NASEER AHMED BUTT S/O ABDUL RAZAQ BUTT (Appellant) VS THE STATE (Respondent)

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CERTIFICATE OF THE COURT IN REGARD TO REPORTING

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HIGH COURT OF SINDH

Composition of Bench s-4./D. B

Mr. Justice Mohammad Karim Khan Agha, Mr' 1..;.L.- hk-'t'; lt c"ct'* Tu*o LL \ 'p ' t?

Date(s) of Hearin g: 4 H, lrrl L tt- 7

Decideon: I1-c J -201-9

(a)Judgment approved for reporting :# i./1

CERTIFICATE

Certified that the.iudgment*/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.

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

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rN THE IIIGH COU ,rJ'oF srNDH AT KARACT{r peal No. ,'l0 tJ

\aseer Ahmcd tsutt lo

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\bdul Razaq Butt R O House No.H800 Cali No.l, Ceneralabad Shccrcen Jinnah Crrlonl IYt <\.t '/ Clifton Karachi.

Presently confined in ( Ccntral Jail, Karachi................. Appellani

I Jh( Srate Respondcnts

FII{ No.2261201I u/s.365-A/302/34 PPC P.S. (iIZRI (AVC(:)

ArPltA t. { rNDER Sltct tot{ 25 ()t- TIIti ANTt-TIit{trot{risNI cotitu' ,^c r I997.

Bei[g aggrieved and dis-satirfied with thc Judgment dated 3l-Og-2o]l I :alsed by the Leamed Judge ol' Anti-'l erro.isnr Court No.ll Karachi rvhcreby Er:Ellant Naseer Ahmld tluft \r'lls convicted t_,rdcr Section 7(a) & (e) of ATA r.- R^\rSecrior 365-A/:]02/34 PPC and av,ardcd death senrence/pcnahy and !:{ rr ardcd \ ith fine r-rl Rs. | .00.000/- to be pr d to lhe fathcr of the deceased as :::r---ensation hence this appeal is preferred oi the ibllowing l'acts and grounds:- t {(-TSr

I-he complainanr Syed Janalullah had lodged the FIR No.226r2011 on i-i c: .lul1 201 I at 2l:15 hours that he is a emt-,loyee oI DHA as Director Financc, ::: s..n Sled Almed Bilal on22.07.201! ar abour 3.30 pm had lell the house rr-.-:a lhar he is going to rneet his lriend but hg did not retum. e kept looking i:r -::n among his friends and relatives but there was no clue of him. On :i -:.,11 he received a call at his PTCL No.:i390196 and lhe caller said that if ri. ,: ris son is dcar to him he should give Rs.lo lacs. He statcd thal at lhal time -e::: nor have C.L.l (Calling Line identifi(ation) at his PTCL therelbrc he ---:n: nore the unber liom where call had comc. Again the call had conre on :: . - larl I al hii PTCL flom 8?51018 and rhc callci said that hc (callcr) asked

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IN CUSTO I)Y

IN THE HIG H COURT OF'SINDH AT KARACHI

(Crimin al Appeltat e, lLLrisdiction) r>_r.) PR}j:itlhJ'fi"D ,)ni'< <- f) l\-Cl{.

' ft..^v " o..,,, Lv Special Cr. ATA Appeal No. '(-, of 201 Mohammad Abu Bakar Sad:q D1. trtsiltlrt i r,.,, son of Mohammad Sadrq Muslim, adult, rcsident of Shireen Jinnah Colon\', Karachi.

Presently confined at Central Prison Karachi 3 'i1\ Appellant

Y.E R S U T;

'l'he Statc Rcspondent F.l.lt No. 220l2011 !!_q. 365-A/302/34 P.P.c BA/-S-E!ie! 7 Anti-Terrorism Act. 1997 8S Gqu.lAYe Q). Karachi.

