------
PLJ 2012 Cr.C. (Lahore) 268 (DB)
Present: Sayyed Mazahar Ali Akbar Naqvi and Mazhar Iqbal Sidhu, JJ.
KHALID MEHMOOD--Petitioner
versus
STATE--Respondent
Crl. Appeals Nos. 287, 198-J and W.P. No. 2591 of 2007, heard on 30.11.2011.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 365-A & 34--Anti-Terrorism Act, (XXVII of 1997), S. 7(c)--Conviction and sentence recorded against accused by trial Court--Challenge to--Quantum of sentence--Accused was a taxi driver--No concern with occurrence--Version of accused--Reason for not disclosing description of occurrence directly either to police or complainant by taxi driver due to threat of murder by co-accused--Validity--First version of the accused was reiterated by accused at time of making statement u/S. 342, Cr.P.C. persuade High Court to believe that stance taken by accused was not only trustworthy rather it was also appeals to mind--While adopting principle of abundant caution--High Court had been persuaded to extent benefit of doubt in favour of the accused--Conviction and sentence to extent of the accused was set aside--Appeal was allowed. [P. 278] B
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 365-A & 34--Anti-Terrorism Act, (XXVII of 1997), S. 7(e)--Conviction and sentence recorded against accused by trial Court--Challenge to--Quantum of sentence--Previous enmity--Witnesses were closely related--Dishonest improvements--Sketchy and uncorroborated evidence--Time manner and instrument of occurrence was not rebutted--Received ranson amount--Recovery of car used as instrument for abduction--Validity--Prosecution proved its case against accused to hilt--Accused had failed to lead a single circumstance to rebut prosecution evidence and reasons advanced by trial Court while convicting accused were confidence inspiring--No infirmity in conviction recorded by trial Court while delivering judgment to extent of accused--Appeal was dismissed. [P. 276] A
Mr. Zafar Iqbal Chohan, Advocate for Appellants (in Crl. Appeal No. 287 of 2007).
Mr. Azhar Siddiqui Cheema, Advocate for Appellants (in Crl. Appeal No. 198-J of 2007).
Mr. Tanveer Javed, D.D.P.P. for State.
Mr. Shahid Azeem, Advocate for (Petitioner in W.P. No. 2591 of 2007).
Date of hearing: 30.11.2011.
Judgment
Sayyed Mazahar Ali Akbar Naqvi, J.--Rafique Ahmed son of Shah Jahan, caste Chabora, resident of Chaborawala, Tehsil and District Mianwali, appellant in Crl. Appeal No. 287/2007 and Khalid Mehmood son of Ahmed Khan, caste Bhatti, resident of Musa Khel, Tehsil and District Mianwali, appellant in Crl. Appeal No. 198-J/2007 alongwith Gul Riaz (co-convict) and Suleman and Pervaiz co-accused (since proclaimed offenders) were involved in case FIR No. 3, dated 19.01.2007, offence under Section 365-A, PPC, lodged at Police Station Musa Khel, District Mianwali, and were tried by learned Special Judge, Anti-Terrorism Court, Sargodha. The learned trial Court in terms of judgment dated 22.02.2007, convicted the appellants under Section 365/34, PPC, and sentenced each of them to undergo imprisonment for life with direction to forfeiture of their property. The appellants were also convicted under Section 7(e) of the Anti-Terrorism Act, 1997 and sentenced to undergo imprisonment for life each with forfeiture of property. Both the sentences were directed to run concurrently with benefit of Section 382-B, Cr.P.C.
2. Feeling aggrieved by the judgment of the learned trial Court Rafique Ahmed appellant assailed the same through filing Crl. Appeal No. 287/2007, whereas, Khalid Mehmood appellant filed Crl. Appeal No. 198-J of 2007. Being dissatisfied with the quantum of sentence inflicted upon the appellants, Gul Rehman complainant filed Writ Petition No. 2591/2007. As all the matters are arising out of one judgment passed by the learned trial Court passed while deciding the same FIR, therefore, these are being disposed of through single judgment.
3. The prosecution story as alleged in the FIR (Exh.PC) lodged on the statement of Gul Jahan (PW-4), is that he is cultivator and his nephew (bhateeja) namely Muhammad Bilal son of Muhammad Yousaf is student of 7th Class studying at Crescent Model High School. On 19.1.2007 after closing of the school, Muhammad Bilal, Bhateeja of the complainant, was going to his house while plying on bicycle and when he reached near Shrine Sarkap on Wan Bachran-Musa Khel Road, at about 11:50 a.m, a white colour car came from behind and stopped there. A person having long height and slim physique alightened from the car and forcibly threw Muhammad Bilal inside the vehicle. Besides him, two other persons and one driver were also sitting in the car, who after putting Muhammad Bilal, bhateeja of the complainant, in the car went towards Wan Bachran. Hameed Ullah son of Gul Khan, bhateeja of the complainant, who was going to his house, witnessed the occurrence and disclosed the facts before the complainant. The complainant asserted that they were having no enmity with any other person and raised suspicion that Muhammad Bilal was kidnapped by unknown person for ransom.
4. On the statement of Gul Jahan (PW-4)/complainant, formal FIR (Exh.PC) was recorded by Zawar Hussain Inspector, (PW-5). Thereafter, he reached the place of occurrence and after inspecting the same, prepared rough site plan (Exh.PD). The Investigating Officer took into possession bicycle (P-1) and school bag (P-2) vide recovery memo. (Exh.PA). On 27.01.2007 he recorded the statements of Muhammad Bilal abductee and Hameedullah and Hakim Khan prosecution witnesses under Section 161, Cr.P.C. On 29.01.2007, the Investigating Officer took into possession Car No. LHK/5003 (P-3) and its registration book (P-4) vide recovery memo. Exh.PB. On 31.01.2007, the Investigating Officer arrested Rafiq Ahmed and Khalid Mehmood appellants. During the course of investigation, having found the accused/appellants guilty, the Investigating Officer while placing their names in column No. 3 of the report prepared under Section 173, Cr.P.C, sent the same to the Court of competent jurisdiction for its trial.
