Monday, 1 October 2018

PLJ 2017 Cr.C. (Lahore) 681 (DB)


[Multan Bench Multan]
PresentCh. Mushtaq Ahmad and Sardar Ahmed Naeem, JJ.
MUHAMMAD JAVED and others--Appellants
versus
STATE, etc.--Respondents
Crl. A. Nos. 70-ATA to 74-ATA of 2011, Crl. Rev. No. 408 of 2011,
heard on 24.4.2017.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 365-A--Anti-Terrorism Act, (XXV of 1997), S. 7(c)--Conviction and sentence--Challenge to--Abduction--Prosecution could not establish the place of abduction if it was Sahiwal or Islamabad. No body had seen the abductee in the company of the appellants. The complainant did not nominate the caller, who settled the amount of ransom, though, two appellants including two person, allegedly, received and counted the amount for ransom. The abductee failed to describe the place of his confinement, made mere mention of “Katcha room”--Held: It is by now settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to extend benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubts about the prosecution story--Hon’ble Supreme Court of Pakistan, was pleased to observe that the concept of benefit of doubt to an accused person is deep rooted in our country--For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then, the accused unit be entitled to the benefit not as a matter of grace and concession but as a matter of right--Apex Court reiterated the same principle--Prosecution had not been able to prove its case against the appellants beyond any shadow of doubt--Appeals are allowed.
                                                                          [Pp. 686 & 687] A & C
2007 SCMR 230, ref.
Onus of Proof--
----Principle--It is settled law that the onus of proof in criminal cases never shifts and it is imperative for the prosecution to prove its case against the accused, beyond reasonable doubt. [P. 687] B
Prince Rehan Iftikhar Sheikh, Advocate for Appellant (Muhammad Javed in Crl. A. No. 70-ATA of 2011 and MstTabassam alias Robina in Crl. A. No. 73-ATA of 2011).
Malik Muhammad Ahsan Karol, Advocate for Appellants (Raheem Zada alias Gul Khan in Crl. A. No. 71-ATA of 2011, Abdul Hameed in Crl. A. No. 72-ATA of 2011 and Nawaz Khan in Crl. A. No. 74-ATA of 2011).
Mr. Abdul Aziz Khan, Advocate for Petitioner (Bashir Ahmad in Criminal Revsion No. 408 of 2011).
Mr. Riaz Ahmad SaghlaDeputy Prosecutor General for State.
Date of hearing: 24.4.2017.
Judgment
Sardar Ahmed Naeem, J.--Muhammad JavedRaheem Zada alias Gul Khan, Abdul HameedMstTabassam alias Robina, and Nawaz Khan accused/appellants were tried by the learned Judge, Anti-Terrorism Court No. II Multan in case F.I.R No. 407 dated 03.07.2010 under Sections 365-A, PPC read with Section 7 of the Anti-Terrorism Act, 1997 registered at Police Station Farid Town, District Sahiwal. At the conclusion of the trial vide judgment dated 24.08.2011, the learned trial Court convicted and sentenced the appellants as under:--
(i)       Under Section 365-A, PPC and sentenced to imprisonment for life to each appellant. The property of each appellant was ordered to be forfeited in favour of the State.
(ii)      Under Section 7 (e) of the Anti-Terrorism Act, 1997 and sentenced to imprisonment for life to each appellant. The property of each appellant was ordered to be forfeited in favour of the State.
          Benefit of Section 382-B was also extended to them.
          The ransom amount having been recovered was ordered to be handed over to Bashir Ahmad complainant, subject to the decision of appeal or revision, if any, filed against the judgment.
All the sentences were ordered to run concurrently.
2.  The convict/accused Muhammad Javed filed Criminal Appeal No. 70-ATA of 2011, Raheem Zadaalias Gul Khan convict/accused filed Criminal Appeal No. 71-ATA of 2011, Abdul Hameed convict/accused filed Criminal Appeal No. 72-ATA of 20111, MstTabassam alias Robina convict/accused filed Criminal Appeal No. 73-ATA of 2011 and Nawaz Khan convict/accused filed Criminal Appeal No. 74-ATA of 2011 challenging their conviction and sentence whereas Bashir Ahmad complainant filed Criminal Revision No. 408/2011 for enhancement of life Imprisonment to capital punishment. All these matters shall be decided through single judgment.
3.  Briefly narrated the facts evincing from complaint Exh.PC made by Bashir Ahmad complainant on the basis of which formal FIR Exh.PH was chalked out are that on 01.07.2010 at about 7.00 p.m. his son namely Usman Ahmad (aged about 27 years) was missing. On 02.07.2010 at 9.00 p.m, his son told him regarding his abduction through telephone and requested to do something. The abductors talked the complainant and demanded One Crore Rupees as ransom for his release within three days on which, complainant requested the abductors that he was not so financially sound. The abductors telephonically repeated their demands three times. The abductors also extended threats of dire consequences.
