NAZIR Versus State
MUHAMMAD SALEEM JESSAR, J.--- By means of instant Spl. A.T. Jail Appeal No.D-18 of 2014, the appellants Nazir, Mashooque Ali @ Imtiaz and Liaqat Ali Khaskheli have assailed/impugned the Judgment dated 25.02.2014 passed by learned Judge, Anti-Terrorism Court No.4, Karachi in Special Case No.43/ 2009, re. State v. Nazir and others. The above case is outcome of crime No.12 of 2009, for the offences punishable to sections 365-A, 354, 324, 34, P.P.C. read with section 7 of Anti-Terrorist Act, 1997 (hereinafter referred to as the "Act 1997"), registered with P.S. Sohrab Goth (AVCC). The learned trial court after conducting full-dressed trial has found the appellants/convicts guilty of the charges under section 7(e) of Act 1997, read with section 365-A, P.P.C., therefore, has convicted and sentenced them for life imprisonment and forfeiture of their property. However, learned trial court has extended the grace of section 382(b), Cr.P.C.
2. The prosecution case as narrated by complainant Abdul Majeed in terms of FIR lodged by him on 07.02.2009 at 1200 hours stating therein that he was an Estate Broker. On 6.02.2009 he had taken his son Abdul Haseeb, aged about 18 years, in his Land Cruiser No.BC-7575' together with driver Dil Muhammad to Agha Khan Hospital. After collecting reports he was returning when at 1030 hours reached near curve of Grid Station leading to Gulshan-e-Maymar where they were intercepted by five bandits duly armed with Kilashankoves. It is alleged, the culprits put him, his son and the driver and made them seated at rear seat by force and one of them took driver seat while four others sat in the vehicle. The person at steering was speaking urdu while remaining four were speaking Sindhi. The complainant claimed that he and his driver could identify them. The culprits aheading towards northern bypass and were asking them to remain mum. When they reached at A/25, Mini Bus Stop, Gulshan-e-Maymar, the complainant raised hue and cry as his office was situated nearby. The person driving the vehicle asked others to kill him, on which the complainant caught hold of the barrels of Kilashankovs from both sides on which they fired 3/4 shots but they did not hit to anybody. During scuffle the complainant while opening the door of vehicle jumped out and sustained injuries but the culprits took away his son and driver. The complainant immediately informed the police via 15 and his relatives. The culprits had snatched his mobile phone No.0302-8267103, his son's mobile No. 0313-2022826 and from his driver the mobile phone bearing No. 0344-7350326. The complainant with the assistance of police and relatives was in search of his son, the driver and the vehicle. When they reached at northern bypass road, they saw that their vehicle was going towards Toll Plaza. The complainant and the police of P.S. Afghan Camp, Gulshan-e-Maymar tried to intercept the accused and the vehicle but the accused aims to commit their Qatl-i-amd and deter them made fires upon the police party. In retaliation by police three tyres of vehicle were burst. After an encounter abductee/driver Dil Muhammad was recovered along with vehicle. While taking advantage of darkness of the night, the culprits made their escape good along with abductee (son of complainant namely Abdul Haseeb). The complainant could not trace out whereabouts of culprits and his son. Consequently, complainant got registered instant case against five unknown accused claiming therein that he could identify them if shown again. His driver told that three culprits have taken away the abductee towards the bushes while two fled away leaving the vehicle. To such effect present FIR was lodged.
3. After registration of case, police started investigation and in meantime arrested the appellants on 12.04.2009. During investigation all the appellants were subjected to identification parade on 23.04.2009 by P.W/complainant Abdul Majeed Abid. Again on 16.07.2009 the appellants were subjected to joint identification parade inside the Jail where alleged abductee Abdul Haseeb identified all three appellants by putting his finger on their shoulders. However, P.W./alleged abductee Dil Murad had neither participated in the identification parades nor had picked/identified the appellants during both identification tests. After completion of legal formalities police had submitted the challan before the competent court of law having jurisdiction on 20.05.2009. The learned trial court after taking cognizance, supplied the requisite papers to appellants/convicts in terms of section 265-C, Cr.P.C. The learned Presiding Officer/ judge took oath on 15.08.2009 at Ex.5 and then framed formal charge against appellants at Ex.6, to which they pleaded not guilty and claimed to be tried vide their pleas Ex.7 to 9.
