ࡱ> _ Pbjbj HVbb\* 80,vWVVVVVVV$jY\V9V0W777hV7V77 ChED$ ,qCVFW0vWC\/&\ EDED\D7VV?4FvW\ :  IN THE HIGH COURT OF SINDH AT KARACHI Present : MR. JUSTICE SAJJAD ALI SHAH, & MR. JUSTICE SALAHUDDIN PANHWAR Spl. Cr. A.T. Appeal No.14/2010 Appellant : Muhammad Ramzan & other, through Mr. Abdul Razzak, advocate. Respondent : The State, through Mr.Muntazir Mehdi, APG. Spl. Cr. A.T. Appeal No.15/2010 Appellant : Muhammad Sajid through Mr. Abdul Razzak and Syed Hassan Ali, advocates. Respondent : The State, through Mr. Muntazir Mehdi APG. Spl. Cr. A.T. Appeal No.17/2010 Appellant : Amjad Hussain, through Mr. Abdul Razzak, advocate. Respondent : The State, through Mr.Muntazir Mehdi, APG. Date of hearings : 3rd, 10th and 17th December 2013. Date of announcement : ____01.2014. J U D G M E N T SALAHUDDIN PANHWAR, J : Through instant appeal(s), appellants Muhammad Sajid, Muhammad Riaz, Muhammad Jaffar, Shaukat Ali, Muhammad Ramzan and Amjad Hussain have assailed judgment dated 31st March 2010; passed by Anti-Terrorism Judge-III at Karachi in Special Case No. 11/2007 (Re: The State vs. Muhammad Sajid & others), whereby appellants were convicted under Section 7(e) of ATA, 1997 read with Section 365-A/34 PPC; thereby they were sentenced to suffer imprisonment for life and each of the accused was also directed to pay fine of Rs.50,000/- to the father of kidnapped girl Mst. Esha and in case of failure, accused were to undergo penal servitude for six months. Further they were convicted under Section 7(i) of ATA, 1997 and sentenced to suffer R.I. five years. However, both the sentences were directed to run concurrently with benefit of Section 382(b) Cr.P.C. Succinctly, but relevant facts as set out in the prosecution case are that Complainant Faraz Masood lodged F.I.R; contending therein that he is resident of Bungalow No.D-82, Block-4, Gulshan-e-Iqbal, Karachi, his sister Esha daughter of Syed Akhtar Saeed, aged about 18 years on 24.02.2007; at morning time left house for University. At about 12.30 p.m. his mother received a telephone call of Mst. Esha on their PTCL No:4992662 from cell number: 0300-2509223, of his father but it was in use of his sister; caller demanded ransom amount of Rs.25 lacs but his mother replied in negative; caller asked her to talk with her daughter, thereafter his sister conversed with his mother and disclosed that they had kidnapped her. It is also asserted that complainant made efforts to get clue about the incident and reported the matter with PS Mubina Tow, alleging that the unknown culprits had kidnapped his sister for ransom. Record further reveals that SI Muhammad Luqman arrested accused Muhammad Sajid. After interrogation, on his pointation arrested accused Shoukat Ali, Muhammad Ramzan Muhammad Riaz and Muhammad Jaffer on the same day at University road and thereafter all the arrested accused persons led the police party at about 04.30 a.m. to house No.L-368 Sector H Taisor Town Surjani Town, Karachi where accused Amjad Hussain was available and he was arrested, in-further search of said house kidnapped girl Mst. Esha was recovered. Police had secured arms from the possession of all the accused and separate cases were registered against them under Arms ordinance. Thereafter investigation was entrusted to AVCC Karachi who sent-up all the accused persons for their trial. All the appellants/accused persons were inducted by the trial Court; wherein they pleaded not guilty and claimed for trial. To substantiate the charge, prosecution examined following eleven witnesses:- PW-1/Ex.11 SIP Muhammad Luqman.He produced statement u/s 154 CrPC as Ex.11(a), FIR as Ex.11(b), memo of arrest of accused Muhammad Sajid as Ex.11(c), memo of arrest of accused Muhammad Jaffer, Muhammad Riaz, Shoukat and Muhammad Ramzan as Ex.11(d) memo of arrest of accused Amjad Hussain as Ex.11(e), memo of recovery of arm from accused Amjad Hussain as Ex.11(f) and also produced four entries No.5 dated 24.02.2007 as Ex.11(g) entry No.10 dated 24.02.2007 as Ex.11(h) entry No.50 dated 25.02.2007 as Ex.11(i) and entry No.53 dated 25.02.2007 as Ex.11(j). PW-2 /Ex.13 Iqbal Ahmed. He produced memo of alleged car used in crime as Ex.13/A. PW-3/Ex.14 Mr. Maqbool Ahmed Memon. He being Judicial Magistrate XI Karachi East had conducted identification parade of accused Muhammad Riaz and Shoukat on 03.03.2007 through PW-Ajmalur Rehman from whom the car on rent was obtained by the accused. He produced memo of identification parade of accused Muhammad Riaz at Ex.14(a) and of accused Shoukat at Ex.14(b) alongwith two copies of CNIC of PW Ajmalur Rehman. He also produced Judicial Confessions recorded by him. Judicial Confession of accused Muhammad Jaffar as Ex.14(c), accused Amjad Hussain as Ex.14(d), accused Muhammad Ramzan as Ex.14 , accused Muhammad Sajjid as Ex.14(f), accused Shoukat at Ex.14(g) and accused Muhammad Riaz as Ex.14(h). PW-4/Ex.16 Ajmalur Rehman. He produced car Hire contract signed by accused Shoukat at Ex.16/A, his CNIC Ex.16(B and memo of securing of car NO.AKW-848, (SUZUKI-ALTO) white colour as Ex.16/C.. PW-5/Ex.17 Suresh (Mashir). PW-06/Ex.18 SIP Ch. Manzoor Ahmed. He being posted in AVCC acted as mashir to the memo of the car AKW-848 Suzuki Alto white colour produced by PW Ajmalur at AVCC. He also acted as mashir to memo of securing of car hire contract signed by accused Shoukat Ali with his