APPEAL UNDER SECTIO $ 25 OF THE

ANTI- RISM ACT I9.)7 READ WITH

SECTION 561-A CRIIIIINAL Pr:I OCEDURE COD E Being aggrieved ard dissatisfied with the judgment, sentence and fine passed by the learned Anti-Terrorism Collrt No. II, Karachi \ide Judgment dated 3t-8-2013 in Sp.:cial Case No. Tt/2Ott, sentencing the present Appellant and the co-accused Naseer Ahmed Butt as under: -

{ "I auard. d.edth penaltg to both of them u/s Z (a) & (4 of ATA, 1997 r/w s65"A/sO2/54 of p.p.C. of p.S Aizri (Avcc), Karachi, on the two c<,unts murcler and. kldnapping for ransom. 'Iheg are to be hanged. bg neck tilt dea.th sub|ect to confirmqtion bg the Hon,ble .$igh Court of Slndh, Karachi, Both o.re o.lso to pag fr.ne oJ Rs. One Lac ed.ch to

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IN THB HIGH CO UI{T OF SINDH AT KARACHI

Special Cr. Anti-Terrorism Appeal Nrr 37 of 20[3 SpccialCr Anli-Terrc,rism ApPeal No.3ll ot 2013 (.oniirmariun Case No.U t ol 2013

Present:

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Appcll.rnts: Nascer Ahmed Butt tlrough Mr. Mahrnood A Qureshi Advocate and Muhamnad Abr-r Bakar Sadq throulih M!. Mumtaz Akhtar, Adv(xate'

l{espondenl The Stale thlough Mr. Muhammed lqbal A\ 'an, Deputy Plosecutor General Sindh

Complainanti Through Mr.Zakir Laghari, Ad1'oi:ate I)ate of hearings 04,09.201 9, 1 1.09.2019 and'l 2.09.2019 I)ate ()f announcerl-tent 19.09.2019

IU DGMENT

Mohammad Kadm Khan Agha, J - Appellalrts Naseer Ahmcd Butt son of Abrlul Razzaq Butt and Muhamftad Abu Bakar Sadiq son of Muhammad Sadiq have prelerred these aPPeals agairrst lhe iudgnrcnt Ne ll' rlated 31.08.2013 passed by the leamed rudge Anti-Tctorism Courl Kara.tu in SPedal Case No.71/2()11, l-.I.R' No 226,/2011 u,/s 365- A/302,i 34 PPC r/w section 7 of AIA,197, registered at Police station Gizri (AVCC), Karachi whereby both thc aPPellants have been convicted of the charge and a'wardcd dcath Penalty under Scrtion 7(a) and (O ol Anti-Terrolism Acl, 7gg7 t/w 365-l\1302/34 PPL- on t\ao rounts o{ murder and kidnaPPing for ransom subject to conlirmation by this court' Both are also to fine of lls. One l-ac ea'h to be Paid to the father of the Pay deceasetl the complainant as comPensation (the imPugned iudgment)'

2.The brief fa(ts oI the Prose.ution case as per FIR are that the complainant Syed lamalullah hacl filed FIR No 22612011 on 27s July' at 21,15 hours that hc is an emPloyec of I)HA as Directo! Finance l lis son

Syed Ahmed Bilal on 22,07 2011 at about 330 Pm had lcft the house sdyrng thdt he is going to m(Et hls fricnd but he rli'l not return' He kePt,

til looking for him among his friends and relatives but there was no clue about his whereabouts. On 23.07.2011 he had inlormerl PS Gizri about the missing of his son. On 25,07.2011 he received a call at his SICL No.5390196 and thc caller said that if the lile of his son is dear to him he should give Rs.20 Lacs. He stated that at that tinre he did not have C.L.l. (CallinS Line ldentification) at his PrCL thereforc, he could not note thc number frcrm where call had come. Again a eall had come on 26.07.21)77 on his PTCL line from 82S018 and the callcr said that he (caller) asked him (complainant) tllat he has not given the money because his son ilt not dear to hinl' The complainant told the caller that the) had not given thc lo(ation of where to d-rop the money and to say so. The caller said to bring the money at Liaqatabad Scctor and closed the Phone. He had informed about this call to CI'LC and his case is against unknown accused persons for kitlnapping his son aged about 16 to 17 yearc for ransom as such he requested to take action agairlst the culPrits- -I'hc

