MUHAMMAD REHAN S/O KHALID (Appellant) VS THE STATE (Respondent)

IG U F SIND CHI

rr Prcscttl:

Mr, lustice Molmnunnd l(nrhtt l(lmu Aglm Mr. lusticc Arnjorl Ali Boltio sPL. CR. A.T.IAIL AppEAL N().26 OF 2022 Appellant s/o. Saleem 1,. Muhammad Saqib tlrrough Mr. Faizan Faizi, Advocate.

2.Muhammad Akhlaq @ Kashif S/o. Muhammad Ilyas through Mr. Moula Bux Bhutto, Advocate assisted by Mr.

Aftab Ahmed Shar, Advocate.

Respondent The State through Mr. Muhammad Iqbal Awan, Addl. Prosecutor Genera1 Sindh.

sPL. CR. A.T. IArL AppEAL NO.27 OF 20ZZ Appellant Muhammad Rehan s/o. Khalid through Syed Aamir Ali Sl'rah, Advocate.

Respondent The State througl'r Mr. Muhammad Iqbal Awan, Addl. Prosecutor General Sindh.

sPL. CR. A.T. JAIL APPEAL NO.131 OF 2022 Appellant Muhammad Babar s/o. Jan Muhammad tluough Mr. Moula Bux Bhutto, Advocate assisted bY Mr. Aftab Alutrecl Shar, Adl'ocate' Respondent The State tluough Mr. lvluhanrnrad Iqbal Awan, Addl. Prosecutor General Sindh.

Date of Hearing 0s.09.2023.

Date of Announcement 13.09.2023. t

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Moltdnnnad Knrh\t Khan Agl.tn, I;- Appcllants Mrrlrammael Sat1ib, Muharirrtmtl Rctrarr; Mriltnmnratl Akhlatl (rr) l(ashif ancl lvltrhammael Babirr wt're h.ici{ tiy thc Arrti-l'e rrorisrrr Ctrut't No.l, l(arachi irt Spccial

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Casa No.A-228 of 2015 undcr l:ll( Nrt.47? of 201'l u/s' 365-41302 f 34 l'l'L r/tv.,Sc.eti,ori 7, A'l'A, lt)97 rqii.+tcrr.:tl nI l'5 Zarnnn lttw'n, Karachi anll vltlu'iurllyr\cnt rtlntcr{ 27 :114.2t122 tlrcy wcru cottvictccl untler section 265' H(2) Cr.P.C. orrtl scrrlc'rtcecl [or tlre offcrrcc puni.shabla u/s.7('l)(a) of r\nti- Ti:rrorlstrr Act,1997 to ilntlergo Il.l, for lifc nntl to pay finc of [1s.1,00,(XX]/- (Rtrpebs Onc. Lac) each arrrl irr,clefault tlrey shall suffer S.l. for six (06) nrontlis rlorir. AP'Pet1.1111:i rvcrc .rlso corrvictcrl ancl sr,:trtencctl for tltt' offcnce punislrable u/s.302(b) I,l,C tp undergo I(,1, for life and to p.r1'' conlPctlsation of Rs.1,00,000,/- (Ruper's C)rre l-ac) each, u / s.i44-A Cr-PC tct the lcgal heirs of the r-ieceasccl Mubaral< Ali and in default thereof tlru' sltall suffer S'l' for six mouttrs lnorc' 'l'hc}' 'a1t'tu also cu''nvicted for tht: offence pirnishable u/s.7(e) of Anti-Terrorisnr hct,1"997 atrcl sentenced to un,Jergo Imprison,nent for life. 'l"hey w,crc also convictetl and sentencc,.l for the offence punishable u/s.365-A PI'}C to under:go R.t- for life antl i

orderetl for fbrfeiture oI properties. All thc sentcnces !\,erLi ordered to run concurrently. I-lowevcr, the appcllarrts rvLrrc extenr.led the benefit ot Section 382-8 Cr.P.C.

