PLJ 2022 Cr.C. 306 (DB)
[Lahore High Court Multan
Bench]
Present: Sadaqat
Ali Khan and Shehram Sarwar Ch., JJ.
HASSAN
JAVED etc.--Appellants
versus
STATE and
others--Respondents
Crl. As.
No. 852-ATA, 713-ATA, 888-ATA, 931-ATA &
C.S.R. No. 4 of 2016, heard on 8.9.2021.
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 7--Pakistan Penal Code, (XLV of 1860), Ss. 302, 365-A,
148 & 149--Circumstantial evidence--Last seen evidence--Extrajudicial
confession--Identification parade--Medical evidence--Recovery of dead
body--Benefit of doubt--Acquittal of--Complainant PW stated that her son aged
about 7/8 years went out for playing and did not return till evening--The
complainant received a phone call on her mobile no. and the unknown caller told
her that her son is in his custody and demanded ransom for his release--There
is absolutely no plausible or convincing reason for delay in reporting the
matter to the police--After three days, she went to police station for
registration of case--There is no direct evidence against the appellants qua
kidnapping or killing of deceased child--Role played by the appellants had
never been mentioned in the FIR or disclosed before the learned Trail Court
through any solid or convincing evidence--The dead body of deceased was found,
lying in khaal and criminal case was got registered at Police Station in other
district on the statement of one PW against unknown accused--This is un-witnessed
occurrence--Circumstantial evidence in an unseen occurrence--Story narrated by
both witnesses of last seen appears to be improbable because the complainant as
well as and appellants were already know to these PWs and if they had seen
minor son of complainant in the company of appellants along with unknown
persons, then as to why they did not ask the reason from the appellants for
taking the minor--Appellant confessed his guilt about the commission of
crime--Evidence of extrajudicial confession in the instant case is not worthy
of reliance--The witnesses who allegedly picked up the appellants during the
identification parade have not mentioned the role of the
appellants--Identification parade conducted in this case carries no value in
the eyes of law--Occurrence took place in the month of January, toka was
recovered by the said appellant in the month of Feburary, which was received in
the office of PFSA in March, therefore, it was unlikely that the blood on the
toka would not disintegrate during the above mentioned period--Murder in issue
had remained un-witnessed and thus the medical evidence could not point an
accusing finger towards any of the culprits implicated in this case--It is the
prosecution, which has to prove its case against the accused by its own legs
and it cannot take any benefit from the weakness of the case of the defence--If
there is a single circumstance which creates doubt regarding the prosecution
case, the same is sufficient to give benefit of doubt to the accused--Appeal
allowed and appellants acquitted. [Pp.
309, 310, 311, 312, 313, 314 & 315] A, B, C,
D,
E, G, H, I, J, K, L, M, N & O
1995 SCMR 127; PLJ 2008 SC 687; PLD 2018 SC 813; 1985 SCMR
721, 2009 SCMR 120; 2016 SCMR 1605; 2009 SCMR 230 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 365-A, 148 & 149--Circumstantial
evidence--Circumstantial evidence in an unseen occurrence should be like a
well-knit chain and each circumstances was to be connected with each other to
make one complete chain and if even one link of the chain is missing this would
entitle the accused to be acquitted by giving him the benefit of doubt. [P. 310] D
2017 SCMR 986; 2011 SCMR 1127; 2009 SCMR 407; 2008 SCMR 1103;
PLD 2003 SC 704 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 365-A, 148 & 149--Extrajudicial confession is
always considered a weak type of evidence--Extrajudicial confession has never
been considered sufficient for recording conviction on a capital charge unless
it is strongly corroborated by tangible evidence coming from unimpeachable
source. [P. 312] F & G
2009 SCMR 166; PLD 1951 FC 107; 2006 SCMR 231, 2001 SCMR 1405,
2000 SCMR 683, 1996 SCMR 188 ref.
Pakistan Penal Code, 1860 (XLV
of 1860)--
----Ss. 302 & 365-A, 148 &
149--Onus of proof--It is the prosecution, which has to prove its case against
the accused by its own legs and it cannot take any benefit from the weakness of
the case of the defence. [P. 315] N
Pakistan Penal Code, 1860 (XLV
of 1860)--
----Ss. 302,
365-A, 148 & 149--Benefit of doubt--If there is a single circumstance which
creates doubt regarding the prosecution case, the same is sufficient to give
benefit of doubt to the accused.
[P.
