Iftikhar Ahmed @ Imtiaz (Appellant) VS The State (Respondent)

DeJl- !- ercl^61 ' l\vJ*.r'i^^ Gr-

C ERTIFICATE OF THE COURT IN REGARD TO REPORTING

Lx ATA o] t o\ teoo\

TX I k l-" Al^J v( i*_ (1"L.

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HIGH COURT OF SINDH

Composition of Bench: Sft/D. B

Mr. Justice Mohammad Karim Khan Agha, Mr T *s- 1..- r( LJ,; rlarsrt* 1it '

Date(s) of Hearing: -1.t.J L <{t s-f t,}"1\ Decide on: t.l _ .r 1 _2019

(a)Judgment approved for reporting: Yes ti/

CERTIFICATE

certified that the judgment*/order is based upon or enunciates a principle of law */ decides a question of law which is of first impression / distinguishes / over- rules / reverses ,/ explains a previous decision.

* Strike out whichever is not applicable

NOTE (i) This slip is only to be used when some action is to be taken (ii) lf the slip is u5ed, the Reader must attach it to the top of the Iirst page of the judgment.

(iii)Reader must ask the Judge writing the ludgment whether the Judgment is approved for reporting.

(iv ) Those directions which are not to be used should be deleted

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lYl llI. I G colrRT Ot, St\D AT KA|{,\CIIt l/ Criminal SptlAppe at No. A V t 2009 lflikhar Ahrned (r) lmtiaz S./O Niaz Ahurcd, Muslims, adult, Presently confined at Ccntrili Prisot'l Karachi. Appcllant

Thc Statc Respeuden

F.l.R No. 22il?008 rI/s 165-A/302/ t09/34 PPC r/w 7 ATA 1997 I'S. Darakhshan Karachi

APP liAt, t rN l)ti It sli( TI()N ol. I I:

1-l Elt R()RISI\t A t9

Being aggrieved and dissatisfied with the Judgmenr dated I l-1- 2009 passcd by Learned Judge o1'Anti-Terrorism Court No.2. Karachi.

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convicting and sentclcing thc Appellat)t to lif'e imprisonment and fine ol'

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Rs.2,00,000/- is also irrposed upon hirr, in case ol'non-payment ofthe

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fine he shall undergo lurther intplisonrncnt olR.l. ol2 years, more under sectio[ 6 (2) (a) of ATA 1997 r/w section ]4 PPC, sentencing rhc Appellant to life imprisonment and lbrfeiture of his propenics for the ofl'ence 7 (e) ATA I997. lt is respcctlirlly beg to prefer this Appeal Intcr Alia on facts antl grounds nlentiol1ed hercunder arrd pray that dlis i ,'ilc Coun may be pleased to call fbr the rr-'cord and proceedings of the above case tiom lhe Court ol Anti- l qlrorism Coufl No.2 Karachi and aftcr perusing the same bc t'urther pl*rsed ro sct-aside thc impugned Judgmenr and acquit the appellaflt in this case,

Certitied copy ofjudgorcnt datcd 3 l- i-2009 I'assed by Anti-'lcrrorisrn Court No.2 Karachi is anncrcd herewith and marked as Annexure "r\"

IN THE HONORABLE HIGH COURT OF SINDH tr

I AT KARACHI

,$/7r4,.ooo"ot No. of lzoae Muhammad Nawaz S/O Ahmed yar, R/O Bangla No.l73lD, Btock No.2, P.E.C.H.S, Tarlo Road.

T Karacht pt.1*!fi

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(hr! t c4it!...[h;t. .Accused ,J l"

VERSUS

The stale ...........Respondent.

FIR No.223l2008 uls 36s-N302/ 109/34 PPC R/W Section 7 AIA, 1997.

P.S Darakhshan, Karachi.

