' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Imran Haider son of Ibrar Hussain caste Rind Baloch, resident of Mohalla Hussainabad Bhakkar and Touqeer Ahmad son of Muhammad Jameel, Caste Ghauri Pathan, resident of near Picket. No, 8, Bhakkar (Criminal Appeal. No,1672 of 2010) along with Ghazanfar Hussain alias Ghani son of Ghulam Jaffar, Caste Morani Baloch, resident of Mohalla Eid Gah Shumali Bhakkar (Criminal Appeal No,1674 of 2010), appellants were involved in case F.I.R.
No,242, dated 30-8-2009, offence under sections 302, 365-A, 201, 34 P.P.C., registered with Police Station City Bhakkar and were tried by Mian Anwar Nazir, learned Special Judge, Anti-Terrorism Court, Sargodha. The learned trial Court seized with the matter in terms of judgment dated 17-6- 2010 convicted the appellants under section 302(b) read with section 34, P.P.C., and sentenced each of them to death as Ta'zir with direction to pay Rs,2,00,000 each as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo. S.I. For six months. Under section 365-A read with section 34, P.P.C., the appellants were sentenced to death with forfeiture of their property. Vide the same judgment the appellants were convicted under section 201 read with section 34, P.P.C., and sentenced to undergo R.I. For seven years (each) with fine of Rs,20,000 each and in case of default in payment of fine, each of them was directed to further undergo S.I, for three months. The appellants were also convicted under section 7(a) of the Anti-Terrorism Act, 1997 read with section 34, P.P.C., and sentenced to death with fine of Rs,20,000 each and in case of default in payment thereof, to further undergo S.I. For three months each.
2. Feeling aggrieved by the judgment of the learned trial Court, Imran Haider and Touqeer Ahmed appellants have assailed their conviction through filing Criminal Appeal No,1672 of 2010 whereas Ghazanfar Hussain alias Ghani appellant preferred Criminal Appeal No,1674 of 2010 while the learned trial Court forwarded Capital Sentence Reference No,42-T, 2010 for confirmation of death sentence inflicted upon the convicts. As all the matters are arising out of one and the same judgment of the learned trial Court, therefore, these are being disposed off through consolidated judgment.
3. Prosecution story as contained in the F.I.R. (Exh.PF/1) lodged on the complaint (Exh.PF) of Mahmood Anwar son of Muhammad Anwar, caste Awan, resident of Mohallah Khurshid Ahmad Shah, Bhakkar (P.W.3), is that his brother namely Sohail Anwar son of Muhammad Anwar was posted as Veterinary Officer Health/Incharge Livestock; Bhakkar and on 29-8-2009 at about 8.00 p.m., he left his house for performance of his official duty while riding on Motorcycle HONDA-70 (without number-plate), however, he didn't turn back till 3:00 p.m. On which the complainant rang on Mobile Phone No,0333-6840690 of his brother, however, it was found switched off, hence the whole family became worried. The complainant made contact with officers and colleagues of his brother, who told that up till 12-30 p.m. Dr. Sohail Anwar remained performing his duty with them in the City and afterward he was directed by his superiors to rush to the hospital. As per contents of the complaint when the complainant contacted the hospital, Mushtaq Ahmed Chowkidar told that brother of the complainant did not reach hospital that day. The complainant averred that his brother had been kidnapped by unknown persons for ransom.
4. On the basis of the complaint (Exh.PF) submitted by the complainant, formal F.I.R. (Exh.PF/1) was chalked out by Muhammad Rafique, ASI/Duty Officer (P.W.4) without any addition or omission. After registration of case, the investigation was entrusted to Muhammad Riaz Pasha, Sub-Inspector (P.W.10), who proceeded to the place of occurrence and secured motorcycle (P-1) through recovery memo. Exh.PG regarding which the Investigating Officer prepared Fard Shanakhat (Exh.PN).
' The Investigating Officer also prepared rough site plan of the place of recovery of motorcycle (Exh.P0).
