. Learned counsel relied upon Javid Rashid v. The State PLD 1992 Lah. 243.
(9) If statement of baby Naghma/ Reshma is believed although said Naghma/Reshma or her father were never produced in evidence, since baby Sana is claimed by them to be carried in the lap of the appellants, it was voluntary act on part of baby Sana and therefore, would not attract charge of abduction. He relied upon Phalla Masih v. The State PLD 1989 FSC 72.
(10) Conduct of investigator has not been above board. The I.O. has constantly worked under political pressure and has therefore produced a tutored report. Learned counsel relied upon Fayyaz Ahmed v. The State 2008 PCr.LJ 805.
(11) When statements of witnesses were recorded under section 164 Cr.P.C, copies of statements under section 161 Cr.P.C. should have been provided to them. No mention of provision of such statements is made in notices issued for recording statements under section 164, Cr.P.C. which clearly indicates that statements under section 161, Cr.P.C. were not provided to the accused at the time of recording of statements under section 164, Cr.P.C. Learned counsel relied upon Syed Hashim Ali v. The State 2006 PCr.LJ 1576.
(12) Learned counsel submitted that it is a case of circumstantial evidence and in cases of circumstantial evidence the Court must be very circumspect and the most careful in evaluating so that no link in the chain is found missing. He relied upon Syed Hashim v. The State 2006 PCr.LJ 1576.
(13) On the question of dummies in the identification parade, learned counsel relied upon Arshad Ali v. The State PLD 2004 Kar. 602 and on the question that it was not a case of terrorism, learned counsel relied upon Jawed Ahmed Siddiqui v. The State 2000 PCr.LJ 1721.
(14) Although a dead body is stated to have been recovered but there is no evidence to prove that it was dead body of baby Sana.
7. Mr. Imtiaz Jalbani, learned A.P.-G. made the following submissions:--
(1) If there is defect in investigation it does not vitiate the criminal trial. He relied upon Muhammad Ashraf Khan Tareen v. The State 1995 PCr.LJ 313..
(2) Prosecution is not duty bound to produce all the witnesses cited in the challan. For this proposition learned A.P.-G. relied upon Babu Ram and another v. State of U.P. and others 2002 (5)
Supreme 236 (Supreme Court of India).
(3) There is no hard and fast rule that F.I.R. should be recorded after investigation. He relied upon Sabz Ali v. The State 1985 PCr.LJ 437.
(4) Learned counsel referred to Article 140 Qanoon-e-Shahadat and submitted that while the witnesses were cross-examined they were not confronted with their statements , under section 164, Cr.P.C. Therefore defence cannot take advantage of a contradiction and that too between two statements. He relied upon Jahana and another v. The State 1985 PCr.LJ 1829.
(5) Learned counsel referred to Articles 38, 40, 132 of the Qanoon-e-Shahadat to contend that extra judicial confession which leads to further discovery of evidence is admissible evidence. He relied upon Muhammad Akbar, v. The State 1995 SCMR 693.
(6) Although prosecution witnesses were extensively cross-examined but in the cross-examination no questions regarding factual points material to the case of the prosecution was asked.
(7) It is such a crime where a 3/4 years age girl has been sexually assaulted and she lost her life as a consequence of that sexual assault. It is a case of crime against humanity and a society as a whole and if such cases do not create terror it would be difficult to visualize as to what else would.
(8) Even in cases where there is circumstantial evidence death sentence can be awarded. He relied upon Sh. Muhammad Amjad v. The State PLD 2003 SC 704, Jafar Ali v. The State'1998 SCMR 2669, Nadeem v. The State 2005 PCr.LJ 1010.
(9) In statements under section 342, Cr.P.C. no plea of alibi has been taken. Therefore application under section 540 Cr.P.C. were rightly dismissed by the trial Court.
8. Ms. Farida Moten, learned counsel for the complainant adopted arguments of learned A.P.-G. She however submitted that witnesses were natural and neutral witnesses and were not related to the family of the deceased girl. She further submitted that although no plea of alibi was taken in the statement under section 342 Cr.P.C. but now alibi is being contended.
