1988 P Cr (PLP)

Mr. Mushtaq Ahmed. Ch. Sana Ullah Bajwa and M.A. Majeed Bajwa for Appellant. Faiz‑ur‑Rehman for the State. Dates of hearing: 9th and 11th April, 1988. Criminal Appeal No. 575 of 1986 filed by Muhammad Yousaf (23) and Criminal Appeal No. 639 of 1986 of Faqir Hussain (40) arise from the judgment of learned Additional Sessions Judge, Gujranwala, whereby he on 29‑6‑1987 while acquitting them of the charge under section 302/34, P.P.C. convicted them under section 364, P.P.C. for the abduction of Maqsood Ahmed in order that he may be murdered, and sentenced them to imprisonment for life and a fine of Rs.5,000 in default thereof two years' R.I. I propose to dispose of the‑ two appeals through single judgment.

2. The F.I.R. in this case was registered on 19‑5‑1985, on the report of Abdul Qadeer, P.W.14, father of Maqsood Ahmed, abductee. The occurrence allegedly took place three years before the registration of the case.

3. Maqsood Ahmed, abductee and Muhammad Yousaf, appellant were workers in a power loom Factory at Gill Road, Gujranwala. Faqir Hussain, appellant is husband of the sister of Muhammad Yousaf, appellant. The appellants were on visiting terms with Maqsood Ahmed, abductee. In April, 1982, the appellants went to the house of Abdul Qadeer, complainant and deceitfully took away his son Maqsood Ahmed with them to village Karial, Police Station Churkana, District Sheikhupura, on the pretext of supplying him visa. Maqsood Ahmed did not come back to his house. Abdul Qadeer met Faqir Hussain appellant to know the whereabouts of his son Maqsood Ahmed. Faqir Hussain told him that his son was with a party of smugglers in District Rahimyar Khan. Since Abdul Qadeer failed to locate his son so he against contacted Faqir Hussain. Faqir Hussain, disclosed that Maqsood Ahmed was detained in a jail in India. On this, the complainant lodged report at P.S. Saddar Gujranwala. The investigation revealed that on 17‑11‑1981, Faqir Hussain had got himself insured for a sum of Rupees one lac vide Insurance Policy No. 503070/170. His wife was the beneficiary of the policy. In order to get the insurance money from the Insurance Company, the appellants killed Maqsood Ahmed on the night between 4/5‑4‑1982 in the area of village Karial, Bhaghauwali, District Sheikhupura. The dead body of Maqsood was defaced. To create the impression that Faqir Hussain was killed, some documents bearing the name of Faqir Hussain were thrown near the dead body and a case under section 302, Cr.P.C. for the murder of Faqir Hussain was got registered against Nawab and Muhammad Ali. One month after the registration of the case against Nawab and Muhammad, the wife of Faqir Hussain, appellant, submitted claim for the payment of insurance amount on the strength of F.I.R.. and post‑mortem examination report of Faqir Hussain. She successfully obtained Rs.97,772 as beneficiary of Faqir Hussain. Nawab and Muhammad Ali, the alleged murderer of Faqir Hussain were sent up for trial. They were ultimately acquitted on 20‑4‑1983 for want of evidence. With the passage of time, the drama staged by Faqir Hussain, appellant could not remain secret. On 28‑5‑1985, the appellants were arrested by Ghulam Sarwar, Inspector, P.W.15. On the completion of the investigation, the appellants were sent up for trial.

