MUHAMMAD SOHAIL S/O MUHAMMAD SULTAN (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH AT KARACHI

(Criminal Appellate Jurisdiction) Special Criminal Ant-Terrorism Appeal No' o12022 lry,,/ ttiluhammad Sohail S/O ti4uhammad Sultan, IVluslim adult, resident of House No.A/269, Near Jhangvi Chowk, AYubia lVlasjid, X/10 Last StoP, lttehad Town, Karachi.

PresentlY confined in Appellant Central Prison, Karachi

VERSUS

Respondent The State t

FIR No.78 ol2019 u/s 365-A, 302,297,201 & 34 ottn" Prtittan PenalCode, 1860 Read with section 7 of the Anti Terrorism Act, 1997 P.S. tr/ominabad, Karachi' *" A PPEAL U /s 25 OF TH E ANTI -TERR o Ri M ACT 199 7 REA D WITH SECT roN 41

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CRIMINA L PROC EDURE CODE

Being aggrieved and dis-satisfied with the common Judgment

dated2g.0g.2022passedbythelearnedSpecialJudgeAnti-Terrorism No'23 of 2019 and Old Court No.XV Karachi in New Sipecial Case the appellant U/S 365-A of the Special Case No.436 of 2019, convicting till ppc beside forfeiture of their property, death and be hanged liy neck hisdeadundersection3o2(b)ofthePPCalongwithfineofRs.200,000l Cont'ci... .P/2

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OIIEICE OF THE JUDGE AI{TI-TERRORISM COURT NO.XV,

K;ARjACHI DMSION, fiJDTCIAL COMPLEX ATCs ATC-xv/Kirt-ol /4-i27, / 2022 Karachi , Dated :29 .09 .2022

NEW SPECIAL CASE NO.23 OF 2019

OLD SPECIAL CASE NO.435 OF 2019

The State

VCTSUS

Qaiser j-,l"luhammad 'o Muhammad Parvai z, . ,/o C/o House No.188, ,,aryana Colony, Sector 10, .,,::angi Town, Karachi ll'iIC No .42407-08 60673-3 - resently confined in Central Prison r Correctional Facility, Karachi; and 2.I'luhammad Sohail- S/o Muhammad Sul-tan ::,/o House No .A/ 269 , lear Jhangvi Chowk, iyubia Masjid, X/10 Last stop, lttehad Town, Karachi .li'lIC No . 42401-01'71 883-7

?resently confined in Central- Prison i Correctional- Facility, Karachi. . . . Accused FIR No.78 of. 2079 Under sections 365-A, 302, 297, 20L & 34 of The Pakistan PenaI Code, 1860, read with section 7 of The Anti-Terrorism Act, 1997 P. S. Mominabad, Karachi.

o The Registrar, Hon'ble High Court of Sindh, Karachi

SUBJECT: REFERENCE ITNDER SECTION 374 CR.PC IN NEW SPECIAL

CASE NO.23/2019, OLD SPECTAL CASE NO.436/2Ot9, FTR NO.78l2019 UNDER SECTTONS 365-A, 302, 29't ,

2OL & 34 OF THE PAKISTAN PENAL CODE, 1860, READ

WITH SECTION 7 OE THE ANTI-TERRORISM ACT, T99'7,

POLICE STATION MOMINABAD, KARJACHI, RE. THE STATE

VERSUS MUHAIUMMAD QAISER 6 ANOTHER

New Special Case No.23/2019, FIR No.7B /2019, lnder sections 365-A, 302, 29"/ , 20L & 34 of The Pakistan l- Code, 1860 read wit.h section 7 of The Anti-Terrorism Act, 1"997, Pol-ice Station Mominabad, Karachi, has been lecided today vtz: 29.09,2022 wherein accused Muhammad ;raiser S/o Muhammad Parvaiz and Muhammad Sohail S/o l.luhammad Sultan are convicted and sentenced to death and Page1. of 2

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IN THE HIGH C OURT OF S INDH, KARACHI

Prcsent:

Mnlustice MohammadKaim Khan Agha Mn fustice Khadim Hussain Tunio,

Spl. Criminal A.T.A. No.173 of 2022 Confirmation Case No.08 of 2022

Appellant: Muhammad Sohail slo.