9. While exercising his right of reply Mr. Abdul Wahab Baloch referred to page 31 of the Paper Book where AbulHashim has stated that "It is not correct that deceased Sana was not daughter of my brother." In response to contention of learned APG regarding non- confrontation of statement under section 164, Cr.P.C. in cross-examination learned counsel relied upon Imran Ashraf and 7 others v. The State 2001 SCMR 424.
10. Mr. Ghulam Hussain Qureshi, learned counsel for appellant Bashir submitted that all the private witnesses are long living neighbours of the family of the deceased girl and have therefore deposed in view of their old relationships.
11. We have considered the submissions made by the learned counsel and have also gone through the record and proceedings as well as case law cited at the bar.
12.At the trial P. W.1 was Malik Muhammad Akhtar, Civil Judge and Judicial Magistrate-XVI, Karachi East, who conducted, identification parade and who also recorded statements under section 164, Cr.P.C. of Munir Ahmed and Muhammad Yasin. P.W.2 was Abul Hashim, uncle of the victim girl who lodged F.I.R. and also received dead body of the victim after her postmortem examination. P.W.3 was Noor Muhammad who was also mashir regarding arrest of the accused persons as well as recovery of the dead body, examination of dead body, inspection of the spot and seizure of the plastic bag. P.W.4 was Dr. Farida who conducted postmortem. P.W.5 was Munir Ahmed and P.W.6 was Muhammad Yasin. P.W.7 was Dr. Abdul Jabber, who conducted examination of the appellants so as to determine whether they were capable of sexual act or not. P.W.8 was. Muhammad Aslam, who recorded F.I.R. and P.W.9 was Muhammad Irshad, the Investigating Officer.
13. Appellant Bashir Ahmed in his statement under section 342, Cr.P.C. stated that he wanted to get himself examined on oath as well as produce two witnesses. He did not produce any witness.
However, he recorded his statement on oath and was cross-examined. Appellant Noor Muhammad did not produce any witness nor did he give any statement on oath. We shall discuss the evidence of the witnesses and its implications at their due places.
14. On 3-7-2009 at 2200 hours entry regarding missing child was recorded at the Police Station Zaman Town, wherein it was stated that at 1300 hours of that day baby Sana, age about 3 years, wearing a blue colour Shalwar. Kameez with lining had gone missing. It was also stated by P.W.2 that when his Bhabi Rashida informed him about missing child announcement was made on Mosque loudspeaker regarding missing girl. This aspect of the evidence has not been questioned in cross-examination of any of the witnesses. Therefore it is established by unimpeachable evidence that baby, Sana went missing at 1300 hours on 3-7-2009 and the family made announcement on Mosque loudspeaker as well as through loudspeaker on a Rickshaw but the baby was not found.
15. Abul Hashim stated that on 5-7-2009 one girl namely Naghma came in the street and disclosed to him that the persons who had given Rs,5 to baby Sana were passing in the street. P. W.2 stated that he came out and with help from others caught hold of both the present appellants. In cross- examination he stated that Abdul Rahim is also residing in the neighborhood and that Abdul Karim was not their neighour. He also stated that Naghma is daughter of Abdul Rahim and her real name was Reshma. P.W.3 stated that name of the girl was Naeema son of Abdul Karim. Learned counsel for the appellants laid a lot of, stress on discrepancy in three names given to the girl and two names given to her father. They also emphasized that neither the girl Naghma/Naeema/Reshnia was produced in Court nor her father Abdul Rahim/Abdul Karim was produced as witness. P.W.2 stated that when the accused had been apprehended Naghma came there and informed that one person amongst the two had given Rs,5 to deceased Sana and picked her up in his lap. Both the witnesses merely repeated what they claimed Naghma had told them. Firstly because it is, only hearsay evidence and secondly because since such an aspect was not brought in evidence, by producing Naghma or her father we will completely take out of consideration whether Rs,5 .were given by any of the appellants to the victim girl or not and proceed on the basis that no such rupees five were given by any of the appellant to the victim girl and that nobody saw her in the lap of any of the Appellants.
