Abdul Sami Khan, J:- Through this appeal under section 25 of Anti-Terrorism Act, 1997 read with section 410 Cr.P.C. Ajmal, Aamir alias Hamad and Khurram appellants have called in question the judgment dated 14.11.2012 handed down by the learned Judge, Anti-Terrorism Court-I, Gujranwala wherein the appellants were convicted under section 365-A/34, PPC and were sentenced to death each with forfeiture of their properties, if they own. They were also convicted for an offence under section 302, PPC read with section 34, PPC and were sentenced to death. They were further directed to pay compensation to the legal heirs of deceased Atif Sajjad to the tune of Rs. 200,000/- under section 544-A, Cr.P.C. The appellants were also convicted under section 201, PPC read with section 34, PPC and were sentenced to undergo rigorous imprisonment for 5 years with fine of Rs. 50,000/- each or in default of payment of fine thereof to further undergo simple imprisonment for 6 months.
They were also convicted for an offence under section 7(e) of Anti-Terrorism Act, 1997 and were sentenced to death each with forfeiture of their property, if they own. They were further convicted under section 7(a) of Anti-Terrorism Act, 1997 and were sentenced to death each with fine of Rs.
100,000/- each or in default of payment of fine thereof to further undergo simple imprisonment for 6 months. The learned trial court has extended benefit of section 382-B, Cr.P.C. The appellants have filed the instant appeal against their convictions and sentences whereas the learned trial court has sent a Reference under section 374 Cr.P.C. read with section 30(2) of Anti-Terrorism Act, 1997 which has been numbered as Capital Sentence Reference No. 39-T of 2012 for confirmation or otherwise of the death sentences passed against the appellants. We are inclined to decide both these matters together through this single judgment.
2. The prosecution story set forth in the application (Ex.PH) moved by the complainant to the Station House Officer is that he was resident of DC Road and his shop for repair of motorcycle and generator is situated in front of old Station. On 28.06.2012 his son Atif Sajjad, aged about 15/16 years who was also working with him left the shop on motorcycle because he has to pay electricity bill and also to buy some vegetable for home. At about 11.30 am after leaving vegetable at home he parked motorcycle thereat and proceeded to pay bill on foot but till registration of the FIR he did not come back. The complainant searched for him from relatives but could not find any clue. He has expressed suspicion that some unknown have abducted his son. Upon application submitted by the complainant formal FIR No. 705/12, dated 29.06.2012 has been registered at Police Station Civil Lines, Gujranwala in respect of an offence under section 365, PPC. Later on during the investigation of this case sections, 365-A/ 302/34, PPC had been added to the FIR.
3. To substantiate its version before the learned trial court, the prosecution produced as many as fifteen prosecution witnesses before the learned trial court. Sajjad Ahmad, complainant appeared as PW10 and reiterated the contents of application as well as supplementary statement. Abdul Qayum (PW11) and Muhammad Sabir (PW12) furnished the last-seen evidence and also recognized recovered articles of the deceased. Ejaz Ahmad (PW8) is witness of recovery of motorcycle from Khurram appellant. Muhammad Munir, SI (PW13) and Tahir Majeed Khan, Inspector (PW14) being investigating officers stated about various steps taken by them during investigation of this case.
Ghaffar Ahmad (CW1) deposed about the house from where the deadbody was recovered. Rest of the evidence adduced by the prosecution is almost formal in nature.
4. The appellants in their statements recorded under section 342 Cr.P.C. controverted all the allegations levelled by the prosecution, they professed their innocence and pleaded false implication in this case. The appellants did not opt to record statement under Section 340(2) Cr.P.C. in disproof of allegation leveled against them by the prosecution. They also did not opt to produce any evidence in their defence.
5. At the end of the trial, after thrashing the entire evidence and considering the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellants as mentioned in paragraph No.1 of this judgment.
