1994 P Cr (PLP)

JUSTICE RAJA AFRASIAB KHAN (MEMBER)

The appellants, Asghar Ali (32) and Gul Muhammad (24), were convicted by Mr. Justice (Retd.) Gulbaz Khan, learned Judge, Special Court for Speedy Trials NO.II, Lahore, on 3-3-1993. Asghar Ali was sentenced to undergo R.I. for 10 years plus a fine of Rs.1,00,000 (one lac) or in default thereof to suffer further R.I. for one year under section 392/34, P.P.C. He was further awarded 7 years' R.I.: and a fine of Rs.1,00,000 (one lac) or in default thereof to suffer R.I. for 3 months, under section 365/34, P.P.C. Gul Muhammad was sentenced to undergo R.I. for 4 years plus a fine of Rs.2,000 (two thousand) or in default thereof to suffer R.I. for six months under section 392/34, P.P.C. He was also awarded sentence of 4 years' R.I. plus a fine of Rs.1,000 (one thousand) or in default thereof to suffer 3 months' R.I. under section 365/34, P.P.C. The convicts were also ordered to pay Rs.20,000 (twenty thousand) each as compensation to Ihsan-ul-Haq Abbasi P.W. It was observed that their sentences would run 'concurrently. The benefit under section 382-B, Cr.P.C. was given to them. The cash of Rs.7,00,000 (seven lacs) was directed to be returned to Ehsan-ul-Haq Abbasi, P.W. after the decision of the appeal. Klashnikov, magazines and live bullets were, however, confiscated to the State. The two vehicles (Jeep and Car) were ordered to be returned to their owners because it was held that the vehicles were not proved to be connected with the case. The convicts have challenged their conviction and sentence by filing Criminal Appeal No.26/SAC/L of 1993 before this Court which shall be decided by this judgment.