16. Abul Hashim, P.W.2 stated that en being informed by Naghma he came out and saw the present two appellants and he caught hold of them. P, W.3, Noor Muhammad stated that he upon hearing commotion came out of his house and saw that people had apprehended the two appellants. He further stated that the appellants had come to reside there about 13 days prior to the incident in a rented house. P.W. 5 Munir Ahmed stated that when he came out of his house upon hearing commotion and went to the place where two appellants had been kept by the Mohallah people, he noticed that one Of them was a person whom he had seen taking a bag on his shoulder the previous day. He also in the identification parade recognized, appellant Bashir as the person who was taking away the bag and disclosed that Bashir was carrying a bag on his shoulder and the other appellant Noor Muhammad was accompanying him. In his statement under section 164, Cr.P.C. Munir Ahmed stated that he saw these two appellants coming in uniform of traffic constables and one of then greeted him with a Salam to which he replied. He stated that he saw bag hanging on the shoulder of Bashir Ahmed. Therefore, testimony of Munir Ahmed both in the statement under section 164, Cr.P.C. as well as in the deposition is the same that it was the Bashir that he saw carrying the bag on his shoulder. This aspect has remained unchallenged in the cross- examination. This is one link in the chain of circumstantial evidence.
17.It has also come in evidence that the two accused persons had rented a house in the locality.
This was done 13/20 days prior to the date of the incident. It has also come in evidence that after lodging the F.I.R., when the premises were checked not a single item of household etc., was found there. Taking the house on rent by the appellants is not denied and is proved by many witnesses.
On 5-7-2009 the house was found to be without any farthing in it. That leads to the conclusion that present appellants took away their possession and were escaping from that place.
18.Many questions have been agitated by the learned counsel in respect of the identification parade. Mr. Abdul Wahab Baloch contended that identification parade has no evidentiary value because firstly identifiers are not witnesses of the incident, secondly dummies in the two sets of identification were same, thirdly when the proceedings were conducted doors and windows of the Court room remained open and fourthly in the identification parade one witness identifies the appellant Noor Muhammad who was carrying the bag and the other witness identifies Bashir as one who was carrying the bag. Learned counsel relied upon Muhammad Yameen's case (Supra).
Facts of that case were that F.I.R. was registered on complaint of a Naib Sobedar, who stated that he was present in his unit when a Hawaldar came and informed that some unknown accused had severely injured another Hawaldar. It was alleged that "a young person" came at about 8 O'clock and fired which hit Hawaldar Akram. Accused were acquitted by the Anti-Terrorism Court.
Judgment was reversed by a Division Bench of this Court. The Supreme Court observed that there was no explanation as to why the particulars were not provided in the aforementioned statement although there were stated to be 4 eye-witnesses of the occurrence. It was also observed that statements of witnesses were recorded after 21 days which created doubt regarding identification parade. Supreme Court observed that identification parade was conducted after 76 days and that the prosecution witnesses had not described the role of the each accused which was played at the time of occurrence. It was stated that identification parade had not shown details, names and addresses of dummies. All these factors led the Supreme Court to accept the appeal.
19.In Imran Ashraf's case (Supra), prosecution case was that deceased Chowkidar was on duty at the gate when three young boys (described by their complexion, stature and age) came and asked him to allow them to meet Director. Chowkidar after receiving permission sent them inside.