APPEAL AGAINST CONVICTION

UNDER SECTION 410 Cr.p.C

Being aqgrieved and dissatisfled r../ith the impugned iudgement dated 31-01-90 passed by the Anti Terrorism Court No,U, Karacht Olviston, whereby the Learned trial Court has convicted the appeats to life imprisonment and fine of Rs.2 Lacs each and two years rigorous imprisonment more case of default in payment of flne for offence falling U/S 6(2Xa) R/W Section 34 PPC. Both of them are atso conMcted to ltfe imprisonment and forfeiture of property of each of them for offences U/S

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6(2Xe) R/W Section 34 PPC punishable unde, ieaion 7(e) Anti-Terrortsm Act The appellant, therefore, prays that this Honorable Court may be pleas€d to set-aside the impugned judgement dated 31-01-90 and acquit the accused/appellants in tie interest ofjustice on consideration of the foflowinq facts and grounds:

(Photocopy ol Judgement daH 31- .

01-90 is frled herewith and marked as annexure "A'),

FACTS

Fats of the case as pe. the Fir are that complainant Shaharyar S/O Sharkh Muhammad Aslam lodged the nR at P.S Darakhshan on 25-04-2OOB ConVP.2

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l\'l-llll Hl(;ll (OtrltT Olf SINI)lt,\ I K,\l{,\CIll (7s1,4ft,eeots" c/ ,il l{10()

The Slrle, 'lhrouSh the Frosscutor Gcneral :iindh havirlS its olllce Building N'l.6.

Sindh Se(rrtirriat Kurn!hi.. Appcllanl

Itlikh r Ahmcd'irr ImtiaT S/(j NiaT n hrned Rlo aiali No 17. Kntchiahadi. Ilhitlfliab d- ( Karachi.

I l Muhammad Nawaz S/o Ahmed Yar.

R/o tlangla No.l73.'I), Bltrk No 2. P.I].ll.S l ariq Road, K,rrachi . .. ..llesFond(nls Bolh arc at pr('rrrl lod;rcd in c,r'tr'Jr at C:enlral Prison Karachi

I ,t \,, :-, 1 ll)l)l{ l- li ltr-,\,i0:, l09rJ-l t'ljc R/W Section 7 ATA 1997 P.S Darakhshan. Karachi

.\PP!l:\ L I()l{ IN IIANCI,:\I I,,N1 O t st.rt I LN( I. I NI)EII SE( I IoN 25 r1)l)l' ,1l l l llr RR()RlS\l ,r("t.19q7

t:l.irrt it!.!.ri.!ud and cli.sltisiitri \ith itrtlgnr!trl. dnlr(1 rl-l)l--lrlrlg p,r\\cl I.\ llrc lcrrrr((l ,\nli.lrir(\ri5rrr ((rrrrl \oll Kirrrrelri 1)i\isr)n. \!hcfch\ I rc l((stxrrr(i!rrl\ rrrrL 'r,rrirtLu!L ltr lr ( I I I I Ir r I \ ) I I I I ' ( IIi

rntl line ol llttptcs l-$o l.acl oach alld 1rro )ea6 rigorou: imprisonnlenl 'nr,rc irr axsc (,1 lcliLlll ilr lllt\ rn.nl ol lln( lirr r)ll.rlc" lirll !r! L r\ (r il)l(r jl \\ \!cli(,n l1 l'l'( Lj,,th ol lllcnl \rorc ill'(' crrn\ lclt(l It) I ilc and lor lcilurt ,)f !r()pdrtl, (ll each ol lhenr lin- r)lli,rces tnllin!. =rprr'ottrnerrl

L \ 6 tl,(c) ll,\f :jc(tion i1 PI'( punishrrhlc Llndcr Stction-j (cJ Anli-

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IN THE HIGH COUITT OF SINDH AT KAI{ACHI

slrc(ialCr Ant,- lerr()rr\m n Pfcdl Nr'll/ "1 lU|9 5pc, rdl Cr r\rrli'l crr(rr'.srtr Al'per, \'r I ri< ' l :Ol19 slrt\ ialCr. Antr Jerr( tl\rn APP('.rl N,'()q,rl :(lrl',

Present:

,Ir. trstir! trloha itn Khtrll llgh,j tit| Khdlint Ilt$sni Tt tio

ApFell.r'tts,/ ResP(,rlents Iltikhar Alxlre(l (nr Inlitaz and Muhanrmd!l Narvaz thro gh Syeri Zakir Hussain dnd Mr Azaln Khan, Advt}rates.

