HABIB ULLAH Versus THE STATE

This criminal appeal has been filed by Habib Ullah appellant against the judgment dated 11‑8‑2001 passed by learned Judge Anti‑Terrorism Court, Faisalabad, through which the appellant has been found, guilty under section 365/511, P.P.C. and has been sentenced to 3‑1/2 years' R.I. and also to pay fine of Rs.50,000 and in case of default of payment of fine, he has been ordered to further undergo R.I. for one year. The appellant has also been convicted under section 354, P.P.C. and has been sentenced to R.I. for 2 years with a fine of Rs.30,000 and in default of payment of fine, he has been directed to further undergo R.I. for six months. Habib Ullah appellant has also been held guilty under section 7(b) of Anti- Terrorism Act, 1997 and has been awarded sentence for 3 years and has been directed to pay fine of Rs./50,000 and in default of payment of fine he has been ordered to further undergo R.I. for one year. All the sentences have been directed‑ to run consecutively. Benefit of section 382‑B, Cr.P.C. has not been given to the appellant. This judgment has been passed in case F.I.R. No.156 registered on 7‑4‑2001 under section 365/354, P.P.C. at Police Station Jhang Bazar, Faisalabad at the instance of Muhammad Ramzan complainant.

2. The brief facts of the prosecution case are that Muhammad Ramzan complainant is labourer and his daughter Mst. Nabeela was student of Ist year. Habib Ullah used to tease her. He was reprimanded but Habib Ullah continued teasing. On 31‑3‑2000 at about 2‑00 P.M. Mst. Nabeela was coming back to home with her mother from Moon Public School situated in ST. No.9 Mohallah Partab Nagar. Habib Ullah appellant used obscene language and dragged Mst. Nabeela by catching hold of her arm. His wife Mst. Naseem Akhtar interfered and rescued her daughter from the appellant with great struggle. The appellant intimated her to throw crossive substance (Taizab) on her face. The occurrence was witnessed by Muhammad Hafeez and Muhammad Sabir and Mst. Shamshad. Due to this occurrence the complainant remained in perplexed condition and kept silent due to his family honour. The appellant continued threating him and had compelled to get register the case. The application was sent to S.H.O but the case had not been registered, hence, the application was moved to D.I.‑G.., Faisalabad and on the basis of this application Exh.P.A, case was registered by Ghulam Hussain A. S. I.

3. During the investigation, statements of the witnesses were recorded under section 161, Cr.P.C. The appellant was arrested on 7‑4‑2001. During the investigation on his pointation photograph of Mst. Nabeela was recovered through recovery memo. Exh.P.E. photograph is Exh.P.C. During the investigation the application was moved by the complainant to learned Special Judge Anti‑Terrorism, Faisalabad to direct the police to submit the challan and the challan was submitted in the Court and after submission of the challan the appellant was summoned and he was delivered the copies required under section 265‑C, Cr.P.C. Formal charge was framed against the appellant. He denied the, same and claimed to be tried.

4. The prosecution in order to prove the guilt of the appellant produced 7 witnesses. P.W.1 Muhammad Ramzan is the complainant who is not the eye‑witness of the occurrence. P.W.2 Mst. Nabeela Ramzan is the victim and eye‑witness. While Mst. Nasim Akhtar appeared as P.W.3, who is the mother of Mst. Nabeela. P.W.4 Muhammad Sabir, P.W.5 Hafeez Ahmad have supported the version of the prosecution while P.W.6 Ghulam Hussain A.S.I. recorded the F.I.R. and P.W.7 Abdul Sattar A.S.I. has investigated the case.

5. After the completion of the prosecution evidence the statement of the appellant under section 342, Cr.P.C. was recorded in which he denied the allegations and on question that "why this case against you and why the P.Ws. have deposed against you?" He has made the following reply, which is reproduced as under:‑

`Sabir alias Baba had ridden Mst. Nabeela on his Motor‑Cycle on the day of occurrence on his rear seat on which I exchanged hard words with Sabir alias Babba and due to that Sabir alias Babba and Mst. Nabeela with the connivance of the complainant got a false case registered against me, because prior to this occurrence Mst. Nabeela had illicit intimacy with me and she promised to marry with me. Thereafter, Mst. Nabeela refused to marry with me, and has developed now illicit intimacy with Sabir alias Babba, due to this reason, a false case has been registered against me with the connivance of the complainant and witnesses."

After hearing the arguments of both the parties the learned Special Judge Anti -Terrorism has passed the impugned judgment which is being assailed through this appeal.