315] O
M/s.
M.A. Hayat Haraj, Kh. Qaiser Butt, Mian Babar Saleem, Muhammad Irfan Arabi
and Habib Ullah Shakir, Advocates for
Appellants.
Malik
Ejaz Hussain, Advocate for Appellant (Niaz).
Syed
Nadeem Haider Rizvi, DDPP along with Latif, Sub Inspector for State.
Mr.
Zia-ur-Rehman Randhawa, Advocate for Complainant.
Date of hearing: 8.9.2021.
Judgment
Shehram Sarwar Ch., J.--Hassan
Javed, Muhammad Saleem, Niaz, Mst. Naseem Akhtar and Mst.
Mudassara Noureen (appellants) were tried by the learned D&SJ/Judge, Anti-Terrorism
Court No. I, Multan in case FIR No. 52 dated 21.01.2015, offence under Sections
302, 365-A, 148 and 149, PPC read with Section 7 of the Anti-Terrorism Act,
1997 registered at Police Station Shah Rukn-e-Alam District Multan. Vide judgment
dated 03.09.2016 passed by learned trial Court, the appellants have been
convicted and sentenced as under:--
i. Convict
each of accused u/S. 365-A/149, PPC and punish him/her with death with the
order of forfeiture of property.
ii. Convict
each of them u/S. 302(b)/149, PPC and punish him/her with death. Each convict
shall pay compensation Rs. 1,00,000/- u/S. 544-A, Cr.P.C. to legal heirs of
person killed. In case of default, convict shall suffer 06 months S.I.
iii. Convict each of them u/S. 7(e) of Anti-Terrorism Act, 1997 and
punish him/her with death.
However, the appellants were acquitted
of the charge under Section 148, PPC. Assailing the above convictions and
sentences, the appellants have filed the appeals in hand whereas the learned
trial Court has sent Capital Sentence Reference No. 04 of 2016 for confirmation
or otherwise of the appellants' sentence of death, as required under Section
374, Code of Criminal Procedure. As all the matters have arisen out of the same
judgment, therefore, are being decided together through this single judgment.
2.
Prosecution story, as set out in the FIR (Ex.PA) registered on the written
application (Ex.PA/1) of Mst. Rehana Kausar, complainant (PW.8) is that
on 18.01.2015 at around 4.00 p.m. Abdullah Niaz son of complainant aged about
7/8 years went out for playing and did not return till evening. Muhammad Aamir
brother of complainant, who had come to see the complainant and Muhammad Zafar,
tenant/relative of complainant searched for him at different places but no clue
was found. On 19.01.2015 at about 11.30 a.m. the complainant received a phone
call on her Mobile No. 0306-8030798 from Mobile No. 0315-0075789 and the
unknown caller told her (complainant) that her son is in his custody and
demanded rupees one crore for his/released
3. After completion of investigation, report under Section 173,
Code of Criminal Procedure was submitted in the case. The appellants were
summoned by the learned D&SJ/Judge, Anti-Terrorism Court No. 1, Multan to
face the trial. Copies of relevant documents were provided to them, as required
under Section 265-C, Code of Criminal Procedure and formal charge under
Sections 302, 365-A, 148 and 149PPC and Section 7 of the Anti-Terrorism Act,
1997 was framed against them on 16.06.2015, to which they pleaded not guilty
and claimed trial. After the closure of prosecution evidence, statements of the
appellants under Section 342, Code of Criminal Procedure were recorded on
24.08.2016, wherein they refuted all the allegations of the prosecution and
professed their innocence. The appellants neither opted to appear as their own
witnesses in disproof of the prosecution allegations as provided under Section
340(2) Code of Criminal Procedure nor did they produce any defence evidence.
However, after conclusion of trial, the learned trial Court convicted and
sentenced the appellants, as detailed above. Hence these appeals and capital
sentence reference.
4. We have heard learned counsel for the parties as well as the
learned DDPP for the State and gone through the record with their able
assistance.
5. As per contents of FIR, Abdullah Niaz son of complainant
went out of the house on 18.01.2015 and did not turn up; the complainant
received phone call of some unknown person, who allegedly demanded ransom
amount from the complainant for the release of her son whereas the matter was
reported to the police on 21.01.2015 i.e. about three days after missing
of the child and two days having received phone call by the complainant. There
is absolutely no plausible or convincing reason for the aforesaid delay in
reporting the matter to the police rather the complainant admitted in her
cross-examination that when she received the call, she never approached the
police station and kept on waiting and after three days, she went to police station
for registration of case, which casts serious doubt about the veracity of
prosecution story. Reliance may be placed on case law titled as "Mehmood Ahmed and three others vs. The
State and another" (1995 SCMR 127) wherein the Hon'ble Supreme Court
of Pakistan at page 131 has observed as under
“5.
