ASIF SAEED KHAN KHOSA, J.--Azhar Hussain and Basharat appellants were convicted for an offence under section 365-A, P.P.C. Read with section 114, P.P.C. Vide judgment dated 13-7-2002 rendered by the learned Judge, Anti-Terrorism Court, Faisalabad and were sentenced to death each and their movable as well as immovable properties were ordered to be confiscated in favour of the State.
Through the same judgment Mubashir and Asif Shah appellants were also convicted for an offence under section 365-A, P.P.C, read with section 114, P.P.C. And were sentenced to imprisonment for life each and a fine of Rs,2,00,000 each or in default of payment thereof to undergo simple imprisonment for three years each. Azhar Hussain and Basharat appellants were also convicted for an offence under section 302(b)/34, P.P.C. And were sentenced to death each and to pay a sum of Rs,2,00,000 to the heirs of Abid Mumtaz deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months each.
Through the same judgment the learned trial Court had also convicted Azhar Hussain and Basharat appellants for an offence under section 7(a) read with section 6(2)(a) of the Anti- Terrorism Act, 1997 and had sentenced to them to death each and a fine of Rs,2,00,000 each or in default of payment thereof to undergo simple imprisonment for three years each. Mubashir and Asif Shah appellants were also convicted by the learned trial Court for an offence under section 7(b) of the Anti-Terrorism Act, 1997 and they were sentenced to imprisonment for life each and a fine of Rs,2,00,000 each or in default of payment thereof to undergo simple imprisonment for three years each. Azhar Hussain and Basharat appellants were further convicted by the learned trial Court for an offence under section 201, P.P.C, and were sentenced to rigorous imprisonment for five years each and a fine of Rs,1,00,000 each or in default of payment thereof to undergo simple imprisonment for two years each. Through the same judgment the learned trial Court had acquitted Mst.Nagluna accused. Azhar Hussain appellant has challenged his convictions and sentences before this Court through Criminal Appeal No,1316 of 2002, Basharat appellant has filed Criminal Appeal No,1317 of2002, Asif Shah appellant has preferred Criminal Appeal No,1294 of 2002 and Mubashir appellant has assailed his convictions and sentences before this Court through Criminal Appeal No,1318 of 2002. Sajid Mumtaz complainant has also filed Criminal Appeal No,1561 of 2002 as well as Writ Petition No,21134 of 2002 before this Court seeking setting aside of the acquittal of Mst.Naghma accused whereas the complainant has also filed Criminal Revision No,857 of 2002 before this Court seeking enhancement of the sentences passed against various convicts by the learned trial Court. We have heard all these matters together alongwith Murder Reference No,76-T of 2002 seeking confirmation of the sentences of death passed against Azhar Hussain and Basharat appellants and we propose to decide all these matters together through this present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Sajid Mumtaz complainant's younger brother namely Abid Mumtaz, aged about 8/9 years, had failed to return home on 1-1-2002 and had disappeared whereafter during the night between 4/5-1-2002 somebody hurled an audio cassette and a written note in the courtyard of the house of the complainant situated in Mohallah Chandan Wala within the area of Police Station Kotwali. District Jhang demanding a sum of Rs,65,00,000 as ransom for the release of Abid Mumtaz with a threat that he would be done to death in case the said demand was not met. The said audio cassette contained an oral message from Abid Mumtaz imploring for his release by payment of the ransom. On 8-1-2002 the complainant received a letter through post reiterating the same demand. The complainant's father namely Mumtaz Hussain, who was living in Saudi Arabia, returned home at Jhang in the meanwhile and at 9-00 a.m. On 10-1-2002 Sajid Mumtaz complainant lodged F.I.R. No,4, in respect of that incident at Police Station Kotwali, District Jhang for an offence under section 365-A, P.P.C.
