ABDULLAH S/O ROSHAN (Appellant) VS THE STATE (Respondent)

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IN THE HI GH Cc) () FS TNDI-T. I( RACHI Pruscuf;

Mnlnsticc Mohnnumrl l(arlm IQmn Agln Mr. lustice Anlnrl All Bohio

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Special Crirninal A.T.A. No.149 of 2022 Confirrnation Case No.06 of 2022.

Appellauts; 1. Abdullah S/o. Roshan 2. AIi @ AU Dino S/o. Lal Dino through Wazeer Hussain Khoso, Advocate.

The State; Through Mr. Saleem Akhtar Buriro, Additional Prosecutor General, Sindh. Conrplainant; Azfar Hussain S/o.Azhar Hussain through Mr. |aved Ahmed Qazi.

Criminal A. T.A. No.150 of 2a22

Appellant; AIi @ Ali Dino S/o. Lal Dino through Wazeer Hussain Khoso, Advocate-

The State; Tlrrough Mr. Saleem Akhtar Buriro, Additional Prosecutor General, Sindh.

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Complainant; Azf.ar Hussain S/ o. Azhar Hussain tluough Mr. ]aved Ahmed Qazi'

Special A.T.A. N of 2022

Appellant; Abdullah S/o. Roshan through Wazeer Hussain l(hoso, Advocate.

The State; Through Mr. Saleem Akhtar Buriro, Additior"ral Prosecutor General, Sindh.

Complainant; Aztar Flussain S/o. Azhar Hussain through Mr. Javed Aluned Qazi.

Special minal A.T.I.A. No. 58o f 2022 Appellants; 1. Abclul Ghaffar S/o, Abdul Nabi, 2. Zahid l{ussain S/o. Muzaffar through Mr. Iftikhar Ahmed Shah, Advocate.

The State; Through Mr. Saleem Akhtar Buriro, Additional Prosecutor General, Sindh.

Complainan! Azf.ar Hussain S/ o. Azhar Flussain tluough Mr. ]aved Ahmed Qazi' , t

\y Crirninal Rev. Application No.242 of ?022 Applicant; Azfnr I{ussairr S/ o. Azhar Hussain through Mr, faved Ahmed Qazi.

{ Responclerrts; 1. Zalrid Llussaln S/o. Muzaffar Gopang, through Mr, Iftikhar Ahmed Shah, Advocate, 2, All @ Ali Dino S/o. Lal Dino Magsi through Mr, Wazeer Hussain l(hoso, Advocate.

The State; Through Mr. Saleem Akhtar Buriro, Additional Prosecutor General, Sindh.

Cornplainant Azf.ar Hussain S/o. Azhar Hussain tluough Mr. Javed Ahmed Qazi.

Date of hearing: 07.09,2023.

Date of )udgment: 20.09.2023.

UDGMENT

MOHAMMAD KARIM KHAN AGHA, I:- The Appellants Abdullah S/o. Roslran, eEi."O Ali Dino S/o.LalDino, Abclul Ghaffar S/o. Abclul Nabi and I Zahid Hussain Sf o. Muzaf.far have filed these appeals against the judgment passed by the Anti-Terrorism Court No.XV, Karachi (Judicial Complex ATCs, Cenhal Prison) dated 22.A7.2022 in new Special Case No.121 of 202')' (Old Special Case No,05 of.2012 arising out of Crime No.37/2072 U/s.302,365-A, 201 & 34 PPC 1860 r/w section 6 &.7 of ATA, 7997, new Special Case No.121-A of 2021 (Old Special Case No.05-A of 2012 arising out of Crime No.40/20i2 U/s. 13(e) of Pakistan Arms Ordinance, 1965, new Special Case No.121-B of 202'1, (Old Special Case No.05-B of 2072 arising out of Crime No.41/20i2 U/s. 13(e) of Pakistan Arrns Ordinance, 1965, new Special Case No.121-C of 2027 (Old Special Case No,05-C of 2A12 arising out of Crirne No,42/2012 U/s. 13(e) of Pakistan Arnrs Ordinance, 1"965 anci ncw Special Case No,121-D af. 2021, (Olcl Special Case No.05-D of 2A12 arising out of Crirne No,43/2012 U/s. 13(e) of Pakistan Arms Ordinance, L955 registered at P,S, Walccd, District Larkana whereby the appellant were convictcd and sentenced as uncler:-

