FAROOQ HAIDER, J.-- -Through this single judgment, Criminal Appeal No. 24 of 2015 filed by Hafiz Imran alias Abbas alias Hamza (hereinafter referred as appellant) against judgment dated 07.01.2015 passed by learned Judge Anti-T errorism Court-I, Lahore (Camp at Central Jail, Lahore), whereby in case arising out of F .I.R No.282/201 1 dated 13.08.201 1 registered under Sections 365-A, 395, 342, P .P.C. read with sections 21(j) and 7 of Anti-T errorism Act, 1997 at Police Station: Model Town, Lahore, the appellant was convicted (i) under section 449, P .P.C. and sentenced to "death" alongwith forfeiture of his all property in favour of State (ii) under section 365-A, P .P.C. to "death" along with forfeiture of his all property in favour of State and (iii) under section 7(e) of Anti-T errorism Act, 1997 to "death" , and Reference sent by learned trial court under section 374, Cr.P.C. for confirmation or otherwise of the aforementioned death sentence passed against the appellant, which has been numbered as Capital Sentence Reference No.01-T of 2015, are being decided together because both the matters have arising out of one and the same judgment.
2. Brief facts of the case as per written complaint (Ex.PM) of Tajammal Hussain Inspector (PW-6), on the basis of which, FIR (Ex.PM/1) was registered, are that on 13.08.201 1, at about 03:15 a.m. an information received through emergency call 15 that an American citizen has been abducted on gun point from 49-J Model Town; on receiving such information, complainant along with Iftikhar Ahmad S.I., Shakeel Ahmad 22632/C, Imran-ul-Haq 20526/C, Ihatisham 20545/C on official vehicle bearing registration No.1206-LEG, driven by Muhammad Adeel driver 9120/C, reached at 49-J Model Town; Aurangzaib son of Muhammad Iqbal told him that when he alongwith other security guards namely Muhammad Abbas son of Khushi Muhammad, Fazal Ellahi son of Guncha Gull along with Muhammad Israr son of Masood Khan (driver) were having meal at Sehri time in car porch, in the meantime, main gate was knocked, on inquiry of driver Israr, it was replied that from neighbourhood Sehri meal has been brought, upon which, they responded that they have no need of any meal; during this period, from back side of porch, five unknown persons armed with firearms reached in the porch and overpowered them on gunpoint, then three other accused persons armed with firearms also entered in the house; three of them had about 5'/5"-6" height, wearing pant shirt, one had beard and they were aged about 26/27 years having wheatish colour and speaking Urdu language whereas rest of the accused were of young ages and could be identified if brought before them; they (accused) tied them with ropes and string of Shalwar (Urdu Text) in the office and also stuck solution tape on their mouths; they took Israr (driver) on gun point in the room of first floor, brought out Dr. Warren Winestine (abductee/ American National) in TV Lounge from his residential room, caused him injury on his head while inflicting blow with butt of pistol and took him with them; they while leaving place of occurrence also snatched mobile phone Nokia 1600, having SIM No. 0301-6521 148 from Muhammad Abbas and Q-Mobile having SIM No.0315-3714528 from Fazal Amin.
On the basis of above said complaint, case vide FIR No.282 of 2011 dated 13.08.201 1 under sections 365, 395, 342, P .P.C. was registered at Police Station Model Town, Lahore (Ex.PM/1).
3. The appellant was arrested on 03.04.2012 and on conclusion of investigation, he along with his co-accused Saif- ur-Rehman was challaned to the Court. They were formally charged, to which they pleaded not guilty and claimed trial. To prove its case, the prosecution produced as many as twelve PWs, Tajjamal Hussain Inspector/complainant (PW-6), Muhammad Aurangzaib (PW-7), Muhammad Abbas (PW-8) and Muhammad Israr Khan (PW-9) appeared in the witness-box before the learned trial court to support the story mentioned in the FIR, Syed Naeem Abbas, Judicial Magistrate Sec.30 (PW-10) defined details about identification parade. Abdul Ghaf far S.I. (PW-11) stated about preliminary investigation whereas Iftikhar Rasool Inspector (PW-12) is the member of Joint Investigation Team, who has stated about various steps taken by him as member of the Team during the investigation of this case.
4. After completion of prosecution evidence, statement under section 342, Cr.P.C. of the appellant was recorded by the learned trial Court wherein he professed innocence and pleaded false implication in the case. He did not opt to get record his statement under section 340(2), Cr.P.C. however , produced Sarfraz Ahmad, Muhammad Arif, Muhammad Waris, Muhammad Ajmal as DW.I to DW-4, respectively as well as documentary evidence from Mark-A to Mark-J and closed the defence evidence.
