MUHAMMAD ARIF Versus State

This judgment will dispose of Criminal Appeal No. 1163 of 2003 filed by Muhammad Arif, appellant and Criminal Appeal No.499/J of 2003 filed by Ghulam Murtaza, appellant, who were convicted and sentenced by learned Additional Sessions Judge, Faisalabad, vide his judgment dated 27-5-2003 to undergo imprisonment for life under .section 365-A/34, P.P.C. with the benefit of section 382-B, Cr.P.C.

2. Brief facts of the case, as narrated by Abdul Ghaffar complainant are that he is residing along, with his brother Nisar Ahmad at Taj Colony, who deals in packages business. Sometime earlier Ghulam Murtaza accused came to Nisar Ahmad in connection with packages business, who obtained the telephone number of the complainant house. On 7-9-2002 at about 7-00 p.m. complainant's niece Mst. Nomana Nisar aged 3-1/2 years came out of the house for playing but she was taken away on a cycle by Ghulam Murtaza and Muhammad Arif and while abducting Mst. Nomana Nisar accused persons were witnessed by Muhammad Umer Shahzad and Shahbaz Gulzar. When the baby girl did not come back house complainant searched the abductee, announcement in this regard was made on the loudspeakers of the mosques but Nomana Nisar could not be found. Meanwhile, complainant received telephone calls to the effect that to release the minor girl payment of an amount/ransom Rs.1 crore had to be paid, otherwise, accused would kill her. For payment of ransom accused persons made five telephonic calls from different P.C.Os., police was informed. As soon as P.Ws. Muhammad Umer Shahzad and Shahbaz Gulzar informed the complainant that they had witnessed the accused Ghulam Murtaza and Muhammad Arif while they were taking away Mst. Nomana Nisar on a cycle at that time, Ghulam Murtaza accused was riding bicycle and Arif along with Nomana Nisar was sitting on the rear seat of the bicycle and they were accompanied by two other accused persons. They stopped near Millat Chowk and started talking to each other, thereafter, Ghulam Murtaza and Muhammad Arif took their seats on the cycle and went towards Noorpur along with Nomana Nisar, who was at that time with accused Muhammad Arif. On the intimation of the complainant, police started the search of Mst. Nomana Nisar, raid was conducted at the house of accused Muhammad Arif and last of all the minor girl Nomana Nisar was recovered by the police where accused Ghulam Murtaza was also present. In a room along with Nomana Nisar, police arrested accused Ghulam Murtaza and a case against the accused for kidnapping Mst. Nomana Nisar for the purpose of extorting money from her father for obtaining release of the minor girl was registered.

3. Maqbool Sardar, S.-I. P.W.4 took up the investigation of this case. After sending the complaint Exh.P.A. to the police station for registration of formal F.I.R., reached at the spot. Earlier abductee Mst. Nomana Nisar had been recovered from Noorpur Bismillah Town from the house of Muhammad Arif. Ghulam Murtaza accused was also arrested by the Investigating Officer prepared visual site plan Exh.PE. recorded the statements of the P.Ws., also prepared Exh.P.D. visual site plan of the place of recovery of Mst. Nomana Nisar, obtained physical remand of accused Ghulam Murtaza, who on 15-9-2002 while in police custody led to the recovery of Chhuri P.1 from the house of co-accused Arif, which was taken into possession vide recovery memo. Exh.P.I. On the same day, he arrested Muhammad Arif accused along with cycle P.2, which was taken into possession vide memo. Exh.P.C. After completion of remaining formal investigation, both the accused were challaned to face the trial.

4. At the trial, prosecution in order to rove its case produced four witnesses in all, thereafter, leaned A.D.A. closed the prosecution case, then, the statements of the accused-appellants were recorded under section 342, Cr.P.C. in which they pleaded innocence. Muhammad Arif appellant also produced in his defence some documents Exh.D.B. to Exh.D.D.

5. After having read the entire prosecution evidence, statements of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record, learned counsel for Muhammad Arif appellant submits that there is delay of three days in lodging the F.I;R., that in all there were four accused, two are named and two are unknown, that the alleged victim was not recovered from the house of Arif appellant but from a vacant plot, that Muhammad Arif appellant has been falsely implicated because he had gone with his co-accused Ghulam Murtaza who had business dealing with the father of the victim, there an altercation took place, appellant Arif sided with Ghulam Murtaza, so he was falsely implicated in this case, that F.I.R. was ni,t go, recorded by father of the victim but uncle of the victim that Nomana Nisar victim was never examined either by the police or by the learned trial Court, that demand of ransom has not been proved by the prosecution, that complainant party is a very poor, so there was no question of demanding rupees one crore by the appellants from the complainant party, that no telephone call was made by the appellant from his house, in fact, according to "learned counsel telephone calls were never made by the appellants, that ransom money was not recovered, that both the eye-witnesses are interested witnesses that no identification parade had held to identify Muhammad Arif and Ghulam Murtaza accused, that Nisar and Shahbaz P.Ws. were given up by the prosecution, that there are contradictions in the statements of the eye-witnesses, that none of the eye-witness had stated before the learned trial Court that Arif appellant had demanded ransom but in fact, they had taken the name of Ghulam Murtaza appellant, that no case is made out against the appellant and he is entitled to acquittal.

