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Petitioner: Akbar alias Mohsin VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Muhammad Tariq Nadeem Title: Akbar alias Mohsin vs The State and another Case No.: Criminal Appeal No. 47718 of 2017 Date of Judgment:2022-05-26 Reported As: 2023 PCRLJ 917 Result: Appeal allowed
JUDGMENT
JUDGMENT MUHAMMAD TARIQ NADEEM, J. Akbar alias Mohsin, appellant, faced trial in case FIR No. 544 dated 28-07-2016, under sections 365, 302, 201, P.P.C. registered at Police Station Muradpur, Sialkot, and at the conclusion of the trial, the learned trial court vide judgment dated 29-05-2017, convicted and sentenced the appellant for the charge of kidnapping and causing the murder of Muzaffar Iqbal alias Ali as under:- Under section 302(b), P.P.C. Life imprisonment along with compensation of Rs. 2,00,000/- to the legal heirs of Muzaffar lqbal alias Ali, deceased, under section 544-A, Cr.P.C. recoverable as arrears of land revenue or in default thereof to further undergo 06 months' S.I Under section 364, P.P.C. Life imprisonment along with compensation of Rs. 1,00,000/-; in default thereof to further undergo 06 months' S.I. Under section 201, P.P.C. 07 years along with a fine of Rs.50,000/-; in default thereof to further undergo 04 months' S.I. Benefit of section 382-B, Cr.P.C. was extended to the appellant. 2. Feeling aggrieved from the judgment of the learned trial court, the appellant has assailed his convictions and sentences through this appeal. 3. The prosecution story, as outlined in the written complaint (Ex.PH) of Mst. Nagma Mushtaq (PW.8) is that on 03-07-2016, she went to Dubai to see her brother namely Mansoor, leaving behind her son Muzaffar Iqbal alias Ali, aged 16 years (since deceased) with his aunt Shabnum and maternal grandmother Mst. Kaneez Fatima, in her residence at Hunterpura, Sialkot. That on 25-07-2016, her
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son Muzaffar Iqbal alias Ali went to nearby snooker club but did not return. He was having with some money and mobile phone with SIM No.0306-8203366 with him. She (complainant) after hearing about the incident, returned to Pakistan on 27-07-2016 and reported the matter to the police about the occurrence an 28-07-2016 through written application (Ex.PH) while suspecting that some unknown accused had kidnapped her son. On the basis of above said application (Ex.PH), formal FIR (Ex.PG) was registered under section 365, P.P.C. 4. It is pertinent to mention here that after the registration of FIR (Ex.PG), Mst. Nagma Mushtaq (PW.8) also got recorded her supplementary statement on 30-07-2016 levelling the allegation that her ex-husband (Muhammad Iqbal) met her and told that on the day of occurrence i.e. 25-07-2016 at about 08:20 p.m., he met his son/victim Muzafar Iqbal alias Ali along with the appellant Akbar alias Mohsin at Gohadpur Chowk, Sialkot. The appellant told that he was taking Muzaffar Iqbal alias Ali to his house at Kala Ghumannaan. She (complainant) suspected that Akbar alias Mohsin, appellant had committed murder of her son and his dead body had been concealed somewhere. On the basis of supplementary statement of the complainant, the appellant was arrested. During investigation, the accused confessed his guilt and his confessional statement was recorded by Syed Mehmood Afzal Shah, learned Judicial Magistrate 1st Class, Sialkot (PW.3). After completion of investigation, report under section 173, Cr.P.C. was prepared and submitted before the learned trial court. On indictment, the appellant pleaded not guilty and claimed trial. 5. The prosecution, in order to prove its case, produced thirteen witnesses before the learned trial court. Mst. Nagma Mushtaq (PW.8) was complainant of the case and witness of extra judicial confession of appellant. Tanvir Hussain (PW.6) and Muhammad Iqbal (PW.7) were witnesses of last seen evidence. Muhammad Iqbal (PW.7) also deposed about the motive part of the occurrence. Mst. Shabnum (PW.5) and Tayyab Akram (PW.12) were the witnesses of circumstantial evidence. Syed Mehmood Afzal Shah, learned Judicial Magistrate 1st Class, Sialkot appeared as (PW.3), who recorded the confessional statement of the appellant. Maqsood Ahmad, HC (PW.1) was the witness of broken spectacles (P.1) taken into possession at the instance of the appellant vide recovery memo (Ex.PA). He was also the witness of a wrist watch of CASIO company (P.2) allegedly belonging to deceased, at the instance of the appellant vide recovery memo (Ex.PB). Whereas, Nafees ur Rasool, HC (PW.2) was the witness of motorcycle (P.5) and the mobile phone (P.6) taken into possession by the police from the possession of the appellant vide seizure memo (Ex.PE). Ghulam Murtaza, SI (PW.9) and Abid Farooq, SI (PW.10) being Investigating Officers stated about the various steps taken by them during investigation of the case. Rest of the witnesses are formal in nature. The prosecution gave up Tahir Mehmood 1092/C, Muhammad Rizwan 2132/C, Muhammad Arshad 38/HC and Kaneez Fatima, PWs being unnecessary and after tendering in evidence documents i.e. Ex.PA to Ex.PO, closed its evidence. 