... Although in some circumstances a delay of two hours may not be of much
importance yet in the facts and circumstances of this particular case as they
have happened, the delay has great significance. It can be attributed to
consultation, taking instructions and calculatedly preparing report keeping the
names of accused open for roping in such persons whom ultimately prosecution
may wish to implicate ..."
6.
Admittedly, there is no direct evidence against the appellants qua kidnapping
or killing of deceased child. The role played by the appellants in the incident
in issue had never been mentioned in the FIR or disclosed before the learned
trial Court through any solid or convincing evidence. It had also never been
disclosed or alleged by the prosecution in the FIR as to under what
circumstances the deceased had been done to death. The dead body of deceased
was found, lying in a khaal situated in Mauza Jaalwala and case FIR No. 30
dated 21.01.2015 under Section 302 PPC was got registered at Police Station
Khanewal Kohna District Klianewal on the statement of Masood Ahmad (PW.11)
against unknown accused.
7.
Undeniably, this is an unwitnessed occurrence and the case in hand is one of
circumstantial evidence. It has been held in a number of cases by the Hon'ble
Supreme Court of Pakistan that circumstantial evidence in an unseen occurrence
should be like a well-knit chain and each circumstance was to be connected with
each other to make one complete chain and if even one link of the chain is
missing this would entitle the accused to be acquitted by giving him the
benefit of doubt, Reliance is placed upon "Altaf
Hussain vs. Fakhar Hussain and anothers” (2008 SCMR 1103) "Muhammad Hussain versus The State
(2011 SCMR 1127), "Ibrahim and
others versus The State" (2009 SCMR 407), "Sh. Muhammad Amjad versus the State" (PLD 2003 Supreme
Court 704) and "Hashim Qasim and
another versus The State" 2017 SCMR 986). The case of the prosecution
is based on the following pieces of evidence:
Evidence
of Last Seen:
The
evidence of last seen was furnished before the learned trial Court by Muhammad
Waqas (PW.9) and Hafeez-ur-Rehman (PW.10).It was claimed by Muhammad Waqas
(PW.9) before the learned trial Court that on 18.01.2015 at about 4.00/5.00
p.m. he was going to his duty from Multan to Ahmadpur Sharqia. He was standing
at Hamza Chowk for going to lorry adda, he saw Mst. Mudassara Naeem and Mst.
Naseem Akhtar with Abdullah on motorcycle going towards Nobahar canal. After
three days, when he (PW.9) turned back from his duty, he came to know about
kidnapping of child and informed the said facts to the complainant/mother of
minor. Likewise, the stance of Hafeez-ur-Rehman (PW.10) was that he went to
Mauza Jotpur for collection of milk and while coming back when he reached near
the house of Niaz (appellant), he saw Niaz, Mudassara Noureen along with
Abdullah with two unknown persons, taking the child in the house of Niaz and
after four days, he came to know that Abdullah had been kidnapped. The story
narrated by both the witnesses of last seen appears to be improbable because
the complainant as well as Mst.Naseem Akhtar and Mudassara Noureen
(appellants) were already known to these PWs and if they had seen minor
Abdullah Niaz son of complainant in the company of appellants along with
unknown person(s), then as to why they did not ask the reason from the
appellants for taking the minor. Even they told story of last seen to the
complainant after the registration of case. The conduct displayed by the said
PWs was nothing but unusual detracting from the veracity of his statement. Even
otherwise last seen evidence is a weak type of evidence unless corroborated
with some other piece of evidence which is conspicuously missing in this case.
Reliance is placed on case law titled as “Altaf
Hussain vs. Fakhar Hussain and another" (PLJ 2008 SC 687) and "Muhammad Abid vs. The State and
another" (PLD 2018 Supreme Court 813). Therefore, the statements of
Muhammad Waqas (PW.9) and Hafeez-ur-Rehman (PW.10) are of no avail to the
prosecution.
