PLJ 2009 Cr.C. (Lahore) 271 (DB)
Present: Mian Muhammad Najam-uz-Zaman and
Kazim Ali Malik, JJ.
ABDUL GHAFFAR and others--Appellants
versus
STATE--Respondent
CSR No. 40-T of 2006, Crl. A. Nos. 269-J, 1667, 1344, 1345 of 2006 & W.P. No. 10539 of 2006, heard on 11.9.2008.
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 7(a)--Pakistan Penal Code, (XLV of 1860), S. 302(b)--Conviction and sentence--Challenge to--Allegation of terrorism, abduction for ransom & murder--Mitigating circumstances--Quantum of sentence--Modification in conviction and sentence--Benefit of doubt--Delay in lodging FIR--Dead body recovered--Source of information suspected--Unwitnessed occurrence based on different pieces of circumstantial evidence--Held: Trial Court disbelieved prosecution case to extent of abduction for ransome and consequently acquitted all challaned accused--Statements of PWs that they reached appointed place and passed on ransom amount to four challaned accused persons on receiving telephonic calls from them demanding ransom for release of abductee (deceased), are not worthy of credence and rightly disbelieved by trial Court--All accused persons were not put to test identification parade--Identification of accused persons by PWs after about one year of commencement of trial cannot be and should not be treated as a legal piece of evidence--Telephone call-history was a valuable piece of evidence to trace out culprits and to connect them with charge but call-log had not been collected and made part of record during course of investigation--As place of burial did not remain in possession of 3 co-accused persons, therefore, claim of PWs, that they also pointed out place of burial, does not provide a basis to record their conviction on charge of abduction for ransom and murder--Benefit of doubt, however slight, is right of accused--Prosecution did not lead cogent, legal and convincing evidence in support of charge of terrorism and abduction for ransom against appellant--Trial Court acquitted him of charge of abduction for ransom but convicted and sentenced him u/S. 7(a) of Anti-Terrorism Act, 1997 r/w S. 302(b) PPC--S. 7(a) of ATA and S. 302(b) PPC are independent penal provisions of law--It was not permissible under law for trial Court to record join conviction and sentence under two separate and independent penal provisions of law--Prosecution successfully proved that dead-body of deceased had been buried in Court-Yard of residential house of appellant from where it had been unearthed on his pointing out--Pointing out of dead-body by appellant and then its disinterment in consequence thereof from his residential house is a valuable piece of prosecution evidence which proved beyond any shadow of doubt that it was appellant and none else who killed deceased and then buried dead-body in his house--So, conviction of appellant u/S. 302(b) PPC is maintained and upheld--Killing does not attract provision of S. 7(a) of ATA, 1997, therefore, his conviction u/S. 7(a) is set aside--As real facts which culminated in disappearance and killing of deceased are still shrouded in mystery, therefore, death sentence of appellant is converted into imprisonment for life--CSR is answered in negative.
[Pp. 276, 277, 278, 280, 281 & 282] A, B, C, D, E, F, G, H, I, J & K
Mr. Muhammad Amjad Pervaiz, Advocate for Appellants.
Mr. Zafar Ahmad Gondhal, Special Prosecutor for Respondent.
Kh. Faheem Ijaz, Advocate for Complainant.
Dates of hearing: 9.9.2008, 10.9.2008 & 11.9.2008.
Judgment
Kazim Ali Malik, J.--Abdul Ghaffar, Sakhawat Ali alias Kala, Muhammad Ali and Muhammad Tariq were challaned to the Court of learned Special Judge, Anti-Terrorism No. IV, Lahore in a case F.I.R. No. 456 dated 14.7.2004 registered with Police Station City Raiwind, to stand trial on the charge of terrorism, abduction for ransom and murder. On conclusion of trial, Muhammad Ali and Muhammad Tariq, accused persons were acquitted of the charge, while Abdul Ghaffar and Shaukat Ali alias Kala were convicted and sentenced as under:
Abdul Ghaffar:
U/S. 7(a) of Anti-Terrorism Act, 1997 read with Section 302(b) PPC;
Sentenced to death for having committed the murder of Muhammad Jameel and also to pay compensation of Rs. 1,00,000/- to the legal heirs or in default of payment to further under go 6 months rigorous imprisonment.