"Accused Abdul Glraffar S/o. Abdul Nabi Brohi ancl Abdullah S/o. Roshan Magsi are sentenced to be handed by neck till tleath, after confirmation by l-Ion'ble I-Iigh Court of Sindh, under section 365-A of tl're Pakistan Penal Code,786A, sentenced to be hangecl by neck till death, after conlirmation by Hon't:le High Court of sindh, under section 302(b) of the Pakistan Penal Code ,186A, sentenced to be hanged by neck till death, after confirmation by l{on'ble High court of sindh, under section 7(1)(a) of the , Mthaunal Arlf 2

Anti-Terrorism Act, 1997 and sentenced to be hanged by neck till death, after conlirmation by Hon'ble High Court of Sindh, under section 7(1)(e) of the Anti-Terrorism Act, 1997 along with fine of Rs.500,000/- each to be paid to the cornplainant under section 544-A Cr.P.C. In case of default in payment of finc the accusecl appellants shall suffer S.l. for 06 months more.

{ Accused Znhid l{ussnln 5/o. Muznffar Copang and Ali @ Ali Dino S/o. L..altino Magsi are scntencecl to suffer lmlrisonment for life under lection 365-A of the Paklstan Penal Code, 1860 besides forfeiture of their property, imprisonurent for life under scction 302(b) of the Pakistan Penal Cotle, 1860, imprisonment for life under section Z(l)(a) of the Anti- Terrorisnr Act,1997 and imprisonrnent for life under section 7(t)(e) of the Anti-Terrorism Act,1997 along witl'r fine of Rs.500,000/- each to be paid to the complainant under section 544-A Cr.P.C. In case of default in payment of fine the accused appellants shall suffer S.l. for 06 months more.

Accused Abdul Ghaffar S/o. Abdul Nabi Brohi, Abdullah S/o. Roshan Magsi, Zahid Hussain S/o. Muzaffar Copang and Ali @ Ali Dino S/o. Lal Dino Magsi are sentenced to suffer imprisonment for four years under section 13(e) of Arms Ordinance, sub-section (2), Clause (b)".

All the sentences were ordered to be run concurrently. Benefit of section 382-8 Cr.P.C. was also extended to the appellants.

Beir"rg aggrieved from the impugned juelgment clated 22.7.2022 the complainant has also filed Crirninal Revision Application No.242 of 2022 f.or enhancement of sentence of the appellants Abdul Ghaffar, Abdullah, Zahid Hussain and Ali @ Ali Dino S/o. Lal Dino Magsi from life imprisonment to the death sentence.

2.The facts of the cases are that complainant Azfar Hussain Jatoi got FIR No.37/2A12 registered at Police Station Waleed, District Larkana on 13.03.2012 at 0600 hours stating therein that he was a businessman and residing along with his family in Quarter No.14, $haikh Zayed, Colony, Larkana. FIis younger son namely Ammar aged about four anrl half year was studying in Adraction Public School in nursery ctass. Orr 09.03.2012 his son Ammar left the cluarter at about 03:30 pm for playing while he was in school dress viz. pant and shirt of red color, who did not come lrack aftcr passagc of sufficicnt time. I-lis brother-in-law (salay) namely Khalid Hussain and Tariq Hussain both sons of Saclarutldin Jatoi residents of Madeji, District Shikarpur canrc from their house to the complainant and disclosed that four accused namely Abdul Ghaffar S/o. Abdut Nabi Brohi, Abdullah S/o. Roshan Magsi, Zahid Hussain S/o. Muzaffar Hussain Gopang a and Ali S/o. Lal Dino Magsi being armed witl-r pistols boarded in golden color car bearing registration No.AGB-386 got son of the complainant Ammar sit therein and were taking him away, behincl the said car there was a red color, Muluotwtl AaJ 3