5. At the end of trial, after thrashing entire evidence and evaluating arguments adva nced by learned counsel for the parties in support of their respective versions, learned trial court found that prosecution has proved its case against the appellant beyond reasonable doubt, convicted and sentenced him as mentioned and detailed in paragraph No.1 above. Hence, the instant appeal before this Court.
6. Learned counsel for the appellant contends that the prosecution has miserably failed to prove the guilt of the appellant to the hilt, impugned judgment is liable to be set aside and the appellant deserves acquittal. On the other hand, learned Deputy Prosecutor General contends that the prosecution has prove d the case against the appellant beyond any shadow of reasonable doubt so the impugned judgment does not warrant any interference by this Court.
7. After hearing arguments of learned counsel for the appellant, learned Deputy Prosecutor General and going through the record with their able assistance, it has been noticed that admittedly occurrence took place on 13.08.201 1 on 03:00/03:15 a.m. whereas on that day, sun arose in Lahore at 05:26 a.m. (as per www .timehubzone.com) and no source of light has been claimed by the prosecutio n at the relevant time and place of occurrence in written complaint (Ex.PM) and FIR (Ex.PM/1); A neither Muhammad Aurangzeb (PW-7) nor Muhammad Israr Khan (PW-9) deposed about lightening of any light at the time of occurrence; although Muhammad Abbas (PW-8) during his statement introduced source of light but it was found as dishonest improvement, relevant portion is being reproduced:-- "I recorded in my statement before police that car garage was illuminated by lights and I identified the accused correctly . Confronted with Ex.DA not recorded."
It is trite of law that fact brought on record through improvement for strengthening the case and filling the lacuna/gap, cannot be read in evidence and witness who introduces such improvement cannot be believed; in this regard, guidance has been sought from the dictum laid down by the august Supreme Court of Pakistan in the case of "Muhammad Arif v . The State" (2019 SCMR 631 ), relevant portion is being reproduced:- "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made disho nestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration.
Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge."
Neither any source of light has been taken into possession nor shown in site plan (Ex.PQ) prepared by Abdul Ghafoor Sub-Inspector/ Investigating Officer (PW-11), hence, identification of the assailants, who were previously not known to the cited witnesses, was not possible in the peculiar facts and circumstances of the case. In this regard, guidance has been sought from the dictum laid down by the august Supreme Court of Pakistan in the case of "Muhammad Saleem v. The State" (2010 SCMR 374) and case of "Haroon Shafique v. The State and others"
(2018 SCMR 21 18).
8. There may be millions of persons of young age or 26/27 years old, having wheatish complexion and Urdu speaking or having beard, therefore, facial features is the most important and significant feature for identification purpose; but "facial feature" of any of the assailants was not mentioned in written complaint (Ex.PM) and F .I.R.
(Ex.PM/1), therefore, identification of the appellant as one of the assailants during D identification parade, is inconsequential; in this regard, guidance has been sought from the dictum laid down by the august Supreme Court of Pakistan in case of "State/Government of Sindh through Advocate-General, Sindh, Karachi v . Sobharo" (1993 SCMR 585 ) and case of "Sabir All alias Fauji v . The State" (2011 SCMR 563 ). Furthermore, when no specific role of any assailant including the appellant was mentioned in written complaint (Ex.PM) and FIR (Ex.PM/1), then E deposing any specific role of any assailant or appellant by any witness during identification parade, is of no evidentiary value; it is own case of the prosecution that Muhammad Aurangzaib (PW -7) and Muhammad Abbas (PW-8) mentioned above along with their other companions were got tied in of fice at ground floor with ropes/string of Shalwar (URDU TEXT) and solution tape was stuck at their mouths, thereafter , assailants took Muhammad Israr Khan (PW -9) with them to upper storey of the house and then abducted Dr . Warren Winestine; hence, Muhammad Aurangzaib (PW -7) and Muhammad Abbas (PW -8) mentioned above are only witnesses to the extent of arrival of assailants at the place of occurrence and tying them in the room, however , they are not witnesses of abduction of aforementioned abductee of the case rather Muhammad Israr Khan (PW -9) is the star witness of alleged abduction but surprisingly only Muhammad Aurangzaib (PW -7) and Muhammad Abbbas (PW -8) joined identification parade and Muhammad Israr Khan (PW -9) was not produced during I.D. parade. Hence, on this score also, the identification parade is of no help to the case of prosecution as far as allegation of abduction and identification of appellant in said regard, is concerned. Therefore, actual role of present appellant in abduction occurrence could not be unearthed during identification parade, which is fatal for the prosecution in the peculiar facts and circumstances of the case.