5. To prove its charge, the prosecution has examined in all eleven (11) witnesses i.e. 1. P.W.-1/Judicial Magistrate Muhammad Aslam Shaikh Ex.10.He produced two letters of I.O. and memos of identification parade at Exhs.10/ A to 10/D, P.W.2 SIP Javed Akhtar at Ex.13, he produced memos of arrest of accused at Ex.13/ A and 13/B, P.W.3 Abdul Haseeb at Ex.14, he produced memo of place of release of abductee, memo of place of payment of ransom and notice at Ex.14/A to 14/C. P.W.4 Dil Muhammad at Ex.15, he produced memo of place of abduction at Ex.15/A. P.W.5 SIP Mukhtiar Hussain Buriro at Ex.16, he produced 154, Cr.P.C. statement of complainant and FIR No.112/2009 at Ex. 16/A and 16/B. P.W.6 Abdul Majeed Abid at Ex.17, he produced memo of place of recovery and memo of seizure of Audio C.D at Exhs. 17/A and 17/B. P.W.7 Syed Zakir Hussain examined at Ex. 18, P.W.8 SIP Sharifullah examined at Ex.19, PW.9 SIP Haji Imtiaz Ali at Ex.20. The prosecution gave up one P.W. SIP Muhammad Bux Brohi vide statement of ADPP at Ex.21. P.W.10 Inspector Muhammad Nasir Mashwani examined at Ex.22. P.W.11 Inspector Rana Ishrat, who was Investigating Officer examined at Ex.23. He produced order of S.S.P, AVVC, Karachi at Ex.23/A, Roznamcha entries Nos.30 and 31 at Ex.23/B, copies of notices under section 160, Cr.P.C. at Ex.23/C to 23/F, application for collecting mobile data at Ex.23/G and memo of recovery of record of calls at Ex.23/H. Then the prosecution closed its side vide statement of learned ADPP.
6. Learned trial Court recorded the statements of accused in terms of section 342, Cr.P.C. at Ex.24, 25 and 26 to which the appellants denied allegations of the prosecution and claimed their innocence. However, neither have examined themselves on oath under section 340(2), Cr.P.C. nor led any evidence in their defence. They however, deposed that they have been implicated falsely by the complainant party in connivance of the police and had prayed for justice.
7. After hearing to the DDPP for the State and learned defense counsel for the appellant learned trial court had convicted and sentenced the appellants in the above terms.
8. Mr. Abdul Razak, learned counsel for the appellants argued that investigation conducted by the police was illegal as according to him by virtue of the sub-clause (i) to clause 4 of third schedule, added by the Act of 2005 dated 11.01.2005 in Anti-Terrorism Act, 1997 and per section 19(1) of the Act investigation in kidnapping or ransom shall be conducted by the police officer not below the rank of Inspector. He further submitted that by virtue of statute the investigation shall be completed within seven working days and such report in terms of section 173, Cr.P.C. read with section 19(2) of the Act be directly forwarded to ATC Court. He further contended that failure in submission of investigation within prescribed period would tantamount to disobedience of order of ATC Court. He has focused upon the statement of P.W.11 Rana Ishrat which shows that at the time of investigation he was having rank of SIP. In support of his above contention he has placed reliance upon the Judgment of Lahore High Court vide 2011 YLR 522. He further submits that appellant Mushtauqe Ali and Nazir were already in police custody in connection with crime Nos.24/2009 and 25/2009 registered with P.S. AVCC and appellant Liaqat Ali was also in police custody of P.S Artillery Maidan and was shown in connection with crime Nos.196/2009 under section 392, 34, P.P.C., 217/2009 under section 353, 324, 34, P.P.C., 218/2009 under section 13-D, Arms Ordinance, 219/2009 under section 13-E, Arms Ordinance, 220/2009 under section 6, 9-C of C.N.S Act, 1997 of P.S. Gulshan-e-Iqbal Karachi, 295/2009 under section 381-A, P.P.C. registered with Police Station Ferozabad, 110/2009 under section 392, 34, P.P.C. registered with P.S. Gizri, 83/2009 under section 381-A, P.P.C. of P.S. Risala, 295/2009 under section 381-A, P.P.C. of Police Station Preddy and 38/2009 under sections 353, 324, 34, P.P.C. registered with P.S. Artillery Maidan Karachi. He has further argued that I.O. interrogated the appellants Mushtaque Ali and Nazir at P.S. AVCC on 12.04.2009 and on 15.04.2009 I.O. was informed by the SHO Ghazanfar Kazmi of P.S ACLC regarding arrest of appellant Liaquat Khaskheli. He further submitted that I.O. had admitted in his cross that the appellants were already arrested in other cases therefore, they were shown to have been arrested from concerned P.S. He further submitted that joint identification parade was held in piece meal which has also no evidentiary value. He further submitted that trial court has relied upon the confession of the appellants before police