3. Akbar Hayat, Incharge Police Post Ali Abad (P.W.22) took up the investigation of this case. On 23- 1-2002 the dead body of Abid Mumtaz was found in a sugarcane field and after its post-mortem examination by Dr.Abdul Sattar (P.W.5) on 24-1-2002 the same was buried by the complainant party. On 28-1-2002 Falak Sher (P.W.16) made a statement before the Investigating Officer regarding an extra-judicial confession allegedly made before him by Azhar Hussain appellant during the night between 23/24-1-2002. On 29-1-2002 Noor Muhammad (P.W.17) made a similar statement before the Investigating Officer regarding an extra-judicial confession allegedly made before him by Basharat appellant and Mst.Naghma co-accused during the night between 24/25-1- 2002. Likewise Ahmad Taki (P. W.19) made a statement before the Investigating Officer on 22-2- 2002 regarding an extra-judicial confession having beer made before him by Asif Shah appellant.
The appellants and their co-accused were, thus, arrested by the local police and during the investigation a pair of joggers, a motorcyclea picture-frame alongwith a picture of Azhar Hussain appellant and his wife namely Mst.Naghma co-accused, chloroform, a Chhuri and a pair of slippers allegedly belonging to Abid Mumtaz deceased were recovered from the person and from the house of Azhar Hussain appellant. Recoveries of a jacket and of a payment slip of school fee were effected from Mst.Naghma accused. The complainant had produced the above mentioned audio-cassette as well as the written note and the letter received by him in respect of the demand of ransom before the Investigating Officer and subsequently the said documents were sent to a Handwriting Expert for their comparison with the samples of handwriting of Mubashir appellant.
During the investigation some sniffing dogs were also deployed to identify the culprits during which exercise the dogs had statedly incriminated Azhar Hussain appellant. The investigation of this case was also conducted by Ghulam Abbas, Inspector/S.H.O. (P.W.23) at one stage and then after completion of investigation a challan was submitted against the accused persons.
4. At the commencement of the trial the learned trial Court framed a charge with eight heads under section 365-A, P.P.C., sections 365-A/109, P. P .C ..Sections 365-A/109, P. P . C . , section 302, P. P .C . , sections 302/109, P.P.C., section 201, P.P.C., sections 365-A/302/34, P.P.C, and section 7 of the Anti-Terrorism Act, 1997 against the appellants and their co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as 23 witnesses in support of its case against the appellants and their co-accused. Falak Sher (P.W.16), Noor Muhammad (P.W.17) and Ahmad Taki (P.W.19) deposed about the extra-judicial confessions having allegedly been made by different accused persons before them. Sajid Mumtaz complainant appeared as P.W.21 and stated about disappearance of his minor brother namely Abid Mumtaz and receipt of an audio-cassette and the writings demanding ransom for his release. Dr. Abdul Sattar (P.W.5) furnished the medical evidence. Talib Hussain, F.C. (P.W.3), Muhammad Nawaz, A.S.-1. (P.W.12) and Allah Dad F.C. (P.W.13) stated about various recoveries having been effected from different accused persons during the investigation of this case. Use of sniffing dogs was deposed about by Malik Sekandar (P.W.7); Ghazanfar Haider Pasha, Senior Civil Judge/Judicial Magistrate Section 30 (P.W.15) made a statement regarding taking of samples of the handwriting of Mubashir appellant and Mrs. Pervaiz Aslam Sheikh, Handwriting Expert (P.W.20) deposed about her comparison of the handwriting of Mubashir appellant with that on the writings demanding ransom. Akbar Hayat, Incharge Police Post Ali Abad (P.W.22) and Ghulam Abbas, Inspector/S.H.O. (P.W.23) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In their statements recorded under section 342, Cr.P.C. The appellants and their co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. The appellants and their co-accused had maintained in those statements that they had been falsely implicated in this case of a blind murder because of the pressure upon the local police for solving the same which pressure was increasingly mounting on account of public uproar and protest. The appellants and their co-accused produced three witnesses in their defence but they opted not to make any statement on oath under section 340(2), Cr.P.C.