' On 8-10-2009, the complainant nominated Imran Haider, Ghazanfar Hussain, Touqeer Ahmed and Muhammad Arshad appellants. -On 16-10-2009, the Investigating Officer arrested Imran Haider and Ghazanfar Hussain near Railway Phattak. On personal search of Ghazanfar appellant the Investigating Officer secured black colour wallet (P-31) containing Rs,120 consisting four currency notes (P-32/1-4), one I.D. Card of Ghazanfar accused (P-33), one pocket size telephone diary (P- 34) and took the same into possession vide recovery memo. Exh.PP. On the personal search of Imran Haider "used the Investigating Officer recovered currency notes amounting to Rs,180 consisting eight notes (P-35/1-8), along with Sim No,0332-7630150 (P-37), which the Investigating Officer secured vider covery memo. Exh.PQ. On the same dayer making disclosure the accused led the vestigating Officer to Darbar Peer ania Road Ganda Nala/Pond and separately pointed out the dead body of Dr. Sohail Anwar abductee. During the checking of dead body the Investigating Officer collected service card of the deceased (P-29), currency notes amounting to Rs,500 (P-30) consisting four currency notes of Rs,100 (P-30/1-4) and two currency notes of Rs,50 each (P-30/1- 2), which the Investigating Officer took into possession vide recovery memo. Exh.PM. A ter inspecting the dead body, the I vestigating Officer prepared inquest r port (Exh.PC), drafted application for p stmortem examination (Exh.PB) and handed over the dead body to Muhammad Arshad 419/C (F W-5) for escorting the same to mortuary for autopsy dead body in a sack/bag and threw the same into water pond, so that, evidence of our offence may be caused to disappear.
My conscious is pricking me again and again, so I voluntarily made statement before the court."
9. Learned trial Court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellants in the afore-stated terms.
10. Learned counsel for the appellants while advancing arguments submitted that admittedly the occurrence was unseen and nobody had witnessed the incident. Learned counsel vehemently argued that Dr. Sohail Anwar deceased was missing on 29-8-2013 at 12-30 p.m., however, Mehmood Anwar, complainant, who happens to be real brother of the deceased reported the matter on the following day, hence there is a delay of one day in the registration of case without plausible explanation and even while lodging complaint (Exh.PF) the complainant had not named any person as an accused. Regarding telephone calls allegedly made by the accused, learned counsel for the appellants urged, the same were not brought into the notice of the Investigating Officer till arrest of the appellants. It was further argued that Irfan Hussain (P.W.7), who had allegedly lastly seen the deceased in the company of appellants had made statement on 8-10- 2009 i,e, with a delay of forty days after the occurrence, therefore, his testimony does not carry any legal sanctity. Learned counsel further submitted that as per statement of Dr. Sajid Ali Khan (P.W.1) the dead body was not identifiable rather it was a skeleton. Moreover, as bone of deceased did not generate any DNA profile, the test report (Exh.P.W.) loses its evidentiary value. Learned counsel emphasized that the recovery of Service Card and other articles of the deceased lends no support to the prosecution version. It was further argued that the Investigating Officer had not taken into possession the attendance register of the livestock centre in order to ensure that the deceased remained on duty till 29-8-2009. Regarding confessional statement of Ghazanfar Hussain alias Ghani appellant, learned counsel for the appellants contended that as the same is not borne out from other attending circumstances, the learned trial Court was not justified in taking it into consideration while recording conviction. Learned counsel for the appellants, in the end, prayed for clean acquittal of the appellants.
