2009 SCMR 230 (PLP)

MUHAMMAD FARRUKH MAHMUD, J.

Criminal Petition No. 169-L of 2006 filed by Muhammad Akram petitioner and Jail Petition No. 126 of 2006 filed by Zafar Iqbal alias Zafri and Muhammad Ayub alias Sahboo are directed against judgment dated 1-3-2006 handed down by the learned Division Bench of Lahore High Court Lahore in case F.I.R. No. 309, registered at Police Station Langrana, District Jhang on 6-1-2002 for offence under section 365-A, P.P.C. whereby the convictions of the petitioners for offences under section 365-A, P.P.C. and section 7, Anti-Terrorist Act, 1997 were maintained. However, the sentence of death was reduced to imprisonment for life. The sentences of fine and forfeiture of movable and immovable property were maintained.

2. According to the prosecution case, on 8-5-2002, Burkhurdar complainant P.W.2 was sitting in his house along with his brother Ahmad Yar, Muhammad Rafique son of Ahmad Bakhsh and his son Asghar Ali aged 14 years. At about 5 p.m. two motorcycles stopped in front of the main gate of the house and there was a knock on the door. Asghar Ali opened the door, he was followed by the P.Ws. who saw that Zafar Iqbal armed with Kalashnikov and Ayub armed with Kalashnikov and pistol were present outside the house on a motorcycle while Muhammad Akram who was armed with pistol was present on the other motorcycle. The accused who were involved in many criminal cases and were known to the P.Ws., on the strength of their weapons forced Asghar Ali to sit on the motorcycle occupied by Zafar Iqbal and Ayub. Thereafter the accused left the scene of occurrence. After 2/3 days, Zafar Iqbal rang up Ahmad Yar brother of the complainant and demanded Rs.4,00,000 as ransom from the complainant for release of Asghar Ali. The complainant was to contact the accused through Cell No. 0320-5451841. The complainant also contracted Zafar Iqbal on the phone who reiterated his demand for Rs.4,00,000 and threatened that if the money was not paid to him, Asghar Ali would be murdered. On 17-5-2002 at 7 p.m. complainant along with his brothers Ahmad Yar and Muhammad Yar as per instructions reached Pul Saim in Chak No.153/G.B. at 7 p.m. and handed over the ransom amount to Muhammad Akram Jhappa. At that time, Zafar Iqbal and Ayub along with Asghar Ali were present nearby. After delivery of ransom amount, Asghar Ali was released. However, a threat was issued to the P.Ws. that in case the matter was reported to the police, they would be murdered. The rest of the story of F.I.R. is based' on the narration of Asghar Ali after his release and deals with the seven accused who were acquitted by the learned trial Court.

3. During trial, in support of its case, prosecution produced nine witnesses. Burkhurdar complainant P. W.2. Asghar Ali P.W.3 and Ahmad Yar P.W.4 stated about the abduction of Asghar Ali and his release after payment of ransom amount. Ghulam Akbar Head Constable P.W. stated about the registration of the case on the basis of complaint Exh.P.A. Khadim Hussain Constable and Abdul Majeed S.-I. P.W.5 and P.W.6 stated about the recovery of ransom amount from the petitioners Zafar Iqbal and Ayub on 19-1-2003 and from Muhammad Akram on 23-1-2003. In addition to that, Abdul Majeed S.-I. stated about the receipt of application Exh.P.A. from the complainant and recording of statements of P.Ws. under section 161, Cr.P.C. and the arrest of the accused. Muhammad Younis A.S.-I. P.W.8 stated about the recovery of weapons from the petitioners on 9-1-2003. He also stated about the registration of the cases under Arms Ordinance against the petitioners. The statement of P.W.9 Babar Nawaz is according to the statement of P.W.8.

4. In their statements recorded under section 342, Cr.P.C., the petitioners pleaded to be innocent and stated that they were falsely implicated in this case. However, neither they appeared in their defence under section 340(2), Cr.P.C. nor they produced any defence evidence.

