Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD ASIF alias ICHHI and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Ijaz Ahmad Chaudhry, Mian Muhammad Najum-uz-Zaman Title: MUHAMMAD ASIF alias ICHHI and others vs THE STATE Case No.: Criminal Appeal No, 286-J, 'C. S. R. No,44-T of 2006 Date of Judgment:2007-09-13 Reported As: 2007 YLR 3241 Result: Appeal allowed
JUDGMENT
JUDGMENT ' MIAN MUHAMMAD NAJUMUZ-ZAMAN, J.---Appellants were tried by Special Judge Anti-Terrorism Court, Sargodha Division, Sargodha, for the offence of abducting Muhammad Yasir aged 12 years for ransom and his murder in case F.I.R. No,117/2006 for the offence under sections 365- A/302/147/149, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997 registered at Police Station Gunjial, District Khushab. Trial Court vide judgment dated 8-9-2006 convicted and sentenced the appellants (accused) which reads as under:--- "(a) All are convicted under section 365-A/34, P.P.C. And sentenced to death penalty each. Entire properties if belonging to accused are also forfeited. (b) All accused are convicted under section 302(b)/34 P.P.C. For Committing Qatl-i-Amd of Muhammad Yasir and sentenced to death penalty each. They will also pay an amount of Rs, One Lac each as compensation under section 544-A Cr.P.C.; to legal heirs of deceased, in default of payment of which they will further undergo six months' SI each. (c) All accused are convicted under section 201/34 P.P.C. For causing disappearance of evidence of offence and sentenced to undergo seven years' RI each with a fine of Rupees twenty thousand each. In default of payment of fine they will further under& one year's SI each. (d) All accused are also convicted under section 7(a) of the Anti-Terrorism Act, 1997 read with section 34, P.P.C. For committing act of terrorism and sentenced to death penalty each. They will also pay rupees fifty thousand each as fine, in default of payment of which they will further undergo three years SI each." 2. Feeling aggrieved by the impugned judgment, appellants have filed appeal through jail i.e, Crl.A. No,286-J/2006. Trial Court also made a reference i.e, C.S.R. No,44-T/2006 for the confirmation of
---
## Page 2
death sentence awarded to the appellants. Both these matters are being disposed of together by this single judgment. 3. The facts of the case as disclosed in F.I.R (Ex.P.M/1) which was got registered on 16-6-2006 by Muhammad Sagheer complainant P.W.11 read as under:- "I reside with my family members in Bungalow No,1, Block-B, Qaidabad. I have my shop with the name of Madina Autos situated on the backside of Gunjial Petrol Pump. I have four sons and my youngest son is Muhammad Yasir aged 12 years who is a student of 6th class in Pak Oxford Academy Qaidabad. On 13-6-2006 at about 3-30 p.m. Muhammad Yasir was present in his house and he told his mother that he was going to his class fellow Hamza. Muhammad Yasir did not return till evening. I. In association of Ch. Muhammad Habib son of Bashir Ahmed caste Arain Abdul Rahim son of Abdul Rehman Caste Arain both residents of Qaidabad made search of Muhammad Yasir but he was not traceable. In this regard I got entered report of missing at police station Gunjial. On 14-6-2006 I got arranged two Army Dogs to trace out and both dogs one by one entering in Bungalow of Haji Muhammad Charragh Utra situated in Qaidabad sat there. Now-a- days in that Bungalow Muhammad Riaz son of Bashir Ahmad caste Chavali resident of Nawan Kot police station Midh Ranjah District Sargodha present Vocational College Qaidabad and Shah Nawaz son of Haji Ahmad Nawaz caste Utra resident of Utra reside there. I have every suspicion that Muhammad Riaz and Shah Nawaz along with unknown accused by abducting Muhammad Yasir had kept him at some secret place in illegal confinement." ' Record of this case reveals that on the next day of registration of the case i.e, on 17-6-2006, the Complainant was informed by Muhammad Sadiq son of Muhammad Hanif P.W.12 (resident of the locality) that he and Muhammad Aslam (given up) had seen Muhammad Yasir (deceased) on 13- 6-2006 at about 3-30 p.m. Sitting in a car bearing registration No,F.D.R. 242 along