11. As against above,, learned DDPP assisted by learned counsel for the complainant vehemently opposed the contentions raised on behalf of the appellants. It was argued that the delay in lodging the F.I.R. Was natural as firstly the complainant tried his level best to locate his brother and thereafter he reported the matter to the police. Learned counsel for the complainant next argued that the deceased was lastly seen by Irfan Hussain (P.W.7) in the company of the appellants. It was urged that the accused had also made calls to the complainant; thereby demanding ransom amount regarding which sufficient data was collected by the prosecution. It was urged that at the time of arrest, as well as, during the course of investigation, several articles belonging to the deceased were recovered from the appellants which connect them with the commission of offence. Learned DDPP stated that DNA Test report (Exh.P.W.) fully connects the appellants with the commission of offence. It was forcefully urged that inculpatory statement recorded by Ghazanfar Hussain alias Ghani appellant fully establishes link of the appellants with the occurrence. Learned counsel for the complainant emphasized that the complainant had no reason to falsely involve the appellants in the instant case without previous animosity, the occurrence is admitted one and ordinarily substitution is a very rare phenomenon, which is not visible in the instant case. It was finally argued that in view of overwhelming material available on record against the appellants, the learned trial Court was rightly justified in recording conviction/sentence.
12. Arguments advanced pro and contras have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants, learned counsel for the complainant, as well as, learned DDPP.
13. In the instant' occurrence, the prosecution has led evidence qua the recovery of the dead body on the pointing out of the appellants, medical evidence last seen evidence and identification of the articles subsequently recovered from the appellants, to establish its case against the appellants.
As far as the recovery of the dead body is concerned, it is admitted fact that soon after the arrest of the appellants, as per prosecution case, the recovery of the dead body was effected on the pointing out of the appellants. Nevertheless it finds mention in the statement of Muhammad Riaz Pasha, S.I. (P.W.10) that Ghazanfar Hussain alias Ghani and Irnran Haider appellants had pointed out the dead body of Dr. Sohail Anwar separately, however, there is no memo of recovery of dead body to upplement the stance adduced in the stat merit of the Investigating Officer. He e, there is nothing on record to asc rtain whether the dead body was rec vered on the joint pointation of the appellants or the story ordained in the statement of the Investigating Officer is truthful. Moreover, non-preparation of recovery memo of the dead body creates cracks in the prosecution version.
Another important aspect of the case is that the dead body was recovered from a pond nearby a Darbar, easily accessible to anyone.
14. The next question, which is of pivotal importance for disposal of the instant is whether the dead body, which was allegedly recovered at the pointation of the appellants was in fact the deed body of Dr. Sohail Anwar, deceased brother of the complainant. In this regard the statement of Dr. Sajid Ali Khan (P.W.-1), is of great importance, which reads as under:- "On external appearance the dead body with advanced purification (in the shape of a skeleton) was present in already cut opened "bori" in folded position with a rope around it. All flesh and skin completely decomposed except some patches of skin present on ribs on front, piece of which taken and sent to Chemical Examiner. Pieces of clothes were also present on some body parts stained with dirty mud with foul smelling, colour of which cannot be assessed at that stage. Hairs were completely shed some were present on "bori" and sent to Chemical Examiner and DNA test."
' After postmortem examination last worn clothes of the deceased shirt (P-38), one torn jute bag (P-39) along with patti black colour (P-40) were produced before the Investigating Officer, which he took into possession vide recovery memo. Exh.P5. During the course of investigation, on the pointation of the accused, the Investigating Officer prepared rough site plan; (Exh.PT) of the place of murder of the deceased i,e, house of Touqeer Ahmad. On 18-10-2009, the complainant, Mahmood Anwar, joined the investigation along with Murid Abbas P.W., and recorded their statements under section 161 Cr.P.C. The complainant produced his Mobile Phone Nokia Model 3230 (P-2) alongwith SIM No,0333-6841124 (P-3) and recording of audio-cassette (P-4) regarding different calls made by Muhammad Arshad (since P.0) from 30-8-2009 to 5-9-2009 on the mobile phone of complainant; thereby demanding ransom amounting to Rs,50,00,000 (fifty lacs) through Mobile No,0333-6840690, record of CDR (P-6) regarding mobile calls from 17-8-2009 to 5-9-2009, CDR of Mobile No,0313- 7638747 (P-41) belonging to Touqeer Ahmed (appellant) for the period from 14-8-2009 to 30-8-2009, CDR of Mobile No,0333-7643072 (P-7) of Muhammad Arshad (since P.0) for the period from 2-8-2009 to 6-9-2009 to the Investigating Officer, who secured the same through recovery memo (Exh.PH). On 19-10-2009, Muhammad Shafique Khan Draftsman (P.W.2), took rough notes of .The place of recovery of dead body and place of occurrence. After preparing scaled site plan on 21-10-2009, he joined the investigation and produced three copies of each scaled site plan (Exh.PD), (Exh.PD/1), (Exh.PE), (Exh.PE/1) before the Investigating Officer, who endorsed his notes with red ink on it. He also recorded the statement of draftsman under section 161, Cr.P.C.
