PLJ 2022 Cr.C. 47 (DB)
[Lahore High Court, Lahore]
Present: Miss
Aalia Neelum and Farooq Haider, JJ.
MAZHAR
ABBAS--Appellant
versus
STATE
and another--Respondents
Crl. A. No.
75131 of 2019, heard on 30.9.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 365-A--Anti-Terrorism Act, (XXVII of 1997), S. 7--Neither
demand for ransom has been proved nor ransom has been paid and trial Court held
that Section 365-A, PPC has not been proved--No one was named as accused in
application for registration of case-- PWs saw alleged abduction of
alleged detenue but they both have not deposed against appellant in Court,
rather they clearly stated that appellant is not involved in aforementioned
abduction--Raided house of present appellant in village--Statedly recovered
detenue from there but neither any Rapat (رپٹ) of Rozenamcha (روز
نامچہ) of any Police Station from Lahore about their departure on
that day for Hafizabad nor any Rapat (رپٹ) of Rozenamcha (روز
نامچہ) about their arrival in Police Station--Non-production of said
rapats (رپٹس)/entries of Rozenamcha (روز
نامچہ) is fatal for case of prosecution and said recovery is,
therefore, not reliable--As far as recovery of motor-cycle is concerned, no
colour, make, model or registration number of motor-cycle is mentioned in
application for registration of case and site plan--Letters containing demand
of ransom amount by appellant is concerned, neither same were sealed by police
officer after taking into possession nor immediately sent to laboratory, rather
same were sent with specimen of handwriting after arrest of appellant, so
report of PFSA in that regard is of no help to case of prosecution--Prosecution
has been failed to prove its case against appellant beyond shadow of doubt and
in such state of affairs there is no need to discuss defence version. [Pp. 49, 50, 51, 52 & 53] A, B, C, D, E, F
& G
Mian Pervaiz Hussain,
Advocate for Appellant.
Mr. Muhammad Moeen Ali,
Deputy Prosecutor General for State.
Date of hearing: 30.9.2021.
Judgment
Farooq Haider, J.--Through
instant criminal appeal, Mazhar Abbas (appellant) has assailed the judgment
dated: 30.11.2019 passed by learned Judge Anti-Terrorism Court-III, Lahore,
whereby in case arising out of F.I.R. No. 1041/2019, dated: 29.06.2019
registered under Sections: 363 PPC (subsequently offence under Section 365-A,
PPC read with Section 7 of Anti-Terrorism Act, 1997 were added) at Police
Station: Shafique Abad, District: Lahore, learned trial Court by holding that
charge under Section 365-A, PPC has not been proved, convicted and sentenced
him as under:
|
Convictions |
Sentences |
|
Under Section 363, PPC |
“Rigorous Imprisonment for 07
years” with fine of Rs. 25,000/- and in default thereof to further
undergo six months Simple Imprisonment. |
|
Under Section 343, PPC |
“Rigorous Imprisonment for 02
years”. |
Both the sentences were ordered
to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended to
the convict/appellant.
2. Brief facts, as per written application (Ex.PA) submitted by
Muhammad Waseem (complainant/PW-12), are that on 29.06.2019 at 01:45 p.m.,
Meerab (daughter of complainant aged about 9/10 years wearing pink shirt and
trousers, mentally retarded) went outside the house of complainant in order to
purchase some eatable things from shop but some unknown accused abducted her
and this occurrence of abduction was witnessed by Haji Tariq (PW-17) and Usman
(PW-18).
On the basis of above said application, case
vide F.I.R. No. 1041/2019 dated: 29.06.2019 under Section
363, PPC (Ex.PA/1) was registered at Police Station: Shafique Abad, District:
Lahore.
3. On the conclusion of the investigation, the appellant was
challaned to the Court and was formally charged under Sections: 365-A, PPC and
Section 7(e) of the Anti-Terrorism Act, 1997, to which he pleaded not guilty
and claimed trial.
