QAZI MUHAMMAD AMIN AHMED, J.:- During the night between 10/11.08.2009, within the area of Mauza 'Boty Wala, Ch.Noor Ahmad Sindhu, hereinafter referred to as the abductee was taken away by unknown persons at about 2.00 a.m alongwith his servant Ashiq while they were asleep at a place known as Chah Lumberdar Wala which is a well belonging to the abductee. According to the prosecution, after a thrashing, Ashiq Muhammad was thrown at a distance of seven acres from the point of abduction in an unconscious condition; he was shifted to a medical facility, at Makhdoom Rasheed, to regain his senses in the evening. Matter was reported through a written application (Ex.PE) moved by Irfan Ahmad (PW-7) received by Muhammad Ijaz ASI (PW-5) at 9.40 a.m at Police Station Makhdoom Rasheed situated at a distance of 8-miles from place of occurrence. The abductee, according to the prosecution, was taken away for ransom, demanded by unknown callers on 13.08.2009. It is alleged that after negotiations, a sum of Rs. 2,500,000/- was settled as ransom for the release of the abductee. It is stated position of Irfan Ahmad (PW-7) that he after taking the police into confidence restrained them from taking any investigative step lest any harm befell upon the abductee and instead successfully managed return of his father unscathed albeit in lieu of payment of the ransom, entirely on his own. Firstly, on 28.09.2009, seven persons namely Munir Ahmad, Mir Ahmad, Gulzar Ahmad, Rehmat Ullah, Muhammad Saleem, Tanveer Ahmad and Abid Ali were arrested by Syed Javed Hassan Gilani Inspector (PW-12). During the course of investigation, Investigating Officer took into possession truck No. 917/TK-J vide recovery memo (Ex.PC) from Munir Ahmad. Truck No. 6562/LSB secured vide memo (Ex.PD) from the Meer Ahmad, Nokia Mobile 6233 (P1) secured vide memo (Ex.PE) from Meer Ahmad, Nokia Mobile Phone (P-2) secured vide memo (Ex.PF) from Munir Ahmad. A sum of Rs. 50,000/- comprising of 1000 currency notes of Rs.50 denomination each was secured on 11.11.2009 from Lal Bakhsh father of Ghulam Qasim-appellant. Some cell phone hand sets were also taken into possession, however, with no connecting data. According to Muhammad Sadiq Khan S.I (PW-15), Qasim Chachar and Muhammad Ismail who were under arrest in some other case at Sadiqabad Police Station were transposed as accused in the present case. Muhammad Akbar appellant was added in the list of accused on 14.11.2009; from this lot, Gulzar Ahmad, Rehmat Ullah, Muhammad Saleem, Tanveer Hussain and Abid Ali were got discharged and remaining five accused i.e. Ghulam Qasim, Muhammad Ismail, Muhammad Akbar, Meer Ahmad and Munir Ahmad were sent to face trial.
2. It is prosecution case, that abductee was a well of person and kidnappers initially insisted for a sum of Rs. 2 Crore which was finally settled as Rs.2,500,000/-. Muhammad Akbar appellant who is a co-sharer with the abductee was subsequently introduced in the case as the main architect of the crime who, according to the prosecution could not be named in written application by Irfan Ahmad (PW-7) as Ashiq Muhammad Khokhar, the sole witness to the incident had become unconscious and remained so till late in the evening.
According to Irfan Ahmad (PW-7), he remained in touch with the abductors and finally on 3.9.2009 successfully negotiated release of his father at the appointed place and time; it is his case that Qasim and Ismail appellant restored the abductee. Chaudhry Noor Ahmad (PW-10) who, on his return lost no time in implicating Akbar appellant in the case.
3. Ashiq Muhammad Khokhar PW, who was on the pay roll of the abductee as a family servant has been given as won over. He was medically examined on 11.08.2009, at 11.00 A.M by Dr. Muhammad Hassan Nisar PW-1 who found him oriented in time and space with enviable clinical readings of BP 110/70 temperature 99 degree F and pulse 70 per minute, GCS 15/15 and Respiration @ 60 per minute and opined unambiguously capable of making a statement.
