This Criminal Appeal No. 343 of 1984 by Muhammad Malik alias Mikki, (22) and the connected Criminal Revision No. 354 of 1984 by Sheikh Abdul Hamid, against the acquittal of the charge under section 302, P.P.C. Arise from the judgment of learned Additional Sessions Judge, Lahore, whereby he, on 25-6-1984 while acquitting Muhammad Maalik of the charge under section 302, P.P.C.
Convicted him under section 364, P.P.C. For the abduction of Rizwan Hameed (21) in order that he may be murdered or may be so disposed of as to be put in danger of being murdered and sentenced him to imprisonment for life and a fine of Rs.20,000 or in default thereof, to three years R.I. It was directed that the fine if recovered, be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. I propose to dispose of them through Single judgment.
2. The allegations are that Rizwan Hameed deceased a student of Engineering University was abducted on 17-6-1983 at about 1-30 p.m. From his house 6 Park Lane, Temple Road. Mozang, Lahore within limits of Police Station, Mozang and subsequently was murdered on the same day (exact time not known) in Malik House, Shahdara within the area of Police Station, Shahdara.
3. The F.I.R. Exh.P.K. Was lodged by Irfan Hameed brother of the deceased (not examined) and was recorded by Chaudhry Sardar Ali Inspector Police, P.W. 16 at the Police Station Mozang, on 18-6-1983 at 6-5 a. m.
4. The appellant and the deceased both were students of F. C. College and Engineering University, Lahore respectively. They were friends since childhood. The deceased was a brilliant student and so was a scholarship-holder. Muhammad Maalik appellant used to waste his time whenever he visited the house of Rizwan Hameed. The deceased' had also complained to her mother about the misconduct of the appellant. Having developed a sort of hatred against the appellant, the deceased did not like his company. It so happened that 4/5 months before the occurrence, Mrs. Rehana Hameed P.W. 10 the mother of the deceased saw the deceased' and the appellant quarrelling with each other. It was within her view that the appellant had hurled chairs and tables on the deceased. On this, the deceased had said that he no more like the company of the appellant. Rehana Hameed P.W.10 had asked the appellant at that time not to see her son again and also to leave the house. While leaving the house the appellant had thrown challenge to the deceased. Since then the deceased and the appellant were not maintaining good relations.
Although the appellant had again come the house of the deceased yet the later had refused to see him hen this occurrence.
5. The prosecution case briefly stated, is that on the eventful day at 1-30 p.m. Mrs. Rehana Hameed, Irfan Hameed, Imran Hameed, Rizwan Hameed and Baba Taj Din their servant, were present in their house. The outer gate of the house was knocked at by Second Lieutenant Adil Naveed one of the friends of the deceased. Taj Din P.W.12 went oat a --saw Adil Naveed present at the door who asked the former to info Rizwan Hameed that he wanted to talk with him. At that time Muhammad, Maalik was seen sitting in a car nearby with some other persons. Baba Taj Din then conveyed the message to the deceased and his mother Mrs. Rehana Hameed. So, Rizwan Hameed went out. After a minute so, Imran Hameed P.W.13 and Irfan Hameed complainant, brother of deceased, on hearing the loud voices also came out. They found that Adil Naveed was desiring Rizwan Hameed to accompany him and take seat in the car parked there but Rizwan Hameed was reluctant to do so. Adil Naveed then gave an assurance to the deceased that he get a compromise effected between him and the appellant. He accordingly took away the deceased in the car where Muhammad Maalik appellant was also sitting. Rizwan Hameed did not return home up to 9 p.m.
Irfan Hameed and Imran Hameed left for his search. Apprehending the possibility of some accident, they went to the Casualty Ward of Hospital at about 10-30 p.m. Where they found Rizwan Hameed I --with a fire-arm wound on his person. After sometime, he succumbed to the injuries in their presence. Imran Hameed then left for his house inform his parents about the fate of Rizwan Hameed.
6. On 17-6-1983 at about 10 p.m. Rizwan Hameed deceased was brought in the Casualty Medical Ward by Muhammad Maalik son of Ghulam. Yazdani, resident of Shahdara Town, Lahore. He was examined Doctor Tanvir Ahmad P.W.5 who found; "Irregular deep lacerated wound 6 c.m. x 4 c.m. Tatooing present on the back of right chest on upper part. There bleeding from the nose and mouth of the injured. There also swelling and crepitus present on the front of the chest. The injury was caused by fire-arm. The doctor referred case to Emergency Ward/North Surgical Ward."
On the death of Rizwan Hameed, Dr. Muhammad Farooq P.W.7 conducted post-mortem examination on 18-6-1983 at I1-10 a.m He found following injuries on the dead body.
(1)Entry wound 6 x 4 c.m. At the back upper right chest with 6 satellite entry wounds at the edges, with tatooing, the edges were contused and ragged. Muscles within the wound were lacerated.