It is own case of the prosecution that present appellant was arrested on 03.04.2012, he was kept in police custody and sent to judicial lockup on 04.04.2012 for the purpose of identification parade and thereafter , identification parade was held on 11.04.2012 under the supervision of Syed Naeem Abbas, Judl. Magistrate (PW-10); question does arise that where appellant was kept by the police from 03.04.2012 till 04.04.2012 and why he was not immediately sent to judicial lockup on 03.04.2012, in this scenario, objection of the accused at the time .of identification parade that his pictures were made and shown to the prosecution witnesses, is not without substance and there is every possibility regarding exposing of his identity to the prosecution witnesses, which fact ipso facto minimizes the value of identification parade. In view of all above, identification of the appellant as one of the assailants could not be proved and same is fatal for the case of prosecution.
9. It is important to mention here that Iftikhar Rasool Inspector/ Investigating Officer (PW-12) stated before the Court as under: - "As per Naqal rapt No.269 dated 13.8.201 1, Ahmad Hussain Bhatti furnishe d to 15 at about 3.33 A.M. by making a call from land line number 042335831343 stating therein that one person has been abducted by unknown person from 49-J Model Town, Lahore. Similarly , according to Naqal Rapt No.270, dated 13.9.201 1, Hassan Ali made a call from mobile No.03214304025 at 3.46 A.M. and furnished information that an American who was residing in 49-J Model Town has been abducted by 12/14 terrorists and the terrorists had tortured the guards. I did not join in the investigation Ahmad Hussain Bhatti. Volunteered I took information from him on telephone. Similar is the position with Hassan Ali."
(emphasis added)
Whereas Muhammad Aurangzaib (PW-7) in his statement before learned trial court stated that Ahmad Hussain Bhatti was General Manager of the Company , relevant portion of his statement is being reproduced: - "Hussain Ahmad Bhatti was the Gene ral Manager of the Company . Shahid was the Administrative of the Company ."
So, best evidence available on the point with respect to providing first information regarding the occurrence was withheld by the prosecution, therefore, inference would go against prosecution. Furthermore, perusal of recovery memo (Ex.P A), statement of Abdul Ghafo or S.I. (PW-11) and Muhammad Aurangza ib (PW-7) also reveals that from the tray, which was allegedly brought by the assailants at the place of occurrence and other material available there, finger prints of the assailants were secured; similarly , Iftikhar Rasool Inspector/Investigating Officer (PW-12) stated before the Court that finger prints experts were also got summoned at the place of occurrence and finger prints of the assailants were secured from there, report was sought from Punjab Forensic Science Agency , Lahore and NADRA but surprisingly both the said reports have not been produced before the Court during trial of the case; relevant portion of statement of PW -12 is being reproduced: - "It is correct that after the occurrence when the police reached there the staff of finger prints Forensic Science Laboratory Punjab and finger prints Bureau also reached there and also collected the samples of finger prints from different articles left by the accused persons. It is correct that report of said finger prints expert is not on the file. I did not make any effort to collect the above said finger prints report. It is correct that above noted finger prints were also sent to the NADRA for comparison and to inform whose finger prints are these. It is correct that I also not make any ef fort to collect the report from NADRA."
Meaning thereby that said reports were not supporting case of the prosecution, otherwise there was no reason for not producing the same. It was also case of the prosecution that CCTV camera s were installed at the place of occurrence but neither said cameras nor any CCTV footage/movie was produced before the Court even prosecution could not produce any valid reason for non-production of the same and also could not establish through any cogent material that said CCTV camera was not functional at that time; relevant portion of statement of Investigating Of ficer (PW -12) is being reproduced as under: - "It is correct that I did not take into possession any CCTV footage of the place of occurrence."
Therefore, it can safely be presumed/inferred that said piece of evidence. was also not supporting case of the prosecution, hence, has not been produced.
10. As far as evidence of Muhammad Aurangzaib (PW-7) is concerned, it was case of the prosecution that he was Security Guard in the relevant building where alleged occurrence took place but prosecution could not bring on record any material during investigation or trial of the case to prove that he was a Security Guard at the relevant time and place of occurrence. In his statement before learned trial court, PW-7 frankly stated that he had not produced his service card during investig ation before the Investigation Officer, relevant portion of his statement is as under: - "A Card was issued by every security company to its employee. I had not given any such card to the Investigating Of ficer during investigation."