I(cspondent/ Appellant ThL'5tate through NIr. Muhammad lqbal Awan Drputy I'rose(utor Ccneral 5indh

Complainant Shah.lr Yar s/o. ShPikh Muhammad Aslam through Mr. Nl. Nasem, Adv(rate.

Datc oi hcaring: 03 09.2U1e and 05.09.201q

Date of ann,runcement: .:r. lr,

IUDGNII:N T

Mohammad Knrinr Kharr Agha, J- .r,PPell,'nt' llliklrdr Ahnr':'l (i lmrLlz sorl oi Niaz Ahnri'il anel \4uhanrmacl Navl'.tz soll ('t Ahnl'ld l 'r haye prcl.'rretl the aL,ore'.rp1,eals afFirr!t the iu(lgrnent d.rttal ll tll 2(D() l,assrd Lr\ th( Larni'.i luitl, Atlti l!rl'rrsn1 (1'urt N('lt, Kar'rchi irr Sp.tial C.rsc N,r li7l 2tn)8, Ir l.li N(,.223,/2l)0i{ u/s -]o5 A,/illl2,' i09,/3'+ I'}l'C r,/!r se( tion 7 oi ATr\, 1()97, rcllist('r!d.rt i!)li.(] stalion IIr|aLhsh'rn' Kar.i('hi wherct)\ the aP[.cllints ha!! been.onvicteJ artd st'nt!'ll'!:11 t() lrlg irnlrrlsonnrent and iinr oi Rs.2-lars each rrtl two \cars ri!(,,1trr< inrl)ns(rnnlunt m(,rf in.asr,,i dlinLrll in palnrint o[ iirrr: it'r 'rttcrr"- lrlling u./!.6(2) (a) r,/\!'. so(-lioll l{ l'l'C Both ol thenl h'rrt"rls" l'ec:r ((,nvr.trd nn(l senlcJrrr(1 to lilr imPrlsonrtrt't1t .111d ioriciturc ol Ir{)[rcrt\' 'rf .aclr oi thcrn lor (rtlrn.€ l.rllirrH Lr,'si)(l) I'r) r,' 11 !c'tr')rl l{ fl'C l{)(r7. (thr LnrpLI$ned ju'lgrntnl) l,unish.1L,l( undcrSc(tion7(t),,tA l A(t, Ih(,s(,ntcn(cs wtre, horvtvtr.. to rrrn ((,t1(urrc tl,, .rltl l,,rtlr tht ,rccLr'eJ Her( lti\,en tllt lleneiit ol Se(ho]) ll82-B Cr'1'(l l loll'rv( f, ihe 5l'1tc n1\(' lile.l nn al,Pcal dHainsl thlr impul;nt,:l 1u.l1irrrent riat{'(l fl01 ll)(l') ior enhan.ernent oi se tcn.e! arvardcd t() the nPllellants b\ the lcnrne(l tn'rl Court lrom lil. irnl-llsorrrrrcnt t() (hr'(leith Pcnnliv