2. The facts, in brief, are that Muhammad Ishfaq Abbasi (complainant) is working as a servant of Rehman-ul-Haq Abbasi, at his shop known as "Abbasi Cloth House", Main Bazar Kharian. Ehsan-ul-Haq Abbasi is also a partner in the Firm, Raja Jee Motors, Satellite Town, Rawalpindi. On telephone, Raja Masood requested Ehsan-ul-Haq Abbasi to send him a sum of Rs.12,00,000 (Twelve lacs) because he wanted to purchase some vehicles. On 29-8-1990, Ehsan-ul-Haq Abbasi entrusted rupees twelve lacs to Muhammad Ishfaq Abbasi for its onwards payment to Raja Masood. The complainant left Kharian for Rawalpindi with the cash by Flying Coach at about 7-30 a.m. and alighted at the Adda of Continental Flying Coach, Rawalpindi. Khitab Abbasi a relative of Ehsan-ul-Haq Abbasi was already waiting for the complainant. Accordingly, both of them went ahead on foot. When they reached near under construction Pindi Hotel, all of a sudden, a jeep and a car came and stopped just in front of them. Five persons alighted therefrom and enquired front the complainant as to whether he was Ishfaq Abbasi. The answer was in the positive whereupon the person in police uniform on whose chest, the name plate of "Asghar" was hanging, gave a slap on his face and ordered Gul Muhammad, Constable to hand-cuff Muhammad Ishfaq Abbasi and Khitab Abbasi. Gul Muhammad apprehended both of them and loaded them W the vehicle. They proceeded towards Peshawar side. On the way, the captives were threatened with dire consequences. The accused declared that in case they made a noise, they would be done to death. When they reached near Lawrence Bridge, the accused took them to a deserted road where the complainant was asked to hand them over the entire cash. The accused Asghar and Gul Muhammad snatched rupees twelve lacs from the complainant. After looting the money, the accused brought back the complainant and his companion to Rawalpindi. On return, near Chowk Chuhar, the Inspector directed the driver to stop and also asked him to bring two sticking tapes. The tapes were brought and pasted on the eyes and mouths of Muhammad Ishfaq Abbasi and Khitab Abbasi. The accused had been roaming the city and also stopped at some places for a while. At about 9-00 p.m., the tapes were removed from the eyes of Ishfaq Abbasi and Khitab Abbasi. They were also released just in front of a place called "white-house" in Islamabad. The accused hurriedly entered the white-house. The victim came back to Faiz Abad where they gave information to Ehsan-ul-Haq Abbasi on telephone about the incident. They also informed Raja Masood and Raja Jehanzeb about the occurrence. The complainant party had been searching the accused. They,, however, could not be traced out. A complaint was given to the S.S.P. Rawalpindi. Accordingly, F.I.R. No.439 was registered by Ghulam Abbas, A.S.I. under section 382/365, P.P.C. in Waris Khan Police Station on 27-9-1990. Ghulam Abbas, A.S.I. (P.W.6) went to the place of occurrence. He prepared rough site plan (Exh.P.R/1) and recorded the supplementary statement of the complainant. At the instance of Ishfaq Abbasi, the accused, Asghar Ali was arrested by the Police Officer on 29-9-1990 when he was present at the Adda of Flying Coaches near Shangrila Hotel. The accused was holding his licensed Klashnikov (P3) alongwith two magazines (P.4/1-2), 60 live bullets (P.8/1060) and licence of the weapon (P.9). The weapon was taken into possession vide memo. Exh.P.G. On further search of the accused, service-card (P.10), National Identity Card (P.11), Driving Licence (P.12), Passport (P.13), a sum of Rs.500 (P.14/1-5), a key (P.15), were recovered and taken into possession vide memo. Exh.P.H. On 1-10-1990, Asghar Ali led to the recovery of a brief-case (P.5) which contained currency notes of Rupees twelve lac (P.7/1-1000) and an identity card (P.6). These articles were taken into possession vide memo. Exh.P.B. A jeep P.1 and its registration book (P.16) were also taken into possession vide memo. Exh.P.C. Gul Muhammad accused of his own appeared before the police on 5-11-1990. He was identified by the complainant to be the companion of Asghar Ali. The Police Officer arrested him. The accused disclosed that he was given a sum of Rs.1,000 as his share out of the looted money. This money, however, could not be recovered. The remaining investigation was completed by Muhammad Akram Raja, S.I. (P.W.7). He obtained non-bail-able warrants for the arrest of Muhammad Ashraf, Muhammad Asif and Sarfraz Abbasi. He recorded the statement of Azhar Abbas, Constable in connection with the execution of non-bail-able warrants of arrest of the absconders. The Sub -Inspector examined Exh.P.D./1-14, the service record of Asghar Ali. He moved an application Exh.P.M. to verify whether Asghar Ali and Gul Muhammad, accused were absent from their place of duty. It was verified vide Exh.P.M./1 that both the accused remained absent on 29-8-1990 from their duty. Muhammad Ashraf, accused was arrested on 27-5-1991 but nothing incriminating was recovered from him. The challan was completed by him and sent it to the Court for trial of the accused.

4. The prosecution produced Muhammad Ashraf Abbasi (P.W.1), Khatab Abbasi (P.W.2), Haq Nawaz (P.W.3), Ehsan-ul-Haq Abbasi (P.W.4), Sahib Ullah Khan, Assistant Secretary, Narcotics Board, Islamabad (P.W.5), in support of its case. The statement of Raja Masood was recorded as C.W.1.