CNIC. PW-07/Ex.19. Faraz Masood. (Complainant). He has produced the memo of inspection of the place from where she was abducted as Ex.19/A. PW-08/Ex.20. Mst. Alia Akhter. PW-09/Ex.21. Syed Akhtr Saeed. PW-10/Ex.22. Esha Akhter. (Abductee). PW-11/Ex.23. Inspector Bashir Ahmed (I.O). Statements under section 342 Cr.P.C. of the appellants were recorded, wherein they pleaded their innocence, however they did not lead defence evidence nor record their statements on oath under Section 340 Cr.P.C. . Learned counsel for appellants, except appellant Muhammad Sajid has, inter-alia, contended that PW-1 SIP Muhammad Luqman, who lodged FIR, conducted the entire investigation but under the provisions of ATA, SIP cannot investigate the case; according to the prosecution appellant Muhammad Sajid made disclosure regarding the incident but no such statement was placed before the Court and even under ATA law only DSP is competent to record the statement, therefore, all further proceedings are illegal and not reliable; though place of recovery was situated in thickly populated area but no mandatory compliance under Section 103 Cr.P.C. was observed.; ownership of house wherefrom alleged abductee was recovered, was not proved; it is claimed by prosecution that ransom was demanded through mobile of the abductee but it is strange that not a single mobile was recovered from any accused or abductee; abductee while recording her statement before the Court did not identify the appellants, on the contrary she exonerated the appellant Muhammad Sajid and further contended that she is deposing at the instance of police. Further, it is contended that there is difference in signature of Shoukat on document pertaining to the rent-a-car and statement under Section 342 Cr.P.C.; identification parade does not disclose the name and parentage of dummies, though according to criminal circulars learned Magistrate is bound to do so; all the confessional statements were recorded on the same day, such statements are stereotypes, delayed about ten days, therefore, such statements have no evidentiary value. In support of his contention, he has relied upon cases of PERVAIZ MASIHversusState [2005 P.Cr.L.J- 1232], Mst. ASKAR JAN versusMUHAMMAD DAUD [2010 SCMR-1604], DHANI BAKHSHversusState [2006 P.Cr.L.J. 1671], ABDUL HAMEEDversusState [2012 P.Cr.L.J. 653], MUHAMMAD SHAHversusState [2010 SCMR 1009], SABIR ALIversusState [ 2011 SCMR 629], SHAFQAT MEHMOODversusState [2011 SCMR 537], MUHAMMAD PERVEZ and othersversusState [ 2007 SCMR 670], GHULAM QADIRversusState [2008 SCMR 1221], MUHAMMAD AKRAMversusState [2009 SCMR 230], STATE through Advocate-General, SindhversusMOOSO [2006 SCMR 1257], ABDUL SATTARversusState [2005 MLD 1911] and Dr. KHALID MOINversusState [2006 P.Cr.L.J. 639]. Learned counsel for the appellant Muhammad Sajid argued that it is a matter of record that investigation of this case was handed over to the AVCC on the same day, inspite of that all the investigation was carried out by SIP Muhammad Luqman, which shows that at the instance of complainant this police officer crossed his limits and implicated the appellants in false case; it is strange that when SIP Muhammad Luqman was on a patrolling in the morning at about 8:30 a.m., he received a message that one girl has been kidnapped by some unknown persons, he rushed towards there, thereafter he directly reached at the house of victim party but how he came to know about the name, parentage and address of the abductee, this aspect makes the case of prosecution totally dubious; according to SIP Muhammad Luqman after arrest of accused Muhammad Sajid he contacted with his other accomplices but record reveals that no contact was made by accused Muhammad Sajid rather such phone was made by SIP Muhammad Luqman himself; though abductee was recovered on the next day i.e. 25.02.2007 and statements of witnesses were recorded on 27.02.2007 but not a single witness disclosed in his statement that abductee informed them about the manner of incident and name of any assailant. In support of his contention he has relied upon cases of ABDUL LATIFversusADDITIONAL DISTRICT JUDGE, KHANEWAL [2008 SCMR 366]. Conversely, the learned APG, while refuting the above contentions raised by appellants counsel, argued that on the pointation of accused Muhammad Sajid, whole case was detected and recovery of abductee alongwith weapons was effected thus such information and recovery is admissible under Article 40 of Qanoon-e-Shahadat Ordinance 1984; impugned judgment is in accordance with law and cannot be interfered at this stage. He relied upon cases of NAZIR SHEHZAD versusState [2009 SCMR 1440], MIR MUHAMMADversusSTATE [1995 SCMR 610], FAZAL REHMANversusTHE STATE [2004 PLD SC. 250], ELAHI BAKHSHversusState [2005 SCMR 810] and ANWAR SHAMIMversusState [2010 SCMR 1791]. Heard the learned counsel for the respective parties and examined the case law cited at the Bar. The perusal of the record shows that beside abductee, PW-2 Iqbal Ahmed, is the only eye-witness of the alleged incident, who is the first informant of the incident, therefore, evidence of this witness has great significance and requires to be examined first. The relevant portion of examination in chief is reproduced hereunder:- PW-2 Iqbal Ahmed On 24.2.2007 I went to Yaqeen School in order to leave my children in the school. At the distance of 500/600 