7. At the conclusion of the trial the learned trial Court acquitted the appellant's co-accused namely Mst.Naghrna but after finding the case of the prosecution to have been proved against the appellants beyond reasonable doubt convicted and sentenced them as mentioned and detailed above. Hence, the present appeals, revision petition, writ petition and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the appellants as well as the learned counsel for the complainant and the State and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and, thus, the convictions and sentences of the appellants recorded by the learned trial Courts were unwarranted and unjustified and the same need to be set aside by this Court. As against that the learned counsel for the complainant and the State have maintained that the prosecution had successfully proved the guilt of the appellants and their acquitted co-accused to the hilt and, thus, the appeals filed by the appellants ought to be dismissed, the sentences of the appellants need to be suitably enhanced and the acquitted accused namely Mst.Naghma may also be convicted and sentenced accordingly.
9. Before embarking upon a detailed assessment and evaluation of the evidence available on the record we may point out certain peculiarities of this case which may have a bearing on its final outcome. Basharat and Mubashir appellants are real brothers and their sister Mst.Naghma accused is the wife of Azhar Hussain appellant whereas Asif Shah appellant is their neighbour. All these appellants and their co-accused reside in the same vicinity in Jhang city as the complainant and the house of some of these appellants is situated in the same street across the house of the complainant. There was no previous background of or bitterness between the parties. The F.I.R.In this case had been lodged after ten days of disappearance of Abid Mumtaz deceased and in the said F.I.R. Neither any culprit had been nominated nor any suspicion had been expressed against anybody in that regard. It is agreed at all hands that the alleged abduction and murder of Abid Mumtaz had remained unwitnessed and till the recovery of his dead body on 23-1-2002 the appellants and their co-accused had not been implicated in this case in any manner.
10. In order to prove its case against the appellants and their co-accused the prosecution had relied upon an alleged extra-judicial confessions made by Azhar Hussain appellant before Falak Sher (P.VV.16), an extra-judicial confession allegedly made by Basharat appellant and Mst.Naghma co-accused before Noor Muhammad (P.W.17), an extra-judicial confession statedly made by Asif Shah appellant before Ahmad Taki (P.W.19), evidence regarding similarity of handwriting of Mubashir appellant with the writing in the written note and the letter demanding ransom received by the complainant, recoveries allegedly effected from Azhar Hussain appellant and Mst.Naghma co-accused, Forensic Science Lahoratory s report regarding certain molds, use of sniffing dogs for identification of the culprits and the medical evidence. In the following paragraphs we propose to discuss and examine each one of these pieces of evidence separately for its worth and evidentiary value.
11. Adverting to the statement made by Falak Sher (P.W.16) regarding the extra-judicial confession allegedly made by Azhar Hussain appellant before him we have noticed that this witness was neither related to the complainant party nor, being a Junior Clerk in the office of the Deputy Commissioner, Jhang, he was in any position of authority or influence so as to help the said appellant in any manner either before the complainant party or before the police and, thus, it was quite improbable and unlikely that the said appellant would have chosen this witness to confess his alleged guilt before him or to seek his help in that regard. Apart from that Azhar Hussain appellant had allegedly confessed his guilt before this witness during the night between 23/24-1- 2002 but this witness had informed the police in that regard for the first time after four days, i,e, on 28-1-2002. To cover up this delay this witness had maintained before the learned trial Court that he had visited Police Post Ali Abad twice on different dates before 28-1-2002 but had remained unable to establish any contact with the local police. This is an explanation which can be accepted only with a pinch of salt as the same is rather unbelievable. Another explanation furnished in that regard by this witness was that for a few days during this period he had to go to Multan but the alleged factum of his visit to Multan had never been established on the record through any independent evidence in that respect. This witness had gone on to maintain that on 24-1-2002, during the morning after the night when Azhar Hussain appellant had allegedly confessed his