' IFTIKHAR HUSSAIN CHAUDHRY, J.--- Kabir Ahmad alias Channi was convicted by judgment, dated 9-10-1997 by Special Court Anti-Terrorist Activities, Bahawalpur, for offence under section 302, P.P.C.
And section 364-A, P.P.C. And awarded sentence of death on both charges. He was also convicted for offence under section 201, P.P.C. And sentenced to seven years' R.I. And a fine of Rs,20,000 and in the event of default in payment of fine, he was to suffer rigorous imprisonment for one year. The convict submitted appeal through jail.
2. Sohail Ahmad son of Muhammad Aslam aged about 7/8 years went amassing on 18-6-1996 and a report in this regard was incorporated vide Diary No,6, dated 19-6-1996 in "Daily diary" of Police Station Civil Lines, Bahawalpur at the instance of Ahniad Bakhsh, grandfather of Sohail Ahmad.
After about seven months case F.I.R. " No,7, dated 7-1-1997 under section 364-A, P.P.C. Was registered at Police Station Civil Lines, Bahawalpur at the instance of Muhammad Aslam, father of Sohail Ahmad. According to Muhammad Aslam, his son Sohail Ahmad aged 8 years who was student of Millet Public School, Mohajir Colony, Bahawalpur went to take tuition at about 10-00 a.m.
On 18-6-1996, but did not return home till evening. Search was launched for him who did not fructify and consequently, matter was reported to police on 19-6-1996. Search for Sohail Ahmad continued and during the process Kabir Ahmad, a cousin of first informant, was suspected for having kidnapped and murdered Sohail Ahmad. F.I.R. Exh.P.A./1 was registered by Jamat Ali, A.S.-I. And later the accused was arrested on 19-1-1997.
3. Kabir Ahmad was found guilty during investigation conducted and later report under section 173, Cr.P.C. Was submitted in Court of Session, Bahawalpur. Charge for offences under section 364- A/302/201, P.P.C. Was framed against the accused on 26-4-1997. Later the case was transferred to Special Court constituted under Anti-Terrorism Act, 1997, where prosecution produced 6 witnesses to prove its case against the accused.
4. Muhammad Aslam complainant appeared as P.W.1. According to witness he presented application Exh.P.A. To police on the basis of which formal F.I.R. Exh.P.A./1 was recorded. He further stated that on 7-1-1997, again stated on 15-1-1997 his son, Nadir Ali and Ihsanul Haq were standing near railway station when Kabir Ahmad accused came there who caught hold of him. According to witness, on inquiry the accused/convict told them that he had abducted Sohail Ahmad and murdered him and, thereafter, the complainant tried to take him to the police, but he escaped. The witness further stated that on 19-1-1997, he got arrested Kabir Ahmad and later on 22-1-1997 the accused while in custody disclosed in presence of Nadir Ali and Ihsan that after abduction of Sohail Ahmad deceased he murdered him and threw the dead body in seasonal canal in the area of Chak No,11/BC. The accused pointed out the place of occurrence and got recovered articles, school bag Exh.P.1, shirt white Exh.P.2, pair of shoes Exh.P.3/1-2, which were identified by the witness. In cross-examination the witness denied the suggestion that story about taking of tuition was false.
He stated that the witnesses were not related to him and that they had assembled near railway station without any prior arrangements.
5. Ihsanul Haq appeared as P.W.2. He stated that he, on 15-1-1997 at about 10/11 a.m. Along with Nadir Ali and Muhammad Aslam was sitting near cycle stand at railway station and were talking about missing of Sohail Ahmad. At the same time Kabir Ahmad appeared from the side of the mosque and he was stopped by them. The witness took him aside and asked him about the missing of Sohail Ahmad when the convict informed him that he had murdered the child and asked him for forgiveness. According to Ihsanul Haq, he then summoned Nadir and in his presence Kabir Ahmad re-affirmed the story. The witness further stated that they caught hold of Kabir Ahmad and were taking him to police, but he escaped. The witness further stated that on 22-1-1997 he along with Nadir. Ali and Muhammad Aslam went to the police station in connection with the investigation of the case and in his presence he confessed about the murder of Sohail Ahmad by throwing him in the canal and stated that he would point out the place. The witness further deposed that they proceeded to .4' the bank of canal and police prepared the memo. Of place of occurrence Exhs.P.B. And P.C. According to the witness, the accused got recovered articles Exhs.P.1, P.2, P.3 and P.4 which were wrapped in white polythene bag which were taken into possession vide memo. Exh.P.D. In cross-examination the witness admitted that Kabir Ahmad was not related to him nor had any connection with him and that he was not known to him prior to 15-1-1997. He stated that he had gone along with Muhammad Aslam in search of Sohail Ahmad and Nadir Ali P.W.2 was present there. The witness stated that seasonal canal was 6/7 k.Ms. Away from Bahawalpur City.
