2019 P Cr. L J 1033
[Balochistan]
Before Naeem Akhtar Afghan and Zaheer -ud-Din Kakar, JJ
AMEER MUHAMMAD ---Appellant
Versus
The STATE ---Respondent
Criminal Appeal No. 229 of 2018, decided on 30th October, 2018.
(a) Penal Code (XLV of 1860) ---
----Ss. 365 -A & 34 ---Kidnapping for ransom, common intention ---Appreciation of evidence -
--Benefit of doubt ---Accused was charged for kidnapping the brother of complainant for
ransom ---Record showed that alleged abductee had stated in his statement that in the
afternoon of 30.6.2015 he left his station in a taxi; after going a little ahead, the driver and
rest of the three passengers armed with pistols and Kalashnikov suddenly got over him and
blind folded him on board the taxi and chained him into a room of a house, where another
person was brought and chained with him ---Accused had demanded ransom of Rs.
30,00,000/ - for his release and subsequently, he was released on 10.7.015 in lieu of payment
of Rs. 13,00,000/ - paid by his father as a ransom money ---Prosecution had failed to produce
the father of abductee to corroborate his statement ---Statement of abductee without
supporting evidence would be excluded from consideration, in circumstances ---Accused after
13th day of his arrest, was put to a test of identi fication parade in presence of Judicial
Magistrate ---Accused was identified by abductee, but without any reference to the role
allegedly played by him during the occurrence, due to which the identification parade had
lost its value ---Circumstances establis hed that prosecution had failed to prove its case against
the accused beyond any shadow of doubt ---Appeal was allowed and accused was acquitted,
in circumstances, by setting aside conviction and sentence recorded by the Trial Court.
Sabir Ali alias Fauji v. The State 2011 SCMR 563 and Muhammad Fayyaz v. The
State 2012 SCMR 522 rel.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Art. 129(g) ---Withholding of material evidence in criminal case ---Effect ---If a best piece
of evidence available with a party was withh eld by it, the presumption as enumerated under
Art. 129(g) of Qanun -e-Shahadat, 1984 would come into play ---Presumption would
ultimately be drawn against the prosecution that the said witness(s) was/were not supporting
the concerned party.
(c) Penal Code (XLV of 1860) ---
----Ss. 365 -A & 34 ---Criminal Procedure Code (V of 1898), S. 164 ---Kidnapping for ransom,
common intention ---Appreciation of evidence ---Confessional statement ---Scope ---
Confessional statement of accused recorded under S. 164, Cr.P.C. by th e Judicial Magistrate
showed that the alleged occurrence took place on 30.6.2015 and the accused was arrested on
16.7.2015 ---Accused was produced before Judicial Magistrate on 30.7.2015 after 14th day of
his arrest for recording his statement under S. 164, Cr.P.C. but such delay had not been
explained ---Said unexplained delay in recording of the confessional statement of the accused
had lost its evidentiary value.
Khan Muhammad and another v. The State 1981 SCMR 597; Shoukat Saeed v. the
State PLD 1978 Qu etta 1 and Khalid Javed and another v. The State 2003 SCMR 1419 rel.
(d) Criminal Procedure Code (V of 1898) ---
----S. 164 ---Delay in recording confessional statement of accused ---Effect ---Delay of over
24-hours would normally be fatal to the acceptance of judicial confession.
Naqeebullah's case PLD 1978 SC 21 rel.
(e) Qanun -e-Shahadat (10 of 1984) ---
----Art. 22 ---Delay in conducting identification parade ---Effect ---Delayed identification test,
possibility of the witness having seen the accused prior to the identification test conducted by
the Judicial Magistrate could not be ruled out.
Nazeer Ahmed v. Muhammad Iqbal and another 2011 SCMR 527 rel.
Aminullah Kakar for Appellant.
Abdul Mateen, Deputy Prosecutor -General for the State.
Date of hearing: 18th October, 2018.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---This criminal appeal is directed against the
judgment dated 17.07.2018 (the impugned judgment), passed by the Judge, Anti -Terrorism
Court, Pishin at Pishin (the trial court), whereby the appellant Ameer Muhammad son of
Sirtayaf was convicted and sentenced under section 7(1)(e) of the A.T.A., 1997 to life,
besides forfeiture of his property under section 7(2) of the A.T.A., 1997.