guilt before him, this witness had participated in the burial of Abid Mumtaz deceased during which ceremony he had not only met Sajid Mumtaz complainant and his father Muhammad Mumtaz but had also disclosed to them about the confession allegedly made by Azhar Hussain appellant before this witness during the preceding night. It is quite strange that despite such an alleged disclosure even the complainant and his father had failed to inform the police in that regard till 28- 1-2002 when this witness had statedly informed the police about the same for the first time. Falak Sher (P.W.16) had statedbefore the learned trial Court that he used to live with a cousin who was a practicing Advocate at Jhang and surprisingly he had neither informed the said Advocate cousin about the alleged confession of Azhar Hussain appellant nor the said Advocate had, if informed, taken any step whatsoever to apprise the relevant authorities of that alleged confession. It is available on the record that the murder of Abid Mumtaz had received wide publicity in the city and due to the consequent alarm in the society the local administration was taking keen interest in the matter. Noor Muhammad (P.W.17) had stated before the learned trial Court that the funeral ceremony of Abid Mumtaz deceased was attended not only by the respectable of the city but also by members of the local administration. If Azhar Hussain appellant had actually made a confession before Falak Sher (P.W.16) during the night between 23/24-1-2002 then we have found it to be rather unacceptable to believe that he had failed to inform all such persons about the same at the funeral ceremony taking place on 24-1-2002. Even his admitted failure in apprehending or even trying to apprehend Azhar Hussain appellant upon his alleged confession of guilt has also been found by us to be a conduct which was unusual on the part of this witness. For all these reasons we have felt quite hesitant and reluctant in accepting the testimony of this witness.
12. Noor Muhammad (P.W.17) had deposed before the learned trial Court about an extra-judicial confession allegedly made before him by Basharat appellant and Mst.Naghma co-accused during the night between 24/25-1-2002. This witness too had taken four days for informing the local police about the alleged confession as he had made his first statement before the police in that regard on 29-1-2002. He too was not a man of substance or authority and he carried no influence over the complainant party or the police. He was admittedly a petty fodder seller and he had admitted before the learned trial Court that he had no deep intimacy with the complainant party. This witness lived only 10/15 yards away from the house of the complainant and he had claimed that he used to meet the complainant party almost everyday till 29-1-2002. His failure to disclose to the complainant party about the alleged confession of the above mentioned appellant for so many days is a circumstance which has heavily clouded the authenticity of his claim in that regard. He had maintained before the learned trial Court that he had made his first disclosure in that regard to the father of the deceased on 29-1-2002 at a time when the father of the deceased was passing in front of the place of business of this witness. This shows that he had not himself taken the trouble of going to anybody for this specific purpose even on that day. This witness had also failed to apprehend the allegedly confessing appellant and had also failed even to make an attempt at that. On account of all these considerations this witness has also failed to inspire our confidence.
13. Ahmad Taki (P.W.19) has been produced by the prosecution for the purpose of proving an extra- judicial confession allegedly made before him by Asif Shah appellant. This witness was a private teacher and again not in any position of authority or influence to help the said appellant in any manner. He too had failed to approach anybody for the purpose of making a disclosure about the alleged confession having been made before him and according to his statement before the learned trial Court he had made his statement before the police in that regard on 22-2-2002 when the police met him in a street per chance. He had admitted before the learned trial Court that he had made no attempt to apprehend Asif Shah appellant upon making of a confession by him. The conduct displayed by this witness, in that regard has also been found by us to be such as to reduce the evidentiary value of his deposition next to nothing and utterly insufficient to bring home a capital charge.
14. On account of the diverse factors and considerations discussed above we are not ready to lend any credence to the evidence produced by the prosecution regarding the extra-judicial confessions allegedly made by different accused persons in this case.