yards from the school I heard cries of one girl and after of hearing of cries I saw one person was forcibly putting the girl in the car, I therefore, followed the said car, but when I reached at Gulshan Chowrangi, the car disappeared. I however after noting the number of car as it was AKW848 Suzuki Alto white coloured informed the above incident on 15 through my cell phone Number 0300-8292620. On 02.3.2007 I received telephone from ASI Bashir Ahmed where in he directed me to be present in AVCC office on 02.3.2007 for statement and identification of car. I accordingly reached in AVCC office at 5:00 p.m where I saw 8/9 cars parked together and from those cars I identified the car in which girl was forcibly put. The said car was also having number AKW-848. The Mashirnama was also prepared in my presence as well as in presence of the Mashirs Ch. Manzoor Ahmed and HC Iqrar Ahmed. I also signed the Mashirnama which I produce at Ex.13/A. It is same, correct and bears my signature. Thereafter, my 161 Cr.PC statement was recorded. The car available outside the court is same.( p 197) The perusal of examination-in-chief of above witness it becomes quite obvious that: he saw only one person forcibly putting the girl in car; he informed the incident to 15 through his mobile phone Number 0300-8292620. he never claimed to have identified the accused persons or the girl; having informed to 15 on date of incident he never came in contact with police till 02.3.2007; he only identified the alleged car, which was used in instant crime. Now lets see what PW-1 SIP Muhammad Luqman, who received such information, states. For a comparative analysis, the relevant portion of examination-in-chief of PW-1 SIP Muhammad Luqman is reproduced hereunder:- on 24.2.2007 I was posted as Duty Officer at PS Mubina Town. My duty was from 08.00 a.m to 8.00 pm. On that day at 8.15 a.m ASI Saleemuddin sent a telephonic message from PS Gulshan-e-Iqbal, that he received message from Gulshan Base that one person namely Iqbal whose mobile telephone No.0300-8292620 sent message to him that four persons took forcibly one girl in their car bearing No.AKW-848 and they were going towards Gulshan Chowrangi. The said Iqbal also told him that above incident took place near Yaqeen School Block-4 Gulshan-e-Iqbal. The above portion of the evidence of the PW-1 SIP Muhammad Luqman does not support the version of the PW-2 Iqbal Ahmed regarding number of accused persons. Be as it may, what the joint reading of the above portions makes one thing quite clear and obvious that till such time the prosecution possessed the knowledge of following facts only: abduction of an unknown girl in a car from Yaqeen School by unknown accused persons; Incident was allegedly seen by PW-2 Iqbal alone. (underlining is supplied for emphasis) However, the further examination-in-chief of PW-1 SIP Muhammad Luqman is quite strange which is reproduced hereunder:- I while handing over the charge to WHO Zahid also went towards place of incident vide roznamcha entry No.5. I also made inquiry from nearby vicinity and on inquiry I came to know through brother of victim girl namely Faraz Masood s/o Syed Akhter Saeed at Bungalow No.D-82 who told me that his sister namely Eisha d/o Syed Akhter Saeed was kidnapped by unknown persons. I therefore recorded his 154 Cr.PC statement at above mentioned place. Before reaching at bungalow No.D-82 I did not receive any knowledge about the place of incident (underlining is provided for emphasis) It is quite strange rather unbelievable that how the PW-1 SIP Muhammad Luqman straight away reached to the house of the alleged abductee and recorded statement of Faraz Masood (brother of abductee) on 24.02.2007 at 1245 hours (Ex.11(a). The PW-1 SIP Muhammad Luqman has attempted to place explanation by saying that :- "I reached at the house of complainant after making inquiries and knocking the doors of Mohalla people" but this stands belies by the complainant(brother of abductee) and other witnesses ( mother and father of abductee), who have stated in their evidences that: PW-complainant Faraz Masood "On 24th February, 2007 I was at my house. At about 02.00 p.m police inspector Luqman came at our residence whom the whole incident was appraised. On 26.02.2007 at about 08.00 a.m my sister Mst. Esha came at home alongwith a team of police. PW-8 Mst. Alia Akhter " On 24.02.2007 I was at my house it was in the morning time. My daughter Esha Akher had gone to NED University Karachi It was at about 12.- 12.30 noon I received a call on my PTCL number and caller informed me that my daughter Mst. Esha had been kidnapped and demanded Rs.25 lacs as ransom. At about 12.45 noon I contacted my husband on telephone and informed him about the incident who also returned home.. On 24.02.2007 my son Faraz had lodged the report at PS Mubina Town, Karachi. In her cross examination she stated that "police had not come at our residence on 24.02.2007. PW-9 Syed Akhter Saeed. "On 24.02.2007 I was in my office when at about 12.45 noon I received phone call from my wife and she informed me about the incident, I immediately came back at my residence. ..On the next day i.e 25.02.2007 my daughter returned to house alongwith police at about 8.00 a.m. .My son Faraz had lodged the report at PS on 24.02.2007 with PS Mobina Town. In his cross-examination he stated that "It is incorrect to suggest that on 24.02.2007 police had come at our residence and informed that my daughter Esha had been kidnapped from Gulshan Chowrangi". The evidence of the above P.Ws makes it very clear that they did not inform any one about abduction till lodgment of FIR. Further, it is also a matter of record that abductee was only seen by PW-2 Iqbal Ahmed who never claimed to have identified the abductee girl with reference to her parentage or address. 