' On 23-10-2009, Investigating Officer arrested Touqeer Ahmed (appellant), and on his personal search recovered Rs,150 in the shape of currency note Rs,100 (P-9) and one currency note of Rs,50, I.D. Card (P-11), Photocopy of I.D. Card of Naseer-ud-Din Ghauri (P-12) alongwith SIM Jacket Zong (P-13), three mobile SIMS (P-14/1-3) one of Jazz, two of Ufone, Nokia mobile phone-6021 (P-15) alongwith SIM No,0313-7638747. (P-16) and took the same into possession through recovery memo.
Exh.PI. On the same day during interrogation, Touqeer (appellant) made disclosure and on his pointing out, Investigating Officer recovered an empty packet of tablets-Ativan (P-17), two empty bottles (P-18/1-2), one valium injection along with syringe (P-19/1-2) and electricity wire with electric switch (P-20/1-2) about nine feet long and took the same into possession vide recovery memo. Exh. PJ ' On 30-10-2009 during the course of interrogation Ghazanfar Hussain appellant after making disclosure led to the recovery of wallet black colour (P-24) 13 visiting cards (P-25/1-13), two photographs (P-26/1-2), one optical (P-27) and a ring of deceased (P-28) from the residential room of his house lying in the small box, which were taken into possession by the Investigating Officer vide recovery memo. Exh.PL. On the same day during interrogation the appellant Imran Haider got recovered one pair of chapel brown colour (P-21/1-2), one duty card of Sohail Anwar deceased (P-22), key of motorcycle of the deceased (P-23) from his residential room which were secured by the Investigating Officer vide recovery memo. Exh.PL. Investigating Officer also prepared rough site plan of place of recovery (Exh.PK/1).
5. Having found the appellants guilty, the Investigating Officer prepared report in terms .Of section 173, Cr.P.C. And sent the same to the, court of competent jurisdiction. On 26-1-2010, the learned trial Court formally charge-sheeted the appellants to which they pleaded, not guilty and claimed trial.
Prosecution in support of its version produced as many as twelve (12) prosecution witnesses.
6. Mahmood Anwar (P.W.3) is the complainant of the case. On presentation of complaint, Muhammad Rafiq, A.S.-I. (P.W.4) had chalked out formal F.I.R. Irfan Hussain (P.W.7) had lastly seen the deceased in the company of appellants. Muhammad Shafique Khan draftsman (P.W.2) had prepared scaled site plan of the place of occurrence and place of recovery of dead body. Murid Abbas (P.W.12) is the witness, who had prepared CDR of the calls made by the appellants to the complainant. Investigation in this case Was conducted by Muhammad Riaz Pasha, S.I. (P.W.10) Dr. Sajid Ali Khan (P.W.1) had conducted autopsy on the dead body of deceased and opined as under:- "In my opinion final report was to be given after the receipt of report from Chemical Examiner, Government of the Punjab, Lahore.
' Probable time between injury and death could not be, assessed whereas time between death and postmortem was 30 to 60 days."
' Statements of rest of the prosecution witnesses are formal in nature.
7. On 26-1-2010, learned Public Prosecutor gave up Nazir Hussain, Fazal Abbas, Muhammad Ishfaq and Safdar, P.Ws., being unnecessary. Vide his separate statement recorded on 6-5-2010, learned Public Prosecutor after tendering in evidence report of DNA test (Exh.P.W.) report of Chemical Examiner, Lahore xh. PX) closed the prosecution evidence.
