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Petitioner: MUHAMMAD EJAZ VS Respondent: StateHonorable Justice Ali Zia BajwaPrince Rehan Iftikhar Sheikh
2022 Y L R Note 39 [Lahore (Multan Bench)] Before Asjad Javaid Ghural and Ali Zia Bajwa, JJ MUHAMMAD EJAZ---Appellant Versus The STATE---Respondent Criminal Appeal No. 83-ATA of 2011, heard on 21st September, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting in order to murder, kidnapping or abducting for extorting property, valuable security etc., causing disappearance of evidence of offence, or giving false information to screen offender, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of about nine days in lodging the FIR---Effect---Accused was charged for committing murder of the brother of the complainant after kidnapping him for extorting property---Record showed that matter was reported to the police with a delay of nine days for which no plausible explanation had been rendered by the prosecution---Admittedly, the accused was not named in the FIR rather the same was registered against unknown accused persons---Involvement of the accused in the case was based upon statement of co-accused---Such like evidence must be corroborated by independent incriminating material/ evidence to establish nexus of the accused with the alleged occurrence---Admittedly, said co-accused had already been acquitted of the charge by the court---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting in order to murder, kidnapping or abducting for extorting property, valuable security etc., causing disappearance of evidence of offence, or giving false information to screen offender, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of incriminating material---Scope---Accused was charged for committing murder of the brother of the complainant after kidnapping him for extorting property---Wrist watch and SIM were recovered, which allegedly belonged to the deceased---Neither in the FIR nor in the supplementary statement it was mentioned that the deceased was wearing wrist watch when at the time of kidnapping or he was having any mobile phone with him---Said fact was also admitted by the Investigating Officer while appearing in the witness box---Said fact alone smashed the prosecution case against the accused, qua recovery of articles/belongings of the deceased---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting in order to murder, kidnapping or abducting for extorting property, valuable security etc., causing disappearance of evidence of offence, or giving false information to screen offender, act of terrorism---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged for committing murder of the brother of the complainant after kidnapping him for extorting property---Motive advanced by the prosecution was engagement of a co-accused with daughter of a person, which was allegedly opposed by mother of deceased and due to that grudge, the accused committed the occurrence in question---Admittedly, present accused had no concern whatsoever with the motive part of the case---Motive was also disbelieved by the Trial Court---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting in order to murder, kidnapping or abducting for extorting property, valuable security etc., causing disappearance of evidence of offence, or giving false information to screen offender, act of terrorism---Appreciation of evidence---Benefit of doubt---Non-availability of Call Data Record---Scope---Accused was charged for committing murder of the brother of the complainant after kidnapping him for extorting property---Present accused had allegedly demanded ransom amount from the complainant---Neither Call Data Record of the mobile phone used by the accused was collected during the course of investigation nor its ownership was got verified in order to establish that fact of the case---Further in view of deficit evidence on that aspect, Trial Court had acquitted the accused for the offence under S.365-A, P.P.C.---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting in order to murder, kidnapping or abducting for extorting property, valuable security etc., causing disappearance of evidence of offence, or giving false information to screen offender, act of terrorism---Appreciation of evidence---Benefit of doubt---Act of terrorism---Scope---Accused was charged for committing murder of the brother of the complainant after kidnapping him for extorting property---Even if the whole prosecution version was presumed to be true, not an iota of evidence could be brought on record to establish that offence alleged against the accused could be termed falling within the mischief of "Terrorism" which had been defined in S.6 Anti-Terrorism Act, 1997---Even otherwise when the Trial Court had arrived at the conclusion that the prosecution could not establish offence under S.365-A, P.P.C., it fell in error while recording conviction under the provision of S.7 of the Ant-Terrorism Act, 1997---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances. Prince Rehan Iftikhar Sheikh for Appellant. Ch. Muhammad Ali Shohab, Deputy Prosecutor General for the State. Nemo for the Complainant. Date of hearing: 21st September, 2021. JUDGMENT ALI ZIA BAJWA, J.