' SHAHID HAMEED DAR, J.---Muhammad Shehbaz and Muhammad Shakeel-appellants were held guilty under sections 302(b)/34, 365-A/34 P.P.C. And under section 7(a) read with section 6(2)(a) of the Anti-Terrorism Act, 1997, by learned Judge, Anti-Terrorism Court No,II, Lahore, vide judgment dated 22-4-2010 and sentenced them as under:--
(I) UNDER SECTION 365-A/34 P.P.C.: ' To death, each with forfeiture of their movable and immovable properties in favour of the State.
(II) UNDER SECTION 302(b)/34 P.P.C.: ' To death, each with direction to pay a sum of Rs,2,00,000, each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default thereof to undergo simple imprisonment for six months each.
(III) UNDER SECTION 7(a) r/w 6(2)(a) of ATA, 1997: ' To death, each with fine of Rs,2,00,000, each or in default thereof to undergo simple imprisonment for three years each.
2. The convict-appellants by filing Criminal Appeal No,1069 of 2010 and Criminal Appeal No,1126 of 2010, respectively, have called in question their conviction and sentence under the impugned judgment, whereas, the learned trial Court has submitted reference under section 374 Cr.P.C.
(C.S.R.No,29/T of 2010) for confirmation of the sentence of death of the appellants. We propose to dispose of all these matters together through this single judgment.
3. The facts, as unfolded by Muhammad Akram-complainant in his written application (Exh.PA) moved to the S.H.O., Police Station Baghbanpura, Lahore, on 17-8-2009 are that on 11-8-2009, his son Muhammad Zubair, aged five, went out of his house to fetch something, but did not return home; he contacted the inhabitants of the area as well as his relatives to locate the whereabouts of his son Muhammad Zubair and also flashed an advertisement regarding his missing on the TV screens, but all his efforts ended in smoke; he raised a suspicion that his son had been abducted by some unknown accused. On the basis of said application (Exh.PA), Muhammad Khaliq, A.S.-I.
(P.W.1), drew up F.I.R. (Exh.PA/1) on the same day at 6.45 p.m.
4. After registration of case, investigation into the crime was entrusted to Asghar Ali, S.I. (P.W.14), who immediately reached the place of occurrence, inspected it and prepared visual site plan (Exh.PN) thereof; he recorded statements of the complainant, Muhammad Akram and Ghulam Mustafa P.Ws., under section 161, Cr.P.C., wherein they nominated the appellants and their co- accused Muhammad Amin alias Meena (since dead); on 18-8-2009, the complainant through written application informed him about the demand of ransom money by the accused persons, whereafter offence under section 365-A, P.P.C. Was added and investigation was entrusted to Muhammad Aslam, Inspector (P.W.17) on 20-8-2009, who, on the same day, on a spy information conducted a raid and arrested Muhammad Amin-accused (since dead); on his search, a sum of Rs,1,00,000 (P5/1-20), a mobile phone (P7) and a handkerchief (P6) were recovered from his possession, which were secured vide memo Exh.PK, duly attested by the complainant (P.W.10) and Ghulam Mustafa (P.W.13); on 21-8-2009, accused Muhammad Amin was found dead in the lock-up of the CIA Kotwali and in this regard a case was registered against certain police officials; on 24-8- 2009, he received an information about recovery of dead body of the abducted-child Muhammad Zubair, having been effected from the B.R.B. Canal, by some officials of Police Station Barki, where, in relation to it, case-F.I.R. No,369/2009 already stood registered on 15-8-2009 for an offence under section 302, P.P.C. Against some unknown accused. The complainant had been accordingly informed by the police qua the said fact. Thereafter he (I.0.) along with the complainant and others reached the said Police Station, where Nazeer SI, Investigating Officer of case F.I.R. No,369/2009, produced before him the photograph (P2), knickers (P3) and shirt (P4) of the deceased-child, which were secured by him vide recovery memo Exh.PC; the complainant after identifying the photograph (P2) as that of his son Muhammad Zubair, moved an application before the learned Magistrate for