Extra
judicial Confession:
It was case of prosecution that Niaz, appellant made
extrajudicial confession before Muhammad Yamin (PW.14). The stance of the witness
of extrajudicial confession was that he along with his son Saqib Ali was
present in his house where Niaz (appellant) came and told that he along with
other appellants kidnapped Abdullah Niaz from Shah Rukn-e-Alam, kept him in his
house for two days; he had committed wrong and killed the child after two days
of abduction and threw his dead body at Lahore Mour, Khanewal. PW.14 further
stated that Niaz, appellant requested him to get pardoned him from the
complainant, who was from his brotherhood. The extrajudicial confession is
always considered a weak type of evidence and it is procured at any time during
the investigation when there is no direct evidence available to the
prosecution. Moreover, the legal worth of the extrajudicial confession too is almost
equal to naught, keeping in view the natural course of events, human
behaviours, conduct and probabilities, in ordinary course. Needless to remark
that extrajudicial confession has never been considered sufficient for
recording conviction on a capital charge unless it is strongly corroborated by
tangible evidence coming from unimpeachable source. The question of evidentiary
value of the extrajudicial confession came up for consideration before the
August Supreme Court of Pakistan in the case reported as Tahir Javed vs. The State" (2009 SCMR 166), wherein at page
170, the Apex Court of Pakistan has been pleased to observe as under:
"10.
... It may be noted here that since extra-judicial confession is easy to
procure as it can be cultivated at any time therefore, normally it is
considered as a weak piece of evidence and Court would expect sufficient and
reliable corroboration for such type of evidence. The extra-judicial confession
therefore must be considered with over all context of the prosecution case and
the evidence on record. Right from the case of Ahmed v. The Crown PLD 1951 FC
107 it has been time and again laid down by this Court that extra-judicial
confession can be used against the accused only when it comes from
unimpeachable sources and trustworthy evidence is available to corroborate it.
Reference in this regard may usefully be made to the following reported
judgments:
(1) Sajid Mumtaz and others v. Basharat and
others 2006 SCMR 231, (2) Ziaul
Rehman v. The State 2001 SCMR 1405, (3) Tayyab
Hussain Shah v. The State 2000 SCMR 683, (4) Sarfraz Khan v. The State and
others 1996 SCMR 188."
Though
Muhammad Yamin (PW. 14) has stated that the appellant confessed his guilt about
the commission of crime but there was no occasion or reason for the appellant
to make such confession before this witness because he was a cultivator by
profession and did not enjoy any social status/authority prompting the
appellant to make such a confession before him. Moreover, it was not the case
of this witness before the learned trial Court that they along with Saqib Ali
his son (given up PW) tried to apprehend the appellant at the time of his
extrajudicial confession, who was not armed with any weapon. Even otherwise,
PW.14 neither informed the policy nor anybody else. In the light of above
discussion, we are of the view that the evidence of extrajudicial confession in
the instant case is not worthy of reliance.
Test Identification Parade:
So
far as test identification parade in this case is concerned, the prosecution
had maintained that Hassan Javed and Muhammad Saleem, appellants had correctly
been identified by Waqas (PW.9) as well as Hafeez-ur-Rehman (PW.10) during test
identification parade conducted and supervised by a Special Judicial Magistrate
(PW.23) but we have noted that the eye-witnesses who allegedly picked up the
appellants during the identification parade have not mentioned the role of the
appellants, as admitted by the Magistrate (PW.23) during his Cross examination.
Even in the proceedings of identification parade (Ex.PHH), the witnesses have
not assigned any specific role to the appellants and it is simply mentioned
therein that PWs identified the appellants. In this regard reliance is placed
on "Mehmood Ahmad and 3 others
versus The State and another" (1995 SCMR 127). The relevant portion of
the above said judgment at page 133 reads as under:
"It is quite
clear from the entire evidence relating to identification parade that the
accused named were not identified by their role in the crime. They were merely
picked up and the role attributed to them was not stated by the witness. In
such circumstances the settled law is that identification could not be relied
upon and was of no evidentiary value. Reference can be made to Khadim Hussain v. The State (1985 SCMR
721), where Shafiur Rahman, J. observed as follows:
"It is not clear from the entire
evidence relating to identification parade whether the persons named were
identified by their role in the crime or as individuals, as friends or as foes.
If it was the identification of their role then it should have been specific so
as to complete the picture of the crime and reinforce the case against them for
commission of the crime. The value of such an identification parade was pointed
out as early as 1924 in Lal Singh v.