with Muhammad Asif, Kashif, Mukhtar and Muhammad Tahir accused near Girls College Chowk and upon query the accused told him that they were going to Toba Tek Singh on pleasure trip. Thereafter the complainant received certain telephonic messages from some unknown person about payment of Rs,30,00,000 as ransom for the release of his son and ultimately deal was struck for Rs,7,00,000. Thereupon on 20-6-2006 (Muhammad Sagheer P.W.11) complainant asked his nephew Muhammad Shahid son of Muhammad Shabbir (P.W.13) to hand over the money to the accused, he also provided him a mobile phone bearing No,0300- 6083617 for getting instructions from the accused qua time and place for making the payment. Allegedly the ransom amount was received by Mazhar Iqbal and Pervaiz appellants on 21-6-2006 at about 3 p.m. At Flood Block near Sidhnai Head Works. The accused told the witness that Yasir would be available at Iqbal Chowk where he (witness) waited for many hours but Yasir never turned up and on the same night i.e, on 21-6-2006 he came back to Quaidabad and told the facts to Muhammad Sagheer P.W.11. ' In the light of said evidence, Ghulam Hussain Inspector P.W.14 arrested Muhammad Asif, Muhammad Kashif, Muhammad Tahir and Muhammad Mukhtar on 25-6-2006. On the same day Muhammad Asif appellant got recovered dead-body of Muhammad Yasir from a canal in the presence of witnesses. Feet of dead-body were intact whereas animals had eaten the remaining parts of the body. The trouser was also stuck in his feet. Statedly the dead-body was identified by Muhammad Sagheer, Muhammad Habib and Muhammad Aslam from the birthmark on the right foot of the body and from the trouser of the deceased. The Investigating Officer in this regard prepared identification memo. Exh.P.Q as well as rough site-plan of the place of recovery of dead- body i.e: Exh.P.W. The Investigating Officer also prepared injury statement Exh.P.X, inquest report Exh.P.Y and sent the dead-body to the mortuary for postmortem examination. Statedly thereafter remaining accused persons also one by one pointed out the place of recovery of dead-body and memos. In this regard are Exh. P.R, Exh.P.S and Exh.P.T. Statedly during the investigation on 28-6- 2006 Muhammad Asif led to the recovery of rupees one lac P.6/1-100, two telephone cards P.7/1-2,
---
## Page 3
one mobile phone without SIM. These articles were taken into custody vide recovery memos Exh.P.I. On the same day, Muhammad Kashif, Muhammad Tahir and Muhammad Mukhtar also led to the recovery of Rs,1,00,000 each P.8/1-100, P.9/1-100, P.10/1-100, which were taken into custody vide recovery memos. Exh.P.J., Exh.P.K., Exh.P.L respectively. ' Muhammad Pervaiz and Muhammad Mazhar were arrested on 30-6-2006. Similarly on 8-7-2006, Muhammad Pervaiz led to the recovery of Rs,1,00,000 P.3/1-100, one mobile phone P.4 which were taken into custody vide recovery memo. Exh.P.G. He also got recovered pistol .30-bore P.13 along with three live bullets P.14/1-3. These articles were taken into custody vide recovery memo. Exh.P.A.A. On the same day, Muhammad Mazhar led to the recovery of Rs,1,00,000 in two packets of denomination of five hundred each P.5/1-200 which were taken into custody vide recovery memo. Exh.P.H. He also led to' the recovery of pistol .30 bore along with two live bullets P.16/1-2 which were taken into custody vide recovery memo. Exh. B. B. ' During the investigation Muhammad Asif appellant also got recovered car No,F.D.R 242 (P.1) which was found parked at Moon Rent a Car Jinnah Market, Toba 'Tek Singh, the same was taken into custody vide recovery memo Exh.P.D. [1] The petitioner apprehending his N.H.Q/T-12/L Pre-arrest bail granted, arrest had approached the learned Court of [2] Learned counsel for the respondent/plaintiff, however, referred to the site plan (Exh.D.7) prepared by the Revenue Department pursuant to the orders passed by the Board of Revenue. From this 4. The Investigating Officer after complying with legal formalities finally submitted challan before the trial Court where prosecution produced fourteen witnesses to prove charge against appellants. ' Mirza Muhammad Saeed Draftsman P. W . 