disinterment of the dead body thereof, which was allowed and the dead body was disinterred; when the dead body was brought home. Mst.Shabana, wife of the complainant, also identified it to be that of her son Muhammad Zubair; postmortem examination on the dead body had already been conducted by Dr.Rafaqat Ali (P.W.8) on 16-8-2009; on 12-9-2009, the Investigating Officer obtained call-log-data (CLD) consisting eight pages (P1/1-8) of mobile phones of the complainant as well as that of the accused persons and secured it vide memo Exh.PB; on 14-9-2009, he arrested Muhammad Shakeel and Muhammad Shehbaz (appellants), who were riding a motorcycle Honda CD-70 (P8), which was seized vide memo Exh.PM; on 16-9-2009, on the disclosure of Muhammad Shakeel (appellant), he took into possession rental form (Exh.PL), vide recovery memo Exh.PP; on the same day, Muhammad Shehbaz (appellant) got recovered brick (P9) from a trench (Morcha) B-626-L, BRB-canal, which was taken into possession vide recovery memo Exh.P0; on completion of the investigation, challan against the accused-appellants was submitted before the court for their trial in accordance with law. The appellants on indictment pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced seventeen witnesses, namely, Muhammad Khaliq A.S.-I. (P.W.1), Rehmat Ali 64/HC (P.W.2), Akhtar Ali 7630/C (P.W.3), Muhammad Ilyas, photographer (P.W.4), Amjad Ali 12090/C (P.W.5), Muhammad Hussain SI (P.W.6), Muhammad Nafees A.S.-I. (P.W.7), Dr. Rafaqat Ali (P.W.8), Muhammad Arslan Inspector (P.W.9), Muhammad Akram-complainant (P.W.10), Mst.Shabana Yasmin (P.W.11), Shahid Iqbal (P.W.12), Ghulam Mustafa (P.W.13), Asghar Ali S.I. (P.W.14), Muhammad Ilyas (P.W.15), Muhammad Razzaq (P.W.16) and Muhammad Aslam Inspector (P.W.17). Thereafter, the appellants were examined under section 342, Cr.P.C., whereby they professed their absolute innocence in the matter and denied the allegations levelled against them. They did not opt either to depose within the scope of section 340(2), Cr.P.C. Or to adduce evidence in defence. The contentions adopted by them separately in reply to question as to why this case against them and why the P. Ws. Had deposed against them, read as under:-- MUHAMMAD SHEHBAZ: "I am innocent, I have been falsely involved in this case. Otherwise I have nothing to do with this alleged crime. I was implicated by the witnesses and complainant due to Sharika Baraderi (relationship) and due to this reason the complainant and PWs who are closely related with each other falsely implicated me in this false case in order to harass and blackmail my mother and sister who is the wife of complainant's brother and had strained relations with the complainant party. During the trial complainant being interested witness has deposed against me falsely."
MUHAMMAD SHAKEEL: "I am innocent, I have been falsely involved in this case. Otherwise I have nothing to do with this alleged crime. I was coworker with Shehbaz as a Lath workshop and Shehbaz has a relative with complainant Muhammad Akram due to the hesitation of the public the police with the connivance of the complainant has been implicated me falsely to show their fake and fictitious efficiency before their highups. I have been involved in this case suspicion. During the trial complainant being interested witness has deposed against me falsely."
5. The learned trial Judge on culmination of trial proceeded to convict/ sentence the appellants as mentioned hereinabove.
6. It has been argued by learned counsel for the appellants that the circumstantial evidence produced by the prosecution at trial is not worthy of reliance being full of contradictions and pregnant with countless discrepancies; the last seen evidence tendered by Ghulam Mustafa (P.W.13) and Muhammad Ilyas (P.W.15) suffers from unexplained delay of seven days, which has badly marred its veraciousness; it is, in fact, a case of no evidence against the appellants and impugned judgment has been passed by the learned trial court in sheer disregard to the settled principles of law, which renders it a whimsical and unsustainable document.