3.I.O. Inspector Tahir Naseet was Sivcn the irvestigation of rhis case. I-le had met the complainant and found qut ftom him that his son Syetl Ahmed Bilal had phone No.ff336-2306590. The three persons namely Abu Bakar Sadiq, Naseer Ahmed Butt and Tahir Ahmed Butt were arested by Sub-lnspector Abdul Saeed, mobile ufficer u/s 54 Cr.P.C Tahir Nascer had interrogated thesc three Persons but he could not Iind out anything nutcrial therel:ore, they wcre released on surety. The two persons Abu Bakar Sadiq ancl Nascer Ahmed Butt lr'erc bound down Lo appear r-rn 28.07.2011 Ior investigation at AVCC. On 28.07.2011 AbLr Bakar Sadiq and Nascer Ahmed Butt $erc summoned and were interroBated but the two of tiem drd not say anything about the abductee and claimed themselves to be innocent but from their countenance it seemcd that both of them were involvcd in the crime. They wcie Iet 8o but Abu Bakar Sacliq l^.as asked to come on 30.7.2011. Abu Bakar Sadiq had come and he was interrogated whereupon he conlessed that he along with his fricnd Naseer Ahmed tsutt had called Syed Ahmed Bilal from his housc on 22.7.2011 and took him tlr a dcsolate placc and killed him uPon wfuch Iahir Naseer had tormally arrested accused Abu Bakar Sadiq and al his in5tance accused Naseer Ahmed Butt.

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,1. Thc charge was framed agaiist the two accused on 11.10.2011 but at the time of Iinal arguments on 23.05.?JJ12 it was noticed by the Court that the charge was defective as the words "strangulated to death" was not in the firct charge and $'as added in the amended charge which ra'as framed on 24.05.2012. The learned Advocate Mr. M.R. Sved for the accused had addressed the hial court on 23 05 2012 and had stated tlut he adopts all the evidence and nced not recotd fresh evidence afte! the amendment of the.hargc. When the amcnded char65e was framed against thc accused persons on 24.0.1.20f2 both Pleadcd not guilty and claimed kial of tlre case.

5.ln order to prove its case the Prosecution exalnined 08 PW's who exhibited va ous documents and other iterns in suPPort of the prosecution casc where after thc prosecution .losed its side. 6 CW's were also called to give evidence b'!' the court mair{y in lesPect o[ the age of the accused and one CD reording whereby the mother of one accused had in cflect stated that IO Tahir Nazir wou[l falsely imPlicate her son in the case if shc did not pay him a btibe was exhibited. The accuscd Percons recorded thei-. statements under 5.342 Cr.PC whereby thel' claimed thcir false implication in the cas€. The accused did not cxamine themselves on oath nor producc any defense t'itnessec ill supPort of their defense.

6.Lenrned ludge, Anti-lerroism Court-ll, Karaclri, after hcarin8 the lcarned counsel for the parties and asses.cment of er'irlence available on record, vide the impugned iudgment dated 31.08.2013, {onvicted and sentenced the appellants as stated abovq hence these aPPeals havc been separately filcd by the appcllants aBainsL conviction. By this common judgment we intend to decide the same.

7.The facts of the case as well as evidence Produced before thc trial Court firld an elaborate mention in the imPugried iudSment, therefore, the same are not leProduced hele so as lo avoid ll'lPlication and unnecessary repetition.

8.Learned counsel Ior the appellants at the outset made it clear that iJ therc 14'ere any potential legal deiects in the imPugned jud8ment such as thc appellants potcntially being under 18 yeals of age and being denied the opportunity to examine the medical b<-rard which oPired that bo0r appellants \^ere over 18 r'ears of a8e, not Putting questions to lher_

/(l appelidnts during thcir 5.342 statements. thc norr rerecortling of PW's aftcr the charge was amended the-v $aived lhcse dcfects as thev did not r^,'ont the case rcmandeci back to the tdal court but wante(l the appeals to be decided on merits by this court.