12. In view of what has been discussed above, the manner in which PW-1 SIP Muhammad Luqman claimed to have reached to house of abductee and lodged the FIR is neither natural nor confidence inspiring. Here we would like to add here that prosecution story, being foundation, on which edifice of the prosecution case is raised, occupies a pivotal position in a case, it should, therefore, stand to reason and must be natural, convincing and free from any inherent improbability. This is a cardinal principle of law that it is neither safe to believe a prosecution story which does not meet said requirements nor a prosecution case based on improbable prosecution story could sustain convictionReference if any can be made to the case of Mst. SHAMIMversusTHE STATE (2003 SCMR 1466). 13. Before stepping further, it would be very important to observe that the instant case appears to have been revolving around PW-1 SI Muhammad Luqman who not only reached to the house of an unknown abductee within few hours but arrested the unknown culprits and recovered the abductee on following day although he had handed over the investigation after recording the FIR. Here, it is important to refer to the provision of subsection(1) of Section 156 of the Code of Criminal Procedure which deals with the power of officer-in-charge of a police station to investigate without an order of Magistrate. It is obvious from the said provision that only an officer Incharge of the police station having jurisdiction over the local area within the limits of a police station can investigate a cognizable offence or any other person covered by the definition of the officer Incharge of a police station given in clause (p) of section of the Code, which, in the absence of officer Incharge of a police station, includes officer Incharge present at the station house who is next to the officer Incharge of the police station and is above the rank of the constable or when the Provincial Government so directs, any other police officer so present. (State Vs Bashir, reported as 1997 PLD SC 408). We shall come to such conduct of the PW-1 SI Muhammad Luqman later. 14. We are quite conscious of the fact that it would not bring the efforts of police official to nullity if he, being recorder of the FIR, also conducts investigation but such departure should be with some reasoning. To find out some reasoning and logic which compelled PW-2 SI Muhammad Luqman to step into duties of Investigating officer we have found the following from evidence of this PW. Ex.11(h) Roznamcha entry No.10 at 1300 hours dt:24.2.07 ".Therefore, on this report of complainant after returning at police station registered case crime No.60/07 offence u/s 365/A PPC, and investigation of case is being dispatched to Incharge AVCC. The higher officers were informed through phone" In his cross examination:" It is correct that on 24.02.2007 after completing my duty from 8:00 a.m to 8:00 p.m. I returned to my home. "It is correct that entry No.10 was entered by me at 1.00 a.m. It is correct that I have made mention in the entry No.10 that the investigation of this case being handed over to AVCC" "I am operating operation section. . I however say that investigation section is also situated in same premises" On this PW Mashir Surersh also stated that: "It is a fact that investigation branch of PS Mobina Town is situated in the same building but who was incharge of investigation branch whose name I do not known. Our police party including SIP Muhammad Luqman belonged to operation branch of PS Mobina Town" In view of above the conduct of PW-1 SI Muhammad Luqman does not appear to be natural to dress himself up as Investigating officer particularly when he (PW-1) admitted in his cross examination that "During the entire period I had never informed to my investigation incharge about the situation of present case". 15. However, at this juncture, it would be germane to examine the evidence of PW.1 SI Muhammad Luqman in comparison with evidence of other witnesses with regard to the manner of unearthing the crime from the moment he left police station for search of abductee. For that relevant portion (s) are reproduced hereunder:- "I therefore alongwith subordinate staff..left the PS and when I reached Block-4 I received information that accused Sajjid involved in the present incident is present at footpath situated near Regency Plaza Block-4, Gulshan-e-Iqbal duly armed" Although it is a matter of record that till such time house inmates of the alleged abductee or any other source had not shown any suspicion about involvement of accused Sajid in the incident. "After receiving such spy information I therefore arrested him in presence of mashirs PC Jawed Khan and PC Suresh. I also made interrogation from said Sajjid in respect of crime No.60/2007 and during the course of interrogation accused Sajid disclosed that he alongwith. Accused Sajid further disclosed