' RAJA ABDUL AZIZ BHATTI, J.--- Through the present appeal the appellants Muhammad Saleem Qadir, Abid Khan and Naushad Alam have challenged the judgment, dated 5-6-1995 passed by Mr. Lutaf Ali Malik, Judge Special Court No,1, Suppression of Terrorist Activities, Rawalpindi Division, Rawalpindi, whereby all the three appellants have been convicted under section 365-A, P.P.C. Read with section 34, P.P.C. And sentenced each one of them to life imprisonment with a fine of Rs,1,00,000 each, in default whereof to further undergo one year's R.I. Each. However, benefit of section 382-B, Cr.P.C. Has been awarded to all the three appellants.
2. Brief facts of the case are that all the three appellants were tried by the Court in a case under aforementioned sections registered at Police Station West ridge, Rawalpindi. This case F.I.R. No,10, dated 3-1-1995 was originally registered under section 365, P.P.C. Only. But later on section 365-A, P.P.C. Was added, during investigation. According to prosecution, on 3-1-1995 at about 5-15 p.m.
Tariq Abbasi, complainant, was present at Petrol Pump, Peshawar Road, Rawalpindi. Malik Nazir, Manager, Shahzad Akram Salesman, and a customer Abdul Khanan were also present at the Petrol Pump. Ashraf Abbasi, the alleged abductee was also present there but he was busy in getting oil tanker emptied. At that moment a car bearing No,PRM-323, driven by Muhammad Saleem Qadir accused came there. Abid and Naushad accused were also sitting in the said car. Saleem Qadir accused was armed with klashnikov. Naushad accused was armed with pistol and Al id accused was armed with Danda. They all got down from the car. All the accused went towards Muhammad Ashraf Abbasi. Saleem Qadir accused gave butt blows to his brother Ashraf Abbasi. Naushad Alam accused had placed his pistol on his tample and had dragged Ashraf Abbasi and forcibly took him to the car. Saleem Qadir accused sat on the driver's seat and started it. Abid Khan and Naushad Alam accused had seated themselves on the two sides of Muhammad Ashraf Abbasi on the rear seat of the car and that they drove towards southern side in Lane No,7. Tariq Abbasi, complainant went to the police station to lodge report through an application Exh.P.A. While he was on his way to the police station, police met him and he narrated all the incident. He had given his application Exh.P.A. Which bears his signatures. According to him this incident was witnessed by Shahzad Akram, Malik Nazir and Abdul Khanan. They all went towards the Lane No,7 alongwith the police in a police van. The moment, when they reached near the banglow/Kothi of Muhammad Saleem Qadir in Lane No,7, the same Car No,PRM-323 came out from the main gate of the Kothi. Saleem Qadir appellant was driving the car while Ashraf Abbasi was sitting on rear seat of the car in between Abid and Naushad appellants. Saleem Qadir and his co-accused tried to run away at that moment when they saw the police party but they were over powered. Ashraf Abbasi the alleged abductee was recovered from their custody.
3. According to the prosecution, the motive for the occurrence was that Saleem Qadir had threatened Ashraf Abbasi to abandon his partnership with Iqbal Qadir. Hence Ashraf Abbasi was abducted by Saleem Qadir and demanded from him to abandon partnership with Iqbal Qadir and that he should hand over the possession of the petrol pump alongwith all cash, petrol etc. To Saleem Qadir accused/appellant but he refused. For this reason the alleged abductee was taken to Peshawar area with a view to settle the matter with him there. According to the prosecution, the car was searched and rifle alongwith ammunition were also recovered. After the registration of the case, it was investigated by Abdul Ghani, S.-I. All the three accused were charged under section 365-A, P.P.C. They were examined but they did not plead guilty, hence they were tried in this case.