There was fracture of the 5th, 6th and 7th ribs. There was laceration of the outer surface of the right lung. Pellets and card wad were recovered from the upper lobe of right lung. The inferior vena-cave had been pierced by a pellet which was recovered near the hiatus of diaphragm. The pericardial sac contained blood. , (2)Transverse surgical incision at the inner lower left leg.
On internal examination, the doctor found that the stomach contained 6 ounces of partially digested food, consisting of minced meat, potato and rice. The small intestines contained chyme the large intestines contained gas and faeces. The right lobe of the liver was punctured by a pellet.
The spleen was pale and healthy. The bladder was empty.
7. On 19-6-1983, Sardar Ali, Inspector Police P.W.16 inspected the house of Malik Yazdani the father of the appellant. He took into possession Exh.P.I gun licence of Malik Yazdani vide memo. Exh.P.A. He took into possession gun P. 5 of Malik Yazdani vide memo. P.D. He also took into possession bandolier P.6 containing 16 cartridges Exhs.P.7/1 to P.16 and empty Exh.P.8 from the house of Malik Yazdani. He took into possession blood-stained Qaleen P.9 Pillow P.10 Bed Cover P.11 vide memos.
P.E. And P.F. He took into possession pair of shoes Exhs.P.12/1 to 2 of the deceased from the same house vide memo. Exh.P.G. Muhammad Nazir produced his blood-stained Shalwar P.13 and shirt P.14 which were taken into possession vide memo. Exh.P.H. All the memoranda were attested by Zaka Ullah, F.C. P.W.3 and Mukhtar Hussain A.S.I., P.W.6.
8. The appellant was arrested on 22-6-1983 by Sardar Ali, Inspector P.W.16. Nothing incriminating was recovered from him.
9. To prove its case, prosecution examined 18 witnesses. Dr. Tanvir Ahmad P.W.5 has proved the medico-legal report of the injuries of the deceased. Dr. Muhammad Faqoor Akmal P.W.7 has proved the post-mortem examination report. Zaka Ullah P.W.3 Mukhtar Ahmad A.S.I. P.W.6, and Sardar Ali, Inspector Police P.W. 16 have supported the recoveries of the aforesaid articles from the house of Malik Yazdani, the father of the appellant Serologist's report Exh.P.U. Shows that Qaleen P.9, Pillow P.10, Bed Cover P.11, Shalwar P.13 and shirt P.14 were stained with human blood. Group of the blood found on the clothes of the deceased and that on the pillow P.10, also matched. Mrs. Rehana Hameed P.W.10, Taj Din P.W.12, Imran Hameed P.W.13 have supported the alleged motive and the version of the abduction of the deceased as detailed above. They stated that the relations of the deceased and the appellant were strained for the last 4/5 months prior to the occurrence.
Although the appellant had come to the house of the deceased during these 4/5 months yet the deceased had refused to see him. They further stated that on 19-6-1983 at about 1-30 p.m. Adil Naveed, Second Lieutenant, his brother Aqil, Muhammad Malik alias Mikki alongwith two unknown persons had come in front of their house in a car. Adil Naveed came at the outer gate while the others remained in the car. Adil Naveed summoned Rizwan Hameed through Baba Taj Din P.W. And asked him to accompany them, but the deceased was not agreeable. Adil Naveed then induced and persuaded him that he would get a reconciliation and compromise effected between him and the appellant. On this, the deceased agreed to accompany him. Both of them then sat in the car in which Muhammad Malik and others were already sitting and the car was driven to some unknown place. Niaz Ahmad P.W.18 a Purchi Clerk was on duty in the Mayo Hospital, Lahore on 17-6-1983. He stated that at 10 P.m. Rizwan Hameed was brought in an injured condition by Muhammad Maalik son of Malik Ghulam Yazdani, Malik House Shahdara, Lahore and he entered the arrival of the patient at serial No. 33126 under patient No. 148 Exh.P.5 is the true copy of the entry report. The rest of the evidence is more or less of formal nature.
10. When examined under section 342, Cr.P.C. The appellant denied all the incriminating circumstances. He stated that he way involved on account of suspicion and misunderstanding. In defence he tendered Exh.D.O. a certified copy of the F.I.R. No. 93/80 under section 349/411, P.P.C. Of Police Station, Mozang, Lahore where Rizwan Hameed deceased was named as an accused person.
11. The learned counsel for the appellant contended that prosecution has not been able to prove abduction of Rizwan Hameed deceased in order that he may be murdered or may be so disposed of as to be put in danger of being murdered; that after having acquitted him of tile charge under section 302, P.P.C. The trial Court could not have convicted the appellant under section 364, P.P.C.