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2.'lhe brief facls oi thc Prosecution(.asc as Per FIR arc that (omplainant Shahar Yar son oi Sheikh Muhammad lodged an l-lR on 25.4.2008 and stated in the sanre that he was residing on the address given by lrim in FIR along with his lamily members and is rloing CA ltisstated tlrat his father Sheikh Aslan ngeLl 4{l veails is doin8 business at Ncw Crystal le$'elers situated at Tari(l R ad and used to g() tu the shoP al I I(lu a.m .1n,1 rcturn at 8100 P.m. altcr closing the shoP. It is stated in thc flR that orr 25.0.1.2008 as usual his lnthor lvent k) thc shoP ind at usual limc nt night afler closing the shoP $'as retu.ning in hrs car No AGB-3 Cordla CLI BIue colour to their rcsidence situated at Phase_V Defence, but he tlrtl not rehrn to his housc on whiah the ((nnPlainant and his familv nrembers got \aorried. As per the IrlR thc (\)mPlainant phoned his father on his nlobilc phone No.0302-25377214, but the Ph()ne was found sv!'itched oii' As pcr the FIR he repcatedlv lricd to contact hin,l on the Phone and tlut on 26.4 2008 at about 2:00 a.m ronla.l on his father's mobile phone was nrado but lnstead of his father dn unknown Person receivcd the call and frorn his tone hc sounderl Sindhi and infornred that his iather's .ar was lvirtg parked at Khada matket and that his lather ivas in their custod'f and that they' shoultl take the car fr{nn thcrc .rnd PaY Rs 30'lacs lor release of his ,ather an.l lurther that he ia'ould contact again after tlvo da!s As P('r lhe FIR the complainant gave su.h infomatk)n to the Police and the Policc accompanicd him to Khada Market and saw that the ca! was lving Parkcd in ftont of Jameel Studio, thc kev of the (ar was not there, but the car was in p.oper condition. As Per the Flll tlrc comPlainant then sent for anoth(r kcy and brought the car to their house As Per the Fllt the comPlain'rrt .ontinued searching lctr hls lathcr and asked the poli.c also to searsh lor hrs missing father a'rd that hc woulll later r)n lodgc the rePort As Per tlt flR he on that day lo(iged thc rcport with the claim that Llnknolvn ac'us'd havc aLxlucted his fathPr lor ransom amourlt and that the rePt'rt read t'trt to him is corect. The FIR wns rcgistered at PS Darakhsan under Strtnrn

365.A PPC.

1.That after usual invPstisation .hallan was submitted' As Per .hallan ac.used ]ftikhar. Nawa, .rrrd Abclul Rasheed wcrc found k) bc involvetl ir this ctime. Accuscd lftikhar and Naraaz were arlested NBIV was issued against the abscondinE 8(.cuscd namely Abdul I{ashecd but he coulrt not br arreslcll. hcncc trn the b,lsis ol rcPort ot PIIcess scrt'cr hr' r

.ase llas ordered to be proceeded in abscnce of accuse(l Abdul Rasht'cd and hc was dtclarcd as prrtlaimed offender.

4.ln older to prove its caso the Prosccution exatnined 10 I'W's who exhibited various d(ruments and other items in suPport of the prosecution case where nfter the Prosecution closed its side. The a.cused persons rccordcd their statements untier 5342 Ci.PC whereb-v they clairred their lalse implication in the case antl plcad not guilty Howt'vcr, thcy di(i not examine lhemselves on oath nor Produac anv defcnse ivitness€s in support ot their defense.

5.l-c.rrned Judp,c, Anti-Terrorism CoLrrt-ll, Karachi, after hcaring the ledrned counsel for the parties and assessment o[ cvldencP availablc on retord. r,ide the impugnpd judgment dated 31.01.2009 ('onvicted and senkrnaed the appellants as stated above, hetxe these apPcals against cortvi.tion have bccn separalrl)' filed lly this l:ommon iu.lgment !!'e intend to dc('ide the sanre. 'fhe State has also filed an aPPeal lor cnhancemenl of the sentence from life imP sonmcnt to thc dcath penalty which w(' shallalso dccide.