15. The prosecution wants this Court to believe that the written note and the letter demanding ransom for the release of Abid Mumtaz deceased were written by Mubashir appellant and in this regard the prosecution had produced Ghazanfar Haider Pasha, Senior Civil Judge/Judicial Magistrate, Section 30, Lahore (P.W.15) before whom different samples of the handwriting of Mubashir appellant were taken and Mrs.Pervaiz Aslam Sheikh, Handwriting Expert (P.W.20) -who had compared the samples of Mubashir appellant's handwriting with the handwriting in the above mentioned written note and the letter received by the complainant from the captors of Abid Mumtaz deceased. In this context we have noticed that the samples of Mubashir appellant's handwriting taken by P.W.15 were discarded by P.W.20 and subsequently fresh samples of the said appellant's handwriting were procured and it were the subsequent samples which were compared by P.W.20. The statement made by P.W.20 before the learned trial Court shows that even the fresh samples were found by P.W.20 to be in "highly disguised hands" and "not legible" as "wordings cannot be deciphered". Even according to the report (Exh.PW/1) prepared by P.W.20 in that regard showed that the fresh samples of the handwriting of Mubashir appellant were "highly unfit for analysis". During the hearing of this case we had ourselves looked at the said fresh samples as well as the relevant written note and the letter and we felt surprised as to how P.W.20 could give a positive report in respect of their comparison as even to a naked eye, the handwritings in the samples and in the compared documents had totally different characters and apparently they did not appear to be in the same hand. Apart from all this a critically important aspect of this matter is that in the present case this comparison of handwriting of Mubashir appellant is the only evidence available against Mubashir appellant but admittedly this piece 6 of evidence was never put to Mubashir appellant during his statement recorded under section 342, Cr.P.C. It is trite that a piece of evidence not put to an accused person under section 342, Cr.P.C., cannot be considered against him. With the exclusion of this piece of evidence against Mubashir appellant the prosecution's case against him crumbles to the ground as one of II no evidence at all vis-a-vis this appellant.
16. The recoveries allegedly effected in this case from Azhar Hussain appellant and Mst.Naghma co-accused were practically of no consequence. The joggers of Azhar Hussain appellant and the motorcycle allegedly recovered from him could not incriminate him as the moulds prepared from those joggers and from the tires of that motorcycle had been compared by the Forensic Science Laboratory with the moulds lifted from the place where the dead body of Abid Mumtaz deceased had been found but the report (Exh.PCC) of the Forensic Science Laboratory in that regard had remained inconclusive because the relevant moulds were found by the Laboratory to be unfit for comparison. The jacket and the slip regarding payment of school fee allegedly recovered from Mst.Naghma accused had never been independently proved to be connected with the alleged offences. Recovery of a picture-frame alongwith a photograph of Azhar Hussain appellant and his wife Mst.Naghma co-accused from the house of Azhar Hussain appellant did not advance the prosecution's case in any manner as they were recovered from the house of the said couple and availability of a photograph of that couple in their own house was but natural and usual and the same could not possibly incriminate the said couple in any manner. The alleged recovery of chloroform from the house of Azhar Hussain appellant was also of no consequence in this case as there is no independent evidence available in this case to establish that chloroform had actually been administered to Abid Mumtaz deceased for the purposes of his abduction or murder. The medical evidence in this case is completely silent in this respect. The Chhurri allegedly recovered from Azhar Hussain appellant's house was not stained with blood and the same could not incriminate him as availability of a knife in a house could also be for innocent purposes like use in the kitchen. Recovery of a pair of slippers allegedly belonging to Abid Mumtaz deceased from the house of Azhar Hussain appellant could have some incriminatory value but the said piece of evidence was completely robbed of its evidentiary worth by the statement of Sajid Mumtaz complainant (P.W.21) wherein he had categorically maintained that at the time of recovery of the dead body of Abid Mumtaz it was found that the deceased was wearing his slippers which were secured by the police as Exh.-P18/1-2. Apart from that the slippers allegedly recovered from the house of Azhar Hussain appellant were admittedly of common pattern the types of which were commonly available in the market and the same admittedly did not carry any distinguishing mark to connect them with the deceased. For all these considerations we have found that the recoveries allegedly effected in this case from Azhar Hussain appellant and Mst.Naghma co-accused were of no corroborative value at all.