5. After submission of challan, the accused were summoned by the learned trial Court and in terms of order dated 20.02.2007, the learned Court seized with the matter, formally charge sheeted the accused/appellants to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case, produced as many as five prosecution witnesses. Muhammad Bilal, abductee/victim of the case, has appeared as PW-1. Haji Hameedullah Khan (PW-3) had witnessed the occurrence with regard to abduction of Muhammad Bilal and disclosed its facts to the complainant. Hakim Khan (PW-2) had paid the ransom amount to the accused and after payment received Muhammad Bilal. Zawar Hussain Inspector (PW-5) is the Investigating Officer of the case.
6. The learned Public Prosecutor vide his statement recorded on 20.02.2007, gave up Abdul Malik PW being unnecessary and thereafter closed the prosecution evidence.
7. Both the appellants were examined under Section 342, Cr.P.C.; wherein they opted to produce defence evidence, however, they decided not to appear as their own witnesses as provided under Section 340(2), Cr.P.C. in disproof of the allegations levelled against them. To a question, why the case against him and why the PWs deposed against him, Rafique Ahmed appellant made the following deposition:--
"I have been falsely involved in this case. I was married with the sister of Muhammad Hanif whereas my sister was married with said Muhammad Hanif on the basis of "Watta-Satta". Muhammad Hanif Mamoon of Bilal (PW) had divorced my sister whereas I did not divorce yet my wife Mst. Kasram Bibi sister of Hanif. Muhammad Hanif and family of Bilal (PW) after the divorce of my sister were also forcing me to divorce my wife Mst. Kasram. My wife after divorce of my sister is "Ghair-Abad" and residing with family of Muhammad Bilal since 2004. Muhammad Khan Hara Bhara was a notorious person and absconder in many cases. During the period of his ascension he also forced me to divorce my wife but I refused. After getting decisions of his cases, Muhammad Khan Hara Bhara again came back in the village. On his return he extended threats to me, my father and my brothers that as I was not obeying his orders, so he would not spare me. Muhammad Bilal in fact was abducted by Saleem and Pervez (POs) who are also absconders in other criminal cases. Muhammad Khan Hara Bhara was having close friendship with those absconders. Finding it a golden chance, he came to my house in the odd hours of night for committing crime and made firing there. Villagers also came who too made firing and in exchange of firing Muhammad Khan Hara Bhara was done to death in my house. I was not present in my house because I used to reside with my sister Mst. Nasreen whose husband is in Army. As there was no reason available for complainant of murder of Muhammad Khan Hara Bhara so they introduced a false motive of that case and i.e. abduction of Muhammad Bilal. As at every cost they wanted to prove the motive so there after story was concocted in regard to this occurrence and by way of fabrication I was falsely involved in this case. Muhammad Bilal is so closely related to me that I cannot think for committing his abduction. He is like my son. I am completely innocent."
While replying to similar question, Khalid Mehmood appellant made the following deposition:--
"I am a Taxi driver. On 19.01.2007 at about 10:00 a.m. Gul Riaz (PO) contacted me through telephone call from Chidru Chowk and asked me that as he had to go to village Wan Bhachran so I should reach there with my car and I would be paid Rs.400.00 as fare. I arrived there at Chidru Chowk where Gul Riaz (PO) and Rafiq accused were standing. They told me that they had to pick some persons from Chidru city and then to go to Wan Bachran. They sat with me in the car and then we proceeded towards Chidru city. On the way a man was standing. Gul Riaz (PO) told me that aforesaid man was his relative so he also sat with us. When we reached near Chidru close to thick bushes, Gul Riaz (PO) asked me to stop the car with a view that some persons from a dera near to that place had to be picked. All of a sudden Saleem and Pervez (POs) the absconders armed with Kalashnikovs emerged from bushes. Gul Riaz (PO) asked me to hand over my car to them as he had to take with him the persons of his family. I refused to give the key on which Saleem and Akhtar (POs) aimed me with Kalashnikovs asked me to accompany them otherwise I would be murdered. They took me on a mountain and got me feared that if I disclosed in this regard before any one I would be murdered and they also stated that they had too committed the murder of three persons in Court. Gul Riaz (PO) Rafiq accused and 3rd person who had joined from the way to whom I do not know had taken my car. After about 90 minutes they came back on my car alongwith a child. They paid me Rs. 250.00/- as fare and returned my car with threats that if I disclosed any thing, as they knew my residence, they would commit my murder. After coming to my house I immediately supplied this information to the family of Muhammad Bilal through owner of the car Abdul Jabbar. On the basis of my given information the police had been making raid for the arrest of those accused. Witnesses have deposed against me falsely as they had the apprehension that in case they exclude me from this case, it will cause damage to them. There was no reason for me whatsoever as I am a law abiding citizen to commit such a crime. I had also given my same statement to the Investigating Officer who did not record it correctly. I am innocent."
In defence Khawaja Sikandar Hayat appeared as DW-1 on behalf of Rafique Ahmed appellant. Khalid Mehmood appellant after tendering in evidence driving license (Exh.DC) closed his defence evidence on 22.02.2007.
8. The learned trial Court after hearing the arguments advanced by the prosecution as well as defence while evaluating the evidence available on record, found the version of the prosecution proved beyond any shadow of doubt against the appellants resulting into their conviction in the above stated terms.
