State vs AHMED OMAR SHEIKH Ss — 2021 SCMR 873 SUPREME-COURT

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State VS AHMED OMAR SHEIKH Ss. 302(b), 120-a, 362 & 365-a---anti-Terrorism act (XXVII of 1997), Ss. 6(a) & 7---Criminal Procedure Code (V of 1898), S. 164---Qanun-e-Shahadat (10 of 1984), art. 37---Kidnapping and murder of a foreign journalist, criminal conspiracy---Reappraisal of evidence---Trial Court convicted the accused and co-accused persons under Ss. 120-a, 365-a & 302, P.P.C., read with Ss. 6(a) & 7 of the anti-Terrorism act, 1997---accused was sentenced to death, whereas the co-accused persons were sentenced to imprisonment for life with fine---High Court altered convictions of accused to that under S. 362, P.P.C. and sentenced him to 7-years rigorous imprisonment, whereas the co-accused persons were acquitted of all charges---Held, that the prosecution failed to prove any conspiracy between the accused and an acquitted co-accused in a hotel room in presence of an alleged prosecution witness---Identification of accused by the witnesses in Court had no value because on several occasions the accused was brought in court with an open face and the witnesses had all the opportunity to see him---Crime report/FIR was lodged twelve (12) days after the occurrence, indicating that till that time consultation and deliberation was going on and FIR was chalked out after such consultation and deliberation---Last seen evidence was available with the complainant well before lodging the FIR but was not mentioned therein which created serious doubt regarding such piece of evidence---Complainant never produced her laptop/computer on which she received threatening emails after the kidnapping of deceased---Complainant did not come forward to join the investigation to support the prosecution version and ultimately it was the prosecution that gave her up under the pretext of her pregnancy---No forensic analysis of the video clip/tape showing beheading of deceased was ever carried out nor any report of expert was ever produced by the prosecution, thus, no reliance could be placed on such piece of evidence---Only a copy of the video clip/tape was delivered to the Investigating Officer but not its original---Original clip/tape was willfully withheld by the witness who received it and an adverse presumption could be drawn that the said clip was prepared in a laboratory or some film studio---Date and place of arrest of accused and co-accused persons as claimed by the police was also doubtful---admission of accused before the police was not admissible in evidence, whereas the delay in recording the judicial confessions of two co-accused persons, which were subsequently retracted, was indicative of the fact that the confessional statements were not made voluntarily---Perusal of the confessional statements of the two co-accused persons showed that the fear of police was not removed from their mind and the confessions made by them were not free from extraneous influence such as threat of police torture---Handwriting expert relied upon by the prosecution to prove the ransom manuscripts allegedly written by the accused and a co-accused had no qualification, knowledge or expertise to be regarded as a handwriting expert---Prosecution evidence was full of doubts and it had failed to prove the guilt of the accused and co-accused persons---appeal filed by accused against his conviction under S. 362, P.P.C. was allowed and he was acquitted of all charges against him by extending the benefit of doubt to him---appeals challenging acquittal of co-accused persons were dismissed, and impugned judgment of High Court to the extent of acquittal of all four co-accused persons from their charges was maintained.

State vs AHMED OMAR SHEIKH Ss — 2021 SCMR 873 SUPREME-COURT

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