MUHAMMAD SALEEM Versus The State

Appellant, Muhammad Saleem, has assailed the judgment dated 26th July, 2003 passed by the learned IInd Additional Sessions Judge, Karachi South (Ms. Hafeeza Usman), in Sessions Case No.272 of 1997 (The State v. Muhammad Saleem) arising out of F.I.R No.76 of 1997 registered under, section 364‑A P. P. C, whereby the appellant (surprisingly without being convicted for the offence) sentenced to suffer RI for 10 years and fine of Rs.25,000 under section 364 P.P.C and in default of payment of fine to undergo simple imprisonment for one year and (again, surprisingly, without being convicted) sentenced for life imprisonment under section 302(b), P.P.C.

2. The prosecution story as unfolded in the F.I.R. is to the extent that on 25‑2‑1997 complainant Mst. Yasmin Malik set the law into motion by lodging F.I.R at Police Station Artillery Maidan alleging, inter alia, that on 22‑2‑1997 at about 5.00 p.m., while she along with her both children namely Hina and Zeeshan Malik reached at Sona Jewellers, Shahrah‑e‑Iraq, Karachi, Muhammad Saleem (appellant herein), being her departmental colleague and working as House Keeper in Hotel Airport of PIA where she was also working as Supervisor, met her. It is, further alleged in the F.I.R. that due to such relationship the appellant was close to the complainant and his children used to play with them. He also offered her for marriage to which she refuted being already a married woman. On the eventful day i.e. 22‑2‑1997 when the appellant met complainant she went inside the said Jeweller's shop leaving her children playing and the appellant standing outside the shop but when she came out from the shop, she found her son Zeeshan Malik, aged 3 years as missing, who, consequently, was seen to be taken by the appellant.

She raised commotion but the appellant managed to escape along with Accordingly, on 25‑2‑1997 she appeared at Police Station Artillery Madian where F.I.R under section 364‑A P.P.C was registered.

3. The investigation followed and in due course the appellant was arrested from his house Liaquat Square Malir, Karachi and upon his confession, recorded before Judicial Magistrate & FCM VI, Karachi South on 11‑3‑1997, that he had thrown minor Zeeshan in the sea at Natty Jetty, and Section 302 P.P.C, was also added.

4. Formal charge was framed to which the Appellant pleaded not guilty and claimed trial. The case proceeded and the prosecution in order to prove its case examined P.W.1 Mushtaq Ahmed as Exh, 5, P.W.2 complainant Yasmeen Malik as Exh.9, P. W.3 Sher Zaman as Exh.14, P.W.4, Zaheer Bahzad as Exh.16; P.W.5, Investigating Officer Rao Muhammad Iqbal, as Exh.17, P.W.6, second Investigating Officer Muhammad Siddique Abbasi, as Exh.21, P.W.7 Mr. Sultan Muhammad Awan, Judicial Magistrate, as Exh.32 and P.W.8 Habibur Rehman, as Exh.34.

5. The appellant in his statement recorded under section 342, Cr.P.C, denied commission of offence and pleaded innocence. He also examined himself under section 340(2), Cr.P.C., as well as produced one witness namely Masood Ahmed in his defence.

