MUHAMMAD RAFIQ Versus THE STATE

1. The appellants were charged alongwith co‑accused Eijaz and Allah Ditto under section 365/34, P.P.C. for having kidnapped one Naim Ahmed Arain, and were tried before the learned IIIrd Additional Sessions Judge, Nawabshah, who has convicted the present appellants under section 364, P.P.C. and sentenced them to suffer R.I. for four years, and to pay fine of Rs.1,000 each and in default to suffer further R.I. for one month. While co‑accused Eijaz Hussain and Allah Ditto were acquitted vide judgment dated 9th September, 1986.

2. The brief facts of the prosecution case are that on 22‑10‑1983, complainant Naim Ahmed son of Abdul Hafiz lodged a report at Town P.S. Nawabshah inter alia alleging therein that he was studying in IXth Standard in H.M. Khoja High School Nawabshah. His age is about 15 years, he was residing with his relative Rehmat Arain on the other side of the railway line, (line par) Nawabshah. His father was living at his village Makhand. Taluka Moro. Some time back, his father and uncle had taken a plot in the Society. That occasionally his father had been coming in connection with construction of the house. On 18‑3‑1982, he was sitting in the house of his relative Rehmat Arain at about 5‑00 p.m. some one called the complainant from outside. He came out and saw that Rafiq son of Muzamil, Akhtar son of Mohammad Sharif Awan residents of village Khushhal, Taluka Moro were standing who were identified by him. They had come on motor cycle. They told him that they are going to Karachi for some work and they want to park motor cycle at his house. They further asked him to accompany them upto bus stop and after dropping them, take back the motor cycle to his house. On their return they would take their motor cycle. P.Ws. Abdul Karim and Mohammad Rafiq were standing in front near poultry farm at that time. They also saw the accused standing with the complainant, thereafter, he went with the above two accused on motor cycle to bus stop where the above accused told him that they had some invitation out of the town, and after attending that, he should drop them at the bus stop and take the motor cycle. They both seated him in the middle on the motor cycle and Rafiq drove the motor cycle, while Akhtar was sitting behind. They drove towards the jungle near graveyard. It was about 8‑00 p.m. He asked the accused as to why they have brought him in the jungle on which Rafiq took out a revolver from his folds and aimed at him. Akhtar threatened to kill him if he raised any cries, as his uncle Abdul Sattar had moved some applications against their friends regarding theft of cotton, thus harassed them. They wanted to take revenge and retaliate, and will kill him. That due to fear, he raised cries which attracted Habibullah Lashari and others. On seeing them, the accused ran away on motor cycle. He narrated the facts to Habibullah Lashari and others. Thereafter, P.W. Habibullah took him to his village. On the next day, both the above accused alongwith Allah Ditto and Eijaz again came to Habibullah Lashari in the morning and asked him to hand over Naim to them and they will deliver him at Nawabshah, but Habibullah Las hari refused. On 20‑10‑83, Habibullah Lashari took him to his village where his father was present and the complainant apprised him of the above facts. His father moved such applications before Martial Law Authorities. Thereafter, he accompanied his father to the police station and lodged his report, which has been produced as Ex . 9‑A . This report was recorded by S . H . O . S . Shahid Hussain, The S.H.O, then visited the place of incident and prepared such Mashirnama in the presence of Mashir Sattar Mashirnama has been produced as Ex.10‑A. On the same day, he examined P.W. Abdul Karim On 28‑11‑1983 he secured motor cycle bearing No.7529 Nawabshah, from the house of accused Akhtar Hussain and prepared such Mashirnama, which has been produced as Ex.14‑A. On the same day, he visited the place of Wardat i.e. graveyard, where the accused had threatened the complainant, and prepared such Mashirnama, which has been produced as Ex.12‑A, he examined P.W. Habibullah, Ratto and Sahiwal. On 2‑11‑1983 he examined P.W. Mohammad Rafiq. On the same date he recorded the statements of Abdul Hafeez, Habibullah and Mohammad Rafiq. According to him, he had recorded the statements of Abdul Karim, Habibullah and Abdul Hafeez on stamp papers and the same have been produced as Exs.14‑B to 14‑D respectively. On 28‑12‑1983 he got identification parade of the accused persons held before Head Munshi and 3rd Class Magistrate, Nawabshah, through P.W. Abdul Karim who picked up accused Rafiq and Akhtar in the identification test. He challaned the accused on 2‑1‑1984.