Two test identification parades were held in this case. First on 26.10.2009 wherein Irfan Ahmad (PW- 7) participated in the test identification parade and from amongst the prisoners picked Munir Ahmad and Meer Ahmad alias Mitha sons of Ghulam Qadir as two out of 7 persons who received ransom amount in lieu of abductee's release. The abductee did not participate in the test identification parade and no explanation has been furnished by the prosecution for his exclusion from this important exercise. However, in the second test identification parade the abductee accompanied Irfan Ahmad (PW-7) when Ghulam Qasim and Muhammad Ismail-appellants were put to test identification parade. Both the PWs picked up Ghulam Qasim, however, they could not identify Muhammad Ismail appellant who was amongst the prisoners.
The case against Muhammad Akbar primarily rest upon the testimony of the Ch. Noor Ahmad abductee (PW-10).
The appellants were indicted on 02.01.2010; they pleaded not guilty and claimed trial.
4. Prosecution produced as many as 15 witnesses, Ashiq Muhammad Khokhar who according to Ex.PE is the only person other than the abductee who witnessed the occurrence is conspicuously absent from the witness box; he is blamed to have ditched his Master.
5. Confronted with prosecution's evidence, the appellants took different pleas; however, they were steadfastly unanimous on their denial to the charge.
6. The learned Special Judge, Anti-Terrorism Court I, (Camp at New Central Jail), Multan upon conclusion of trial, vide judgment dated 14.03.2011 convicted and sentenced the appellants as follows:- Under Section 365-A read with Section 149 PPC They sentenced to death with compensation of Rs.5,00,000/- each to Ch.Noor Ahmad u/S 544-A of Cr.P.C, alongwith confiscation of moveable and immovable properties or in default thereof to further undergo six months S.I each. The amount of compensation shall be recoverable as arrears of land.
Under Section 7(e) of ATA, 1997 They awarded sentenced to death alongwith confiscation of moveable and immovable properties.
All the sentences to run concurrently.
Capital Sentence Reference No. 1 of 2011 seeks confirmation of death penalties whereas Crl.Appeal Nos. 12, 15, 97, 98 and 99-ATA of 2011 are filed by the convicts. Connected therewith is W.P.No.12481 of 2011 filed by Wali Sardar-petitioner challenging confiscation of truck No.6562/LSB. These matters are clubbed together.
7. Learned counsel for the appellants contend that occurrence did not take place in the manner as alleged in (Ex.PE) which is outcome of deliberations and consultations. None of the appellants was nominated in the complaint Ex.PE and they have been framed in the case subsequently on the basis of misconceived and misplaced suspicion; that identification parades wherein the appellants were identified by the prosecution witnesses were conducted in violation of safeguards provided under the High Court Rules and Orders and law declared by the Superior Courts; that the case of the prosecution is highly doubtful and case being one of circumstantial evidence there must exist a chain of events connecting the appellants with the crime in such a manner that every hypothesis of innocence stands excluded which miserably lacking.
8. Conversely, the learned D.P.G assisted by learned counsel for the complainant argued that prosecution is possessed with sufficient evidence which squarely implicate all the appellants in the case; that in two test identification parades appellants were duly identified under the supervision of a Judicial Officer inconsonance with the safeguards provided under the law.