9.Lt'arned counsel for appellant Abu Bakar contended that the place oI the murder of thc deccased had not been provcd especially as it was an opcn DHA plot and it was not belicvablc that the I)IIA guartls would not llave secn tlle bocll,aiter a delay ol 8 rlays antl in fact the police kr1ew r.'here the dead bodl,lvas before the police lvere taken to it on the allegetl p(rintation of the appcllant; that although thc boriy had been cut up no weapon i1'as recovered which was capable of cutting up the bodyi that the Llead bodv due to its d€romposition rvas not identifiablc; that it did not aFpcal to rcason that the deccased rvas atr-lucted on 22-07-2011 and yet the ransom call was mallc 3 ciays later; that there was no eviclencc that a ransom dern.rnd had been made; lhat tlle last seen evidcnce ivas cornpietely unreliable as it was reported after 8 days and in anl' event this was the i,eakest form of evidencc; that no identilication paradc ir'as hcld;

that P\{ I had not cven give e!,iden.c on oath, that the m()torbike lrad not bccn reaoveted and for urc or any o{ the above reasons the appellant was entitlcd to be acquitted based on the brncfit of the doubt. ln support oi his contentions he Flaced reliance on the case oI Khyber Toba(co Co. Ltd. v. Khyber Tobacco Co. Labour Union (PL.l 1974 -Ir. C. (Labour) 375), Khyber Tobacco Co. Ltd., Mardan v. Labour Union (1975 PLC 282), Abdul Ghaffar alias Kaka v. The state and another (2018 rcr.L.l Note 15 l-ahore), Zafar Hayat v. The State (1995 SCMR 896), Zainab Bibi v. Muhammad Astuaf and others (2018 PCr.l-.| Note 13 Lahore), Najaf Khan and others v, The State and others (2016 I'Cr.t..J 380 Lahorc), Nooro alias Noor Muhammad Shar and another v. The State (2018 PCr.l,.J Note 52 Sindh l,arkana Bench), Taiz Ali and another v. The State (2018 rcr.L.l Note 30 Sinrlh Hyderabad Bench), Syed Saeed Ahmed alias Asad Jaffary v. The State (2018 PCi.L.J Notc 36 Sindh), unrepo*ed iudgment in the case of Rarhid Aslam and Arshad Nabi v. The State dated 01-10-2018 (in Cr. Appcals No.99 &.100 of 2017 passed tw the Suprenlc Court of Pakistan) and an Att No. X of 1873 to consolidate the law relating to Judicial Oaths, and for other purposer.

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/ lz lU. l-carned counse] for Nasecr Butt contcnded that it is an admitted position that the appellant did not murder thc deceased; that this was an unh'itnessed crinre; that tlEre was no evidence of abduation; that thc alleged last seen witness PW 3 Muhammed Azhar rvas a Planted witness n'hose evidence no reliance could be placed on especially as he came forrvard 8 days alter thc incident and that there was no evidence to suggest that he was either a friend of the lather of thc deccased or kncw thc deceased; that there \,v'as no proof oI any ransom deoand or that any lal]som was paid, that the complainant haal made dishonest improvenrents in his statements and for one or any oI the above reasons thc appellanl was entitled to be acquitted ba6ed on the benefit of the doubt.ln support of his .ontentions he placcd reliance on the case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 27{), MuhamErad Abld v. The Stare (PLD 2018 SC 813), FalYaz Ahmed v. The State (2017 SCMIf 2026), Altaf Hussain v. Fakhar Huesain and another (2008 SCMR 11m), AHautlah v. The State and another (2017 P.Ct.L.l 9921, Mst. Askarian and othels v. Muhammad Daud and othera (2010 glivlR 16t14), Akhtar Ali and others v. The state (2008 SCMR 6), Muhammad Aeghar v. The State (PLD 2008 sC 513) and Syed Saeed Muhammad Shah and other v. The Srate (1993 SCN'Ui 550).

11.Mr. Muhammcd lqbal Awan DcPuty Prosecutor General and leamed counsel For the complainant contended that the apPellants had rightl:- been convi.ted by the impugned ludgment which did not require any interference by this Court. ln Particular he stressed that although the case r,,,as based on circumstantial evidence the Prosecution had Proved this through the last secn cf idence, CDR and the dead body lting shown to the police on the pointation of aPPellant Abu Bakr and thc wallet o[ the deceaser.l being uncovered on the Pointation of aPPellant Nase.r Butt. Hc did however concede that since it was unclear it'hich of the two aPPellants actually murdcred the deceas€.l ttre appropriatc sentence was one of life imprisonment as opposed to the death Penalt-v. In suPPort oI their contentions they placed leliance on the cases of Ghulam Huaeain Soomto v. The State (PLD 2007 gl n ), Sh. Muhammad Arniad v. The Stale (PLD 2003 SC 704) ar<I Nazir Shehzad and another v The State (2009 SCMR

12.Wc havc heard the alSumcnts of the learned counsel fot the appellants, Df€ and complainant and have gone through the entire evidence which has been read out by the aPPellant's counsel, the impugned judgment with their able assistan.o and have considerecl the lelevant law including the cases citerl at the bar.

