RAZA DOGAR vs N/A

ZAFAR PASHA CHAUDHARY, J.---Murder Reference No,248-T and Criminal Appeal No,301 of 2000 have been taken up together as both arise out of common judgment dated 29-2-2000 passed by Mr. Mehmood Maqbool Bajwa, learned Special Judge under Anti-Terrorism Act, 1997, Lahore, whereby the appellant Raza was convicted under section 365-A, P.P.C. and sentence to death, with forfeiture of his property. Also convicted under section 392, P.P.C. and sentenced to ten years rigorous imprisonment with a fine of Rs,25,000 failing which to further undergo six months rigorous imprisonment. He was further convicted under section 7(ii). Anti-Terrorism Act and sentenced to death with forfeiture of property as well.

2. The prosecution case in brief as revealed from the statement of Imtiaz Hussain P.W.6 is that on 1- 12-1998 at about 10-30 a.m. he left the house on Motorcycle for Ghalla Mandi, Chunian. When he reached near Kashan Wali Street, Raza Dogar accused armed with .30-bore pistol came from opposite side and intercepted him. He took the rear seat of Motorcycle and asked Imtiaz Hussain to go towards Hujra Road on pistol-point. When they reached Kot Umar Watto, accused asked him to turn towards Mir Kot, when they reached near the Bridge of Mir Kot, accused asked him to get down from Motorcycle and snatched his jacket, Golden Locket, Rs,700 as also Motorcycle and fled away.

3. The prosecution in support of its cases examined eight witnesses. Out of them Muhammad Hanif, Constable P.W. I recorded the formal F.I.R., Karat Ali P.W.2 is the witness, of recovery of Motorcycle Exh.P.A/1 which was lying near Hujra Petrol Pump. The same was taken into possession vide memo.

Exh.P.C, P.W.3 Muhammad Sharif , A.S.I. as well as Muhammad Iqbal, S.I. P.Ws.3 and 5 respectively obtained warrants of arrest of Rana appellant as he was fugitive from law and thereafter, they obtained his proclamation .to initiate proceedings under section 87, Cr.P.C. P.W.4 Muhammad Ishaq, A.S.I. arrested Raza appellant on 28-4-1999 who was already in police custody in case F.I.R.

No,925 of 1998, P.W.7 Muhammad Arif, S.I. partially conducted the investigation and on his transfer the investigation was taken up by P.W.8 Muhammad Ansar, Inspector who sent up Raza appellant to face trial.

4. Imtiaz Hussain aged 20 years is the complainant who was examined as P.W.6. He deposed on oath before the trial Court what had been submitted by him in complaint Exh.P.A that he left his house on Motorcycle for grain market, on his way when he reached near Kasabanwali Street, Raza was coming from opposite side armed with .30-bore Mouser. He forcibly occupied the rear seat of the Motorcycle and asked him to go towards Hujra Road. When they reached near Kot Umar Bridge, accused asked him to turn Sowards Mir Kot. On resistance by him, the accused fired a shot towards his feet which was missed but hit the ground. After some distance accused asked Imtiaz Hussain complainant to get down from Motorcycle.

Accused forcibly took the jacket, golden locket and Rs,700 from the complainant. The accused appellant also took Motorcycle of Imtiaz and fled away. While leaving the accused threatened Imtiaz that he had been abducted for ransom but left him because he was his class-fellow. The complainant further stated in Court that-on the last date of hearing accused while in custody had extended threats of dire consequences in case he made statement against him.

5. As is evident from the description of the above evidence, the main evidence comprises of the statement of Imtiaz Hussain P.W. 6 abductee. Apart from his statement there is recovery of Motorcycle which had been forcibly snatched from him and also evidence of abscondence of the accused person. The learned counsel for the appellant has argued that there is no evidence whatsoever against the appellant which could warrant conviction under section 365-A, P.P.C. or section 7(ii), A.T.A. According to the learned counsel although Motorcycle which had been forcibly snatched from the complainant was recovered subsequently but the recovery was not effected from the appellant, rather the same had been abandoned by someone and taken into possession by the police. The learned counsel, however, appears to have not realized that it is not the quantity of the evidence but the quality and substance of evidence which is required to record conviction.