4.  After usual investigation, challan was submitted before the Court.
5.  The prosecution in order to prove its case produced as many as six witnesses including Muhammad Sajid Khan, Civil Judge Cum Judicial Magistrate (PW-1), Bashir Ahmad (PW-2), Ch. UsmanAhmad (PW-3), Muhammad Shoaib ASI (PW-4), Zahoor Ahmad SI (PW-5) and Saeed Ahmad SHO (PW-6).
Learned Public Prosecutor closed the prosecution case vide his separate statement dated 18.7.2011.
6.  After conclusion of the prosecution evidence, statements of the accused were recorded. They refuted the prosecution allegations leveled against them and claimed innocence. Replying to a question why this case against him and why the PWs have deposed against him, Muhammad Javed appellant deposed as under:
“It is a false case. Police has arrested me just to show their efficiency as it was an unseen occurrence committed by unknown persons. All the PWs are inter related with each other. Private PWs are father and son while official PWs just to show their efficiency have deposed against me”
The remaining appellants also replied the same question in the same manner as described by Muhammad Javed, appellant.
They did not opt to appear as their own witnesses under Section 340(2), Cr.P.C. nor opt to produce any witness in defence.
7.  Learned counsel for the appellants at the very outset emphasized that the prosecution has utterly failed to furnish the evidence on the point of payment of ransom. It was argued that there was no eye-witness of this occurrence; that there was no question of holding the test identification parade, in particular, when the complainant had earlier nominated all the appellants in his supplementary statement and when the abductee has spent ten days of his captivity with all the accused; that the place of abduction was not established by the prosecution if it was Chak No. 86/6-R or Peshawar Mor Islamabad; that the story of prosecution that all the appellants came from Mala Kand to Noor Shah Chatha Garden Sahiwal was highly improbable; that the prosecution evidence was replete with doubts regarding mode and manner of making the payment of ransom amount and the recipient of that amount; that there was no detail regarding place of confinement of the abductee except a “Katcha room”; that the offence of abduction for ransom within the meaning of Section 365-A, PPC was not made out; that even the offence under Section 365, PPC has not been made out; that the complainant himself was not the eye-witness of the occurrence; that the case of the prosecution was full of discrepancies/contradictions as well as doubts, thus, the appellants are entitled to acquittal. Learned counsel in this context relied upon MstSafdar Jan v. The State and another” (1997 PCr.LJ 1553), “Abdul Karim alias Raja and another v. The State” (1996 PCr.LJ 503), Khadim Hussain v. The State” (1985 SCMR 721) and “Imdad Jakhro v. The State” (1994 PCr.LJ 1648)
8.  Learned Deputy Prosecutor General assisted by the learned counsel for the complainant argued that the prosecution has proved its case against the appellants beyond reasonable doubt; that in cases of abduction for ransom the determining factor is the objective behind the crime; that cases of abduction for ransom are to be dealt with iron hands and even if there are minor discrepancies and deviation in evidence or short falls on the part of investigating agency, the approach of the Court should always be dynamic and pragmatic, drawing the correct and rational inferences and questions arising out of the facts and circumstances of each case; that the defects, if any, in holding the test identification parade, was not fatal to the prosecution case as the abductee during his captivity had ample time to see the accused; that passing of money was not a prerequisite to prove Section 365-A, PPC; that the recovery of the ransom amount was effected from the appellants; that the abductee has no ill will, grudge or grouse for false implication of the appellants; that all the witnesses were consistent; that the appellants abducted UsmanAhmad and demanded/received ransom amount from the complainant and thus, the prosecution discharged its initial burden and it was for the appellants to dislodge the same. They supported the impugned judgment.
9.  The complainant Bashir Ahmad. (PW.2) was father of Usman Ahmad, abductee. He went out of his house on 01.7.2010 and did not return. On 02.7.2010, a phone call was received by the complainant regarding abduction of his son Usman Ahmad and demand of ransom and then after the ransom call, the complainant got registered the FIR against the unknown accused. It was in the evidence that the appellants abducted Usman Ahmad from outside of his house. It was in the evening, however, no exact time finds mention in the statements of the witnesses. Initially, Rs. 10 (million) was the demand of the appellants and ultimately, it was settled as Rs. 01(M). The case of the prosecution was that on 12.7.2010, all the appellants came to Noor Shah Chatha Garden Sahiwal by their own car and after receiving the ransom amount handed over the abductee to the complainant, who got recorded his supplementary statement on 12.7.2010, nominating the appellants. In his statement, he has not mentioned the source of information regarding the acquaintance with the appellants.