Muhammad Sultan through Khawaja Muhammad Tanoli, Advocate.

Complainant: Javed S/o. Sultan through Mr. Muhammad Hanif, Advocate.

Respondent: The State through Mr. Muhammad Iqbal Awan, Additional Prosecutor General.

Spl. Criminal A.T. Jail Appeal No.t84 of 2022.

Appellant: Muhammad Qaiser S/o.

Muhammad Parvaiz through Barrister Iftikhar Ahmed Shah, Advocate.

Complainant: Javed S/o. Sultan through Mr. Muhammad Hanif, Advocate.

Respondent: The State through Mr. Muhammad Iqbal Awan, Additional Prosecutor General.

Date of hearing 04.05.2023 Date of Judgment 08.05.2023.

I IUDGMENT

MOHAM MAD KARIM KH AN AGHA, I: - The appellants Muhammad Qaiser S/ o. Muhammad Parvaiz and Muhammad Sohail S/o. Muhammad Sultan have preferred the instant appeals against the judgment dated 29.09.2022 passed by the Learned Anti-Terrorism Court No.XV, Karachi (ludicial Complex ATCs, Central prison, Karachi) in new special Case No.23/2019 (otd special Case No.436/2019 arising out of Page I of 12

ry Crime No.78/201.9 U/s.365-A/302, 297,201 & 34 ppc 1860 read with section 7 of the ATA, 1997 registered at p.S. Mominabad, Karachi whereby both the appellants were convicted ancl sentenced to death u/s, 302(b) PPC along with forfeiture of their property as well as R.I. for one year and 07 years under section2g7 and201 ppc respectively and fine of Rs'200,000/- (Rupees two lac) each to be paid to the comprainant uncrer section 544-4 Cr.P.C. The appellants were also convicted and sentenced to death under section'7(1)(e) of the Anti-Terrorism Act, 1997. AII the sentences were ordered to be run concurrently. The benefit of section 3g2- B Cr.P.C. was also extended to the appellants.

2.The brief facts of the case are that complainant Javed s/o. sultan got FIR No.78/2019 registered at police station Mominabad, District west, Karachi under sections 365 read with section 34 of the pakistan penal Code, 1860, stating therein that he used to reside in house No.1gg, Haryana Colony, Sector 10,.Orangi Town, Karacl"ri. On 11.03.2019, Junaid { aged about 15 years son of the complainant left the house at 0g:00 pm while saying to his mother that food be made hot as he wouid take the same after his arrival. At the time of leaving the house |unaid also took with him a Samsung mobile phone model t-7 bearing IMEI No.355617085024091 containing sIM No.0316-2g3zz-17 but he did not return home. Information of the incident was furnished by the complainant at the PS on12.03.20-19. The complainant party till then were searching and enquiring for Junaid but without success. The complainant became certain that either unknown person or persons for unknown reasons had abducted his son Junaid and taken him away to some unknown place and hence an FIR was registered against unknown persons.

3' Firstly the Lo. had submitted the report uncler A-Class as no clue was found regarding involvement of any of the accused. on 06.04.2019 the I.o. came to know through sHo ps Mominabad that number of the abductee had come on. The Lo. left for CpLC, where he found waseem Nadir, who on enquiry disclosed that he purchased the mobile phone from accused sohail residing at Jhangvi Chowk, Ittehad rown. The mobile phone of the kidnapee was recovered from Waseem Nadir lying in his I'rouse and on his pointation the accusecl Muhammad Sohail ancl Page 2 of L2

51t

Muhammad Qaiser were arrested on suspicion. Both the appelrants were brought at the police statior-r who during i.terrogation admittecl the murder of funaid by strangling him with a string and as such tr-re complainant and his witnesses were callecl. The accused and witnesses t were taken to the place on the pointation of the accusecl, where murder of ]unaid was committed. The appelrants took the I.o. and the witnesses to the place of incident and the I.o. recovered there from some human bones, skull and different parts of the body that were lying scattered because of eating by the animals which were seized by the I.o. hairs of the head bone and one chapel and jaw of the victim which were iclentified by Muhammad Afzal Khan to be of junaid. The appellants were then formally arrested in this case.