which too was illegal as it was not before DSP as required by section 21(h) of the Act. He further submitted that list of dummies was also not annexed by the Magistrate and the witnesses while picking the appellants in identification parade had not attributed any specific role to any of the appellants, therefore, same being illegal cannot be taken into consideration as the identification parade was having inherent defect. He further submitted that possibility of the appellants to have been shown to the P.Ws cannot be ruled out and in such situation the conviction cannot be sustained. He lastly submitted that the appellants were not confronted with material brought on record by the prosecution during their statements under section 342, Cr.P.C. and the ocular version was also inconsistent and same did not inspire confidence and prayed for acquittal of the appellants in terms of instant appeals. In support of his above contentions he has placed reliance upon following cases reported in 2010 SCMR 1604, 2013 SCMR 768, 2001 SCMR 424, 1999 SCMR 697, PLD 2008 SC 513, 2010 SCMR 1009 and 2003 SCMR 1419.
9. On the other hand Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General Sindh has supported the impugned Judgment and stated that the discrepancies pin pointed by the defence counsel are minor in nature, which could not be taken into consideration. Per Mr. Awan, prosecution evidence is inspiring confidence and learned trial court has rightly convicted the appellants.
10. We have heard the arguments and gone through the record minutely and anxiously.
11. Before appreciation of the evidence, it would be essential to reproduce the charge which reads as under:--
"CHARGE"
I, Abdul Ghafoor son of Abdul Rehman, Memon, Judge Anti Terrorism Court No.II, Karachi, do hereby charge you accused:-
1. Nazir son of Gul Hassan, resident of Gali No.5, Saifal Goth, Kachiabadi, new Karachi.
2. Mashooq Ali @ Imtiaz son of Khan Muhammad resident of House No.329, Ayoub Goth, New Karachi.
3. Liaquat Ali Khaskheli son of Allah Bachayo, resident of Goth Mashal, Taluka Sakrand, P.S. Qazi Ahmed, District Nawabshah Sindh. as under:-
That on 06.02.2009 at 2230 hours you along with accused Muhammad Ali Chandio @ Sepahi son of unknown, Usman Chandio son of unknown, Kuraro Abro son of unknown and Dadan Abro son of unknown, all residents of Khamiso Goth, Karachi, (not yet arrested), when 5 of you were armed with Kalashnikovs stopped Complainant Abdul Majeed, Abdul Tayyab and driver Dil Muhammad while they were in Car No.BC-7575, near turning of Grid Station and they were going to Gulshan-e-Maymar, and made them sit on the rear seat and one of you started driving the Car and remaining also boarded that Car and that one who was driving the Car was speaking in Urdu and remaining 4 of you Sindhi and when the Complainant raised cries, one of you who was driving the Car told you remaining to kill him and Complainant then succeeded in pointing the nozzles of Kalashnikov outside of Car holding them forcibly in their hands and Kalashnikov was fired 3/4 times but no body was injured during which the Complainant opened one door of Car and jumped outside from running Car as a result of which he was injured and then you abducted his son Abdul Tayyab and driver forcibly and robbed them of Mobile Phone No.0302-8267103 of the complainant, Mobile Phone No.0313-2022826 of abductee Abdul Tayyab and Mobile Phone No.0344-7350326 of driver Dil Muhammad and that thereafter Complainant along with police was searching for his son, driver and Car at Northern Bypass they saw this car going towards Tool (Toll) Plaza and the police tried to stop the Car at Afghan Camp, Gulshan-e-Maymar, but you fired at them with the arms weapons with intention to kill and police therefore fired in reply as a result of which 3 tyres of the Car were burst and the police succeeded in rescuing driver Dil Muhammad when you leaving the Car in the bushes fled away and that abductee Abdul Tayyab was made to alight on the katcha road of Northern Bypass leading to Surjani and that thereafter on 15.02.2009 you phoned from Mibile Phone No. 0303-2884702 on Mobile Phone No. 0344-2955829 and demanded ransom for Rs.25 Crores and made another call on Mobile Phone No.0313-2022826 and repeated the demand of ransom and arrested accused Nazir son of Gul Hassan and Mashooque Ali Imtiaz from Railway Phatak, Link road Sakhi Chowrangi when you were armed with un-licensed arms and thereafter released abductee Abdul Tayyab at near National Stadium road adjacent to Agha Khan hospital after receiving ransom amount Rs.25 Lacs from Complainant through two motorcyclists on 23.05.2009 near Chhapra Hotel, Northern Bypass Road.