6. Learned counsel for the appellant has contended that false story has been introduced to involve the appellant in a. false criminal case at the instance of Muhammad Sabir P.W.4 because the appellant had intimacy with Mst. Nabeela prior to the occurrence and she had developed intimacy with P.W.4 Muhammad Sabir which not only annoyed the appellant but P.W.4 Muhammad Sabir and Mst. Nabeela have got registered this false case against the appellant. It is further contended that section 365, P.P.C. is not made out as there is no evidence to show that Mst. Nabeela was kidnapped by the appellant or the appellant had made any attempt to abduct Mst. Nabeela. The eye‑witnesses including the victim have stated that after catching hold of her arm she was dragged and taken at a distance of about 9/10 paces and at the most case can be made against the appellant under section 354, P.P.C. which is punishable with two years R.I., Similarly, section 7(b) of Anti‑Terrorism Act, 1997 is not made out, hence, the conviction in both the sections is illegal, unlawful and is liable to be set aside. As far as conviction under section 354, P.P.C. is concerned, learned counsel for the appellant has contended that the occurrence had not taken place as had been stated by the witnesses. There was no just cause that mother of Mst. Nabeela accompanied her and had the mother accompanied Mst. Nabeela, the appellant could not have dared to catch hold the arm of Mst. Nabeela? She had shown her presence at the spot just to make herself as the eye witness. It is further contended that number of witnesses were present at the spot, according to the prosecution own story, but not a single independent witness had been joined during the investigation by the Investigating Officer to find out the truth. It is also argued that judgment is not based on the evidence on record and is liable to be set aside as has been passed on surmises and conjectures. The prosecution has miserably failed to prove the case against the appellant, hence, the judgment may be set aside and the appellant may be acquitted from the charge.

7. On the other hand, learned State counsel has opposed this criminal appeal on the ground that sufficient evidence has been brought on record, which proves the prosecution case. The conviction is based on the evidence and is liable to be upheld. It is also contended that the photograph has also been recovered from the appellant during the investigation, hence, the appellant does not deserve for any leniency. It is also contended that section 365 P.P.C. and section 7(b) of Anti‑Terrorism Act, 1997 are also made out.

8. I have heard the arguments of both the learned counsel and also perused the record with great care and caution. The prosecution evidence consists of the statements of Mst. Nabeela victim, her mother Mst. Nasim Akhtar P.W.3, P.W.4 Muhammad Sabir and P.W.5 Hafeez Ahmad who have consistently stated that they were present at the spot on the day of occurrence. According to P.W.2 at about 2‑00 P.M. after hearing the result from Moon Public School, she was coming home when Habib Ullah appellant had caught of her arm and dragged her at about 9/10 paces. In the meanwhile, her mother Mst. Nasim Akhtar and one Muhammad Sabir P.W.4 interfered and they rescued her from the appellant after great struggle. This statement is fully supported by Mst. Nasim Akhtar mother of the victim and Muhammad Sabir P.W.4 who after the occurrence had taken the victim on his motor cycle to her home. I do not find any reason for not relying upon the statements of these witnesses as all these witnesses have no enmity or grudge to falsely implicate the appellant in this case. All the witnesses have made consistent statements on the material points and have shown their presence at the spot at the time of occurrence. The act of catching hold of the arms of Mst. Nabeela is also proved through the statements of these witnesses and though they have been subjected to lengthy cross‑examination but the defence has not succeeded in getting anything from the witnesses for dis‑believing their statements or to prove that they were not present at the spot at the time of occurrence. Similarly, the defence has also failed to show that these witnesses had personal malice or enmity to falsely implicate the appellant in this case. Hence, I have no hesitation in holding that the occurrence has taken place in a manner that Mst. Nabeela alongwith her mother were returning to home after hearing the result in Moon Public School, when the appellant had gone there and had caught hold of arm of Mst. Nabeela victim but on her hue and cry, the mother of the victim Muhammad Sabir P. W.4 and Muhammad Hafeez rescued Mst. Nabeela from the clutches of the appellant and she was taken by Muhammad Sabir on a motor‑cycle to her house but I am, not convinced to the extent of the version that she was taken to 9/10 paces by the appellant as this portion of the statements has not been found mentioned in their statements made before the Investigating Officer under section 161, Cr.P.C.. This improvement at the trial stage seems to be made to make out the case under section 365, P.P.C. and though this portion has not been duly confronted with the previous statements, yet this portion is disbelieved being after thought having been introduced in order to make out a case under section 365, P.P.C. This portion of the statements has been found incorrect and an improvement from the remaining portion of the statements. Thus offence under section 365, P.P.C. is not made out as an attempt for abduction has not been proved. Mere catching hold of arm of the victim without any other act for the purpose of abduction is not sufficient to hold that some attempt abduction had been made. As the charge under section 365 P.P.C. after perusal of the statements of the witnesses has not been found as proved, hence, conviction and sentence passed under section 365/511, P.P.C. is set aside.

9. Similarly, from the bare perusal of the statements of the witnesses offence under section 7(b) of Anti‑Terrorism Act, 1997 is also not proved, hence, the conviction and sentence passed under this section is also stet aside.

10. However, I am convinced that the conviction under section 354, P.P.C. is based on cogent evidence which is liable to be, maintained, hence, the sentence of two years with a fine of Rs.30,000 and in default or payment of fine, the appellant to further undergo R.I. for six months is hereby maintained. Benefit of section 382‑B, Cr.P.C. is however given to the appellant.

11. With the above said modification in the judgment, this appeal is disposed of.

N.H.Q./H‑85/L Order accordingly.