\y motorcycle with unknown registration number boarded by three persons following the said car and the persons sitting on the motorcycle could be identified on seeing again. They further disclosed to the comPlainant that they chased the car and shoutcd to stop the cnr but they went towards main road. Having listenee{ to the facts, the complolnant alongwith his brother-in-law came f out of ltis residence nnd lcft for the rcsirlence of the accused persons. In the nreanwhile, the conlplainant rcceived a call on his cell No.0300-34'19889 from cell No.0331-7546326 and tl,e caller disclosed his name to be Abdullah Magsi, who saitl to the complainant that they kldnapped Amrnar son of the complainant for tansom and said the cornplairrant to pay amount of Rs.5,000,A0A/ - otherwise the cornplainant would lift the dead body of his son and the complainant not to disclose arrything to police. The complainant started for arranging the amount' On the previous night the complainant again receive a call from same cell number and it was said to the complainant that a red color car was parked behind his quarter beneath which bag containing the school dress was lying and the complainant would go to see it. The complainant was further told that in case he did not pay the amount of ransom on that night, then he would lift the dead body of his son. The complainant besought the caller a lot but he did not agree. The cornplainant alongwith his brother-inlaw went to the street behind and I picked up the clothes of his son and tried to come into contact with the accused persons but could not succeed. On 73.03.2012, at about 0500 hours the complainant received a call on his rnobile phone and the caller disclosed his name as Abdul Ghalfar Brohi, who said that the complainant did not pay the amount of ransom as such they committed murder of Ammar and his dead body was buried in the house of Jumma Khan Lashari situated in Yar Muhammad Colony and the complainant might go to pick the dead body. Hearing so, the complainant immediately reached at Police Station Waleed, where he met SHO Waleed namely Riaz Ahmed Abbasi and disclosed the above said facts. The SHO without any delay left for place of incident alongwith SDPO, ASP Muhammad Nadeem Khokl'rar and CIA Incharge ICran Muhammad Jatoi and other staff and saw that the outer door of the house was opened. When they entered into the house they saw that house was vacant and there was a heap of earth like grave in tl're house. The cornplainant alongwith others dig out such grave and found the dead body of Ammar after digging about one and half feet. There was red swelling from right cheek to heac{ of deacl body of Ammat and there were rnarks a of injuries and abrasion on his lips. Red marks were on the cheek and behind the neck there were marks of injuries and black marks. Tl're complainant left for the

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Mulvtumi Aril 4

Police station while leaving Klralid and Tariq Hussain at place of incident where \y his FIR was registered.

During the course of invcstigation the accuscd were arrested and on their pointation unliccnscd arms nnd ommunitions wcre recovered vide memoranclum daterl 25.03.2012. Froln posscsslon of accused Ali @ Ali Dino an unlicensecl pistol of 30 bore nlongwlth four live bullets, from possession of

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accuserl Atrdul Chn(fnr llnrhl nn unllccnscd pistol of 30 borc along with five life

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Lrullcts of '30 borc, front posscssion of nccusccl Abdullah Magsi un unlicensed pistol tlf 30 borc alorrgwith thrce live bullcts of 30 lrore anc{ from possession of actusetl Zahitl l-Iussaln Gopang an unlicensed pistol of 30 bore along with six live bullets of 30 bore were recovered, ns a result thereof FIR bearing No.37 U/s. 302, 365-A, 201 & 34 PPC 1860 r/w section 6 &.7 of AT A,7997 and FIRs 40, 4-t , 42 & 43 of 2012 were registered against each of them under section 13(e) of Pakistan Arms Ordinance, 1965.

3.After completion of investigation the case was challaned and the charge rt as framed against the accused persons to which they plead not guilty and claimed trial.

4.The prosecution in order to prove its case examined 20 Prosecution Witnesses and exhibited various documeuts and other items. The statement of the appellants accused was recorded under Section 342 Cr.P.C whereby they denied the allegations against them and claimed false implication. None of the appellants gave evidence on oath but they called 5 DW's in support of their defence case.