3. A formal charge was framed against the appellant and the co‑accused, to which they pleaded not guilty.

4. At the trial the prosecution examined Naim Ahmed P.W.1, who has produced the F.I.R. as Ex.9‑A,Abdul Sattar P.W.2 who has produced the Mashirnama of first Wardat as Ex.10‑A, Abdul Hafeez father of complainant P.W.3, Haji Ghulam Hussain Mashir P.W. 4, he acted as Mashir of the second Wardat an has produced the Mashirnama as Ex.12‑A, Habibullah P.W.5, S.Shahid Hussain 1.0. P.W.6, he has produced Mashirnama as Ex.14‑A regarding recovery of motor cycle and affidavits of complainant P.Ws. Abdul Hafeez, Habibulah and Abdul Karim as Exs.14‑B, 14‑C and 14‑D. Mr. Mir Mohammad, Head Munshi and Third Class Magistrate P.W.7, he has produced Mashirnama of identification test as Ex.16‑A.

5. That after the close of the prosecution case, the statements of the appellants and co‑accused were recorded under section 342, Cr.P.C. in which they denied the allegations but they did not examine any witness in their defence.

6. On 2‑9‑1986, the learned trial Judge was pleased to amend the charge and the accused were charged under section 364, P.P.C. The learned A.A.P. appearing for the State gave statement Ex.25, that he does not want to lead any evidence and the evidence already recorded may be taken into consideration. The learned counsel for the accused also made a statement Ex.26 that the accused do not want to give any further statement.

7. The learned trial Judge while relying upon the above evidence convicted the appellants as mentioned above, while co‑accused were acquitted. The present appeal is directed against the said conviction.

8. I have heard Mr. Azizullah K. Shaikh, learned counsel for the appellants. Mr. Hayat Qureshi, learned counsel for the State and have also gone through the R&P of the case.

9. The contention of Mr. Azizullah K. Shaikh, Advocate, is that no force was used and, therefore, no case of abduction was made out, the motive was not supported by the prosecution, there was no recovery of pistol and P.W. Habibullah has also not supported the prosecution, therefore, the conviction of the appellants was unjustified.

10. Mr. Hayat Qureshi, learned counsel appearing for the State does not support the conviction of the appellants and has contended that since there are contradictions in the evidence of the prosecution witnesses, therefore, the conviction of the appellants was not justified.

11. Complainant Naim Ahmed has fully supported the contents of his F.I.R. He has further deposed that the graveyard in question was about 30/35 miles away from his house. That he had shown the place of Wardat to the police and had also given number of motor cycle used in crime, to the police. That his father had filed complaint with Martial Law Authorities. In cross‑examination, he has deposed that he had no friendship with the two accused before the incident but being neighbour he was acquainted with them. He did not inform his family members, that he was accompanying with accused Rafiq and Akhtar. They had taken him to the bus stop near APWA High School, After reaching the bus stop, both the accused told him to accompany them on feast, but the place where the feast was arranged was not told to him. They told him that the place was nearby, he accompanied them happily. He was taken to graveyard from Rohri Canal Road. He did not know, where Irrigation Staff resides on the Rohri Canal Road. Many motor cars had crossed them, while they were taking him to the graveyard. He asked the accused on several occasions, as to why and where they were taking him. The accused had not beaten him in the graveyard. He did not remember as to how much time ago, the cotton crop of his uncle Abdul Sattar was stolen for which he had filed an application, against the friends of the accused. His uncle Abdul Sattar is Professor in Technical College in Nawabshah. Abdul Sattar was residing in Nawabshah when his cotton crop was stolen. Rehmat Ali is not real brother of his father, but he is near relation of his father. It was correct that he did not inform his relations when he was going with the accused Mohammad Rafiq and Akhtar. He told P.Ws. Abdul Karim and Rafiq that he was accompanying the accused. It is incorrect to suggest that graveyard is 6/7 miles away from the village of P.W. Habibullah. He had stayed on the night of incident in the house of Habibullah. On the following morning i.e. 19‑10‑1983 accused had again come to the house of Habibullah at 9‑00 a.m. He went to the house of his father on 20‑10‑1983. It is not correct to suggest that he stayed with P.W. Habibullah for two nights on which his father was annoyed, therefore, he concocted this story in order to involve the accused.