5. Asghar Ali accused denied the allegations levelled against him in his statement under section 342, Cr.P.C. He stated that he was present and did his duty on 28-8-1990: On 29-8-1990, he was on casual leave for 29th and 30th of August, 1990. He disclosed that he being sick was medically examined as out door patient in D.H.Q. Hospital, Rawalpindi. He, therefore, remained on sick -leave for about one month. While answering another question, he gave his own detailed version wherein he stated that he was posted as Field Investigation Officer at Attock. According to him. Ashfaq Abbasi, Ehsan-ul-Haq Abbasi, Khitab Abbasi P.Ws. and one Ifrahim Abbasi were acting as agents of drug mafia and as such were kept under surveillance by him because of their nefarious activities. He went on to state that this action was taken as a result of a confidential enquiry lodged by the Inter Pole Police vide letter No.VC/C/MF/88/69, dated 20-4-1988. It was further disclosed that the enquiry was conducted against Muhammad Mumtaz Abbasi and Muhammad Afrahim Abbasi, relatives of the complainant party. They were, thus, arrested in Hong Kong by the Inter Pole Force because they were involved in contraband drugs. His plea was that his continuous surveillance of the complainant party made them his sworn enemy. He mentioned that on 21-9-1990, he was summoned by the S.H.O. in the Police Station Waris Khan where the complainant party was present. He was asked not to follow the complainant party and watch their activities. He was threatened that he would be involved in false criminal cases if he continued with his activities. Confronted with the above situation, on 25-9-1990, he filed Writ Petition No.881 of 1990 before the Lahore High Court, Rawalpindi Bench, Rawalpindi, praying that the respondents Ch. Muhammad Afzal, Inspector, Police Station Waris Khan, Raja Taifour, S.I., Ehsan-ul-Haq Abbasi and Afraheem Abbasi may be restrained from causing harassment to him and also for issuance of a direction to them to act according to law. The High Court was pleased to call for parawise comments from the respondents Nos.1 and 2 vide order, dated 25-9-1990 (Exh.D.C.). The institution of the writ petition resulted in grudge and enmity and as such he was arrested on 27-9-1990 at 8-10 a.m. from E.&M.E. College, Rawalpindi. He also disclosed that he was compelled to sign Cheque No.26919484 under coercion and resultantly Rs.7,00,000 were drawn on 29-9-1990 from his PLS Account No.6422H maintained by him with U.B.L. School Road Branch, Islamabad. The said amount was, in fact, planted upon him by the police to show as if it was recovered as a result of their raid. He emphatically pleaded that the said Rs.7,00,000 belonged to his brother, Muhammad Afzal, who had brought it on his return to Pakistan from Kuwait on 25-8-1990 as 21,000 Dinars and Ten Tolas of gold jewellery which were duly declared by him in the Currency Declaration Form on his return. According to him, 21,000 Kuwaiti Dinars were equal to Rs.16,00,000 at the time of his return to Pakistan. He stated that the local Bank did not accept his Kuwaiti Dinars because of invasion of Kuwait by Iraq. He, therefore, sold the foreign currency in open market on less price. After his release on bail, he filed a suit for declaration against the complainant and S.H.O., Police, Station Waris Khan and others to the effect that the disputed Rs.7,00,000, in fact, belonged to his brother. He declared that the Klashnikov alleged to have been recovered from him was his licensed weapon. It was taken into possession after about a week of his arrest. By pleading innocence, he also produced documents Exh.D.C., Exh.D.D., Exh.D.E., Exh.D.F. and Exh.D.G. Nazir Muhammad Khawaja D.W.1 and Muhammad Afzal D.W.2 appeared in support of his case. The accused Gul Muhammad denied the prosecution case by pleading his innocence and adopted the plea of his co-accused, Asghar.