4.After completing the investigation Inspector Akhtar Aziz submitted charge sheet against both the accused under sections 365-A, 302,297,201 and 34 of the pakistan penal Code, 1g60 read with section 7 { of the Anti-Terrorism act,7997 to which to which they pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case examined 10 witnesses and exhibited various documents and other items. The statements of both the accused were recorded under section z42Cr.p.C in which they denied all the allegations leveled against them and claimed their innocence. Howe'er, they did not give evidence on oath and did not call any D.w. in support of their defence case. After hearing the parties and appreciating the evidence on record the trial court convicted the appellants and sentenced them as stated above, hence, the appellants have filed these appeals against their convictions.

6.The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment datecl 29.09.2022 passed by the trial court, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7.Learned counsel for the appellants have contendecl that the appellants are completely innocent and have been falsely implicatecl in the case; that the FIR was lodged after an unexplained deiay of 4 d,ays;

Page 3 of 12

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that the there is no eye witness to the abduction or murder; no last seen evidence; that no ransom demand was made and no ransom paid; that the judicial con-fessions of the appellants were not voruntarily made and as such are of no evidentiary value; that the murdered abductees phone had t been foisted on appellant sohail; that the appeilants did not lead the police to the place of the murder and recovery of the deceased's bones and for any or aII of the above reasons the appellants should be acquitted of the charge by extending them the benefit of the doubt. In support of their contentions they placed reliance on the cases of Bashir Ahmed vs. The state (2022 YLR Note 1.06), Fazal Haq vs. The state and another (2014 YLR 2109), Naqibullah and another vs. The state (pLD 197g supreme Court 21), Nadeem Hussain Vs. The State (2019 SCMR 1290) and Ghulam Akbar and another Versus The State (2008 SCMR 1064

8.on the other hand learned Additional prosecutor General Sindh and the complainant fully supported the impugned judgment and { contended that the prosecution had fully proved its case beyond a reasonable doubt through reliable trust, worthy ancl confidence inspiring evidence especially the judicial confessions of both the accused which proved that the appellants had abducted, demanded a ransom and murdered the deceased; the fact that the deceased's recovered mobile phone could be traced back to the appellant sohail; that the appellants hacl lead the police to the place of the murder, to the remains of the dead body and the place where the clothes of the deceased were burnt which was a place which only they could have known about and that the death penalty was applicable to this case due to the grievous nature of the offence against a young child. In support of their contentions they placed reliance on the cases of I(han Muhammad and others Vs. The state (1999 scMR 1818), Akhtar Vs. The State (2020 SCMR 2020), Gul Muhammad Vs. The state (2011 scMR 670), sh. Muhammad Amjad vs. The srate (pLD 2003 supreme Court 704), Mst. Aksar Jan and others vs. Muhammad Daud and others (2010 scMR 1'6M), Gulzar Ahmed vs. The state (2002 scMR 596), Muslim shah vs. The state (pLD 2005 supreme Court 16g), Nizam- ud-Din vs. Riaz (2010 scMR 452), Muhammad Azad alias |avaid alias Jodi vs. The state (2019 scMR 1330), Hamid Mahmood and another vs. The state (2013 scMR 1314) and Ahmed saeed alias Bharam alias Nagori Vs. The State (2020 yLR Note 88).

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9.We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the learnecl counsel for the appellants and the impugned judgment with their able assistance and have considered the relevant law including the case law tl cited at the bar.

10.After our reassessment of the evidence we find that the prosecution has proved its case beyond a reasonable doubt against the appellants for the following reasons in respect of the offences under section 36s,297, 20'1, and 302 (b)/u PPC keeping in view that each criminal case musr be decided on its own particular facts and circumstances and evidence on record.

(a)The FIR was delayed by a period of 4 days however we do not consider this to be fatal to the prosecution case as usually when a young child goes missing the priority is to search him out and only then if the search is unsuccessful usually is the FIR lodged as in this case and as such the delay of four days has been fully explained especially as it has I come in evidence that the complainant reported his missing son to the police on the day of the incident. What is of importance is that the FIR was lodged against unknown persons as the complainant did not know who had abducted his son and as such there was no intention to falsely implicate any body.