7. On the other hand, learned counsel for the complainant by taking the court to various bits of the prosecution evidence has argued that the prosecution case is studded with overwhelming incriminating evidence against the appellants, who have committed a devilish and gruesome act by abducting Muhammad Zubair, aged four/five, the ill-fated son of Muhammad Akramcomplainant (P.W.10) for the purpose of ransom and committing his callous murder only for their lust of money; the circumstantial evidence produced by the prosecution creates a complete chain of events, which connects the appellants with the story alleged against them; the prosecution has successfully discharged its burden to prove the charge against the appellants beyond reasonable shadows of doubt, hence, the impugned judgment may be sustained. Being in agreement with the contentions of the learned counsel for the complainant, the learned Deputy Prosecutor General Punjab has added that the ransom amount of Rs,1,00,000 (P5/1-20) paid by the complainant to Muhammad Amin (since dead), a co-accused of the appellants, was recovered from the custody of the recipient of the said amount, the same day, vide recovery memo Exh. PK, by the police; the motorcycle (P8) used during the occurrence was taken on rent by Muhammad Shakeel (appellant) vide rent receipt/pro forma (Exh.PL), which was got recovered by the police vide recovery memo Exh.PM on 14-9-2009; the medical evidence, the recovery of brick. (P9) at the instance of Muhammad Shahbaz (appellant), handkerchief (P6), cell-phone (P7) and that of the ransom amount (P5/1-20) provide necessary corroboration to the evidence of last seen adduced by Ghulam Mustafa (P.W.13) and Muhammad Ilyas (P.W.15); lastly submits that the prosecution has proved the guilt of the appellants to the hilt, hence, their appeal may be dismissed.
8. We have heard the learned counsel for the parties at length and gone through the entire record of the case minutely.
' The circumstances of this case real touch the heart as victim Muhammad Zubair happens to be an innocent child of four/five years of age, who went missing on 11-8-2009, when he left his house to fetch something and did not return alive, having fallen into the hands of some beastly characters. A massive campaign launched by the complainant Muhammad Akram (P.W.10) for locating the whereabouts of his lost son yielded no results and an advertisement flashed on the TV screens about missing of the child also did not work. The complainant finally reported the matter to the police through a written application (Exh.PA) by raising suspicion that his minor son had been abducted by some unknown accused, which led to registration of case-F.I.R. (Exh.PA/1) bearing No,872, on 17-8-2009, for an offence under section 363 P.P.C. At Police Station Baghbanpura, Lahore, Muhammad Khaliq, ASI (P.W.1) being the scribe thereof. After having reported the crime to the police on 17-8-2009, the complainant-Muhammad Akram (P.W.10) returned to his house, where he found his maternal cousin Ghulam Mustafa (P.W.13) and his companion Muhammad Ilyas (P.W.15) already present there, who informed him that they on their previous visit to his house on 11-8-2009 had witnessed Muhammad Shahbaz (appellant), Muhammad Amin (since dead) and Muhammad Shakeel (appellant) taking Muhammad Zubair away on a motorcycle at about 1/1.30 p.m. Before they entered the house but they did not smell a rat as they knew about their relationship and acquaintance with him (complainant). On receipt of this information, the complainant moved a written application (Exh.PA/3) before the Investigating Officer and thereby named the appellants and Muhammad Amin (since dead) as abductors of his son. The agony and pain of the complainant still continued when he received a telephone call at about 6/7.00 p.m. On 18-8-2009 on his cellphone/SIM loaded with SIM No,0323- 4878845 from an unknown caller, cell-phone No,0308-4567658, who demanded ransom of Rs,10,00,000 for releasing his minor son. He was constrained to present another application (Exh.PA/4) to the police with the request that the abductors of his son might be traced and his son be recovered. The complainant continued his efforts zealously but fortune refused to smile on him as Sadaqat Ali A.S.-I. Of Police Station Barki (Lahore) pulled the dead body of an unknown child, aged four/five, clad in red-colour knickers and clay-colour shirt with an injury on the head from the waters of the BRB-canal, at siphon-Karbath at about 7.30 p.m. On 15-8-2009 and reported the matter vide complaint (Exh.PG) to the said police- station, which led to registration of caseF.I.R. No,369/2009 (supra) against some unknown accused.