4. The prosecution produced number of witnesses. Tariq Abbasi P. W.1, the complainant of this case, produced by the prosecution in support of the complaint Exh.P.A. He admits that he is real brother of the alleged abductee and is owner of House No,466/1-A, whereas the place of occurrence is located at a distance of 2/3 Kms. From his house. In cross-examination it was suggested to him that he has deposed against the accused because of that alleged abductee is his real brother otherwise he was not present at the petrol pump at the time of alleged occurrence. The presence of Shahzad Akram has not mentioned in the application Exh.P.A. At the time of alleged occurrence.
This fact has been ,admitted by this P.W. However, he has stated that his brother was working with Abdul Qadir father of Saleem Qadir appellant on contract for the last 17 years. He also admits that his real brother Ashraf Abbasi was also working with Iqbal Qadir for the last 1 or 1-1/2 years. He deposed that petrol pump is located at thickly populated area but nobody witnessed the occurrence. He has further admitted that there are certain shops adjacent to the house of Saleem Qadir. It is also mentioned in the statement of this witness that after the alleged abduction, he started writing application to lodge report to the police station while sitting at the Petrol Pump. He had not sent any other person to the police station to lodge report in spite of the fact that the aforesaid persons were also present there.
' According to this witness statements of Shahzad Akram, Abdul Khanan and Malik Nazir were not recorded in his presence, under section 161, Cr.P.0 in spite of the fact, that he remained with the police till 18-15 p.m. His statement was recorded at the place of arrest of the accused, at 4-45 p.m.
He stated that Saleem Qadir appellant did not try to run away after coming out of the car, whereas the police party had not sent any person in the Lane throughout the period they stayed at the petrol pump. He denied the suggestion that klashnikov was got planted by Iqbal Qadir while it was in possession of his brother Ashraf Abbasi. He also denied the suggestion that no occurrence whatsoever had taken place and the whole story was concocted on behalf of Iqbal Qadir and Ashraf Abbasi, who were inimical towards the accused/appellant Saleem Qadir.
5. P.W.2, Dr. Tanvir Akhtar, M.O., D.H.Q. Hospital Rawalpindi had examined Muhammad Ashraf Abbasi on 3-1-1995 at 9-00 p.m., and observed that the patient was complaining pain on left side of the chest and also complained swelling on left thumb. On external examination, there was a bruise 2 x 10 c.m. At front of the chest on left lower side. There was swelling on left thumb with tenderness and movements were restricted. None of these injuries were declared grievous. All the injuries were kept under observation. However, according to Doctor these were caused with blunt weapon. Doctor opined that there was possibility of such bruise being self-suffered on the chest. There was no injury on the left thumb, as well as possibility of this injury also being self-suffered cannot be excluded. Ashraf Abbasi never admitted in the Hospital for treatment.
6. P.W.3, Abdul Khanan stated that he went to Qadir Motors Petrol Pump, Peshawar Road for purchasing mobile oil on 3-1-1995. He had purchased a tin of mobile oil. At 5-15 p.m., while he was present there a car bearing No,PRM-323 came there. The car was being driven by Saleem Qadir appellant. Whereas his two co-accused were also sitting in the car. All the three accused came out from the car. Saleem Qadir accused was armed with klashnikov, Naushad Alam was armed with pistol and Abid was armed with Danda. He further stated that at that time Ashraf Abbasi was busy in getting the oil tanker emptied. Saleem Qvlir accused gave two butt blows to Ashraf Abbasi, Naushad Alam accused had placed his pistol on his temple and they had forcibly put Ashraf Abbasi in the car, and taken away towards Lane No,7. According to him the occurrence was witnessed by Malik Nazir, Tariq Abbasi, Shahzad Akram, who were already present there. He has further stated that Tariq Abbasi had brought the police at the spot after half an hour. The police had inquired from them and they had told the incident to the police. The police prepared site plan and they accompanied the police and went towards Lane No,7. When they reached there, they saw that a car was coming out from the house of Saleem Qadir accused/appellant, from opposite direction. Way was blocked thus the car was stopped and was taken into possession. The accused tried to run away on seeing the police party. They were also taken into custody. Ashraf Abbasi, the alleged abductee was found in the car sitting on the rear seat alongwith Abid Khan and Naushad Alam accused/appellant. All the three accused were arrested then and there. A klashnikov was also recovered from the car which was lying in between the front seats of the car, alongwith extra magazine. These two also were taken into possession and recovery memo. Also prepared therefor.