1 prepared site-plan Exh.P.A and Exh.P.A/1. Ashir Shafiq P.W.2 being the owner of Show Room titled "Moon Rent a Car" deposed that the car bearing registration No, F.D.R 242 was hired by Muhammad Asif from his Show Room on 13-6-2006 at about 8 a.m. The same was returned on 14-6-2006. The said car was again hired by him on 21-6-2006 and returned on 22-6-2006. This witness had also placed on record receipt book and its carbon copies Exh.P.B and Exh.P.B/1 and P.B/3. Dr. Asif Mahmood (MO) P.W.3 conducted the postmortem examination of Muhammad Yasir. Hi his opinion time between death and postmortem was 7 to 14 days. Imran Siddiq P.W.4 was present when Muhammad Asif appellant got recovered car bearing registration No,F.D.R 242. He was also present when Inspector took into possession photo copies of receipts Exh.P.B to P.B/3 and photo copy of NIC of Muhammad Asif vide recovery memo. Exh.P.E. Muhammad Aslam ASI P.W.5 was present when Muhammad Asif appellant got recovered dead- body of Muhammad Yasir from a canal situated in Tehsil Kamalia, District Toba Tek Singh. The dead-body was stuck up with a bamboo fixed in the canal and he (witness) retrieved the dead- body from the canal. He also took the dead-body to mortuary for postmortem examination and handed over the last-worn clothes of deceased to the Investigating Officer. He was also present when Muhammad Pervaiz and Muhammad Mazhar appellants got recovered ransom money. Haji Muhammad Saleem P.W.6 was present when Muhammad Asif, Muhammad Kashif, Muhammad Tahir and Muhammad Mukhtar appellants led to the recovery of ransom money and other articles as narrated earlier. Muhammad Zubair P.W.7 deposed that on 19-6-2006 the complainant of this case requested him for a loan of Rs,7,00,000 because his son was abducted and he was in need of money. Statedly this witness issued a cheque pertaining to ABL Johar Abad Branch and thereafter got encashed the same from the Bank and handed over the money to the complainant. Statedly there were eight packets in total, six packets contained currency notes of Rs,1,000 denomination whereas two packets were of Rs,500 denomination currency notes. The stamps of the bank were also available on the packets. Muhammad Ramzan P.W.8 being the Bank employee of ABL Johar Abad Branch, as Cashier, deposed that, on 19-6-2006 Muhammad Zubair had presented a cheque
---
## Page 4
of Rs,7,00,000 which was encahsed and that all the packets were having official stamp of the bank. Ghulam Shabbir ASI P.W.9 entered formal F.I.R Exh.P.M/1 upon receiving complaint Exh.P.M. Syed Azhar Ali Bokhari Civil Judge/Judicial Magistrate Khushab P.W.10 supervised the identification parade which was held on 4-7-2006 at Shahpur Jail and prepared proceedings Exh.P.O. Statedly during the identification parade proceedings, witnesses had identified Muhammad Pervaiz and Muhammad Mazhar appellants. Muhammad Sagheer P.W.11 being the complainant of this case deposed about the abduction of his son and thereafter making report to the police as well as making arrangement for the ransom money. He also received telephonic messages from the accused persons for the payment of ransom. He was - also present when the dead-body of his son was recovered at the instance of Muhammad Asif appellant and 'the same was identified by him. On 17-6-2006, complainant was informed by Muhammad Aslam and Muhammad Sadiq about seeing the deceased in the company of appellants and thereafter his supplementary statement was brought on record. He further stated that Muhammad Asif and Kashif are his real nephews. Muhammad Sadiq P.W.12 had seen the deceased in the company of Muhammad Asif, Kashif, Mukhtar and Muhammad Tahir appellants near Girls College Chowk on 13-6-2006 at about 3-30 p.m., he also informed the complainant in this regard on 17-6-2006. Muhammad Shahid P.W.13, deposed about receiving ransom money by Mazhar Iqbal and Muhammad Pervaiz appellant. He also identified both the said accused persons during the identification parade proceedings. Ghulam Hussain Inspector P.W.14 conducted the formal investigation as observed earlier. 