Sakhawat Ali:
U/S. 7(a) of Anti-Terrorism Act 1997 read with Section-302(b)PPC:
Imprisonment for life and also to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased or in default thereof to undergo six months rigorous imprisonment
Benefit of Section 382-B Cr.P.C. was also granted to the convicts.
2. The learned trial Court made Capital Sentence Reference No. 40-T/2006 seeking confirmation of death sentence imposed on Abdul Ghaffar, convict. He challenged his conviction and sentence on facts and law through Crl. Appeal No. 269-J of 2006. Sakhawat Ali alias Kala, convict assailed his conviction and sentence by means of Crl. Appeal No. 1667 of 2006. Muhammad Munir, complainant filed Crl. Appeal No. 1344 of 2006 against the convicts with a prayer for their conviction on the charge of abduction for ransom and the acquitted accused persons with a request for their conviction on all the charges for which they were challaned to Court. The State also filed Crl. Appeal No. 1345 of 2006 for enhancement of sentence Sakhawat Ali alias Kala from imprisonment for life to death and also for conviction of Muhammad Ali and Muhammad Tariq, accused on the charge of murder. Muhammad Munir, complainant also filed Writ Petition No. 10539 of 2006 praying for enhancement of sentence of Sakhawat Ali from imprisonment for life to death. We propose to dispose of all these matters together by this single judgment.
3. Muhammad Jamil, an elder brother of Muhammad Munir, complainant suffered death in this happening. He went missing on 11.7.2004. The F.I.R. (Ex.PA/1) was lodged on 14.7.2004 in the evening against unknown accused persons. On 15.7.2004 Muhammad Munir, complainant made another application Ex.PJ and cast doubt against the above named convicts and the acquitted accused persons on the basis of an information allegedly furnished by Khurram Shehzad (not examined) son of Muhammad Jamil, deceased. It was an unwitnessed occurrence. The investigating agency arrested the convicts and the acquitted accused persons and sent up the challan for trial on the basis of different pieces of circumstantial evidence.
4. Muhammad Munir, complainant, P.W. 6 lodged the F.I.R. (Ex.PA/1) with an allegation that on 11.7.2004 at 6.30 a.m. his brother Muhammad Jamil received telephonic call from an unknown person; that the unknown caller and the deceased exchanged hot words with reference to some money dispute; that on the asking of unknown caller, Muhammad Jamil left for Rai Wind at 7.30 a.m. to have the controversy resolved as proposed by the caller; that after having reached Raiwind, Muhammad Jamil established contact with the inmates of his house on cell phone at 11.30 a.m.; that at about 9.30 p.m. some one informed the complainant on telephone that Muhammad Jamil will return home on the following day; that the complainant unsuccessfully made efforts to establish contact with the unknown caller(s) and then cast doubt that his brother might have been abducted by unknown persons in order to deprive him of money.
On the following day of registration of the case, Muhammad Munir, complainant made written application Ex.PJ before the investigating officer with an allegation that as per information furnished by his brother's son Khurram Shehzad, an amount of Rs. 5,00,000/- was due to Muhammad Jamil, deceased from Abdul Ghaffar (appellant) and that he might have abducted Muhammad Jamil with the help of his companions Sakhawat Jatt, Muhammad Ali Qasai and Muhammad Tariq Malik with a motive to kill him to usurp Rs. 5,00,000/-.