9. Learned counsel for Rafique Ahmed appellant in Crl. Appeal No. 287/2007 while opening arguments stated that the appellant has been falsely roped in this case as the FIR is silent with regard to identity of any of the accused and statements of prosecution witnesses made during the course of trial whereby appellant has been named as an accused, require to be scrutinized with much care and caution. Learned counsel next stated that there is admitted previous enmity between the parties, which fact lends full support to the version of the appellant that he has been involved falsely in this case due to previous enmity. Learned counsel further contended that Muhammad Bilal, alleged abductee was neither student of Crescent Model School nor he was abducted by any person rather the case has been lodged maliciously. The manner of occurrence as put forth by Muhammad Bilal (PW-1), who admittedly is of tender age, learned counsel for the appellant vehemently submitted, calls for its comprehensive scrutiny and it can easily be termed as a tutored statement. It was next argued that even otherwise having close relationship with Muhammad Bilal abductee, there was no occasion for Rafique Ahmed appellant to commit such a heinous crime. Learned counsel next argued that the appellant has been involved due to previous family disputes as Muhammad Hanif Mamoon of Muhammad Bilal abductee had divorced his sister and wife of the appellant is also `Ghair Abad'. It was argued that even otherwise all the prosecution witnesses are closely related, who while appearing before the learned trial Court made dishonest improvements in their statements. Learned counsel for the appellant further contended that the learned trial Court was not justified in convicting the appellant while basing upon such a sketchy and uncorroborated evidence and he is entitled to his clean acquittal from the charges.
10. Learned counsel representing Khalid Mehmood appellant in Crl. Appeal No. 198-J/2007 stated that the appellant is a taxi driver, who had no concern with the occurrence. It was argued that the appellant did not participate in the occurrence rather the other co-accused including Saleem and Pervez (since POs) pretending to be customers hired his vehicle and thereafter took it away on gun point and subsequently abducted Muhammad Bilal. Learned counsel argued that first version of the appellant recorded by the police at the time of his arrest was the same as deposed during the course of trial, therefore, it carries much credence. It was vehemently contended by learned counsel that due to threats of dire consequences extended by the accused persons, the appellant could not inform the police or the complainant directly about the occurrence. To strengthen his stance, learned counsel for the appellant also referred case FIR No. 4/2007, dated 19.01.2007, offence under Sections 302, 34, PPC, lodged at Police Station Musa Khel regarding murder of Muhammad Khan taken place on the same evening in front of house of the appellant when the occurrence regarding abduction of Muhammad Bilal (PW-1) took place. It was next argued that the appellant had informed owner of the vehicle regarding the occurrence and on his information the police succeeded in arresting the accused persons. Learned counsel further stated that the appellant has been involved in the instant case in order to chain up the story and strengthen the prosecution version against the other co-accused. Learned counsel, in the circumstances, sought for clean acquittal of the appellant from the charges.
While arguing Writ Petition No. 2591/2007 seeking enhancement of sentence of the appellants, it was argued by learned counsel for both the appellants that as the prosecution failed to prove its case against the appellants, therefore, the writ petition being devoid of force is liable to be dismissed.
11. Contrarily, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by the learned counsel for the appellants. Learned Deputy Prosecutor General stated that it was a promptly lodged FIR as the occurrence had taken place at 11:50 a.m. on 19.01.2007 whereas, the same was reported to the police at 12:25 p.m. prosecution while leading cogent and confidence inspiring evidence proved its case against the appellants, therefore, the learned trial Court was well justified in convicting them. The pen-picture of the occurrence advanced by Muhammad Bilal, abductee, it was argued by learned counsel for the complainant, is not only trust worthy rather the same is sufficient enough to connect the appellants with the commission of offence. Although he was cross-examined at length but nothing adverse to the prosecution case could be detected from his testimony favouring the defence plea. It was next argued that all the prosecution witnesses are unanimous with regard to salient features of the prosecution version. The ransom amount received by the appellants is a circumstance, which cannot be lost sight of easily. Moreover, it was argued that the statement of Muhammad Bilal, in isolation is sufficient for conviction in such like cases. Learned Deputy Prosecutor General submitted that the appellants alongwith their co-accused committed a heinous offence, who were also found guilty during the course of investigation. It was further argued by learned counsel for the complainant that although the prosecution witnesses are closely related, however, their statements cannot be discarded merely on the basis of relationship rather these having been made by most natural witnesses carry much weight. Learned Deputy Prosecutor General went on arguing that in our society such incidents are increasing rapidly thereby creating insecurity among the general public, which need to be dealt with iron hands. The accused persons after kidnapping a young child, kept him away from his dear ones for 7/8 days, therefore, they deserve no leniency. It was lastly argued that the learned trial Court while examining the prosecution evidence available on the record in its true perspective rightly convicted the appellants and no exception can be made to the well reasoned judgment of the learned trial Court.
While arguing Writ Petition No. 2591/2007, learned counsel for the complainant argued that as the prosecution proved its case against the appellants to the hilt, therefore, they are entitled to normal sentence of death provided under the statute.
12. Arguments advanced from all corners have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants, learned counsel for the complainant, as well as, learned Deputy Prosecutor General.
13. As according to prosecution version Rafique Ahmed appellant has been alleged as one of the principal accused whereas, Khalid Mehmood stated to be taxi driver was involved in this case at a belated stage, therefore, we have been, compelled to examine both the cases independently while scrutinizing the prosecution evidence available on the record judiciously.