6. Learned counsel for the appellants contend that the judgment is against law and facts of the case and is a result of misreading and non-reading of evidence. The FIR has been lodged in this case with a delay of one day which has not been explained by the complainant and the same shows that the FIR has been lodged with due deliberations and consultations. The deadbody of Atif Sajjad was allegedly recovered upon a joint disclosure made by the appellants during the investigation of this case, thus, the legal sanctity of such a disclosure is nothing but zero which cannot be considered as incriminating evidence against the appellants. The main accused Bilal is still a Proclaimed Offender and the appellants have been involved in this case due to pressure of the police as well as on the basis of suspicion. Law is settled on the point that suspicion howsoever grave or strong can never be a proper substitute of evidence required to convict accused persons in the charge of abduction for ransom and murder. The recoveries are planted upon the appellants so as to falsely entangle them in this case and to strengthen the case of the prosecution. There is no evidence of committing the murder of deceased in this case. The story narrated in the FIR is nothing but a cock and bull story which has no nexus with the reality. The prosecution has changed the set of witnesses who has lastly seen the deceased in the company of the appellants. Initially the prosecution has introduced Shahid Raza (PW9) and Anwaar Ahmad as witnesses of last-seen but later on Shahid Raza has been declared as hostile whereas Anwaar Ahmad has been given up by the prosecution. Thus, an adverse inference under Article 129 (g) of Qunan-e-Shahadat Order, 1984 can be drawn that had this witness be produced by the prosecution before the learned trial court, he would not have been supported the prosecution story. Thereafter to fill-up this lacunae the prosecution has introduced another set of witnesses (PW11 & 12) who are interested and related witnesses, the intrinsic worth and value of their evidence is not worthy enough to be relied upon.
They are chance witnesses the worth and evidentiary value of whom is zero. The prosecution has not produced any independent person in order to corroborate the testimony of these witnesses.
There are glaring contradictions in the statements of the prosecution witnesses. The medical evidence does not support the ocular account. Both the witnesses of last-seen evidence have failed to provide description of the appellants in their statements under section 161, Cr.P.C. which have been got recorded at belated stage and in this way identification parade of the appellants was necessary but no identification parade has been conducted in this case. The prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. The learned counsel pray that the appeal filed by the appellants be allowed and they be acquitted of the charge.
7. On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant has vehemently opposed the contentions of the learned counsel for the appellants and contends that during the investigation specific roles of abduction and thereafter demanding ransom amount and committing his murder have been assigned to the appellants. The roles attributed to them are also substantiated by the prosecution witnesses while appearing in the witness-box before the learned trial court. As the witnesses of last-seen were known to the appellants who have implicated them in their statements under section 161, Cr.P.C., therefore, there was hardly need of identification parade. The deadbody of the deceased was recovered on pointing out of the appellants who have made disclosure in this regard turn by turn. This fact sufficiently connect them with the commission of offence because it was none else but the appellants who were very well aware about the deadbody. This fact has been established through confidence inspiring evidence furnished by prosecution witnesses. The prosecution has successfully proved its case against the appellant by providing evidence of last-seen, recoveries, and disclosure made by the appellants for recovery of deadbody. Relation inter se is no ground to disbelieve the confidence inspiring evidence adduced by the prosecution witnesses. The appellants have committed the murder of deceased in a ruthless manner so they do not deserve any leniency by this Court. The prosecution witnesses are consistent on each and every material point and there seem no discrepancies in their statements which could be made basis for acquittal of the appellants. The prosecution has successfully proved its case against the appellants beyond any shadow of doubt, thus, the appeal filed by the appellants be dismissed.
8. We have heard the learned counsel for the parties at great length, have given our anxious consideration to their arguments and have also minutely scanned the record with great care and caution.
9. The occurrence regarding the abduction of the deceased Atif Sajjad had taken place in this case on 28.06.2012 at 11:30 am and the matter was reported to the police on 29.06.2012 at 8:30 pm and thereafter the FIR was chalked out on the same day at the given time. Although there is a delay of one day in registration of the FIR yet the fact remains that in the case of abduction people do not straightaway approach the police due to fear of the life of abductee so one day delay in reporting the matter to the police in this case is not fatal to the case of prosecution especially in the circumstances when nobody is named in the FIR and this fact cannot be made basis for acquittal of the appellants at all.
10. Before we start our discussion into the matter it is significant to point out here that this case carries some peculiar features regarding the roles of the appellants, therefore, we would like to discuss the case of Khurram appellant first. We have muse over the case of the prosecution from all four corners and found that the case of the prosecution hinges upon circumstantial evidence which rests upon, abduction of the deceased, last seen evidence, evidence with regard to demand of ransom amount by the appellants and recovery of deadbody on disclosure of the appellants.