17. Malik Sekandar (P.W.7) had deposed the learned trial Court regarding deployment of sniffing dogs for the purpose of identification of suspects in this case but his statement made before the learned trial Court exposes the hollowness of his deposition. He had maintained that on 10-1-2002 the sniffing dogs had smelled the dead body and had then grappled with Azhar Hussain appellant standing in the line of the suspects but the said statement has to be untrue because even according to the prosecution's own case the dead body of Abid Mumtaz had been found on 23-1- 2002 and the same had been buried on 24-1-2002. According to Akbar Hayat, Incharge Police Post (P.W.22), the Investigation Officer of this case, this exercise of deployment of sniffing dogs had been carried out on 26-1-2002 and not on 10-1-2002 as stated by Malik Sekandar (P.W.7) but even this statement of the Investigating Officer cannot be true as by 26-1-2002 the dead body of Abid Mumtaz had already been buried for two days and thus, there was no possibility of the sniffing dogs smelling the dead body before grappling with Azhar Hussain appellant. Apart from that admittedly Azhar Hussain appellant had not even been arrested in connection with this case by, 26-1-2002 as he had been implicated in this case for the first time on 28-1-2002 by Falak Sher (P.W.16) on the basis of an alleged extra-judicial confession made by this appellant before that witness. Therefore, the claim that this appellant was made to stand in the line of suspects before the sniffing dogs on 26-1-2002 is a claim which is without any foundation. Besides all these aspects of this matter we cannot lose sight of the fact that Azhar Hussain appellant and Abid Mumtaz deceased lived in houses situated across the same street and even in ordinary course of things they could have come in contact with each other in routine. It goes without saying that the sniffing dogs could not establish the time or the period of contact between Abid Mumtaz deceased and Azhar Hussain appellant, if any. It is interesting to note in this context that even the above mentioned Investigating Officer had stated before the learned trial Court that "It is correct that despite the grappling of sniffing dogs with Azhar Hussain accused on 26-1-2002. I did not formally arrest him while observing that his arrest merely on the basis of sniffing dogs could not be in the interest of justice". It may also be interesting to add here that Malik Sekandar (P.W.7) had stated before the learned trial Court in categorical terms that he could not identify that man in the Court who was picked up by the sniffing dogs. The dogs could not testify before the learned trial Court and the witness testifying in connection with the dogs' role in this case had failed to identify Azhar Hussain appellant as the man who was allegedly picked up by the dogs. This, we think, should suffice to rule this piece of evidence in the present case out of consideration.
18. The only other piece of evidence left to be considered by us is the medical evidence but the same is of no help in this case as medical evidence, by its nature and character, cannot identify a culprit in a case of an unseen occurrence. As all the other pieces of evidence relied upon by the prosecution in this case have already been disbelieved and discarded by us, therefore, the appellants' convictions cannot be upheld on the basis of the medical evidence alone. Thus, the medical evidence in this case may notdetain us any further.
19. For what has been discussed above we have arrived at a confident conclusion that the prosecution had failed to prove its case against the appellants and their co-accused beyond reasonable doubt and therefore, the convictions and sentences of the appellants recorded by the learned trial Court cannot be sustained. Thus, Criminal Appeal No,1316 of 2002, Criminal Appeal No,1317 of 2002, Criminal Appeal No,1294 of 2002 and Criminal Appeal No,1318 of 2002 filed before this Court by Azhar Hussain, Basharat, Asif Shah and. Mubashir appellants respectively are hereby allowed, their convictions and sentences recorded by the learned trial Court are set aside and they are acquitted of the charge framed against them. They shall he released from the jail forthwith if not required in any other case.
20. Pursuant to the discussion made and conclusions arrived at above Criminal Revision No,857 of 2002 filed by Sajid Mumtaz complainant seeking enhancement of the sentences of the appellants and Criminal Appeal No,1561 of 2002 and Writ Petition No,21135 of 2002 filed by him seeking setting aside of the acquittal of Mst.Naghma accused are hereby dismissed.
21. Murder Reference No,76-T of 2002 is answered in the negative.
Death sentences are NOT CONFIRMED.