6. After completion of prosecution evidence, learned trial court recorded the statement of the appellant as required under section 342, Cr.P.C. wherein he controverted the allegations levelled by the prosecution against him and professed his innocence. The appellant did not opt to make statement under section 340(2), Cr.P.C. to disprove the allegations levelled against him, however, he produced certain documents i.e. Ex.DA to Ex.DM in his defence evidence. 7. The learned trial court vide judgment dated 29-05-2017 found the appellant guilty, convicted and sentenced him as mentioned above, hence, this appeal. 8. None has turned up to pursue the appeal on behalf of the complainant. It has been apprised by the learned Law Officer that as per report submitted by the police complainant is living in Dubai now-a-days and her sister namely Shabnum (PW.5) informed her qua the fixation of instant criminal appeal but she has not turned up despite repeated notices. This appeal pertains to the year 2017 therefore, this Court has left with no other option but to decide the instant case after
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hearing learned counsel for the appellant as well as learned Deputy Prosecutor General and perusal of material available on the record. 9. In the present case, the facts and circumstances of the case suggest that the alleged occurrence had not been witnessed by anyone, however, in order to prove its case, the prosecution has heavily relied upon the circumstantial evidence, which is normally considered as a weak type of evidence. It is well settled by now that in such like cases, prosecution is required to link each circumstance to the other in a manner that it must form a complete, continuous and unbroken chain of circumstances, firmly connecting the accused with the alleged offence and if any link is missing then obviously benefit is to be given to the accused. Reliance is placed upon the esteemed judgments of the Hon'ble of Supreme Court of Pakistan reported as "Muhammad Hussain v. The State" (2011 SCMR 1127), "Nasir Javed and another v. The State" (2016 SCMR 1144) and "Naveed Asghar v. The State" (PLD 2021 SC 600). 10. In an attempt to prove the accusation against the appellant and to form a complete chain of circumstances, the prosecution has relied upon the evidence of last seen, judicial confession, extra judicial confession, recoveries and lastly the motive. 11. The incident in the present case, according to the prosecution, was alleged to have taken place on 25-07-2016 within the area of Hunterpura, about 05 kilometers away from Police Station Muradpur, Sialkot and the same was reported by Mst. Nagma Mushtaq (PW.8) through written application (Ex.PH) on the basis of which formal FIR (Ex.PG) was chalked out by Tariq Mehmood, ASI (PW.2) on 28-07-2016 with the delay of 03 days. I have noted that Shabnum (PW.5) as well as Mst. Kaneez Fatima (jettisoned PW), who being maternal aunt and maternal grandmother of Muzaffar Iqbal alias Ali (deceased) respectively and inmate of the same house were fully aware about his missing but they had not bothered to inform the police. No plausible explanation for the above- mentioned delay in reporting the matter to the police has been brought on the record. Therefore, I hold that this delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version. Reliance is placed on case law titled as "Pervaiz Khan and another v. The State" (2022 SCMR 393) wherein the august Supreme Court of Pakistan has held as under:- "... There is another circumstance that according to prosecution the occurrence took place at 7 p.m. whereas the FIR was chalked out at 11:35 p.m. Although complainant claimed that he arrived in the hospital within one or one and a half hour but even then the report was lodged in the hospital at 11:15 p.m. There is no explanation as to why after reaching the hospital when both the deceased had succumbed to the injuries why they had not reported to the police and where this time was consumed, obviously this time was consumed for deliberation and consultation. This delay could not be explained by learned counsel for the complainant...." 