6. Learned counsel for Ghulam Murtaza appellant submits that F.I.R. was recorded after the recovery of victim, so no sanctity can be attached to the F.I.R., that there is no corroborative piece of evidence of abduction, that story of prosecution given in the F.I.R. is highly improbable, that statement of P.W.2 is totally false, that Muhammad Khan P.W. was not produced by the prosecution before the learned trial Court that no record was collected by the police regarding the telephone calls either from the Telephone Department or from any other source, that no persons from any P.C.O. was produced before the learned trial Court or examined by the police during the course of investigation, that recovery of abductee from the house of Arif appellant appears to be a fabulous story, that non-appearance of the father of the abductee makes the whole case to be doubtful, that no case is made out against Ghulam Murtaza appellant and he is entitled to acquittal.

7. On the other hand, learned counsel for the State submits that abductee was recovered from the house of Arif appellant, that knife was also recovered on the pointation of Ghulam Murtaza appellant, that prosecution had proved its case against the appellants beyond any shadow of doubt. He supports the judgment of the learned trial Court.

8. I have heard learned counsel for the parties at a great length and have also gone through the evidence available on record. In the instant case, prosecution has produced two material witnesses, namely, Abdul Ghaffar P. W.2 complainant/real uncle of Mst. Nomana Nisar and Umer Shahzad P.W.3. As far as, delay, in lodging the F.I.R. is concerned, firstly the anxiety of the complainant was that to get recovered Mst: Nomana Nisar alive, so they have been making efforts in this regard, they have been receiving telephonic calls from accused Ghulam Murtaza for ransom, they have been searching their daughter, so the delay in lodging the F.I.R. is of no consequence and defence cannot get any benefit in this regard. So far as, non-production of Mst. Nomana Nisar victim is concerned, she was 3-1/2 years of age and it was impossible for her to make a statement either before the police or before the learned trial Court. Court has to see, whether the. statements of two material witnesses produced by the prosecution are confidence inspiring, can the conviction be maintained of the statements of these two witnesses or these witnesses made -statements due to some animus, the answer is big NO. As far as, Umer Shahzad P.W.3 is concerned, he is not related to complainant party. One of the contentions of learned counsel for Muhammad Arif that father of the victim has not lodged the case, it is not necessary under the law to lodge the same F.I.R. is to set the criminal machinery in motion, which was done by Abdul Ghaffar. Moreover, Abdul Ghaffar and Abdul Sattar live in the same house. Abdul Ghaffar has been receiving telephone calls for the demand of ransom. Ghulam Murtaza accused-appellant used to supply waste papers to Nisar father of the victim, he knew that Nisar father of the victim was a rich man, he became greedy and demanded the ransom, thereafter, being careful, he took the victim to the house of Arif, recovery of Nomana Nisar victim was effected from the custody of Ghulam Murtaza appellant, Arif appellant was arrested later on. It was Ghulam Murtaza appellant, who also got recovered knife on his pointation, although Umer Shahzad P.W.3 has also deposed not only against Arif by stating that he was sitting on the rear seat of the cycle, which was being driven by Ghulam Murtaza, appellant and the victim was in the lap of Arif appellant. In spite of the fact that he saw Arif along with Ghulam Murtaza, he did not inform the complainant or father of the victim in this regard. Muhammad Arif appellant has also produced some documents Exh.D.B. to Exh.D.D. to prove his innocence in this case. Moreover, ransom was being demanded by Ghulam Murtaza appellant and not by Muhammad Arif appellant. It is Ghulam Murtaza appellant, who was known to complainant party. Court has to sift grain from chaff in this case.

9. After having gone through the evidence on record, the defence documents produced by Muhammad Arif, appellant and the investigation of the case, while sifting the grain from chaff, I am of the considered opinion that case against Arif appellant is of doubtful nature, so while granting the benefit of doubt, appeal of Arif appellant is accepted. The conviction and sentence recorded against him by the learned trial Court is set aside. He is in jail and he shall be released forthwith if not required to be detained in any other case.

10. As far as, case against Ghulam Murtaza appellant is concerned, prosecution has proved its case against him beyond any shadow of doubt, so no case for interference by this Court is made out in favour of Ghulam Murtaza appellant, therefore, his appeal is dismissed. The conviction and sentence recorded against him by the learned trial Court is maintained in toto.

H.B.T./M-1191/L Order accordingly.