10.  As mentioned above, learned counsel for the appellants criticized the manner of holding the test identification parade and, submitted that holding of such parade was overdoing on the part of the prosecution.
11.  In case titled Zakir Khan and others v. The State” (1995 SCMR 793), it was observed that where the abductee remained with the accused during the captivity and had abeady seen their faces, holding of an identification parade was not a mandatory requirement. View taken in “Muhammad Akbar v.The State”, (1998 SCMR 2538) was also on the same lines wherein observation has been made as reproduced below dispensing with the test identification parade in the peculiar circumstances of the case:
“……It is only one of the methods to test veracity of the evidence of an eye-witness who has had an occasion to see the accused and claims to identify him. The observations made in the three judgments of this Court, relied upon by the learned counsel for the petitioner, do not advance the petitioner’s case as it is not a case where the witnesses had a momentary glimpse of the accused. Where a witness has spent considerable time with the accused and has had an opportunity to take a good look at him, holding of such test would not be necessary.”
12.  In view of the principle laid down by the Supreme Court in the above mentioned case, it is to be assessed to what extent the abductee has identified and involved the accused-appellants and, additionally need normal rules of appraisal of evidence, if his evidence is inherently believable, confidence inspiring and free from a motive to implicate the appellants falsely.
13.  As mentioned above, the prosecution could not establish the place of abduction if it was Sahiwal or Islamabad. No body had seen the abductee in the company of the appellants. The complainant did not nominate the caller, who settled the amount of ransom, though, two appellants including Abdul Hameed and Rahim Zada, allegedly, received and counted the amount for ransom. The abductee failed to describe the place of his confinement, made mere mention of “Katcha room”. The appellants are resident of Khyber Pakhtoon Khawa and thus, it was mentioned by the abductee that he was confined/kept at Mala Kand. Who brought the abductee to Mala Kand and how was he shifted to that place, there was no material on the file. The offences like abduction for ransom are pre-planned and always committed through a gang with different assignments to different accused including abduction, shifting, security, settlement of ransom, receiving the amount and the ultimate release of the abductee. In this case, the prosecution failed to produce any evidence regarding the date and time of abduction of the appellants. There was no specific mention regarding abductor (s). Who shifted the appellant from Sahiwal to Mala Kand no evidence was led by the prosecution. Though the approach of the Criminal Courts in such like cases should be dynamic and technicalities should be avoided but it is settled law that the onus of proof in criminal cases never shifts and it is imperative for the prosecution to prove its case against the accused, beyond reasonable doubt. The survey of the entire evidence available on the record suggests the following shortcomings in the prosecution’s case:
(i)       The prosecution was uncertain regarding the place of abduction, if Sahiwal or Islamabad;
(ii)      No specific role was assigned to any of the appellant;
(iii)     The story of the prosecution about the arrival of the appellant from Mala Kand to Sahiwal by a white coloured car and then handing over the abductee after receiving the ransom amount was highly improbable as in abduction cases, the accused tried their best to conceal their identity;
(iv)     No details find mention in the statement of the omplainant regarding the caller, who initially made call for ransom and then, settled the ransom amount and received the same;
(v)      The white coloured car was never taken into possession;
(vi)     No fard Shanakhat of place of recovery of abductee was prepared during the investigation.
14.  It is by now settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to extend benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubts about the prosecution story. In “Tariq Pervez v. The State” (1995 SCMR 1345), the Hon’ble Supreme Court of Pakistan, at page No. 1347, was pleased to observe that the concept of benefit of doubt to an accused person is deep rooted in our country.

For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then, the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. The apex Court reiterated the same principle, in the case of “Muhammad Akram v. The State” (2009 SCMR 230).
15.  For what has been discussed above, we have come to the irresistible conclusion that the prosecution had not been able to prove its case against the appellants beyond any shadow of doubt. Hence, the Crl. Appeal No. 70-ATA of 2011, Crl. Appeal No. 71-ATA of 2011, Crl. Appeal No. 72-ATA of 2011, Crl. Appeal No. 73-ATA of 2011, Crl. Appeal No. 74-ATA of 2011 are hereby accepted. The impugned judgment of conviction and sentence recorded by the learned trial Court vide judgment dated 24.8.2011 against the appellants is set aside and they are acquitted of the charges by extending them benefit of doubt. They shall be released from jail forthwith if not required in any other criminal case.
16.  In view of the above, there is no merit in Criminal Revision No. 408 of 2011 which is hereby dismissed.
(A.A.K.)          Appeals allowed

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