5. After recording the F.I.R. and statements of the complainant and other witnesses, Muhammad Aslam, Sub-Inspector, P.W.11 fell ill and the investigation, was taken up by Badar Munir, Sub-Inspector, P.W. 12. On 4.8.2004 he arrested Abdul Ghaffar, Sakhawat Ali (appellants) and Muhammad Ali, (acquitted accused) in the light of above said supplementary statement of the complainant. The same day, the above named three accused persons made a disclosure that they killed the deceased and buried the dead-body in the Courtyard of residential house of Abdul Ghaffar, appellant. The accused persons pointed out the place of burial one by one. The dead-body was disinterred on their pointing out the same day in presence of Naseer Ahmad, Tariq Mahmood and Salamat Ali, P.Ws. The investigator prepared memos Ex. PC, PD and PE in this regard, attested by the above said three witnesses. He also prepared another memo Ex.PF in respect of recovery of dead-body. The above said three witnesses identified the recovered dead-body as that of Muhammad Jamil son of Muhammad Shafi, caste Arain. After recovery of the dead-body from the residential house of Abdul Ghaffar, appellant it was immediately removed to dead house and was subjected to post-mortem examination at 5.00 p.m. The post-mortem examiner found a gaping wound 9 x 4 cm on inner front of left fore-arm besides a ligature mark around neck. The doctor certified under his post-mortem report Ex.PK that Muhammad Jamil had been strangulated to death. The probable time which elapsed between injuries and death was a few minutes and between death and post-mortem examination was 2 to 4 weeks. On 15.8.2004 Sakhawat Ali alias Kala, appellant led to the recovery of national identity card (P.1) of the deceased and Rs. 70,000/- cash from his residential room, which were taken into possession under memo Ex.PN. He also led to the recovery of gold ring (P. 17) of the deceased and a motor bike which were taken into possession vide memo Ex.PS. He also got recovered pistol from the canal with which he was allegedly armed at relevant time. The same day Muhammad Ali, accused got recovered motor bike (P.11) and Rs. 30,000/- cash which had been seized by means of memo Ex.PK. Cell phone (P. 13) and Rs. 50,000/- were recovered at the instance of Abdul Ghaffar and were secured through memo Ex.PQ. He also led to the recovery of wrist watch of the deceased and Rs. 1,07,000/- cash which were taken into possession vide memo Ex.PR. The investigator prepared memo Ex.PT to the effect that Muhammad Tariq, accused pointed out the place of burial of Muhammad Jamil inside the house of Abdul Ghaffar, appellant on 8.8.2004 from where the dead-body had already been recovered on 4.8.2004. He also got recovered a pistol.
6. At the inception of trial, the challaned accused persons were charged under Section 7(e) of Anti-Terrorism Act of 1997 read with Section 34 of P.P.C. for having abducted Muhammad Jamil for ransom; under Section 7(a) of Anti-Terrorism Act of 1997 read with Section 34 of P.P.C. for having committed the murder of Muhammad Jamil abductee and under Section 379/411 read with Section 34 of P.P.C. for having stolen away belongings of the deceased after his killing. The accused persons denied the charge and claimed to be tried. It may be noted here that there was an allegation that the accused persons dishonestly misappropriated and converted to their own use belongings of the deceased after having murdered him. The learned trial Court framed the charge under Section 379 P.P.C. whereas dishonest misappropriation of property possessed by the deceased at the time of his death comes within the purview of Section 404 P.P.C. which reads as under:
"Dishonest misappropriation of property possessed by deceased person at the time of his death.--Whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in possession of a deceased person at the time of that person's decease and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine; and if the offender at the time of such person's decease was employed by him as a clerk or servant, the imprisonment may extend to seven years."
The challaned accused persons were also charged for the murder of Muhammad Jamil, and therefore, they were not even liable to face trial under Section 404 P.P.C. because an accused cannot be convicted for the offence of murder under Sections 302 and 404 P.P.C. simultaneously. We are supported in our view by the case law laid down in Khadim Hussain v. The State (NLR 2004 SD 658).
7. The prosecution examined 12 witnesses in all in support of the charge. Rana Ayaz Ahmad Khan, Sub-Inspector, P.W. 1 drew up formal F.I.R. Syed Younis Bokhari, P.W. 2 prepared the scaled site-plan. Munir Hussain Majid, P.W. 3 and Tariq Rauf, P.W. 4 claimed to have passed on ransom to the challaned accused persons. Tariq Mehmood, P.W. 5 witnessed disinterment of the dead-body at pointing out of the accused persons. He also identified belongings of the deceased. Muhammad Munir, complainant, P.W. 6 supported the charge. Dr. Fakhar-uz-Zaman, P.W. 7 proved post-mortem report. Muhammad Ansar, Head Constable, P.W.8 got post-mortem the dead-body and attested recovery memos in respect of last worn clothes of the decease and his belongings. Mukhtar Ahmad, Constable, P.W. 9 also attested the recovery memos of the belongings of the deceased and other articles recovered at the instance of the accused. Muhammad Younis, Constable, P.W. 10 witnessed pointing out the place of burial at the instance of Tariq, accused four days after its disinterment. Muhammad Aslam, Sub-Inspector, P.W. 11 recorded supplementary statement of the complainant and that of his witnesses. Babar Munir, Sub-Inspector, P.W. 12 was the last prosecution witness who proved the investigation.
