The present appeal is directed against the conviction of the appellant under section 364, P.P.C. By the learned Additional Sessions Judge, Sargodha, vide his judgment dated 1-8-1984, and was sentenced to imprisonment for life and a fine of Rs.10,000 or in default thereof the appellant to further undergo 2 years' R.I. The fine, if paid, Rs.8,000 out of the same to be paid as compensation to the heirs of the deceased. The convict/appellant was given the benefit of section 382-B, Cr.P.C.
2. The brief facts of the present appeal are that an F.I.R. No.155/81, Exh.PA., was. Lodged by Waryam P.W.3 on 15-8-1981 at 10-30 a.m. At Police' Station Sillanwali, District Sargodha, initially alleging the commission of offence under section 364/34, P.P.C. Against Riaz son of Khursheed Alam, the present convict/appellant and one Abdul Razzaq son of Muhammad Nawaz and one Muhammad Akhtar son of Haji Muhammad Alam. According to the F.I.R., the complainant, Waryam P.W.3, resident of Chak No.114, N.B. Was present in the house of his brothers, Muhammad Ali and Ahmad Ali, who were residing in the Ahata/house of one Khursheed Alam son of Shah Muhammad in Chak No.114, N.B., Police Station Sillanwali, alongwith their two sisters, namely, Mst. Musarrat Bibi and Mst.
Farhat Bibi (this Khursheed Alam is the father of Riaz, convict/appellant), when the convict/appellant is said to have come, to the said residence and taken the brother of the complainant, namely, Muhammad Ali alongwith him on his bicycle in order to purchase a camel. IC is further stated therein that the complainant came back to his house in the evening on the said day of occurrence and by that time his brother, Muhammad Ali had not come back, and that 15/20 days later his younger brother, Ahmad Ali, P.W.9, came to him and informed him that since that day their brother Muhammad Ali is missing and that in spite of their efforts they have, no knowledge of his whereabouts, and that thereupon the complainant alongwith Allah Yar, P.W.5, went in search of the said Muhammad Ali towards Chak Nos.114, 121 and 122, S.B. To inquire about his brother from 'their bratheri, and as a result thereof he came to know that on the very day of occurrence i.e. On 26th Ramzan the complainant's brother,, Muhammad Ali was seen in the company of Riaz (convict/appellant), Akhtar Bajwa and Razzaq Malhi (both acquitted co-accused) at the bridge of Samenala in the area of Chak No.122, S.B., whereupon the complainant alongwith Allah Yar P.W.5, and Sarang P.W.4, made inquiries from the said persons but did not get satisfactory reply from them. Therefore, the complainant got suspicious that the said three persons, namely, Riaz, Akhtar Bajwa and Razzaq Malhi had taken his brother Muhammad Ali on a false pretext and were hiding him somewhere with the intention of murdering him as a result of enmity.
According to the F.I.R., the case of enmity and the motive for the offence alleged was the reason that the convict/appellant had asked for the d in marriage of Mst. Musarrat Bibi, the sister of the complainant and the abductee, but as Muhammad Ali had in turn asked for the hand in marriage of Mst. Shehnaz, the sister of the convict/appellant, the said Mst. Shehnaz, however, was married to Akhtar Bajwa, the co-accused named above, and that even thereafter Muhammad Ali, abductee, was carrying on with the said Mst. Shehnaz and was visiting her in-laws in the Chak, and that the convict/appellant Riaz was carrying on illicit relationship with Mst. Musarrat Bibi, the sister of the abductee named above. The F.I.R. Was registered by Fida Hussain S.I. P.W.10 on the statement of the complainant, Waryam.
The appellant, Riaz, and the other two co-accused, namely, Akhtar Bajwa and Razzaq Malhi, were charged under section 364/34, P.P.C. For having abducted Muhammad Ali with the common intention to murder him and under section 302/34, P.P.C. For having murdered him in furtherance of their common intention. (It may be noted here that 26th Ramzan, the day of occurrence, fell on 29- 7-1981).