8. The appellants were also examined in terms of section 342, Cr.P.C; wherein all of them opted not to appear as their own witnesses in terms of section 340(2), Cr.P.C. In disproof of the allegations levelled against them in the prosecution version. They also opted not to adduce defence evidence.
In response to the question why this case against him and why the P.Ws. Deposed against him, Imran Haider appellant deposed as under:-- "No independent witness to connect me with the crime was produced before the court. My opponents in collusion with complainant and local police fabricated the case against me."
' While replying to the similar question Touqeer Ahmed, appellant made the following deposition:- "My version is the same as of my co-accused Imran Haider."
' Ghazanfar Hussain alias Ghani appellant; thereby replying this specific question stated as under:- - "I alongwith my co-accused Imran Haider and Touqeeer Ahmad abducted Dr. Sohail Anwar deceased in this case for extortion of ransom to the tune of Rs,50,00,000.00. All of us in furtherance of common object committed the murder of deceased. After his murder we packed his cross- examination the doctor also admitted that As body of the deceased had been totally decomposed so no marks on the person of body had been identified and for the same reason diagram was left blank. Further while replying to a suggestion, the doctor admitted That:-- "It is correct that the dead body was totally unidentifiable and I had mentioned the name of dead body in the relevant column merely on the information of the P.Ws."
From the statement of the doctor it is evident that the dead body of the deceased was not identifiable. Nevertheless as per statement of doctor, thirteen teeth of the deceased were sent to the office of Chemical Examiner for DNA Test, however, as per its report (Exh.P.W.) only word 'teeth' has been mentioned and no exact number of teeth has been incorporated therein. It also finds mention in the DNA report that "Item 1.0. (bone of unknown deceased) did not generate any DNA profile." As the bone did not generate any DNA, the positive report (Exh.P.W.) becomes of least importance. The judicial scrutiny of this aspect of the case further compels this Court to come to the conclusion that not only dead body was not identifiable with certainty rather the rest of superstructure raised on it would fall on the ground especially when the other aspects of the case stated above are of the nature, which could be architected very easily.
15. Recovery of service card, key of motorcycle and shoes of the deceased are not incriminating material to connect the accused/appellants with the commission of offence as these were made after almost one month of the occurrence. In the case of Sarfraz Khan v. The State and 2 others (1996 SCMR 188), the august Supreme Court of Pakistan had disbelieved the recovery of articles (belonging of the deceased) made after sixteen days after the occurrence.
16. As far as statement of Irfan Hussain (P.W.7), who allegedly had lastly seen the deceased in the company of appellants is concerned nevertheless he claims to have seen the deceased in the company of the appellants on/29-8-2009, however, astonishingly he appeared before the Investigating Officer on 8-10-2009 i,e, with a delay of forty days. Moreover, had this been situation, he being mamoonzad of the complainant might have informed him and the 'appellants could have been nominated as accused persons in the crime report, which was lodged on 30-8-2009. In such circumstances last seen evidence straightway becomes inconsequential.
17. As per recovery memo. Exh.PH, the complainant had produced before the Investigating Officer, the audio-cassette (CDR) pertaining to calls allegedly made by the accused from 30-8-2009 to 5- 9-2009; thereby demanding ransom. It does not appeal to reason that nevertheless Dr. Sohail Anwar after abduction was done to death on the same day what was fun with the appellants to remain making calls continuously till 5-9-2009. Moreover, neither the Investigating Officer was informed about the calls on specific dates c nor during the course of investigation, data was collected with regard to mobile numbers belonging to the appellants in order to strengthen the prosecution case.
18. In the instant case at the time of commencement of trial when the charge was framed the appellant declined the charge and opted to face trial but during the pendency of trial, he made confessional statement. Perusal of record reveals that the confessional statement was recorded on oath, whereas the same is deprecated by the superior courts. In the case of Muhammad Bakhsh v.
The State (PLD 1956 Supreme Court (Pak.)420] the august Supreme Court of Pakistan had held as under:-- "Where the confession of an accused, recorded under section 164 read with section 364, Criminal P.C. Was taken down under an oath: Held, that the confession was obtained in an illegal manner and its rejection must follow as a matter of course from this illegality."