Thereafter 4 other persons came whose descriptions were duly stated. They also stated that they wanted to meet the Director. In the meanwhile reports of firing were heard. One of the person who was in the last group of 4 threw away his chadar, took out Kalashnikov and fired at the Chowkidar who received injuries and expired. Then all seven accused along with their arms and ammunitions fled away. In respect of identification parade it was held by the Supreme Court as under:-- "It is also to be noted that the prosecution has absolutely failed to establish that identifying witnesses had no occasion to see the accused after the commission of the offence till the holding of the identification parade. It is to be observed that in order to ensure that the identification parade was conducted fairly it becomes the duty of the prosecution to adopt such measures so that identifying witnesses may not see the accused after the commission of the crime till the identification parade is held immediately after the arrest of the accused persons as early as possible. As far as identification parade held on Central Jail, Bahawalpur relating to appellants Muhammad Yousuf, Zubair and Abu Bakar Zarrar is concerned it suffers from another material discrepancy namely that they were mixed up with total number of 33 persons. Such practice is contrary to law laid down from time to time by the superior Courts. In this behalf reference may be made to the cases of Asharfi and another v. The State AIR 1961 Allahabad 153) and Lal Pasand v. The State (PLD 1981 SC 142). Relevant para from the judgment of Lal Pasand is reproduced herein below:-- "And, we may, further, point out that the ratio of ten other under trials to one accused had been prescribed by the Government of the United Provinces in its Government Orders for the Police (See paragraph 23 of the judgment in Asharfi and another v. The State (AIR 1961 All. 153) Therefore, it would be monstrous for the Court to permit a departure from a rule accepted by Government in the absence of some explanation by the prosecution. Now, in the instant case, the explanation of the State is that there had been a joint identification parade with the result that it was not possible to find a sufficient number of other persons to be intermingled with the accused. And, the learned Magistrate who conducted the identification parade appears to have assumed that all the five accused had to be identified. That assumption was wholly erroneous, because Saadullah Khan has seen only two of the five assailants.
However, on the footing that five persons had to be identified, it would have been unreasonable to mix them with fifty other persons, because such a large number of persons could only have confused the identifying witnesses. Therefore, the proper course in such cases is to have separate identification parades for each accused. And, no explanation has been given in the instant case for not holding separate identification parades."
20. The two cases are quite distinguishable. In both these cases there was no previous acquaintance between the witness and the accused. In the present case, the appellants have been living in that locality, for 13 to 20 days, the witnesses have met them in the lanes and also saw them when they were being held by the Mohallah people and when the police came to arrest them. Witnesses were also present when appellant Bashir is alleged to have recovered the body of the victim from the gutter. All these previous " "sightings" clearly indicate that it was a case where the witnesses and culprits had repeatedly come face to face with each other. It was not a case like Imran Ashraf and Muhammad Yameen, where it was alleged that the witness saw culprits only once i,e, when the crime was committed. Therefore, in the present case it is difficult to see as to what was the need for holding the identification parade. Therefore, discrepancy if any in the conduct of identification parade, and indeed there are discrepancies, does not shake the case of the prosecution.
21. P.W.2, Abul Hashim, stated that after the police was called and interrogated the appellants disclosed that they strangulated child from neck and after killing her they had put her body in gutter near Gora Qabrustan. Appellant Bashir was taken to Gora Qabrustan while appellant Noor Muhammad was taken to Police Station. This aspect is equally testified in statements of witness Noor Muhammad who is mashir of recovery, witness Munir Ahmed and P.W.8 Muhammad Aslam.
Difference between the two evidences is that whereas PW.2 Abul Hashim stated that "they" disclosed while witness Noor Muhammad stated that Bashir disclosed and P.W.8 M. Aslam stated that Bashir and Noor Muhammad disclosed. This should be seen in juxta position with the fact that only. Bashir was taken to the place from where dead body was recovered and Noor Muhammad was not taken there. Therefore, as far as Bashir is concerned three witnesses have stated that he stated before them that girl had been murdered and her body had been dumped some where.
Then the Bashir had taken the police to that place and recovered the dead body. However, as far as Noor Muhammad is 'concerned Abul Hashim stated that "they" stated, P.W. Noor Muhammad stated that Bashir stated and P.W. Aslam stated that Bashir and Noor Muhammad stated.
Therefore, as far as appellant Noor Muhammad is concerned it has not been proved that he was the one who made extra judicial confession.