3. The accused on being examined under section 342, Cr.P.C. Denied the allegations of the prosecution in toto and professed innocence. The accused Akhtar Bajwa also took up the plea of alibi and stated that on 29-7-1981, he being a teacher, had gone to his school for drawing his salary for the month of July, 1981.
4. To prove the charge against the accused, the prosecution had named 18 witnesses in all but had finally produced twelve witnesses.
5. According to the prosecution, the appellant, Riaz was arrested on 21--9-1981 and while in police custody led to the recovery of Patka P.1, Wrist Watch P.2 and Ring P.3. The said articles were taken into possession by Fida Hussain S.I., P.W.10, vide memo. Exh.P.E. And Sher Muhammad P.W.12, and Sarang P.W.4 had attested the said memo. P.W.10 had also prepared the site plan of the places of recovery, Exhs. P.1 to P.3. The appellant is alleged to have recovered five pills, Exh.P.4/1-5, vide recovery memo. Exh.P.B. And the rough site plan of the place of recovery of the said pills is Exh.P.E.
The appellant is alleged to have pointed out the place where the abductee, Muhammad Ali, is alleged to have been strangulated, and the site plan of the place where the dead body was thrown in the drain is Exh.P.G. As the dead body was never recovered, therefore, there is no post-mortem report in this case.
6. The case was investigated by Fida Hussain S.I. P.W.10, and later on by Mehdi, S.I., P,W.11, who placed the co-accused of the appellant, Akhtar Bajwa' and Razzaq Malhi, in column No .2 of the report under section 173, Cr.P.C.
7. The prosecution witnesses, namely, Ahmad Ali, P.W.9, Waryam, P.W.3, Mst. Musarrat Bibi P.W.6, Allah Yar, P.W.5, Sarang P.W.4 and Ghulam Haider P.W.7, were produced to prove the motive and to prove that the appellant had taken away the abductee/deceased on the day of occurrence.
Sarang P.W.4, and Shera P.W.12 are the recovery witnesses of Patka, Wrist Watch and Ring i.e. P.1 to P.3 respectively and of the pills i.e. P.1/1-5 and the place of the alleged' murder and of the place where the dead body is alleged to have been thrown in the drain. P.W.2 is Ali Hussain, who is alleged to have sold the sleeping pills P.1/1-5 to the appellant and was declared hostile as he did not support the prosecution version. P.W.1, Muhammad Iqbal, is a Head Constable who kept the parcel of the said pills in his custody. P.W.8 is Muhammad Akram F.C. 791 who received the parcel of the said pills for the office of the Chemical Examiner, Lahore, and had deposited it there. The report of the Chemical Examiner has not been exhibited. It may be noted here that P.W.7, Ghulam Haider's evidence did not support the prosecution version in any manner as he had stated that the abductee/deceased, Muhammad AA had visited him in Karachi, a day after the day of occurrence, and that he was not declared hostile and cross-examined. The prosecution did not produce the two witnesses of Wag Takar.
8. The learned trial Court convicted the appellant relying on the evidence of P.Ws. 3, 4, 5, 6 and 9.
The learned trial Court came to the conclusion that the motive had been established and that it was also established that the appellant had abducted Muhammad Ali by deceitful means for the purpose of being murdered on the false pretext of the purchase of a camel. Thus, sentenced the appellant to imprisonment for life with a fine of Rs.10,000 or in default 'thereof to further R.I. Of two years. Rs.8,000 to be paid as compensation to the heirs of the deceased, Muhammad Ali, as stated by the learned trial Court, on the recovery of the fine. The benefit of section 382-B, Cr.P.C. Was also given to the accused, as stated earlier.
9. The learned counsel for the appellant has argued for the acceptance of the appeal and the acquittal of the appellant on the ground that the conviction and sentence was not tenable in the eyes of law on the basis of evidence produced by the prosecution and that the impugned judgment of the learned trial Court was based on mere conjectures and not on any evidence.