5. In the earlier round of litigation, learned trial Judge, however, acquitted Asghar Ali, Gul Muhammad and Muhammad Ashraf. The case of Raja Muhammad Asif and Afraz Abbasi was separated because they were declared proclaimed offenders. An appeal was filed by the State against the judgment of acquittal of Asghar Ali etc. which was accepted by the Supreme Appellate Court, Rawalpindi, and the case was remanded with a direction that the trial would commence from the stage at which it was left over on 25-9-1991. It was also observed that the learned trial Court could record further evidence as already mentioned in para. No.11 of the judgment. On remand, the learned trial Judge examined Farooq Ahmad, Inspector F.IA. Immigration Taftan Check Post and Inam Elahi Deputy Superintendent Customs Taftan as C.W.2 and C.W.3. The statements of the accused, Asghar Ali, Gul Muhammad and Muhammad Ashraf were also recorded under section 342, Cr.P.C. It was stated by the accused that Muhammad Afzal a real brother of Asghar Ali, came to Pakistan on 25-8-1990 via Taftan Check Post alongwith six others and the complainant in league with Farooq Ahmad, Inspector F.IA. Immigration Taftan Check Post C.W.2 and Inam Ellahi Deputy Superintendent, Customs Taftan C.W3 fabricated false record and removed the entry of his brother Muhammad Afzal from the relevant register. In rebuttal, the accused produced Shaukat Ali D.W.3, Muhammad Sharif D.W.4 and Muhammad Adam D.WS in support of their above-stated plea. They also produced Exh.D.W.3/1, Exh.D.W.3/2 and Exh.C.W.3/1 in support of their case. The learned trial Judge heard arguments and adjourned the case to 22-12-1991 for pronouncement of judgment. In the meantime, however, Notification No.F.1(2)-D/D/91-MC, dated 21-12-1991 was issued by the Federal Government transferring this case to Mr. Justice (Retd.) Gulbaz Khan, Judge Special Court for Speedy Trials No.II, Lahore for its trial. The learned Judge examined Kaleem Iqbal, A.V:P. and Manager, U.B.L. School Road, F/16, Markaz, Islamabad (C.W.4) and Saud Ahmad Mirza, Regional Director, P.N.C.B., Islamabad (C.W.5). Farooq Ahmad C.W.2 and Inam Ellahi C.W.3 were re-examined. Nevertheless they reiterated their earlier statements. The learned trial Judge vide judgment, dated 12-9-1992 convicted Asghar Ali and Gul Muhammad under section 365/34, P.P.C. and sentenced them to undergo R.I. for seven years each plus fine of Rs.1,00,000 (Rupees one lac) each or in default thereof to undergo further R.I. for one year each. They were also convicted under section 392/34, P.P.C. and sentenced to R.I. for ten years each plus fine of Rs.1,00,000 (Rupees one lac) each or in default thereof to suffer further R.I. for one year each. The third accused Ashraf was acquitted by giving him the benefit of doubt vide the same judgment. The convicts challenged their conviction and sentence by filing an appeal before the learned Supreme Appellate Court which was accepted on 7-10-1992 and the case was remanded to the learned trial Court with a direction that the accused would be confronted with the freshly recorded incriminating evidence. The learned trial Court recorded the statements of Asghar Ali and Gul Muhammad accused. At the request of Asghar Ali, summons were issued to Mumtaz Ahmad Salik to appear as defence witness but his attendance could not be procured despite best efforts and it was observed that the witness, intentionally, avoided to appear before the Court. This is how the learned trial Judge finally convicted and sentenced the accused as already mentioned in the beginning of this judgment.

6. Mr. Aftab Farrukh, learned counsel forcefully argues that this is undoubtedly a case of two versions and that the defence version appears to be more plausible than that of the prosecution story. He contends that it cannot be believed in the given situation, that Ehsan-ul-Haq Abbasi (P.W.4) would send such a huge cash amount of Rs.12 lac at such a short notice to Raja Masood through Ashfaq Abbasi (P.W.1) without making effective security arrangements in this behalf. He emphatically states that the incident in hand took place on 29-8-1990 while the information was given to the police for the first time on 17-9-1990. According to the learned counsel, this being inordinate delay would make the prosecution case doubtful. It is maintained that the appellant, Asghar Ali had been keeping a constant surveillance over the complainant party because they were dealing in narcotics in connivance with the foreign agents. His plea was that in police custody he was forced to sign a cheque, which was, encashed and the money withdrawn from his personal account as stated above was planted upon him in order to falsely implicate him in this case. Mr. S.M. Nazim, learned State counsel has half-heartedly supported the conviction and sentence of the appellants by adopting the reasons already mentioned in the judgment.