13.Bcfore moving furthcr we w'ould like to addrese the lregularitY wherc by thc charge was rc tramed after rccording the cvidence o[ the PW's and the PW's $'ere not rc{alled to !e record their eviderce alter the amendment in the charge. Ordinarily alter reframing thc charge all the evidence should have been re recordcd. I Iowever we have noted that the accuscd counsel at trial did not $'ant the evidence to be re rc'corded and on inquiry whilst hcaring thesc aPPcals learnecl counsel lot the aPPellants did not q,ant the case to bc rernanded back on this irregularitv and wanted the appeals decided on merits by this court. We have noted that only the lvord, "stranBulation" has been added to the amendcd .harge and after tioing thrcugh lhe evidence it aPPears that this addition to the amendetl charge has not Prejudiced the accuscd whilst lerording lhe evidence of tl'tc PW's. Undcr these circumstances we see no useiul purpose in remaodiag the appeals back for re recording all the evidcncc of the P\ry's as this rvill give tle prosecution a chance to imProve its case and will also be ver)' time consuming and the trial will keeP the aPPellants in (onviction iail for an even longer period which again Inay result in their ard they rvould again be forccd to move an aPpcal which mav takc Years to be cletermined whi(h will again pre,udice them esPecially as the)'have alread;_ been behind the bars for ovcr 8 years As such in our vicw remanding the case ba(k Ioi re recordirtg all thc eviden(e oi the Pw's will not rncet the ends of iustice esPcciallv as thc addition of the single word, "strangulation" to the amendcd cfiarge has not caused Preiudice to the accused anrl lcarned counscl for the accused both at trial and belore us on inskuctions did not want the evidence of the PVV'S to be re lecordcd after the reframing of the charge and rvanted this court to decide the appeals on merits. l,ikewise is the Position as mentioned eallier in resPect of the a8,c of the appellants in tertrs of them not being able to cross exantne the Dr's who formed a Palt ol the sPecial medical boa!.1 \^hich deterrninLd that both the appellants lvere over l8 ycars of alie nc't wlthstanding the eviden(c ot.l CW's as to nge ('f the apPellants dnd the fact lhat some,

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questions were not Put to the accused during the recording of their S 342 Cr.PC statements. lnstcad thc learned couruel for the aPPellants wanted the appcals to be decided on merits by this court.

14.Clvs 5 arrd 6 relate to a CD lvhich contains an interview given to a TV channel in which the mothcr oi one of the accused aPParcntly 'laimed that her son had been falsely imPlicated in this case bccausc she rcfused to pay a bribe on the instructions of IO Tahir Naseer' Since she made no complaint oI this Pdor to hcr T V interview to the Police or any one else rvhatsoever we considel that het interview was made as a last ditch cffort in oldcr to save her son and thus have given it no wcight This is more so since the mother was alive but failed to Sive evidence which would have been the best evidence and her evidence in the CD is apparentll' hearsay' Even othcrwise the CD is inadmissible in evitlence because it does not meet with the requirements for er'idcnct'that has bcconle available because of modcm devices under Article 161 Qanun-e-Shahadat Order 1984 (Q&S) as set out in the suPreme court case of Ishtiaq Ahmed Mlrza and others V Fedetation of Pakistan (unrePo ed) datcd 23-08-2019 in C.Ps No.10,11,12 of 2019 Regarding allegations leveled in a media briefing against Muhammed Atshad Malik Judge Accountabilitv Coufi ll Islamabad.