5.After hearing the parties and appreciating the evidence on record, the learned trial Court convicted and sentenced the appellants as set out earlier and hence, the appellants have filed these appeals against their convictions and sentences. Whilst the complainant has filed a criminal revision application for the enhancement of three of the appellants'scntcnccs frr$ife inrprisor"rment to death.

6.Thc facts of thc casc as wcll as cvlclcncc produced before the trial court find an elaborate mcntion in thc impugncrljurlgurcnt r{atecl 22.07,2022 passed by the trial court and, thereforc, tlrc sarnc may not bc reproclucetl here so as to avoid duplication and unnccessary repctition,

7.Learned counsel for the appcllants have contended that the appellants are innocent and have been falsely implicated in this case by the complainant and Muhounod Arif 5

the police on account of enmity which is supported by the 4 day delay in lodging the FIR wllich enabled the police ancl the complainant to consult and cook up a false case against the appellants; that the case did not fall within the purview of the ATA as there was no intent, purpose or design to create terrori that PW 2 Tariq Hussain who was the solc eye witness to the abduction was a chance witness and his evirleuce could not ba snfcly rclied uponi that the appellants did .f notpoint out the c{end body of the deceased as per FIR of the complainant he went and uncovered the clead body as confirrned by PW 19 Khalid Hussain; that the appellants did not lead the police to the recovery of the car used in the abduction on their poirrtation and the pistols founcl in the car were all foisted; that there was no evidence that any ransom dernand had been made; that there was nothing to link tl're appellants to the murder of the deceased; that the CDR rvith the alleged interview of appellant Abdullah admitting the murder was inadmissible in evidence and could not be relied upon and as such for any or all of the above reasons the appellants should be acquitted by being extended the benefit of the doubt. In support of their contentions they placed reliance on the cases of Mst. Mehboob Bibi and others v. The State (201.7 SCMR 1835), Nasir Javaid and another v. The State (2016 SCMR 1-l,M), Azeem I(han and another v. Muiahid I(han and others (2016 SCMR274), Naseer Ahmed Butt and another v. The State (2020 YLR Note 82), Atif Khan and others v. The State (2019 YLR Note 78), Naveed Asghar and,2 others v. The State (PLD 2021 Supreme Court 600), Banaris I(han v. The State and 2 others (2015 YLR 2076), Muhammad Idrees v. The State (2011 P. Cr,L) 552), Mst. Rukhsana Begum and others v. Sajiad and others (2017 SCMR 596), Muhammad lbrahim v. Ahmed Ali and others (2010 SCMR 637), Badshah lamil v. Muhammad ]anbaz Khan and another (2021 YLR 1745), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142), Muhammad Shafqat v. The State (1970 SCNR 713), Mst Shamim and 2 others (2003 SCMR 1466), Tariq Pervez v. The State (L995 scMR 1345), Muhammad Asif v. The State 2017 SCMR 486), Hayatullah v. The State (2018 SCMR 2092), Lal I(han v. The Statc (2006 SCMR 1846) and Ishtiaq Ahmed Mirza and 2 otlrers v. Federation of Pakistan and others (PLD 2019 Supreme Court 675),

8.Learned APG on bchalf of the State did not sttpport the impugned judgment as from the recorcl there was nothing to connect the appellants to the offences so charged as the sole eye witness was unreliable; tl'rat it was difficult to a see how the police had arrested the accused before they even knew of the case and before the body had been found; tl'rat the complainant took the police to the t Milaumal Ail/ 6

body as per FIR and not on the pointation of the appellants and even otherwise the cornplainant had already been told where the body was and as such any v pointation by the appellants would be of no legal value; there was no evidence of any demand and nothing to link the appcllants to the murder.