This particular F.I.R. Also entailed the fact that the dead body of the child could not be identified by anyone. The complainant after some negotiations with the accused succeeded in settling the amount of ransom as Rs,1,00,000 for releasing of his missing son and to deliver this amount to the accused, he wrapped it in a blue colour handkerchief (P6). He, as demanded by the accused, placed the bundle of currency notes in the bushes at Usmanpura, Lahore and returned to his house. He learnt about the arrest of accused-Muhammad Amin (since dead), the same day.
9. The heavens fall upon the complainant when a constable from Police Station Barki (Lahore) visited his house on 28-8-2009 and told him that the dead body of a child was recovered from the BRBcanal, so he should visit the said police station to identify the deceased-child. He, on receipt of this information, reached the said police station, where the police showed him the photograph (P2) of the corpse, which he identified as that of his missing son. He was also shown last woi n clothes of the deceased, knickers (P3) and shirt (P4), which he picked out as last worn dress of his lost son.
The police after postmortem examination thereof had already buried the dead body, being that of some unknown person, therefore, he moved an application (Exh.PA/5) before the duty Magistrate, Lahore with the request that the dead body of his son might be disinterred and handed over to him for its postmortem examination afresh and again burial thereof subsequent thereto. This application was allowed and he resultantly received the dead body of his son, Muhammad Zubair, vide receipt (Exh.PA/6). He brought it to the house, where his wife and mother of the ill-fated child duly identified it as that of her son Muhammad Zubair. Thereafter, it was buried in Shaghor Peer gr iveyard. The complainant witnessed the apprehension of Muhammad Amin accused (since dead) and recovery of ransom-amount, Rs,1,00,000 comprising twenty currency-notes of the denomination of Rs,5000 each (P5/1-20) from him with its wrapper-handkerchief (P6) and cell- phone (P7), which were secured by the police vide recovery memo Exh.PK.
10. The most important and crucial evidence in this case has been tendered by Ghulam Mustafa (P.W.13) and Muhammad Ilyas (P.W.15), who claimed to have last-seen the deceased-child in the company of the accused, Muhammad Shehbaz (appellant), Muhammad Shakeel (appellant) and Muhammad Amin (since dead) on 11-8-2009 when they took him (Muhammad Zubair) with them on a motorcycle, just from a distance of ten paces from the house of the complainant. Their relationship with him has been admitted by the complainant in his testimony, rather he has mentioned about them as his cousins. The complainant did not mention their names in application (Exh.PA) while reporting the matter to the police. He, however, categorically stated in the said application that he had inquired about his missing son from the inhabitants of the area and also established contact with all of his relatives in this regard but to no avail. Ghulam Mustafa (P.W.13) has had with him a mobile phone prior to the occurrence, which he occasionally used to establish contact with his relatives. The complainant while appearing as P.W.10 contended that he had informed the police soon after the disappearance of his son on 11-8-2009 but he did not know if they had recorded some proceedings in this regard or not. He also stated that his relatives used to visit him after disappearance of his son and they also made efforts to locate his whereabouts. He further stated that he kept on contacting his relatives telephonically so as to inquire about his lost son and his relatives also contacted him in this regard. He too has admitted that Ghulam Mustafa P.W. Had his own cell-phone prior to the occurrence. Muhammad Ilyas (P.W.15) admitted his relationship with the complainant in his testimony and introduced another fact that he was an employee of Ghulam Mustafa P.W. Being his driver. Both the witnesses have not only rendered discrepant statements inter se but also made some self-contradictory depositions. A Ghulam Mustafa (P.W.13) stated in his testimony that he along with Muhammad Ilyas P.W. Visited the house of the complainant on 11-8-2009, where they stayed for about half an hour but they could not meet the complainant then. He also stated that he had come from his house, situated at Muridke on 11- 8-2009 along with Muhammad Ilyas PW, to his relative Muhammad Akram (complainant) and they remained together since morning "on the day of