' RUSTAM S. SIDHWA, J.--- This is an appeal by Sh. Abdul Hamid appellant against the judgment of a learned Single Judge of the Lahore High Court, dated 4-12-1985 challenging the acquittal of Muhammad Malik alias Mikki respondent in respect of an Offence under section 364, P.P.C.
2. The initial occurrence of the abduction of Rizwan Hameed deceased of this case is alleged to have taken place on 17-6-1983 at about 1-30 p.m. At 6 Park Lane, Temple Road, Mozang, Lahore, quite close to the said police station, and the occurrence relating to his murder is alleged to have taken place on the night between 17/18-6-1983 at an unknown place, which was reported at Police Station Mozang in the morning at 6-05 a.m. Of 18-6-1983 by Irfan Hameed (not produced), the brother of the deceased, who found the injured dying in the Casualty Medical Ward of the Mayo Hospital, the same night.
3. The case for the prosecution as contained in F.I.R. Exh.P.K. Lodged at the instance of Irfan Hameed, the elder brother of the deceased is as under:-- "I live with my parents in 6-Park Lane, Temple Road, Mozang, Lahore. Rizwan Hameed, aged about 20/21 years, is my younger brother, who is a student of the third year in the Engineering University.
He had been earlier studying in Saint Anthony's High School alongwith Adil Naveed, now a Second Lieutenant, resident of Islamia Park and Malik Muhammad Malik alias Mikki son of Malik Yazdani resident of Shandara so being friendly towards Rizwan Hameed since his childhood used to visit our house. However. Rizwan Hameed had strained relations with Muhammad Malik alias Mikki for the last about 4/5 months and during this interval Muhammad Malik had come to our house to inquire about Rizwan Hameed who had refused to see him. Yesterday at about 1-30 in the day, aforementioned Muhammad Malik alias. Mikki alongwith Adil Naveed, Second Lieutenant, his brother Aqil, who are also known to me alongwith two unknown persons came in front of our house in a reddish brown Toyota car and then Adil Naveed, through our servant Baba Taj Din, called out Rizwan Hameed. On seeing Muhammad Maalik in the car, Rizwan refused to accompany them and so there was an altercation in a Ibud voice, which attracted me and my younger brother Imran Hameed and then Adil Naveed pacified Rizwan. Hameed and persuaded him that he would get a reconciliation and a compromise effected between them, so Rizwan agreed to accompany them.
Since he did not return uptil late night, so we felt suspicious and searched for him even to the houses of who had accompanied him. Being dissatisfied in the search then suspecting any accident we started searching Rizwan Hameed in the hospitals and as such reached Casualty Ward of the Mayo Hospital, at about 10-30 p.m. And found Rizwan Hameed admitted there with injuries on the deathbed there. I was still preparing for giving the blood when Rizwan Hameed died of the injuries. The aforementioned persons had abducted my brother and so had committed his murder under a design..There was fire-arm injury on the back of Rizwan Hameed who has died of the same. I informed my heirs regarding the occurrence and now have come to make a report."
4. Prior to the lodgment of the above F.I.R., on 17-6-1983 at 10-00 p.m. Rizwan Hameed deceased had been brought to Maya Hospital by Muhammad Malik accused, where he was medically examined by Dr. Tanvir Ahmad, Casualty Medical Officer, P.W.5 who found a fire-arm wound 6 c.m. x 4 c.m. With tatooing present on the back of the right upper part of the chest. The injury was by a fire-arm injury freshly caused. He advised X-ray and referred the case to the Emergency Ward/North Surgical Ward. He sent information to Police Station Shandara regarding the arrival of the injured person. Nazir Ahmad P.W.18 at that time was working as Parchi Clerk in the Mayo Hospital. He made the entry of Rizwan Hameed in the Patients Register at Serial No,33126 the same day at 10-00 p.m. He also informed Police Station Shandara of the arrival of the injured at 12-00 mid-night by telephonic message.
5. Mukhtar Hussain A.S.I. P.W.17, of Police Station Shandara, on receipt of the information from his police station about the injured Rizwan Hameed, proceeded to Mayo Hospital, which he reached at 1-15 a.m. On 18-6-1983. He contacted Niaz Ahmad, Parchi Clerk, P.W.18 to explain the reason for his delay in intimating about the arrival of Rizwan Hameed, to which he was informed that as Rizwan Hameed had informed him that he had received injuries accidentally, so he did not desire police proceedings, but after he had died, he had sent the message. Sh. Abdul Hameed P.W.11 and Mst.