9.On the other hanel learned counsel for the complainant fully supported the impugued iudgrnent. LIe contendcd that the delay in lodging the FIR was not urrusunl irr a kielnapping for ransorn case; that eyc witness PW ZTariq Hussain had fully irnplicated the appellants ln the abduction of the deceased; that the appellants leacl the police to the body of the deceased on their pointation; that the CDR interview of Abdullah fully implicated Abdullah who had admitted his guilt before the media and irnplicated the other appellants; that PW 14 Rano Khan who was an estate agent had proved that the house where the murder took place had been rented to the appellants and as such the prosecution had proved its case against the appellants beyond a reasonable doubt and their appeals be dismissed and the confirmation case answered in the affirmative in respect of the two appellants who were handed down the death sentence and that the three other appellants who only got sentences of life imprisonment due to the heinous nature of the crime should have their sentences enhanced to the death penalty. In support of his contentions he placed reliance on the cases of Muhammad Ahmad and another v. The State and others (1997 SCMR 89), Muhammad Azam v. The State (2003 P Cr.LJ 'I-.479), Mir Afzal v. The State (2008 P Cr.LJ 881.), Ghulam Murtaza Meerani v. The State (2A22 MLD 1382), Amanullah v. The State (2002 SCMR 755n, Riaz Ahmed and others v. The State and others (2019 P Cr.LJ 118) and Hayat Muhammad v. The State through Additional Advocate General, Khyber Pakhtunkhwa and another (2021 SCMR 1831).

10.We have l'reard the argurnents of the learned counsel for the appellants as well as by learned Additional Prosecutor General Sindh and learned counsel for the complainant, gone through the entire evidence which has been read out by the tearned counsel for the appellants, and the in'rpugned judgment with their able assistance and lrave consiclerec-l the relevant law including tl're case law cited at the bar.

11.After our reasscssment of the evidence we find that the prosecution has t NOT proved beyond a reasonable cloubt the charge against the appellants for which they were convicted based on the particular facts and circumstances of the case and the fact that each criminal case must be decided on its own uniQue, Muhnnuad Aif 7

evidence for the following reasonsi

(a)It is hue that the FIR was lodgcd aftcr a delay of 4 days and usually in such like cases where a chilcl goes missing this is very often not fatal to the prosecution case as lt ls undcrstood that the parents are frantically looking for the child and only alert the policc after some time or when they receive a ransoln demarrd, Thc particulnr facts and circumstances of this case howevcr Rre somc what diffcrcnt to thc usual type cases when the child goes rnissing arrd thc cornplalnant ls clcsperately searching him out and as v such docs trot ltntnocltntcly inform thc police ln that although a child went urissirrg in thc lnstant casc fronr day one thc complainant knew who the ctrlprits wcrc aud had cvcn rccclvccl a ransom demand within a few hours of tl're alleged abduction as such we find this unexplained delay of 4 days irr tlris case in lodging the FIR some what puzzling and puts us on notice as to the credibility and reliability of the prosecution case. In this respect reliance is placed on the case of Mst.Mehboob Bibi (Supra).

(b)That with regard to the abduction tl're main plank of the prosecution case rests on PW 2 Tariq Hussain who is the sole eye witness to the abduction. According to his evidence on 09.03.2012 at about 4 pm he was coming to the house of his sister with his brother Khalid Hussain when he saw the four appellants in a gold colored car No.AGB-386 forcibly taking the abductee on gun point. Three persons on a motor bike who he did not know were following the car. He then went to the house of his sister where the complainant who was his brother in Iaw also resided and informed him of the incident. Thereafter the complainant, he and Khalid went to go to the house of the culprits however en route the complainant received a call on his mobile phone from Abdullah Magsi who demanded Rs.50 lacs for the return of his son within 24 hours or else his son would t be killed. On 12.03.2012 the complainant received a call informing him that his son's clothes i.e shirt, tie, photo, socks were in a red car behind the complainant's house and he should take the same and pay the rarsom by the night time or else his son would be killed. They found the clothes in a white shopper. On 13.03.12 at about Sam the complainant received a call from Abdul Ghaffar who told him that since he had not paid the ransom his son had been kitled and his dead body was buried in the house of Juma Khan Laghari. The complaint then informed the SHO and went to the PS where other policemen along with the appellants arrived' They all went to the house of Juma Khal Laghari where there was a sand grave where the appellants pointed out the body which was dug up ancl thereafter the complainant went to lodge the FIR,