15.After our rcassessment of the evidence we have come to the conclusion that the Prose(ution has not been able to Prove its case against the accused bcyond a reasonable doubt and that the accused are entitled t(' the bcncfrt ul the doubt for the f(tllowing reasons;

(a)We accept that the initial comPlaint regarding the missin8 son was made timely and the FIR Iollowed and as such the 5 day delav in lodging the FIR in a case of kidnaPPing for ransom has been arlequately explaine<I In this resPect reliance is placed on Ghulam Huoaain Soomro (Supra). There are, however, other factors wfuch we set out below which lead us to the conclusion that the prosa{ution has not proved its case against the accuscd beyond a ,irtasonable doubt.

(b)There is no evidencc that the deceas'd was abducted by the .rc(used Thc evidence i5 that he lclt home <tn 2247 -2077 al aboul y

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to 3.30pm and did not rcturn home. No one fronr his locality actually saw him being ab<lucted by the accus€d or any one else despite this being a day time incident a part from some last s€en evidence which we shall discuss later in thjs judgment and even then despite being a bo;- of 16/17 years of age he did not apPear to be traveling with the accused under protest or signalilrfi Passers b) for any assistance and that there was no evidence that dre accused werc evm armcd so as to force the deceascd to accomPany him who may have been travelinS with the accused at his own frce will even iJ \^e are to give anl/ weight to the last secn evidence, As such in our vicw the essentral ingredients oI 5.362 Pt€ have not been made out which also form a part of5.365 (A) PPC

(c)l hat there is no evidence that any lansom demand was a(tually made since there is no voice recording available desPite the involvement of the CPLC and that no ransom has ever t,ecn recovered. The location whele the ransom was to be droPPed also raises doubts as it is said to be. "Liaqatabad Sector" Surely the complainant would have insisted on a precisc location as Liaqatabad sector is large in area and a pre(ise time for the ransom drt'rp which Iack of inlormation does not Particularly appeal to reason artl ordinary human contluct and likewise why should the kidnappers have waited 3 days before making the ransom demand after the alleged abduction and murder of the de(easeci. The SIM recovered from Abu Bakar h'as not in his name and the SIM recovered from Nascer Butt was recovered on his Pointation and was not in his name and as such it could well have be€n Planted. ln addition there is nr:r evidence oI the safe custody of the SIM'S or the mobile phones after thet recovery and no effolt was made to hace out the owner of the landline from whom the ransom call was originally made. Namely 82A018.Furthermore, there is no evidcnce ol lhe sa{e custody of the CDR which does not bcar the stamP oI the CPLC or the signature of the police office! who collected jt and as such its admissibilit) in evidence is doubtful ln resPect of the need fcrr a voice recording in such tyPe of cases leliance is placed on Azeem Khan V Muiahid Khan (2016 SCN'IR 274)

(d)PW 3 Muhamrnad Azhdr rs a last seefl witness who along with.

his Iriend Sohail Malik (who did not g,ive e',,idence despite being on the witncss list and thus an adve6e infelence may be drawn against him under Articlc 129 G) Q&S that he may not have supported thc prosecution case) claims to have seen thc deceased on 22.07,2017 (the day the dcceased went missing) with three boys liding a motorbike being the accused and the deceased at about 4pnr in the vicinity of the marina club and heading towards Phasc VIII DHA. Muhammed Azhar in our view is a chance witness a5 his lactory is in Korangi and his housc is in Gulshan-e-lqbal rvhich is about 20 KI{'s away from where he allegedll saw thc accused and he had no reasotl to bc near the marina club on the day in question and he has given no cogent explanation why he was there. ln addition he would o! y have had a fieeting glance of the accused and the deceased as he passed them in his car as they Passcd him on a motor bike. 'lhere is no evidencc lo corroborate that he knew the accused or the deceased rcally well and would be able to recognize them b,'a tteeting glance. Hc was unable to name the colour and make ol the nrotorbike and not even any of the clothes lvhich the accused and the d€teased werc wearing 'which raises Iurther doubt as to him seeing let alone identilying the accused anJ the deceased. No identidcation Parade h'as calried out and the other corolxxative witness Sohail did not give cvidence. I Ie is in our view not a close friend oI the father as according to him he did not leam about thc missing of his son until 8 days alter the incident which would also imply that he hardly kneh'the son. He theu gave his last secn statement to the Police 8 days alter thc incident rvhich would give him sufficicnt tinE to concoct a story regarding seeing the accused and the deceased. Under these circumstances we Sive very little weight, if any, to his evidence which will necd thc strongest of couoboratio! to be relied on at all espccially as it is settled law by now that last secn evidence is one of the weakest (omu of evidence.