Firstly we dilate upon the case of Rafique Ahmed appellant in Crl. Appeal No. 287/2007. Admittedly it was a promptly lodged FIR as the occurrence had taken place at 11:50 a.m. on 19.02.2007 and the matter was reported to the police at 12:20 p.m. on the same day in which description of the accused has also been given. The time, manner and instrument of occurrence is not rebutted. The statement of Muhammad Bilal, alleged abductee, who appeared before the (sic). The minute details contained in the statement of Muhammad Bilal abductee/victim straightway not only appeal to prudent mind rather nevertheless he was subjected to lengthy cross-examination but nothing adverse to the prosecution version could be detected favouring the appellant. The statement of Muhammad Bilal, in isolation is an incriminating material, which cannot be easily discarded and the defence has also failed to even create a single dent in his testimony. The accused persons had kept Muhammad Bilal abductee, who admittedly was minor at that time, 7/8 days away from his dear ones and they also received the ransom amount. Car bearing Registration No. LHK/5003 used for abduction during the occurrence was also taken into possession. Although the appellant produced Khawaja Sikandar Hayat (DW-1) in defence, however, nothing could be established which may be taken as a circumstance in favour of the appellant. Hence, keeping in view the factum of abduction of Muhammad Bilal (PW-1) which remained un-rebutted coupled with the statement of Hakim Khan (PW-2), who had made the payment of ransom amount to the accused, recovery of car bearing registration No. LHK/5003 used as instrument for abduction and the fact that the appellant was found guilty during the course of investigation, we find that the prosecution proved its case against Rafique Ahmed appellant to the hilt. The appellant has failed to lead a single circumstance to rebut the prosecution evidence and the reasons advanced by the learned trial Court while convicting the appellant are confidence inspiring, therefore, we see no infirmity in the conviction recorded by the learned trial Court while delivering judgment dated 22.02.2007 to the extent of Rafique Ahmed appellant. Resultantly, Crl. Appeal No. 287/2007 filed by Rafique Ahmed appellant, being devoid of force, is hereby dismissed. Sentence and conviction passed by the learned trial Court through the impugned judgment is maintained.
14. Now we advert to the case of Khalid Mehmood appellant (Crl. Appeal No. 198-J/2007), who admittedly was involved in this case at a belated stage and bare examination/scrutiny of the prosecution evidence compels this Court to reappraise the prosecution to his extent.
The version of Khalid Mehmood appellant is that he was a taxi driver, the co-accused presenting themselves as customers hired his taxi and on the way to the destination, on gun point while extending the threats of dire consequences, he was dropped from the vehicle and asked to wait there. He was also directed by the accused persons not to disclose the occurrence otherwise threats of murder were extended. The most pivotal aspect of the case, which straightway goes in favour of Khalid Mehmood appellant is his first version recorded by the police that was reiterated while making statement made under Section 342, Cr.P.C, and the same is reproduced herein below at the cost of repetition:--
"I am a Taxi driver. On 19.01.2007 at about 10:00 a.m. Gul Riaz (PO) contacted me through telephone call from Chidru Chowk and asked me that as he had to go to village Wan Bhachran so I should reach there with my car and I would be paid Rs.400.00 as fare. I arrived there at Chidru Chowk where Gul Riaz (PO) and Rafiq accused were standing. They told me that they had to pick some persons from Chidru city and then to go to Wan Bachran. They sat with me in the car and then we proceeded towards Chidru city. On the way a man was standing. Gul Riaz (PO) told me that aforesaid man was his relative so he also sat with us. When we reached near Chidru close to thick bushes, Gul Riaz (PO) asked me to stop the car with a view that some persons from a dera near to that place had to be picked. All of a sudden Saleem and Pervez (POs) the absconders armed with Kalashnikovs emerged from bushes. Gul Riaz (PO) asked me to hand over my car to them as he had to take with him the persons of his family. I refused to give the key on which Saleem and Akhtar (Pos) aimed me with Kalashnikovs asked me to accompany them otherwise I would be murdered. They took me on a mountain and got me feared that if I disclosed in this regard before any one I would be murdered and they also stated that they had too committed the murder of three persons in Court. Gul Riaz (PO) Rafiq accused and 3rd person who had joined from the way to whom I do not know had taken my car. After about 90 minutes they came back on my car alongwith a child. They paid me Rs.250.00 as fare and returned my car with threats that if I disclosed any thing, as they knew my residence, they would commit my murder. After coming to my house I immediately supplied this information to the family of Muhammad Bilal through owner of the car Abdul Jabbar. On the basis of my given information the police had been making raid for the arrest of those accused. Witnesses have deposed against me falsely as they had the apprehension that in case they exclude me from this case, it will cause damage to them. There was no reason for me whatsoever as I am a law abiding citizen to commit such a crime. I had also given my same statement to the Investigating Officer who did not record it correctly. I am innocent."
The reason for not disclosing the description of occurrence directly either to the police or the complainant by the appellant was explained to be under the threats of murder raised by the other accused persons. He also referred case FIR No. 4/2007, dated 19.01.2007, offence under Sections 302, 34, PPC, lodged at Police Station Musa Khel; wherein one Muhammad Khan was done to death in front of house of the appellant. When all these facts and circumstances are put side-by-side especially keeping in view the most pivotal aspect of the case that first version of the appellant was reiterated by the appellant at the time of making statement Section 342, Cr.P.C. persuade this Court to believe that the stance taken by Khalid Mehmood appellant is not only trustworthy rather it also appeals to mind. Therefore, while adopting the principle of abundant caution have been persuaded to extent the benefit of doubt in favour of Khalid Mehmood appellant. Consequently Crl. Appeal No. 198-J/2007 is accepted as a result whereof conviction and sentence recorded by the learned trial Court in its judgment dated 22.02.2007 to the extent of Khalid Mehmood appellant is set aside. He is directed to be acquitted of the charge and released forthwith if not required in any other case.
15. So far as Writ Petition No. 2591/2007 filed by Gul Jahan, complainant seeking enhancement in sentence inflicted upon the accused/respondents by the learned trial Court is concerned, for the afore-stated reasons, the same has no substance, which is accordingly dismissed.