22. Mr. Ghulam Hussain Qureshi, on the question of value of extra judicial confession firstly relied upon Dhani Bakhsh's, case (Supra). The relevant observations by a Division Bench of Baluchistan High Court are' as under:-- "The important factor involved is voluntariness of said statements, it has already been pointed out that the said statements were recorded after lapse of fourteen days. The admissibility of said statements under section 21(H) in the Anti-Terrorism Act, 1997 (Ordinance No, XXXIX of 2001), is open to criticism. When a police official produces the accused before another police official, who is directly supervising the said police station, voluntariness of the said statements is seriously to be doubted. Thus, said statements having been recorded after fourteen days cannot be relied upon. It is also not known that why normal procedure of Judicial Magistrate was not adopted and the same had to be recorded by the District Police Officer, who thereafter, forwarded the accused persons to Judicial Magistrate for sending them to judicial lock-up. The credibility of said statements were not above board and cannot be made basis for conviction."
He next relied upon Mst. Irshad Bibi's case (Supra). It was observed as under:-- "(6) It is well-settled that conviction order based on an extra-judicial confession as well if prosecution succeeds in establishing that such statement has been made truly and voluntarily and in this case from circumstantialevidence then prosecution is bound, to produce individual corroborated evidence. Reference in this behalf can be made to the case of Bahadur Khan v. The State. PLD 1995 SC 336. Since in' the instant case the respondents have categorically denied the allegation and extra-judicial confession, before both the witnesses P.W. Irshad Bibi and Muhammad Munawar, in the absence of corroboration, is not acceptable."
23.In Abdul Mateen's case (Supra) it was observed as under:-- "It is pertinent to mention here that prosecution could not brought any independent corroboration to prove the extra judicial confession made by 'respondent. It is true that extra judicial confessions must be proved by evidence of a very high and un-impeachable character but we are of the opinion that there is no evidence of that character in the circumstances of this case."
24.On the other hand, learned A.P.-G. relied upon Muhammad Akbar's case (Supra). In this case the Hon'ble Supreme Court observed that "The Narration of the occurrence by the eye-witnesses to him was substantially contemporaneous with the murder of the deceased. Eye-witnesses had narrated the occurrence to him before they had' time to devise or for reflection and deliberation.
The narration was made by the eye-witnesses to him when they were still under immediate influence of the transaction. So this is a weighty circumstance which furnishes strong corroboration to statements of the eye-witnesses." In our view extra-judicial confession, particularly the one made at the spur of the moment cannot be brushed aside merely because it is an extra judicial confession. No doubt, it cannot form sole basis of ultimate decision by the Court but it can be used as a corroborative piece of evidence in cases where the extra judicial confession leads to discovery of substantive, critical and direct evidence such as, like in this case, discovery of corpus-delicti.
25. Learned counsel for the appellant also emphasized that F.I.R. was registered after recovery of the dead body. Gist of the argument of the learned counsel was that registration of F.I.R. should have been the first step and not the last step in the proceedings. Learned counsel relied upon Imran Ashraf's case (Supra) and to the following observations made therein by the Hon'ble Supreme Court:-- "Section 154, Cr.P.C. lays down procedure for registration of an information in cognizable cases and it also indeed gives mandatory direction for registration of the case as per the procedure.
Therefore, police enjoys no jurisdiction to cause delay in registration of the case and under the law is bound to act accordingly enabling the machinery of law to come into play as soon as it is possible and if first information report is registered without any delay it can help the investigating Agency in completing the process of investigation expeditiously. Any slackness or, lukewarm attitude by the registering authority of F.I.R. in fact intend to help the accused involved in the commission of the offence.
Thus, it is advisable that the provisions of section 154, Cr.P.C. read with Rule 24.5(c) of the Police Rules, 1934 be adhered to strictly. There should not be any negligence in recording the F.I.R. and supplying copies to concerned quarters because departure from the mandatory provision of law creates a room to doubt the truthfulness of the allegation against the accused incorporated in F. I .