10. Firstly, to support his contentions, the learned counsel for the appellant, argued that no offence under section 364, P.P.C. Was made out against the appellant as the essential ingredients necessary for being charged with the offence under section 364, P.P.C. Were neither established by what has been stated in the F.I.R. Nor by the evidence of the prosecution produced in support thereof. In this respect, it was pointed out that the definition of abduction as stated in section 362, P.P.C. Was as follows:- "Whoever by force compels, or by any deceitful means induces, any person to go from any place, is- said to abduct that person."
Therefore, it was argued that neither it has been stated in the F.I.R. By the complainant nor in his evidence, nor by any of the prosecution witnesses and it was pointed out that neither it has been alleged that the appellant had applied force to compel the alleged abductee to go with him nor has it been alleged that the purchase of a camel was an inducement by deceitful means for taking him away from his house. It was further argued that it has not been stated by any one of the prosecution witnesses that the alleged reason of the purchase of a camel was an inducement to the abductee nor has it been stated in unequivocal terms that the purchase of camel was for the benefit of the abductee, Muhammad Ali. In fact it was argued that, as stated above, the purchase of the camel may well be for the benefit of the appellant himself, and. That in such a situation there is no question of any inducement by any deceitful means having been held out to the alleged abductee.
11. In view of the contentions raised above, it shall be pertinent to deal with section 364, P.P.C. Under which the offence charged with and the conviction of the appellant has taken place,- and against which the present appeal is directed. Section 364,P.P.C. Is as. Follows:-- "Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine."
The bare reading of the section makes it clear that the offence under the subsection shall take place:-
(a) when a person is kidnapped or abducted in order;
(b) that such person may be murdered;
(c) or may be so disposed of as to be put in danger.
As stated earlier, the abduction as defined in section 362, P:P.C. Is when a person is by force compelled or by any deceitful means induced to go from any place. Therefore, in the first instance, to establish the offence under section' 364, P.P.C. It shall be essential to prove that:--
(a) abduction has taken place and it was either by force compelled or by deceitful means induced, and thereafter it will have to be established beyond reasonable doubt that person kidnapped or abducted was for the reason:-
(a) to be murdered; and
(b) to be so disposed of as to be put in danger of being murdered.
Therefore, in the present case, it has to be seen whether the ingredients essential, firstly for establishing that "abduction" has taken place on the basis of the evidence, and secondly whether or not such abduction was for the purpose of the abductee to be murdered or to be so disposed of as to be put in danger of being murdered. In this respect this is fact, the evidence to be taken into consideration, and on the basis of which the conviction of the appellant has been based is provided by the testimony of P.W. 3 Waryam, P.W. 4 Sarang, P.W.5 Allah Yar, P.W. 6 Mst. Musarrat and P.W. 9 Ahmed Ali.
12. It shall be pertinent, one again, to point out here that as the appellant alongwith his co-accused was acquitted of the charge of murder, therefore, the evidence in respect of the said offence is not relevant, and it shall riot be referred to in any manner, specially as the State did not file an appeal against the acquittal of the appellant and his co-accused under section 302, P.P.C. Nor a Criminal Revision has been filed by the complainant in this, respect.
13. The prosecution witnesses, named above, have deposed only in respect of the appellant:--
(a) that the appellant had come to the house of the abductee to take him away so as to purchase a camel;
(b) and in respect of motive; The motive is stated to be the reason of the appellant carrying on illicit relationship with the sister of the abductee on the one hand, and the abductee having illicit relationship with the sister of the appellant on the other hand and that the abductee was not willing to give the hand of his sister in marriage to the appellant unless the appellant gave his sister in marriage to the abductee and that the abductee was still carrying on illicit relationship with the sister of the appellant in spite of that the appellant had married her to his acquitted co-accused, Akhtar Malhi.