me that other accused left him in block-4 in order to watch the movements of inmates of abductees" The accused Sajid is resident of Block-4 Gulshan-e-Iqbal, Karachi and per statement of abductee "Among the 6 accused who were present in the court I knew accused Sajid prior to 24.02.2007 by name since about one year. My parents and my brother Faraz also knew accused Sajid". Thus leaving him to watch movements of inmates was/is not logical else he should have been found near house of abductee whom he knew well. However, PW-5 PC /Mashir Suresh stated that "On 26.2.2007 at 1240 hours SIP Muhammad Luqman received message that some person was standing near Regency Plaza Block-4A, Gulshan-e-Iqbal in suspicion condition" meaning thereby that it was an information about presence of some suspect and not suspect of this crime. PW SI Muhammad Luqman continues: Examination-in-chief. "Thereafter, I brought the accused Sajid at one PC where accused Sajid made call on the mobile number of kidnappee Esha where accused Sajid at my directions talked with his companions/ accused that he had settled the amount of ransom with the parents of girl which should be taken by all of you from Mosmiat Chowk near Sharaton Square University Road" Cross Examination "The PCO from which accused Sajid talked with his companion on telephone is situated near Margala Heights Scouts ColonyIt is correct that Margala Heights is also very near to our PS as same are at the distance of five hundred yards" "PCO was in fact closed at that time but I called the owner of the PCO from his house who opened his PCO and allowed us to talk with them" It is correct to say that neither accused Sajid made telephone from PCO nor accused Riaz and Jaffar reached at Mosmiat chowk and nothing has been recovered nor any pointation was made in respect of house where abductee was made hostage to Riaz and Jaffer. From the above the PW SI Muhammad Luqman specified that it was accused Sajid who talked with other accused persons from PCO, which was got opened, and was situated near Margala Heights but the PW-5 Mashir Suresh gave completely different picture while saying that: Examination in Chief: "Thereafter accused Sajid led the police party to Bakhsh Ali Goth from where he made a call again says that call was made by SIP Luqman from PCO and called some persons at Mosmiyat Chowk on Sheraton Square on University road Cross examination: "Bakhsh Ali Goth is at the distance of less than half a mile from Margalla Heights" SIP Luqman had made a call from PCO which was open at that time" "SIP Luqman had made call from PCO while other police personnels were standing outside the PCO" 16. This casts serious doubt about manner of arrest of accused Sajid, places of the subsequent events, including arrest of other accused persons. Besides this, it is quite illogical, unbelievable and even against the human behaviour and experience that the other accused persons came at the Mosmiyat Chowk on the call of the SI Muhammad Luqman particularly it was not the call from accused Sajid who was supposed to have made such call. Even otherwise, it is a matter of record that no mobile phone has ever been recovered from any of the accused persons as is evident from the admission of the PW- Suresh that "No mobile phone was recovered from any accused nor from abductee nor from the house from where the girl was recovered. (183) This brings serious clouds over prosecution story which has been resting on the availability of phone with accused persons which has been referred rather insisted by prosecution in strengthening its case. Further, PW-1 SI Muhammad Luqman continues: "I therefore alongwith accused of crime went to Taiser Town . The house encircling with the help of police thereafter accused Ramzan made a call to accused Amjad and so also he knocked the door 17. It is a matter of record that no mobile phone or phone was recovered / found at such place of recovery, therefore, how could accused Ramzan phoned to accused Amjad is a question which finds no answer or least an explanation from whole case of prosecution. The place of recovery is not falling within beat of the police station Mobina Town yet the PW SI Muhammad Luqman did not make any attempt to take assistance of nearest police station nor made any such entry even after recovery of the abductee as he admitted in cross-examination that "The place where girl abductee was recovered is a thickly populated area. I have never informed to nearest PS" . Such conduct of the SI Muhammad Luqman is not in line with that of procedure and police rules. Here the following admission of the SI Muhammad Luqman is material which reads as : "It is correct that whenever we are going at the directions of high officers in search of any accused and after arrest of said person we are always informing the said arrest to the high officers. Till 5.45 a.m I have neither informed nor made any entry in respect of progress in the shape of arrest and recovery of victim girl to my SHO. It is correct that we all were holding mobile telephones. My mobile was also equipped with wireless set. However, without prejudice to above illogical and unbelievable manner of coming of an un-seen into light within short time (without reference to any source); subsequent arrest of all accused persons with reference to phone (which was never recovered/found) and