12. It is noteworthy that initially, on 28-07-2016, the FIR (Ex.PG) was got registered by Mst. Nagma Mushtaq, complainant (PW.8) against unknown accused person. Thereafter, on 30-07-2016, she (complainant) got recorded her supplementary statement and nominated the appellant with the assertion that on 30-07-2016, her ex-husband (Muhammad Iqbal) met and told her that on the day of occurrence i.e. 25-07-2016 at about 08:20 p.m., he met his son/victim Muzafar Iqbal alias Ali along with Akbar alias Mohsin, appellant at Gohadpur Chowk, Sialkot. The appellant told that he was taking Muzaffar Iqbal alias Ali to his house at Kala Ghumannaan. She (complainant) suspected that Akbar alias Mohsin, appellant had committed murder of her son and his dead body had been concealed somewhere. On the basis of supplementary statement of the complainant, the accused was arrested. I have noted that the statement of Mst. Nagma Mushtaq, complainant (PW.8) is totally based upon hearsay evidence and not reliable, as according to the statement of Ghulam Murtaza, SI (PW.9), on 04-08-2016, he got issued proclamation regarding missing of the victim, thus, it is strange enough when the complainant (PW.8) had already nominated the appellant on 30-07-2016 then there was no. occasion to get issue the proclamation Ex.DG. Meaning
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thereby that the prosecution was not certain about the involvement of the appellant in the occurrence till 04-08-2016. The Courts have always deprecated the supplementary statement, which is made with the purpose to strengthen the case of the prosecution in connivance with the police officials or some other ulterior motives to get the suspect convicted by hook or crook. Nomination through supplementary statement has always been deprecated and disliked by the Hon'ble Supreme Court and has never been appreciated the same being afterthought. Here, I would like to refer to the cases of "Akhtar Ali and others v. The State" (2008 SCMR 6) and "Kashif Ali v. The Judge, Anti-Terrorism Court No. II, Lahore and others" (PLD 2016 SC 951). 13. As far as the first significant piece of evidence in this case i.e. evidence of last seen is concerned, the same came out from the mouth of Tanvir Hussain (PW.6) and Muhammad Iqbal (PW.7). According to the statements of supra mentioned PWs of last seen, on 25-07-2016 at 08:00 p.m., they were present at Gohadpur Chowk in connection with some domestic affair. In the meantime, they saw appellant along with Muzaffar Iqbal alias Ali (deceased) coming towards them on motorcycle and stopped near them. Muzaffar Iqbal alias Ali (deceased) talked to his father Muhammad Iqbal (PW.7), who inquired from them where were they going, upon which appellant told that he was taking Muzaffar Iqbal alias Ali to his own house. Then they separated and went on their way. Thereafter, on 30-07-2016, Muhammad Iqbal (PW.7) told Tanvir Hussain (PW.6) that his son Muzaffar Iqbal alias Ali (deceased) was missing. Both the PWs came to Sialkot to the mother of the victim and told her that they had witnessed the victim with the appellant on 25-07-2016. It is noteworthy that the supra mentioned PWs have failed to justify their presence at Gohadpur Chowk Sialkot on 25-07-2016, when they allegedly seen Muzafar Iqbal alias Ali in the company of appellant. According to Tanvir Hussain (PW.6), he was resident of Fatehwali, Tehsil Pasrur, District Sialkot and distance between Fatehwali and Gohadpur Chowk is about 70/80 Kilometers. According to the statement of Tanveer Hussain (PW.6), in connection with marriage proposal of his nephew, they had visited Sialkot on 25-07-2016. The concerned person, to whom they had to meet, was Sana Ullah but the prosecution has failed to produce the said witness during the course of investigation or before the learned trial court. Similarly, Muhammad Iqbal (PW.7) stated as under:- "...I had not told to the police in my statement, the purpose for which I came to Sialkot on 25.07.2016. During whole investigation, I did not tell the police the specific purpose of my visit of Sialkot on 25.07.2016...." Even otherwise conduct of Muhammad Iqbal (PW.7) was highly unnatural because being the real father of Muzaffar Iqbal alias Ali (deceased), why he allowed to go his minor son in the company of an unknown person. They both are interested witnesses and due to their unnatural conduct they cannot be termed as truthful witnesses. For the above reasons, their evidence is not worthy of reliance, therefore, I discard the same. Guidance can be sought from the case of "Zaheer Sadiq v. Muhammad ljaz" (2017 SCMR 2007). 14. I have also noted with grave concern that the witnesses, namely Tanvir Hussain (PW.6) and Muhammad Iqbal (PW.7) have made blatant and dishonest improvements in their earlier statements before the learned trial court. Tanvir Hussain (PW.6) was duly confronted with improvements and the relevant portion of his cross-examination highlighting those improvements are as under:- "....I had recorded my statement to the police, in this case on 30.07.2016. In my statement to the police, I had mentioned the time the time as 8:00 p.m. Confronted with Exh.DA, where it is not recorded. In my statement to the police, I had stated that we were present in Gohadpur Chowk in connection with some domestic affair. Confronted with Exh.DA where the word "domestic affair" is not mentioned. I had stated to the police that both the accused and the victim stopped near us. Confronted with Exh.DA where the word "both, the accused and victim" is not mentioned. I had