This witness admittedly is resident of House No,256 Street No,2, Sadiqabad, Muslim Town, Rawalpindi, which is quite at a distance from the place of occurrence and his purpose to come for the place of occurrence as stated by him is that he came there to purchase mobile oil. Certain contradictions have been made by this witness during cross-examination and he was duly confronted with his previous statement recorded under section 161, Cr.P.C. The fact that he purchased one tin mobile oil from Qadir Motor Petrol Pump does not find mention in his previous statement. As such, he was confronted with this situation. He admits that his place of residence is about 7/8 miles away from the place of occurrence and there are about 20 petrol pumps on the way. He denied the suggestion that he being servant of Iqbal Qadir deposed against the accused in this case. Otherwise nothing had been done in his presence.
7. P.W.4,. Muhammad Ashraf Abbasi, the alleged abductee, states that he is running Qadir Petrol Pump on contract basis since 1980. Abdul Qadir being Managing Director of the said petrol pump was in partnership with him. According to him, the incident was taken place on 3-1-1995 and he was abducted by the accused. The purpose of his abduction as per statement of this witness was that Saleem Qadir accused had demanded that he should hand over the possession of the petrol pump alongwith all the cash and petrol etc. He had also demanded that he should abandon partnership with Iqbal Qadir, which he had refused. He has admitted the presence of Malik Nazir, Manager of the Petrol Pump but this witness has not been produced by the prosecution, whose presence could be very natural. He has also mentioned in his statement that Saleem Qadir came to the petrol pump a day earlier with klashnikov and placed it on his head and demanded the possession of the petrol pump etc. He also demanded to abandon the partnership with Iqbal Qadir, failing which he was warned. He admitted during cross-examination that Abdul Qadir deceased had five companies besides this petrol pump. Qadir Motors (Pvt.) Ltd., Peshawar Motors Ltd., and Qadir Filling Station belonged to the deceased. He was suggested that Maxil Ltd. And Asphan Autos Ltd. Also belong to him, but he showed his ignorance. Iqbal Qadar real elder brother of Saleem Qadar accused/appellant became Managing Director of all the companies and took over the charge of all the companies. He was suggested that Iqbal Qadar forcibly occupied all these companies in exclusion to all others. He also denied the institution of civil suit against Iqbal Qadar and regarding the other property in the Court of Mr. Zafar Hussain, Civil Judge, Rawalpindi. He admitted that some civil litigation was still pending between Iqbal Qadar and Saleem Qadar etc. He admitted that there was a Kalandra under section 107/150, Cr.P.C. Against Iqbal Qadar and Saleem Qadar and they were bound down for maintaining peace. Even a Kalandra under section 145, Cr.P.C. Against Iqbal Qadar and Saleem Qadar was filed in the Court of Ilaqa Magistrate, regarding the dispute about possession of ancestral property. This witness had categorically stated during cross-examination that "I was all alone, when the tanker was being emptied. I do not remember having stated before police that Malik Nazir, Tariq Abbasi, Shahzad Akram and Khanan customer were present at the time of occurrence or that they had seen the occurrence. Confronted with D.C., where it is not so recorded". From this statement it is crystal clear that except Ashraf Abbasi nobody was present there. He denied the presence of the other prosecution witnesses at the time of occurrence. He denied the suggestion that a false and fictitious story has been fabricated to implicate the accused/appellants.
8. P.W.5, Shahzad Akram narrated that occurrence was taken place on 3-1-1995 in the presence of Malik Nazir, Manager, Ashraf Abbasi, Khanan and Tariq Abbasi P.Ws. He stated that Saleem Qadir having klashnikov with him came to the place of occurrence in a car alongwith other co-accused and abducted Ashraf Abbasi and took him towards Lane No,7, where the police arrested him and klashnikov was also taken into possession. He has stated that he mentioned before the police that he was salesman at the petrol pump. But it was not so recorded in the previous statement. Number of contradictions were pointed out during the cross-examination and duly confronted with the previous statement of this witness.