He further stated that he did not know whether site plan was drafted on his pointin g out in his presence and even he could not tell about number of rooms in the house i.e. place of occurrence and also could not tell that either there was any wire on the boundary wall; relevant portion of his statement is being reproduced: - "I cannot tell the number of room on the ground and upper floor ."
He further stated as under: - "I do not remember barbed wire was placed on the boundary wall..................................
I do not remember that barbed wire was installed on the back side door ."
This state of af fairs shows that his testimony is not confidence inspiring and he is not reliable witness.
Similar is the position regarding Muhammad Abbas (PW-8), who stated before the Court that time of occurrence was 02:45 a.m. contrary to 03:15 a.m. mentioned in (Ex.PM); he also introduced following dishonest improvements: - "I got recorded in my statement under section 161, Cr. P.C. that I was employee of Hataf Company .
Confronted with Ex.DA where Hataf Security System is not recorded. I recorded in my statement before police that car garage was illuminated by lights and I identified the accused correctly . Confronted with Ex.DA not recorded. I recorded in my statement that accused Hafiz Imran pushed me forcibly and pulled my hair from behind, gagged my mouth with solution tape and inflicted butt blows on left leg, tide me and threw us all in the office. Confronted with Ex.DA where it is not so recorded. I had stated that two persons in front of me armed with fire arm weapons kept on guarding us and the others took Israr to the upper portion of the house. Confronted with Ex.DA where it is not so recorded. I had also stated that accused were talking with each other that there were other persons with them and in case of any overt act, they would kill us. Confronted with Ex.DA where it is not so recorded. I had stated that we heard cries of Dr. Warren Weinstein. Confronted with Ex.DA where it is not so recorded. I had stated before the Investigating Officer that the accused brought Dr. Warren Weinstein down and took him in our view . Confronted with Ex.DA where it is not so recorded. I had stated before the Investigating Officer that my mobile Nokia alongwith two sims and Rs.1600/1700 were taken by the accused. Confronted with Ex.DA where it is not so recorded. It is incorrect to suggest that I have mala fide made dishonest improvement to strengthen the prosecution cases."
(emphasis added)
It is trite of law that witness, who dishonestly improves his stance in order to strengthen case of prosecution, cannot be relied upon and in this regard case of "Syed Saeed Muhammad Shah and another v. The State" (1993 SCMR 550), case of "Muhammad Mansha v. The State" (2018 SCMR 772) and case of "Muhammad Arif v. The State" (2019 SCMR 631), can be referred advantageously . Muha mmad Abbas (PW-8) in his evidence also could not tell that how much time after the occurrence police arrived there; relevant portion of his statement is being reproduced: - "I cannot tell that after how much time the police had arrived."
It was claim of the prosecution that Muhammad Abbas (PW-8) was employee of Hataf Company and was also deputed as Security Guard in the building where alleged occurrence took place but prosecution could not bring on record any material during investigation or trial of the case to prove that he was a Security Guard at the relevant time and place of occurrence even he himself stated as under: - "It is correct that any document regarding my job as security guard on the place of occurrence was not produced by me before the Investigatin g Officer. I had not produced any document before the Investigating Officer that I was deputed as security guard at the place of occurrence on the day of occurrence."
"I do not know whether the place of occurrence was of fice of any company ."
Therefore, his testimony has not been found as confidence inspiring/ reliable.
As far as evidence of Muhammad Israr Khan (PW-9) is concerned, he was star witness of the alleged occurrence of abduction but prosecution could not produce any material during investigation or trial of the case to prove that he was a driver in the said company; he did not join identification parade of the present appellant, therefore, his evidence to the extent of present appellant is of no avail. During evidence before the Court, he stated that he came to the Court to depose for fifth time and the accused had been appearing in the Court on each and every date of hearing in his presence; relevant portion of his statement is as under:-- "I have come to court to depose for fifth time today . The accused had been appearing in the court on each and every date of hearing in my presence."
Therefore, identification of the appellant in Court by this witness is of no legal value.