8. When examined under Section 342 Cr.P.C. the accused persons denied and dismissed each piece of prosecution evidence put to them. No witness was examined in defence. The accused persons also did not make statements on oath.
9. We find it convenient to take up the case of Sakhawat alias Kala, appellant and that of Muhammad Ali and Muhammad Tariq, acquitted accused first against whom the prosecution made an allegation that they abducted Muhammad Jamil for ransom and then killed him after receiving Rs. 2,00,000/- ransom. The learned trial Court disbelieved the prosecution case to the extent of abduction for ransom and consequently acquitted all the challaned accused of the charge under Section 365-A P.P.C. The first version put forward by Muhammad Munir, complainant through his application Ex.PA, the very basis of formal F.I.R. Ex.PA/1, in brief, was that Muhammad Jamil, deceased had a talk with an unknown person on telephone on 11.7.2004 in the morning and then he left for Raiwind to settle some money dispute on the asking of unknown caller. The complainant himself admitted in the F.I.R. that his deceased brother Muhammad Jamil exchanged hot words with unknown caller. Although hard and fast rules about human conduct and behaviour are not available, yet in the light of accepted standards of human behaviour it can be safely said that in the normal course of events, Muhammad Jamil, deceased would not have left for Raiwind on the asking of unknown caller with whom he had exchanged hot words with reference to some money dispute and that too without disclosing his identity to the wife, brothers and close relatives who admittedly resided with him in the same house. The available record does not show as to why Muhammad Munir, complainant did not inquire from his real brother Muhammad Jamil as to who was the caller and as to what were the compelling circumstances which persuaded or forced him (Muhammad Jamil) to leave for Raiwind on the asking of the caller without disclosing his name and other particulars. The conduct allegedly exhibited by the deceased and the complainant is offensive to normal human behaviour. We are, therefore, not ready to believe that Muhammad Jamil left his house in the-alleged manner.
10. The prosecution case is to the effect that Muhammad Jamil, deceased disappeared and went missing on 11.7.2004 in the morning. The complainant was fully aware that his brother disappeared after having reached Raiwind in response to a telephonic call from an unknown person with whom he exchanged hot words on account of some money dispute. In this view of the matter the complainant was supposed to approach the police promptly without wasting a single moment. Despite knowing that the unknown caller was responsible for the abduction and disappearance of Muhammad Jamil, the matter was reported to the police after three days. The delay in lodging the F.I.R. provides a basis to say that Muhammad Jamil, deceased did not disappear as alleged in the F.I.R.
11. On 15.7.2004 Muhammad Munir, complainant made another written application Ex.PJ wherein the challaned accused were introduced as suspects. The source of information/suspicion was Khurram Shehzad son of Muhammad Jamil, deceased and the basis of suspicion was an amount of Rs. 5,00,000/- due to the deceased from Abdul Ghaffar, appellant. It is important to note that Khurram Shehzad, P.W. did not enter the witness box to support the prosecution case. Further more, the version set up in the application Ex.PJ stands belied by Muhammad Munir, complainant himself who stated on cross-examination that his brother's son Khurram Shehzad was away to northern areas and that he had no meeting with him w.e.f. 11.7.2004 to 15.7:2004. In other words Muhammad Munir, complainant dismissed and repudiated his own supplementary statement and the second version given in Ex.PJ that on 15.7.2004 he gained knowledge about involvement of the accused from Khurram Shehzad. This state of affairs has also adversely affected the prosecution story.