4. To prove its, case, the prosecution produced as many as seventeen witnesses. Abdul Qadeer, P.W.14 and Mehmood Ahmed, P.W.13 are the father and brother respectively of Maqsood Ahmed. They stated that the appellants had taken away Maqsood Ahmed with them for supplying visa to him in the year 1982. Maqsood Ahmed did not come back. 4/5 days thereafter he received a letter purporting to have been sent by Maqsood Ahmed from Karachi. He also received such letters sent from different cities. In spite of his best efforts he could not locate his son Maqsood Ahmed. Faqir Hussain came to his house and told him that Maqsood Ahmed was detained in jail in India. Abdul Qadeer ultimately lodged report with the police. Mehmood Ahmed, P.W.13 supported the statement of his father Abdul Qadeer P.W.14. Muhammad Asghar P.W.5 stated that about two years after the disappearance of Maqsood Ahmed, he had visited the house of Abdul Qadeer, complainant. Faqir Hussain, appellant had also come to the house of Abdul Qadeer on that day. On enquiry, Faqir Hussain appellant had tried to satisfy the complainant that his son will come back. Muhammad Shafiq, P.W.6 supported the statement of Muhammad Asghar P.W.5. He stated that he was also present in the house of Abdul Qadeer when Faqir Hussain came there and on inquiry firstly told that Maqsood Ahmed was with the smugglers in Rahimyar Khan and then disclosed that Maqsood Ahmed was in jail at Delhi. Syed Tayyab Haider, Assistant General Manager, State Life Insurance Corporation, P.W.4 stated that Faqir Hussain had got himself insured for Rupees one lac on 17‑11‑1981. Riaz Begum, his wife was the beneficiary. On 2‑5‑1982, Riaz Begum, as a beneficiary filed claim. She also produced F.I.R. with regard to the murder of Faqir Hussain and the copy of the post‑mortem examination report on which claim of Rs.97,772 was issued in her favour through a cheque and she received the amount. Doctor Refique Hussain, P.W.17 had conducted post‑mortem examination on a dead body identified to be of Faqir Hussain on 6‑4‑1982. He found as many as sixteen injuries on the dead body out of which fifteen were caused by sharp‑edged weapon and one which was multiple abrasion each about 6 c.m. long on the front and right side of neck upper half, was caused by blunt weapon. The injury caused on the forehead of the deceased and the multiple parallel abrasion found on the right side of the neck were grievous and dangerous to life: In his opinion the death was due to shock and haemorrhage as a result of sharp‑edged injury on the forehead and multiple abrasion on the right side of neck which were sufficient to cause death in the ordinary course of events. The rest of the evidence is of formal nature.

5. When examined under section 342, Cr.P.C. the appellants denied all incriminating circumstances. They raised plea of the false implication. No witness was produced in defence. The learned trial Court while acquitting appellants of charge under section 302/34, P.P.C. learned (sic) and sentenced them as stated above under section 364, Cr.P.C. on the strength of the evidence of Abdul Qadeer, Mehmood Ahmed, Muhammad Asghar, Muhammad Shafique, Syed Tayyab Haider, P.W.4 and circumstances appearing in the case.

6. Learned counsel for the appellants contended that the prosecution has failed to prove its case against the appellants beyond reasonable doubt inasmuch as there was a delay of three years in lodging the F.I.R. that Abdul Qadeer and Mehmood Ahmed are closely related to Maqsood Ahmed; that the statements of Muhammad Asghar, P.W.5 and Muhammad Shafique P.W.6 accepted at its face value, do not make out case of abduction of Maqsood Ahmed in order to murder him. Learned counsel for the State has supported the judgment of the trial Court.

7. I have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statement of the appellants recorded under section 342, Cr.P.C. and the, circumstances appearing in the case. I feel persuaded to agree with; the learned counsel for the appellants. I find that there is an inordinate delay of three years in lodging the F.I.R. The appellants have already been acquitted of the charge of murder of Maqsood Ahmed; that there is no evidence to show that the appellants had taken away Maqsood Ahmed from his house in order to murder him or that he may be so disposed as to be put in the danger of being murdered and that the dead body was not seen by Abdul Qadeer and Mehmood Ahmed, P.Ws. The clothes of the deceased were shown to Abdul Qadeer, complainant after about three years of the occurrence and as such the identification of the dead body through clothes of the deceased was not possible at all. Abdul Qadeer and Mehmood Ahmed are closely related to the deceased. Had the two appellants deceitfully taken away Maqsood Ahmed in their presence then they would have certainly lodged report against them immediately after the disappearance of Maqsood Ahmed and they would not have kept mum for three years. In view of the interval between the alleged abduction and the recording of the F.I.R., the complainant had ample time for deliberations and consultations. Their statements accepted at its face value also do not make out a case of abduction in order to murder, against the appellants. The statements of Muhammad Asghar and Muhammad Shafique, P.Ws. do not advance the case of the prosecution in any manner. There is no independent corroboration of the statements of the complainant and his son Mehmood Ahmed P.W.13. The learned trial Court has not properly appreciated the evidence. The prosecution evidence may create suspicions against the appellants but suspicions after all are suspicions and do not take place of proof within the meaning of section 3 of the Evidence Act. For all these reasons, I am of the view that prosecution has not been able to prove the case punishable under section 364, P.P.C. against the appellants.

8. Upshot of the above discussion is that there being no satisfactory basis to uphold .the convictions and sentences of the appellants, the appeals are accepted and the appellants are acquitted of the charge. They shall be released forthwith if not required to be detained in any other case. M.Y.H./M‑755/L Appeal allowed.