MUHAMMAD ASAD Versus State

SHAHID HAMEED DAR, J.--- Muhammad Asad-appellant was held guilty for offences under sections 365-A, P.P.C. read with section 7(e) of the Anti-Terrorism Act, 1997 by the learned Judge, Anti-Terrorism Court, Faisalabad vide judgment dated 8.10.2009 and sentenced to imprisonment for life with forfeiture of his property, besides, given benefit of section 382-B, Cr.P.C. His co-accused Muhammad Saleem and Abdul Hameed were acquitted of the charge on extension of benefit of doubt.

2. The appellant by filing the instant appeal has assailed the impugned judgment, whereas the complainant being dissatisfied with the sentence awarded to the appellant approached this court by filing Criminal Revision No.280 of 2010, in which notice for enhancement of sentence was issued to him. We propose to dispose of both the matters together through this single judgment.

3. Written application (Exh.PA) submitted by Nazir Ahmad-complainant (P.W.1) on the basis of which formal FIR (Exh.PA/2) was registered, contained the allegations that his only son Adnan Nazir (P.W.2), aged 20, was a student of second year at G.C. University Faisalabad, who was abducted by Asad (appellant) and his unknown co-accused at pistol point on 18.4.2008, when he had reached Shell Petrol Pump near Partab Nagar, while returning to his house after attending tuition-class; the abductors rode a car then and they took away the abductee in their car and confined him in a house situated at street No.9 Saifabad; they tortured his son and forcibly snatched cell-phone and cash, Rs.3000/- from him; the accused made a phone-call to him (0345-7721055) from the cell-phone (0346-7760718) of his son at about zero hour (12.00 midnight) and demanded ransom of Rs.2,00,00,000/- from him; they said that they would talk to him again on telephone and let him know about the place where he would deliver the ransom amount to them; the telephonic discussion was heard by Shabbir Ahmad (P.W.3) and Haji Ghulam Qadir PW (not produced); he did not inform the police at once, lest the accused should kill his son, but he started searching for him in sheer distress; his abducted son telephonically established contact, from some other person's cell-phone, with him at 4.00 a.m. on 19.4.2008 and told that he had escaped from the clutches of the accused and stood near Shadab Pulli, Jhang Road; he asked him to reach there, as his life was in danger; he (complainant/P.W.1) immediately contacted the Elite Force and Police Station Jhang Bazaar and told them the whole story; he along with the police reached the spot where they found the abductee, Adnan Nazir present, who looked unwell and badly terrified; the police took him and his abducted son with them and conducted raid at the place of confinement of the abductee, but to no avail as accused had decamped; he was threatened by the accused that they would murder him and his son if he thought of reporting the crime to the police; the complainant (P.W.1) presented written application (Exh.PA) to Allah Rakha SI (P.W.6) at Chowk Imam Bargah at 4.00 p.m. on 20.4.2008, who scribed proceedings (Exh.PA/1) thereon and despatched it to the Police Station through Ghulam Mustafa constable for registration of a case, resultantly, formal FIR (Exh.PA/2) was drawn up by Javed Masih ASI/DO (P.W.7) at 4.05 p.m., the same day.

4. After registration of the case, its investigation was entrusted to Muhammad Riaz SI (P.W.5) on 20.4.2008, who inspected the place, wherefrom Adnan Nazir (P.W.2) was abducted and prepared its visual site-plan (Exh.PF); recorded supplementary statement of the complainant, the same day, whereby he nominated Abdul Hameed (since acquitted); visited place of confinement of the abductee, inspected it and prepared its visual site-plan (Exh.PG); he arrested Abdul Hameed-accused (since acquitted) on 2.5.2008 and after necessary interrogation despatched him to the judicial lock-up on 17.5.2008; inserted section 365-A P.P.C. in the list of offences; recorded another supplementary statement of the complainant on 28.9.2008, whereby he named Muhammad Saleem-accused (since acquitted); the complainant produced before him call-detail-record (CDR) of mobile SIMs No.0345-6636789, 0344-8664640 & 0345-7849907 (Mark A/1 -30); he visited Central Jail Gujranwala, where accused-Asad (appellant) was confined in case-FIR No.306, dated 3.7.2008, under sections 365-A/302/201, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997, registered at Police Station Saddar Kamonke (Gujranwala) and after being duly authorized by the learned Sessions Judge, Gujranwala, he formally arrested the accused in this case on 17.10.2008; he interrogated him (appellant) and recovered SIM (P1) No.0344-8664640 at his instance, which he took into possession vide memo of recovery Exh.PD, duly attested by Nazir Ahmad (P.W.1) and Muhammad Azam PW (not produced); the accused-appellant also got recovered NOKIA mobile-phone 3310(P2) and pistol .30-bore from his rented house, which was seized vide memo of recovery Exh.PE, attested by the same set of witnesses, on 22.10.2008. On completion of the investigation, challan against the appellant and his mentioned co-accused (since acquitted) was submitted before the court for their trial in accordance with law.

