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Petitioner: AHMAD HASSAN VS Respondent: StateHonorable Justice Manzoor Ahmad MalikBarrister Danyal Ejaz Chadhar
2013 Y L R 2800
[Lahore]
Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ
AHMAD HASSAN---Appellant
Versus
The STATE---Respondent
Criminal Appeals Nos.717, 738 and Murder Reference No.226 of 2009, decided on 27th May, 2013.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 364, 381-A, 201 & 34---Qatl-e-amd, kidnapping or abducting in order to murder, theft of a car or other motor vehicles, causing disappearance of evidence or offence, or giving false information to screen offender and common intention---Appreciation of evidence---Benefit of doubt---Delay of twenty-eight days without any satisfactory explanation in reporting the matter to the police cast doubt qua veracity of the prosecution story---Nothing was on record as to how the prosecution witnesses knew the accused persons and why they came to them for making confession---No occasion existed for the accused to make confession before the prosecution witnesses---Extra-judicial confession was considered a weak type of evidence which was not worthy of reliance---Nobody identified the dead body of the deceased before the post-mortem examination---Pointation of place of death of the deceased by the accused was of no consequence as there was no evidence of his death---Number plates and key of car recovered at the instance of the accused were not computerized and such articles could be obtained from the market---Investigation Officer had not collected any data from the mobile company that the SIM was in the name of deceased---No documentary evidence was brought on the record to prove the ownership of car allegedly in the name of deceased---Prosecution case was doubtful in nature and accused were entitled to the benefit of doubt not as a matter of grace but as of right---Appeals were allowed in circumstances and convictions and sentences awarded to the accused were set aside and they were acquitted of the charge while extending them benefit of doubt and murder reference was answered in negative.
Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Tahir Javed v. The State 2009 SCMR 166; Ziaul Rehman v. The State 2001 SCMR 1405; Tayyab Hussain Shah v. The State 2000 SCMR 683; Sarfraz Khan v. The State and others 1996 SCMR 188 and Ayub Masih v. The State PLD 2002 SC 1048 rel.
(b) Qanun-e-Shahadat (10 of 1984)---
----Arts. 38 & 39---Extra-judicial confession---Evidentiary value---Extra-judicial confession was a weak type of evidence.
Barrister Danyal Ejaz Chadhar for Appellant (in Criminal Appeal No.717 of 2009).
Malik Ghulam Hussain Awan for Appellant (in Criminal Appeal No.738 of 2009).
Mirza Aabid Majeed, Deputy Prosecutor General for the State.
Hassan Iftikhar for the Complainant.
Dates of hearing: 24th and 27th May, 2013.
JUDGMENT
MANZOOR AHMAD MALIK, J.---Ahmad Hassan and Khalid alias Khaldi (appellants) were tried by the learned Additional Sessions Judge, Arifwala District Pakpattan Sharif in case F.I.R. No.230, dated 23-5-2007 offence under section 364, P.P.C. (later on sections 302, 381-A, 201 and 34, P.P.C. were added), Police Station City Arifwala District Pakpattan Sharif. Vide judgment dated 11-5-2009 passed by the learned Additional Sessions Judge, Arifwala District Pakpattan Sharif, both the appellants have been convicted under section 302(b), P.P.C. and sentenced to death, with a further direction to pay a compensation of Rs.2,00,000 (rupees two lac only) each to the legal heirs of the deceased, as provided under section 544-A, Cr.P.C. and in default whereof to further undergo six months' S.I. each. They were further convicted under section 364, P.P.C. and sentenced to imprisonment for life each. They were also convicted under section 201, P.P.C. and sentenced to undergo R.I. for seven years. Both the appellants were also convicted under section 381-A, P.P.C. to undergo R.I. for five years. Assailing the above convictions and sentences, Ahmad Hassan and Khalid alias Khaldi (appellants) have filed Criminal Appeals Nos.717 and 738 of 2009, respectively, whereas the learned trial Court has sent Murder Reference No.226 of 2009 for confirmation or otherwise of appellants' sentence of death as required under section 374, Code of Criminal Procedure. Since all these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.
