MUHAMMAD IQBAL KALHORO, J.---Appellants have questioned a judgment dated 28.02.2019 passed by learned Anti-T errorism Court No.XII, Karachi in Special Case No.1431/2017 and Special Case No.1450/2017 convicting and sentencing them under section 365-A, P.P.C. read with section 6(2)(e)(n) of Anti-T errorism Act, 1997
(ATA) to suffer rigorous imprisonment for life, forfeiting their properties and saddling them with a fine of Rs.2,00,00,000/- jointly as compensation to complainant under section 544-A, Cr.P.C. Appellant, Shehzad Sabir alias Police Wala in addition has been convicted to suffer R.I. for 10 years and to pay fine of Rs.2,00,00,000/- under section 21-L read with section 7 of ATA, and R.I. for 14 years under section 23(i)-A of Sindh Arms Act (SAA), 2013 and fine of Rs.100,000/- in default whereof to suf fer SI for 06 months.
2. As per facts influencing the trial court to reach such conclusion, complainant, an Electric Inspector in Energy Department, on his way to Zamzma in his official car along with his driver to meet a friend was abducted from Race Course traffic signal by the appellants travelling in a white colour civic car on 07.06.2017 at about 8.30 pm. He was brought to a flat where appellants beat him, stripped him, indulged in indecent acts with him, which they recorded in their mobile phones, and asked him to pay them Rs.1500,000/- (fifteen lacs) Bhatta (extortion) reminding him that he had purchased the lands from corruption money . They further threatened him that in case he did not they would upload his video on internet. And only after getting an assurance regarding the money , they freed him. He, however , immediately went to relevant police station and lodged FIR against them.
3. That led to investigation and arrest of accused and submission of challan under section 173, Cr.P.C. The prosecution examined 12 witnesses in the trial to prove the charge, which the appellants in statement under section 342, Cr.P.C. have completely denied. But the trial court found them guilty and convicted them to suffer jail terms, etc. as detailed above.
4. Learned defence counsel have argued that appellants are innocent and have been falsely implicated in this case; that the whole story has been contrived by the complainant to take revenge from appellant Wali Muhammad for moving an application to NAB against him; that there are material contradictions in the evidence, which have not been appreciated by the trial court; that prosecution story is not confidence inspiring in that appellant Wali Muhammad Rahimoon was class fellow of the complainant and very friendly with him which he concealed in FIR; that it does not appeal to mind that a person would commit such an offence against his friend; that this is not the case of abduction for ransom as neither it was paid nor demanded; that investigati on was conducted after 15 days of FIR only after receiving orders from some SSP which reflects influence wielded by the complainant; . that in the investigation initially three accused including Shehzad Sabir and Abdul Qader against whom there was absolutely no evidence and even their name does not transpire in FIR were arrested; that recovery of a pistol at the instance of accused Shehzad Sabir is not reliable as it was effected from a public place which was not in his exclusive possession. They have relied upon the following case law in support of their arguments.
PLD 2020 SC 61, 2020 SCMR 116, 2008 SCMR 1572 and 2019 SCMR 1027 Learned counsel for the appellants have relied upon the case laws reported in PLD 2020 SC 61, 2020 SCMR 116, 2008 SCMR 1572 and 2019 SCMR 1027 , 1993 SCMR 550, 1998 SCMR 570, 1996 SCMR 1553 , 2001 SCMR 424, PLD 1995 Lah. 229, 1993 SCMR 585, 1992 SCMR 2088 , 1995 SCMR 412, 2010 SCMR 1706 , 2011 SCMR 537, 2017 SCMR 1189, PLD 1997 SC 408, 2000 SCMR 683 , 1983 SCMR 958 , 1983 SCMR 1, 1987 SCMR 1 177 and 2011 SCMR 1 127.
5. On the other hand learned DPG for the State and learned counsel for the complainant while rebutting above contentions in detail have supported the impugned judgment and submitted that prosecution has successfully established its case against the appellants; that the evidence produced inspires confidence and that there is no contradiction worth consideration. They pleaded for dismissal of the appeals and relied upon the following case law.