4. The accused on indictment pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced seven witnesses, namely, Nazir Ahmad-complainant (P.W.1), Adnan Nazir, the abductee (P.W.2), Shabbir Ahmad (P.W.3), Muhammad Javed 2311/HC (P.W.4), Muhammad Riaz SI/IO (P.W.5), Allah Rakha SI (P.W.6) and Javed Masih ASI (P.W.7). Thereafter, the accused were examined under section 342, Cr.P.C., whereby they professed their innocence in the matter and denied all the allegations levelled against them. They did not opt either to depose within the scope of section 340(2), Cr.P.C. or adduce evidence in defence. The contention adopted by the accused-appellant in reply to question as to why this case against him and why the PWs have deposed against him, read as under:-

"It is a false case. I have been involved in this case falsely by the complainant in connivance with the police to grab the money. All the PWs deposed against me falsely with the connivance of the Investigating Officer as well as complainant. In fact the complainant Nazir Ahmad had purchased a coaster from me and Rs.290,000/- was due against him in the transaction. Thereafter, an other transaction was made between me and the complainant, as he returned the above said coaster with lame excuses and thereafter the complainant had purchased a Dalla from me and Rs.100,000/- was also due against the complainant of the said transaction. Due to above said transaction, a dispute arose between me and the complainant. So our relations became strained and we had no visiting terms inter-se. The complainant involved me in this false case due to above said grudge and fabricated false evidence against me. I am innocent."

The learned trial Judge on conclusion of the trial held the appellant guilty of the offences charged and sentenced him as mentioned hereinabove.

5. Learned counsel for the appellant has contended that the story qua abduction of Adnan Nazir (P.W.2) is patently false, having been fabricated under a conspiracy by his father (complainant/P.W.1) so as to pressurize and blackmail the appellant; the evidence on the record has been misread and misappraised by the learned trial court for holding the appellant guilty and awarding him the sentence impugned; the statements rendered by the prosecution witnesses are unnatural, discrepant inter se, which ought to have been rejected by the learned trial court, but it did not happen to sheer disbelief of the defence; the impugned judgment has been passed injudiciously, merely on conjectures and surmises, which has resulted in gross-miscarriage of justice; the prosecution miserably failed to prove its case during trial beyond any shadow of doubt and for this reason the impugned judgment may be annulled.

7. The learned counsel appearing on behalf of the complainant argued that there existed no enmity between the parties nor there was any ill-will on the part of the complainant to falsely involve the appellant in this case; the evidence tendered by the complainant (P.W.1) and the abductee (P.W.2) cannot be brushed aside as incredible nor any element of preposterousness floats across the face of their testimonies; each accused commits the crime with a particular frame of mind, therefore, crime so enacted cannot be adjudged in the light of whimsical improbabilities imagined by the other side.

8. Learned Deputy District Public Prosecutor submitted that the charge, in the circumstances of the case, stood proven beyond doubt, therefore, impugned judgment may not be declared faulty nor it may be undone on the basis of imaginary fallacies.

9. We have minutely gone through the entire record and considered the submissions of the learned counsel for the parties.

It all started when Adnan Nazir (P.W.2), the only son of Nazir Ahmad-complainant (P.W.1) after attending the tuition class set off for his house from the tuition center on 18.4.2008, when he reached Shell Petrol Pump near Partab Nagar, three armed car riders, one of them being the appellant and others unknown, forcibly lifted him at pistol point, took him away to a house situated at Street No.9 Saifabad and confined him there in a room, where they committed torture on him and snatched his belongings, cash amount, Rs.3000/- and his cell-phone, whereafter they used his cell-phone to establish contact with the complainant on his mobile-phone, the same night and demanded a massive ransom amount, Rs.2,00,00,000/- from him to release his son, the abductee. They told the complainant to wait for their next call in two days so as to learn, where he would bring the ransom amount. There was an immediate drop-scene of the crime, as the abductee (P.W.2) allegedly rescued himself when his captors were asleep. He after covering a little distance reached Shadab Pulli, where he contacted his father by using the cell-phone of some other person and informed him about his lucky escape, whereon his father (P.W.1) reached the said place along with some police officials and found him present there, but in a wretched state of body and mind. On knowing the details of occurrence from the abductee, the police conducted raid at the confinement-cell but could not arrest any of the accused, as they had made good their escape. The strange aspect of the case is that the complainant received the telephone call from the abductors, who demanded ransom of Rs.2,00,00,000/- for releasing his youthful son, but a few hours thereafter, he despite having been intoxicated by the accused ran away from their hold and they, who had not used any intoxicants, kept sleeping.