Perusal of statement of PW -9 also reflects following introduced dishonest improvements: - "I had stated before the Investigating Officer that Dr. Warren Weinstein was residing in the upper portion of house No.49-J Model Town, Lahore and there was an office in the ground floor . Confronted with Ex.DB where it is not so recorded. I had stated before the Investigating Officer that it was 3/3.30 AM when we were observing SEHRI. Confronted with Ex.DB where 3.30 AM is not mention ed. I had stated before the Investigating Officer that five armed persons came from the backside gate. Confronted with Ex.DB where word back side gate is not mentioned. I had stated before the Investigating Officer . that three persons came from the front door . Confronted with Ex.DB where it is not so recorded. I had stated before the Investigating Officer that accused asked me how the door was to be opened by Dr. Warren Weinstein whereupon I told them under duress and threats that call bell or the knock is given at the door . Confronted with Ex.DB where it is not so recorded. I had also stated that as I was beaten by the accused therefore, I was made to knock at the door and in response Dr. Warren Weinstein asked who was at the door , I replied that I was Israr . Confronted with Ex.DB where it is not so recorded. I had also stated before the Investigating Officer that the door of the room was opened and all the accused entered forcibly into the room. Confronted with Ex.DB where it is not so recorded. I had also stated before the Investigating Officer that accused tied hands of Dr. Warren Weinstein and one of the accused gave him pistol blow . Confronted with Ex.DB where it is not so recorded. I did not record in my statement under section 161, Cr.P.C. that I was also tied with the rest of the security guards after taking down on the ground floor . Confronted with Ex.DB where it is so recorded from A-A. It is incorrect to suggest that I have made dishonest improvements to strengthen the prosecution case."
(emphasis added)
He got recorded in his statement during investigation that he was also tied with other security guards but dishonestly suppressed the same during his statement before the Court, however , he was duly confronted and said dishonest omission was proved. So, as per his own version, his mouth was gagged with solution tape and he was also tied with his companions i.e. Muhammad Aurangzaib (PW-7), Muhammad Abbas (PW-8) and other security guards by the assailants when they left house of occurrence, 'hence, question does arise that who untied them; prosecution is silent on this score; no signs of tying with ropes or string of Shalwar (URDU TEXT) on the body of any prosecution witness have been observed by the police and even no injury statement or Medico Legal Certificate in this regard is available on the record; solution tape allegedly put on the mouths of the witnesses was not found during investigation; mobile phones allegedly snatched by the assailants while leaving place of occurrence from Muhammad Abbas and Fazal Ameen, also could not be recovered during investigation. Nutshell is that all the aforementioned three witness es i.e. PW-7, PW-8 and PW-9, are neither reliable nor their testimony is confidence inspiring.
11. As far as recovery of pistol at the pointing out of the appellant is concerned, it is own case of the prosecution that no firearm weapon was used in the occurrence and only a butt blow of pistol was given to Dr. Warren Weinstein (abdcutee) but admittedly pistol (allegedly got recovered at the pointing out of the appellant) was not blood stained, no report in this regard has been produced by the prosecution and even no report regarding working condition of the pistol has been procured and produced by the prosecution, therefore, said piece of recovery is inconsequential and of no help to the case of prosecution.
12. There is another important aspect of the case that Iftikhar Rasool Inspector/Investigating Officer (PW-12) conceded during his statement before the Court as under: "It is correct that on 8.9.201 1 a news was printed in Daily Khabren Lahore that the American abductees is recovered from the area of Khushab and 12 accused persons were also arrested. It is further correct that the said news was printed on the statement of Law Minister , government of the Punjab".
However , neither said abductee nor detail of said 12 persons, who were allegedly arrested, was produced before the Court and admittedly , it is not case of the prosecution that present appellant was one of them.
13. There is another vital aspect of the case that Saif-ur-Rehman co-accused (who was jointly charged with the appellant in the case), has already been acquitted in the case by invoking the provisions of section 265-K, Cr.P.C. vide order dated 12.06.2013 passed by learned Judge Anti-T errorism Court-I, Lahore (Camp at Central Jail, Lahore).
14. It is trite of law that single dent in case of prosecution is sufficient for acquittal, in this regard, reliance can be placed upon the N cases of "Tariq Pervez v. The State" (1995 SCMR 1345 ), "Muhammad Mansha v. The State"
(2018 SCMR 772), "Abdul Jabbar and another v. The State" (2019 SCMR 129) and "Mst. Asia Bibi v. The State and others" (PLD 2019 SC 64 ).
14. Nutshell of the above discussion is that prosecution has been failed to prove its case against the appellant, therefore, there is no need to discuss defence version.
15. In view of what has been discussed above, Crl. Appeal No. 24 of 2015 , filed by Hafiz Imran alias Abbas alias Hamza (appellant) is allowed/accepted , impugned conviction recorded against and sentence awarded to him vide judgment dated 07.01.2015 passed by learned Judge Anti-T errorism Court-I, Lahore (Camp at Central Jail, Lahore), is hereby set aside. Appellant is acquitted of the charge, he be released from jail forthwith, if not required in any other case.
16. Capital Sentence Reference No. 01-T of 2015 is answered in negative and death sentence awarded to Hafiz Imran alias Abbas alias Hamza, is not confirmed.