5. The learned counsel for the petitioner Muhammad Akram has submitted that all the P.Ws. exonerated him and, therefore, his conviction was unwarranted.

6. The learned counsel for the rest of the. petitioners has argued that there was inordinate delay in lodging of F.I.R.; that no independent witness was produced in this case; that the witnesses had made dishonest improvements during trial and that the witnesses had contradicted one another on material points, therefore, their statements were not worthy of any credence. The learned counsel has further argued that the evidence qua the demand of ransom amount and other recoveries was replete with doubts.

7. The learned Deputy Prosecutor-General Punjab while conceding that the evidence against Muhammad Akram was lacking, has argued that the case against Zafar Iqbal and Ayub petitioners was proved to the hilt and was supported by the direct evidence of P.W.2, P.W.3 and P.W.4 who had no previous enmity to falsely implicate the two petitioners and that eye-witnesses account was fully supported by the confirmatory evidence in the shape of recoveries of ransom amount and. weapons "qua the two accused and that concession given to Muhammad Akram petitioner would be of no benefit to the rest of the petitioners and that the delay in lodging of F.I.R. was duly explained in the F.I.R. as well as in the statements of P.W.2 before the learned trial Court. He has referred to the portion of statement of P.W.2 available at page 52 of the paper book wherein it was stated "after six months I made up my mind and got the inner support for the registration of case as I had remained receiving threats during this period."

8. We have heard the learned counsel for the parties at length and have also scanned the record of the case. The prosecution case revolves round the statement of Asghar Ali P.W.3/alleged abductee, his father Burkhurdar P.W.2 complainant of the case and his uncle Ahmad Yar P.W.4. Asghar Ali was allegedly abducted on 8-5-2002 at 5 p.m. and was released by the accused on 17-5-2002 at 7 p.m. after payment of ransom money. Thereafter the matter was reported to the police on 6-11-2002 after about six months of the abduction and recovery of Asghar Ali. The only explanation for the delay available on the record is that the P.Ws. were under threat and were afraid of reporting the matter to the police. However, there is no explanation on the record as to what led the complainant and the P.Ws. to come out of the perpetual fear and report the matter to the. police after such a long delay especially when Asghar Ali had been recovered from the custody of the accused. According to the F.I.R., Asghar Ali was abducted in the presence of P.Ws. who knew the accused. At the tine of abduction, the accused did not demand any ransom money nor they issued any threat to the P.Ws. and as per F.I.R. it was after 2/3 days of abduction that Zafar Iqbal demanded ransom for release of Asghar Ali. In that case, the complainant and the P.Ws. should have immediately rushed to the police station and should have sought the help of police for recovery of Asghar Ali. Normally, a father in the above noted circumstances, would immediately rush to the police station and report the matter especially when the accused were known to him and the motive behind the abduction had not surfaced. Not a single independent witness from the locality was produced in support of the story of initial abduction. The inordinate delay in lodging the F.I.R. and the conduct of the complainant after the abduction, as noted above, cast heavy doubt on the veracity of the F.I.R.