Now we would like to discuss all these evidence one by one. First of all we shall consider the abduction of Atif Sajjad deceased who was aged about 15/16 years. To prove the abduction of Atif Sajjad deceased Sajjad Ahmad, complainant himself appeared before the learned trial court as PW10 and in his statement has categorically stated that in pursuance of suspicion mentioned by him in his application (Ex. PH) he had received telephone calls from the number of deceased through which unknown person had made demand of ransom amounting to rupees 2 Crore.
During the investigation of this case the complainant duly provided the number of SIM and its IME number to the investigating officer which was with the deceased at the time of his abduction. Thus, as soon as the calls of demanding ransom received the factum of abduction of the deceased become crystal clear. This fact found strong support when on 16.07.2012 Abdul Qayyum (PW12) and Muhammad Sabir (PW13) disclosed before the compliant that they have duly seen Khurram appellant taking the deceased on motorcycle from Ghani Market, DC Road, Gujranwala. Both the above said witnesses Abdul Qayyum (PW12) and Muhammad Sabir (PW13) appeared before the learned trial court in the witness-box and furnished evidence of last-seen. Both these witnesses are resident of the same locality and they used to visit the shop of Sajjad Ahmad, complainant (PW10) frequently because they have common business and they very well known to Aatif Sajjad deceased who was also working at the shop of Sajjad Ahmad, complainant (PW10). While appearing in the witness-box before the learned trial court both these witnesses have explained in so many words regarding their presence at the spot on fateful date when Khurram appellant (friend of deceased Aatif Sajjad) took the deceased with him on motorcycle. Admittedly prior to the occurrence both these witnesses have no ill-will or grudge with Khurram appellant to falsely involve him in this case. Even the defence could not establish any bad blood between Khurram appellant and both these witnesses to prove false implication of the former by the hands of the latter. So the defence could not create any room for us to disbelieve the evidence adduced by above said two witnesses with regard to last-seen and the intrinsic worth of their testimony remained unshaken before the learned trial court.
11. There is yet another fact which sufficiently connect Khurram appellant with the commission of offence and that is demanding ransom amount immediately after abduction of the deceased.
Sajjad Ahmed, complainant (PW10) furnished evidence in this regard which prompted Muhammad Munir, SI/investigating officer (PW13) to conduct investigation on this line and during investigation he had duly collected call-data of the cell number of deceased from where the complainant had received calls for ransom amount of rupees 2 crore. During investigation Muhammad Munir, SI (PW13) collected call-data (P1) from CPO Office vide recovery memo Ex. PA which fact established that Khurram appellant used to demand ransom amount from the mobile set of the deceased after his abduction. It may not be out of place to observe here that there was no other source to transmit the SIM of the deceased to Khurram appellant except the circumstances mentioned by the complainant in the FIR, deposed by him during his evidence and supported by the above said two witnesses who have furnished evidence of last-seen. The same fact further got strength when Muhammad Munir, SI/investigating officer (PW13) secured call-data. So the above-board evidence adduced by these witnesses inspired our confidence to be relied upon them without any hesitation that it was none else but Khurram appellant who firstly abduct the deceased, thereafter demanded ransom amount from the complainant.
12. Apart from above mentioned pieces of evidence another important piece of evidence is disclosure made by Khurram appellant who during the investigation pointed the place where he buried the deadbody of the deceased after strangulating him. It has come in the prosecution evidence that in presence of Sajjad Ahmad, complainant (PW10), Abdul Qayyum (PW11) and Muhammad Sabir (PW12) Khurram appellant has pointed out the house where he buried the deceased after committing his murder. To substantiate this fact learned trial court has summoned Ghaffar Ahmad, owner of the house as CW1 who while appearing before the learned trial court has categorically stated that he has rented out the house to Khurram appellant. During his examination-in-chief he has admitted that deadbody was recovered from his house which was at that time in exclusive possession of Khurram appellant. All the circumstances mentioned by us in our preceding paragraphs when analyze with the touch stone of disclosure made by Khurram appellant then it has become apparent that Khurram appellant in the first instance abducted the deceased and then confined him in his house, thereafter demanded ransom amount and later on committed his murder by strangulation. We have carefully examined the police file from cover to cover and we have observed that Khurram appellant was the accused who has firstly pointed the place from where the deadbody of deceased was recovered. Although the case of the prosecution is that all the appellants have pointed out place of recovery of deadbody turn by turn but the fact remains that Ajmal and Aamir alias Hamid appellants pointed out place of recovery of deadbody after Khurram appellant. We may observe here that except Khurram appellant nobody knows the place of recovery of deadbody and that place was his house and was in his exclusive knowledge.