9. P.W.6, Abdul Qayum, A.S.-I. He even deposed that recovery was affected by the S.H.O./Investigating Officer.
10. P.W.7, Muhammad Sharif, A.S.-I. Stated that he was working as A.S.-I./Moharrar at Police Station Westridge, Rawalpindi. He received complaint Exh.P.A. Sent by Abdul Ghani, S.-I./S.H.O. And drafted formal F.I.R. Exh.P.A./1 in accordance with contents of the complaint. He admitted that no entry with regard to departure of Abdul Ghani, S.-I./S.H.O. In the matter was recorded in the daily diary.
11. P.W.8, Abdul Ghani, S.-I./Investigating Officer, Police Station Westridge, Rawalpindi, stated that on 3-1-1995 while he was on patrol duty on official vehicle, he reached near Qadir Motors Petrol Pump alongwith certain police officials, Tariq Abbasi, complainant produced before him complaint Exh.P.A. After appending endorsement thereon he sent the same to the police station for registration of the case. He carried out investigation on the spot and recorded the statements of the P.Ws. Under section 161, Cr.P.C. Meanwhile an information was conveyed to him about Ashraf Abbasi abductee. Thus, he alongwith police party, complainant, Abdul Khanan and Shahzad Akram P.Ws. Proceeded towards Lane No,7. He has stated that when they reached near the gate of Kothi of Saleem Qadar, he stopped the car of the accused who along with other co-accused were coming in the car. According to him Ashraf Abbasi was recovered and Saleem Qadar and his co-accused were also taken into custody while they were sitting in the car. On their personal search certain articles were recovered from them, which were taken into possession. He stated that he sent a wireless message with the request that Nakabandi should be conducted to the Wireless Control Station. He was suggested that Saleem Qadar accused was severely beaten, though he denied that. It was also suggested to him that he concocted and fabricated story on behest of Iqbal Qadir against Saleem Qadar to implicate in this case falsely and it was done with a view to keep Saleem Qadar away from demanding share of the property left by his deceased father.
12. After the close of the prosecution evidence, the statements of all the accused were recorded under section 342, Cr.P.C. They refused to make statements under section 340(2), Cr.P.C. The detailed statement has been given by Saleem Qadar accused, wherein he stated that:-- "On the demise of my father, my brother Iqbal Qadir usurped all the property of our late father to the exclusion of all other heirs. Upon which, litigation started and I actively pursued the cases for myself and on behalf of other heirs. Things became so bitter that the matter went to the police and we were bound down under section 107/151, Cr.P.C. And proceedings under section 145, Cr.P.C. Were also taken between the parties. Iqbal Qadir made all efforts to force me to forego my claim as well as the claim of others but I did not do so. Iqbal Qadir conspired with local police and his servant Muhammad Ashraf Abbasi, P.W. And I was taken along with my servants, co-accused, from my house on 3-1-1995 at 4-00 p.m. And the car to the Police Station West ridge. There I was beaten by Abdul Ghani as well as by Iqbal Qadir and Ashraf Abbasi to sign certain papers which I declined.
The present story is concocted in order to cover up the high handedness committed by the police and Iqbal Qadir. The Kalashnikov belongs to Iqbal Qadir and used to be in control of Muhammad Ashraf Abbasi P.W. When I was sent to Jail, I was medically examined by the Jail Doctor. The other P.Ws. Are also personal servants of Iqbal Qadir and have deposed falsely at his behest."