14. In respect of the motive the prosecution witnesses have stated as follows:- "P.W.3, Waryam son of Sultan; has stated that the appellant has asked for the hand of the sister of the abductee, Muhammad Ali, and had been trying for the same for 2/3 years and that the abductee was' willing to do so if the appellant gave his sister, Mst. Shehnaz Akhtar in marriage to him, and that the appellant had married his sister to Akhtar Malhi but in spite of that the abductee used to visit her in her in-laws. P.W.4, Sarang son of Pathana, stated to the same effect with the further addition that 2/3 years back the appellant alongwith one Abdur Razzaq and Akhtar MAW accused had gone to the house of one Muhammad Hayat, brother-in-law of Muhammad Ali abductee in village Lalian and had taken up the hand of Mst. Musarrat, the sister of the abductee, Muhammad Ali, for the appellant, and that the said Muhammad Hayat had told them that Muhammad Ali abductee wanted marriage in exchange.
P.W.5, Allah Yar son of Pathana also stated to the same effect as P.W.3 stated above.
P.W.6, Mst. Musarrat, also stated to the same effect except that she did not admit to carrying on illicit relationship with the appellant and furthermore conceded during cross-examination that she was not present at the time when her hand in marriage was asked for by the appellant nor was she present in the house of Muhammad Hayat when the appellant approached him for her hand in marriage, and she further conceded that she has never visited the Chak of Mst. Shehnaz, the sister of the appellant, whenever her brother went to the said Chak to visit Mst: Shehnaz.
P.W.9, Ahmed Ali son of Sultan did not state anything in respect of the motive alleged in his examination-in-chief but during the cross-- examination he stated that he had stated before the police that the abductee had told Riaz appellant that he will give his sister in marriage to him in case the appellant gave his own sister in marriage to the abductee, Muhammad Ali, but on being confronted with the Exh.D.C., it was established that he has not stated anything to that effect."
As is clear from the above, P.W. 6 Mst. Musarrat, did not support the version of the prosecution in respect of the appellant having illicit relationship with her that her testimony in respect of the abductee carrying on illicit relationship with Mst. Shehnaz, the sister of the appellant, was based on hearsay, and that the same was the case in respect of the appellant etc. Having asked for her hand in marriage from Muhammad Hayat, as she, was not present at the said time, and secondly, that neither Mst. Shehnaz has been produced to establish that the abductee was carrying on illicit relationship with her nor has Muhammad Hayat been produced to prove that the appellant etc. Had approached him for the hand in marriage of Mst. Musarrat or that the abductee, Muhammad Ali, had asked for Mst. Shehnaz as a condition thereof. Therefore, the evidence in respect of the motive alleged is discrepant and contradictory, and furthermore all the P.Ws. Being related inter se, and all they have done is to make a bald statement in respect of the motive alleged without providing concrete details, corroboration and confirmation of the same by the production of the necessary and essential witnesses, namely Mst. Shehnaz and Hayat or by other independent testimony, and the only relevant witness produced in this respect, i.e. Mst. Musarrat, has not supported the prosecution version in her own case, and as regard to the abductee carrying on illicitly with Mst. Shehnaz, her evidence is based on hearsay, as pointed out earlier, the prosecution has failed-to prove the motive as alleged, as being the basis of enmity leading to the commission of crime in question. And as pointed out by the learned counsel for the appellant, not an iota of evidence has been produced to prove that the abductee, Muhammad Ali was ever in danger of being murdered or that he was to so disposed of as to be put in danger of being so murdered to prove the charge, the prosecution had to establish by evidence that the abductee was put in danger of being murdered.
15. In pursuance to the above discussion, it is hereby held that the prosecution has failed to prove its case against the appellant, hence the present criminal appeal is allowed and the impugned judgment is hereby set aside. Consequently, the appellant stands acquitted of the offence charged. He is on hail, his bail bonds stand discharged.