R.
26. Learned counsel also relied on Akhtar Ali's case in this regard and to the following observations made therein:-- "(6). It is also a settled law that F.I.R. is the document which is entered into under section 154, Cr.P.C. book maintained at the police station at the application of the complainant. It brings the law into motion. The police under section 156, Cr.P.C. started investigation of the .case. Any statement or further statement of the complainant recorded during investigation by the police would neither be equated with F.I.R. nor read as part of lit, therefore, subsequent supplementary statement is also considered as statement recorded under section 161, Cr.P.C."
27.On the other hand, learned A.P.-G. relied on Sabz Ali's case (Supra). A Division Bench of the High Court has observed as under:-- "11. As for the inadmissibility of the F.I.R. as the evidence exists, it cannot be disputed that the Murasila Exh. PA/1 was drawn after the investigation and we have no cavil with the authorities cited by the learned counsel for the appellant. Be that as it may, we think that the learned counsel while disputing the evidentiary value of the F.I.R. has conveniently forgotten one distinguishing feature in this case and that is, that in fact the investigation agency was for the first time set in motion when a report about the disappearance of the deceased was submitted by Sardar Muhammad P.W."
28. Facts of the present case are clear entry was made in the station-diary on 3-7-2009 at 2200 hours about report of a missing girl; Mohallah people apprehended the appellants on 5-7-2009 and then police was informed and police came promptly. Should the police have first registered the F.I.R. and then come to the Mohallah and in the process wait for the people in the Mohallah to lynch the appellants? Obviously in such a situation it is expected of the police to rush to the scene or the arena rather than to wait to register the F.I.R. and then leisurely come outside the Police Station. Thereafter one led to the other and dead body was recovered. It was thereafter that F.I.R. was registered. Even if the first report lodged on 3-7-2009 is treated as an P.I.R. it does not disclose as to what had happened to the missing girl. It is only after recovery of the dead body that entire gamut of the crime opened and therefore, the F.I.R., may be a second one, could only have been recorded in respect of alleged kidnapping, alleged sexual assault and the alleged murder. Neither the kidnapping nor the sexual assault nor murder were either suspected or in the knowledge of any one on 3-7-2009 at 2200 hours when first entry in the station-diary was made. Therefore no injustice has been caused and no doubt has been thrown on the story of the prosecution by the mere fact that police registered the F.I.R. after recovery of the dead body. ##T E##
29. P.W.6, Muhammad Yasin in his deposition stated that he saw Noor Muhammad standing at the gate of the house and also saw Bashir Ahmed taking away baby Sana in his lap. He stated that at that time he was going for his Juma prayers. On the way when he checked his pocket he found his mobile was not in his pocket and he went back to his house for it. He stated that he saw appellant Bashir Ahmed carrying baby Sana in his lap and, baby Sana was eating something like papri and toffee. In his statement under section 164, Cr.P.C. he stated that he saw Noor Muhammad as having the baby in his lap. Therefore, there is an apparent contradiction in the statement of P.W. 6 Muhammad Yasin as to whether the baby was in the lap of appellant Noor Muhammad or in the lap of appellant Bashir Ahmed. But the fact remains there that baby was with the two appellants.
Therefore, the only value of this part of the evidence is that there is last seen evidence that baby Sana was with the appellants. This evidence is merely a circumstantial piece. Even if it is ignored, the story of prosecution remains solid.
30. Two learned counsel also referred to their applications under section 540, Cr.P.C. As far as appellant Noor Muhammad is concerned in his statement under section 342, Cr.P.C. he categorically stated that he did not want to produce any witness. As far as appellant Bashir Ahmed is concerned, he stated that he wanted to produce two witnesses as well as record his statement on oath. But thereafter he was unable to produce his witnesses.
Nothing turns on their applications under section 540, Cr.P.C. besides the trial Court through a reasoned order has dismissed the applications.