2. As per contents of FIR No.56 or 2015, registered with Levies Thana, Chaman, under
sections 365 -A, 34, P.P.C., that on 30th June, 2015, brother of complainant namely Alla -ud-
Din was kidnapped on gunpoint by some unknown accused, when he was on his way to
Chaman border. On the following night of 30.6.2015, the accused called the complainant on
his cell No.0311 -8040006 from the cell No.0321 -8040006 of the of abductee and demand ed
payment of ransom amount of Rs.30,00,000/ - in lieu of the release of abductee. The
complainant also talked to his abductee brother at the instance of the accused.
3. After formal investigation, report under section 173, Cr.P.C. was submitted before the
trial Court and the accused/appellant was sent to face the trial. The trial Court seized with the
matter, framed charge against the appellant, to which he pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined the follow ing witnesses:
PW-1 Muhammad Sarwar. Reader, was witness to recovery memo Ex -P/1-A, whereby
the I.O. took into possession photo -state copies of recovery memos of Iron Chain,
disclosure memo of the appellant, recovery of Rs.300,000/ -, statements of witness es
under section 161, Cr.P.C., total nine qitats of FIR No.57 of 2015.
PW-2 Faisal Hameed, Judicial Magistrate, Chaman was witness to identification
parade memos, produced the same along with certificates as Ex -P/2-B to Ex -P/4-F.
He has also recorded the statement of appellant under section 164, Cr.P.C. and
produced the same along with certificate as Ex -P/4-G and Ex -P/4-H.
PW-3 Abdul Wali complainant has reiterated the contents of his application and
produced the same as Ex -P/3-G (sic).
PW-4 Alla -ud-Din is the alleged abductee and brother of the complainant.
PW-5 Muhammad Younas Tehsildar/I.O., conducted investigation, recorded
statements of witnesses, produced FIR Ex -P/5-J, site map Ex -P/5-K, map of the place
of recovery of abductee Ex -P/5-L, incomplete challan Ex -P/5-M and supplementary
challan Ex -P/5-N.
4. On completion of prosecution evidence, the appellant was examined under section
342, Cr.P.C . wherein he professed innocence and denied the allegations leveled against him.
The appellant did not record his statement on oath nor led any witness in his defence. On
conclusion of the trial, the trial Court convicted and sentenced the appellant vide i mpugned
judgment dated 17.7.2018, hence this appeal.
5. Learned counsel for the appellant contended that the impugned judgment is against
the facts and law; that the appellant is innocent and has falsely been involved in this case;
that there is unexplaine d delay of about fourteen (14) days in recording confessional
statement of the appellant which is inadmissible under the law; that no role has been assigned
during identification parade, such type of identification lost its value and not relied upon;
that there is no evidence against the appellant that he abducted Alla -ud-Din. He lastly
contended that the prosecution has failed to prove its case against the appellant beyond
reasonable doubt, therefore, the appellant is entitled for acquittal.
Learned Deput y Prosecutor General vehemently opposed the appeal and submitted
that the prosecution case is based on ocular evidence of abductee Alla -ud-Din, who has no
enmity with the appellant; that all the PWs have fully supported the version of prosecution
and corro borated the statements of each other on material points; that during statement under
section 164, Cr.P.C., the appellant confessed his guilt and during identification, the abductee
identified the appellant. He further stated that the prosecution has proved its case against the
appellant beyond any reasonable doubt, therefore, the trial Court has rightly convicted the
appellant and the judgment passed by the trial Court does not suffer from any infirmity.
6. We have heard the learned counsel for the parties and have gone through the available
record. The prosecution case is based on the following pieces of evidence:
i. Statement of the alleged abductee;
ii. Retracted confessional statement of the appellant; and
iii. Identification of the appellant by the alleged abductee.
(i) Statement of the alleged abductee.
7. In his statement before the trial Court, PW -4 Alla -ud-Din, the alleged abductee, stated
that in the afternoon of 30.6.2015 he left Chaman in a Taxi. A little ahead, the driver and rest
of the thre e passengers armed with pistols and kalashnikov suddenly got over him and blind
folded him on board the Taxi and took him and chained him into a room of a house, where a
person namely Fazal -ur-Rehman was also brought and chained with him. The accused
deman ded ransom of Rs.30,00.000/ - for his release and subsequently, he was released on
10.7.2015 in lieu of the payment of Rs.13,00,000/ paid by his father as a ransom money. To
corroborate the statement of PW -4, the prosecution failed to produce father of the alleged
abductee and Fazal -ur-Rehman. It is well settled princip1e of law that if a best piece of
evidence is available with a party and same is withheld by him, the presumption as
enumerated under Article 129(g) of the Qanun -e-Shahadat Order, 1984 come in to play. The
presumption will ultimately be drawn against the prosecution that the said witness(s)
was/were not supporting the complainant's/prosecution version. Thus, the statement of the
PW-4 is excluded from consideration.