2.The brief facts of the prosecution case as narrater.{ in the FIR are that on1'7'72'2014 at about 9:00 p'nr' his 1'oungcl brother lvlut:arak Ali son ol Muhamrnad f(afiq, aged about lL)/20 years, left hoursu on tnotorct'clt' bearing registratlon No.KGFI-3399. In the latc rright, wliut't his brothcr ttitl not come, thoy startcd searching him ancl during the search, complainant came to krrow that fricntls of lri's brothcr nattrell'saqib sotr of Muhatnntatl Saleem and Rchan lrar,l tlkcrr hirrr to'l'e.r Stall anrl gnvc ,.irugs in tlrr' tc.t and after tlrat tlrey callcr,l tlre ir corrrl:irriorrs lronr Orangi 'l'ttwn and slriftt'tl Iris brotlrer to Oranl;i 'lowrr tlrroulglr tirxi. ()n lll.l2.20l,l ir"r the mcrrtring motlrer of tlru cornplainnnt rccuivutl clll frorrr rnubilc prhone No.03l3- 1271305 of abrluctcss on lrcr nrobilc prhonc arrcl thc cilllsr to[l htr that abductec was in thcir custotly antl thcy clcrnant{ecl Rs.15-lac as rans()nl and also issued threats th.rt if nlonev rvas n(:t paicl they r.voult'l comnrit his murder. Thereafter. thcy sulrn'ritted application in CITLC. The elder brother: of the cqmplainant namely [(ahccl, whilc searching abclucteg l

went to Edhi Colcl Storage Sohrab Goth, where he found dead body of cleceased, which wns brought from the jurisdiction of IIS Manghopir, as such, tlrelr urs111 therc nnd such FIR being Crime No.273 of 2074, u/s. ? 302/34 PPC rvas rcglstered at PS Manghopir, Karachi. After funeral, the cotlrplainant came to know that his brother was taken away by Saqib son of Muhammacl Saleem, Kashif, Yasir and Rehan in Taxi from Sherabad I-Iotel and kept hinr in Orangi Town No.10, Faqeer Colony in the house of absconding accused Shafiq Aba and due to nonPayment of ransom, comn'ritted his murder in said house and thrown his dead body, hence present FIR was registered.

3.After usual investigation the case was challaned and the accused were sent-up to face trial where they plead not guilty to the charge.

4.The prosecution in order to prove its case examined 1.4 witnesses and exhibited various documents and other items. The statements of accused persons were recorded under Section 342 Cr.P.C in which they denied the allegations levelled against them and claimed false implication by the police in collusion with the complainant Parfy. However, the appellants did not give evidence on oath and only appellant Rehan produced two DW's in support of his defence case.

5.After hearing the parties and appreciating the evidence on record, the trial court convicted the appellants and sentenced them as set out earlier in this judgment; 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 27,04.2022 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary rePetition.

7.Learned counsel for the appellants have contended that they are all innocent of any wrong doing and have been falsely implicated by tl're complainant in collusion with the police and hence the 6 day delay in lodging the FIR whilst the police and the complainant were consulting with each other; that there are material contradictions in the evidence of the witnesses; that there was no eye witness to the abduction; that there,

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was no eviclence tl-rat any ransom demand was ever made let alone paid; that there was no eviclence that the appellants had murdered the deceased anci that tl-re only eviclence against them were their retracted iudicial * coufessions which could not be safely relied uPon as they were not made rroluntarily with the object of telling the trutl'r and thus for all or any of the above reasons the appellants should be acquitted of the charge by being exterrcied the berrefit of tl're doubt. In support of their contentions, they placed reliance on the cases of I(halid )aved v The State (2003 SCMR 1419), Ghulanr Hussain v The State (PLD 2020 SC 61), Muhammad Pervez v The State (2007 SCMR 67A),fuved Iqbal v The State (2023 SCMR 139) Syed Mehroz Mehdi Zaidi (2023 YLR 665),Muhammad Ramzan alias Phanna v The State (2004 P Cr. Ll 53n, I(aramat Hussain v The State(1972 SCMR 15), Nazo alias Ali Nawaz v The State (L977 SCMR 20), Mah Gul v The State (2009 PSC (Crl.) 12), Shamoon alias Shamma v The State (1995 SCMR 197n, The State v Ahmed Omar Shekih and others (2021 SCMR 873), Wazir Muhammad v The State (1992 SCMR '1134), Muhammad I(han v The State (1999 SCMR 1220), Akhtar AIi v The State (2008 SCMR 6) and The State v Ahmad Omer Shaikh and others (2020 scMR 2096).

