Khanzada Hidayat Ali Khan was returning from the Airport on 22-10-1982 at 11-45 a.m. When he reached G-Block Market in Model Town, Lahore, Farasat Ali Shah alias Cheena Shah accompanied by Jaja Masih and an unknown person also came there riding a scooter. They attempted to abduct Mushtaq Ali Khan, his son. Munawar Ali, Liaqat, Fayyaz alias Agha and Murad Khan who were present in the Market, tried to catch them. They succeeded in catching Jaja Masih. Cheena Shah who was holding a pistol started firing. Five shots missed. However, he succeeded in firing the sixth shot. When he was encircled, he ran into Kothi No.132-G of Abdus Saleem Waasti, who was his relative and whose son Haroon was his friend.
Reason for the commission of the offence was that Cheena Shah considered himself as Badmaash' of G-Block. He used to fire to create awe and beat whosoever used to intervene.
Khanzada had admonished Cheena Shah not to do so a day before the occurrence on which he had felt insulted and so attempted to abduct his son.
On the same day, he submitted a written application at Police Station, Model Town, Lahore, on which formal F.I.R. Exh. P.D. Was registered at 12-15 noon. Jaja Masih was produced before Walayat Khan ASI who was entrusted the investigation of the case. Farasat Ali Shah who had been allowed bail before arrest, appeared before the 1.0. On 29-10-1982 and produced licensed revolver alongwith an empty, which was taken into possession. Challan was submitted to Court after completion of necessary investigation.
2. Statements of 7 P.Ws. Were recorded at the trial. Khanzada Hidayat Ali Khan complainant, Murad Ali and Mushtaq Ali appeared as P.Ws. 4, 5 and 6 and deposed the ocular account. Walayat Khan A.S.I. Appeared as P.W.7.
3. The statement made by Hidayat Ali was corroborated by P.Ws.5 and 6. Hidayat Ali had repeated the facts given by him in the F.I.R. All the witnesses during cross-examination denied that they had any animosity with the accused. The A.S.I. Who had submitted the challan while giving the details of the necessary investigation also stated about having arrested Jaja Masih on being produced before him and of having formally arrested Cheena Shah on being appeared before him and taking into possession the licensed revolver produced by him.
4. Cheena Shah during statement under section 342, Cr.P.C. Denied the prosecution case as a whole and examined in defence Khalid Masood as D.W.1. He stated that the complainant party was inimical to Farasat Ali and they have falsely involved him. During cross-examination, he admitted that he had come to know about this case one month after the occurrence.
5. Learned trial Magistrate vide judgment dated 13-9-1988 convicted Farasat Ali Shah alias Cheena Shah under section 365/511, P.P.C. And section 307, P.P.C. And awarded three years' R.I. Each under section 365/511, P.P.C. And under section 307, P.P.C. Plus to pay a fine of Rs.1,000 on each count in default whereof to undergo R.I. For three months on each count. The sentences were ordered to run consecutively. Half of fine, on realization, was directed to be paid as compensation to the victim.
The convict has filed appeal.
6. Before proceeding further, it may be mentioned here that Jaja Masih after being; released on bail during trial had absented. As his attendance could not be procured even through non-bailable warrants, he was declared absconder and proceedings under section 512, Cr.P.C. Were taken against him.
7. I have gone through the evidence with the assistance of the learned counsel of the appellant and considered the contentions raised by the learned counsel for the parties.
8. Khanzada Hidayat Ali Khan was not the resident of the place where the occurrence took place.
Per his own statement, he just reached the spot by chance while on way to his home. Except that he lodged the F.I.R. After the occurrence, there is nothing else done by him in support of his claim that he was present at the spot at the time of occurrence. The motive mentioned by him for the occurrence does not appear to be sound enough warranting attempt for abduction of his son by the appellant.
9. Mushtaq Ali for whose abduction the occurrence had taken place, even according to the eye- witnesses had not suffered any injury during occurrence. Had three persons tried to drag him to put him on the motor-cycle he would have certainly suffered some abrasions while making attempts to rescue himself. No doubt, the medical examination for such injuries would not have been a must but then the witnesses could say that he had suffered minor injuries warranting no medical treatment.
10. The story of the prosecution that three persons i.e. The appellant, Jaja Masih and an unknown person had come to abduct Mushtaq also appears to be highly improbable. In that, even according to the prosecution, Jaja Masih was not armed with anything. The unknown person also was unarmed. Had the appellant come alongwith two persons to commit a crime in a Market on a broad-day, those two persons would not have come there without being armed. It is the prosecution case that all the three had come on one scooter. If Mushtaq was to be taken away on that scooter, someone culprit had to make a room for him by staying back. Obviously, none of the accused would have liked to be left there to be taken into custody and dealt with severely. The plan of a person being taken away on a scooter, which had already three passengers to carry was obviously an impossibility. In the circumstances, the prosecution case about the attempted abduction does not appeal to reason. Another important aspect is that the prosecution has failed to bring out any sort of homogeneity or common interest between the appellant and the two other accused. Why should, after all, they have joined and at least why should other two accused would have come alongwith the appellant to commit such a crime?
11. What appears is that some scuffle took place between Mushtaq and the appellant and the father of Mushtaq by giving a colour to that incident, fabricated a false story of attempted abduction and murderous assault. Mushtaq Ali, per his own admission, was also, while being a student, facing trial in two cases for attempted murder. He had been rusticated from the college which also shows that he had propensities of being a quarrelsome person which lends support to the idea that the two young men might have come across and quarrelled with each other.
12. It is the prosecution's own case that none of the fires had hit any of the persons present at the place of occurrence. Quite a large number of persons apart from the P.Ws. Were present there. Had the appellant chosen to fire at any one of them including Mushtaq or his father he would not have failed to strike. Even if he had fired shots at random, some one out of the persons present there would have suffered injuries. In the circumstances, no case for murderous assault appears to have been made out.
13. For the reasons noted above, no case for maintaining conviction of the appellant is made out.
The appeal is, therefore, allowed and the appellant is) acquitted. He is on bail. The surety shall stand discharged.