2. Prosecution story, as set out in the F.I.R. (Exh.PC/1) registered on the basis of written application (Exh.PC) of Niaz Ahmad, complainant (P.W.3) is that he was resident of Siddique Town, Arifwala and was having a Toyota Corolla car bearing Registration No.0623/LZE, colour white, Model 2004, Chassis No.1/ZE-1206014833, Engine No.LX 185346, which was plied as a taxi through his younger brother namely Mumtaz Ahmad. On 25-4-2007 at about 3-00/3-30 a.m. early in the morning, complainant's brother Mumtaz Ahmad and Muhammad Ali son of Nizam Din, caste Khokhar, resident of Chak No.75/EB were present in their house situated in Siddique Town. Muhammad Khalid alias Khaldi and Ahmad Hassan, both Arain by caste, residents of Chak No.32/P, Pakpattan Sharif came to their house and asked the complainant that they intend to hire the taxi for Bahawalnagar in emergency. Since both the appellants earlier used to hire the taxi of Mumtaz Ahmad, therefore, they were well-known to the complainant party. In presence of complainant's side, Mumtaz Ahmad, after settling the fare, took out the car from the garage and set off along with them. At that time, Mumtaz Ahmad was having Nokia Mobile No.6030 along with SIM No.0322-7847519. He was also wearing a silver ring, on which his name was inscribed. Mumtaz Ahmad did not return till late night whereupon the complainant party got worried. The complainant was searching Mumtaz Ahmad, when he met Muhammad Riaz son of Muhammad Rafi, caste Mughal and Qari Muhammad Shafique son of Bashir Ahmad, caste Rehmani, residents of Chak No.75/EB who told that at about 4-00 a.m. morning, they were present at Al-Saudia Poultry Farm situated within the limits of Chak No.69/EB where Mumtaz Ahmad told them after stopping the vehicle that he was taking Khalid alias Khaldi and Ahmad Hassan to Chak No.77/EB, Maikenanwala and from there be had to pick up a passenger for Bahawalnagar. Thereupon, next day, the complainant and his witnesses reached at Chak No.32/SP Pakpattan Sharif and tried to contract Muhammad Khalid alais Khaldi and Ahmad Hassan but they were not available. The complaiant party kept on searching Mumtaz Ahmad and his car and after a week went to the house of Muhammad Khalid alias Khaldi and Ahmad Hassan situated at Chak No.32/SP Pakpattan Sharif, where Muhammad Khalid alias Khaldi met them. On query, he (Khalid alias Khaldi) told that his companion Ahmad Hassan had taken Mumtaz Ahmad to Rawalpindi along with car but had not returned till that time. He assured that he would call back Mumtaz Ahmad along with car and would pay the fare but they lingered on the matter on one pretext or the other. The complainant showed strong suspicion that Muhammad Khalid alias Khaldi and Ahmad Hassan had abducted his brother Mumtaz Ahmad with the intention to snatch his car and had done him to death. It was further alleged that the occurrence was witnessed by the complainant and other witnesses. In his application (Exh.PC), the complainant requested for initiation of legal proceedings against the accused persons and recovery of his brother Mumtaz Ahmad as well as car from their custody.
3. Zulfiqar Ali, S.-I. (P.W.11) was posted at Police Station City Arifwala. On 23-5-2007, Niaz Ahmad, complainant (P.W.3) submitted written application (Exh.PC) before him and he lodged F.I.R. (Exh.PC/1). Then he reached at the place of occurrence and prepared rough site plan (Exh.PP). On 27-5-2007, he recorded the statements of P.Ws. as well as statements of Muhammad Javed (P.W.9) and Muhammad Majeed (P.W.10) as witnesses of extra-judicial confession. On 31-5-2008, he arrested Khalid alias Khaldi and Ahmad Hassan (appellants) and on their pointation, he prepared rough site plan of the place of pointation (Exh.PG & Exh.PG/1) and also prepared site plan (Exh.PH/1) of the place where the dead body of Mumtaz Ahmad (deceased) was thrown. He took into possession ring (P.5), qameez (P.2), shalwar (P.3) and a sealed box containing parts of dead body of deceased and photo (P.1) vide recovery memo (Exh.PJ). On 1-6-2007, he added offence under sections 302/34, P.P.C. and went to the place of occurrence along with Ghulam Mustafa Chughtai, Draftsman (P.W.2), who took rough notes. On 4-6-2007, Khalid alias Khaldi (appellant) allegedly led to the recovery of Nokia mobile (P.6), which was taken into possession vide recovery memo (Exh.PK). On 8-6-2007, Khalid alias Khaldi (appellant) also led to the recovery of a safa (P.7), which was taken into possession vide recovery memo. (Exh.P1). On 11-6-2007, Ahmad Hassan (appellant) got recovered number plates of car (P.8), which were taken into possession vide recovery memo. (Exh.PM). On 14-6-2007, Ahmad Hassan (appellant) also led to the recovery of key of car (P.9) and Khalid alias Khaldi (appellant) got recovered car (P.10), which were taken into possession vide recovery memo. Exh.PN and Exh.PO, respectively. On 15-6-2007, Ghulam Mustafa Ghughtai, Draftsman produced scaled site plan (Exh.PB) and the appellants were sent to judicial lock-up.