6.Tlre dctailed facts ol the (ase as *ell as cvidence produrerl bcfore the trial court find an elaborate menti(nr in the irnPugned jud$ment, thereforc, the same are not reProduced herc so as to avoid (luPli.ntion and unneressary rePetition.

7.lxarnerl counsel for appcllant Iftikhar Ahmed contended that there was an unexplained delay of 27 tlavs in lodginti the FIR which cnabled thc complainant along with thc Police to fablicate thc case a8rinst himl lhat there was no eviden.e of any kilinaPPin& that there lvds no evi.lencc .rs to the identity ol the dcad b(Xly as it lvas decomposcd at the li,ne oi its recovery ; th.lt thcrt'ra'as no €!c }vitness lr) the murder of the dtceased; that therc was no rvidence that the deceascd had b('cn murder{.}d as he could h.lve clrowlcd himsell $'ithout anv assistanae, thal simply pcoveriDg a (lead body did not mean that the dcceased had been murdcr.d, that there rvas no evi(lence thal anl' rans.,m dem.tnd had been ma(le, that the inqucst rcPort showed n() Inarks around tl-le ncrk of the decrased and as such there was rio evtience that the deceased had been strangled especially in lhe absencc of a medical rePort statiirg th. causc d death; that PW 3 cannot be relied upon as hc admits signing a blank Pafer

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and wis also a int('rested witncss; that l'W 7 Majici Kharr who allcgetllv sa\a' thc dcceased cntcring the bungalou whcre he vvas allt'gedlv killcd cannot be tafel! rclie(l uponi and tMt for one (,r all the ,Tbr)vt rcasons lhe a(cused bc acquitted (,t the (h.1rBe b! ertending the benclil rrl the doubt ln support of his (ontentions lle Placed reliance on NaPem Akhlar and others v. The Slale (199j l'. Cr.Ll 769), Muhammad Khan and another v. The State (19q) g:Mi{ 1220), Muhammad Saiiad v. The State (2009) SCN1R 12,18), il{st. Askar Jan and others v. Muhammad Daud and others (2010 SC'MR 1601), Shahzad Tanveer v. The State (A)'12 SCMR 172), Ctll ^-oor Ali v, The Stat€ (2015 SC\'IR 27e), lrfan Ali v. Th€ State (2015 SCl\{ It 840), Muhammad Mushtaq v. Mustans Hussain and others (201tr x-'N{R 2123), Azeem Khan and othere v. Mliahid Khan arrd others (2016 f'NlR l7l), I\fst. Rukhs.na Betum and othcrs v. Sajiad and others (2017 sclllR 596).Zahir Yousaf and another v. The State and another (2017 sCMR 2002)a't(l Ali sawa' V Stnte (2019 P.Cr'LI I 142)

8.l-earned counsel for appellant Muhammad Ndhaz contende(l that he was not choft'kidar of the house la'hcrc the body was found .1nd that no evidcnce had come on rec()rd to that effect; that no witness had mentionell his name or given him a specilic rolei that the Pht)ne allegedly recovered from him had no SIM and that his confcssion before the Policc r{as inadmi$sible in lait, and in eft'ect thdt this w.rs a (ase o[ no evidenre a8ainst him arld as such tre be acquitterl from thc charge and hir aPPcdl allowed.

9 Mr. N,tuhanlmad lqbal Awan, Dcputv I'rosecutor General. contended that thc appellaits had bcrn rightly cdllvicted by the inpugned judgment which did n('t reLluirc int€ erence since it h'as not unusual in kidnaP cascs lQr the Fll{ t(t be delaYe(!; that the a!'cused had confcssed to thc crirne beior( the police and had taken thc Polire to the placc where the dearl bodv wasi th.1l PW 7 Majid Khan had seen the acauscd enter the housc with thc der'eased; thal allother l'W had sold lhe SIM to rcaus{,(l lftikhar fr<-rm whi.l the ransonl cails $'cre macie and the CI)R r€cord supported the prosecution casc against thc.rc(uscd. Hc did ho\a'cver concedc that lhere lvas no evldcncc of any kidrraPPing and that thc aase related to murder. tle stated that it was a cas. ol enhanccment from lile imprisonment to death with resPect to lttikhar \"ho hdd actually murdered the deceased but not a casc of enhanl'ement h'ith resPect lo