This piece of evidence positively connects him with the commission of offence.
13. Another important piece of evidence in this case is recoveries effected from Khurram appellant during investigation of this case. During investigation of this case Khurram appellant had led to recovery of motorcycle from his house through which he has taken away the deceased from Ghani Market, D.C. Road, Gujranwala which had been taken into possession by the investigating officer vide recovery memo Ex. PF. To substantiate recovery proceedings Ejaz Ahmad, 189/C.P.S. appeared as (PW8) and he unambiguously explained the whole proceeding of recovery of motorcycle from Khurram appellant. Certain clothes of the deceased, i.e. shirt, paint, belt and handkerchief of the deceased were also taken into possession vide recovery memo Ex. PJ which were identified by Abdul Qayyum (PW11) and Muhammad Sabir (PW12) and admittedly the deadbody was recovered from the house of Khurram appellant which fact leave no room not to connect him with the commission of offence. So the recoveries effected in this case has provided amply corroboration to the prosecution story. Likewise, while appearing before the learned trial court Dr. Usman Ashraf, Medical Officer, District Headquarter Hospital, Gujranwala (PW15) has categorically deposed that at the time of conducting post-mortem examination of the deadbody he has observed a piece of cloth wrapped tightly around cervical vertebrae in the area of neck region which was intact and handed over to police and similarly both the legs were tied above both ankles with a piece of cloth like Parna. The medical evidence further supported the prosecution case that the deceased was done to death by strangulation as disclosed by Khurram appellant.
14. All the above said prosecution witnesses have been subject to cross-examined by the defence at length but nothing favourable to the Khurram appellant or adverse to the prosecution has been extracted from their mouths. All of them have remained consistent on each and every material point inasmuch made deposition exactly according to the circumstances happened in this case.
No plausible reason has been brought on record by the defence to prove false involvement of Khurram appellant in this case especially when all the prosecution witnesses have no previous ill- will or animosity with them. Even otherwise the complainant who is real father of the deceased would not dare to spare the real culprit who committed the murder of his son to go scot-free and falsely involve Khurram appellant without any rhyme and reason. The evidence provide by these witnesses had inspired the confidence of the learned trial court for convicting and sentencing the appellant and the same also inspired our trust to throw a worthy reliance upon them to maintain his conviction. During the trial the defence remained unable to shatter the credibility of the prosecution witnesses to the extent of Khurram appellant. Thus, by all stretch of imagination it can safely concluded that the story introduced by the complainant and substantiated by the other witnesses (PW8, PW11, PW12 & PW13) has been proved beyond any shadow of doubt to the extent of Khurram appellant. We have seen no material contradiction in the evidence of the PWs in this case to the extent of Khurram appellant. Admittedly the deceased Aatif Sajjad was not seen alive after his abduction at the hands of Khurram appellant. Thus, the unbreakable chain of circumstances tied a dense circle around the neck of Khurram appellant in this case leaving no room to take any exception against it.
15. For what has been discussed above the prosecution has proved the case against Khurram appellants beyond any shadow of doubt through confidence inspiring evidence adduced by the prosecution witnesses and recoveries of motorcycle, call-data as well as other articles belonging to the deceased coupled with the recovery of deadbody at pointing out of KHurram appellant and all these factors have got further strength from the medical evidence. Criminal Appeal No. 1953 of 2012 is, therefore, dismissed to the extent of Khurram appellant.
16. Capital Sentence Reference No. 06-T of 2012 is to the extent of Khurram appellant is answered in the affirmative and the death sentences passed against Khurram appellant are confirmed.