4. Muhammad Akram, S.I. (P.W.5) was posted at Police Station, Ahmad Yar, Arifwala. On 27-4-2007, Muhammad Akram son of Muhammad Ramzan met him in the area of Chak No.111/EB and informed about the dead body of a person stuck with the bridge of Darya Ding. He reached at the said place, prepared inquest report (Exh.PA/2) and drafted application for postmortem examination (Exh.PA/3). The dead body was buried as having no legal heirs on the application (Exh.PE) submitted by him to the T.M.O. Arifwala. After completion of all proceedings, qameez, shalwar and parcel of ring were taken into possession vide recovery memo. (Exh.PF). On 31-5-2007, Zulfiqar Ali, S.I. (P.W.11) came to him and received last worn clothes, ring, picture of the deceased and one jar.
5. The appellants were summoned by the learned Additional Sessions Judge Arifwala to face the trial. Copies of the documents, as required under section 265-C, Code of Criminal Procedure, were provided to them and formal charge under sections 302, 364, 381-A, 201 and 34, P.P.C. was framed against them on 12-3-2008, to which they pleaded not guilty and claimed trial.
In order to prove its case, prosecution examined eleven witnesses, in all. The learned Deputy District Public Prosecutor gave up Muhammad Ali, P.W. being unnecessary and closed the case of prosecution vide statement dated 20-1-2009. The statements of the appellants, under section 342. Code of Criminal Procedure were recorded on 17-2-2009, wherein they refuted all the allegations of the prosecution. In answer to a question as to why the case against him and why the prosecution witnesses deposed against him, Ahmad Hassan, appellant replied as under:--
"P.Ws are interested and all are connected with the complainant they are unnatural and inconsistent in their depositions."
To the same question, Khalid alias Khaldi, appellant replied as under:--
"It is a false case. P.Ws. are interested and all are connected with the complainant they are unnatural and inconsistent in their depositions."
The appellants did not opt to appear as their own witnesses, in disproof of the allegations levelled against them, as provided under section 340(2), Code of Criminal Procedure. Though the appellants opted to produce defence evidence but vide their separate statements dated 24-2-2009, they stated that they do not want to produce any defence evidence. However, after conclusion of the trial, the learned trial court convicted and sentenced the appellants as detailed above. Hence, these appeals and murder reference.
6. Learned counsel for both the appellants, in support of these appeals, contend that the appellants have falsely been unplicated in this case; that there is a delay of 28 days in reporting the matter to the police without there being any satisfactory explanation, that even otherwise, story of the complainant that the taxi was hired at 3-00/3-30 a.m. early in the morning does not appear to be probable as there was no special relation of the appellants with the complainant or the deceased and it is on the record that there were 400 taxies in Arifwala City; that the version of two other witnesses namely Muhammad Shafique (P.W.7) and Muhammad Riaz (P.W.8) that they met the deceased and the appellants in the car at about 4-00 a.m. at Al-Saudia Poultry Farm is also improbable because it is on the record that distance between the highway and said poultry farm is 200 yards and they (P.W.7 and P.W.8) have not stated any reason as to why Mumtaz Ahmad (deceased) met them at the poultry farm and they have admitted that the meeting was per chance at 4-00 a.m.; that there is absolutely no evidence on the record regarding the killing of Mumtaz Ahmad (deceased) as Dr. Muhammad Ilyas Anjum, who conducted postmortem examination on the dead body of the deceased has categorically stated that it was dead body of an unknown person and it was not identified by any person and even the postmortem examination was conducted on the request/application (Exh.PA/3) of Muhammad Akram, S.I. (P.W.5) of Police Station Ahmad Yar; that the complainant in his cross-examination has admitted that till that time they had not found the dead body of Mumtaz Ahmad his brother whereas Muhammad Javed (P.W.9) in his examination-in-chief has stated that it was photograph of deceased without disclosing his name as to who the deceased was. So far as extra-judicial confession allegedly made by both the appellants before Muhammad Javed (P.W.9) and Muhammad Majeed (P.W.10) is concerned, learned counsel contend that both these witnesses (P.Ws.9 and 10) have admitted in their cross-examination that they were not known to the appellants and as such, there was no occasion for the appellants to make such confession because by that time, there was no evidence on the record against the appellants; that the appellants have no special relation with both these witnesses to make any such confession. So far as recovery of number plates and key of car allegedly at the instance of Ahmad Hassan (appellant) is concerned, his learned counsel contends that it has been admitted by Zulfiqar Ali, S.I/I.O. (P.W.11) in his cross-examination that both the number plates and keys of the car were not computerized and those articles could be obtained from the market; that moreover, the recoveries were effected from Chak No.32/SP whereas both the witnesses of recovery namely Muhammad Riaz (P.W.8) and Muhammad Ali (given up P.W.) are residents of Chak No.75/EM, Arifwala, which is situated at a distance of 30 kilometers from the place of alleged recovery and no identification memo was prepared regarding the key and number plates. So far as recovery of safa, Nokia mobile phone and car allegedly at the