(b)There is no eye witness or last seen evidence relating to the abduction of the deceased and no eye witness to his murder. To some extent this is understandable as the deceased was abducted after 7.30pm at night when it was dark as per the evidence on record.

(c)The case against the appellants is therefore based on circumstantial evidence as conceded by the prosecution. With regard to circumstantial evidence leading to a conviction in a capital case it was held as under in Fayyaz Ahmed V State (2017 SCMR 2026) at p.2030 para's 5 and 6 which are reproduced as under;

"To beliwe or rely on circumstantial eaiclence, the uell { settlecl ancl deeply entrenched pinciple is, that it is imperatiue for the Prosecution to proaide ail links in chain an unbroken one, uthere one end of the same touches the cleail body and the other the neck of the accused. Tfu present case is of such a nature ruhere msny links are missing in tlu chain.

To carry conaiction on a capital charge it is essential that cotrrts hnue to deeply scrutinize the circumstantial euidence because fabicating of such widence is not uncommon qs zoe haae noticeil in some cases thus, oery minute and narroT0 ltrutnttanad An! Page S of 12

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examination of the same is necessary to secute the ends of justice and thnt the Prosecution lus to establish the case beyond all reasonable doubts, resting on circumstltntinl euidence. "Reasonnble Doubt" does not mean any dottbt but it must be nccompanied by such reasons, arficient to persuade n judicinl 4 mind for placing reliance on it. If it is short of sttch standard, it is better to discard the same so that an innocent person might not be sent to gallous, To ibazo an inference of guilt from such euidence, the Court has to apply its judicial mincl with ileep thought ancl with extra care and caution and wheneaer there are one or some indications, shotuing the design of the Proseantion of marufacturing and preparation of a case, the Courts haae to shota reluctance to beliwe it unless it is judicially satisfieil about the g.dlt of accused person and the required chain is maile out without missing link, otherwise at ranclom reliance on such et)iilence woulcl renilt in failure of justice.

It mny also be kept in mind thnt sometimes tlrc inoestigating figency collects circumstantial eoidence seents npparently belieuable howeaer, if the strict standards of scrutiny are applieil there would appear many cracks qnd dottbts in the I same zahich are alzuays inherent therein and in that case Courts haae to iliscard and ilisbeliane the same." (bold added)

11.Thus, keeping in view the law on circumstantial evidence what evidence is their to link the accused to the abduction and murder of the deceased through an unbroken chain of evidence.

(i)The starting point is the FIR lodged in respect of the abductee who was Iater murdered. As mentioned above this is against unknown persons so there was clearly no intention by the complainant to falsely implicate any body. Indeed after the initial investigation the report was lodged in "A" Class.

(ii)The first break which the police got in the case, and which forms the first Iink in the chain of circumstantial evidence, is provided by PW 4 Wasseem Nadir who was a neighbor of the accused Sohail who according to his evidence brought the deceased's mobile phone from accused Sohail for RS 3,000 on 23.03.2019 in which he inserted his SIM. This activated the phone which lead to the next link in the chain when on 06.04.2019 he was called by the CPLC where he met PW 5 SIP Muhammed Faris at CPLC's offices who he explained to how he acquired the phone i.e he brought it from accused Sohail. PW 4 Wasseem Nadir who was a policemen then took PW 5 Muhammed Faris who was the IO of the case to his Page 6 of 12

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house where PW 5 Muhammed Faris seized the phone which PW 4 Waseem Nadir had brought from accused Sohail under seizure memo.The complainant identified the phone as belonging to his son (abductee/deceased)