5. Learned trial Court also examined all the appellants under section 342 Cr.P.C. Appellants while answering to question "Why this case against you and why the witnesses have deposed against you?", made the replies which read as under:--- ' Muhammad Asif: ' I am innocent. I have been involved due to the reason that myself and my brother Muhammad Kashif accused often demanded price of land owned by our mother, which she inherited from her father and father of complainant situated in Chak No,117/NB. The inherited property of my mother was usurped by Muhammad Sagheer complainant. That land is quite valuable. Complainant had asked us that he would Provide us a house after construction and for that a plot be purchased and for that should pay initial amount in this context after selling our car. After selling the vehicle we provided to the owner of plot rupees one lac but thereafter complainant resiled from his undertaking, which caused us not only loss of property of our mother but also of rupees one lac. I had been working with complainant for about three years for which no wages were given to me. When our demand in this regard was on extreme, at that time some unknown persons abducted his son. Complainant finding it a golden chance that culprits were untraceable, to put pressure on us to waive our demand involved myself and my brother Kashif ' accused in his case falsely. While doing so having connivance with police evidence was fabricated. My brother Kashif accused is a student of M.A. By no means we had any reason to commit the crime of our own near and dear. ' Muhammad Kashif: ' My version is the same as of my co-accused and brother Muhammad Asif. In addition to that I state that on 13-6-2006 I had gone to the house of complainant to make demand for our property and money and for no other purchase. I had been associating complainant for couple of days for search of deceased and I could not make demand because of missing of deceased. I am a student of Part-I of M.A. English in Faisalabad University and on 24-7-2006 I had to appear in my first paper in examination. I was enjoying very good academic record. ' Muhammad Tahir: ' My father had moved an application against S.H.0 police station city Toba Tek Singh because of which he was annoyed with our all family members. On 24-6-2006 when police went there, he got me involved in this false case and also associated him to create false evidence against me. I was
---
## Page 5
the student of 2nd year and studying in Government Municipal Degree College Toba Tek Singh. I am quite innocent. ' Muhammad Mukhtar: ' I am innocent. I am a poor man. On the asking of Muhammad Ashfaq son of Ahmad Khan caste Janjua Rajput R/o Chak No,695/37 GB and Maqbool Ahmad son of Muhammad Akram caste Rajput R/o Chak No,693/35 GB the police has dishonestly made me an scapegoat in this case. Nothing was recovered from me and I was arrested by the police on 24-6-2006. Investigation of this case was dishonestly conducted and fabrication in evidence has been made against me. ' Muhammad Pervez: ' My version is the same as of my co-accused Mazhar @ Shah. ' Muhammad Mazhar: ' I am innocent in this case as I have been falsely involved in this case. I was arrested by police on 24-6-2006 along with other accused where after I was kept under illegal confinement till the date on which I was shown to be arrested. During this period I was repeatedly shown to the witnesses and even my photographs were drawn. By way of fabrication made by complainant. And police I have been involved - falsely in this case with which I have no concern whatsoever. ' None of the appellants made statement on oath as required under section 340(2), Cr.P.C. Nor produced any evidence in defence. ' Learned trial Court after perusing the evidence and hearing learned counsel for the parties vide judgment, dated 8-9-2006 convicted and sentenced the appellants as narrated earlier. 