12. Abdul Sattar, P.W.2 has deposed that he acted as Mashir of the place of Wardat about 2 and half years back. The place of incident was situates in front of the house of Rehmat Ali, Line Par Jam Sahib Road, Nawab Shah. The place of incident was not pointed out by P.W, Naim, as he had not accompanied the police party. He produced the Mashirnama as Ex.10‑A. In cross‑examination he has deposed that the complainant is son of his sister. His crop was stolen in the year 1980 by one Mousali by caste. He knew accused, being neighbourers, they had no connection with that Mousali. The accused has never spoken with him regarding the theft of cotton crop by Mousali.

13. Abdul Hafeez P.W.3 has deposed that the complainant is his son. About 11 years back he was studying in H.M. Khoja High School, Nawabshah, and used to reside in the house of Rehmat Ali at Line Par. He had purchased a plot 21 years back in Housing Society, Nawabshah. He used to visit Nawabshah in connection with the construction of his house on the said plot, whenever he had money in his pocket. On 19‑10‑1983 he had been to the house of Rehmat Ali at evening time. His son Naim was not present in the house. He made inquiries from his daughters Mahzoor Akhtar and Naseem Akhtar about the complainant. They told him that complainant had gone to drop two persons of their village at bus stop, as they had to go to Karachi, and after dropping them at bus stop Naim will bring back their motor cycle. On the night of the incident Naim did not return back to home. He started searching Naim but could not succeed, therefore, he left for his village. Complainant Naim was not in the village, therefore, he returned back to Nawabshah. He did not find Naim in Nawabshah, therefore, he again left for his village. On 20‑10‑1983, P.W. Habibullah dropped his son Naim in the village at evening time. The complainant Naim told him that 2/3 days back at about 5‑00 p.m. accused Rafiq and Akhtar came to him at the house of Rehmat Ali and asked Naim to drop them at the bus stop. When accused reached at bus stop, they told the complainant that they had to attend the party nearby and he should drop them at bus stop after attending the party. The accused took complainant Naim to abandoned place. Accused Mohammad Rafiq took out a revolver while accused Akhtar caught hold of Naim. When complainant asked the accused as to why they were behaving with him in this manner, the accused replied that his maternal‑uncle had filed a report against their friends and, therefore, they will take revenge. The complainant raised hue and cry which attracted P.W. Habibullah and others. The accused ran away after seeing Habibullah and others. P.W. Habibullah took complainant to his village. The complainant told P.W. Habibullah that in case he would not have reached, the accused would have killed him. P.W. Habibullah told him that the accused approached him to hand over Naim to them so that he should be dropped in the house of his father, but P.W. Habibullah did not hand over Naim to the accused and brought him to his village personally. He approached the parents of all the accused and narrated the incident to them, who told him to file case against them. He had filed complaints against the accused before Martial Law Authorities. Complainant Naim then lodged the report. He was examined by the police. In cross‑examination he has deposed that his statement was recorded by police on 3rd day after lodging of F.I.R. His daughters had told him that the complainant had informed them before leaving the house that he is going alongwith accused. He inquired from many persons about the complainant, but he could not give name of any one. He had made inquiries about his son from one Abdul Karim Brohi owner of poultry farm. He had stated in 161, Cr.P.C. statement that his daughters had told him that Naim had told them while leaving with accused that he was going to drop them at bus stop. He had stated in 161, Cr.P.C. statement that Naim had told Habibullah, that if Habibullah would not have reached there, the accused would have killed him. He had not stated before the police that he had approached parents of the accused, who asked him to lodge report.