(e)The medical evidence is also imPortant in this case. On 30.07.201] PW 7 D!.Abdul Razak carried out the Post mortem of the rleceased 8 days after he went nissing. No iniury is seen or the neck and the cause of death is in effect head iniury resulting from t

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hard and blunt substance which indicates that the deceased was not strangled as alleged by thc prcsecution. Most signficantly, the time between death and post mortem is 7 to 10 days which means that the deceased could not have died on the day he was abdu'ted as per confcssion beforc the Police o, aPPellaat Abu Bakar and may have died at ieast a clay or tlvo afler the last seen evidence which mean-s that it cannot be conclusively ptoved that thc deceased was killcd shortly after the alleged last scen evidence of PW 3 Muhammed Azhar who allegedly saw him on 22-07-2011. On the contary it suggests that the deceased was killed 2 ot 3 days afte! hc was allegedly last seen which means that even if PW 3 Muhammetl Azhar did see the accused and thc deceased together on the day he went missing he was most likely not killed until 2 to 3 days thereafter and as such there was Plenty of time ior the accused to have dropped the deceascd olf and for some other pcrcon to havc killed him. Such nedical evidcnce further fortifics orrr view tl,at we cannot safcly rely on the alleged last seen evidence not withstanding its earlier mentioned defects and doubts to lead to the conviction of the accused. In this rcsP.{t reliance is Placed on Muhammad Abid V state (PLD 2018 sc 813)

(0 lrye are satisficd that the dcceased has becn correctly identified through DNA. It mav bc that the deceased died on account of head iniu es from the stones which had human blood on them and h,hich were recovcred from the murder scene but the question still rerrlain$ as to the identity of the Petson u'ho killed him. The fact that the deceased remained for 8 days in a DHA oPen Plot which did not belong to the apPcllants which people passed every ''lay including DHA guards and it r4'as not concealed ard yet it remainecl unJound, the Iact that no weaPon v!'hich was used to cut up the deceased's body was recovered, that the deceased was trot stranglcd as alleged also castes doubt on the Proseculion case'

(g)The manner uf aucst of the accuscd also raises eye brows in that they were seen by a police Patrol in Gizri who arrested them simply because they were roaming in the area at 5.30am esPecially as thc accused claim that they were affested from thei, hous€s. The date in the memo of arest also creates doubts as it is wrongly

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stated and co-incidcntally for rcasorrs unexplained the vcrv next dav the accused are handed over to IO PW 8 Tahir Nasccr of the AVCC ior investigation in this case nohvith$tanding that at ttus tiEre the accused had no known link to the case. lnitially the aocused are released twice on bond after interrogation and the third time Abu Bakar is interrogated he conlesses to the .rime. The chain o{ eventli starting from the arrcst ol the acause(l to the conlession of Abu Bakar to thc Folice on his third intelrogation does rot palticularly appcai to reason or natural hurilan conduct. Having bcen released twice on bond why would Abu Bakar conless wiren he vvas called to the poli.c station for interrollation fr)r the third time especially as il would have been apparent bv the third jnterrogation that the police had Iitde, if any, cvidence against him The motor bike allegedly used to abcluct the derceased was not even recovered and nor rvcrc any bl.x)d stained clothes lrom the accused rvho allegcdly hit tl're deceased over the head u'ith stones whi.h were left blood staincd. In this respcct rcliance is placed on Muhammed Asif V Srare (2017 SCMR 486). In any cvent the conlession *,hich accused Abu Bakar madc bcforc the poliac thdt he murdered the dcceased is inadmissible in evidence.