10. The formal FIR (Exh.PA/2) is based on written application of the complainant (Exh.PA), which entails a contention of the complainant, as to delay in reporting the crime to the police that the accused had threatened him of murder in case he moved for a legal action against them. There exists an important circumstance in the FIR, which relates to a telephone-call by the complainant to the police on 19.4.2008, after having been informed about his son's escape at 4.00 a.m., the said day, which resulted in arrival of the police at the place, they were asked to be at, whereafter they did many an investigational deeds, of course on 19.4.2008, which included hearing of the tale of the abductee followed by a raid at the place of his confinement by the police, he pointed to and they all remained together for a considerable period of time on the said day. Can't this FIR (Exh.a.PA/2) be considered to have been recorded after preliminary investigations is a question, the answer to which is certainly in affirmative as it was recorded at 4.05 p.m. on 20.4.2008, almost thirty six (36) hours after the police embarked on investigating the matter on 19.4.2008. The police admittedly remained with the complainant and the abductee since the morning of 19.4.2008, but they made no effort to get the case registered against the appellant and his acquitted co-accused, which is not a petty circumstance, to be casually overlooked. The statement of Muhammad Riaz SI/IO (P.W.5) is important in this regard, who gave a detailed account of the work done by him on 19.4.2008, with complainant (P.W.1) and the abductee (P.W.2) on his flanks. He has categorically admitted that the complainant, abductee and other prosecution witnesses visited the police station on 19.4.2008, took him to the place of confinement of the abductee at about 4.00 a.m., where they all remained for about 15/20 minutes, during the course of which he prepared the visual site-plan of the said place, inquired all the witnesses including the complainant and the abductee about the details of the crime and left the spot at 4.45 a.m., the same day, i.e. 19.4.2008. He frankly admitted in his testimony that he had not incorporated the above said proceedings in Roznamcha of the police station. He further stated that the complainant and the abductee did not return to the police station on 19.4.2008 but he furnished all the information to the S.H.O., the duty officer and the Muharrir but they did not chalk-out the FIR on the said day.

11. The complainant (P.W.1), however, has stated in his testimony that he presented application (Exh.PA) to the Deputy Inspector General of Police (Operations) for registration of the case on 19.4.2008, but police proceedings recorded thereon by Allah Rakha SI (P.W.6) negated the said assertion as he wrote to have it received at 4.00 p.m. on 20.4.2008 at Chowk Imam Bargah. He, however, said in his testimony that he learnt about registration of the case at night on 20.4.2008, when he was present at the police station. Adnan Nazir (P.W.2) admitted to have met the police at Shadab Pulli on 19.4.2008 where he told them the whole story and led them to the place of his confinement by the accused, where they stayed for about one hour. He, however, denied to have gone to the police station on 19.4.2008. The police proceedings (Exh.PA/1) when put in juxtaposition to the written application (Exh.PA) itself, a controversy hangs over the prosecution case as to the day of presentation of the said application by the complainant before the police for registration of FIR. The written application (Exh.PA) bears diary No.2176-CC, dated 19.4.2008 with a written direction of even date to the S.H.O., Police Station Jhang Bazaar by the D.I.G. (Operations), City Police Officer, Faisalabad, for registration of the case, "after verification". The Inspector/SHO of Police Station Jhang Bazaar recorded endorsement on the said application to the effect that an action be taken in accordance with the law but he did not write any date below his signature. It appears that the police were initially reluctant to register the case and they finally did so, on 20.4.2008. It is equally possible that the local police was not impressed by the veracity of the story, narrated by the complainant (P.W.1) and the abductee (P.W.2), as they failed to collect any corroboratory evidence, despite having raided the alleged place of confinement of the abductee on 19.4.2008, whereafter the complainant went to the D.I.G. (Operations) and got the said direction by presenting an application (Exh.PA) before him. The delay in lodgment of the FIR may or may not be of much relevance as it had certainly been recorded after preliminary investigations. Besides, the complainant did not utter a word in his testimony that application (Exh.PA) had been prepared on his dictation or that it was ever read over to him or did he ever sign it or not. He, however, has contended in his testimony that he got recorded the said application at about 11.00 a.m. on 19.4.2008 and it was dictated by Mian Khalid advocate to a computer operator/steno. He further stated that he went to Police Station Jhang Bazaar along with a couple of PWs in the morning hours but he did not inquire from the Muharrir, if FIR had been registered or not. He recorded a queer deposition as to the fact that he did not inform the Muharrir head-constable and Thanedar, who was the duty officer, regarding his application for registration of the case. Succinctly, the effects regarding preparation of application (Exh.PA), its presentation by the complainant (P.W.1) before the D.I.G. (Operations) on 19.4.2008 and receipt thereof by Allah Rakha SI (P.W.6) on 20.4.2008 at the mentioned place and in between, the complainant's effort to conceal the factum of having moved the said application for registration of the case before the D.I.G., from the Muharrir and the duty officer/ASI, are not at all clear and they conjointly obfuscate the matter beyond limits.