Rehana Hameed P.W.10, the father and mother of the deceased, who were present refused to give any statement to him. Since the case related to Police Station Mozang, he awaited the arrival of Sardar All Inspector P.W.16 from the said police station, who, after reaching the hospital, recorded the F.I.R. Exh.P.K of Irfan Hameed (not produced) as stated above.
6. Sardar Ali. Inspector P.W.16, after preparing the necessary papers, sent the dead body of Rizwan Hameed for post-mortem examination. Thereafter, he proceeded to the house of the complainant and prepared site plan Exh.P.N.
7. Dr. Muhammad Farooq Akmal P.W.7 conducted the post-mortem examination on the dead body of Rizwan Hameed deceased on 18-6-1983 at 11-10 a.m. And found a fire-arm entry wound 6 c.m. x 4 c.m. On the back of the upper part of right chest, with tatooing and contused/ragged-edges. The three ribs were fractured and the right lung and pleura were injured. The injury was fatal and ante- mortem.
8. On 19-6-1983 Sardar Ali Inspector P.W.16 reached the house of Muhammad Malik accused situate in Shandara Town, where his father Malik. Yazdani produced before him his licence P.1 of his gun, which he took into possession vide memo. Exh.PA. He also took into possession licensed gun P.5, bandolier P.6 containing 6 live cartridges P.7/1-6 and a crime empty P.8, vide memo. Exh.P.D. He also took into possession a blood-stained carpet vide memo. Exh.P.E., a blood-stained pillow-case P.10 and a blood-stained bed-sheet P.11 vide memo. Exh.P.F. And a pair of shoes P.12/1-2 allegedly belonging to the deceased vide memo. Exh.P.G. All these recoveries were witnessed by Zakaullah F.C. P.W.3 and Sardar Ali Inspector P.W.16.
9. On 22-6-1983 Muhammad Nazir, a servant of the accused, who had accompanied the accused and the deceased to the hospital, produced his own blood-stained Shalwar P.13 and blood-stained shirt P.14, which were taken into possession vide memo. Exh.P.H. The recoveries were also witnessed by Zakaullah F.C. P.W.3, Mukhtar Hussain A.S.I. P.W. And Sardar All Inspector P.W.16.
10. Sardar Ali, Inspector P.W.16 arrested Muhammad Malik accused on 22-6-1983.
11. After completing the investigation, the challan against the accused was sent up.
12. The accused was charge-sheeted under sections 302 and 364, P.P.C. Who denied the allegations.
13. At the trial, the prosecution produced Mst. Rehana Hameed P.W.10, Abdul Hameed P.W.11, Taj Din P.W.12 and Imran Hameed. P.W.13 to prove that on 17-6-1983 at about 1-30 p.m. Lt. Adil Naveed, his brother Aqil, accused Muhammad Malik and two unknown persons had come to their house in a car and had taken away Rizwan Hameed deceased, so as to effect some compromise between him andthe accused, whereafter the whereabouts of the deceased were not known, till they started making inquiries and reached the Mayo Hospital at 10-00 p.m. Where they found that he had been admitted there and had already died; Niaz Ahmad Parchi Clerk P.W.18, Dr. Tanvir Ahmad P.W.5 and Mukhtar Hussain A.S.I. P.W.17 to show that on 17-6-1983 at 10-00 p.m. Muhammad Malik accused had brought Rizwan Hameed to the hospital in an injured condition, which fact was noted by these witnesses in the Patients Register, the medico-legal report and Roznamcha report No,43 Exh.P.K. At Police Station Shandara; Zakaullah F.C. P.W.3, Mukhtar Hussain A.S.I. P.W.17 and Sardar Ali Inspector,- P.W.16 to prove the recovery of the accused's father's licensed gun P.5 with empty and live cartridges and blood-stained pillow-case, bed-sheet, carpet and a pair of shoes of the deceased, as also the blood-stained clothes of Muhammad Nazir, employee of the accused, who had accompanied the accused and the deceased to the hospital; Dr. Tanvir Ahmad P.W.5 and Dr. Muhammad Farooq Akmal P.W.7 in corroboration of the medical testimony; and the reports of Chemical Examiner and Serologist .To show that the blood found on the items recovered from the house of the accused was of the same group as found on the clothes of the deceased.