(R.A.) Appeal dismissed
PLJ 2012 Cr.C. (Lahore) 268 (DB)
Present: Sayyed Mazahar Ali Akbar Naqvi and Mazhar Iqbal Sidhu, JJ.
KHALID MEHMOOD--Petitioner
versus
STATE--Respondent
Crl. Appeals Nos. 287, 198-J and W.P. No. 2591 of 2007, heard on 30.11.2011.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 365-A & 34--Anti-Terrorism Act, (XXVII of 1997), S. 7(c)--Conviction and sentence recorded against accused by trial Court--Challenge to--Quantum of sentence--Accused was a taxi driver--No concern with occurrence--Version of accused--Reason for not disclosing description of occurrence directly either to police or complainant by taxi driver due to threat of murder by co-accused--Validity--First version of the accused was reiterated by accused at time of making statement u/S. 342, Cr.P.C. persuade High Court to believe that stance taken by accused was not only trustworthy rather it was also appeals to mind--While adopting principle of abundant caution--High Court had been persuaded to extent benefit of doubt in favour of the accused--Conviction and sentence to extent of the accused was set aside--Appeal was allowed. [P. 278] B
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 365-A & 34--Anti-Terrorism Act, (XXVII of 1997), S. 7(e)--Conviction and sentence recorded against accused by trial Court--Challenge to--Quantum of sentence--Previous enmity--Witnesses were closely related--Dishonest improvements--Sketchy and uncorroborated evidence--Time manner and instrument of occurrence was not rebutted--Received ranson amount--Recovery of car used as instrument for abduction--Validity--Prosecution proved its case against accused to hilt--Accused had failed to lead a single circumstance to rebut prosecution evidence and reasons advanced by trial Court while convicting accused were confidence inspiring--No infirmity in conviction recorded by trial Court while delivering judgment to extent of accused--Appeal was dismissed. [P. 276] A
Mr. Zafar Iqbal Chohan, Advocate for Appellants (in Crl. Appeal No. 287 of 2007).
Mr. Azhar Siddiqui Cheema, Advocate for Appellants (in Crl. Appeal No. 198-J of 2007).
Mr. Tanveer Javed, D.D.P.P. for State.
Mr. Shahid Azeem, Advocate for (Petitioner in W.P. No. 2591 of 2007).
Date of hearing: 30.11.2011.
Judgment
Sayyed Mazahar Ali Akbar Naqvi, J.--Rafique Ahmed son of Shah Jahan, caste Chabora, resident of Chaborawala, Tehsil and District Mianwali, appellant in Crl. Appeal No. 287/2007 and Khalid Mehmood son of Ahmed Khan, caste Bhatti, resident of Musa Khel, Tehsil and District Mianwali, appellant in Crl. Appeal No. 198-J/2007 alongwith Gul Riaz (co-convict) and Suleman and Pervaiz co-accused (since proclaimed offenders) were involved in case FIR No. 3, dated 19.01.2007, offence under Section 365-A, PPC, lodged at Police Station Musa Khel, District Mianwali, and were tried by learned Special Judge, Anti-Terrorism Court, Sargodha. The learned trial Court in terms of judgment dated 22.02.2007, convicted the appellants under Section 365/34, PPC, and sentenced each of them to undergo imprisonment for life with direction to forfeiture of their property. The appellants were also convicted under Section 7(e) of the Anti-Terrorism Act, 1997 and sentenced to undergo imprisonment for life each with forfeiture of property. Both the sentences were directed to run concurrently with benefit of Section 382-B, Cr.P.C.
2. Feeling aggrieved by the judgment of the learned trial Court Rafique Ahmed appellant assailed the same through filing Crl. Appeal No. 287/2007, whereas, Khalid Mehmood appellant filed Crl. Appeal No. 198-J of 2007. Being dissatisfied with the quantum of sentence inflicted upon the appellants, Gul Rehman complainant filed Writ Petition No. 2591/2007. As all the matters are arising out of one judgment passed by the learned trial Court passed while deciding the same FIR, therefore, these are being disposed of through single judgment.
3. The prosecution story as alleged in the FIR (Exh.PC) lodged on the statement of Gul Jahan (PW-4), is that he is cultivator and his nephew (bhateeja) namely Muhammad Bilal son of Muhammad Yousaf is student of 7th Class studying at Crescent Model High School. On 19.1.2007 after closing of the school, Muhammad Bilal, Bhateeja of the complainant, was going to his house while plying on bicycle and when he reached near Shrine Sarkap on Wan Bachran-Musa Khel Road, at about 11:50 a.m, a white colour car came from behind and stopped there. A person having long height and slim physique alightened from the car and forcibly threw Muhammad Bilal inside the vehicle. Besides him, two other persons and one driver were also sitting in the car, who after putting Muhammad Bilal, bhateeja of the complainant, in the car went towards Wan Bachran. Hameed Ullah son of Gul Khan, bhateeja of the complainant, who was going to his house, witnessed the occurrence and disclosed the facts before the complainant. The complainant asserted that they were having no enmity with any other person and raised suspicion that Muhammad Bilal was kidnapped by unknown person for ransom.
4. On the statement of Gul Jahan (PW-4)/complainant, formal FIR (Exh.PC) was recorded by Zawar Hussain Inspector, (PW-5). Thereafter, he reached the place of occurrence and after inspecting the same, prepared rough site plan (Exh.PD). The Investigating Officer took into possession bicycle (P-1) and school bag (P-2) vide recovery memo. (Exh.PA). On 27.01.2007 he recorded the statements of Muhammad Bilal abductee and Hameedullah and Hakim Khan prosecution witnesses under Section 161, Cr.P.C. On 29.01.2007, the Investigating Officer took into possession Car No. LHK/5003 (P-3) and its registration book (P-4) vide recovery memo. Exh.PB. On 31.01.2007, the Investigating Officer arrested Rafiq Ahmed and Khalid Mehmood appellants. During the course of investigation, having found the accused/appellants guilty, the Investigating Officer while placing their names in column No. 3 of the report prepared under Section 173, Cr.P.C, sent the same to the Court of competent jurisdiction for its trial.