8.On the other hand Mr. Muhammad lqbal Awan Additional Prosecutor General Sindl-r has contended that the delay in lodging the FIR has been fully explained and is not fatal to the prosecution case in abduction cases; that the confession of each of the accused can be safely relied upon; that the ransom demand has been proved through CDR and the murder of the abductee by tl're appellants has been Proven through the confession of the appellants as corroborated by the medical evidence. In support of his contentions, he placed reliance on the cases of Akhtar v The State (202A SCMR 2020), Muhatnmad Latif v The State (PLD 2008 SC 503), Sheraz Tufail v The State (2007 SCMR 518), Tariq Hussain Shah v The State (2003 SCMR 938), Ghularrr Nabi v The State (2007 SCMR 808), |oygun Bibi v The Srate (PLD 1960 SC (Pak) 313), Manjeet singh v The { State (PLD 2006 SC 30), Muhammad Amin v The State (PLD 2006 SC 219) and Khan Muhanrmad v The State (1999 SCMR 1818).

g. We have heard the arguments of the learned counsel for the appellants and learned Additional Prosecutor General Sinclh and have2 itAK/rs

also gone througft the cntirc cviclcnce wtrich has been read out by the learnecl counsel for thc appcllnnts, ancl the impugned judgment with their ablc assistancc arrd hnvc copsitlcrctl thc rclcvant law including the case a larv citerl at the trnr.

10.Aftcr our reasscssnlcrrt of thc cvitlencc we find that the prosecution has NOT provctl beyoucl n rcasonable doubt the charge against the appcllarrts for u,hich they were convicted based on the particular facts aud circunrstances of the case and the fact that each criminal case must be tlecidetl on its own unique cvidence for the following reasons;

(a)It is true that the FIR was lodged after a deray of 6 days and usually in abduction cases this is not fatal to the prosecution tase us in such like cases the farnilies are initially conclrned with tracing out the person who has not come home/is missing who is usua[y I child. However based on the particular facts and circumstances of this case where the abductee was J.6 years old and. the ransom demand was made a day after he went missing we find it damaging to the prosecution case that the FIR was nol rodged alter the ransom demand rather than waiting b more days without explanation. Even more damaging to the prosecution case however is the fact that the dead body was recovered 19.12.1,4 but the complainant party still did not lodge the FIR for a further 4 days yhich delay has not been explained. Thus, on account of this cleliy based on the particular facts and circumstances of the case we find the delay in lodging the FiR almost fatal to the prosecution case as the complainant had plenty of time to consurt and potentially falsely implicate anybody of his choice.

(b)Further weight is given to the delay in the FIR being fatal to the prosecution case by the fact that it norninated all4 appellants based on an unknown source and states that the appellants even mac{e the abductees intoxicated before abducting hirtr.

(c)The appellants werc all frierrcls of the abcluctee ancl had no motivc to abduct or kill him,

(d)The main eviclerrcc against each of the appellants are their rcspective judicial confcssion bcforc a rnagish.ate which are each set out as unclcr for ease of rcfcrancc;

IUDICIAL CONI'I]SSION OF MUI.IAMMA N

UND sl]c]'roN 164 CIT.I'C.

"My iuner couscit'ttcc is sn.yirrg lltil rue lmt,e conmtittcd n blunder for ntont:y. I got ttty friud Mubnrnk kidnrtpped after tlmt I nsked for forgiuetrcss from God. My cotrscious lmd woken up tlvrt I told Mubnrnk's relnliaes thnl I got Mubnrnk kidnnpped for tiloney".

CO ION OF M

aka I(as hif UND ER SECTTON 154 CR.PC.