recovery of girl, now, we would like to refer memo (s) of arrest of accused persons, and recovery of girl with reference to clear admission of the SI Muhammad Luqman to the effect that : PW-1 SI Muhammad Luqman On 25.02.2007 at about 12.10 (12.40) hours I was directed by the SHO and Senior Officers that I should make search of kidnappers and kidnappee. (He admitted in examination-in-chief that my duty was from 8.00 a.m to 8.00 p.m)  Arrest of accused Sajid Vide Exh.11(c) which shows date & time of arrest as 25.02.2007 at 0040 hours. Arrest of four other four accused Vide Exh.11(e) which shows date & time of arrest as 25.02.2007 at 0430hours. Arrest and recovery of girl Vide Exh.11(f) which shows the date and time of arrest of accused Amjad and recovery of girl as 25.02.2007 at 0515 hours. These patently show that even before leaving the police station on 25.02.2007 at 1210 hours (1240 hours) whole process of arrest of accused Sajid till recovery of abductee stood completed.  18. Let's examine this from another aspect with reference to evidence of PW-5 PC Suresh who stated in his examination-in-chief as : "On 25.02.2007 I was posted as PC at PS Mubina Town. My duty hours on that day were from 08.00 a.m to 8.00 p.m The above makes it clear that duty hours of the PW SI Muhammad Luqman were from 08.00 a.m to 8.00 p.m. The position being so makes whole the proceedings i.e Mashirnamas of arrest of accused Sajid till recovery of abductee under serious doubts and even the authenticity whereof stands doubtful for simple reason that these all (per Exh.11(c ) to 11(f) happened on 25.02.2007 between 0040 hours to 0515 hours though as per statement of PWs SI Muhammad Luqman himself and that of PC Suresh it stood clear that duty hours of these police official started on 25.02.2007 after 8.00 a.m. 19. Here we would like to refer the relevant portion of the evidence of PW- Syed Masood Hussain (father of the alleged abductee) and that of PW Mst. Alia Akhter which are as follows: PW-8 Mst. Alia Akhter (mother of abductee) "It is incorrect to suggest that my daughter Esha returned home with police on 26.02.2007" Pw-9 Syed Akhter Saeed (father of abductee) "On the next day i.e 25.02.2007 my daughter returned to house alongwith police at about 8.00 a.m" From above it became clear that alleged abductee had returned to her house on very next day of her alleged abduction i.e 25.02.2007 at 8.00 a.m although the police party (under command of PW SI Muhammad Luqman) had resumed their duties on 25.02.2007 at 8.00 a.m and later were directed to go in search of abductee and accused which stands further clear from the examination-in-chief of PW-5 PC Suresh. The relevant portion thereof is reproduced hereunder:- "On 26.02.2007 at about 1240 hours SIP Muhammad Luqman received message that some person was standing near Regency Plaza Block-4A, Gulshan-e-Iqbal in suspicious condition. On such .and he told his name as Muhammad Sajid" 20. The above undeniable factual position causes such a dent towards whole proceedings, claimed by prosecution, from inception till recovery of abductee which are neither repairable nor could be ignored by terming them same as irregularity. Thus, it is mainfest that role and manner of the PW-1 SI Muhammad Luqman in dressing up the role of Investigating Officer is against the Police Rules and Standing Order (Police Order). It becomes quite clear that it was not free from doubts rather has brought clouds over very story of abduction, hence root of the case became so shaky thus it cannot hold the conviction. We also find that the investigation has not been conducted honestly, rather it stands proved that false improvements have been made and evidence was arranged so as to strengthen the prosecution which cannot provide a base to hold a conviction. Here, it would be conducive to refer the dicta laid down by Honble Supreme Court in case of State Vs Bashir & others PLD 1997 SC 408, wherein it is held that:- It could hardly be expected that a police officer, who is heading a raid party and is a witness, also becomes the complainant and loges an FIR against the accused, and then becoming an Investigating Officer of the same case, will comply with the aforesaid Police Rule. In the circumstances, the practice of the seizing officer or the head of a police party who is also a witness to the crime becoming or being nominated as an Investigating Officer of the same case should be avoided and if any other competent officer is available in the police station, he may be nominated as the Investigating Officer rather than the head of the Police Party. As observed, Investigating Officer is an important witness for the defence also and in case the head of the police party also becomes the Investigating Officer he may not be able to discharge his duties as required of him under the Police Rules. In case of Yasin v. State (2008 SCMR 336) it is held that it is also an established principle of criminal administration of justice that "conviction cannot be based on any other type of evidence, howsoever, convincing it may be, unless direct or substantive evidence is available. Even, guilt of an accused cannot be based merely on high probabilities that may be inferred from evidence in a particular case. In case of Ibrar Hussain vs. the State (2007 SCMR 605) it is observed as under:- 9. It is a settled law that in a criminal