You have thereby committed offences falling u/s 6(2) punishable under section 7(e), Anti-Terrorism Act, 1997 and section 353, 324, 391, P.P.C. punishable under section 395, P.P.C. read with section 365-A/34, P.P.C.
I, therefore, hereby direct you be tried for aforementioned offence, within cognizance of this court.
Sd/- 15/08/2009
(Abdul Ghafoor Memon)
Judge
Anti-Terrorism Court No.II Karachi.
From above, it is quite clear and evident that in fact the prosecution came up with different offence (s) though committed to have been done in a series therefore, it was obligatory upon the prosecution to have proved the case against the accused persons with regard to all episodes as prosecution claimed the accused as 'actors' of each episode.
12. The careful assessment of the prosecution evidence through record made available before us, we have reached at the point that entire prosecution (episodes) based upon following ingredients:-
(i) The ocular version based upon the evidence of the complainant Abdul Majeed as well as P.W./driver Dil Muhammad and abductee Abdul Haseeb.
(ii) Identification parade
(iii) Recovery of the vehicle by the police.
(iv) Payment of ransom amount to unknown/muffled persons;
13. Since, the accused persons were not known by the complainant hence FIR was lodged against the unknown persons therefore, ocular account even in such like case(s) the main piece of evidence would be the identification parade through which unknown becomes known. Therefore, it would be in all fairness to take up such material piece of evidence first.
14. The identification parade is prima facie joint and was conducted in piece meals. Though there is no strict bar to have a joint identification but the law always requires and insists that normally identification parade of each accused should be conducted separately. Per prosecution case entire its episode was based upon the testimony of victims/ alleged abductees viz. the complainant Abdul Majeed Abid, Dil Muhammad and Abdul Tayab @ Abdul Hasseb. Out of three abdactees, only two viz. complainant and his son Abdul Tayab @ Abdul Haseeb had participated in the joint identifica tion parade but the third abductee, driver Dil Muhammad had not participated in both identification tests and such his absence has not been plausibly explained by the prosecution. To make things clear and specific it would be appropriate to refer the observation of Honourable Apex Court on this point, as was observed in the case of Sabir Ali @ Fauji v. State 2011 SCMR 563 that:
"It is also settled principle of law that identification parade of each accused should be held separately otherwise confusion would be created and in the case in hand identification parade of all the three accused was held jointly. This aspect of the case was, not considered by both the courts below in terms of law laid down by this Court in Pasand's case (PLD 1981 SC 142) wherein the conviction was set aside on this ground alone."
15. Further, the law requires rather insists that every possible precaution must be taken till identification of one is completed/conducted. This precaution starts right from the moment of arrest of one and continues till the identification completes. The Magistrate is supervisory authority of the investigation, therefore, it is he (Magistrate) to ensure that prima facie precautions are observed by the police least while bringing out such an accused from lock-up to Court of Magistrate. The importance of precautions cannot be denied for simple reason that it (identification parade) normally is meant to save innocent (suspected) from being prosecuted/tried therefore, joint identification should normally be avoided unless the situation or circumstance leaves the conducting magistrate with no other option.