--- Muhammad Ejaz son of Bashir Ahmed, caste Machhi, resident of Jatoi, District Muzaffargarh, appellant has assailed his conviction and sentence passed by learned Judge, Anti-Terrorism Court, Dera Ghazi Khan, vide judgment dated 08.01.2011 in case FIR No.149/2009, dated 04.04.2009, offence under Sections 302, 364, 365-A, P.P.C., read with Section 7 of the Anti-Terrorism Act, 1997, registered with Police Station Jatoi, District Muzaffar-garh; whereby the appellant was convicted and sentenced as under:- > Under section 302(b), P.P.C., sentenced to undergo imprison-ment for life as Ta'zir with direction to pay Rs.1,00,000/- as compensation to legal heirs of deceased as provided under section 544-A, Cr.P.C. and in case of default in payment thereof, to further undergo S.I. for six months. > Under Section 7 of the Anti-Terrorism Act, 1997, sentenced to undergo imprisonment for life with fine of Rs.1,00,000/- and in case of default in payment thereof, to further undergo S.I. for one year. > Under section 201, P.P.C., sentenced to undergo R.I. for five years with fine of Rs.20,000/- and in case of default in payment thereof, to further undergo S.I. for three months. > All the sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant. 2. The prosecution story as portrayed in the FIR (Exh.PG) lodged by Muhammad Shahid (PW-5) is that he was running a shop near Shell Petrol Pump, Jatoi while younger brother of the complainant namely Muhammad Zahid also used to work with him. On 27.03.2009 after offering Juma Prayers, brother of the complainant didn't return home. The complainant started search during the course of which one boy namely Muhammad Amin aged 10/12 years told that he had seen Muhammad Zahid while boarding on a rickshaw. On the application of the complainant on 04.04.2009, the instant FIR was lodged. 3. After registration of the case the investigation was entrusted to Muhammad Ayub, S.I. (PW-9), who along with other police officials visited the place of occurrence and prepared rough site plan (Exh.PR). On the direction of the Investigating Officer and pointing out of the PWs, Ghulam Nabi, Patwari (PW-1) prepared scaled site plan of the place of occurrence (Exh.PA and Exh.PA/1). Subsequently through supplementary statement the complainant nominated the present appellant and other co-accused and the offences under sections 364 and 365-A, P.P.C., were added by the Investigating Officer. On 28.05.2009, the appellant was arrested, who during the course of interrogation after making disclosure led to the recovery of wrist watch (P-7) and SIM (P-8) allegedly belonging to the deceased, which were taken into possession vide recovery memo Exh.PM. The Investigating Officer recorded statements of the prosecution witnesses under section 161, Cr.P.C. During the course of investigation having found the appellant guilty, Investigating Officer submitted report under section 173, Cr.P.C. while placing his name in column No.3. 4. After submission of challan, prosecution evidence was recorded: Muhammad Shahid (PW-5) is complainant of the case, Ashiq Hussain is the witness of motive part, as well as, recovery of articles. Fiaz Ahmed (PW-7) is the witness of extra-judicial confession. Dr. Abdul Aziz (PW-4) had conducted postmortem examination over the dead body of deceased. Ghulam Nabi, Patwari (PW-1) had prepared scaled site plan of the place of occurrence. Investigation in this case was conducted by Muhammad Ayub, S.I. (PW-9). Statements of rest of the prosecution witnesses are formal in nature. After closure of prosecution evidence, the appellant was examined under section 342, Cr.P.C; wherein he refuted the allegations levelled against him in the prosecution evidence. He neither opted to adduce evidence in his defence nor did he appear as a witness in his own defense as provided under section 340(2), Cr.P.C. 5. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record, convicted the appellant in the afore-stated terms. 6. It is pertinent to mention here that during pendency of the instant appeal, sentence of the appellant was suspended vide order dated 05.11.2013 passed in Writ Petition No.14230/2012. Subsequently he became fugitive from law as such vide order dated 28.02.2018, this appeal was dismissed with a clarification that after arrest/surrender of the appellant, he may apply for resurrection. Subsequently the appellant was arrested on 08.10.2020, hence, vide order dated 18.11.2010, the appeal was restored to its original number. 7. At the outset learned counsel for the appellant stated that the present appellant along with Ibrahim alias Tahir Mouvia and Aamir Bashir co-accused was convicted by the learned trial court through judgment dated 08.01.2011 against which co-convicts filed appeals and they were acquitted of the charge by learned Division Bench vide consolidated judgment dated 04.03.2019 passed in Crl. Appeal No.2/2011, Crl. Appeal No.3/ 2011 and Crl. Revision No.56/2011. He further stated that case of the present appellant is at par with his co-convicts; therefore, he is also entitled to be treated in the same manner. 