case when two explanations are equally possible in a given situation the one in favour of the accused should normally be accepted meaning thereby benefit of doubt is always given to the accused but in the present case as mentioned above benefit of doubt was given to the prosecution. See Tariq Pervez's case 1995 SCMR 1345 and Ghulam Ali's case PLD 1986 SC 741.21. WITHOUT PREJUDICE TO ABOVE, it would be significant to proceed further and examine the evidence of alleged abductee Mst. Esha, being conscious of the fact that cases of abduction revolves round the abductee hence evidence of the abductee is of much importance. The examination-in-chief of such alleged abductee is reproduced hereunder:- "On 24.02.2007 it was about 8.30 a.m I was gong to NED University for my classes. When I reached near Yaqeen Model School near Abul Hassan Ispani Road, a white Alto Car intercepted and came near me in which two persons were sitting, one was on driving seat and two persons were coming by foot, who were following me. One of the person who were coming by foot showed me a gun and the other person opened the door and they forced me to enter in the car, I raised cries, but because of gun I kept quiet. The persons who were coming by foot they had also entered in the car and I was made to sit in between the two. After about 1 hour driver I was taken to a katcha House having two rooms and asked me to sit on a cot (PALANG). At about 12.30 Noon the culprits took Mobile from, which was of my father and they called on PTCL number of my residence and I was also allowed to talk with my mother. The culprits demanded Rs.25,00,000/- as ransom for my release. For several times the culprits talked with my mother and at about 4.30 a.m on 25.2.2007 a culprit who was on my guard when police also arrived alongwith other culprits and arrested the person who was available with me and thereafter I was returned to my house and I reached at my house at about 8.00/8.30 a.m" (underlining is provided for emphasis) 22. The above examination-in-chief of abductee shows that she, no doubt, has stuck with allegation of her abduction but no where specified any role to any of the accused persons nor even alleged that they were these accused but at all such places she used word "person or culprit" . Mere sticking with allegation of abduction is not sufficient to prove the guilt, therefore, it would be material that what she (alleged abductee) stated about present accused / appellants. The relevant portion regarding identification of accused persons and their roles. It would be relevant to reproduce the relevant portion of her examination-in-chief, which is as follows: "Among the 6 accused who were present in the court I identify accused Sajid who resided in front of our home and he was the master mind of my case. He was not among the persons who are involved in my kidnapping" In cross-examination: I had not stated in my statement to the police that I knew accused Sajid that he was master mind of this case From the above it became clear that alleged abductee neither identified the accused persons nor specified any role to the accused persons. Since it is well established principle of law that the substantive evidence is the statement of the eye-witnesses and the identification done during the deposition at the trial. The alleged abductee has not identified the other accused persons but only claimed to have identified the accused Sajid but exonerated him by saying that "He was not among the persons who are involved in my kidnapping". Even saying so she did not point her finger at other accused persons. However, regarding accused Sajid, it would be relevant to refer cross-examination of alleged abductee where she categorically admitted that "I am deposing at the instance of I.O Bashir Ahmed about accused Sajid". 23. The above evidence of the alleged abductee is not direct against the appellant (s) therefore, was never sufficient for holding the conviction against the appellant (s). 24. Here, it would be germane to examine the alleged confessional statements of appellants. It is settled principle of law that a true confession is always a call of conscious which compels one (accused) to confess despite knowing the consequence of his / her confession. In the instant case it is surprising that conscious of all six accused persons clouted at the same time and they made confession (s) on one and same date. Here, it is worth to refer to relevant portion of the PW-3 Mr. Abdul Hafeez Memon, Civil Judge & JM which is : "It is correct that before 6th March, I.O did not move any application for recording the confessional statement of the accused. The application was moved by I.O on 06th March at 9.00. At that time the accused were produced and I was in the Court" "All accused were brought jointly". "It is correct that reply of question No.1 to 7 mentioned are same and without changing the commas on Ex.14/E to 14/I. The question as mentioned in the memo of confession were asked from accused in individual capacity" "It is correct that I have not made mention in all confession memo from Ex.14/C to 14/F that I had also given 2nd warning" It is worth to make it clear here that the accused persons were arrested on 25.02.2007 while they all were produced for recording their confessional statements on a single day i.e 06th March, 2007 meaning thereby