instance of Khalid alias Khaldi (appellant) is concerned his learned counsel contends that the I.O. (P.W.11) has admitted in his cross-examination that the witnesses of recovery namely Muhammad Riaz (P.W.8) and Muhammad Javed (P.W.9) are not residents or connected in any way to the place of recovery and their residences are situated at a distance of 30/35 and 60 kilometers, respectively, from the place of recovery; that the safa (P.7) allegedly recovered from Khalid alias Khaldi (appellant) is an ordinary safa easily available in the market; that no identification memo regarding Nokia mobile phone was prepared nor it was identified by any witness to establish that it belonged to the deceased and moreover, the I.O. did not record the statement of any person from the mobile company that the SIM was in the name of deceased. So far as the car allegedly recovered from the dhari of Muhammad Aslam Gil at the instance of Khalid alias Khaldi (appellant) is concerned, learned counsel contends that said Muhammad Aslam Gil was not associated in the investigation and there was nothing on the record as to what relation Khalid alias Khaldi (appellant) had with Aslam Gil and even otherwise, no documentary evidence to prove the ownership of Car No.0623/LZE was brought on the record and the complainant in his cross-examination has admitted that they had not annexed with the record registration book of the car. So far as pointation of place of murder of Mumtaz Ahmad by the appellants is concerned, learned counsel for both the appellants contend that it is immaterial because the death of Mumtaz Ahmad has not been established on record; that viewing from all angles, the prosecution case is doubtful in nature and the appellants arc entitled to the benefit of doubt not as a matter of grace but as of right.
7. On the other hand, learned Deputy Prosecutor-General, assisted by learned counsel for the complainant, vehemently opposes these appeals on the grounds that the complainant or other witnesses have no enmity with either of the appellants to falsely implicate them in this case and the delay in such like cases is not material because firstly the people make efforts at their own to trace out the missing persons and moreover, it has been established on the record that Mumtaz Ahmad was taken by the appellants from the house of the complainant and he (Mumtaz Ahmad) was lastly seen alive in the company of appellants by Muhammad Shafique (P.W.7) and Muhammad Riaz (P.W.8) but thereafter, he was not traceable; that the recoveries of certain articles such as number plates and key of the car, safa, Nokia mobile and car belonging to the deceased at the instance of both the appellants fully connect them with the commission of crime and even the appellants have pointed out the place of murder of Mumtaz Ahmad (deceased); that the appellants made extra-judicial confession before Muhammad Javed (P.W.9) and Muhammad Majeed (P.W.10), who are totally independent and if all these pieces of evidence are taken into consideration, then irresistible conclusion would be that it was the appellants who are responsible for disappearance of Mumtaz Ahmad.
8. We have heard arguments of learned counsel for both the sides to their entire satisfaction, given serious consideration to their respective submissions and also perused the record.
9. Important points involved in this case are as under:-
(a) The case of the prosecution has been discussed in detail in para 2 above. The gist of the statement of the complainant is that his younger brother namely Mumtaz Ahmad was a taxi driver. On 25-4-2007 at about 3-00/3-30 a.m. early in the morning, complainant's brother Mumtaz Ahmad and Muhammad Ali son of Nizam Din were present in their house situated in Siddique Town. Muhammad Khalid alias Khaldi and Ahmad Hassan (appellants) came to their house and asked the complainant that they intend to hire the taxi for Bahawalnagar in emergency. Since both the appellants earlier used to hire the taxi of Mumtaz Ahmad, therefore, they were well known to them. In presence of complainant's side, Mumtaz Ahmad after settling the fare set off along with them. At that time, Mumtaz Ahmad was having Nokia. Mobile No.6030 along with SIM No.0322-7847519. He was also wearing a silver ring, on which his name was inscribed. When Mumtaz Ahmad did not return till late night, the complainant party got worried. The complainant was searching his brother, when Muhammad Riaz (P.W.8) Qari Muhammad Shafique (P.W.7) met him and told that at about 4-00 a.m. morning, they were present at Al-Saudia Poultry Farm within the limits of Chak No.69/EB where Mumtaz Ahmad told them after stopping the vehicle that he was taking Khalid alias Khaldi and Ahmad Hassan to Chak No.77/EB, Maikenanwala and from there, he had to pick up a passenger for Bahawalnagar. Thereupon, next day, the complainant and his witnesses reached at Chak No.32/SP Pakpattan Sharif and tried to contact Muhammad Khalid alias Khaldi and Ahmad Hassan but they were not available. The complainant party kept on searching Mumtaz Ahmad and his car and after a week went to the house of Muhammad Khalid alias Khaldi and Ahmad Hassan where Muhammad Khalid alias Khaldi met them. On query, he (Khalid alias Khaldi) told that his companion Ahmad Hassan had taken Mumtaz Ahmad to Rawalpindi along with car and not returned till that time. He assured that he would call back Mumtaz Ahmad along with car and would pay the fare but they lingered on, the matter on one pretext or the other. The complainant showed strong suspicion that Muhammad Khalid alias Khaldi and Ahmad Hassan had abducted his brother Mumtaz Ahmad with the intention to snatch his car and had done him to death.