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Narvaz wh(!se conviction of life imprisonment should be maintained. In support o[ his ( (nrlentions he plactd reliance on Said Muhammad v. The State (1999 S( Vlll 275tt), Dr. Javaid Akhtar v. The Statc (PLD 2007 Supremc Courl 2,t9), Raiab ali.s Raioo alias NanB and anuther v. The Slate (2t)l)6 SCNIR 175), Ajab alias Rajab and another v. The State (:fi1.1 NILD 1ll0), Ghulam llussain Soomro v. Ihe Slite (I'LL):0t]i'luprrrlc C!,urt 7l ), Sh. Muhamffad Amiad v. 'l he Stnte (l'LD l()01 Suprcnlc Cour t 7l),1), Nazir Shehzad and another v, The State (2009 SI-NIR 11.f0), Muha rnrad Naderm alias De€mi v. The Srate (2011 SCMR 872), State through Advo.atc-Gefl€ral Sindh, Kara.hi v. Farrnan Hussain and others (l)l,ll l995 srf,remc Court 1),

10.Lcarned (ounsel fo. the complainant adopted the arguments of Icarned Dl'C but submitted that both the accused sentence shoulcl be enhanced to dcath due b the heinousness (rf thc.rirrc. ln support of his contention hc placed reliance on M;ss Naiiba V Ahmed Sultan (2001 scMR 988).

11.wc have hedr(l the arguments of the Iearned counsel for the appellants, IJPC and the complainant and have g(,ne through lhe entir€ evidence which has been read out by the appellant's counsel, the impugned judgmcnt with their able assistance.rnd have considered thr relevant law inclLrding the cases cited at thc bar.

1l r\lt(r (,ur rr1,s\!\snrr,,rt oa thc tri(i,,n((. \,, h.vr .onrc h, thL' con.iLrrl,,n th.t tlx fJ(,s(\'uti{)n lrrs rrot lra,,r,rl,l, t. JtnrvL, it.,.r!i,.girir.\t the a..usc(i [,c!r,n.l .r |r:.rsor,rb[,drJUt](.rr(l th,rl tlrt .rLrustrl are cniitle(l r( rheh, r! irr.,ithc(l \rl)r l('. rh..l.'ll('wrng r..r\,'ll..

(a)I hat thcre has been an unexplaineti delay of registering the FIR of 27 days. Accoding to the.omplainant he re|orted his missing fathcr to the police which was corroborated bv thc police but ncr nrissin8 report has becn tendered in evi(lence. lt is tme that in kid nap ior ra,N()nr.ases lorne latitudc has tn,en tiiv{.n jn inlmdiatcl) lodgin8 thc t-lll as usually, especiallv ir th(,.ds('(,f (hildrcn, the parents lranti(ally spend time initiall-v searchin8 t('r the abductet however rn this rase an unexplained r.lelay of 27 rlays is too long a period to be ignoaed as it gives the romplairlant the clrarr.e to cook up a false.ase aSainst the accused ivith thc assistance oi the police.

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It is also to bc noled that the complainant did llirt stdie in the FIR the mobile numbcrs {rom which he had becn recc;vinE ransom rlemands from but dis(losed them in his c'vidcnce antl aPPears to have improved his evidence ir this resPect. This unexPlained long (lelay in rcgisteriirg the FIR therefore i{ciBhs heavily against thc proseculion case ln thib respect reliancc is Placed on ZaJar V Stnte (2m8 rMn 326)

(b)thcre is no eviden.e that shcikh l\'luhammad Aslam (the deceascd) wa5 abLlucted by thc accuscd. The evi(lence is that he lell his shop at the usudl time but did not rcturrr hom!. No one actualll saw him bcing ab<lucted by the accuscd or arry one else a Part fronl some last scene evidence which wc shlll dist'uss later in thin judgment. This position has been admittcd by the DI'C during hjs subtuissions befolc this court.