6. Muhammad Khalil appeared as P.W.3. The witness was owner of "Arslan Cycle Works", and he deposed that he rented bicycles to customers and that on 18-6-1996, Kabir Ahmad accused obtained a bicycle on rent from him at about 10-00 a.m. And that a child aged about 7/8 years was with him at the relevant time. The witness deposed that the accused and the child went away on bicycle and later returned the bicycle at about 9-00 p.m., but the child was not with him. The witness further stated that he produced register Exh.P.6 which contained entry relating to renting out bicycle Exh.P.5. In cross-examination he admitted that he did not obtain signatures of Kabir Ahmad appellant. He denied the suggestion that a false entry was made in the register at the instance of Muhammad Aslam.
7. Muhammad Sharif appeared as P.W.4. According to witness he was present at "Aslam Cycle Works" when the accused came to the shop in custody of police at 3/3-30 p.m. And the accused pointed out the shop and told that he got bicycle on rent on the day of occurrence and that the owner of the bicycle produced register Exh.P.6 which was taken into possession vide memo. Exh . P.
E.
8. Ahmad Bakhsh, grandfather of Sohail Ahmad appeared as P.W.S. He deposed about the matter having been reported to the police about the disappearance of Sohail Ahmad on 19-6-1996.
9. Jamat Ali, A.S.-I./Investigating Officer appeared as P.W.6. He recorded formal F.I.R. Exh.P.A./1 when Muhammad Aslam complainant presented written application Exh.P.A. Before him. The Assistant Sub-Inspector, Police proceeded to the house of the complainant, prepared site plan Exh.P.G.
According to him, he was present at "Welcome Chowk, Bahawalpur" on 15-1-1997 when Nadir Ali, Ihsanul Haq and Muhammad Aslam came there and informed him that Kabir Ahmad accused had confessed before them about the commission of the offence, and he arrested the accused on 19-1- 1997. The Investigating Officer deposed that he proceeded to the place of occurrence, prepared memo. Exhs.P.B. And P.C. And prepared rough site plan Exh.P.G. As Pr, well. The A.S.-I. Further deposed that the accused in police custody led to the recovery of articles belonging to Sohail Ahmad by digging earth near."Acacia tree" and he prepared relevant memoranda. The Investigating Officer also took into possession bicycle Exh.P.5 and register Exh.P.6. In cross- examination the Investigating Officer admitted that the place of occurrence was 10/12 k.Ms. From the police station and that there was no "Abadi" near the place of occurrence. The witness admitted that he had not 'met the tutor of the child or visited his residence. The witness admitted that Chak No,11/BC was situated within the area of Police Station Baghdadul Jadeed, but he did not make any entry at that police station about his visit to the place of occurrence and that he had not taken any help from that police.
10. Statement of Kabir Ahmad was recorded under section 342, Cr.P.C. In which he professed innocence. He also appeared as his own witness under section 340(2), Cr.P.C. He stated that Muhammad Aslam had demanded hand of his sister Mst. Irshad Bibi for his brother Muhammad Shabbir, who was an addict, and he refused to oblige Muhammad Aslam and that for that reason he got recorded this false case against him. He claimed that the recoveries were fake and were planted against him by the Investigating Officer with collusion. He denied having made any confession before the prosecution witnesses.
11. The trial Court believed the prosecution case and proceeded to convict Kabir Ahmad for offence under section 302/364-A/201, P.P.C. And sentenced him as noted above.
12. Kabir Ahmad submitted appeal through jail which has been heard with the assistance of learned defense counsel appointed at State expenses. Learned defense counsel submitted that criminal case was registered after a delay of seven months and there was hardly any material on record which connected the convict with the commission of offences charged with. He submitted that the material on record was not properly evaluated or appreciated by the trial Court and conviction was recorded in a mechanical fashion. Learned Assistant Advocate-General supported the impugned judgment and submitted that there was evidence of last-seen, that of extra-judicial confession and also of recoveries at the instance of the appellant which connected him with the commission of offence and pleaded for maintaining the conviction.
13. Sohail Ahmad, a young boy aged about 7/8 years left his house on 18-6-1996 and did not return home where after the matter was reported to police vide report, dated 19-6-1996 Exh.P.F. According to which the body was missing from 12-00 noon on 18-6-1996. For next seven months nothing happened and later first information report Exh.P.A./1 was registered at Police Station Civil Lines, Bahawalpur in which suspicion was raised against Kabir Ahmad by saying that he being a bad character possibly had kidnapped and murdered Sohail Ahmad. Kabir Ahmad was later arrested and put to trial. The prosecution banked upon the evidence of -last-seen, recovery of certain articles belonging to Sohail Ahmad deceased and hiring of a bicycle to prove its case against Kabir Ahmad.