4. Prosecution got examined twenty two witnesses and while
giving up formal witnesses i.e. Muhammad Amir 2222/C, Tanveer Inayat
12694/C, Abdul Wahab S.I., Zul Norain 20769/C and tendering reports of Punjab
Forensic Science Agency, Lahore (Ex.PY/1-2 and Ex.PZ/1-2), closed its evidence.
Then statement of the accused/appellant was recorded under Section 342, Cr.P.C.
in which he refuted the allegations leveled against him; he did not record his
statement under Section 340(2), Cr.P.C. and also did not produce any evidence
in his defence.
5. The learned trial Court after conclusion of the trial has
convicted and sentenced the appellant as mentioned above vide impugned
judgment dated: 30.11.2019.
6. Learned counsel for the appellant has submitted that
conviction recorded and sentence awarded to the appellant through impugned
judgment are against the law and facts; learned trial Court failed to
appreciate material available on the record; impugned judgment is result of
misreading and non- reading of evidence. He prayed for acquittal of the appellant.
7. Conversely, learned Deputy Prosecutor General while
controverting the submissions of learned counsel for the appellant has
supported the impugned judgment of the learned trial Court by contending that
the appellant was rightly convicted and sentenced, therefore, there is no
substance in the appeal.
8. Arguments heard. Record perused.
9.
Admittedly neither demand for ransom has been proved nor ransom has been paid
and learned trial Court held that Section 365-A, PPC has not been proved;
furthermore, neither state nor complainant has challenged said finding till
now.
10.
It has been noticed that no one was named as accused in application for
registration of case i.e. Ex.PA and in the FIR Ex.PA/1; it is mentioned
in the application for registration of case (Ex.PA) that Haji Tariq (PW-17) and
Usman (PW-18) saw alleged abduction of Meerab (alleged detenue) but they both
have not deposed against appellant in the Court, rather they clearly stated
that appellant is not involved in aforementioned abduction; in this regard,
relevant portions of statement of Haji Tariq (PW-17) are hereby reproduced:-
“Mazhar
Abbas, present in Court is not the accused of this case. I have no objection if
he is acquitted from this case. Police obtained my signatures on different
black papers. The alleged abductee minor was mentally retarted.”
“I was
standing there and was purchasing onion from the vegetable shop when I saw
Meerab abductee there. I was busy in purchasing of onion and after 01 minute
Meerab was not there and I could not see the face of accused who abducted
Meerab as he was far away from me. I cannot identify the person who committed
abduction of Meerab.”
“Police
obtained my signatures on plain papers.”
“it is correct that the accused present has not abducted the
minor.”
Relevant portions
of statement of Usman (PW-18) are also hereby reproduced:
“The present accused Mazhar Abbas is not identified by me during
abduction as the abductor was wearing helmet. According to my knowledge Mazhar
Abbas accused, present in the Court is not the person who abducted the minor.”
“I
could not see the face of accused who abducted Meerab as he was far away from
me. I cannot identify the person who committed abduction of Meerab. It is
incorrect to suggest that the present accused abducted Meerab for ransom in my
presence.”
“I do
not know that whether or not complainant Muhammad Waseem produced 02 snapshots
of Meerab before the Investigating Officer. It is incorrect to suggest that I
am deposing falsely in this regard. Police obtained my signatures on plain
papers.”
“It is correct that the accused present has not abducted the minor.”
Even any other witness has not deposed
in the Court to the effect that he has seen present appellant while abducting
alleged detenue, namely, Meerab. So nutshell is that any substantive evidence
in the form of eye-witness account, last-seen or even Waj takkar has not been
produced by the prosecution to prove the abduction of alleged detenue,
therefore, prosecution has been failed to establish charge of abduction against
present appellant.
11.