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"Si4 rlc did ttris in our grearl for ntoiley, Tlrcse hpo ltrotlrcrs Snqilr nrrrl Rry'rnrr brougltt Miltnrnk so I in conufunncc uith tlrcm nll rrri.tcd irrloric'nfcd c:npsttle in lris len lhen I put ltittt in tlrc tnxi nnd look lrirrr to my horrsc. Otr the next rlny, rue cnllerl lis fnnily for cxtorliort nnd ilctunnded lls,':,500,000/tulticlr his fanily refused to ltny tlrcn Srrqib cnllcd nnd iufonnad llmt tlrcy hmte n1tpronclrcd tlrc , Gort't'rtor''s Hottsr nnd il yon relmse lint, uttt tuill ge t in n fx so for lht'srltrrr' ,?/tso,, 1 ,rtr,1 $nbnt'slrntrytilnlci Mtfunrnk lo danlh wilh n rttltr' rrttrl lhrau, llrc body nt Klmirnbtrd llorul".

IUDICIAL NTESSION OT MUI.IAM MAD SAOIB

ECTION 164

"On'1.7 Dacanfuer Mtfunrnk cnllad nrc nnd lrc nsked wlrcre I runs. I snirl I nrrr silting nt tlrc lrctcl. Tltcrr Baltnr cnlled so Relnn nnd I taok Mtfunrnlc to Slrcrnbnd Holcl, where wc drnnk ten. We lmd nrr-rcd sleeytirtg pills irr Mrfunrnk's ten nnd Mubnrnk fell asleep nnd then I nnd Rehnn left nnd Knshif nnd Bnbnr took lim to Ornngi Tourtt".

IUDICIAL CONFESSION OF MUHAMMAD BABAR

UNDER SECTION 164 CI.PC.

"Snqib nnd Rehnn brought Mttbnrnk to me nt 36-8 Kornngi nnd Snqib md Kaslif lmd serued ltim ten nixed uith sleeping pills nnd nmde Mtbarak drink such tea nnd Mtfuarok got unconscious.I nnd Knshif took Mubnrak to Ornngi Torun and kept hint :arith us one rtight ud on tlu next dny cnlled Mubnrnk's mother and demanded Rs.'1500,000/tuho refused to pny it. Saqib called nnd snid kill lim because if he rentnined nlive ue nll uill get in n fix so I and Knslif strnng"ilnted Mubnrnk to denth ruith a rope due to wl:nch Mtfunrak died and we tlrezu the body nt Khnirabnd Road" ,

It is well settled by now that we can rely on a rehacted judicial confession provided that it was made (a) voluntarily (b) with the object of telling the truth and (c) tl'rere are only minor procedural irregularities in the manner in which the confession was recorded.

In this case all the appellants retracted tl'reir judicial confessions claiming that they were not made voluntarily and that they were pressurized into making the confession by the police.

We find that we have doubts that the confessions were made voluntarily for the following reasons;

(a)Appellants Rehan and Saqib were arrested on 24.12.201'4 yet they made their confession on 14.01.2015 which was after a delay of 2L days whicll delay has not been explained. Although there is no hard and fast rule as to the time frame of confessing generally the sooner it is made after the arrest of the accused the more reliable it is. In this case another peculiarity occurred in that the other two appellants Babar and Kashif were arrested on 09.01.2015 before any of the two other accused had confessed. Yet surprisingly 6 days after their arrest all 4 of the appellants decide to confess before the same magistrate on the same day. Although there appears to t$lyrPs

I be no bar on how many appellants can confess in one day at the same time before the same magistrate we find that it does not appeal to natural human conduct that all4 of the appellants would confess all on the same day despite different arrest dates at the same time before the same magistrate. Why did appellants Rehan and Saqib not confess before the magistrate in their initial 21 days of their arrest if it was houbling their conscience and why did they need to wait for the other two appellants to be arrested before they all confessed together in unison. Likewise hardly ever do all accused all confess at the same time let alone all confess at all; maybe one or two accused might confess on different days but not all accused together on the same day before the same magistrate despite being arrested at dilferent times.