17. Now adverting to the cases of Ajmal and Aamir alias Hamid appellant, according to the case of the prosecution the allegation levelled against them is that when the deceased was being taken by Khurram appellant alongwith his absconder co-accused Bilal on motorcycle Ajmal and Aamir alias Hamid appellants were following them in a rickshaw. Admittedly the house where the deadbody of the deceased was recovered was in possession of Khurram appellant and Ajmal and Aamir alias Hamid appellants have no concern with it. The motorcycle through which the deceased was taken away from Ghani Market also belongs to Khurram appellant. Ajmal and Aamir alias Hamid appellants were only seen by the Abdul Qayyum (PW11) and Muhammad Sabir (PW12) sitting in rickshaw and they have not been assigned any overt act at the scene of crime. Thereafter the only connecting material available with the prosecution against Ajmal and Aamir alias Hamid appellants is disclosure made by them and pointed the place from where the deadbody was recovered. Although it is a case of prosecution that the disclosure regarding place of deadbody has been made by all the appellants turn by turn yet the fact remains that that the place of deadbody has been disclosed by Khurram appellant first of all and the moment he has made disclosure in this regard, this fact come in the knowledge of everybody, so this fact cannot be considered as disclosure to the extent of Ajmal and Aamir alias Hamid appellants. In his evidence adduced before the learned trial court Sajjad Ahmad, complainant (PW10) did not pin-point that the persons who have been making calls for demanding ransom were Ajmal and Aamir alias Hamid appellants. The other incriminating material against Ajmal and Aamir alias Hamid appellants are the SIMs recovered from them during the investigation of this case. We have gone through the call-data collected in this case by the investigating officer with great care and found that SIM No. 03466743929 recovered from Ajmal appellant was not used in transaction of demanding ransom amount, therefore, such type of recovery cannot connect Ajmal appellant with the commission of offence. As far as recovery of SIM No. 0323-8330379 (belonging to deceased) from Aamir alias Hamid is concerned, as observed above the complainant has not mentioned in his statement that it was none else but Aamir alias Hamid appellant who demanded ransom amount from him so in this eventuality it cannot be said with any degree of certainty that during that specific period Aamir alias Hamid appellant had been using this SIM for demanding ransom amount, especially in the circumstances when no other incriminating material is available against him. Even otherwise law is quite settled on the point that an accused cannot be sentenced only on the ground that some recovery has been effected from him because at the most it can be considered only one incriminating material against the accused which is corroboratory in nature and to prove the guilt of an accused the prosecution has to produce a compact and concrete composition of evidence which is missing in this case qua the culpability of Aamir alias Hamid appellant.
18. We are mindful of the fact that after relying evidence adduced by the prosecution in this case we have dismissed appeal to the extent of Khurram appellant but at the same time we have also observed that the parties to a criminal case always tried their best to prove or disprove the guilt of an accused by using every possible tact and in this ugly situation the courts of law must not be deterred rather in such like situation after assessing and evaluating the available evidence the court has to sift the grain from chaff. Reliance can be placed on the observation of the Honourable Supreme Court in a recent case titled, Khadim Hussain v. The State (2010 SCM R 1090) in the following words: "In fact a futile exercise appears to have been made to press into service the doctrine of "falsus in uno falsus in omnibus (false in one thing, false in all), which is admittedly not applicable in prevalent system of criminal administration of justice and more so there is no rule having universally applicable that where some accused were not found guilty the other accused would ipso facto stand acquitted because the Court has to sift the grain from chaff. Samano v. State 1973 SCM R 162. There is no cavil to the proposition that 'the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal applications. In the last analysis, as stated in some of the eminent judicial decisions, the grain has to be sifted from the Chaff in each case, in the light of its own peculiar circumstances Riaz Hussain v. The State 2001 SCM R 177".
19. For what has been discussed above, we have come to a definite conclusion that the prosecution has failed to prove the guilt of Ajmal and Aamir alias Hamid appellants to the hilt. Therefore, Criminal Appeal No. 1953 of 2012 to the extent of Ajmal and Aamir alias Hamid appellants is allowed and they are acquitted of the charge by extending benefit of doubt in their favour. They shall be released from the jail forthwith, if not required in any other criminal case. Capital Sentence Reference No. 39-T of 2012 is answered in negative to the extent of Ajmal son of Bashir and Aamir alias Hamid son of Younas appellant and the sentences of death passed against them are not confirmed.