5. After submission of challan, the accused were summoned by the learned trial Court and in terms of order dated 20.02.2007, the learned Court seized with the matter, formally charge sheeted the accused/appellants to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case, produced as many as five prosecution witnesses. Muhammad Bilal, abductee/victim of the case, has appeared as PW-1. Haji Hameedullah Khan (PW-3) had witnessed the occurrence with regard to abduction of Muhammad Bilal and disclosed its facts to the complainant. Hakim Khan (PW-2) had paid the ransom amount to the accused and after payment received Muhammad Bilal. Zawar Hussain Inspector (PW-5) is the Investigating Officer of the case.
6. The learned Public Prosecutor vide his statement recorded on 20.02.2007, gave up Abdul Malik PW being unnecessary and thereafter closed the prosecution evidence.
7. Both the appellants were examined under Section 342, Cr.P.C.; wherein they opted to produce defence evidence, however, they decided not to appear as their own witnesses as provided under Section 340(2), Cr.P.C. in disproof of the allegations levelled against them. To a question, why the case against him and why the PWs deposed against him, Rafique Ahmed appellant made the following deposition:--
"I have been falsely involved in this case. I was married with the sister of Muhammad Hanif whereas my sister was married with said Muhammad Hanif on the basis of "Watta-Satta". Muhammad Hanif Mamoon of Bilal (PW) had divorced my sister whereas I did not divorce yet my wife Mst. Kasram Bibi sister of Hanif. Muhammad Hanif and family of Bilal (PW) after the divorce of my sister were also forcing me to divorce my wife Mst. Kasram. My wife after divorce of my sister is "Ghair-Abad" and residing with family of Muhammad Bilal since 2004. Muhammad Khan Hara Bhara was a notorious person and absconder in many cases. During the period of his ascension he also forced me to divorce my wife but I refused. After getting decisions of his cases, Muhammad Khan Hara Bhara again came back in the village. On his return he extended threats to me, my father and my brothers that as I was not obeying his orders, so he would not spare me. Muhammad Bilal in fact was abducted by Saleem and Pervez (POs) who are also absconders in other criminal cases. Muhammad Khan Hara Bhara was having close friendship with those absconders. Finding it a golden chance, he came to my house in the odd hours of night for committing crime and made firing there. Villagers also came who too made firing and in exchange of firing Muhammad Khan Hara Bhara was done to death in my house. I was not present in my house because I used to reside with my sister Mst. Nasreen whose husband is in Army. As there was no reason available for complainant of murder of Muhammad Khan Hara Bhara so they introduced a false motive of that case and i.e. abduction of Muhammad Bilal. As at every cost they wanted to prove the motive so there after story was concocted in regard to this occurrence and by way of fabrication I was falsely involved in this case. Muhammad Bilal is so closely related to me that I cannot think for committing his abduction. He is like my son. I am completely innocent."
While replying to similar question, Khalid Mehmood appellant made the following deposition:--
"I am a Taxi driver. On 19.01.2007 at about 10:00 a.m. Gul Riaz (PO) contacted me through telephone call from Chidru Chowk and asked me that as he had to go to village Wan Bhachran so I should reach there with my car and I would be paid Rs.400.00 as fare. I arrived there at Chidru Chowk where Gul Riaz (PO) and Rafiq accused were standing. They told me that they had to pick some persons from Chidru city and then to go to Wan Bachran. They sat with me in the car and then we proceeded towards Chidru city. On the way a man was standing. Gul Riaz (PO) told me that aforesaid man was his relative so he also sat with us. When we reached near Chidru close to thick bushes, Gul Riaz (PO) asked me to stop the car with a view that some persons from a dera near to that place had to be picked. All of a sudden Saleem and Pervez (POs) the absconders armed with Kalashnikovs emerged from bushes. Gul Riaz (PO) asked me to hand over my car to them as he had to take with him the persons of his family. I refused to give the key on which Saleem and Akhtar (POs) aimed me with Kalashnikovs asked me to accompany them otherwise I would be murdered. They took me on a mountain and got me feared that if I disclosed in this regard before any one I would be murdered and they also stated that they had too committed the murder of three persons in Court. Gul Riaz (PO) Rafiq accused and 3rd person who had joined from the way to whom I do not know had taken my car. After about 90 minutes they came back on my car alongwith a child. They paid me Rs. 250.00/- as fare and returned my car with threats that if I disclosed any thing, as they knew my residence, they would commit my murder. After coming to my house I immediately supplied this information to the family of Muhammad Bilal through owner of the car Abdul Jabbar. On the basis of my given information the police had been making raid for the arrest of those accused. Witnesses have deposed against me falsely as they had the apprehension that in case they exclude me from this case, it will cause damage to them. There was no reason for me whatsoever as I am a law abiding citizen to commit such a crime. I had also given my same statement to the Investigating Officer who did not record it correctly. I am innocent."
In defence Khawaja Sikandar Hayat appeared as DW-1 on behalf of Rafique Ahmed appellant. Khalid Mehmood appellant after tendering in evidence driving license (Exh.DC) closed his defence evidence on 22.02.2007.
8. The learned trial Court after hearing the arguments advanced by the prosecution as well as defence while evaluating the evidence available on record, found the version of the prosecution proved beyond any shadow of doubt against the appellants resulting into their conviction in the above stated terms.