Let's examine it (identification parade) with reference to evidence of Magistrate first. Perusal of deposition of Civil Judge/Judicial Magistrate, Muhammad Aslam Shaikh reveals that he had conducted two identification parades at the request of I.O. in crime No.112/2009 of P.S. Sohrab Goth. Firstly on 22.04.2009 when out of two only one witness had come therefore, it was postponed for 23.04.2009. On 23.04.2009 the identification parade was conducted. Per his deposition the complainant Abdul Majeed rightly identified all three accused/ appellants among 30 dummies and thereafter he prepared memo of the same and obtained the signature of witnesses and the mashirs. He further deposed that again I.O. requested for identification parade through abductee Abdul Haseeb on 15.07.2009. Since the appellants were in custody, therefore, identification parade was held inside the jail on 16.07.2009. On 16.07.2009 again joint identification parade was held when alleged abductee Abdul Haseeb identified and picked up all accused/appellants among 30 dummies. All the dummies were UTPs. Such memo of identification parade was prepared inside the jail in presence of the abductee as well as mashirs and Deputy Jail Superintendent Mr. Khalid Pervez. The examination-in-chief prima facie shows that the Magistrate lightly took the importance of the identification parade as he (Magistrate) postponed the identification merely for non-appearance of one of two witnesses although at such occasion the witness, undisputedly present, had every opportunity of seeing the accused. The record is also silent so also the examination-in-chief as to what measures were ordered by magistrate to ensure eyes of such present witness away from produced accused. At this point, it would be advantageous to refer operative part of the case of Sabir Ali @ Fauji (supra) wherein it is held as:
"It is settled principle of law that it is the duty and obligation of the authority that precautionary measures are necessary to conceal the identity of the accused from one place to another which is paramount duty of the police to ensure that the accused should not be seen by the witnesses before the identifi6-tion parade. It is pertinent to mention that all these precautions should not only be taken but should be proved to have been taken and these precautions should be recorded in the initial record like general diary of the police station and the daily register and the same should be produced in court. In the absence of such precaution and evidence, no value can be attached to the identification of the accused by witnesses."
16. Be as it may, in his cross examination, learned Judicial Magistrate admitted that prior to holding of identification parade he had not issued notices to the appellants rather voluntarily said that he had issued oral directions to I.O. for intimating the accused. He further admitted that in both memos of identification parade no time, place and date of incident was mentioned and he had not annexed the list of dummies along with their parentage and addresses. He further admitted in his cross that there is no bar under the law to hold identification of each accused separately. In his cross he admitted that at the time of identification parade accused had complained that they have been shown to the witness. He voluntarily said that they had complained after the identification parade was held. This brings serious clouds over the identification parade and had brought the prosecution under serious obligatory duty to first establish that it (prosecution) safely kept the body of appellants concealed which was never established nor even attempted by the prosecution. The benefit whereof was always to be given to accused in such eventuality. A help to this view can well be gathered from the ease of Sabir Ali @ Fauji (supra) wherein it was held too that:
"It is an admitted fact that appellant and his co-accused had taken objection at the time of identification parade that they had already been shown to the witnesses but this objection was not taken into consideration by the courts below. This plea was also taken in reply of question No. 6 by the appellant. In such circumstances identification parade becomes doubtful and cannot be relied upon. See Sohn's case (PLJ 1974 Cr. Cases 208)."
17. Further, the Magistrate was also confronted with memo Ex.10/B handed down by himself which reveals that accused had complained that they were shown to the witnesses at Thana (Police Station). He had also admitted that accused had complained that they were in custody of police since 26.03.2009 i.e. one month earlier to their arrest in this case. He had also admitted that the dummies were not wearing the same colour cloth and also were not of same age or height and the features. Mere picking of one up during identification parade is not sufficient unless the witness strengthens such fingering by giving details of the acts, done by such picked up accused during course of incident. This is so that witness is not to place his finger at the shoulder of one's but being an eye-witness has to create the scene which in absence of role cannot happen. Such picking of one up during course of identification parade even does not cloth such identification parade with any legal value to hold one guilty of the offence. Reference in this regard can well be made to the case of Sabir Ali @ Fauji (supra) wherein it is held as:
"It is also settled principle of law that role of the accused was not described by the witnesses at the time of identification parade which is always considered inherent defect, therefore, such identification parade lost its value and cannot be relied upon."
