NADIM ABBAS Versus State

QAZI MUHAMMAD AMIN AHMED, J.--- Nadeem Abbas and Ali Abbas, real brothers inter se, appellants herein, are in receipt of a guilty verdict returned to them by a learned Addl. Sessions Judge at Lahore vide impugned judgment dated 19-7-2011; they are convicted under sections 302(b), 364 read with section 34 of the Pakistan Penal Code, 1860 and sentenced to death and imprisonment for life respectively. On the charge of homicide, they have been burdened to pay compensation in the sum of Rs.100,000/- each or six months SI in the event of default whereas they have been fined Rs.50,000/- each or to undergo one year's SI in default of payment thereof on the charge of abduction. Mst. Faiz Batool, absconder, though never put to trial nor indicted stands acquitted vide the same judgment.

2. Prosecution case is founded on written application Ex.PA moved by Muhammad Saeed Iqbal Randhawa (PW-3) straight at Police Station Qila Gujjar Singh, Lahore on the basis whereof formal FIR Ex.PA/1 was recorded by Shakil Khurshid, SI (PW-5); as many as 20 persons were arrayed as accused, of them 10 by names; they are Zafar Abbas, Nadim Abbas, Ali Abbas, Abid Boxer, Asghar Ali, Iqbal alias Bala, Intizar alias Bhaya, Yousaf Qasayi, Chacha Muhammad Boota and Ashiq Hussain accompanied by 10 unknown persons. According to application Ex.PA, the complainant had taken Moonlight Cinema on lease for a period of two years 1982-1984; subsequently, it was taken over again on lease by his brother Javed Iqbal Randhawa; the currency of the second lease was to expire on 30-6-2045. The leases were granted by owner of the cinema, Naseem Sharif, hereinafter referred to as the deceased. It is alleged that on 2-11-2006, accused named above, variously armed, took forcible possession of the cinema after thrashing the staff; the incident was reported to the police, however, no case was registered and it was in this backdrop that the deceased came to Police Station Qila Gujjar Singh on 13-8-2007 when on her way back, the accused abducted her. The complainant apprehended murder of the lady and prayed for recovery of her dead body. Babar Saeed, Azhar Javed and Nawaz Bajwa are cited as witnesses in application (Ex.PA). According to prosecution witnesses, the appellants and their co-accused abducted the deceased, an affluent lady, who inherited huge estate to grab her moveable and immoveable properties including the cinema. Defence Ex.DA/1 reflects that the deceased was first cousin/Khalazad of appellants' father Zafar Abbas, who died before he could be put to trial. Nadeem Abbas, appellant was arrested on 19-7-2008 and sent to face trial vide report under section 173 of the Code of Criminal Procedure, 1898 dated 4-11-2008 wherein Abid Boxer, Ali Abbas and Mst. Faiz Batool were shown as absconders, however, after his arrest on 8-1-2010 Ali Abbas, appellant was challaned through report dated 22-1-2010. Pursuant to a disclosure, Zafar Abbas, co-accused, since dead, pointed out the place of burial of the deceased. Through a magisterial order, the dead body was disinterred on 16-8-2008 in graveyard Bagh-e-Rehmat Trust, Baidian Rood Lahore Cantt. Autopsy was conducted by Dr. Farhat Sultana (PW-9); the dead body was found in a fairly preserved and mummified form, however, facial features were not recognizable; teeth were missing and socket obliterated. On internal examination, abdominal visceras were well-preserved and identifiable, however, heart was in a putrefied form and uterus was not traceable in pelvis. On the examination of skull, a circular hole 5 x 3.5 cm on the left side of skull 8 cm above and posterior to left xygomatic arch 7 cm above left ear hole and 6 cm left to midline was noticed; the body frame was intact and so was hyoid bone; under the hole mentioned above, no fracture was noticed. Visceras were sent to the Chemical Examiner for detection of poison; according to report of Chemical Examiner Ex.PZ, arsenic was detected in the visceras, however, without quantitative estimation. Hospital record relating to the deceased was also presented to the Medical Officer, returned after autopsy; there is no positive opinion with regard to cause of death, even detection of arsenic is not "commented upon due to lack of quantitative estimation"; in cross-examination, the witness admitted that there were no marks of strangulation. The appellants were indicted on 22-4-2010; they denied the charge and claimed trial, pursuant whereto, the prosecution besides placing reliance upon forensic reports and other documentary evidence produced as many as 15 witnesses to drive home charge against them. Confronted with prosecution evidence, the appellants took the following unanimous plea:-