9. Learned counsel for Rafique Ahmed appellant in Crl. Appeal No. 287/2007 while opening arguments stated that the appellant has been falsely roped in this case as the FIR is silent with regard to identity of any of the accused and statements of prosecution witnesses made during the course of trial whereby appellant has been named as an accused, require to be scrutinized with much care and caution. Learned counsel next stated that there is admitted previous enmity between the parties, which fact lends full support to the version of the appellant that he has been involved falsely in this case due to previous enmity. Learned counsel further contended that Muhammad Bilal, alleged abductee was neither student of Crescent Model School nor he was abducted by any person rather the case has been lodged maliciously. The manner of occurrence as put forth by Muhammad Bilal (PW-1), who admittedly is of tender age, learned counsel for the appellant vehemently submitted, calls for its comprehensive scrutiny and it can easily be termed as a tutored statement. It was next argued that even otherwise having close relationship with Muhammad Bilal abductee, there was no occasion for Rafique Ahmed appellant to commit such a heinous crime. Learned counsel next argued that the appellant has been involved due to previous family disputes as Muhammad Hanif Mamoon of Muhammad Bilal abductee had divorced his sister and wife of the appellant is also `Ghair Abad'. It was argued that even otherwise all the prosecution witnesses are closely related, who while appearing before the learned trial Court made dishonest improvements in their statements. Learned counsel for the appellant further contended that the learned trial Court was not justified in convicting the appellant while basing upon such a sketchy and uncorroborated evidence and he is entitled to his clean acquittal from the charges.
10. Learned counsel representing Khalid Mehmood appellant in Crl. Appeal No. 198-J/2007 stated that the appellant is a taxi driver, who had no concern with the occurrence. It was argued that the appellant did not participate in the occurrence rather the other co-accused including Saleem and Pervez (since POs) pretending to be customers hired his vehicle and thereafter took it away on gun point and subsequently abducted Muhammad Bilal. Learned counsel argued that first version of the appellant recorded by the police at the time of his arrest was the same as deposed during the course of trial, therefore, it carries much credence. It was vehemently contended by learned counsel that due to threats of dire consequences extended by the accused persons, the appellant could not inform the police or the complainant directly about the occurrence. To strengthen his stance, learned counsel for the appellant also referred case FIR No. 4/2007, dated 19.01.2007, offence under Sections 302, 34, PPC, lodged at Police Station Musa Khel regarding murder of Muhammad Khan taken place on the same evening in front of house of the appellant when the occurrence regarding abduction of Muhammad Bilal (PW-1) took place. It was next argued that the appellant had informed owner of the vehicle regarding the occurrence and on his information the police succeeded in arresting the accused persons. Learned counsel further stated that the appellant has been involved in the instant case in order to chain up the story and strengthen the prosecution version against the other co-accused. Learned counsel, in the circumstances, sought for clean acquittal of the appellant from the charges.
While arguing Writ Petition No. 2591/2007 seeking enhancement of sentence of the appellants, it was argued by learned counsel for both the appellants that as the prosecution failed to prove its case against the appellants, therefore, the writ petition being devoid of force is liable to be dismissed.
11. Contrarily, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by the learned counsel for the appellants. Learned Deputy Prosecutor General stated that it was a promptly lodged FIR as the occurrence had taken place at 11:50 a.m. on 19.01.2007 whereas, the same was reported to the police at 12:25 p.m. prosecution while leading cogent and confidence inspiring evidence proved its case against the appellants, therefore, the learned trial Court was well justified in convicting them. The pen-picture of the occurrence advanced by Muhammad Bilal, abductee, it was argued by learned counsel for the complainant, is not only trust worthy rather the same is sufficient enough to connect the appellants with the commission of offence. Although he was cross-examined at length but nothing adverse to the prosecution case could be detected from his testimony favouring the defence plea. It was next argued that all the prosecution witnesses are unanimous with regard to salient features of the prosecution version. The ransom amount received by the appellants is a circumstance, which cannot be lost sight of easily. Moreover, it was argued that the statement of Muhammad Bilal, in isolation is sufficient for conviction in such like cases. Learned Deputy Prosecutor General submitted that the appellants alongwith their co-accused committed a heinous offence, who were also found guilty during the course of investigation. It was further argued by learned counsel for the complainant that although the prosecution witnesses are closely related, however, their statements cannot be discarded merely on the basis of relationship rather these having been made by most natural witnesses carry much weight. Learned Deputy Prosecutor General went on arguing that in our society such incidents are increasing rapidly thereby creating insecurity among the general public, which need to be dealt with iron hands. The accused persons after kidnapping a young child, kept him away from his dear ones for 7/8 days, therefore, they deserve no leniency. It was lastly argued that the learned trial Court while examining the prosecution evidence available on the record in its true perspective rightly convicted the appellants and no exception can be made to the well reasoned judgment of the learned trial Court.
While arguing Writ Petition No. 2591/2007, learned counsel for the complainant argued that as the prosecution proved its case against the appellants to the hilt, therefore, they are entitled to normal sentence of death provided under the statute.
12. Arguments advanced from all corners have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants, learned counsel for the complainant, as well as, learned Deputy Prosecutor General.
13. As according to prosecution version Rafique Ahmed appellant has been alleged as one of the principal accused whereas, Khalid Mehmood stated to be taxi driver was involved in this case at a belated stage, therefore, we have been, compelled to examine both the cases independently while scrutinizing the prosecution evidence available on the record judiciously.