6. Learned counsel of the appellants while challenging the legality of the impugned judgment submitted that it is a case of fantastic engineered fabrication and the appellants had been falsely involved in this case with mala fide intention. Learned counsel submitted that from the medical evidence it could not be determined as to whether the dead-body was that of Muhammad Yasir deceased for whose murder six persons have been sentenced to death. Further submitted that the entire case of the prosecution rests upon circumstantial evidence but the chain of circumstances which should touch the dead-body and neck of the appellants is not complete. Learned counsel submitted that the evidence i.e, last seen, demand and payment of ransom, recovery 'of dead- body as well as ransom money and crime weapon at the instance of the appellants, was tailored during the investigation. Learned counsel further submitted that according to prosecution case Muhammad Zabair P.W.7 had arranged for the money to be paid as ransom by the complainant; the cheque was got encashed by him through Allied Bank Limited 'ABL' and Muhammad Ramzan (P.W.8) bank officer (cashier) had enchased the cheque but unfortunately none of the said witnesses made any statement before the police office during the investigation and for the fist time had deposed before the trial Court. It was submitted that same was the position with regard to Ashir Shafiq P.W.2 who statedly had rented out the car to Muhammad Asif and Kashif in which allegedly Muhammad Yasir was abducted. Learned counsel submitted that Muhammad Sadiq (P.W.12) statedly had seen the deceased in the company of appellants Muhammad Asif, Kashif, Mukhtar and Muhammad Tahir on 13-6-2006 but he never bothered to inform the complainant till 17-6-2006 whereas the house of complainant was only few feet away from his house. Submitted that said conduct of the witness. Was sufficient to doubt his credibility and his evidence could not be reliedupon. Learned counsel further argued that the First Information Report i.e, Exh.P.M/1 is silent with regard to the appellants and during the trial while realizing their mistake in order to strengthen the case prosecution introduced Exh.PP 'Missing Report' lodged by the complainant at Police Station Gunjial District Khushab and the entry of Ruptt No,23 dated , 13-6-2006 (this report indicates .That Kashif appellant was present, at the time Muhammad Yasir deceased had left the house to see his friend). Learned counsel further argued that recovery of dead-body at the instance of Muhammad Asif appellant and thereafter pointing out of the place of occurrence by the remaining
---
## Page 6
accused persons and preparation of "Fard Nishandahi" could not be relied upon because the facts available on the record do indicate that all the accused together were taken to the pointed place. Learned counsel further pointed out that the evidence of recovery of ransom money at the instance of appellants was a classic example of fabrication because the dates on the stamps of the bank, affixed on the recovered bundles of currency notes do not tally with the story of the prosecution. Learned counsel argued that the case in hand is nothing but a pack of lies and the impugned judgment is liable to be set aside. ' Conversely learned Special Prosecutor while supporting the impugned judgment submitted that through legal and plausible evidence the charge stood established against appellants; the said evidence clearly indicates that appellants after abducting Muhammad Yasir for ransom had committed his murder. Learned counsel submitted that during the investigation ransom money was also recovered from the. Appellants and this factor renders ample corroboration to the other circumstances available on the record. Learned counsel further submitted that Muhammad Asif and Muhammad Kashif who are real brothers are also the real nephews of the complainant thus it was very easy for them to abduct Muhammad Yasir, they on 13-6-2006 along with other co- accused namely Muhammad Tahir and Mukhtar were seen by Muhammad Saddiq P.W. 12 while sitting in a car along with the abducutee; the said car was obtained by the said brothers on rent from Ashir Shafiq P.W.2 who while supporting the prosecution case had deposed before the trial Court as well as produced the receipts issued by him for renting out the car. Learned counsel further argued that, the recovery of dead-body at. The instance of Muhammad Asif and thereafter pointing out the place of occurrence by the remaining accused persons was a strong corroborative piece of evidence leaving no room to create doubt qua the involvement of appellants and in the present case learned trial Court while relying upon the evidence produced by the prosecution had rightly convicted and sentenced the appellants. 