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recorded to the police in my statement that we separated and went our way. Confronted with Exh.DA where it is not so recorded. I had recorded in my statement to the police that I along with Iqbal came to Sialkot to the mother of the victim. Confronted with Exh.DA where the word "coming to Sialkot" is not recorded. I had recorded to the police in my statement that we told mother of the victim that on 25.07.2016, we witnessed the victim and the accused Akbar alias Mohsin. Confronted with Exh.DA where the date is not mentioned..............." Similarly, Muhammad Iqbal (PW.7) during his cross-examination stated as under:- "..I do not remember whether in my statement to the police, I recorded time as 8:00/8:15 p.m. Confronted with Exh.DB where the time is not mentioned. In my statement to the police I had not recorded that on 30.07.2016, I contacted Tanvir Hussain PW and told him that we had to got to Sialkot. In my statement to the police, I had not recorded that we came to the house of Sattar, Numberdar where we called complainant Nagma. I had not told to the police in my statement that Tanvir PW also told the same fact to the complainant Nagma Mushtaq. I had not recorded in my statement to the police that accused Akbar alias Mohsin had developed illicit relations with Nagma Mushtaq and since Nagma Mushtaq had gone to Dubai so the accused committed murder of her son............" In a slew of decisions, the Hon'ble Supreme Court of Pakistan has stated that a witness is untrustworthy if he makes dishonest improvements in his statement on a material aspect of the case in order to fill up gaps in the prosecution case or to bring his statement in line with the other prosecution evidence. Reference in this respect may be made to the judgment reported as "Naveed Asghar and 2 others v. The State" (PLD 2021 SC 600). I also fortify my view from the dictum laid down in case titled as "Khalid Mehmood and another v. The State and others" (2021 SCMR 810). It is noteworthy that Mst. Shabnum (PW.5), who was sister of Mst. Nagma Mushtaq, complainant (PW.8). She (PW.5) along with her mother, and children was residing at Gohadpur where her sister Mst. Nagma Mushtaq, complainant (PW.8) and her children were also resided. On 25-07-2016 at evening time about 7:00/8:00 p.m., her sister's son Muzaffar Iqbal alias Ali went outside the house at nearby Snooker Club. He had his mobile phone bearing SIM No.0306-820336 and some pocket money with him, who did not return home. They started search for him but he could not be traced out. On.the following day, they telephonically contacted his mother Mst. Naghma Mushtaq, complainant (PW.8). On her return, she (PW.8) got registered FIR against unknown accused on 28- 07-2016 regarding the missing of her son. Muhammad Iqbal (PW.7) ex-husband of her sister Mst. Nagma Mushtaq, complainant (PW.8) told her sister (PW.8) that he had witnessed Muzaffar Iqbal alias Ali with appellant on the day of his missing i.e. 25-07-2016. Similarly, Tayyaba Akram (PW.12) during his examination-in-chief deposed as under:- "...Stated that 11.07.2016 9:00 p.m., I was present in the house of my mother situated at Maliyanwala Tehsil Sambrial. My mobile phone number is 0336-4683789. The accused Akbar alias Mohsin on the above date at 9:00 p.m contacted me on my mobile phone from his mobile phone No.0302- 6174334. He told me that Nagma Mushtaq (the complainant) had gone to Dubai and she was not contacting him (the accused) on what's app. The accused further asked me that I should contact Nagma Mushtaq and should ask her to contact the accused. I replied to the accused that if Nagma Mushtaq was not willing to contact him, then he (accused) should not disturb me. I forbade him not to make any phone call in future. The accused then asked me that if Nagma Mushtaq would not contact him, in near future, some untoward regarding son of Nagma Mushtaq namely Muzaffar alias Ali, would happen due to which, Nagma Mushtaq shall have return to Pakistan in exigency. I also gave my statement to the police after 1 or 1-1/2 month of the said phone call...." Moreover, she (PW.12) during his cross-examination stated as infra:-