Crown ILR 51 Lah.396 in following words:
"The mere fact that a
witness is able to pick out an accused person from amongst a crowd does not
prove that he has identified that accused person as having taken part in the
crime which is being investigated. It might merely mean that the witness
happens to know that accused person. The principal evidence of identification
is the evidence of a witness given in Court as to how and under what
circumstances he came to pick out a particular accused person and the details
of the part which that accused took in the crime in question. The statement
made by such a witness at an identification parade might be used to corroborate
his evidence given in Court, but otherwise the evidence of identification
furnished by an identification parade can only be hearsay except as to the
simple fact that a witness was in a position to show that he knew a certain
accused person by sight."
This view was followed
in Ghulam Rasool and 3 others v. The
State (1988 SCMR 557)."
As
per statement of Ibrar Hussain, Ex-Inspector (PW.26), the appellants were
arrested on 26.01.2015 whereas the identification parade of the appellants was
conducted on 07.02.2015. Therefore, chances cannot be ruled out that the
witnesses (PW.9 & PW.10) had seen the appellants prior to the holding of
identification parade. Under the above circumstances, we are of the view that
the identification parade conducted in this case carries no value in the eyes
of law.
Recoveries:
It
was claimed by the prosecution that at the time of arrest of Hassan Javed,
appellant, Nokia 1110 phone (P.5) containing sim No. 0315-0075789 (P.6) was
recovered from his possession vide recovery memo (Ex.PQ). The
complainant allegedly received call from this number for payment of ransom
amount. The said recovery is not much helpful for the prosecution for the
reasons that no voice transcript was obtained from the concerned department to
prove this assertion of the prosecution. Even the I.O. did not obtain any proof
that the said phone was owned by Hassan Javed or the sim was got issued in his
name. So far as the alleged recovery of toka (P.4) at the instance of Hassan
Javed, appellant is concerned, the same is inconsequential for the reason that
the-occurrence took place in the month of January 2015, toka was got recovered
by the said appellant on 28.02.2015, which was received in the office of Punjab
Forensic Science Agency on 13.03.2015, therefore, it was unlikely that the
blood on the toka would not disintegrate during the above mentioned period.
Reliance is placed on the case law reported as "Muhammad Jamil vs. Muhammad Akram and others" (2009 SCMR
120). As far as recoveries of gold ring (P.1) at the instance of Mudassara
Noureen, appellant and chain locket (P.7) at the instance of Niaz, appellant
are concerned, the same are of no avail to the prosecution for the simple
reason that there was no mention of these articles in the FIR. The recovery of
motorcycle No. 7161-MNK at the instance of Muhammad Saleem, appellant is also
inconsequential as no proof regarding its ownership was brought on record. We
have already disbelieved the evidence of last seen in the preceding paragraph,
so the credibility of this piece of evidence also becomes doubtful.
Medical
Evidence:
The
medical evidence produced by the prosecution was not of much avail to the
prosecution because the murder in issue had remained unwitnessed and thus the
medical evidence could not point an accusing finger towards any of the culprits
implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem vs. Shabbir Ahmad and
others" (2016 SCMR 1605).
8. So far as versions of the appellants taken by them in their
statements recorded under Section 342, Code of Criminal Procedure, are
concerned, since the prosecution evidence is doubtful in nature, therefore,
there is no need to discuss the same.
9.
We have considered all the pros and cons of this case and have come to this
irresistible conclusion that the prosecution could not prove its case against
the appellants beyond any shadow of doubt. It is, by now well established
principle of law that it is the prosecution, which has to prove its case
against the accused by standing on its own legs and it cannot take any benefit
from the weaknesses of the case of the defence. In the instant case, the
prosecution remained failed to discharge its responsibility of proving the case
against the appellants. It is also well established that if there is a single
circumstance which creates doubt regarding the prosecution case, the same is
sufficient to give benefit of doubt to the accused, whereas, the instant case
is replete with number of circumstances which have created serious doubt about
the prosecution story. Reliance may be placed on the case law reported as "Muhammad Akram versus The State"
(2009 SCMR 230).
10. For the foregoing reasons, Criminal Appeal Nos.852-ATA,
713-ATA and 888-ATA of 2016 filed by Hassan Javed, Niaz and Muhammad Saleem,
appellants respectively and Crl. Appeal No. 931-ATA of 2016 instituted by Mst.
Naseem Akhtar and Mst. Mudassara Noureen, appellants are allowed,
convictions and sentences awarded to