' Similar view was held in the case of Shafi Ullah and another v. Muhammad Saeed and 3 others (PLD 2005 Peshawar 46), in the following terms:- ---S. 5---Confession, recorded on F oath---Validity---Such confession is inadmissible."
' Perusal of record further reveals that Ghazanfar Ali alias Ghani appellant had opted to make confessional statement on 15-3-2010, which was recorded on the same day within short span of time against the principles set by superior courts on the subject. Respectful reliance in this regard is made on the ratio decidendi of august Supreme Court of Pakistan in the case of Muhammad Pervez and others v. The State and others (2007 SCMR 670).
' Another important aspect of the case is that the confession made by Ghazanfar Ali alias Ghani appellant was neither put to him while recording his statement in terms of section 342, Cr.P.C. Nor to any of his co-accused, therefore, the same could not have been used against them. While dealing similar question in the case of Raja Mushtaque alias Raja Younish v. The State (2007 PCr.LJ 276), the Hon'ble Sindh High Court had held as under:-- "---Alleged confessional statement of accused, however, could not be used against him as same was not put to accused while recording his statement under 5.342, Cr.P.C."
' Moreover, confessional statement of Ghzanfar Ali alias Ghani appellant even if admissible could not be used against the other co-appellants in view of ratio decidendi of august Supreme Court of Pakistan in the case of Shabiul Hassan v. The State (PLD 1991 Supreme Court 898); wherein it was held as under:- "-Confession of a co-accused, even when admissible; was not evidence and could only be taken into consideration' but could not form the basis of the conviction of the co-accused."
' Even otherwise superior courts always support that even if the accused pleads guilty during the course of trial, in addition to his plea, independent evidence should be gathered by the court.
Reliance is placed on the dictum of law in the case of King Emperor v. Kasim Walad Mohamed Saffer (AIR 1925 Sind 188), wherein it was held as under:- "Independent evidence should be taken by Court notwithstanding accused's plea of guilty."
19. It goes without saying that the G whole prosecution case, is based upon circumstantial evidence. It is settled principle of law that to base conviction on circumstantial evidence there should be interlinking chain of credible and cogent corroborative evidence available on the record, which needless to mention is totally missing in this case. We are fortified in our view by dictum of law of the august Supreme Court of. Pakistan in the case of Karamat Hussain v. The State (1972 SCMR 15).
20. Upshot Hof above discussion is that the prosecution case is lacking sufficient incriminating evidence. The delay in lodging the crime report, naming of the accused therein, unidentifiable dead body consisting over skeleton, the delayed recording statement of Irfan Hussain (P.W.7) witness of last seen, who happens to be mamoonzad of the complainant, as well as deceased coupled with the delayed recovery of articles compel this Court to believe that the prosecution has badly failed to bring home the guilt of the accused/ appellants beyond shadow of reasonable doubt required for conviction of any accused on capital charge. Resultantly, the salutary principle of benefit of doubt is extended in favour of the appellants as a consequence whereof; CRL. APPEAL No,1672 of 2010 FILED BY IMRAN HAIDER AND TOUQEER AHMED APPELLANTS AND CRL. APPEAL No,1674/2010 FILED BY GHAZANFAR HUSSAIN ALIAS GHANI APPELLANT, ARE ACCEPTED IN TOTO.
Resultantly, conviction and sentence recorded in the judgment of the learned trial Court passed on 17-6-2010 is set at naught. The appellants are ordered to be acquitted of the charge in case F.I.R.
No,242, dated 30-8-2009, offence under sections 302, 365-A 201, 34 P.P.C., registered with Police Station City Bhaldcar and are directed to be released forthwith if not G required in any other case.
2L Capital Sentence Reference No,42-T-2010 forwarded by the, learned trial Court for confirmation of sentence of death inflicted upon Imran Haider, Ghazanfar Hussain alias Ghani and Touqeer Ahmed/convicts fails, which is answered in NEGATIVE. Death sentence is NOT CONFIRMED.