Admittedly this witness is related to the deceased but basecl on the merits of his own testinrony we doubt the same. Firstly, he is a chance witness who docs not even own fl home in Larkana and lives in Shikarpur.He produced no cvidencc that he or his brother worked in a show room at Larkana ancl ltad no reason to be in Larkana that day. In this resPect reliancc is placed on thc case of Mst Rttkhsana Begum (Supra). Admittedly he kncw all4 of the appellants but in passing by how was he so eagle eyed so as to rccognize all 4 of thern along witl'r the number plate of the car during a speedy abduction at gun point. To us this appears improbable. The question arises if he knew the culprits why ITe did not go + to the police straight away and if the culprits knew tlrat tl'rey had been recognized during tl're abduction why would they murder the child as tl'rey would be prime suspects in a capital case. In this respect reliance is placed on the case of Nasir Javaid (Supra). There is no proof that any Mrfidmnad Adf

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stePs were taken to collect the ransom demand. FIis evidence is further undermined by the fact that after the complainant is informed about the death of his son and he went with the complainant to the police station

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when he saw the appellants there why he did not demand there arrest as he knew they were the culprits. The appellants were apparently at the tlS under arrest within minutes of the complainant telling the police. How was this possible as prior to the complainant's call a f,ew minutes before they had no idea about the abduction? This is more so since PW I Fida Hussairr accorcling to his evidence arrested them near a bus stop on

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15.03.2012 which date is reflccted in the mashirnama of arrest (3 days I later) at sorne other place. This castes further doubt on his evidence.

The complainant in the FIR also stated that he recovered the dead body' This fact is corroborated by PW 19 Khaild Hussain who accompanied the cornplainant to tl,e dead body which location the appellant already knew about having being inforrned on the phone by the kidnappers. This castes even more doubt on the eye witness evidence as according to him the appellants under arrest lead them to the dead body.

According to the eye witness the clothes of the abductee were recovered from the red car however when tl"re abductees dead body was found he was found wearing the very same clothes as corroborated by the MLO PW 5 Dr.Uzam Ali who conducted the post mortem of the deceased which castes yet further doubt on his evidence.

He also gave his eye witness 5.161 Cr.PC statement 8 days after the abduction and 4 days after the recovery of the dead body. No explanation has been given for this delay which along with the delayed FIR gave the complainant the opportunity to concoct a false case against the appellants I in collusion with the police. In this respect reliance is placed on the case of Muhammed Asif (Supra)

Significantly, the other eye witness who was with him and saw the abduction despite being on the list of witnesses was given up by the prosecution without explanation so PW 2 Tariq Hussain's eye witness evidence could not be corroborated in respect of the abduction. Since the prosecution with out explanation gave up some of the best evidence through eye witness Khalid the adverse inference can be drawn that he would not have supported the prosecution case. In this respect reliance is placed on the.use of Lol I(han (Supra)

Thus, for the reasons mentioned above we disbelieve the evidence of this eye witness which we find to be full of doubts and unreliable especially when placed in juxta position with other evidence in the case and place no reliance on it,

(c)That PW 14 Ronan Khan was the estate agent who gave evidence that he rcntect the house whcre the dead body was found to three of the appellants. I{owever he gave his 5.161 Cr.PC statement 3 years after the incident without any cxplanation for such delay. He was not able to furnish proof tlrat he was in fact an estate agent and admitted that he could not read or write which would mean that he ran an estate agency without being able to prepare or read a rental agreement which is simply not believable. I-Ie was not put before an identification parade to identify any of the appellants who he claimed entered into a lease with him for the house and he could produce any rental ap'eement which he had made, Milaunod Arif

with the appellants. Thus, we disbelieve his evidence and find that he is a planted witness.