"The present complainant and his two other witnesses are close relatives and the complainant is real brother of former manager of Imperial Cinema who was removed from service by said Naseem Sharif in her life time and the Imperial Cinema was transferred to my father through legal proceedings and other properties were also transferred in the name of my father through legal procedure and the complainant hatched upon a conspiracy in connivance with the high ups police officers namely Mushtaq Sukharia, DIG, Umer Virk SP CIA and Rai Zahmeer ul Haq, SP and all these police officers got registered false cases against us because my father, said Mst. Naseem Sharif in her life time and my cousin Abid Boxer and his father Ghulam Hussain filed many Writ Petitions in the Lahore High Court for their illegal act and deeds, so in grudge of this enmity the police and complainant party got registered the present false case. In fact, Naseem Sharif was our close relative, she was never abducted. She was under the treatment about her death and allegedly died due to her illness and prosecution has not produced any single witness before this Court to confirm the unnatural death of Naseem Sharif. I and my co-accused are innocent. The police officers are looted our house hold articles including gold ornaments valuing in Crores of rupees and to usurp these articles they have tried to involve us in false cases through fabricated story."

In support of the above plea, the appellants relied upon documentary evidence to demonstrate that the deceased during period preceding her death was an independent and free person as she appeared before a Registrar and a Court in respect of a power of attorney and as such she was neither under captivity nor restraint.

The learned trial Judge on conclusion of trial convicted and sentenced the appellants as referred to above vide the impugned judgment, vires whereof, are being challenged through Crl. Appeal No.1504 of 2011 by Nadeem Abbas and Ali Abbas, appellants. Through Crl. Appeal No.1841 of 2011 reversal of acquittal of Mst. Faiz Batool is prayed for by Naureen Sharif, appellant, daughter of the deceased whereas Crl. Revision No.1040 of 2011 seeks enhancement of compensation. Confirmation of death penalty is prayed for through M.R. No.330 of 2011; these are being decided through this single judgment.

3. Learned counsel for the appellants contends that there is considerable delay between the incident of alleged abduction and recourse to law, that too, by a person, who had his own axe to grind as he was vying for a most valuable piece of property in the heart of metropolitan; that there is no evidence which may even remotely frame the appellants with the charge; that evidence of extrajudicial confession merits outright rejection as Muhammad Afzal, PW before whom the alleged confession was made by Nadeem Abbas appellant has not been produced; that medical evidence does not advance prosecution case and instead contradict the prosecution case fabricated through methodology of extrajudicial confessions. Contrarily, the learned Law Officer assisted by the learned counsel for the complainant and Mst. Naureen Sharif defended the impugned judgment and prayed for confirmation of death penalty on the ground that various pieces of circumstantial evidence successfully drove home charge against the appellants, who took the life of an innocent elderly lady to grab her property and that each piece of circumstantial evidence is so connected that every hypothesis of appellants' innocence stands excluded. Learned counsel for Mst. Noreen Sharif contends that there was no occasion for the learned trial Judge to bless an absconder with acquittal.