31. Both the learned counsel emphasized that it was a case of simple kidnapping, sexual assault and murder and no deposition was made that it caused terror in the locality. Their contention was that in such view of circumstances the case should have been tried by an ordinary Sessions Court rather tried by the Anti Terrorism Court. Learned A.P.-G. contended that if such circumstances and such crimes do not constitute a terror, it would be difficult to see as to what could conceivably constitute terror. Section 6 of the Anti-Terrorism Act, 1997 defines terrorism. Under that section terrorism means an includes something which can "create a sense of fear and insecurity in society"
Thereafter actions which constitute terror includes death. (Clause (2) (a)) and grievous bodily injury. A baby girl of 3/4 years was kidnapped then sexually assaulted in the most gruesome manner imaginable and then her body is dumped in a gutter. Narrate this story in any gathering any where whether in a school or in a masjid or in chowk in any locality and it is difficult to imagine that there would be a single child hearing this story who shall be left with any sense of fear and security. Therefore we agree with the learned A.P.-G. that the case in hand attracted provisions of the Anti Terrorism Act, and has been rightly proceeded in the Anti-Terrorism Court.
32. Medical evidence has been reproduced above. It has gone unchallenged. and it is very clear: the girl was brutally sexually assaulted and died as a consequence thereof. Learned counsel for appellant Noor Muhammad contended that there is discordance between the ocular evidence and medical evidence. In the ocular evidence it is stated that when the two appellants were held captive by the Mohallah people and when the police reached there they stated that by strangulating from neck they had killed the girl, whereas the medical evidence reveals that the girl died as a consequence of injuries sustained by her due to sexual assault. In our view, the ocular evidence was not evidence of any of the prosecution witnesses but it was based on a statement stated to have been made by the present appellants. Therefore it is not a piece of ocular evidence of any eye-witness of the incident so as to throw doubt on the story of the prosecution.
33. It was also argued that father and mother of the baby girl have not been produced as a witness. It is settled law that it is for the prosecution to decide as to which witness should be produced and which witness should- not be produced if prosecution after producing certain witnesses comes to the conclusion that the required proof has been brought before the Court it cannot be then compelled to produce other witnesses which it cited in the challan. It is also settled law that it is the quality of the evidence and not quantity or the number of witnesses which determine J fate of the trial. Real paternal uncle of the deceased girl was produced and therefore it was not necessary to produce father and mother for establishing that the dead body recovered was dead body of- baby Sana: Moreover there is unimpeachable evidence that it is appellant Bashir Ahmed who led the police to a particular spot near Gora Qabrustan and from the gutter, he recovered a bag from which dead body of the girl was recovered.
34.Relying- upon Allah Bux Laghari's case (Supra), learned counsel for, appellant Bashir Ahmed contended that recovery cannot be the sole piece of evidence on which conviction can be based.
In that case two prosecution witnesses had initially informed the complainant about the identity of the assailants. When the witnesses were examined in the Court they did not confirm such aspect of the matter. It was also alleged in that case that bloodstained knife and clothes were recovered from the accused and the same cannot be used for conviction.' Single Bench of this Court held that it is settled law that the evidence of recovery of knife, clothes etc., is only corroboratory in nature and by itself is not enough to convict the accused as there was no direct evidence. There cannot be any cavil with this proposition. However, there are aspects which distinguish the reported case.
In the reported case two prosecution witnesses had initially informed the complainant about the identity of the assailants. When the witnesses were examined in the Court one stated that he merely expressed his suspicion and he had only seen two persons fighting but he could not see the assailant. The other witness did not support the prosecution and was declared hostile. What was recovered in Allah Bux Laghari's case was a bloodstained knife and clothes. In the present case what was recovered was corpus-delicti. It was also argued in that case that bloodstained knife and clothes were recovered from the accused and the same can be used for conviction. Single Bench of this Court held that it is settled law that the evidence of recovery of knife and clothes etc., is only corroboratory in nature and by itself it is not enough to convict the accused as there was no direct evidence. In the case in hand, all the witnesses are at one that it was stated by the accused persons that they had committed the crime and appellant Bashir Ahmed led to the place from where dead body was recovered.