The incident took place on 25-4-2007 and it is in the statement of the complainant that when his brother did not return late night, he became worried but no case was got registered by the complainant, and even no application was moved to any authority regarding missing of his brother. After the delay of about 28 days, the matter was reported to the police on 23-5-2007 at 12-20 a.m. (night) by Niaz Ahmed, complainant (P.W.3) through his application (Exh.PC) and formal F.I.R. (Exh.PC/1) was registered on the same night at 12-30 a.m. It is the case of complainant in the F.I.R., (Exh.PC/1) that on next day, he along with the witnesses went to Chak No.32/SP and tried to contact the appellants but they were not available. It is also mentioned in the F.I.R. (Exh.PC/1) that after one week, he again went to Chak No.32/SP in search of his brother and Khalid alias Khaldi (appellant) on enquiry told that Ahmad Hassan (appellant) had 'taken Mumtaz Ahmad to Rawalpindi along with car and assured that he would call back Mumtaz Ahmad along with car and would pay the whole fare but even then, the matter was not reported to the police. Delay of twenty eight days without there being any satisfactory explanation in reporting the matter to the Police casts doubt qua veracity of the prosecution story.
(b) Two other witnesses namely Muhammad Shafique (P.W.7) and Muhammad Riaz (P.W.8) in their statements have stated that on 25-4-2007 at about 4-00 a.m. they were present at Al-Saudia Poultry Farm and when they came near the main road, Mumtaz Ahmad (deceased) came on a car and on seeing them stopped the car and told them that he was going along with Khalid alias Khaldi and Ahmad Hassan (appellants) to Chak No.77/EB, Maikananwala.We have gone through the statements of Muhammad Shafique (P.W.7) and Muhammad Riaz (P.W.8) and noted that their farm was at a distance of 200 yards from the main road. No reason has been assigned by these two witnesses in their statements as to why they were standing there and why they went towards the main road at 4-00 a.m. and even they also remained mum for one month. One of them namely Muhammad Riaz (P.W.8) is brother of Mumtaz Ahmad.
(c) In the F.I.R. and before the learned trial Court it is the case of complainant that both the appellants were previously known to him. Both the appellants are residents of Chak No.32/SP, Tehsil and District Pakpattan Sharif. In this context, following portion of the cross-examination of the complainant (P.W.3) is relevant, which is reproduced here-under:--
"I never visited the village 32/SP prior to this occurrence and I did not know any body who is resident of village 32/SP. The village 32/SP falls within Tehsil Pakpattan Sharif. I did not take any respectables of the village 32/SP with me when we went to see the accused or for research of the deceased and Car. We went there for four times I cannot tell the name of father, uncle or other family member of the accused persons."
(d) So far as extra-judicial confession allegedly made by both the appellants before Muhammad Javed (P.W.9) and Muhammad Majeed (P.W.10) is concerned, we have noted that there is nothing on the record as to how these witnesses knew the appellants and why they came to them for making a confession. Muhammad Javed (P.W.9) in his cross-examination has admitted "I did not know the accused persons till then when we met the family of the complainant" whereas Muhammad Majeed (P.W.10) in his cross-examination has stated "the accused came to us was unknown to us" and in such a situation, there was no occasion for the appellants to make confession before these witnesses and even otherwise, extra-judicial confession is always considered a weak type of evidence. The question of evidentiary value of the extra-judicial confession came up for consideration before the august Supreme Court of Pakistan in the case reported as "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231), wherein, at page 238, the Apex Court of Pakistan has been pleased to lay emphasis as under--
"17. ...This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding…
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