4. Heard. Record perused.

5. Prosecution case is hinged upon circumstantial evidence, comprising of motive, abduction-cum-last seen, extrajudicial confession and disclosure leading to discovery of dead body. Last seen evidence has been furnished by Muhammad Babar Saeed (PW-1), his cousin Azhar Javed (PW-2) and father Muhammad Saeed Iqbal Randhawa (PW-3); they are witnesses of motive as well; unanimously they narrated about the forcible takeover of Moonlight Cinema by the accused on 2-11-2006. It is a common ground at the bar that a complaint under section 3 of the Illegal Dispossession Act, 2005 was instituted, however, subsequently withdrawn; as to why the said complaint was withdrawn is left to our imagination without any plausible explanation in support thereof ? This background with divergent claim over the property would certainly warrant a more cautious scrutiny of statements of these witnesses, as on their own showing, they were statedly wronged by the appellants and their co-accused. As the issue of forcible occupation of the cinema was not brought to its logical end through process of law, it would hardly advance prosecution case. According to these witnesses, the deceased after participating in an inquiry was on way back in a rickshaw on 13-8-2007 when Nadeem Abbas. Ali Abbas and Zafar Abbas with the help of a gunman intercepted her and whisked away in a land cruiser. This incident, however, is reported to the police as late as on 11-7-2008 at Police Station Qila Gujjar Singh situating at a distance of one kilometer; there is no explanation whatsoever to justify interregnum of almost one year that took complainant to approach nearby Police Station located at a distance of one kilometer; yet another aspect of the case is mode of travelling by the deceased before she was abducted; we are at a loss to understand as to why a woman of her means and status preferred, a rickshaw instead of using her own conveyance, the script is far from being confidence inspiring and thus merits outright rejection. The deceased was found buried in a graveyard Bagh-e-Rehmat Trust, Baidian Road, Lahore Cantt. and it is prosecution's own case that probable time between the death and postmortem was more than three months, this being so the evidence of last seen falls outside the ambit of proximity of time and space to constitute an incriminatory nexus inter se the deceased and the appellants. Next is extrajudicial confession of Nadeem Abbas, appellant before Abdul Rehman (PW-12), apparently a person of no consequence; it is his own case that he originally belonged to Ghalla Mandi Sheikhupura and had come to visit Muhammad Afzal, PW at Lahore without an apparent cause or reason and that it was in his presence that Nadeem Abbas, appellant visited the said PW on 16-7-2008 to make his breast clean and furnish all the details of the incident previously not known to any of the prosecution witnesses; it is mind boggling as to why Nadeem Abbas appellant, in the absence of any compelling reason, would put his own person as well as real brother and father at risk of prosecution on capital charge merely to subsequently retract therefrom. Muhammad Afzal, who received Nadeem Abbas, appellant at his residence followed by Ali Abbas, appellant has declined to oblige the prosecution as he opted to stay away from the witness box; he was given up as having been won-over. The confessional statement is otherwise so elaborate and comprehensive that it contains all the relevant details needed for appellants' prosecution; it requires a pinch of salt; a person relieving stress of his conscience so as to bring himself at peace with his soul is not expected to be so expressive to divulge even the peripheral details, incidentally required to support prosecution case; it takes us to an irresistible conclusion that the alleged extra judicial confession is contrived to meet requirements of the prosecution; another reason to reject this piece of evidence is that as per confessional statement the deceased was done to death through suffocation by gagging, however, according to Dr. Farhat Sultana (PW-9) there was no mark of strangulation nor asphyxia is opined as cause of death. Subsequent arrival of Ali Abbas, appellant and repetition of story earlier narrated by Nadim Abbas is not only ludicrous, it renders the entire exercise as joint as well. Exhumation of dead body of the deceased does not advance case of the prosecution as well for the reason that there is no positive opinion by the medical officer about homicidal nature of the death; mere presence of traces of arsenic in a viscera without any quantitative estimation is beside the mark. Similarly, on prosecution's own showing, the existence of the grave in graveyard Bagh-e-Rehmat Trust, Baidian Road, Lahore Cantt. was already in the knowledge of witnesses after alleged extrajudicial confession and the particulars of the corpse were also available with the administration of graveyard, therefore, pointing out of the grave by Nadeem Abbas, appellant does not constitute information within the contemplation of Article 40 of the Qanun-e-Shahadat Order, 1984. It is by now well settled that circumstantial evidence, must come from an unimpeachable source to sustain a charge; it must comprise of various links, constituting a chain and thereby establishing an inexorable nexus between the crime and the culprit by excluding every hypothesis of innocence; exclusion of one link would destroy the entire edifice. It would be grievously unsafe to maintain convictions; consequently, Crl. Appeal No.1504 of 2011 is allowed; the appellants are acquitted from the Charge; they shall be released forthwith, if not required in any other case. By necessary corollary Criminal Appeal No. 1841 of 2011 against acquittal of Mst. Faiz Batool and Criminal Revision No. 1040 of 2011 are dismissed Murder Reference No. 330 of 2011 is answered in the NEGATIVE and death sentence awarded to the appellants is NOT CONFIRMED.

HBT/N-11/L Appeal allowed.