6. P.W.2, complainant Yasmeen Malik, in examination‑in‑chief, recorded as Exh.6, stated that she being employee of PIA (which provides stay facility to its staff in different hotels) stayed in Hotel Inn Star Gate Karachi for the period of seven days along with her children namely Hina and Zeeshan (aged 5 years and three years, respectively) because of white washing in her house. The appellant was also employee in Room Service Department. During the said period her children used to play in the lawn of hotel where one of them namely Zeeshan, suffering from cardiac problem, fell down. He was lifted by the appellant. Upon such disclosure of cardiac problem of her, son, the appellant disclosed that his niece was also suffering from a common difficulty as that of Zeeshan. He gave his address and telephone number on a chit and also consoled the complainant that she may not he worried about as being suffering from a difficulty being minor. It is further alleged that after her house being white washed she shifted but the appellant remained in touch with her through telephonic mode and during such contact he proposed her for marriage but the same was returned with refusal. Thereafter, the appellant remained underground for about 3‑4 months and on 22‑2‑1997 at about 4.00 or 4.15 p.m. , he recognised her in Saddar in front of Sona Jewellers where she went for shopping. However, after some cordial wordings, she went inside the shop which was over crowded. Her children were busy playing there and were passing in or out side the shop repeatedly. She had to buy‑`balies' for her daughter and had also to collect gold bangles, order for supply whereof was already placed and receipt for collecting the same was with her son. She further stated that while she was looking the gold `babes' her daughter came and disclosed that Zeeshan was missing. She, leaving the `balies' at, the counter, started searching her son‑ as being puzzled, but could not be traceable. She also went to the house of the appellant where mother of the appellant disclosed that he was not available ‑at the relevant moment. Being constrained, she approached concerned Police Station for lodgment. of F.I.R but they were kept on procrastination suggesting her to search out the missing child for more than 3‑4 days and further advised her to write down the facts on a plain paper. However, she carried out to got in, search of her son but finding no clue, repeatedly approached concerned Police Station where F.I.R. was lodged on 25‑2‑1997 at about 5‑00 p.m.

7. She voluntarily stated that she cannot say if the contents of the F.I.R., were the same as she disclosed because at that time she was scared. She has also not read over the contents of the F.I.R. However, Police recorded her further statement: On the same day Police inspected the place of kidnapping and on 27‑2‑1997 arrested the appellant. Such Mashirnama of arrest was prepared. Being dissatisfied with the investigation, the appellant approached for transfer of the case to C.I.A. Police requesting DIG Police for using his good offices. She further stated that she got published `ADD' in two Urdu Newspapers namely `Qaumi' and `Awam' with the incentive of `Prize' for searching her son because she was under the impression that appellant might have detained him to black‑mail her. She also approached C.P.L.C. from where her telephone was ordered to be kept under `Observation'. During this period, perhaps seventh day of such month, a threat call directing her to reach Quaid‑e‑Azam Mazar along with Rs.5 lacs cash was received. She informed C.P.L.C. about the said call with date and time but they advised her to remain silent as the actual accused was in their custody. They also advised her not to pay the said amount if the, child had been kidnapped for the purpose of ransom. She further stated that the culprits kept her on procrastination and reduced their demand to the extent of Rs.2,00,000.

8. Meanwhile, her mother, being patient of hyper tension, fell seriously, ill and advised her to leave Police and pay ransom amount for the release of her son. She, again, upon receipt of telephonic call from the culprits, rang CIA Police informing that she was called by the culprits at Rainbow Centre so that the Police may ensure their access at the spot. The said police informed her that they will (each the spot in Police uniform instead of plain dress whereas the culprits had threatened her that in case she informed the Police, they will sell her son out in Abu Dhabi for Camel Race.