2015 PCr.LJ 391, 2012 SCMR 721, PLD 2011 SC 1135, 2020 PCr.LJ 96, 2006 SCMR 672, 1997 PCr.LJ 1659, 1999, PLD 2019 SC 488 and 2010 Cr.LJ 74, 2006 PCr.LJ 174, 2009 SCMR 1440 , 2013 PCr.LJ 369 and 2012 SCMR 2015, PLD 2003 SC 396, PLD 2007 SC 71, PLD 2006 SC 109, 2005 MLD 227, 2007 SCMR 455, 2006 MLD 867, 2007 MLD 372, PLD 2017 Balochistan 76, 2018 YLR 267, 2018 MLD 345, 2018 PCr.LJ 394, 2018 PCr.LJ 1722 and 2018 PCr .LJ 127.
6. Considered the arguments and perused the record including the case-law cited at the bar. Complainant has stated that he was kidnapped from his car when it stopped at a traffic signal in presence of his driver Arbab Ali, who witnessed the incident. But his presence at the spot seems to be by chance, which can be gathered from his own evidence. He has disclosed that he is driver of the complainant at his village and comes to perform duty at Karachi only when his driver at Karachi is on leave. The driver doing duty at Karachi has not been examined to confirm his leave on the fateful day and that Arbab Ali substitutes him when he is on leave. Then he (Arbab Ali) joined the investigation after a delay of 17 days of FIR on 24.06.2017 when his statement under section 161, Cr.P.C. was recorded. Such delay is entirely unexplained and puts a question mark on prosecution story when viewed in the context of his own evidence and that of the complainant that he had come to police station along with PW Wheed Murad for registration of the case on the B very day but found complainant there who had already lodged the report. Neither the complainant tried to produce him before the police to endorse the story nor he made any such attempt, which is baffling and simply eludes common sense. Further the fact of complainant availing services of two drivers one at his village and the other at Karachi with his official vehicle at the relevant time has come on record.
His not mentioning name of specific driver in FIR, therefore, has yielded to vagueness in this connection and has decreased the odds of presence of Arbab Ali at the spot.
7. His evidence regarding identification of appellant Wali Muhammad before learne d Magistrate on 1.11.2017 is not inspiring either . Memo of Id. Parade and evidence of Magistrate reflect that in the process he while distinguishing the accused from dummies had merely disclosed that he (Wali Muhammad) was involved in the crime, and did not specify his role. But in his deposition, he has assigned him role of driving the car on the day, which role even the complainant has not attributed to him. His 161, Cr.P.C. statement qua this aspect tells yet another story . He asserts that on the day he had taken the complainant to Marriot Hotel at the invitation of accused. Wali Muhammad exuding an indelible impression of knowin g him well. But when he happens to narrate the main incident he simply refers to availability of five accused in the car, three sitting in and two executing the abduction, without specifying identity and role of anyone. In our humble estimation, these variations aggravated by his inability to relate description of appellant Wali Muhammad in his 161, Cr.P.C. statement have completely divested the identification parade of its legal value, if any .
8. Further , his conduct does not appear to be natural, he remained as a silent spectator at the critical time, and even thereafter when the complainant was driven away he did not raise alarm to attract security personnel who are always present there because the place of incident happens to be within the red zone. His inexplicable complacency during the incident accentuated by his failure to approach either security personnel or nearby police station thereafter to report the incident casts shadow over his presence and ultimately on prosecution story .
9. Complainant in FIR lodged after two hours of the incident has disclosed that after kidnaping he was taken to a flat, which record shows belongs to appellant Wali Muhammad, where appellants severely maltreated him, indecently behaved with him which they recorded in their mobile phones and reminded him that he had acquired huge agricultural land out of black money , therefore he should pay them Rs.15 lacs by next day else his video would be uploaded on social media and made viral. His deposition, however , posits certain improvements and changes which do not seem to be me details of original narrative. He proceeds to reveal that on the same date accused Wali Muhammad had hosted Iftar dinner in the honor of his friends and he was one of the invitees and that same Wali Muhammad (and others) kidnapped him after the dinner and that he was his class fellow in Mehran Engineering University . He has further disclosed that he had Rs.125,000/- in his pocket at the time of incident which were retained by the accused as part payment of ransom. Mention of this amount is neither in FIR nor in his further statement recorded on 24.6.2017 after 17 days of FIR. However , in his third statement recorded in November 2017, after about 5 months of FIR, he has made such a disclosure. But this statement being delayed for several months has no evidentially value in law and rather tends to underscore unreliability of the complainant to report true facts. Yet the most striking amid such developments is his attempt to alter nature of the story , in FIR his claim is that 15 lacs as Bhatta (extortion) were demanded from him, but in the deposition he has substituted Bhatta with ransom, and has urged that appellants had insisted on payment of ransom, which has completely transformed the story attracting an of fence altogether dif ferent in consequences.
