2013 PLP 768 (SCMR)

EJAZ AFZAL KHAN, J.

This appeal with the leave of the Court has arisen out of the judgment dated 27-6-2005 of the Lahore High Court, Bahawalpur Bench whereby the judgment dated 30-6-2004 of the learned Anti-Terrorism Court, Bahawalpur convicting the appellant under section 365-A, P.P.C. read with section 7(E) of the Anti-Terrorism Act, 1997, sentencing him to imprisonment for life and forfeiting his moveable and immoveable property was maintained.

2. The points raised and noted at the time of granting leave read as under:-- "After hearing the learned counsel for the petitioner as well as the learned Additional Prosecutor-General, Punjab, we grant leave to appeal for the purpose of reappraisal of evidence in the interest of safe administration of justice."

3. Brief facts as narrated in para 2 of the impugned judgment read as under:-- "The facts briefly stated are that Abdul Rasool son of Nazir Ahmad P.W.1 got lodged the above-mentioned F.I.R. to the effect that he was running a Medical Store and on 18th of October, 2003 was present at his Medical Store when at about 12.30 (Noon) Muhammad Tufail came to him and asked for medicine for his ailing daughter. However, on the asking of the complainant, he brought his daughter to the Medical Store at about 5-30 p.m. the complainant while heading towards his house on bike crossed Muhammad Tufail who was taking his daughter on bicycle. Meanwhile, one Muhammad Sadiq met him. After a while when complainant reached the land of Muhammad Tufail, appellant shouted that "He is the Doctor" and two persons with muffled faces one carrying Kalashnikov and the other armed with pistol suddenly appeared from wheat crop. They abducted the complainant under threat of shooting him and tied his eyes. It is further asserted that as he was unable to walk with tied eyes therefore, bandage was opened and was taken along. According to the complainant, he saw Muhammad Tufail was also standing along with said two persons one of whom was of small height, black colour and fat body and the other one was slim with wheatish colour. They both took out Rs.5,030 from his pocket and took him to sone miani where he was kept tied with an iron chain. On the next night after crossing the river, the accused took him to some unknown place. According to the F.I.R. the father of the complainant and one Zahoor Ahmad paid Rs.3,80,000 as ransom through Chooto and Bagga Mero and got him released. The complainant had identified Muhammad Tufail appellant as one of the accused".

4. Learned counsel appearing on behalf of the appellant contended that where the appellant was already known to the abductee so called, the role assigned to the former that he identified the latter by saying that he is the Doctor, appears to be doubtful. Suspicion as to the involvement of the appellant in the crime, the learned counsel added, may be there but it cannot take the place of truth when there is no evidence to corroborate it. The learned counsel next contended that when there is also no evidence as to who paid the amount of ransom, who received it, what nexus he had with the appellant and how can he be linked therewith, the charge against the appellant cannot be said to have been proved, beyond doubt.

5. Learned Assistant Prosecutor-General appearing on behalf of the State argued that when there is no enmity between the parties and there is no ill will on the part of the complainant to falsely name or rope in the appellant, the evidence of the complainant cannot be brushed aside as incredible simply because the story thus narrated appears to be unbelievable on the face of it. Each accused, learned APG added, has his own frame of mind to enact a crime, therefore, a crime so enacted cannot be judged in the light of improbabilities imagined by a cool by stander. The charge in the circumstances of the case, the learned APG submitted, stands proved beyond doubt, therefore, the judgment convicting and sentencing the appellant cannot be declared faulty on the basis of imagined improbabilities.

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

7. The abduction for ransom is, no doubt, a very serious charge. There are many actors on, off and behind the scene. In any case the actor who is already known and takes caution and pre-caution to conceal his identity. Else he has to face the scourge of charge after release of the abductee on payment of ransom. The story that the appellant identified the abductee so called as the person desired to be abducted neither agrees to truth, nor conforms to common human experience and observations nor fits in with the surrounding circumstances. Who paid the amount of ransom, who received it, what evinced and who mentioned the complicity of the appellant in the crime are the questions which find no answers from the evidence on the record. The complainant or for that matter any other person, may have suspicion as to the complicity of the appellant in the crime but suspicion however strong it may be cannot take the place of truth.

8. Alright the abductee so called extricated himself from the clutches of the persons abducting and keeping him in unlawful confinement on 7-1-2004 but what restrained him from reporting the incident for two days is another mystery which never came to light. The complainant was abducted on October 18, 2003 yet neither his father nor his first cousin who subsequently appeared in the Court as P.Ws. reported so important an incident. Nor did they put forth any explanation for not doing so. Even the complainant did not breathe even a single word about this unnatural conduct of his father and cousin. All this sounds to be more of a cock and bull story as far as the implication of the appellant is concerned. His conviction and sentence, therefore, cannot be maintained on this quality and quantity of evidence.

9. For the reasons discussed above, we allow this appeal, set aside the conviction and sentence recorded by the learned Judge Anti-Terrorism Court and maintained by the High Court, and acquit the appellant of the charge. He be released forthwith if not required in any other case. MWA/M-11/SC Appeal allowed.