(b)In further support of the above doubt about the judicial confessions a brief review of the 4 confessions reveal that they are very short, flimsy and devoid of any detail which was not otherwise known in the FIR. Dates, times, and places are nearly all missing in each confession. In fact Rehan's confession is completely devoid of any detail. He does not speak of any ransom or of the abductee even being murdered.

Thus, we find that we cannot safely rely on the judicial confessiors and exclude the same from consideration.

(e)Even if we had believed all of the judicial confessions we would have also by way of caution wanted to find some corroborative evidence.

The only corroborative piece of evidence in respect of the abduction appears to come from PW 8 Muhammed Jameel. According to his evidence he received a call from appellant Kashif who took him to a tea stall where three boys came and he found one to be in drowsy condition. He dropped appellant IQshif and the drowsy boy at Kashif's house.

There is no evidence that he knew Kashif, the deceased or any other of the appellants from before. He could not identify Kashif or any other of the appellants in court. FIe could not remember the name of the tea stall or where Kashif's house was where he dropped him. He does not mention the other appellants getting out of his car. He gave no hulia of any of the appellants or the deceased in his 5.161 statement which was recorded nearly three weeks after the incident, He did not have a driving license despite allegedly being a taxi driver. FIe is not named in the FIR. How would he have even known of the murder of the so called drowsy person as the pichrre of the deceased was only sent to police stations and was not placed in newspaper or the media. No identification parade was carried out which might have enabled him to identify the appellants. We find this wiiness to be a chance witness, if not a planted witness, and we do not find his evidence to be trust worthy or confidence inspiring and disbelieve the same. Thus, he is not an eye witness to the abduction as even if he was believed the deceased might have, ,l la I tatnn

( gone voluntarily witl'r Kashif since he did not witness any shuggle from the drowsy man especially as Kashif and the deceased were friends. Since we have disbelieved his evidence he cannot be regarded as a witness for the purposes of last seen evidence. Even, if he lvas believed his evidentiary value as a last seen evidence witness is little, if any, as the body of the deceased was found 2 days after he allegedly dropped the drowsy Person alive at Kashif's alleged home.

($ Significantly, another taxi driver Flabib Ahmed who gave his 5.164 Cr.PC statement on the same lines as PW Muhammed Jameel r,vas given up by the prosecution and as such under Article 729 (g) Qanoon-e-Shahdat Ordinance an adverse inference can be drawn that he would not have supported the prosecution case.

(g)The medical evidence does not fully support the prosecution case as according to tl're medical evidence no intoxicating substance was found in the body of the deceased. According to the medical evidence the deceased was murdered by strangulation caused by an object like a rope however no rope, tranquilizer bottle, blood or article of clothing or any possession belonging to the deceased was found at the wardat i.e Appellant Kashif's house.

(l-,) With regard to the ransom demand there is insufficient evidence in this respect. The appellants are not connected through the CDR which was collected to any ransom demand. Even the CDR is not reliable having been produced by the complainant as opposed to a reliable body such as the CPLC. There are no voice recording concerning any ransom demand despite the complainant's side allegedly going initially to the CPLC which usually provides such equipment in kidnapping for ransom cases. In fact there is hardly any evidence regarding the role of the CPLC which usually play a key role in such like cases working with the AVCC which again raises doubt on the complainant's version of events. No witness from the CPLC was even examined to support the complainant's case. Thus, we find that the ransom demand has not been proven.

(i)With regard to the murder of the abductee there is no eye witness to the murder and no evidence at all to link the appellants to the murder except their judicial corrfessions which we have found we cannot safely rely uPon lor tl're reasons mentioned earlier in this judgment and even other wise are not corroborated by independent evidence of an unirnpeachable character.

11.It is a well settlcd principle of criminal law that the prosecution must prove its case against the accused beyond a reasonable doubt ancl that the benefit of doubt must go to the accused by way of right as opposed to concession and in this case we have found many doubts in the prosecution t, case.

NArns

12.Thus, for the reasons discussed above by extending the benefit of tlre doubt to the appellants they are acquitted of the charge, the impugned judgment is set aside, their appeals are allowed and the appellants shall be t released unless wanted in any other custody case.

13.The appeals stand disposed of in the above terms.

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IUDGE

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