18. Further, perusal of the evidence of SIP Javed Akhtar (Investigating Officer) of the case shows that on 12.04.2009 he was posted as SIP in AVCC Karachi where appellant Mashooque and Nazir were already confined in lockup in connection with crime No.24/2009 and 25/2009 under section 13-D A.O. During interrogation both the appellants had allegedly confessed that they had kidnapped three persons for ransom. He further deposed that on 15.04.2009 he along with Inspector Ishrat Rana went to P.S. Artillery Maidan where appellant Liaqat Khaskheli was already confined in some other cases details whereof are mentioned in para No.8 (supra). During interrogation he too had confessed the present offence. He was arrested in this crime. In his cross-examination he had failed to produce the departure as well as arrival entry from their office. He admitted that no confessional statement of accused was recorded before any Magistrate. He had also admitted that he was not a member of joint investigation team (JIT) constituted by the SSP concerned. His evidence is silent with regard to precautions, he observed to keep the bodies of the appellants concealed despite knowledge of involvement of the appellants in the instant case. He also failed to give details that accused persons were always kept under curtain and the witnesses of this case had no opportunity to see them which otherwise obligatory duty of the prosecution particularly when the accused persons had claimed to have been shown to the witnesses before putting them to identification parade. Failure of prosecution to bring such material aspect on record was sufficient to raise a serious question towards legality of such identification parade.
19. Further, it is also a matter of record that first identification parade was held on 23.4.2009 and second one on 16.7.2009 while the appellants allegedly confessed before Investigating Agency therefore, delay in identification parade without establishing precautions to conceal identity of the accused persons was always sufficient to bring clouds over such identification.
20. The PW Dil Muhammad, driver of the complainant party, though supported the version to extent of offence but did not implicate any of the accused persons with name or role(s) which in cases of unknown accused persons is requirement of law because in such cases it is only attribution of role (s) which works as 'names and helps in sifting the grain from chaff or dealing with question of common object / intention etc. while appreciating the evidence. In absence of attribution of roles, mere fingering at some body is of no help. The overall discussion on the point of identification parade prima facie show that identification parade was not proved to be legally conducted as per settled guidelines on this point, hence the benefit whereof was always to be given to accused and not to prosecution which otherwise is the requirement of Safe Criminal Administration of Justice.
21. In view of above discussion, the piece of evidence, based on identification parade, was not successfully established by the prosecution beyond shadow of doubts hence it (identification parade) was never capable to hold a conviction in a case of capital charge.
22. As regard the ocular account, it would suffice to say that in absence of the identity of the appellants to be the 'real culprits' establishing of the happening of the incident alone even shall not be sufficient to convict those, sent to face a trial. Let us insist that it is not happening of the incident which the prosecution has to establish but that it were the sent up accused who committed such offence. The earlier normally is not disputed by the defence but it is the later the proof or disproof thereof results in determining guilt or innocence.
23. The amazing point in this case is, the complainant while in captivity of the culprits had jumped from a running vehicle but neither sustained scratch on his person nor the culprits had ever fired upon him. This piece of prosecution story was quite illogical particularly when the complainant never claimed himself to be young enough and an athlete. The prosecution story must also be logical to hold a conviction and legally a conviction on a capital charge cannot sustain on an illogical story. Reference can well be made to the case of Mst. Shamini and 2 others v. State and another 2003 SCMR 1466 wherein it is held as:
"7. .... The prosecution story being the foundation on which edifice of the prosecution case is raised occupies a pivotal position in a criminal case. It should, therefore, stand to reason and must be natural, convincing and free from any inherent improbability. It is neither safe to believe a prosecution story which does not meet these requirements nor a prosecution case based on an improbable prosecution story can sustain conviction."
24. Be as it may, let's examine another claim of prosecution i.e. encounter with alleged culprits. In this regard, it appears that even none amongst the appellants was nominated in so called encounter case nor the police party participated in alleged encounter had identified the appellants during identification test to be the culprits who allegedly deterred them in performance of their lawful duty. Further, the prosecution also failed to produce the vehicle in question wherein the victim was allegedly abducted and during such course the firing happened in such vehicle. Thus, production of such vehicle was material so as to establish happening of the incident in the manner, as claimed by the prosecution. The vehicle was however not produced by prosecution rather the owner thereof claimed to have sold the same. Non-production of such vehicle also had brought serious cloud over the prosecution story and benefit whereof was also to be given to the accused but the learned trial Court held otherwise.
25. As regard alleged extra judicial confession, it would suffice to refer the operative part of the case Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 wherein it is held that:
"24. It is a consistent view of the Courts that extra-judicial confession, if made before a person of influence and authority, expected to extend helping hand to the accused, which is also strongly corroborated, can only be considered as a piece of circumstantial evidence. This Court held so in the case Noor Muhammad v. The State (PLD 1991 SC 150). Such evidence is held to be the weakest type of evidence. No conviction on capital charge can be recorded on such evidence.