(d)That another piece of evidence was a CDR which came out of the blue after 3 years frorn the comPlainant whereby one of the appellants (Abdullah) admittec{ to the crime lrowever when the owner of the TV clrannel PW 10 Zalar Abro was coss examined he had this to say about ar the CDR;

"It is correct to strygest tltnt I lnd not giuen flny capy of the CD to -oi tlrc complninnnt mry of his relntiaes ulich uns prepared llu'ouglt ttty cfinrernnmn, lt is correct to suggest llmt I hnd not giuen tlrc cD ta tlrc [ntlrcr of decensed child, It is correct to iuggest tlmt tltis CD utas tot playecl 01ourTV Channel.It is correct to suggest thnt itt tlrc CD tlrcre is no date or time nrcntioned. lt is corrcct to suggest tlmt tlrcre can be addition or deletion in tlrc cD vol. snys there is logo mi in nry hand uhich is correct. It is correct to suggest that I do ttot cortsider this cD autlrcntic because this usas not recorded by my catneraman. It is correct to suggest thnt rulnteaer ue giae in tlrc neu'spaPer is lrcnrsny nnd is not seenby tts. Vol. says we inquire on telephone.lt is correct to suggest I cnnnot giae any authenticity of this tteu)s", (bold added)

Thus, rve place no reliance on the CDR which is inadmissible in evidence in any event and discard this piece of evidence. In this respect reliance is placed on the case of Ishtaiq Ahmed Mirza (Supra). In any event it is completely unbelievable that an accused would admit his guilt to a capital

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case before the media and significantly despite his apparent eagerness to admit his guilt he was never produced before a judicial magistrate for recording his confession.

(e)That there is no evidence that any ransom demand was made. No mobile phone or SIM was ever seized, no CDR was collected, no voice recordings were made and there is no evidence that the complainant made any efforts to gatl"rer up tl"re ransom amount. In this IesPect reliance is placed on the case of Azeem I(han (Supra)

(Q Indeed there seems some evidence to suggest that the conrplainant ran an advert on tlre local media/TV for 3 days stating that his son had been kidnapped anct asking witnesses to conte forward. Why would he do this if he already knew who the culprits were from clay one? This cloes not appeal to logic, cotnmon sense or yeason based on the complainants and hii eye witnesses evidence and would not atnount to natural human behavior and further undcrrnincs the prosecution case and his evidence.

(g)Adrnittedly as per meclical evidcnce the abtluctee was rnurdered by asphyxiation/ strangulatiou but there is no evidence to connect any of the appellants to the murder of the child or even his abduction now that we have disbelieved the evic{ence of eye witness PW 2 Tariq Hussain.

+ (h) Even on the positioning of the dead bocly the prosecution evidence is conhadictory. According to some of the witnesses the body was buried and llad to be dug up by spade whereas according to other witnesses the body was lying on the earth and the injuries could be seen., Muhanrnad Ail ln

(i)We do not find the conduct of the police to be particularly inspiring in this case and as such we cannot rule out the fact that the unlicensed weaPons were foisted on the nppcllants and that the appellants did not lead the police to the car allegeclly uscd in the abduction.

O The appellarrts nll clnimed fnlse irnplication in their defence and cross examined the witncsscs to this effect nnd also stuck to their defence in their 5.342 Cr,PC statcmcnts. Thcy also produced 5 DW's in support of the defence case wl'rich gavc solne of thc appellants alibi's which defense basec{ orr the weaknesies of the prosecution case cannot be brushed aside.

(k)In short for the reasons mentioned above we find that the prosecution case cloes not riug true and we find that we cannot safely rely on the evidence of the complainant and eye witness for the reasons mentioned above which we do not find be confidence inspiring.

12.It is a well settled principle of criminal law that the prosecution must prove its case against the accused beyond a reasonable doubt and 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 case.

13.Thus, for the reasons discussed above, by extending the benefit of the doubt to the appellants they are acquitted of the charge, the impugned judgment is set aside, their appeals are allowed, the conlirmation reference is answered in the negative. It follows that the criminal revision application is also dismissed. The appellants shall be released unless wanted in any other custody case.

74.The appeals and criminal revision application stand disposed of in the above terms with the confirmation reference being answered in the negative' J A4 6<l

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IUDGE

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