+ (iii) The next link is that PW 4 Wasseem Nadir took PW 5 SIP Muhammed Faris to where Sohail was at )hangvi Chowk where accused Sohail was arrested with accused Qaiser (who was the son in law of the complainant and brother in law of the deceased).Based on accused Sohail having sold the deceased phone io PW 4 Wasseem Nadir PW 5 Muhammed Faris arrested both the accused in connection with the abduction of Juanid under memo. Notably on Sohail's search a balance of the RS3,000 was recovered which he had used for medical treatment which ties in with PW 4 Wasseem Nadir seeing accused Sohail injured and in need of medical treatment at the time when he sold his phone. Both PW 4 Waseem and PW 5 Muhammed Faris corroborated each other in all material respects during their evidence in respect of the recovery of the phone and arrest of the accused. The evidence of both these { witnesses remained undented despite a lengthy cross examination. They gave their evidence in a natural manner. PW 4 Waseem Nadir's evidence was not materially improved from his Section 161 and Section 164 Cr.PC statements and neither of them had any reason to falsely implicate the accused for by example foisting the phone on him and as such despite them being police officers we can rely on their evidence which we do as we find it reliable, trust worthy and confidence inspiring, In this respect reliance is placed on the case of Mushtaq Ahmad v The State (2020 scMR 474).

(iv)The next Iink is that on the same day of the arrest of the accused being 05.04.2019 the accused lead the police to the place where they had murdered Junaid and on their pointation showed the police his skull and hair in a place which only they could have known about which were sealed and taken for DNA.The accused also retumed the next day with the {. police and pointed out other body parts to the police which had been eaten by animals and the place where the clothes of Junaid were burnt by them.

(v)The next link is the positive DNA report which proved that the recovered bones belonged to the abductee Junaid.

(vi)The next links are the confessions which each of the accused made before judicial magistrate PW 1 Page 7 of L2

t9t Abid Ali (both retracted at trial) which are reproduced as under for ease of reference;

CONFESSIONAL STATEMENT OF ACCUSED

SOHAIL RECORDED UNDER SECTION .].64

I CR.P.C.

I and accased Qaiser used to utork together in Haroonabail and about one or one and a hnlf month ago nccused Qniser told me thst ue ruould kidnnp his brother-in- laru nnntely Junaid, nge 1.5-1.6 years and tlun seek ransom of Rs.500,000/- from Junnid's fnther snd ruould tlun relens;e him. I ruas not content nt this and after n rueek I agreed nnd afier that sccused Qaiser told me that he tpould let me knorp as soon as he got an opportunity. One ueek after tlut qccused Qaiser contncted me nnd asked me to come near his house nt Fnqeer Colony nenr Wajid Slnlrced Chotpk nt nbout 07:00 or 07:30 pm. After tlnt I resclrcd tlrcre nnd contncted hiru and asked him to conte outside of ltis lrcuse. After thnt accused Qaiser took nty motorcycle from me nnd nsked me to tuait on the road for him. Acarsecl Qaiser asked me arrange for a rope and the hanels and legs o/ lunaid ate to be tied ancl ute utoulil then record his oideo. { After that Qaiser brought ltis brother-in-law on the roail on the pretext of mobile phone ancl asked me to ride the motorcycle. lunaid uas sitting in the middte. I zuas iiling the motorcycle and Qaiser was sitting at the back. After that both of us set olf for Raja Tarueer Colony and then I parked my bike in the street of the tnosque and afier coaering the distance of about S minutes ue arriaecl on a plot and then Qaiser took the rope from me and cut it into two pieces and then tied the hands and legs of lunaid. Junaid asked Qniser ruhnt he ruas doing. You had informed me tlut you are going to purchase mobile plrcne but Qaiser asked him to stay quiet nnd after that lunaid became quiet due to fear. After that Qaiser took lunaiil's mobile phone out of his pocket and thel ute recoriled his aicleo anil Qaiser asked me to ask funaid to tell his father to giue us Rs.500,000/- and after that lunaiil two to tlree times that ,Dad giae these people Rs.500,000/- othertaise they will not sptre me", Qaiser haaing recordecl this aideo, kept the mobile in his pocket and I said to him that the aideo has been recorded so shall zue leaoe but Qaber saiil i/ a tpe took him home so he will tell eueryone there and I uill nout kill him. Although I askecl him not to do so Qaiser opened lunaid's rope and tightened it arouncl his neck and killed him before me. Junoid tnd diert in fiae to'1,0 minutes. After that Qaiser remooed funaid,s clothes and the rope ancl burned them in the fire in the garbage lying next to the mosque. After that we zoent to Muhajir Camp by my bike. There, Qaiser szuitchecl funaicl's mobile phone off. After that I dropped eaiser near his house anil there he gaae me lunaid,s stuitched off mobile phone and asked me to go mA home ancl Mutnuundd Anf Page 8 of 12