14. At the trial the accused denied each and every accusation that was levelled against him, including the recoveries alleged to have been effected from his father's house and claimed innocence and pleaded that the witnesses' had deposed against him due to suspicion and misunderstanding. He did not lead any evidence in defence.
15. The trial Judge acquitted Muhammad Malik accused under section 302, P.P.C. But convicted and sentenced him under section 364, P.P.C.
16. Being aggrieved by the above conviction and sentence, Muhammad Malik accused preferred an appeal in the High Court, which was accepted.
(A) With regard to the case against the accused under section 302, P.P.C., the learned Single Judge held that there was no direct evidence of the murder of the deceased by the accused. Regarding various items of circumstantial evidence he held as follows:-
(i) With regard to the evidence of last seen, the learned Judge held that Rizwan Hameed deceased had been taken away from his house at 1-30 p.m., from the statements of the two doctors it appeared that the deceased had received injuries sometime between 7-00 and 10-00 p.m., that the prosecution had not disclosed what had happened to the deceased between this interval of 5 to 9 hours and that therefore, the accused could not be put to the burden of explaining any presumption against him that he alone had committed the crime in instance.
(ii) Regarding' the recovery of the blood-stained carpet, pillow-case and bed-sheet from the house of the father of the accused, the learned Single Judge held that as other members of the family of the accused also resided in the house, it could not be stated that the recoveries were made from the exclusive possession of the accused and that the evidence failed to exclude the hypothesis that the accused was innocent.
(iii) With regard to the recovery. Of the alleged pair of shoes of the deceased, the learned Judge held that the same was of no consequence because the prosecution did not care to get it identified either by Rehana Hameed P.W.10, Abdul Hameed P.W.11, Taj Din P.W.12 or Imran Hameed P.W.13, the mother, father, servant and brother respectively of the accused.
(iv) With regard to the entry in the medico-legal report of Dr. Tanvir Ahmad P.W.5 and evidence of Niaz Ahmad, Parchi Clerk P.W.18 which disclosed that the accused had brought the deceased in an injured condition to the Mayo Hospital on 17-6-1983 at about 10-00 p.m. The learned Judge held that the same was of no consequence, as both the said witnesses had failed to identify the accused in Court as the same Muhammad Malik son of Malik Yazdani whose name had been entered in the medico-legal report and in the Patient Register. The learned Judge held that even assuming that the accused had so brought the deceased to the hospital, he would not have done so unless the occurrence was accidental.
' For all these reasons, the learned Judge held that neither there was any direct evidence as regards the murder of the deceased by the accused nor the circumstances relied upon by the prosecution excluded the hypothesis of his innocence and that as such no exception could be taken to his acquittal under section 302, P.P.C.
(B) With regard to the accused's case under section .364, P.P.C., the learned Single Judge held as follows:--
(1) By virtue of the ingredients contained in section 362, P.P.C. Relating to the definition of abduction, the accused could not be stated to have induced the deceased in any manner to accompany him from his house in the car in question, as there was no evidence that he had ever spoken or. Asked the deceased to accompany him, whereas the inducement had actually come from Second Lt. Adil Naveed.
(ii) That Second Lt. Adil Naveed who had allegedly induced the deceased to accompany him in the car with the accused and had so succeeded and was the principal accused was not prosecuted and that in his absence Muhammad Malik accused could not be convicted for either sharing common intention/object or being the abettor or conspirator or being otherwise vicariously liable.
(iii) In view of the ingredients of section 364, P.P.C., there was no evidence that the deceased at the time of his abduction had been so abducted in order 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 could not be. Excluded and something having intervened from the time he was taken to the time he met his death had not been explained. In these circumstances, the learned Single Judge granted the benefit of doubt to the accused.
17. Being aggrieved by the above acquittal, Sh. Abdul Hameed complainant petitioned this Court.
For leave to appeal, which leave was granted to consider the total evidence.
18. We have heard the arguments of the learned counsel for the appellant, the convict/respondent and the State and have perused the record. .