meeting with complainant", whereas Muhammad Ilyas (P..W.15) has deposed about the fact that he along with Ghulam Mustafa P.W. Visited the house of his relative Muhammad Akram (complainant) at about 1/1.30 p.m. On 11-8-2009 and they met him before returning to their houses at Muridke. He, however, took a somersault and contended that Ghulam Mustafa P.W. Entered the house of the complainant on 11-8-2009, where he stayed for about 1/11/2 hour and he, in the meanwhile, stayed outside the house. About another important fact, they have contradicted each other, which relates to seeking knowledge of abduction of the poor son of the complainant. Ghulam Mustafa (P.W.13) did not utter a word as to when he got the knowledge of abduction of Muhammad Zubair nor he stated anywhere that he had told the complainant about the incident on 11-8-2009, when he saw the deceased-child in the company of the appellants and their late co-accused. Muhammad Ilyas (P.W.15) has categorically stated that he in the company of Ghulam Mustafa P.W. Came to the house of Muhammad Akram (complainant) at about 6.00 p.m. On 17-8-2009 and found the complainant (P.W.10) to have gone to the Police Station, therefore, they awaited him for about 1/11/2 hour, whereafter he (complainant) returned to home and told them that his child had gone missing and was not traceable since 11-8- 2009. He made another description in his testimony that it was Ghulam Mustafa PW, who entered the house of the complainant on 17-8-2009, whereas he sat on a shop, in front of the house of Muhammad Akram (complainant) where, Ghulam Mustafa P.W. Brought some water for him to drink from inside the house and told him about the abduction of Muhammad Zubair. Both the witnesses of last-seen evidence made B certain improvements in their statements for which they were duly confronted with their previous statements under section 161, Cr.P.C. (Exh.DA and Exh.DC).
They introduced the factum of reaching the house of the complainant at about 6.00 p.m. On 17-8- 2009 in their testimonies and on confrontation of their previous statements it was found that they had not mentioned it therein. The time of registration of F.I.R. Has been mentioned as 6.45 p.m. On 17-8-2009 with distance of place of occurrence from the police station as one kilometer towards north east. If Ghulam Mustafa (P.W.13) and Muhammad Ilyas (P.W.15) had reached the house of the complainant at 6.00 p.m. On 17-8-2009 and learnt about the abduction of Muhammad Zubair, they could easily disclose the incident of abduction by the appellants on 11-8-2009 to the inmates of the house including the mother of the abductee/ deceased or they could have made a telephone call to the complainant, informing him about the said incident, so that the names of the appellants and their co-accused (since dead) could figure in the F.I.R. Ghulam Mustafa (P.W.13) frankly admitted in his testimony that he had not told the police in his statement under section 161, Cr.P.C. That when they reached the house of the complainant, he had gone to the police station. The statement of this witness under section 161, Cr.P.C. (Exh.DA) categorically shows that when he along with Muhammad Ilyas P.W. Came to see Muhammad Akram (complainant) on 17-8-2005 he was present at his house and it was he who informed them about his son having gone lost on 11-8- 2009. It appears that the evidence of last seen had been fabricated by the police on 17-8-2009 so as to involve the appellants in this case and create a linkage between them and the crime committed. Had any such occurrence of abduction of the poor child taken place on 1-8-2009, the complainant would have been informed without any delay by Ghulam Mustafa (P.W.13) and Muhammad Ilyas (P.W.15) as they all possessed and used the cell-phones in daily life. It cannot be digested that the complainant did not establish contact with his related P.Ws. To inquire about his missing son, nor can it be believed that the P.W.13 and P.W.15 learnt about the occurrence on 17-8- 2009. The discrepant and self-contradictory depositions of both the prosecution witnesses have rendered their statements worthless and incredible, hence cannot be given any weight. It has been held time and again by this court as well as by the apex court that the evidence of last seen is the weakest type of a circumstance which could easily be manoeuvred by the prosecution wherever direct connecting evidence against an accused does not come their way. Guidance in this regard may advantageously be had from many a judgments, to quote a few, Naqibullah and another v.