Complainant Imtiza Hussain has made a statement on oath in Court had earlier while reporting the matter to the police, wherein he had specifically alleged that was forcibly taken away by Raza appellant under threat to life and he was armed with Mouser. Not only that he just exhibited the Mouzer rather he practically used it and fired a shot in order to threaten the complainant and threafter, yielded to the demand of the appellant. The complainant has absolutely no motive or any other grievance or grouse to falsely implicate the appellant. He reported the matter to the police and thereafter, he stood to his version and made statement on oath. During the cause of cross-examination nothing could be brought on record that he made a false statement due to some enmity or some other ulterior motives. The fact remains that appellant was armed with fire- arm weapon, he forcibly took away the complainant who is boy of 20 years and thereafter, he was constantly kept under threat to his life and the abduction was made under pistol-point. Statement of the complainant is supported by the fact that Motorcycle which was snatched from him forcibly, was found lying on 10-12-1998 i,e, after about nine days of its snatching. It is true that Motorcycle was not recovered from the possession of the appellant yet the fact remains that same was found abandoned, obviously the Motorcycle would not have been abandoned by the complainant Imtiaz Hussain in order to implicate the appellant. The recovery of Motorcycle as such lends support and corroboration to ,the statement of the complainant that Motorcycle snatched from him was found after about nine days. This circumstance when taken alongwith the statement of the complainant, who is absolutely independent witness, leaves no doubt to believe that he has come forward with true version. The statement of the complainant is consistent and its perusal inspires confidence.

The learned trial Judge, therefore, relying upon the testimony of the complainant and also taking into consideration that appellant became fugitive from law and was declared absconder and also the snatching of the Motorcycle and its subsequent recovery, all these pieces of evidence taken together proved that the appellant had abducted Imtiaz Hussain forcibly. The learned trial Judge relying upon the allegations that appellant told the abductee Imtiaz Hussain that he had abducted him for ransom, therefore, proceeded to convict him under section 365-A, P.P.C. To our mind, only this piece of evidence whereby the appellant expressed his intention or future plan by itself is not sufficient to prove the guilt of the appellant under section 365-A, P.P.C. Offence under section 365- A, P.P.C. is punishable upto death, therefore, in order to record conviction under that section, all the ingredients therein must have been completed. If only an attempt to commit an offence under that section has been made then conviction will have to be recorded under section 365-A read with section 511, P.P.C. A bare persual of statement of P.W.6 Imtiaz Hussain read alongwith factum of recovery and abscondence, prove the prosecution case beyond doubt that an attempt to commit offence under section 365-A, P.P.C. was made by the appellant. He is therefore, liable to be convicted under section 365-A, P.P.C. read with section 511, P.P.C. In that event the sentence can be half of the maximum sentence provided for the main section, for which the attempt had been made. Obviously an attempt has been made to commit offence under section 365-A, P.P.C., therefore, when the same is read with section 511, P.P.C. the offender can be punished upto half of the maximum sentence. The maximum sentence under section 365-A, P.P.C. is death or imprisonment for life, the half of which would come to twelve and half years. The appellant therefore, can be convicted upto half of the imprisonment for life which as noted above would be twelve and half year. We after assessing the relevant facts and circumstances of the case are of the opinion that the sentence of ten years rigorous imprisonment would meet the ends of justice.

The appellant is therefore, convicted under section 365-A, P.P.C. read with section 511, P.P.C. and is sentenced to ten years rigorous imprisonment. He is also ordered to pay a fine of Rs,20,000 in default where of to further undergo one year's rigorous imprisonment.

6. As section 365-A, P.P.C. is not found to be constituted, therefore, it would not be lawful to convict the appellant under section 7(ii), A .T.A . The conviction and sentence of the appellant under section 7(ii), A.T.A. is, therefore, set aside.

7. Conviction has been recorded under section 392, P.P.C. as well and appellant has been punished to suffer ten years rigorous imprisonment with a fine of Rs,25,000 failing which to further undergo six months rigorous imprisonment. The appellant forcibly took away the complainant and thereafter, extorted Rs,700 from him and also forcibly snatched Motorcycle and jacket. Although recovery of 700 rupees could not be effected as the appellant became absconder. But as we have placed explicit reliance on the statement of complainant therefore, extorting of Rs,700 even though same have not been recovered from him, can safely be believed. The conviction and sentence of appellant under section 392, P.P.C. as recorded by the learned Trial Judge is upheld and maintained.

8. Apart from the present one, there were three other murder references as well against the appellant; all relating to similar nature. Though sentences of death have not been confirmed but he does not deserve any leniency, as such the sentences shall run consecutively i,e, one after the other.

9. Criminal Appeal No,301 of 2000 is disposed of in the above terms. Murder Reference is answered in negative.

Sentence of death is confirmed.