7. After minutely going through the record and hearing lengthy arguments of learned counsel for the parties, we have observed that it is a case of circumstantial evidence i.e, last seen, demand/payment of ransom, recovery of dead-body at the instance of Muhammad Asif and pointing out of the place of recovery of dead-body by other accused, recovery of incriminating articles at the instance of accused, identification parade and surrounding circumstances. ' The wheel of investigation started moving upon the information of the complainant Muhammad Sagheer P.W.Ll qua the abduction of his son when he lodged F.I.R at Police Station Gunjial on 16-6- 2006 at about 7-40 p.m. And reported about the non-availability of his son who statedly was missing since 13-6-2006. The facts narrated in the F.I.R reveal that prior to the registration of the case upon the basis of a report of missing person services of army dogs were hired and they took the Investigating Officer to the house of Muhammad Riaz son of Shabbir Ahmed and Shah Nawaz son of Haji Ahmed Nawaz. Thereafter the matter was inquired into but as it is apparent from the statement of Ghulam Hussain Inspector P.W.14 both the said persons were found not involved in the case. We have observed that Ruptt about missing person find mentioned in F.I.R was not forwarded to the trial Court along with challan and later on during the examination in chief of complainant (Muhammad Sahgeer P.W.Ll) application of the complainant Exh.PP about the nonavailability of his son and Report Gumshudgi at Police Station Gunjial, i.e, Report No,23 dated 13-6-2006 Exh.PP/1 were placed on the record. This report reveals that on the day of occurrence at about 3-00 p.m. Muhammad Kashif appellant was present in the house of complainant, he took Muhammad Yasir out of the house with him but returned later on. Thereafter Yasir after staying about 20/25 minutes in the house left to see his friend and thereafter never returned. This Ruptt i.e, No,23 dated 13-6- 2006 was never formally proved by the prosecution during the trial by producing another or the other evidence. We have also observed that signatures of the complainant on the statement made
---
## Page 7
by him while lodging F.I.R and on the application Exh.P.P. Do not resemble. In this backdrop of the matter we hold that it is not safe to rely upon Exh.PP and Exh.PP/1.; ' The important piece of prosecution case is the evidence of last seen. Statedly on 13-6-2006 at about 3-30 p.m. Muhammad Sadiq P.W.12 along with Muhammad Aslam (given up) was going to Lahore when he saw the deceased in the company of Muhammad Asif, Muhammad Kashif, Muhammad Tahir and Muhammad Mukhtar (appellants). Upon asking the witness was informed by the appellants that they were going to Toba Tek Singh on a pleasure trip. Thereafter he left for Lahore and came back on 16-6-2006 when his wife release of his son. Initially Rs,30,00,000 were demanded but ultimately it was settled informed him about the non-availability of Muhammad Yasir and on the next day he informed the complainant about the said facts. We have observed that this witness was the resident of Quaidabad District Khushab and accused were the residents of District Toba Tek Singh. It is not clear from the data available on the record as to how this witness knew the accused persons and had the frankness to ask them about their programme. The conduct of this witness, while asking the accused as to what they were doing near the Girls College seems to be unnatural. Statedly he was going to Lahore when he saw the deceased in the company of appellants but this witness never gave ahy explanation about his purpose to visit Lahore, nor the Investigating Officer collected any information about his visit at Lahore. Admittedly this witness had come back to his home on 16-6-2006 when his wife…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.