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"..On the same day i.e. 11-07-2016, 1 told the complainant Nagma Mushtaq about mobile call of the accused Akbar alias Mohsin who replied that she was not willing to contact the accused. I also told the complainant that accused wanted to talk to her regarding something about her son Muzaffar alias Ali. The whole information as I stated in my examination in chief was told by me to the complainant Nagma Mushtaq through what's app contact. I told the same story to my mother-in-law afterwards, after missing of the victim Muzaffar alias Ali. I also told the same facts to Shabnum...." In the light of above mentioned statement of Tayyaba Akram (PW.12), it is crystal clear that she has already disclosed to Mst. Nagma Mushtaq, complainant (PW.8) qua her receiving phone call from Akbar alias Mohsin, appellant on 11-07-2016 that he had threatened about Muzaffar Iqbal alias Ali (deceased) when Mst. Nagma Mushtaq complainant (PW.8) had already been informed then whey he had not got registered FIR against the appellant and why the names of witnesses of last seen i.e. Tanveer Hussain (PW.6) and Muhammad Iqbal (PW.7) and witnesses of circumstantial evidence i.e. Mst. Shabnum (PW.5), Tayyaba Akram (PW.12) were not incorporated in the FIR. These facts are E sufficient to shatter the credibility of prosecution case. I have also noticed that Mst. Kaneez Fatima (jettisoned PW), who was happened to be a maternal grand-mother of Muzaffar Iqbal alias Ali (deceased) and also real mother of Mst. Nagma Mushtaq, complainant (PW.8), had filed an application under sections 22-A, 22-B, Cr.P.C. (Ex.DD) in the court of learned Ex-Officio Justice of Peace, Sialkot for the registration of second FIR with the different story that on 25-07-2016 at Maghrib prayer time, Akbar alias Mohsin, appellant come at her house and inquired about her grand son Muzaffar Iqbal alias Ali (deceased), who was present outside the house on a shop. On calling Muzaffar Iqbal alias Ali (deceased) hurriedly came at home and after preparation went along with the appellant. It was further asserted by Mst. Kaneez Fatima (jettisoned PW) that her elder daughter Shabnum Andleeb have illicit relations with Akbar alias Mohsin, appellant and Nasir Butt, Ex-SHO, Police Station Muradpur as well as two other unknown persons and they had kidnapped and murder her grandson. In the light of the statements of supra mentioned PWs, it is crystal clear that Mst. Nagma Mushtaq, complainant (PW.8) was already well aware about the facts disclosed by above referred PWs, before the registration of FIR (Ex.PG) and even names of witnesses of last seen evidence as well as Mst. Shabnum (PW.5) and Tayyaba Akram (PW.12) should have been mentioned in the FIR but the prosecution evidence stated otherwise. In view of above, I am of the considered view that the prosecution has cooked up a false and fabricated story afterwards. Even otherwise, there is contradictory stance qua the abduction and murder of Muzaffar Iqbal alias Ali (deceased) and the prosecution evidence in this respect is under the clouds of doubt. It is well settled by now that last seen evidence is always considered to be week type of evidence, unless corroborated by some other independent evidence. In this respect, the reference can be made to the cases of "Fayya z Ahmad v. The State" (2017 SCMR 2026) and "Muhammad Abid v. The State" (PLD 2018 SC 813). 15. The next piece of evidence relied by the prosecution was in shape of judicial confession of the appellant before Syed Mehmood Afzal Shah, learned Judicial Magistrate 1st Class, Sialkot (PW.3). To determine the factum whether judicial confession of the appellant has been recorded. by the supra mentioned Magistrate after observing the formalities required under the law or not, it would be appropriate to have glance over the section 164, Cr.P.C. which is reproduced as under:- "164. Power to record statements and confessions.---(1) Any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the Provincial Government may, if he is not a police-officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial.
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(1A) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity to cross-examining the witness making the statement. (2) Such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried. (3) A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reasons to believe that it was made Voluntarily, and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect. "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him...." Whereas section 364 Cr.P.C. provides the mode through which the examination of an accused person is recorded. The questions put to the accused and the answers given by him should be distinctly and accurately recorded. For relevance section 364 Cr.P.C. is reproduced infra:- 364.…
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