9. In the F.I.R. Muhammad Akram petitioner was specially named as one of the accused. His parentage, caste and residence were also given. However, during trial in his examination-in-chief P.W.2 did not mention the name of Muhammad Akram and instead stated that Zafar and Ayub were present on one motorcycle while one person was present on another motorcycle outside his house at the time of abduction. He also omitted the name of Muhammad Akram at the time of payment of ransom amount. During cross-examination after conceding that the person on the second motorcycle was named in the F.I.R., he stated that Muhammad Akram was not present in Court and had the cheek to say that it was incorrect that Muhammad Akram son of Muhammad Anwar, cast Jappa, resident of Adlana (address given in F.I.R.) present in Court, was not the person who was on the second motorcycle. He further stated that Muhammad Akram who was named in F.I.R. was not known to him and the accused who was facing the trial was not that Muhammad Akram. Asghar Ali P.W.3 also omitted the name of Muhammad Akram in his examination-in-chief. During cross-examination, he denied that he had named Muhammad Akram in his statement recorded under section 161, Cr.P.C. Exh.D.A.. He further stated that the amount of ransom was in a polythene bag and was delivered to 3rd unknown person. Later on, he clarified that Muhammad Akram accused present in Court was not the person who accompanied the accused person or received the ransom amount. Similarly, P.W.4 also omitted the name of Muhammad Akram in his examination-in-chief.. During cross-examination, he was confronted with statement recorded under section 161, Cr.P.C. Exh.D.B., wherein he had named all the accused. In the later part of the cross-examination, he stated that the payment was made to Akram and it was Akram who delivered the amount to Zafar and Sahboo. He took another somersault when he was cross-examined by learned counsel for Muhammad Akram accused by stating that Akram present in Court was not the person who participated in the occurrence.

10. The above noted facts make it clear that the P.Ws. had been making divergent statements before the learned trial Court about Akram and about delivery of the ransom amount. If the P.Ws. could involve Muhammad Akram in a false case, then their statements qua the other accused could not be relied upon in the absence of very strong independent and corroboratory evidence against them. There is no documentary or oral evidence on record as to how the complainant managed the ransom amount. It is also pertinent to note that according to P.W.4 and according to F.I.R., the ransom amount was given to Muhammad Akram who was later on exonerated by all the P.Ws. If Muhammad Akram was not present at the time of delivery of amount, then passing of the ransom amount by Muhammad Akram to other accused is not established.

11. Now coming to the evidence of recovery qua the ransom amount at the instance of the petitioners-convicts. According to Exh.P.B., Zafar Iqbal on 19-1-2003 led to the recovery of Rs.80,000 from his house. On the same date, Muhammad Ayub led to the recovery of Rs.35,000 from his house. On 23-1-2003, Muhammad Akram led to the recovery of Rs.20,000 from his residential room. The recoveries are not supported by the evidence of any respectable inhabitant of the locality. The provisions of section 103, Cr.P.C. have been violated with impunity. Khadim Hussain Constable and Abdul Majeed S.-I. P.W.5 and P.W.6 were produced in support of recoveries. According to P.W.5 at the time of recovery, the cash was put into the pocket of Abdul Majeed S.-I. who had himself counted the currency notes. The statement by itself is sufficient to disbelieve the evidence of recovery. In addition to that, the recovered notes were not marked and the serial number of the notes paid as ransom were not recorded. So it could not be said with certainty that the recovered amount was the same which was delivered at the time of release of Asghar Ali. At the cost of repetition, we may mention here that according to P.Ws. Muhammad Akram was not one of the accused. The evidence of recovery of weapons is also of no consequence and cannot be used against the petitioners for the reason that the weapons were never sent to any Expert to determine whether they were in working order or not and that the provisions of section 103, Cr.P.C. were violated and that during cross-examination. P.W.8 admitted it to be correct that recovery memo. Exh.P.K. relating to recovery from Akram was neither signed by him nor by Babar Nawaz P.W.9. He also admitted it to be correct that Exhs.P.J. and P.L. recovery memos. relating to Ayub and Zafar were neither signed by 'him nor by P.W.9. In other words, the witnesses, in whose presence, the alleged recovery was effected were not produced during trial. So the evidence of P.W.8 and P.W.9 was of no consequence.

12. It was mentioned in the F.I.R. that the accused could be contacted on the given mobile telephone number. However, .no evidence was collected to connect the accused with the given phone number.

13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.

14. In the above noted circumstances, we convert these petitions to appeals which are allowed. The judgments passed by the learned Courts below are set aside. The appellants are acquitted of all the charges and would be released forthwith if not required in any other criminal case. N.H.Q./M-75/SC Appeals allowed.