(c)That therc is no evidence that an)r rans()nr derrrantl was actualll nrade sincc there is no voice recording available desPite the caller allegetliy calling manv times for thc Paymcnt ol ransom ancl thc involvement of the CPI.C and its negotiation and that nci ransom has ever been re<overetl The Nokia phonc rccoveretl from PW 2 Shahr,r Yar who is the son of thc deceas€d when i('was taken in to custody by the police was nol sealed and there is no cvidence uf its safe custody there after. In this rcspcct reliance is Placed on Azeem Khan V Mujahid Khan (2016 SCMR 27,r)

(d)The casc of the prosccution is that the deceas€d wds strdnglcd beforc being dumped into thc i{ater tanl< at the house. I he cause of (leath ho!'cver has not been cstablishecl []v the medical roPort which does not state the deceased lvas stranglcd and thcre aPpears Io tr no final cause of cleath certificatc on re((rrd. The inqucst report also sho$'s no marks on the neck ot the accused and as su.h the aausc of death cannot be establishcd an(l as such the lecoverv trl the ropc at the scene o[ the crime is o[ nu relevance. the accused could have drorvned in the u'atcr tank at the horse bY l.lllin8 in il himself by accident whjch wouli not nlake this a case of murder. Wc are howcver satistieci based on thc llNA evidcnce that the dead tDJv was that ot the deceased dcsPltP Ils,la rtmnr'sition.

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(e)That thc.onfessions made bv the accused bcfore the policc are inadmissiblc in Ia*,arrtl rur reliance can Lrc placcd on theril

(f)PW-3 Muhanlmad Nasir Shaikh who is the son of the deceased i$ an interested wilness who went to the scene of thc .rinre with the police and ivas preserrt when the rope $'hich was allegedly used to strangle his fathcr was recovercd along with his fnthtr's budy. H(,wever it is signifieant that this inrportant Pir,ce of cviden.e r)l him Soing to the house t'ith thc policp orr the pointation of thc .rccuseri where thc .rime was connnitted and recovcring thc cvidence of the rope r{as not rcrorded i his S.16l statement which tcnds to show that he has dishonestly inrproverl his evirlence whiclr in our view rnakes it highl)'urreliable. Same is the case of PW 5 lhiz Ahnrerl who is the arresting ofiiccL. Reliamt in this resPect is placed on Muhammad Mansha V State (2018 5l(- MR 772).

(g)l'w-tl Muhammetl Ishaque n'ho a.cused lftikhar allegedlv purchased the SIM for his phone diJ not evpn take the CNIC o[ lltikhar at the time ol selling him thc SIM which is a legal requirement a,rd (astes further doubt on thc prosecuhon c.rse as it cannot be proved that the SIIvI was purchased by aL{usetl lftikhar.

(h)l'W-7 Majid Khan says that he knclv all three a(cused and that he saw two of thcm enter the bungalow with thc deceas(-d. However there is no cvidence that he knew all the three accused let alole th{' (l€.ceased and as such the sater coufie was to hold an identificatir)n parade in ortler to establish his iderrtifi.ation oI the accuscd which wa$ not done. I Ie aPPcars to be a rhan.e witness as no rc.ord of his employment in that arca has bee tendered in evidcncc. lven othelwis€ since there is no evidcDce on record that he knew the deceaserl before the incident his identilicati(u of the deceased cannot [,e safely relied upon especially as he does not state in his evidenre which tlay the tieceasecl $'ent iito thc Lrungalon, u,ith the ac.used and that the deceased lvas takcn into the bungalow by the a.cuse(l by force or against his will. Ihc tacl that it was 9pm and that it woukl have been clark and it ltas not known how far a*,a,v he was frurn th|j accuse(l and the Lleceased when the;- allegedly entered the housc also castes further doubt on