12. Munir Hussain Majid, P.W.3 deposed that on 16.7.2004 he received telephonic call from an unknown caller who introduced himself as Abdul Ghaffar and that he demanded ransom after disclosing his mind that Muhammad Jamil had been abducted by him. Muhammad Tariq, P.W.4 claimed that on 16.7.2004 he received telephonic call on his cell phone from a caller who disclosed his identity as Sakhawat Ali and that he demanded Rs. 2,00,000/- ransom for the release of abductee Muhammad Jamil. The P.Ws. also claimed that on the following day they reached appointed place and passed on Rs. 2,00,000/- to the four challaned accused persons. The learned trial Court disbelieved them. For multiple reasons, we are also of the view that their statements are not worthy of credence.
Firstly, Abdul Ghaffar and Sakhawat Ali, appellants were not previously known to these two witnesses. They both were not so fool that they themselves chose to disclose their identity to the P.Ws. while demanding ransom enabling the P.Ws. to get them arrested. It is a question of common knowledge and is not in dispute or disputable that in cases of abduction or kidnapping for ransom the culprits/abductors make all possible efforts to conceal their identity from the P.Ws. and the police. To our mind this is a text book example of a case of fabricated evidence on the charge of abduction for ransom in which the abductors themselves disclosed their identity to the P.Ws.
Secondly, all the accused persons were not put to the test identification parade despite the fact that they were not admittedly known to the P.Ws. previously. The learned counsel for the complainant attempted to argue that at commencement of trial P.W. 3 and P.W.4 had identified the challaned accused persons by saying that they had received ransom from them. The contention is misconceived. Allegedly the P.Ws. passed on ransom to unknown four accused persons on 17.7.2004. Munir Hussain Majid, P.W. 3 and Muhammad Tariq, P.W. 4 entered the witness box on 22.9.2005. During this period they remained associated with the investigation on a number of dates, therefore, after about one year of apprehension of the accused persons, the claim of the two witnesses that the accused present in trial Court were the culprits is not acceptable and believable at all. Immediately after apprehension of the accused persons, the investigating officer was required to take appropriate steps to put them to the test of identification parade. Identification of the accused persons by the PWs. after about one year at the commencement of trial when the P.Ws. were equipped with legal advice, cannot be and should not be treated as a legal piece of evidence.
Thirdly, the P.Ws. including the complainant deposed that the accused persons had established contact with them on telephone time and again. The complainant alleged in the F.I.R. that Muhammad Jamil, deceased had a talk on telephone with unknown caller before leaving his house. The telephone call-history was a valuable piece of evidence in order to trace out the culprits and to connect them with the charge. We could not understand as to why call-log had not been collected and made part of record during the course of investigation. The complainant, who has been prosecuting his case and cause vigorously since registration of the case kept quite and did not make a request before the investigating officer, the trial Court as well as this Court for bringing on record call history/call log of telephone numbers of the culprits. The way the investigating agency and the complainant conspicuously withheld a valuable piece of evidence provides a basis to infer that if the call log had been brought on the record, the same would have damaged the prosecution case. We are, therefore, of the view that the learned trial Court rightly disbelieved P.Ws. 3 and 4.
13. The learned Law Officer and the learned counsel for the complainant contended that the accused persons under discussion led to the recovery of belongings of the deceased and that the prosecution proved the said recovery with cogent and convincing evidence. We could not persuade ourselves to attach any importance to the contention. We have minutely gone through the written application/complaint (Ex.PA) on the basis of which formal F.I.R. (Ex.PA/1) had been drawn up. It is open to naked eye that the complainant did not mention in the application (Ex.PA) that the deceased while leaving home was possessed with national identity card, wristwatch, ring and other belongings and some one added a note ExPA/3 in the margin of the complaint Ex.PA with different hand, pen and ink to the following effect:
The above manipulation in the F.I.R. is evidence to the effect that it was the investigator, who planned to fabricate the recovery of so called belongings of the deceased and that is why he added or got added note (Ex. PA/3). The investigating officer claimed that Sakhawat Ali and Abdul Ghaffar got recovered belongings of the deceased i.e. gold ring, wristwatch, national identity card and cell phone. Tariq Mahmood caste Joyia resident of Kasur, P.W. 5 was the only witness who claimed at trial that the recovered articles belonged to the deceased. The complainant or any other close relation of the deceased did not come forward to certify that the recovered articles belonged to the deceased. On cross-examination Tariq Mahmood, P.W. 5 admitted in express terms that he never met with the deceased during his life time and that he had got no connection with him. To another question, the P.W. stated that he reached the police station in connection with his own job and then identified belongings of the deceased. Here an important question arises as to how P.W.5 identified the belongings of the deceased particularly when the deceased was not known to him and he had not even met him during his life time.