Firstly we dilate upon the case of Rafique Ahmed appellant in Crl. Appeal No. 287/2007. Admittedly it was a promptly lodged FIR as the occurrence had taken place at 11:50 a.m. on 19.02.2007 and the matter was reported to the police at 12:20 p.m. on the same day in which description of the accused has also been given. The time, manner and instrument of occurrence is not rebutted. The statement of Muhammad Bilal, alleged abductee, who appeared before the (sic). The minute details contained in the statement of Muhammad Bilal abductee/victim straightway not only appeal to prudent mind rather nevertheless he was subjected to lengthy cross-examination but nothing adverse to the prosecution version could be detected favouring the appellant. The statement of Muhammad Bilal, in isolation is an incriminating material, which cannot be easily discarded and the defence has also failed to even create a single dent in his testimony. The accused persons had kept Muhammad Bilal abductee, who admittedly was minor at that time, 7/8 days away from his dear ones and they also received the ransom amount. Car bearing Registration No. LHK/5003 used for abduction during the occurrence was also taken into possession. Although the appellant produced Khawaja Sikandar Hayat (DW-1) in defence, however, nothing could be established which may be taken as a circumstance in favour of the appellant. Hence, keeping in view the factum of abduction of Muhammad Bilal (PW-1) which remained un-rebutted coupled with the statement of Hakim Khan (PW-2), who had made the payment of ransom amount to the accused, recovery of car bearing registration No. LHK/5003 used as instrument for abduction and the fact that the appellant was found guilty during the course of investigation, we find that the prosecution proved its case against Rafique Ahmed appellant to the hilt. The appellant has failed to lead a single circumstance to rebut the prosecution evidence and the reasons advanced by the learned trial Court while convicting the appellant are confidence inspiring, therefore, we see no infirmity in the conviction recorded by the learned trial Court while delivering judgment dated 22.02.2007 to the extent of Rafique Ahmed appellant. Resultantly, Crl. Appeal No. 287/2007 filed by Rafique Ahmed appellant, being devoid of force, is hereby dismissed. Sentence and conviction passed by the learned trial Court through the impugned judgment is maintained.
14. Now we advert to the case of Khalid Mehmood appellant (Crl. Appeal No. 198-J/2007), who admittedly was involved in this case at a belated stage and bare examination/scrutiny of the prosecution evidence compels this Court to reappraise the prosecution to his extent.
The version of Khalid Mehmood appellant is that he was a taxi driver, the co-accused presenting themselves as customers hired his taxi and on the way to the destination, on gun point while extending the threats of dire consequences, he was dropped from the vehicle and asked to wait there. He was also directed by the accused persons not to disclose the occurrence otherwise threats of murder were extended. The most pivotal aspect of the case, which straightway goes in favour of Khalid Mehmood appellant is his first version recorded by the police that was reiterated while making statement made under Section 342, Cr.P.C, and the same is reproduced herein below at the cost of repetition:--
"I am a Taxi driver. On 19.01.2007 at about 10:00 a.m. Gul Riaz (PO) contacted me through telephone call from Chidru Chowk and asked me that as he had to go to village Wan Bhachran so I should reach there with my car and I would be paid Rs.400.00 as fare. I arrived there at Chidru Chowk where Gul Riaz (PO) and Rafiq accused were standing. They told me that they had to pick some persons from Chidru city and then to go to Wan Bachran. They sat with me in the car and then we proceeded towards Chidru city. On the way a man was standing. Gul Riaz (PO) told me that aforesaid man was his relative so he also sat with us. When we reached near Chidru close to thick bushes, Gul Riaz (PO) asked me to stop the car with a view that some persons from a dera near to that place had to be picked. All of a sudden Saleem and Pervez (POs) the absconders armed with Kalashnikovs emerged from bushes. Gul Riaz (PO) asked me to hand over my car to them as he had to take with him the persons of his family. I refused to give the key on which Saleem and Akhtar (Pos) aimed me with Kalashnikovs asked me to accompany them otherwise I would be murdered. They took me on a mountain and got me feared that if I disclosed in this regard before any one I would be murdered and they also stated that they had too committed the murder of three persons in Court. Gul Riaz (PO) Rafiq accused and 3rd person who had joined from the way to whom I do not know had taken my car. After about 90 minutes they came back on my car alongwith a child. They paid me Rs.250.00 as fare and returned my car with threats that if I disclosed any thing, as they knew my residence, they would commit my murder. After coming to my house I immediately supplied this information to the family of Muhammad Bilal through owner of the car Abdul Jabbar. On the basis of my given information the police had been making raid for the arrest of those accused. Witnesses have deposed against me falsely as they had the apprehension that in case they exclude me from this case, it will cause damage to them. There was no reason for me whatsoever as I am a law abiding citizen to commit such a crime. I had also given my same statement to the Investigating Officer who did not record it correctly. I am innocent."
The reason for not disclosing the description of occurrence directly either to the police or the complainant by the appellant was explained to be under the threats of murder raised by the other accused persons. He also referred case FIR No. 4/2007, dated 19.01.2007, offence under Sections 302, 34, PPC, lodged at Police Station Musa Khel; wherein one Muhammad Khan was done to death in front of house of the appellant. When all these facts and circumstances are put side-by-side especially keeping in view the most pivotal aspect of the case that first version of the appellant was reiterated by the appellant at the time of making statement Section 342, Cr.P.C. persuade this Court to believe that the stance taken by Khalid Mehmood appellant is not only trustworthy rather it also appeals to mind. Therefore, while adopting the principle of abundant caution have been persuaded to extent the benefit of doubt in favour of Khalid Mehmood appellant. Consequently Crl. Appeal No. 198-J/2007 is accepted as a result whereof conviction and sentence recorded by the learned trial Court in its judgment dated 22.02.2007 to the extent of Khalid Mehmood appellant is set aside. He is directed to be acquitted of the charge and released forthwith if not required in any other case.
15. So far as Writ Petition No. 2591/2007 filed by Gul Jahan, complainant seeking enhancement in sentence inflicted upon the accused/respondents by the learned trial Court is concerned, for the afore-stated reasons, the same has no substance, which is accordingly dismissed.
(R.A.) Appeal dismissed
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