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his ability to safely ide tifJ any of the accused or thc deceascd. ln our vicr^, his allegcdly last seen eviden(e cannot br'safelv relicd upon in order to aonvict the accustd. ln this resPect relinnce is placed on Muhammad Abid V State (PLD 2018 v-- tt13)

(i)The prosecution therefore is only really left wiih the evidence thal Iftikhar lead them to the bungalow on whosc pointation the dead body and rope were recovered. There is no evidence that the rope u,as kept in safe custody or even that the deceased dierl bv strangulation from the MLO, as dis.ussed earlicr, antl as such the recovery oI the rope (loes not link the accused to the cause of death. Even if n'e accept that the accuseli did take lhe police to the house and showed them the dead bodl and the iope wc are ol thc yiew that without anv other cogent, reliable corrobordtive evidcn.e which is lacking in this case it would be unsale to .r'nvict thc accused on this evidencc oI pointaion ol the bungalow h,here thc dead bodv and rope were lound especially as due to a lack of medical evidence it has not bcen conclusively established ho$' the de...eased died arrd rvhether it indeed was a case of murtler.

(j)Ihere is no eye $'itncss t(t the murdcr of the deceased and the case is very muclr based on cift'umstantial evidence which in oLtr view does not (ully meet the requir€ments oI a .ase b.1scd orl .ircumstarltidl evidencc to enable a convi.tion as therc aPPear to Lr: many brcaks in the chain of evidence linking the accused lrom the foot of the deceased to his neck. For cxan'rplc, there is no evidencc of ahduction or of a ransonr being made or even a motive Reliance in this respcct is placed on the.as€ of lrayyaz Ahmed V State (2017

:[MR 2026)

(k)With regard to accused Nawaz the only evidencc against him appears to be Iftikhar's ronfession trlore the Poll(c and sin('e Iftikhar is a co-a<cusetl this coniessiru before the Fllice is inadmissible in respect of co-accused Nawaz. Likcwise Nawaz's own alleged conJestioD before the police is inadmissible t3. lt is a cardinal principle of criminal jurisprudencc that the prosi{ution must prove its casc beyond a rcasorrable doubt and it is not

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for the accused to disprove the case agaifist him rvhQ may take anv and as many deferues as he likes to thc allegations agairrst him as the onus rests on the prosecution to prove its case trevcrnd a reasonable doubt as was hel(i in the case ol Muhamnred Shah V Slate (2010 SCN'IR 10(19) and it there is anv doubt in the prose(utions (ase the benefit lust 8r) to the accuscd. As rlas hcld in the (ase o[ Tariq l'ervez V The State (1995 SCMR 1345) that iI ther(' is a sintle (ircufstanre, which creates reasonable lioubl in a prudent rnind ntxrut thi'guilt ()[ the dccus]-(I, thi'rr the.i.r(sed will be entillecl to the benclit not as a mattcr oi grace anll concessitln but as a matter oI right. Srrch prjnciple was reccntly rcit('rateli by the Supreme .ourl in the case of Abdul labbar V State (2019 SCl\'ll{ 129)

14.In our !,icw for the Easons mentioned abovp the prosecution has failed to prove its aase against the appellants beyond a reasonal)le doubt and the appellart's are both entitled to the benefit of the doubt dnd as such their appeals are allou,'etl and the,rppellants are a.quitted of the charge and shall be released unless wanted in an], other (.ust()d), (,rse. Since we have acquitted the appcllants of the charge and uFhcld their appt,als it follciws that thc enlan.ernent apt)eal iails and is dismisscd '15. I he appetrls art, disposcd 0f in thc above terms

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