14. It is the prosecution case that the dead-body was recovered from residential house of Abdul Ghaffar which was also jointly occupied by his mother and brothers. Abdul Ghaffar is caste fellow of the deceased and the complainant, Sakhawat Ali, appellant is Jatt by caste. Muhammad Tariq, accused belongs to Malik Telli tribe. Muhammad Ali, accused is Qasai by caste. Undisputedly, Sakhawat Ali, appellant, Muhammad Ali and Muhammad Tariq, acquitted accused were/are not related to Abdul Ghaffar, appellant in any manner. The P.Ws. claimed that the accused persons except Muhammad Tariq pointed out the place of burial one by one and then the dead-body had been disinterred from Courtyard of the house of Abdul Ghaffar. It is manifest from the evidence that Muhammad Ali, Sakhawat Ali and Muhammad Tariq never resided in the house from where the dead-body had been recovered nor they were supposed to go their as the house was in occupation of the mother and other male and female family members of Abdul Ghaffar, appellant. As the place of burial did not remain in possession of Muhammad Ali, Muhammad Tariq and Sakhawat Ali, accused, therefore, the claim of the P.Ws., which in our view was their self assertion and nothing else, that they also pointed out the place of burial, does not provide a basis to record their conviction on the charge of abduction for ransom and murder. It would not be out of place to mention here that all the four accused persons remained in police lock up for many days. There is every possibility that Abdul Ghaffar, appellant might have disclosed his mind before his co-accused persons during their joint detention in police lock up. After excluding from consideration all other pieces of evidence relied upon by the prosecution, it would not be safe to hold guilty Sakhawat Ali, Muhammad Ali and Muhammad Tariq on account of recovery of the dead-body from the house of their co-accused, Abdul Ghaffar. Needless to add that Muhammad Tariq, accused was not even present when his co-accused persons made alleged disclosure and got recovered the dead-body. We have already mentioned that Muhammad Tariq, accused made alleged pointing out of the place of burial after four days of disinterment of the dead-body. As nothing incriminating had been recovered in consequence of alleged pointing out of the place of occurrence by Muhammad Tariq, therefore, it does not fall within the ambit of evidence.
15. The P.Ws. did not disclose registration number, make and model of the motor bikes allegedly used by the accused persons for reaching appointed place for collecting ransom, therefore, recovery of motor bikes even if believed cannot be treated as evidence in support of the charge with any stretch of imagination.
16. For what has been stated above, we are of the considered view that the prosecution completely failed to prove, the charge beyond any shadow of doubt against Sakhawat Ali, appellant. Needless to add that benefit of doubt, however slight, is right of the accused. We, therefore, allow Crl. Appeal No. 1667 of 2006, set aside the impugned conviction and sentence recorded against Sakhawat Ali, appellant by the trial Court and acquit him of the charge by giving him the benefit of doubt. He be set at liberty forthwith, if not required to be detained in any other case.
17. For the reasons recorded above, we have no doubt in our mind that the learned trial Court rightly acquitted Muhammad Ali and Muhammad Tariq, accused. The reasons which weighed with the learned trial Court while recording their acquittal are not open to any exception on facts and law. Since Sakhkwat Ali, accused has been acquitted of the charge, therefore, there is no question of enhancement of his sentence or his conviction on the charge of abduction for ransom. Crl. Appeal No. 1344 of 2006, Crl. Appeal No. 1345 of 2006 and Writ Petition No. 10539 of 2006 are accordingly dismissed.