9. However, upon her apprising inability to arrange such a huge amount to the culprits. They again reduced their demand to Rs.1,00,000 and told her to wait for their call after one hour but she did not receive any call on that day. On 11‑3‑1997 she received a threat call at about 11‑25 a.m., with a direction to reach with cash of Rs.1,00,000 (Rupees One lac only) at the Mazar (Shrine) near Tin Hatti She could collect only Rs.60,000 and reached along with her maid servant (Boos) at the pointed place where one of the culprits came, having worn Pathani cap, brown coloured Shalwar‑Qameez, aged about 24 years. She asked him to return her son to which he replied that her son is to the hands of a group and will be released by 4‑30 p.m. He further disclosed that their Group Incharge namely Imran will ring her and inform the place where the child would be handed over. She remained waiting there up to 12‑15 p.m., but her son could not be brought there Being constrained with the situation, she came back to her house at about 12‑30 p.m. However, at about 4.30 p.m. , she received telephone call whereby she was asked by a person, introducing himself as Group Captain Imran, that she could pick her son from Niazi Dental Clinic situated in front of Liaquatabad Police Station. She went at the pointed place along with her maid‑servant (Boos) and waited for half an hour but neither her son Zeeshan nor any suspicious person came there. When she was returning back and her taxi took a turn a well‑groomed person with long hair seemed to be a Police Personnel, after cautioning Taxi to stop, boarded and asked her to leave that taxi and board' in some other taxi. Thereafter, all of them emerged from and hired another one and went to various places i.e. Al‑Asif Square Sohrab Goth, Malik Industries, Afghan Camp, Super Highway etc., but they could not find her child and came back to her house where again at about 5.00 p.m., telephone call of Imran was received who asked her to reach at Public Chorangi at about 6.00 a.m., and get her son released on payment of further amount of Rs.25,000 as a group who had kidnapped her son had become greedy and dangerous having seen her residential status in a big bungalow. She further stated that prior to leaving of the house she also informed one Sikandar Ali Shah, a Member of Khidmat Committee, on whose advice she reached at the pointed place along with her maid servant (Boos) and found Imran present. He asked her about the amount and she replying affirmatively opened her purse but was trying to consume some time as she had expectation of coming of said Sikandar Ali Shah along with Police Mobile and as soon as' she saw that such Police Mobile, delivered about rupees fifteen thousand to Imran which he put in his pocket. However; Police over powered and brought the culprit at police where D.I.G. Niaz, Ahmed ordered for interrogating him for recovery of child. However, S.H.O. Police Station Taimuria apprised D.I.G that since the case related to C.I.A., therefore it may be sent there. They telephonically contacted and were informed through S.‑I. Siddique Abbasi of C.I.A. Police that they had already closed the file because of a news published in daily Qaumi and other Newspapers that child had been murdered by that person who wanted to marry with its mother. The said Sub‑Inspector further disclosed that accused/culprit had already confessed his guilt of murdering her son in a statement recorded under section 164, Cr.P.C, before a Magistrate. She further stated that Police did not investigate case of her son properly and also did not interrogate that Imran who was arrested and produced before D.I.‑G. She further stated that none of the Police Agencies of the country could recover her child dead or alive and also failed to recover its bones as it was thrown in Netty Jetti. In cross‑examination, she declined to own the signatures appearing on Exhs.No.10 and 12 but she owned signature appearing on Exh.11.

10. P. W.1, Mushtaq Ahmed, deposed in examination‑in‑chief that on 25‑2‑1997 he was performing, his duty as Duty Officer at P.S. Artillery Maidan Police Station, where complainant Yasmeen Malik reported him that one Saleem has Kidnapped her child namely Zeeshan Malik. He, accordingly, took down the First Information Report, registered the case and sent it through PC‑Sher Zaman to &H.O. Artillery Maidan for investigation.

11. P.W.2, complainant, Yasmeen Malik, being main and material witness, in her deposition, reiterated the contents of her F.I.R as well as further statement. However, in her cross‑examination she showed her ignorance about the signatures appearing on Exh.10 (Memo. regarding inspection of place of occurrence), Exh.12. (Memo. regarding house search of the accused) whereas she only, admitted her signature appearing on Exh. 11 (Memo. of arrest) by saying that the said signatures where obtained from her at Police Station.

12. Appellant in his deposition recorded under section 340(2), Cr.P.C. stated that on 27‑2‑1997 while he was present at his house, complainant along with Police party came, searched his house and upon query about searching the house he was told that he was involved in Kidnapping of a child and throwing him in Netty Jetty Sea. He was arrested and brought at Police Station where, he was threatened by the complainant that if he failed to marry her, she will kill him. Thereafter, he was handed over to C.I.A. Police Civil Lines where he was miserably beaten and was produced before Judicial Magistrate under pressure. He was forced to admit the plea of guilt with regard to the said offence. However, he could not make statement on account of miserably beaten, being not in sense. He was made to sign a paper before Judicial Magistrate. In his cross‑examination he besides admitting his employment at the Airport Hotel, also admitted friendship with the complainant and her stay at the hotel for about 6‑7 days. He denied the suggestion that child (since deceased) was attached with him and also stated that he only knows the complainant not her children.

13. I have heard the learned counsel appearing for the appellant and the learned counsel appearing on behalf of the State.