8. Learned Deputy Prosecutor General frankly conceded that case of the appellant is at par with his co-convicts, who already stand acquitted by this Court vide judgment dated 04.03.2019. 9. Arguments advanced from both sides have been heard and record available on file perused. 10. Perusal of record available on file reflects that occurrence in the instant case had taken place on 27.03.2009; however, the matter was reported to the police on 04.04.2009 i.e. with a delay of nine days for which no plausible explanation has been rendered by the prosecution. Admittedly in the FIR the appellant was not named rather the same was registered against unknown accused persons. Involvement of the appellant in the instant case is based upon statement of co-accused Ibrahim alias Tahir Mouvia. However, it is cordial principle of law that such like evidence must be corroborated by independent incriminating material/evidence to establish nexus of the accused with the alleged occurrence. Even otherwise admittedly said Ibrahim alias Tahir Mouvia (co-convict) has already been acquitted of the charge by this Court. 11. Only evidence against the appellant available with the prosecution is recovery of wrist watch (P-7) and SIM (P-8) allegedly belonging to the deceased. However, perusal of record available on file reflects that neither in the FIR nor in the supplementary statement it was mentioned that the deceased was wearing wrist watch when he missed or he was having any mobile phone with him. This fact was also admitted by the Investigating Officer while appearing in the witness box as PW-9. Relevant extract out of his statement is reproduced as under:-- "It is correct that on 04.04.2009 the statement of P.W Allah Wasaya was recorded and in his statement he did not mention the articles of deceased i.e. Ring, Watch, Purse and Photo. The said articles were also not shown in the FIR." This fact alone smashes the prosecution case against the appellant, qua recovery of articles/belonging of the deceased, to ground. 12. Another piece of evidence floating on the record is the motive. Story advanced by the prosecution in this regard is regarding engagement of Aamir Bashir co-accused with daughter of Jahan Khan Jatoi, which was allegedly opposed by mother of Zahid deceased and due to this grudge the accused committed the occurrence in question. However, admittedly present appellant had no concern whatsoever with the motive part of the case. Moreover, motive was also disbelieved by the learned trial court. 13. There is no cavil to this proposition that the dead body was not recovered on the pointing out of the appellant rather the same was recovered from the house of Ibrahim alias Tahir Mouvia on his pointing out, who along with co-convict has already been acquitted of the charge. 14. Although it is the prosecution case that the present appellant had allegedly demanded ransom amount from the complainant. However, neither CDR of the mobile phone used by the appellant was collected during the course of investigation nor its ownership was got verified in order to establish this fact of the case. Further in view of deficit evidence on this aspect, learned trial court had acquitted the accused for the offence under section 365-A, P.P.C. 15. As far as the question of applicability of the provisions of section 7 of the Act, 1997, in the instant case is concerned, even if the whole prosecution version is presumed to be true not an iota of evidence could be brought on record to establish that offence alleged against the appellant could be termed falling within the mischief of 'Terrorism', which has been defined in section 6 A.T.A., 1997. Even otherwise when the learned trial court had arrived at the conclusion that in the instant case the prosecution could not establish offence under section 365-A, P.P.C., it fell in error while recording conviction under the provisions of section 7 of the Anti-Terrorism Act, 1997. 16. The most important aspect of the case is that role ascribed to the appellant is lesser in magnitude as compared to his co-convicts Ibrahim alias Tahir Mouvia and Aamir Bashir, who have already been acquitted of the charge by learned Division Bench of this Court vide judgment dated 04.03.2019 and no appeal against their acquittal has been filed. Learned Deputy Prosecutor General also conceded this fact that case of the present appellant, in no way, can be distinguished from his co-convicts (since acquitted) rather he stated that role of the appellant is of lesser magnitude. In these circumstances keeping in view the principle of safe administration of justice, in our humble opinion, the appellant is also entitled to be treated in the same manner. 17. In sequel to what has been discussed above, the instant appeal is allowed as a consequence whereof, conviction and sentence recorded in the judgment dated 08.01.2011 passed by learned Judge, Anti-Terrorism Court, Dera Ghazi Khan is set aside. The appellant is hereby acquitted of the charges in case FIR No.149/2009, dated 04.04.2009, offence under sections 302, 364, 365-A, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997, registered with Police Station Jatoi. He is directed to be released forthwith if not required in any other criminal case. JK/M-202/L Appeal allowed.