18. Now remains in field Abdul Ghaffar convict. For the forgoing reasons, we can safely say without fear of any contradiction that the prosecution did not lead cogent, legal and convincing evidence in support of the charge of terrorism and abduction for ransom against Abdul Ghaffar, appellant. At the cost of repetition it is noted that the learned trial Court acquitted Abdul Ghaffar of the charge of abduction for ransom. However, the learned trial Court convicted and sentenced Abdul Ghaffar under Section 7(a) of the Anti-Terrorism Act, 1997 read with Section 302(b) P.P.C. Section 7(a) of the Anti-Terrorism Act, 1997 and Section 302(b) P.P.C. are independent penal provisions of law. It was not permissible under the law for the learned trial Court to record joint conviction and sentence under two separate and independent penal provisions of law. The learned trial Court believed the evidence of pointing out of the place of burial of Muhammad Jamil, deceased in consequence of which the dead-body had been disinterred from residential house of Abdul Ghaffar. The investigating officer also deposed that the dead-body had been recovered from residential house of Abdul Ghaffar, appellant as a result of his pointing out. Admittedly, Abdul Ghaffar, appellant alongwith his family members resided in the house from where the dead-body had been recovered. The prosecution successfully proved that the dead-body of Muhammad Jamil had been buried in the courtyard of residential house of Abdul Ghaffar from where it had been unearthed on his pointing out. We have minutely gone through the cross-examination on the prosecution witnesses and the statement under Section 342 Cr.P.C. of Abdul Ghaffar, appellant. He, completely failed during the course of investigation as well as at trial to explain as to how and under what circumstances, Muhammad Jamil, deceased who had been strangulated to death, was buried in his residential house. Even at the time of arguments before this Court, his learned counsel was not in a position to defend the case of Abdul Ghaffar, appellant qua the burial of dead-body inside his house. To our mind pointing out of dead-body by Abdul Ghaffar and then its disinterment in consequence thereof from his residential house is a valuable piece of prosecution evidence which proved beyond any shadow of doubt that it was Abdul Ghaffar, appellant and none else who killed Muhammad Jamil and then buried the dead-body in his house. We, therefore, maintain and uphold conviction of Abdul Ghaffar, appellant under Section 302(b) P.P.C. While maintaining the conviction on the charge of murder, we are of the considered view that the killing does not attract the provisions of Section 7(a) of the Anti-Terrorism Act, 1997 because the killing at the hands of Abdul Ghaffar did not result in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in the vicinity. We, therefore, set aside his conviction on the charge under Section 7(a) of the Anti-Terrorism Act, 1997.
19. The learned trial Court awarded death sentence to Abdul Ghaffar, appellant on the charge of murder. Here, we may observe that mitigating circumstances available on the file escaped notice of the learned trial Court while determining the quantum of sentence. We are of the view that on account of following circumstances, death penalty is not warranted:
(i) The trial Court as well as this Court disbelieved and discarded the prosecution version with regard to abduction for ransom.
(ii) Muhammad Ali and Muhammad Tariq, accused were acquitted of the charge by the trial Court after having disbelieved the prosecution case to their extent and the order of their acquittal has also been maintained by this Court.
(iii) Sakhawat Ali, appellant was convicted and sentenced by the trial Court. His appeal has been accepted by this Court with an observation that the prosecution failed to prove the charge qua his involvement beyond any shadow of doubt.
(iv) Muhammad Jamil, deceased went missing and then his dead-body was recovered from the house of Abdul Ghaffar, appellant. There is no cogent and convincing evidence on the file, which may show as to how Muhammad Jamil disappeared and as to how and when he reached the house of Abdul Ghaffar, appellant and was done to death there. Real facts which culminated in disappearance and killing of Muhammad Jamil are still shrouded in mystery.
We, therefore, commute the death sentence of Abdul Ghaffar, appellant into imprisonment for life with the benefit of Section 382-B, Cr.P.C. However, the compensation awarded to the legal heirs of the deceased by the learned trial Court is maintained. With this modification in the sentence of Abdul Ghaffar, appellant Crl. Appeal No. 269-J of 2006 stands dismissed.
20. Capital Sentence Reference No. 40-T of 2006 is answered in negative. Death sentence is not confirmed.
(Sh.A.S.) Order accordingly.
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