26. As regard the second episode of incident that is payment of the ransom amount, what is found floating on the surface is that complainant allegedly paid the ransom amount to unknown culprits on 12.6.2009 and abductee was released on the same date. It prima facie goes to suggest that till such time the culprits were free and were having command and control over the abductee but the record would show that prior to such fateful date the appellants were in custody of the police viz. from 26.03.2009 and subsequently were shown to have been arrested in this case on 12.04.2009 and 15.04.2009 respectively, then how it could be the appellants who: i) had the custody of abductee; ii) were in contact with complainant on bargain of ransom amount; iii) received the ransom amount & then released the abductee; iv) made demand of ransom from their telephone number 303-2884702 on phone NO. 0344-2955829 and to phone NO. 0313-2022826 which already was allegedly robbed away from the complainant party as is mentioned in charge of the case. v) all cell phones either were robbed away or belonging to appellants and even retaining by the complainant party were not shown to have been recovered from the appellants or were produced by them even were not produced by the complainant party during investigation confirming their claim as alleged in their case.
The answers to above questions could be nothing but a big 'NO' hence the benefit whereof was also to be extended in favour of the appellants/accused but the learned trial Court held otherwise. Besides, the complainant though had produced audio CD with regard to alleged conversation with the culprits but no voice was recorded in the produced CD nor it was ever attempted by prosecution that- it was the voices of the present appellants hence such failure of the prosecution must have been taken in favour of the appellants. Further, prosecution was also required to prove such piece of evidence by doing what has been described in the case of Azeem Khan and others (supra) as:
"22. .....No competent witness was produced at the trial, who provided the call data, Ex.P.1. to ex.P-5. No voice record transcript has been brought on record. Similarly from which area the caller made the calls, is also not shown in it. Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In this view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner.
27. While concluding, it would be quite safe to say that the case of the prosecution was in fact based on corroborative pieces of evidence hence it was obligatory upon the prosecution to have proved each piece of evidence beyond any shadow of doubt thereby linking an unbroken chain. In case of any missing link in the chain, the whole claim is broken and no conviction can be recorded in crimes entailing capital punishment. Similar is the position in the instant case. It is well settled principle of law that mere heinousness of crime may not be a ground to convict an individual on the charge involving capital punishment. Reference can safely be made from paras 31 and 32 to the case of Azeem Khan and another (supra) wherein it is held as:
"31. As discussed earlier, the entire case of the prosecution is based on circumstantial evidence. The principle of law, consistently laid down by this Court is, that different pieces of such evidence has to make one chain, an unbroken one where one end of it touches the dead body and the other the neck of the accused. In case of any missing link in the chain, the whole chain is broken and no conviction can be recorded in crimes entailing capital punishment. This principle is fully attracted to the facts and circumstances of the present case.
"32. it is also a well embedded principle of law and justice that no one should be construed into a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible one. Similarly, mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a patently wrong conclusion. In that event the justice would be casualty .
28. In wake of above all major discrepancies prima facie guilt of the appellants/convicts cannot be said to have been established by the prosecution beyond any shadow of reasonable doubt; in absence whereof no conviction can legally be recorded.
29. After evaluation and careful assessment of the evidence as available on record and after its discussion whatever made hereinabove, we find that the appellants before their arrest in this case were in police custody, even at the time of payment of alleged ransom (to unknown culprits) and subsequent release of alleged abductee, the appellants were in judicial custody. Thus no concrete material or tangible evidence has been collected or brought on record by the prosecution to show the appellants have any nexus or connectivity with above exercises except identification parades which too are not in consonance with the settled rules. Thus evidence made available on record is not inspiring confidence and same being untrustworthy cannot be based for sustaining conviction against the appellants.
30. Resultantly, this appeal is allowed. Consequently the convictions and sentences recorded by learned Judge, Anti-Terrorism Court No.IV, Karachi in Special Case No.43/ 2009 re State v. Nazir and others are set-aside and the appellants namely Nazir, Mashooque Ali @ Imtiaz and Liaqat Ali Khaskheli are acquitted of the charges framed against them. They are behind the bars and ordered to be released forthwith if not required to be detained in any other case.
Cr. A.T. Jail Appeal No.D-18/2014 of along with pending application is disposed.
JK/N-4/Sindh Appeal allowed.