ry until I ask Aou, do not turn the mobile phone on. 10 days after lunaid's nnrcler I took lunaiel,s mobile phone to a policeman namely Wasim Nailir, who is my frienil ancl is deputed inNazimabad and asked him to purchase the mobile from me but he refusecl ancl said he did not haae this much amount and then he agreed anil haoing taken the mobile phone from me, he gaae me Rs.3000/-. After tlut lrc xoitched on the cell phone after three to four dqls and ruhen the poliu callecl Wnsim and as soon ns Qniser got to knoro nbout this, he cante to me nnd nsked for the mobile. In tlrc mennuhile, the police nrritted nnd nrrested both of us. (bold added)

CONFESSIONAL STATEMENT OF ACCUSED

MUHAMMAD OAISER RECORDED UNDER

SECTION 164 CR.P .c.

"Accased Sohail is my frtend and L0-L2 days before the murder of lunaid I asked Sohail let,s kitlnap lunaid and then we utould seek ransom from his father and some of uhich he coulil keep tohite I woulcl also keep some amount. And after that on the nrght of 11.03.2019 I called Sohail near my house. After that I umt to get lunaicl from his house, lunaid zoas my brother-in-law. I told Junnid tlnt I hmte to purclnse n mobile plnne nnd asked hiru to come nlong uith me. After that ute took fttnaiil to Raja Tanaeer Colony by Sohail's motorcycle ancl haaing taken him to a plot, tied his hands and feet. Then I recoriled a aideo taith lunaid's mobile phone in uthich lunaid at our behest saicl "Dad gioe these people Rs.500,000/- otherwise they u;ill kill me". And nfter that I stopped tlrc recording and then both of us i.e. I anil Sohail jointly killed funaid by strangulating his neck zuith the rope. Aft* that I took of lunaid's clothes and then burned his clothes along with the rope in the fire. Then I toent to Muhajir Cnmp along ruith Sohail by his motorcycle tplrcre I suitched of his mobile phone and nfter that I and Soluil cnme back to my lrcuse. I gaoe funaicl's mobile phone to Sohail who is co-acaseil utith me and then Sohail went away. After that on 06.04.2019 I and Sohnil were arrested by the police. I had kidnapped lunaid for ransom nlong toith Sohnil and lnter killed him" .(bold added)

72.It is settled law that a retracted judicial confession can be legally admissible and used against its maker in certain circumstances. In the case of Muhammad Amin V The State (PLD 2006 SC 21.9) it was held atp.Z24 Para 9 as under;

"9. Therc is no cauil to the proposition that conoiction coulcl haae been awarded on the basis of rctractecl confession which proposition utas examineil in case of Mst, loygun Bibi a. The State PLD L960 (SC (pak) 3L3 as under:- Mthnn ,n.t Atif page 9 of 12

fi6 "We nre unable to support the proposition of lruu laid down by tlu lenrned ludges in this regnrd. The retraction of a confession is a circumstance ruhiclt lms no bearing utlntsoeper upon the question ruhethtr in the first instana it uas ooluntaily mnde, and on the further question uhether it is true. The fact thttt the ntaker of the confession lnter does not adhere to it cannot by itself hnae nny ffict upon tlu f.ndings renclud as to ruhether tlu confession uas ooluntnry, and if so, ruhether it tuas true, for to tttithdrmp from n self-accusing statement in direct face of tlu consequences of tht acansation, is explicable fully by the proximity of those consequences and need haae no connection whatsoeaer ruith eitlur its ooluntary nahffe, or tlu trutlt of tlte facts stated. The learned ludges ruere perfectly ight in first deciding tluse two questions, and tlrc nn uers being in the ffirmatizte, in declaring that the confession by itself wns suffcient, talcen ruith tlu other fncts and circumstances to support Abdul Mnjid's conaiction. The rctraction of the confession zaas wholly immaterial once it zuas found that it zaas aoluntsry as well as true."