19. On being questioned as to whether the learned counsel for the appellant, would like to press the case regarding culpability under section 302 or 364, P.P.C. The learned counsel for the appellant submits that he would press the case under section 364, P.P.C.
20. In respect of the same the learned counsel has again referred to the same items of evidence referred to by the learned Single Judge in para 16-B above, which need not be repeated.
21. As regards the evidence of Mst. Rehana Hameed P.W.10, Abdul Hameed P.W.11, Taj Din P.W.12 and Imran Hameed P.W.13, there is nothing which shows that the accused/respondent even talked to Rizwan Hameed deceased or verbally asked or beckoned him to go with him in his car. In fact Second Lt. Adil Naveed requested the deceased to accompany them in order that some dispute between him and the accused/respondent could be settled. There is, therefore, no evidence to show that the accused respondent by for compelled or by any deceitful means induced the deceased to leave his house.
22. Further, nothing appears from their evidence to show that at the time when Second Lt. Adil Naveed induced the deceased to accompany them in their car that it was done in order that he would he murdered or may be so disposed of as to be put in danger of being murdered. The evidence shows that the deceased and the accused respondent had been fast friends from their school days, that 4-5 months prior to the occurrence their relations were not good as the accused/respondent used to waste the time of the deceased whenever he visited him, which the deceased did not like that the deceased did not like to meet him as the accused/respondent had assumed a vagabond behaviour, that at one time the two had quarrelled in the deceased's house when the accused/respondent had hurled chairs and tables at the deceased, which the deceased had warded off successfully, that the cause of this rumpus was that the accused/respondent wanted the deceased to accompany him,which the deceased did not like and had refused, and that finally Mrs. Rehana Hameed P.W.10, the mother of the deceased, had ticked of the accused/respondent and had told him to leave the house and not to come again. These incident, even if all accepted, do not lead to the unequivocal inference that the accused/respondent was so inimically inclined to the deceased that he would have looked for an opportunity to kill him. There is no direct proof or evidence as would show that the accused/respondent was motivated by some impelling fact, that he intended to murder the deceased or was so disposed as to put him in danger of being murdered. The prosecution has to show such unimpeachable facts and circumstances which would leave a reasonable man of ordinary prudence to the irresistible conclusion that the object or the purpose of the alleged abduction was that the victim would be murdered or with the object that murder would be the likely result. The circumstances brought on the record do not lead to any such irresistible conclusion.
23. The fact that there was a time lag of 5-8 hours between the time when the deceased was taken from his house to the approximate time when he was allegedly done to death, shows that it was not so short as would raise the presumption that the accused/respondent alone would have committed the offence and the burden of showing that it was not so can be placed on his shoulders. The margin of time being fairly large, no such presumption can be raised against the accused/respondent, nor can he be asked to displace the same.
24. The fact that the accused/respondent brought the deceased to the Mayo Hospital in an injured condition at 10-00 p.m. On 17-6-1983, does not stand clearly established as both Dr. Tanvir Ahmad P.W.5 and Niaz Ahmad, Parchi Clerk, P.W.18 could not identify the accused/respondent in the dock as the person who had given his name as Muhammad Malik son of Malik Yazdani, which name they had entered in the medico-legal report and Patient Register respectively. The view of the learned Single Judge that had the accused/respondent committed the crime, he would not have reported his name to the hospital authorities when getting the deceased admitted there, or that assuming he had, the possibility that it was not culpable murder but accidental, cannot be totally excluded, considering that Niaz Ahmad Parchi Clerk, P.W.18 also stated that the deceased had informed him that he had received injuries accidentally and so did not desire police proceedings, as a result of which he had not sent the message to the police station till he had died.
25. The ultimate finding of the learned Single Judge, therefore, that the accused/respondent was not liable under section 364, P.P.C. Appears to be based on a proper appraisal of the evidence on the record and the law on the subject. The observation of the learned counsel for the respondent that all the grounds on which the High Court has purported to acquit the accuse are not supportable from the evidence on the record, this Court should be reluctant to interfere even though upon the same evidence it may be tempted' to come to a different conclusion, cannot be ignored. We cannot avoid the vie that the findings of the learned Single Judge are neither arbitrary nor fanciful. G Taking all the circumstances into consideration, we see no ground for interference.
26. There being no merit in this appeal, the same is dismissed.