And that the evidence rind the circumstances relied upon by the learned trial Court, do not exclude the hypothesis of the innocence of the appellant. Conversely the learned counsel for the State has supported the judgment of the trial court. The learned counsel for the complainant vehemently submitted that in since the appellant had motive to kill the deceased and the deceased had left in a car where the appellant was sitting and incriminating articles were recovered from the house of the father of the appellant and more particularly the blood found on the pillow recovered from the house of the father of the appellant and the blood found on the clothes of the deceased were of the same group, therefore, the prosecution has successfully brought home not only the commission of an offence punishable under section 364, P.P.C. But also an offence of murder, punishable under section 302, P.P.C.
12. I have considered the submissions made by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the State and the learned counsel for the complainant. I find that there is no direct evidence of the murder of the deceased by the appellant. The circumstantial evidence brought on the record does not exclude the hypothesis of the innocence of the appellant. The deceased was allegedly taken away from his house at 1.30 p.m. From the medical report, post-mortem report and the statements made by the two doctors, it appears that the deceased had received injuries sometime between 7 p.m. To 10 p.m. It is not- known as to what had happened between, 1.30 p.m. And upto the time the deceased received the fire-arm injury resulting in his death. The deceased was lastly seen with Adil Naveed, Aqil, the appellant and two unknown persons. In these circumstances the hypothesis that the deceased might have been fired at by someone else either intentionally or accidentally, cannot be excluded. The recovery of the shoes of the deceased from the house of the father of the appellant is of no consequence because the prosecution did not care to get the shoes identified by Mrs. Rehana Hameed, the mother and Abdul Hameed the father of the deceased, Baba Taj Din and Imran Hameed P.Ws who were the best witnesses in this behalf. Since the house where from blood- stained articles were recover was not in the exclusive possession of the appellant and the possibility of the presence of Adil Naveed, Aqil and others in the house alongwith the deceased cannot be excluded, therefore, the circumstances of the recovery of the blood-stained article also fail to exclude hypothesis of the innocence of the appellant. The --entry in the register of the Mayo Hospital to the effect that Rizwan Hameed was brought by Muhammad Maalik son of Malik Ghulam Yazdani resident of Malik House, Shahdara, Lahore is of no consequence in the sense that no one has identified the appellant as a person who actually brought Rizwan Hameed to the hospital in an injured condition. Even otherwise this circumstance may not advance the case of prosecution inasmuch as had the appellant abducted the deceased in order to murder him or had fired at him intentionally, he would not have brought the deceased to the hospital to save his life or in any case he would not have given his correct particulars when he was a stranger to the staff of the hospital.
For all these reasons I am convinced that neither there is any direct evidence of the murder of the deceased by the appellant nor the circumstances relied upon by the prosecution exclude the hypothesis of his innocence and as such no exception can be taken to his acquittal of the charge under section 302, P.P.C., by the trial Court.
13. This brings me to the question of conviction of the appellant under section 364, P.P.C. I find that the statements made by Mrs. Rehana Hameed, Baba Taj Din and Imran Hameed, if accepted at its face value, the deceased was abducted by Adil Naveed because it was he who by deceitful means had induced Rizwan Hameed deceased to go at the worst could have been vicariously from his house and the appellant for the act of Adil Naveed. The relevant section may be quoted advantageously: Section 362, P.P.C.-- Whoever by force compels, or by any deceitful means induces any person to go from any place is said to abduct that person."
The word of "whoever" is of great significance.
From the examination of the definition of the abduction, it is very, mush obvious that since the appellant had remained sitting in the car, and had never by any means induced the abductee to go from his house or accompany him, therefore, he cannot be said to have abducted the deceased. It is really unfortunate that Adil Naveed who allegedly had abducted Rizwan Hameed deceased and was the principal accused was not prosecuted at all. It is well-settled that unless the principal accused is prosecuted or convicted, the conviction of person sharing common intention/object, abettor, conspirator and vicariously liable, is not possible under the law, so I am of the view that even if the prosecution version of the abduction of Rizwan Hameed as stated by the witnesses is believed, the conviction of the appellant in this case cannot be sustained. Furthermore, the prosecution has failed to prove the most important ingredient of offence punishable under section 364, P.P.C. That Rizwan Hameed was abducted in that he may be murdered or may be so disposed of as to be put in danger of being murdered because the possibility of the deceased having been taken away from his house innocently and something else intervening between 1-30 p.m and time of occurrence, resulting in his-death is very much there. After having examined the matter from all angles, I am of the view that prosecution has not been able to make out a case of abduction of Rizwan Hameed deceased by Muhammad Maalik appellant in order that the former may be murdered or may be so disposed of as to be put in danger of being murdered against the appellant.
14. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of the appellant and while giving him the benefit of doubt he is acquitted of the charge. He shall be released forthwith if not required to be detained in some other case.
Revision petition having no force is dismissed.