14. Haji Ghulam Hussain P.W. 4 has deposed that he acted as Mashir of the place of incident which was shown by complainant Naim. He has produced the Mashirnama as Ex.12‑A.

15. Habibullah P.W.5 has deposed that he does not know the accused present in Court. He knows P.W. Naim Ahmed. About 21 years back he had come to his house situated in his village. He only knows this much. P.W. Naim had come to his house, stayed the whole night and left in the morning. He was examined by police.

16. P.W. Abdul Karim has deposed that he knows P.W. Naimuddin. He is residing at Line Par Jam Sahib Road Nawabshah. He has got poultry farm near the house of P.W. Naimullah. About 21 years back at about 4/5 p.m. he was` present at his poultry farm. He saw the accused persons on the motor cycle. They called P.W. Naim from him house and took him on the motor cycle. The accused persons told P.W. Naim that he should go with them to bus stop. After one and half hours, after this incident, Abdul Hafeez father of P.W. Naim came to him and inquired from him about Naim. He informed him that two persons have taken away Naim with them on the motor cycle, thereafter, Abdul Hafeez ran away. Police had examined him. He had seen the accused persons correctly but they were not known to him previously. After one week of the incident the identification parade of the accused persons was held before Mukhtiarkar and F.C.M. Nawabshah in his office. He had identified both the accused correctly in the identification parade. Both the accused Rafiq and Akhtar present in Court were same. They had taken away P.W. Naim with them. In cross‑examination he hag deposed that he had stated before the police that accused called P.W. Naim from his house and took him away with them. He had also stated before police that accused told P.W. Naim that he should leave them upto bus stand. He had no talk with P.W. Naim at the time of incident. Firstly, he went to police station before identification parade. It is not a fact that accused had gone with him upto office of Mukhtiarkar. There were about seven persons in identification parade.

17. Mr. Mir Muhammad P.W. 8 has deposed that on 28‑12‑1973 he was Head Munshi and IIIrd Class Magistrate, Nawabshah. On that day police produced accused Rafiq and Akhtar for identification test. He made the accused sit in the Northern side of Verandah in Mukhtiarkar Office, P.W. Abdul Karim was also produced by police, as through him identification test was to be held. He was made to sit in the Southern side of the Verandah from where he could not see the accused. He mixed 7 other dummies with the two accused for identification test. He got the handcuffs removed from the two accused, and had asked other people to leave the Verandah. He then asked the accused to stand at any number of their choice in the line. Mohammad Rafiq had changed his feature. Akhtar did not change his feature. Mohammad Rafiq stood at serial No. 2 in the line from right side, while accused Akhtar stood at No. 6 from right side. He then asked his peon Iftikhar Ahmed to call P.W. Abdul Karim Brohi. P.W. Abdul Karim picked out two accused and disclosed that these were the persons. He then prepared the Mashirnama in presence of Mashirs Shahnawaz and Allah Bux and obtained their signatures. He has produced Mashirnama as Ex.6‑A. In cross‑examination he has deposed that he had called the dummies through his peon. He had not mentioned the names and features of the dummies in the Mashirnama. They were not with muffled faces except accused Rafiq.