(ii) Confessional statement of the appellant.
8. As far as confessional statement of the appellant under section 164, Cr.P.C. (Ex -P/2-
G) recorded by the Judicial Magistrate is concerned, perusal of the record reveals that the
alleged occurrence took place on 30.6.2015 and the appellan t was arrested on 16.7.2015. He
was produced before Judicial Magistrate, Chaman (PW -2) on 30.7.2015 after 14th day of his
arrest for recording his statement under section 164, Cr.P.C. but such delay has not been
explained. It is a settled law the delay of over 24 hours would normally be fatal to the
acceptance of judicial confession as law laid down by the Hon'ble Supreme Court in
Naqeebullah's case PLD 1978 SC 21 coupled with the fact that prosecution had failed to
explain the delay in recording the confes sional statement. This fact created doubt qua the
confessional piece of the evidence. Reliance in this regard is placed to the case of Khan
Muhammad and another v. The State 1981 SCMR 597.
It is also well settled that the confessional statement of an accu sed must be recorded
as early as possible. In this behalf reference may be made to this Court judgment in the case
of Shoukat Saeed v. The State PLD 1978 Quetta 1, wherein, after having taken into
consideration number of the judgments of the Hon'ble Suprem e Court, it was observed:
"No doubt confessions obtained after a long period of detention in police custody
have rightly been looked upon with suspicion and that casts a duty on the Court to
scan the confession and other evidence deeper and to look for an y other evidence
which may taint the confession itself, but surely a short period of detention in police
custody for 24 hours preceding the recording of confession would not make it
inadmissible."
In the case of Khalid Javed and another v. The State 2003 SCMR 1419, it was held as
under:
"It may be observed with justification that a statement which has been recorded after
a considerable delay from the date of arrest without offering any explanation for not
producing the accused before the Magistrate as ear ly as could be possible creates a
doubt on its voluntariness."
In the circumstances of the instant case and the principle laid down by the Hon'ble
Supreme Court, the unexplained delay in recording of the confessional statement of the
appellant lost its ev identiary value.
(iii) Identification of the appellant by the alleged abductee.
9. As far as identification of the appellant by the PW -4 is concerned, the record reveals
that on 28.7.2015 after 13th day of his arrest, the appellant was put to a test of id entification
parade in presence of Judicial Magistrate, Chaman. Though the appellant was identified by
PW-4, but the identification parade memo (Ex -P/2-B) reveals that the appellant was
identified by PW -4 without any reference to the role allegedly played by him during the
occurrence due to which the identification parade has lost its value. In this regard, reliance is
placed on the case of Sabir Ali alias Fauji v. The State 2011 SCMR 563, wherein it was held
by the Hon'ble Supreme Court as under:
"6...It is also settled principle of law that role of the accused was not described by the
witnesses at the time of identification parade which is always considered inherent
defect, therefore, such identification parade lost its value and cannot be relied upon.
See Ghulam Rasul's case (1988 SCMR 557), Mahmood Ahmed 's case (1995 SCMR
127) and Khadim Hussain's case (1985 SCMR 721)...
Similar view was also taken by the Hon'ble Supreme Court in the case of Muhammad
Fayyaz v. The State 2012 SCMR 522.
10. Moreover, as mentioned above, the identification parade has been conducted after
13th day of the arrest of appellant and in such a situation, possibility of the witness having
seen the appellant prior to the identification conducted by the Judicial Magistrate, Chaman
cannot be ruled out. In this regard, reference is made to the case of Nazeer Ahmed v.
Muhammad Iqbal and another 2011 SCMR 527, wherein it was held as under:
"Identification parade having been conducted after 24 days of the arrest of the
accused, possibili ty of the witnesses having seen them could not be excluded."
For the above reasons, the appeal is accepted, the impugned judgment dated
17.07.2018, passed by the Judge, Anti -Terrorism Court, Pishin at Pishin is set aside and
while extending benefit of doubt the appellant Ameer Muhammad son of Sirtayaf is acquitted
of the charge, in FIR No.56 of 2015, registered with Levies Thana, Chaman District Killa
Abdullah. The appellant being in custody is ordered to be released forthwith, if not received
in any other case.
JK/94/Bal. Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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