35. Mr. Ghulam Hussain Qureshi, submitted that when the statement of witnesses under section 164, Cr.P.C. were recorded copies of statements under section 161, Cr.P.C. were not provided to them. He relied upon Syed Hashim Ali 's case (Supra). The facts of the reported case were that a boy Bilal of 11/12 years age went outside the house to play but did not return. Report of missing was lodged with police. Next day a dead body was found in a sewerage gutter near the house. It was found to be dead body of Bilal. Police started investigation. When the dead body was recovered a Shalwar was found wrapped around the face of the deceased. From washman mark on the. Shalwar and through the dry cleaner it was found that one Qasim had deposited that Shalwar. That Qasim police interrogated and this led to the appellant. Appellant led the police to a room on the second floor of the house where Chappal of the deceased was found. Thereafter appellant pointed out the place of recovery of the dead body. The police after usual investigation, submitted challan in the Court. Appellant was tried and convicted. He filed an appeal before this Court. This Court observed that there was no eye-witness of the incident and the case rested upon circumstantial evidence.
Since the prosecution was based on statement under Section 164, Cr.P.C. this Court held that since the Court below had relied upon statement of Qasim and since when his statement under section 164, Cr.P.C. was recorded copies of statements under section 161, Cr.P.C. were not provided to the appellant and therefore he could not cross-.examine the witness effectively. The. I.O. and the Magistrate did not state that before recording of such copies of statements under Section 161, Cr.P.C. were provided to the appellant. On.the contrary the appellant examined himself and specifically stated that the police did not provide him a copy of 161: Cr.P.C. statement. Said piece of evidence went unchallenged and prosecution did not cross-examine ,the appellant on this aspect of the matter. The case is clearly distinguishable. Entire case of the prosecution in Syed Hashim Ali's case (Supra) was based on statement of Qasim who had identified Shalwar as that of the appellant by which boy Bilal had been strangulated. Secondly dead body was found in a gutter and was not recovered on the pointation of the accused persoa Thirdly accused person examined himself and specifically stated that he had not been provided statement under section 161, Cr.P.C. and this particular aspect had gone unchallenged in the cross-examination of the accused persons. In the present case, no such statement was made by appellant Bashir who got himself examined on oath. Secondly no question was asked from the I.O. or Magistrate when they appeared in the witness-box in this regard. Thirdly, and most importantly, besides statement under section 164, Cr.P.C. there is clear and unimpeachable evidence including recovery of dead body on the pointation of appellant Bashir Ahmed.
36. As far as the contention of the learned counsel that investigation should have been conducted by joint investigation team, is concerned, no injustice or prejudice having been caused is pointed out by conduct of investigation by the I.O. As far as the interest taken by the Advisor to the Chief Minister in the case is concerned, it is not alleged that the Advisor in any way intimidated the Court or defence or even the appellants or influenced any witness. It was a case which created a scare in the community and caused unrest and if the political leadership gave an assurance to the community of timely action by the State no fault can be found with it.
37. Above discussion, leads us to the conclusion that as far as the appellant Noor Muhammad is concerned, he did not point out as to where the dead body is, he did not lead to the recovery of the dead body and only witness against him was in the nature of last seen evidence and it was contradictory and therefore not reliable. Therefore, while giving benefit of doubt to appellant Noor Muhammad, we accept his appeal and set aside the impugned judgment to his extent. He is ordered to be released forthwith if not required in any other case. As far as appellant Bashir Ahmed is concerned, the prosecution has been able to successfully prove case against him without any shadow of any reasonable doubt. The sentence awarded to him is commensurate with the crime of which he has been proved guilty. Therefore his appeal is dismissed and impugned judgment is up-held in respect of appellant Bashir Ahmed appellant in Special Criminal A.T.A. No,29 of 2009. A.T.A. Confirmation Reference No,3 of 2009 is confirmed in respect of appellant Bashir Ahmed only.