14. According to Muhammad Aslam complainant he along with Nadir Ali (not produced) and Ihsanul Haq was present near railway station on 15-1-1997 when Kabir Ahmad came there and the witness took him aside and asked him about Sohail Ahmad and that Kabir Ahmad confessed his guilt before him. The witness in cross-examination admitted that he did not know that Kabir Ahmad prior to 15-1-1997. When the witness did not even know Kabir Ahmad, there apparently was no occasion or reason for Kabir Ahmad to have confessed his guilt before the witness. The manner in which the confession wasiMade by Kabir Ahmad has differently been stated by Muhammad Aslam P.W.1 and Ihsanul Haq, P.W.2. The complainant and two other persons had, according to him apprehended Kabir Ahmad and their case is that he escaped from their custody while being taken to police station. This, appears to be a preposterous stand as Kabir Ahmad was neither armed at the relevant time nor was threatening the witnesses and three of them could have easily overpowered him and taken him to police. Ttie 'evidence of extra-judicial confession is too tenuous to inspire any confidence. Such a confession is made before persons who are in a position to influence or to prevail upon the complainant party to come to terms with the accused. Kabir Ahmad was a cousin of Muhammad Aslam complainant and he could have sought forgiveness for his cousin instead of calling help from Ihsanul Haq, a totally stranger. The evidence of last-seen, therefore, has to be kept out of consideration as being too insipid, discrepant and incredible.
15. The prosecution had relied upon the testimony of Muhammad Khalil, who was owner of "Arslan Cycle Works" which also rented bicycles to customers. The deposition of the witness was to the effect that Kabir Ahmad had come to his shop along with a child who was holding a satchel at about 10-00 a.m. And had left the place alongwith the child on a bicycle Exh.P.5 rented out by the witness. This shop is located in the vicinity where the complainant lived. The child went missing in June, 1996 and for next seven months. Muhammad Khalil did not speak out the fact that Kabir Ahmad who was known to him had taken away the child with him. This witness had also produced register Exh.P.6 to show that Kabir Ahmad had taken bicycle on rent from him. The register did not contain any thumb-impression or signatures to show that he hired the bicycle. Even if Kabir Ahmad had taken a bicycle on rent from Khalil Ahmad that really turned on nothing as nobody had seen Kabir Ahmad and Sohail Ahmad riding bicycle and for going to seasonal canal which was about 10/11 k.Ms. Away from police station in the area of Chak No,11/BC. The testimony of the witnesses has to be ignored for the reason that he had not disclosed the factum of having seen the accused and the deceased together at the earliest occasion. He has not explained as to why he kept mum for almost seven months.
16. The recovery of shirt, of satchel containing copies, books, a pair of shoes at the potation of accused/convict from near an acacia tree has also been pressed into service by the prosecution.
The case of the prosecution is that the accused had confessed that he had murdered Sohail Ahmad by drowning him in the canal. That being so there was no occasion for the accused to have taken off shirt or shoes of Sohail Ahmad before throwing him into canal as alleged. There apparently was no need for the accused to have encased shirt, school bag and other articles belonging to Sohail Ahmad in a polythene bag and to preserve them for being used against him at a later stage. The articles were hardly of any significance and could have been disposed of by the accused at the time of commission of offence or shortly thereafter. It has also not been proved by the prosecution that Sohail Ahmad had gone to take tuition to the house of his tutor on the relevant day. In the first report Exh.P.F. Which was recorded at the police station on 19-9-1996, no mention is made of the fact that the deceased had gone to take tuition anywhere or that he had taken along with him his school bag. The recovery of these articles, in these circumstances, cannot advance the prosecution case in any manner.
17. The dead body was not recovered in this case and no worthwhile evidence was led by the prosecution at trial which showed that the deceased was taken out of his house by the appellant or was taken to seasonal canal which was about 10/11 k.Ms. Away in the area of Chak No,11/BC.
Nobody had seen the accused or the deceased together in the area of Chak No,11/BC or near the canal. The last-seen evidence is too remote to connect the appellant with the commission of offence. The evidence of extra-judicial confession is likewise too seamy to be acceptable. The evidence collected during investigation and later produced at trial was deficient qualitatively as well as quantitatively to connect the appellant with the commission of offence. Therefore, we allow the appeal, set aside the conviction and sentence awarded to Kabir Ahmad appellant. He shall be set at liberty if not wanted in any criminal case.
' Murder Reference No,4 of 1997 is answered in negative.