12. The complainant (P.W.1) is not an eye-witness of the occurrence and he got knowledge about the abduction of his son Adnan Nazir (P.W.2), firstly through a phone-call, made by Muhammad Asad (appellant) and his two unknown co-accused at midnight between 18/19.4.2008, who demanded ransom of Rs.2,00,00,000/- from him to spare the life of his son, secondly, through the mouth of his abducted-son, who rescued himself from the grip of the accused at about 4.00 a.m. on 19.4.2008 and reached Shadab Pulli, where the complainant and the police jointly reached and heard his tale of misery. As per his own deposition, the abductee (P.W.2) has claimed that the appellant and his co- accused after abducting him, took to a house in Saifabad Street No.9, where they being armed with pistols forced him to intake intoxicating juice, which he did and became senseless; at 12.00 midnight, the accused awoke him and made him talk to his father about his abduction; Asad (appellant) demanded Rs.2,00,00,000/- as ransom from his father to release him; he slept again and woke up at about 3.00 a.m. and found the accused sleeping; they had tied him with a cot; he struggled to set him free and succeeded in doing so; he exit the said room through a window to enter in the veranda, went upstairs and jumped in an adjacent vacant plot; he ran away from the said place and found some persons cleaning the sewerage; he obtained a mobile-phone from them and talked to his father, who joined by the police reached Shadab Pulli, where he was present; the police raided the house of the accused, as held them to the said place; the accused had snatched his cell-phone NOKIA and Rs.3000/- from him; he was introduced to Asad (appellant) by Abdul Hameed (since acquitted), who encouraged him to accompany Asad, whenever he would so wish.

The picture painted by the prosecution witnesses, especially the abductee (P.W.2) is so blurred that one cannot see any meaningful lines therein nor any such silhouette appears in it, which may illuminate or clarify the foreground. A preposterous and unbelievable story has been told by the abductee, which did not seek corroboration from any source. He appears to have exaggerated from the start to the end of his testimony. He was administered intoxicating juice by the accused but it was he who repeatedly awoke during the fateful night and those, who did not use any intoxicant, so deeply slept that he untied his both hands and other parts of the body tied against a cot, one after the other and his tormenters, who slept in the same room remained motionless and senseless. He did not offer himself for his medical examination so as to prove the allegation of torture by the accused or to have his blood, urine, stomach contents chemically analyzed for detection of intoxicating element/substance therein. He recorded interesting and laughable answers in his testimony when he contended about the story of his 'great escape' from the house of the accused and Investigating Officer Muhammad Riaz SI (P.W.5) too did not lag much behind when he deposed about the factum of his failure in gathering any incriminatory material i.e. the cord, the cot, intoxicants and other articles from the room/house of the accused, he raided on the pointedness of the abductee, as he contended "that the accused had fled away along with the cot and ropes. ...... the accused had already shifted the cot, ropes and intoxicant." He found the house vacant rather "completely vacant", meaning thereby that there were no symptoms of any one residing there. The abductee frankly admitted in his testimony that he did not offer himself for his medical examination. It is manifest from his statement that the accused had tied his both hands and legs by means of ropes with the cot before they slept in the same room. What magical words he used or what incantation he blew on his body that the rope-knots on his arms and legs opened one after the other without leaving any scratches or contusions thereon. The abductee could have shown his footprints to the Investigating Officer at the spot, particularly in the adjoining vacant plot, wherein he had jumped from the rooftop of the appellant's house. The abductee took self-contradictory stance as to how many times he met Asad (appellant) prior to the occurrence, once he in his testimony said that he never met him prior to the occurrence, but he improved upon this version in later part of his statement that he met him (appellant) only once prior to the occurrence. The statement of Shabbir Ahmad (P.W.3) does little good to the prosecution case as he did not disclose the name of the caller who demanded Rs.2,00,00,000/- as ransom from the complainant. He has used the words "other party" in this regard. He was a police official and posted at the same police station where case under discussion was got lodged by the complainant. He is resident of Chak No.93/JB, which is about 35 kilometers away from Chak No.61/JB, the complainant hails wherefrom. The probability cannot be ruled out that he played the instrumental role in getting the aforesaid case lodged against the appellant. The cumulative effect of the above discussion is that the statements of Nazir Ahmad-complainant (P.W.1), Adnan Nazir, the abductee (P.W.2) and Shabbir Ahmad (P.W.3) do not paint an unblemished picture qua the prosecution case as their testimonies are inconsistent, discrepant and contradictory inter-se, besides entailing a touch of countless improbabilities, hence, liable to be brushed aside.