14. It has been contended by Mr. Suleman Habibullah, learned counsel for the appellant that the case against the appellant is false who has been involved due to mala fide on the part of prosecution. It has, further, been contended by the learned counsel for the appellant that the F.I.R was lodged with an unexplained delay of three days and the same ‑is not seeking corroboration in material particulars. It has also been argued that the prosecution relied upon the confessional statement of the appellant, recorded under section 164, Cr.P.C., that too after 13 days of the arrest of the appellant and such statement by itself shows that the learned Judicial Magistrate noted the marks of violence on the body of the appellant which is indicative of the fact that the appellant was maltreated. This shows that the confessional statement of the appellant was not voluntarily made inasmuch as he was beaten up by the Investigating Officer as a result whereof he sustained injuries. It has, further, been contended by the learned counsel that the case of prosecution is a case of no evidence against the appellant and the deposition of complainant is neither supported nor corroborated by any other prosecution witnesses or through an independent source. It has, also, been explored that the learned trial Judge, while sentencing the appellant without convicting him, failed to put the defence evidence in juxta‑position with the prosecution version and has discarded the defence evidence without any rhym or reason. He has relied upon the cases of Samano v., The State (1973 SCMR 162), Naqibullah and another v. The State (PLD 1978 SC 21), State v. Asfandyar Wali and 2 others (1982 SCMR 321), Javed Masih and 3 others v. The State (PLD 1994 SC 314), Wazir Gul v. The State (PLD 1995 Kar. 112) and Imdad Hussain v. The State (PLD 1999 Kar. 151) in support of his contentions.

15. Learned counsel appearing on behalf of the State has conceded, to the above legal position and has no objection if the appeal is allowed and the appellant is acquitted.

16. I have considered the arguments of the learned counsel appearing on behalf of the respective parties and perused the record.

17. The perusal of record reveals that the F.I.R. was lodged with an unexplained delay of three days which is not seeking support from an independent source to furnish corroboration. Moreover, confessional statement was recorded after 13 days of the arrest of the appellant for which no satisfactory explanation is forthcoming. The evidence further shows that the appellant was maltreated by the Investigating Officer in as much as the learned Judicial Magistrate himself 'noticed the marks of violence on the body of the appellant. This indicates that the confessional statement of the appellant was not voluntarily made and virtually the case of prosecution comes to be of no evidence against the appellant. The evidence of complainant is neither supported nor corroborated from an independent source which is not the case here. It may, be observed that the learned trial Judge seems to be ignorant of law and has no legal approach regarding, writing of a judgment which is full of material legal errors in as much as she while awarding sentence to the appellant has not convicted him failed to put up defence evidence being in Juxta position with the prosecution evidence and had discarded the defence version without any rhyme or reason . The complainant herself has stated in her cross‑examination that her signature appearing upon Exh.11 (Memo of arrest) which, too, was obtained from her at Police Station. However, she denied having been signed Exhs.10 and 12 being Memo regarding inspection of place of occurrence and Memo. of search.

18. In view of the above discussion that since F.I.R. has lost its sanctity, contents whereof are not being corroborated through any independent evidence except the so‑called judicial confession which, besides admittedly was recorded after 13 days of the arrest of the appellant, evidently after maltreating and beating by the Investigating Officer, the evidence on the point of recovery has been completely vanished, the entire prosecution case suffers from infirmities, improbabilities, weaknesses and there being glaring contradictions and conflicts between the contents of F.I.R., further statement of complainant and the statements of other witnesses, the whole case being full of doubts is shrouded in mystery and there being no evidence connecting the accused with commission of crime.

19. In the circumstances, I am of the considered view that the prosecution has not been able to prove its case beyond any reasonable doubt which is completely shattered and therefore I, by my short order dated 24‑5‑2004, had acquitted the appellant of the charge and ordered for his release forthwith if not required in any other case and these are the reasons for the same.

20. In view of my observations about the trial Judge, learned Registrar of this Court is directed to take‑up the matter on administrative side for disciplinary action against her.

Cr. Appeal No.241 of 2003 stands disposed of.

H.B.T./M‑168/K Appeal accepted.