10.Similarly in the case of the State a. Minhun nlias Gul Hnssan PLD 1964 SC 813 this Court has obserued ns under- "As for thz confessions the High Court, it tppears, ruas duly conscious of the fnct that retracted confession uhetlur judicial or extra judicial, could legnlly be taken into considerntion agninst the ruaker of those confessions ldmself, nnd if tlrc confessions were found to be true and ooluntary, tlun tJure Tuas no need at all to look for further corroboration. lt is well- settleil that as against the maker himself his confession, juilicial or extra judicial, whether retractecl or not retractecl, can in law ualidly form the sole basis of his conoiction, if the Court is satisfied and belieztes that it was tnte and uoluntary anil utas not obtained by torture or coercion or inilucement." @old added)

13.Thus, the court laid down a fwo pronged test as under (a) whether the retracted judicial conJession appears to have been made voluntarily, without any inducement, duress or coercion and (b) was made with the

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object to state the truth.

14.We find that there is no evidence that the retracted judicial confessions were not made voluntarily. There is no evidence of coercion or torture. It is true that they were made 14 days after their arrest but there is no hard and fast rule as to when a judiciat confession needs to be made and in this respect reliance is placed on Khan Muhammed (Supra).The judicial confessions as seen from their content also have the object of Page 10 of 12

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telling the truth and fit in with the prosecution case as being a case of kidnap for ransom and also corroborate PW 4 Wasseem Nadir's evidence as to how he came into possession of the mobile phone of the deceased.

Even the complainant states in his evidence that, "After about 1.5 days my son in law (accused Qaiser) told me to aftnnge some money if some one demand or call for return of my son in lietr of the money.Then I contacted my brother Fida Hussnin at my aillage Mnnsehra uho sent me ftoo lncs in my nccount on 02.04.2019.1 produce NBP statement of my nccount in this regnrd containing 2 lemtes AT Ex S/C.And my nepheru Gul nnruaz ruho is residing in Dubai also sent rne money"

15.This we find clearly corroborates the confessions of the accused who worked together and lived close to each other that they planned to abduct ]unaid and demand a ransom from the complainant for the safe return of his son Junaid but they killed Junaid instead of returning hirn because he could identify them both as he knew accused Qaiser We also find that all material saleguards regarding the recording of the judicial confessions were complied with by the magistrate.

76.Thus we place reliance on both the judicial confessions as against their respective makers.

(vii)Accused Sohail's motorbike which was used to abduct |unaid was found at his house on his pointation.

(viii)That there are no material contradictions in the evidence of the PW's and exhibits and it is well settled by now that minor contradictions which do not effect the materiality of the evidence can be ignored. In this respect reliance is placed on the case of Zakir Khan V State (1995 SCMR 1793).

17.Thus, for the reasons mentioned above the prosecution has proaeil an unbroken chain o/ euiilence, where one end of the same touches the dead body and the other the neck of the accased and rue conrtict the nppellants for tlu offences mentioned earlier.

18.With regard to the ATA offences there is no evidence that the abduction and murder of the deceased was made with the design, intent or purpose to create terror but rather to extort money by way of ransom and as such the provisions of the ATA are not applicable in this case. In. t Muhtutu'nd Arif Page 1l of 12

this respect reliance is placed on the case of Ghulam Hussain (2020 PLD SC 5L) and as such the appellants are acquitted of all the ATA offences for which they were convicted.

19.Although the evidence suggests that the motive behind the abduction was to receive a ransom for the return of the abducted Junaid we find that although money may have been collected in case that situation arose no actual demand for ransom has been proven by the prosecution through either ocular evidence or other forms of evidence for example audio recording and as such we acquit the appellants for the offence under Section 365 A PPC.

20.With regard to sentencing for the offences for which the appellants were convicted all such sentences shall remain in place however since this a case based on circumstantial evidence and the need to show extra caution we hereby reduce the death penalty in respect of each of the appellants to Life Imprisonment for the offence under 5.302 (b)/34 PPC and impose a sentence of 7 years RI for the offence under section 365 PPC for which we have found the appellants guilty of.

21,. All the sentences shall all run concurrently, the appellants shall have the benefit of Section 382 (B) Cr.PC and any other remissions available under the Iaw now that they have been acquitted of the ATA offences.

22.The appeals stand disposed of in the above terms with the con-firmation reference being answered in the negative, Ylfl*1-, 7)

JUDGE

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