8. Further , the complainant has alleged that he was maltreated / beaten by the accused. There is no medical certificate to substantiate it. The evidence says that after lodging FIR he did not go to hospital for treatment and decided to go home and informed PW Arbab Ali, his driver , that he would get treatment privately . But no documents testifying his treatment at any private clinic, etc. has been brought on record by the prosecution. These facts coupled with evidence of PW1 ASI Parwez Sandhu, who recorded 154, Cr.P.C. statement, that when complainant came to him, he did not find any injury on visible part of his body strongly induce a sense of suspicion over this part of the story . The same is equally true to the allegation of indecent acts with the complainant and its recording. His evidence reveals that initially when he was maltreated, stripped and treated unethically by accused Shehzad Sabir , accused Amir Iqbal started recording it with his cell phone, but when accused Amir Iqbal and Wali Muhammad were doing the same with him, accused Shehzad Sabir started recording it with the phone of Wali Muhammad. In the investigation, mobile phone of only accused Wali Muhammad was procured and not that of accused Amir Iqbal.
Then strangely the phone could not be powered on by anyone including the forensic expert to whom it was sent for retrieving the data. So virtually there is nothing to establish this allegation except complainant's own word. Now the question before us is whether mere his word would be sufficient to sustain conviction of the appellants on this point.
If a holistic view of complainant's evidence is taken, it would not seem to carry credibility of that degree. The reasons to hold such a view are already cited above, here are some more. The complainant was taken to a residential flat surrounded by many other residential flats, where he was severely beaten, etc. which was bound to cause mayhem and ruckus sufficient enou gh to alarm inmates of other flats but nothing to suggest so has come on record, which is strange. He has further revealed that at main gate of the building security guards were available but he did warn them, which he has explained was due to fear of firearms. It is simply unbelievable that while taking him to the flat through the main gate, the appellants could have dared to keep pointing pistols towards him in presence of security guards, and which means he could have easily alerted the security guards about his abduction. And his excuse for not doing so does not seem be excusable.
11. The evidence also shows that CCTV cameras are installed in the area, yet its relevant footage in confirmation of the incident has not been produced. I.O. Ali Nawaz PW5 while trying to explain it has claimed that he was intimated by the In Charge that they were non-functional for 2/3 days of the inciden t. But to us this appears to be a bald statement unworthy of reliance because neither it is supported by any material nor verified by the said In Charge. Further , it also seems improbable that appellant Wali Muhammad would take the complainant, who is his class fellow having still visiting terms with him, to his own flat situated in a residential building where he lives with his family , if the purpose was his abduction for ransom and recording his licentious videos, and then release him within two hours merely by threating to upload his such videos (regarding which there is no proof on record) if he did not pay the ransom.
12. As to recovery of an unlicensed pistol on pointation of appellant Shehzad Sabir from underground near a Railway Crossing on 06.7.2017, it may be stated at the very outset that it has not been established that this pistol was used in the crime, therefore its concealment underground at a public place is not understandable. More so, the prosecution has not been able to bring on record confidence inspiring evidence on this point to sustain conviction.
PW Ali Nawaz has revealed that he had prepared the memo of recovery at the spot which was signed by HC Danish and PC Ihsan, who had accompanied him to that place, and that he had approached the public available to act as mashir but none was ready . But PC Ihsan has contradicted him on these points and has said that no public was available there and that the memo was written by PC Aslam as PW All Nawa z's right hand is disabled. Since PC Aslam was not a part of recovery team, preparation of memo at the spot as claimed by PW Ali Nawaz has come under a serious doubt. And this would mean that prosecution has not come up with credible facts on this point rendering entire recovery proceedings suspicious. Regarding other pieces of evidence like recovery of torn clothes of the complainant from the flat, etc., even the trial court was not satisfied about their evidentiary value and has expressed its opinion, which is based on relevant evidence, in negative in second paragraph on page 12 of the judgment, we see no reason to hold otherwise.
13. The upshot of forgoing discussion is that the prosecution has not been able to prove the case against the appellants beyond a reasonable doubt and they are entitled to its benefit. These are the reasons for our short order dated 17.06.2020 whereby we allowed the appeals and acquitted the appellants with direction to jail authorities to release them forthwith if their custody was not required in any case. And in view thereof the constitution petition filed for bail by appellant W ali Muhammad Rahimoon was also disposed of having become infructuous.
All the matters in hand are disposed of in above terms.