11. We have heard the learned counsel for the parties at considerable length and have also carefully gone through the entire record with their assistance. We hold that the prosecution had miserably failed to prove its case against the appellants beyond reasonable doubt. To begin with, in our view, the complaint Exh.PA. was not at all dated. Nonetheless, at a corner of the said complaint, a date namely 17-9-1990 had been written in pencil to give an impression that it was given on that date. However, an action was taken by the police for the first time on the application on 27-9-1990. It is not known as to what effective steps were, in fact, taken by the complainant party to convey the information to police to register the case. We are not prepared to accept the ridiculous explanation given by P.W.1 and P.W.4 in this behalf, that they had themselves been trying to trace out the accused. After being deprived of such a huge sum of Rs.12,00,000 it was simply not believable that they would remain silent and continue their personal efforts to search in order to apprehend the accused for about 10 days without the aid of police. This appears to be false on the face of it and as such not acceptable to us in the given situation. It may be added that Muhammad Ashfaq Abbasi and Khitab Abbasi P.Ws. were taken into custody by the accused early in the morning on 29-8-1990 when they came down from the flying coach and they remained with them throughout the day in their jeep while moving from place to place in the busy Bazars of Islamabad and Rawalpindi. Admittedly, at about 9-00 p.m., they were released by the accused in front of a place called White House, at Islamabad. The accused, thereafter, entered the said White House in their presence. If that was so, the complainant party ought to have raised an alarm there and then to attract the public to arrest the accused red-handed. In the alternative, the nearest police station should have been approached by the P.Ws. which was not far away from the White House. The fact that they did not do so and silently went away from the spot after being deprived of such a huge amount of money, could not be accepted as true simply because it did not appeal to reason. This eloquently points out to the unnatural conduct of the complainant party. Apart from the above, as already mentioned, the complainant party remained in the custody of the police and they had been moving about in Rawalpindi and Islamabad from place to place. They had also been passing through the busy places of the twin cities. The jeep, in which they were travelling, also stopped at many points and as such, it was very easy for the complainant party to raise an alarm to attract the people to come to their rescue. This was not done for no plausible reasons at all. The only possible conclusion which may be drawn in these circumstances is that prosecution version is untrue. The prosecution story is that Ehsan-ul Haq Abbasi sent the money through Ashfaq Abbasi and informed Khitab Abbasi on telephone at Rawalpindi that the requisite money had been sent and that he should receive him at the Adda of Flying Coaches. The prosecution did not prove as to how Khitab Abbasi was informed that Ashfaq Abbasi was coming to Rawalpindi with money. It is in the evidence that there was no . telephone facility available in the house of Khitab Abbasi. Raja Ehsan-ul-Haq Abbasi P.W. deposed that Khitab Abbasi was informed through his neighbour on telephone. The said neighbour of Khitab Abbasi was not produced to prove this important link of the prosecution case. We, therefore, do not believe the evidence of Khitab Abbasi. Ashfaq Abbasi P.W. would alone remain in the field whose evidence, nonetheless, was not corroborated by other independent and reliable evidence. The prosecution evidence does not inspire confidence and as such we proceed to reject it because of its inherent weaknesses.

12. The recovery of cash from the residence of Asghar was not proved to the satisfaction of this Court inasmuch as no respectable persons of the locality were joined to witness it for no plausible reasons. This being so, the alleged recovery of money was conducted in complete violation of mandatory provisions of section 103, Cr.P.C. It is, accordingly, ignored for all intents and purposes.

13. The upshot of the above discussion is that conviction and sentences of the appellants are set aside by giving them the benefit of doubt. They are acquitted of the charges and shall be released forthwith provided, of course, they are needed in some other criminal case.

14. We direct that the case property, namely, Rs.7,00,000 (Rupees seven lacs) shall remain in custody unless and until its ownership is finally decided by the Civil Court in the suit already filed by Asghar Ali, appellant. With this observation, the appeal succeeds and is allowed. N.H.Q./136/SAC Appeal accepted.