9. We have heard the learned counsel for the parties, Deputy Prosecutor General, Punjab and perused the record.
10. In this case, where no less than five persons are bracing gallows, we have noticed that according to the statement of Dr. Muhammad Hassan Nisar (PW-1), Ashiq Muhammad Khokhar was physically in an immaculate condition to furnish first hand details of the occurrence particularly about the participation of Muhammad Akbar appellant who is a co-sharer with the abductee and was specifically nominated by him on his return both before the police as well as in the Court. The prosecution stance that name of Muhammad Akbar could not find mention in the application Ex.PE on account of unconsciousness of Ashiq Muhammad Khokhar till late in the evening is belied by findings recorded by the Medical Officer. In this backdrop, induction of Muhammad Akbar appellant as the main architect of the whole episode requires a pinch of salt. An additional reason for disbelieving prosecution qua Muhammad Akbar appellant is that once Muhammad Akbar had put in place all the arrangements for the kidnapping of a fragile old man with the help of his co-accused there was no reason left for him to unnecessarily expose himself to the risk of being detected and subsequently prosecuted. Even, if we believe the unbelievable unconscious of Ashiq Muhammad Khokhar still there was a good deal of time before the return of the abductee to point finger on Muhammad Akbar as on complainant on showing Muhammad Ashiq Khokhar regained his senses same evening. What raises the case of the prosecution to the ground is Ex.PE which is foundation stone of the prosecution. This written application is received by Muhammad Ijaz ASI (PW-5) at 9.40 a.m on 11.08.2009 wherein it is stated that Ashiq Muhammad Khokhar regained senses late in the evening of 11.08.2009, we are at loss as to how, Irfan Ahmad (PW-7) who is a mortal being was possessed with celestial powers to know in advance on 11.08.2009 at 9.40 a.m. that Ashiq Muhammad Khokhar would regain his senses in the evening. Ex.PE reflects that incident was not truthfully reported by Irfan Ahmad (PW-7). Yet another reason, to discard this fundamental piece of prosecution evidence is statement of Syed Javed Hussain Gillani Inspector (PW-12), who met the abductee on 22.08.2009, when he visited to inspect the spot whereas according to this witness Irfan Ahmad (PW-7) had informed him that abductee returned on 4.9.2009. These are the positions, irreconcilably contradictory. Once we have found, capacity in Irfan Ahmad (PW-7) to manipulate positions suitable to his case, we would appraise his statement about the test identification parades with a greater caution. Even otherwise, test identification parades do not advance the case of the prosecution involving a charge accompanied by death penalty for the simple reason that Qasim and Ismail appellants are placed so inexorably in an identical position that failure of Irfan Ahmad (PW-7) and Ch.Noor Ahmad (PW-10) to pick Ismail in the test identification parade vitiated the incriminatory sting of their statements qua Qasim appellant as well. Qasim and Ismail appellants during the occurrence provided equally opportunity of observation to both the PWs referred to above and as such their evidence on the identity of these two appellants is indivisible. What is more intriguing is non participation of the abductee in the test identification parade wherein Munir Ahmad and Meer Ahmad appellants are picked by Irfan Ahmad (PW) alone; there is no explanation by the prosecution as to why Ch. Noor Ahmad (PW-10) who was the best person to identify them did not participate in the test identification parade. Credibility of Irfan Ahmad (PW-7) found shattered vis-a-vis application (Ex.PE), discussed above will haunt other aspects of his statement as well; one tainted piece of evidence cannot corroborate another tainted piece of evidence. Occurrence took place in the month of August which is sizzling hot season in this region and abductee being head of a well off family was supposed to be within the comfortable confines of his dwelling instead of offering himself as an easy catch to his abductors at his well. These various aspects of the case do not synchronize themselves within the ambit of probability. After reappraisal of evidence we are of the considered opinion that prosecution has not been able to bring home charge against the appellants beyond a shadow of doubt and it would be extremely unsafe to maintain convictions in safe administration of criminal justice, thus, while extending benefit of doubt to appellants, we allow Crl. Appeals No.12, 15, 97, 98 & 99 -ATA of 2011, set-aside impugned judgment dated 14.03.2011 passed by the learned Judge, Anti-Terrorism Court-1 Multan (Camp at New Central Jail), Multan and acquit the appellants from the charges. They shall be set at liberty forthwith if not required in any other case. Capital Sentence Reference No.01 of 2011 is answered in NEGATIVE and death sentence is not CONFIRMED.
11. As a natural corollary W.P.No. 12481 of 2011 is allowed. Case properties comprising of vehicles be returned to their lawful owners after due verification