(h)So what we arc lcft with is the evidence thal accused Abu tsakar took llle police to the deceased's body which was Iound on his pointation in a vacant plot in Phdse VIII DHA $'hich did not belong to him. Sincc the plot was open and ttte public was passing bt' thc same every day for 8 days and the body was not con(ealed we cannot rule out the possibility that the police already knew whcrc the body u,as and simply took the appellant Abu Bakar to that place. Even if we accept that the appellant did take the police to the vacant plot whcrc the body was reaovered along with the stoncs we are ol ll'le view that without any other cogent. rcliable corroborative evidcncc which is lacking in this case it would be unsafe to convict the accused on this cvidence of pointaion of tlre dead body alone. Furthcr doubts are also raised u,hen it is considered that no sketch of the body and wardat was made and no photo's were takcn of the dead body in situ at the spot which may even lead to the possibilit], lhal the body was moved to that location. lt is also curl,risin8 that t1

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no effo s wcre made to get rid of the blood stained stones which wcrc allegedly used to mutder the deceased. The fact that the police also noted the cause of death as strangulation also raises fu*he! doubt. It is also not without siSniJicance that the F-ll{ did not describe the clothes the deceased was lr'caring when he went nissing yet he was identified by his clothes by his lather.

(i)With regard to accused Naseer once we rule out any conlession made before lhe police we are only left ttith lim leading the Police to the place where he allcgcdly threw thc deceaeed's wallet. In our view once the bod),of the deccased had becn foumi it cannot be ruled out that the wallet was in his clothcs and that it was foisted on accused Naseer. This is esPecially as the Police in crcss eramination a.lmit that they had already searched the Plot beforc the wallet 1{'a-s found on the alleged Pointation of Naseer. Ilorv r+'as it possiblc that the police failed to iind the ied wallet on their initial search? lf Nasce|ra'as also trying to hidc the identiry' of the de\'eased it also docs not aPpeal to rcaso or natural human conduct that he \a'ould tlump it a few lt fcet flom the dead body and leave it containing the deceased student card and other form of identification. In this resPe.t reliance is Pldced (rn Muhammed Asif v The State (2017 SCMR 486) Likewise it does not aPPeal to reason that Nascer s'ould have hidden his SIM in ar easily recoverable place if he had uscd it to Drake the nnsom calls and it cannot be rulcd out keeping in view the Particular facts and circumslances surrounding this case that the SIM was foisted upon him by the police,

() There is no eye ivitness to the murder c'f the deceased and the case as admitted by the prose.ution is based on .ircumstantial evidence which in our view does not fully meet the requi-rements of a case based on circunstantial evidence to ernble a conviction as there appcar to be many brcaks in the chain of evi.len.e linking the accused from the foot of the deccased to his neck. For example, there is nr.r evidcnce of abduction ot o{ a ransom being dcmanded or even a motive. Reliancc in this resPect is placed on the ca$e oi Fayyaz A-trmed V State t2017 SCMR 2026)Z

tfo this casc in

(k)Although we accePt that no two cases ate identical rcspect of both the facts and the law in tcftns of aL'duction' ransom has striking demands, last geen evidence, de'omPosition of body similarities vvith the .ase of Rashid Aslam (SuPra) t^'he!e under to simila! circumstances the accuscd were acquitted by extending them thc benefit of the doubt

-16. It is a cardinal principle of ciminal iurisPruden'e that the prosecution must Plove its case beyond a leasonablc doubt and it is not anv and as for the accused to ciisProve the case against him who may take as the onus rests rnany clefenses as he likes to the allegDtions against him as was on the prosecution to Prove its case beyond a reasonable doubt 1009) and il helcl in the case of Muhammed Shah v State (2010 SCMR thcre is any doubt in the Prosecutions case the benefit must [lo to thc

accuseLl. As was helll in the case of Tariq Pervez V The State (1995 SCMR

1345) that if there is a eingle circumstance' which creates reasonable then thc accused doubt in a Prudent mind about the Suilt of the accused' will be entitled to the benefit not as a matter of grace and concession but as a matter of ri8ht. Such Prin.iPle was recently rciterated by the SuPrenre

court in the case of Abdul Jabbar V State (2019 SCMR

17.ln olrr view for the reasons mentioled above the Prosecution has a rea$onable doubt failed to prove its case against the aPPellants beyond doubt and as and the apPellant's are both entitled to the bcnefit of the such thei appeals are allowcd and the aPPellants are acquitted of the

charge with the conlirmahon reference being answered in the negatil'c' other custodv ca5e' The appellants shall be released unless wanted in any ttj 'fhe appeals are r.lisposed of in the above lerms JU nl"1l1 h a'o'1

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