18. S. Shahid Hussain P.W. 6 has deposed that on 22‑11‑1980 he was posted as S.H.O. at P.S. Nawabshah. On that day complainant Naim Ahmed came to lodge report which*he recorded, Ex.9‑A was the same. He visited the place of incident and prepared such Mashirnama in presence of Mashir Abdul Sattar, Mashirnama Ex.10. A was the same. On the same day he examined P.W. Abdul Karim on 28‑12‑1983 he secured motor cycle bearing No. 7529 Nawabshah from the house of accused Akhtar Hussain, under Mashirnama Ex.14‑A. On the same day he visited the place where the accused had threatened the complainant near village Dhani Bux Sial and prepared the Mashirnama which has been produced as Ex.12‑A. On the same day he examined P.W. Habibullah, Ratto, and Sahiwal. On 2‑11‑1983 he examined P.W. Mohammad Rafiq and also recorded the statements of P.W. Abdul Karim, Abdul Hafeez and Habibullah on stamp papers. He has produced the said statements as Ex.14‑B, Ex.14‑C and Ex.14‑D. On 28‑12‑1983 he got the identification parade of the accused held before the Head Munshi, Nawabshah, in which P.W. Abdul Karim identified accused Rafiq and Akhtar. He challaned the accused on 2‑1‑1984. This witness was not cross‑examined by the learned defence counsel, nor any contradiction was proved through him.

19. After close of the prosecution case the statements of the accused were recorded under section 342, Cr.P.C. in which they denied the allegations, but they did not lead any defence. The accused did' not examine themselves in defence.

20. I have considered the contentions of the learned counsel appearing for the parties. The complainant Naim Ahmed has fully supported the prosecution case and his evidence is further corroborated by P.Ws. Abdul Hafeez and Abdul Karim. Except some minor contradictions the learned counsel appearing for the applicants did not point out any material contradiction which could affect the veracity of evidence of these three witnesses. The incident took place in October, 1983 and witnesses Naim and Abdul Hafeez were examined on 23‑12‑1985 i.e. more than two years after the incident, while P.W. Abdul Karim was examined on 21‑5‑1986, and therefore, minor contradictions pointed out by the learned counsel were natural. The evidence of the above three witnesses is straightforward, natural, and unbiased. No enmity has been suggested to these witnesses in cross‑examination nor any enmity has been mentioned in statements of the accused recorded under section 342, Cr.P.C. The complainant has stated that the appellants had told him that they were going to kill‑him in order to take revenge for the harassment caused by his maternal‑uncle Abdul Sattar to their friends by making applications regarding theft against them. He is supported by his father on the point of motive. No doubt P.W. Abdul Sattar and Habibullah did not support the prosecution story but the fact remains that the complainant, his father Abdul Hafeez and P.W. Abdul Karim had no reason to implicate the appellants falsely. As regards the contention of the learned counsel for the appellants that no force was used, anal therefore, there was no abduction, I am afraid the contention is untenable. The abduction is defined in section 362, P.P.C. which reads as under:‑----

21. "Whoever by force compels, or by any deceitful means induces, any person to go from any place is said to abduct that person."

22. Therefore, for the purpose of proving abduction it was not necessary that the force should have been used. The evidence of complainant Naim clearly shows that he was taken away by the accused by deceitful means. The incident took place during broad daylight and there were no reasons for false implication.

23. In view of the fact that the abduction of complainant Naim was proved by the evidence of complainant himself, his father Abdul Hafeez and P.W. Abdul Karim, and the motive was also mentioned as disclosed by the accused themselves. P.W. Abdul Karim is ani independent witness and had no connection with the complainant party, nor had any reason to give false evidence against the appellants. It was proved that the appellants had abducted the complainant in order to kill him. Merely because P.W. Abdul Sattar and Habibullah did not support the prosecution, and due to lapse of time they appeared to have compromised their integrity, it could not be said that the case against the appellants had not been proved.

24. In view of the above discussion I am of the considered view that the prosecution had proved its case against the appellants beyond any reasonable doubt, and they were rightly convicted by the learned trial Judge. I, therefore, do not find any reason to interfere with the judgment of the trial Court, and the above appeal is, therefore, dismissed. The appellants are on bail, their bails bonds stand cancelled. The learned trial Judge will issue N.B.Ws. against the appellants for the purpose of serving out the remaining period of their sentence. However, the appellants are given benefit of section 382‑B, Cr.P.C.

25. S . A . / M‑314 / K Appeal dismissed.