As far as alleged recovery of abductee from the custody and house of appellant
is concerned, it is important to mention here that raiding team was comprising
upon Sajwar Tariq Inspector (PW-14), Ishfaq Butt Inspector/Investigating
Officer (PW-21) and other police officials, who were posted in Lahore, case was
also registered in Lahore and same was being investigated in Lahore, however,
they raided house of present appellant in village Kurriala which is situated in
the territorial jurisdiction of Police Station Kasoki, Tehsil and District
Hafizabad on 07.07.2019 and statedly recovered detenue from there but neither
any Rapat (رپٹ) of Rozenamcha (روز
نامچہ) of any Police Station from Lahore about their departure on
that day for Hafizabad nor any Rapat (رپٹ) of Rozenamcha (روز
نامچہ) about their arrival in Police Station Kasoki, Tehsil and
District Hafizabad for the purpose of conducting raid in the house of appellant
situated in the territorial jurisdiction of said police station and then taking
any police force from said Police Station and going to the house of appellant
and after alleged recovery coming back to said Police Station has been produced
by the prosecution. It is trite law that non-production of said rapats (رپٹس)/entries of Rozenamcha (روز
نامچہ) is fatal for the case of prosecution and said recovery is,
therefore, not reliable; in this regard, guidance has been sought from case of “Amin Ali and another versus The State”
(2011 SCMR 323); relevant portion from Page No. 332 is reproduced:
“It is not out of place to mention here that the recovery was made from
the jurisdiction of another police station but the investigation officer did
not go to the said police station or make any entry so as to show his presence
at the relevant time within the jurisdiction of that police station or took
some help from the said police station. This also creates doubt about the
genuineness of the recovery. In these circumstances, no implicit reliance can
be placed on such type of recovery.”
Even otherwise, Sajwar Tariq
Inspector/Investigating Officer (PW-14) and Ishfaq Butt Inspector/Investigating
Officer (PW-21), in their statements recorded in the Court, are not consistent with
each other on material points, rather contradicting each other; furthermore,
Muhammad Waseem (complainant/PW-12) himself says that his daughter i.e.
Meerab (alleged abductee) came back to the house on her own; relevant portion
of his statement is hereby reproduced:
“I got lodged FIR No. 1041/2019 due to suspicion. Now I am satisfied
that present accused is not involved in this case. I have no objection if he is
acquitted from this case. I do not intend to proceed further in this case as
all the suspicions are clarified and resolved. There are no reasons to pursue
this case. Accused Mazhar Abbas, present before the Court may
be acquitted from this case. The alleged abductee minor was mentally
retarted.”
“I do not remember/confirm that I got recorded before the Investigating
Officer that on 30.06.2019 at about 1:45/50 pm a child told me that Abid fruit
seller had received a letter. I do not confirm that thereafter I immediately
went out from my house and went to Muhammad Abid fruit seller where he was showing
an envelope to my brother Aqeel. I do not remember that thereafter I
immediately went to Muhammad Abid fruit seller who told me that an unknown
person on grey coloured car handed over an envelope to an unknown child who
delivered the same to me. I do not remember that I opened the said letter after
taking the same from said Abid and found that a paper on
which both sides were written.”
“I do not remember that whether said letter was produced by me before
the Investigating Officer or not.”
“The Khaki envelope P2 and letter P3 regarding demand of ransom amount
for the release of Meerab abductee was not in my knowledge. My daughter Meerab/abductee returned to
my house on her own.”
“It is correct that I have no objection on the acquittal of accused
present before this Court.”
“It is correct that the accused present in the Court never abducted my
daughter Meerab.” (emphasis added)
Hence, the recovery of abductee from
the custody and house of present appellant could not be proved by the
prosecution.
12.
As far as recovery of motor-cycle is concerned, no colour, make, model or
registration number of motor-cycle is mentioned in the application for
registration of case i.e. Ex.PA. and the
site-plan Ex.PC, therefore, said recovery is of no help to the case of prosecution;
furthermore, as far as recovery of mobile phone is concerned, since no voice
transcript about any call made from said phone has been produced, therefore,
same is also of no avail; so far as recovery of car is