13. Insofar as abscondence of the appellant in this case is concerned, the prosecution has produced Muhammad Javed HC (P.W.4) and Muhammad Riaz SI (P.W.5) to prove the said fact. Muhammad Javed HC, the process server, has frankly admitted in his testimony that he did not get attested his report by any respectable or resident of the village, where house of the accused was located. His report, however, bears the signatures of Liaqat Ali and Muhammad Khalid, but no one knows who they were. Muhammad Riaz SI/IO (P.W.5) has contended in his testimony that he obtained non-bailable warrants of arrest of accused Asad and handed it over to Ghulam Murtaza constable for its execution. Ghulam Murtaza constable did not appear as a witness nor warrant of arrest against the appellant was tendered in evidence by any witness. The learned trial court strangely brought it on the record as Mark "A" and report of the process-server as Mark "A/1", which certainly has no evidentiary value in the eyes of law. This particular aspect of the case has gone unsubstantiated.

14. Insofar as recovery of call-detail-record (CDR) Mark" "A/1-30" vide memo Exh.PC, attested by Nazir Ahmad (complainant/P.W.1) is concerned, it hardly connects the appellant with the cell-phone of the complainant, as no other evidence is available on the record, which may establish that the appellant ever used a particular SIM number in his cell-phone. The memo of recovery (Exh.PC) entails an item which gives an impression that Asad accused/appellant had in his use SIM No.0345-6636789 and his acquitted accused used SIM Nos.0344-8664640 & 0345-7849907, on the day of the occurrence and thereafter. The call-log Mark "A" though carries little evidentiary value, reveals that it pertains to the SIM number of Muhammad Saleem accused, who had been acquitted by the learned trial court through the impugned judgment and appeal (Crl.A.No.1181/2009) filed by the abductee Adnan Nazir, against his acquittal had been dismissed in limine by this court on 30.6.2010. How did the prosecution believe that afore-noted SIM belonged to the appellant? Muhammad Riaz SI/IO (P.W.5) has stated in his testimony that Asad accused/appellant made a disclosure on 22.10.2008 and led the police to the recovery of NOKIA mobile-phone 3310 (P2) and pistol .30-bore (P3) from his rented house situated in Street No.9, Saifabad, Faisalabad, which was secured by him vide memo of recovery Exh.PE, attested by Nazir Ahmad-complainant (P.W.1) and Muhammad Azam PW (not produced). Both the items are hardly relevant in this case as cell-phone (P2) does not belong to the abductee, nor it was found loaded with any SIM. Pistol .30-bore was not fired through during the occurrence nor any empty thereof was collected by the Investigating Officer during investigation. What benefit did it (P2 & P3) lend to the prosecution case and under what circumstances they were treated as incriminatory piece of evidence by the learned trial court remains a complicated riddle, which we assume, the learned trial court may not resolve either. The evidence of recovery of said items is as meaningless and inconsequential as other parts of the prosecution case, rejected by us in the preceding paragraphs of this judgment.

15. For all, what has been discussed above, the prosecution case sounds more of a cock and bull story so far as involvement of the appellant in this case is concerned. His conviction and sentence, therefore, cannot be maintained on this quality of evidence. Hence, we allow this appeal, set aside the conviction and sentence of the appellant recorded by the trial court and acquit him of the charge. He be released forthwith if not required in any other case.

16. Insofar as Criminal Revision No.280 of 2010 filed by the complainant seeking for enhancement of sentence of the appellant is concerned, in view of the observations made hereinabove, it has no force, hence, dismissed.

MH/M-245/L Order accordingly.