that after a delay of about 10 days. In such eventuality delay was required to have been explained by police or least inquired by Magistrate before proceeding further but no such measure was resorted to. It is also important that since a true confession can alone bring a conviction (if it continues so) then Magistrate should not only explain his status, value of confession and punishment likely to fall and should give proper time for relaxation not as mere formalities but as requirement of Safe Criminal Administration of Justice, but in the instant case the manner in which learned Magistrate recorded answers to Question No.1 to 7 of six persons is sufficient to show that it was taken as mere formalities. Since it is the call of conscious therefore, answers should be in the very words and language of the accused (confessor) which is also missing. The confessional statement of all accused persons are not in line with each other because appellant Amjad stated that they kept abductee in Liyari and were arrested on very evening of the day of abduction; while all other appellants stated that first phone call was made at 2.00 p.m with demand of Rs.500,000/- as ransom while prosecution claimed call at 12.00/12.30 noon with ransom demand of Rs.25,00,000/- hence such retracted confession statement do not fit in the prosecution story. Even otherwise, the value of retracted confession is only that of a corroborative piece of evidence and since it is a well settled principle of law that a retracted confession statement in absence of direct, confidence inspiring and natural evidence is not solely sufficient to hold the conviction particularly where in a case of abduction the abductee does not involve the accused (alleged confessor). 25. Regarding the identification of the accused Muhammad Riaz and Shoukat by PW Ajmal Rehman, it would suffice to say that this witness is not the witness of incident, but his evidence is with regard to the identification of two accused (as mentioned), who got rent-a- car from this witness. It is worth to refer the examination in chief of this witness, wherein he has deposed that Acuused Riaz and Shoukat were not known to me personally..Accused Shoukat paid me Rs 500/- as advance being rent a car. The rent was fixed at Rs 1000/-per day. The car was handed over on 23.02.2007 at 4.30 p.m. on next day i.e 24.02.2007 Shoukat returned car at 10.30 a.m. and paid remaining Rs 500( p 168, 169) whereas prosecution case is that on 24.2.2007 at 8.30 am accused persons abducted girl Esha; brought her in a house at a considerable distance i.e Taisar town which is unbelievable for reason that the accused persons, who committed such a henious crime, in a car in mid city, and thereafter after hiding the kidnappee at some distance returned the said car, within one and half hour, without any fear of arrest and identity. This aspect is apparently not believable. Even otherwise, this piece of evidence, at the best, can be be used as corroborative piece of evidence but when direct evidence is not natural and confidence inspiring and prosecution has failed to bring the case beyond reasonable shadow of doubt against the accused, thus this will not improve the case of prosecution. 26. As regard the recovery of pistols from possession of the appellants, it would suffice that only abductee has alleged that at time of her abduction the culprits were armed with pistols but she has not identified the accused / appellants therefore, such aspect of the evidence is also not helpful for prosecution. The principle of appreciation of evidence is that where ocular testimony fails or is found suffering from material discrepancies so has lost its intrinsic value then same cannot be corroborated by any other corroborative evidence. Reference can be made to the case of Muhammad Asgar alias Nannah and others V. The State, reported in 2010 SCMR 1706, wherein it is held as under:- 18. After scrutinizing the evidence available on record, we are ofthe considered view that the ocular evidence is insufficient to convict theappellants. We also find that the investigation has not been conducted honestly, false improvements have been made in order to involve the accused and with the particular object the evidence was manipulated so as to strengthen the prosecution case. Therefore, we are not convinced with the evidence of recovery of weapons from the possession of the appellants. 27. It would be pertinent to mention here that conviction cannot be based on probabilities or suspicions. The allegation / charge shall remain an accusation / allegation unless it is proved as guilt therefore, it does not matter who the complainant is but Criminal Administration of Justice only approves conviction where charge is proved beyond shadow of doubt against the one (accused) who enjoys presumption of innocence. Phrase "presumption of innocence" is the golden thread while "proof beyond a reasonable doubt" is silver one and these two threads are forever intertwined in the fabric of criminal justice. The allegation of abduction of a girl by blood-relation can, at the best, be taken as circumstance but it shall not, in any way, diminish the requirement of proof beyond reasonable doubt for holding conviction. 28. In view of above discussion we are inclined to accept the above appeals. 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