The State (PLD 1978 SC 21), Rehmat alias Rahman alias Waryam alias Badshah v. The State (PLD 1977 SC 515), Fazal Elahi alias Sajawal v. The State (PLD 1953 FC 214) and Allah Ditta v. The State (1980 PCr.LJ 163). In another judgment 1977 SCM R 20 qua identical circumstances, the Hon'ble Supreme Court of Pakistan while allowing appeal of Nazo alias Ali Nawaz-accused observed that "the mere circumstance that the deceased and the appellant and his companions were seen together is not incompatible with the innocence of the appellant, and is therefore not sufficient to base his conviction on". The law requires unimpeachable corroboration of such like evidence, let alone this particular piece of evidence itself be untrustworthy and unreliable. A continuous chain of events, without any break can, of course, establish the guilt of an accused in a criminal case, based on circumstantial evidence but here, in this case, it appears to be a ragged,, shaken and shabby situation, which has dwindled the idea of building an uninterrupted chain by the prosecution. We strongly believe that the fallacies found in the evidence of last-seen, produced in this case cannot be explained away by the prosecution on any hypothesis other than the innocence of the accused, hence, it is brushed aside, being unbelievable.
11. Inso ar as the recovery of ransom amount of Rs,1,00,000 (P5/1-20) vide recovery mei no Exh.PK, on 20-8-2009, at the instance of Muhammad Amin-accused (since dead), recovery of motorcycle (P8) vide memo ( Exh.PM) on 14-9-2009, at the instance of t e appellants, a brick (P9), not blood stained vide recovery memo Exh.PO, on 16-9-2009 The CLD (call-log-data) vide recovery metho Exh.PB, on 12-9-2009, and rental receipt/form (Exh.PL), secured through memo Exh.PP on 16-9-2009, are concerned, they have lost relevance/ importance in view of the last-seen evidence, a tendered by P.W.13 and P.W.15 ha ving been rejected and disbelieved b: us, in preceding paragraphs, there hardly exists any evidence on the record, w ich may establish that Muhammad Amin-accused (since dead) ever acted in collaboration with the appellants, so far as demand and receipt of the above-said ransom amount by him is concerned. All of these factors might have attained cruciality, had afore-rejected piece of last-seen evidence been given weightage and believed as a connecting circumstance against the appellants. The registration number of the above-said motorcycle (P8) has not been mentioned by the witnesses of last-seen evidence or by the complainant in their testimonies, prior to its recovery by the appellants. The call-log-data (CLD) appears to have been fetched by the Investigating Officer in a blindfolded manner as it creates no link between the cell-Phone No,0323-4878845 of the complainant and the cell-phone No,0308- 4567658 of the unknown caller demanding ransom from the complainant. The brick (P9) without being blood stained carries no evidentiary value at all.
12. Insofar as medical evidence, tendered by Dr. Rafaqat Ali (P.W.8) is E concerned, it hardly advances the prosecution case in plausible terms as it, being a corroboratory circumstance may tell everything about the bodily injuries of a living or a dead person, but it cannot identify the author or inflictor thereof. The instant case is no exception, as regards the settled principles regulating the said sort of evidence. It appears to be a badly investigated case, which shows the mindlessness and incompetence of the Investigating Officer, whose clumsy and blundering approach has cost the prosecution their case.
13. The upshot of the above discussion is that the prosecution has badly failed to prove the charge against the appellants beyond reasonable shadow of doubt and they certainly fell miles short of the required yardstick, which might be adhered to for sustaining conviction in a case, like the one in hand. The impugned judgment being unsustainable is hereby annulled as a consequence of the titled appeals having been allowed. The conviction/sentence of the appellants is set aside and they are acquitted of the charge. They are directed to be released from jail forthwith if not required in any other case.
14. Death sentence awarded to the appellants is NOT confirmed and Capital Sentence Reference is answered in the negative.