13. After recording the statements of the accused/appellants D.W.1 Asif Aftab Qadir was produced by the defence. He deposed that in House No,400-A/1 Muhammad Saleem Qadir alongwith his wife and mother, besides himself and his brother reside there. On 3-1-1995 at 4-00 p.m., on knock at the main gate of the house, he went there. Abdul Ghani, S.-I. And some other police officials were present at the main gate. Abdul Ghani, S.-I. Asked him to call out Saleem Qadir. He did so. Abdul Ghani, S.-I. Told Saleem Qadir that there was a complaint against him by his brother Iqbal Qadir.
Abid Khan and Naushad the servants of Saleem Qadir were also called out on the asking of Abdul Ghani, S.-I. He called them out. All the three were taken to police station. After two hours, this witness reached to the police station to inquire about the matter. He was told by Ghani, S.-I. That a case had been registered against all the three persons. This witness stated that Saleem Qadir is his uncle. He denied the occurrence as alleged by the prosecution.
14. D.W.2, Dr. Sultan Mahmood, M.O. Central Jail, Rawalpindi stated that there were seven injuries on the person of Saleem Qadir. He proved the medico-legal reports. Similarly he made statement regarding the other co-accused.
15. D.W.3, Chanan Shah, S.-I., Police Wireless Station, Control, Rawalpindi stated that no wireless message was ever sent by Abdul Ghani, S.-I., Police Station Westridge, about any thing was entered in the register from 4-00 p.m. Till midnight, on 3-1-1995. He brought the register with him, which was seen by the Court and returned.
16. Learned counsel for the appellants/convicts seeks acquittal of the accused on the following grounds:--
(a) that in this case motive is an important factor. Admittedly there was a dispute between the parties regarding the property left by Abdul Qadir deceased father of appellant No,1 . Over that property there is a long standing dispute between two brothers Iqbal Qadir and the present appellant No,1/convict Saleem Qadir and others. Civil litigation is pending between the parties. Even they were bound down under section 107/151, Cr.P.C. And also proceeded under section 145, Cr.P.C.
The natural presumption in the matter of property is that Saleem Qadir wanted to have his father's property got divided in accordance with law. He could be accepted much interested in getting his share and also help for the others, whereas the interest of Iqbal Qadir was otherwise;
(b) that Ashraf Abbasi the alleged abductee runs the petrol pump on contract with Iqbal Qadir and he also admits that Iqbal Qadir was Managing Director of the companies left by his deceased father. Iqbal Qadir had total administrative control over all the business/property etc. And none else. In such circumstances, abduction of Muhammad Ashraf Abbasi does not appeal to reasoning as even if he had been taken away to Peshawar, as alleged by the prosecution, the purpose would have been fulfilled by Saleem Qadir etc.;
(c) that Muhammad Ashraf Abbasi was under the thumb of Iqbal Qadir. He could have been used by Iqbal Qadir for fabrication of criminal case with a view to implicate Saleem Qadir etc. To restrain from demanding his share;
(d) that Muhammad Ashraf Abbasi, admittedly, is a contractor of Iqbal Qadir, thus his deposition cannot be believed straightway. Being one of the interested prosecution witness, he deposed against the accused party;
(e) that all the prosecution witnesses are interested. Abdul Khanan tells lie by concealing that he was not a servant of Iqbal Qadir. His falseness is apparent from the statement in which he stated that he lives in Sadiqabad, which is 7/8 miles away from the place of occurrence and there are about 20 petrol pumps in the way. But he came to the petrol pump in question to purchase one tin of mobile oil;
(f) that Muhammad Ashraf Abbasi stated in his statement that he was all alone and nobody was present there. Presence of Malik Nazir, Manager can be natural but he had not been produced by the prosecution. Had he been produced, his statement would have been given due importance? As far as Shahzad Akram is concerned, his name was not mentioned in the F.I.R. Even the presence of Tariq Abbasi is not above board;
(g) that non-production of driver and /cleaner of the Oil Tanker do create some dents in the prosecution case. It is against the normal conduct of the complainant who has started writing complaint for registration of case while his close relative was being abducted. The natural conduct would have been that either the complainant or other persons straightway gone to the police station for lodging report; and
(h) that injuries on the persons of the accused were never explained by the prosecution. The version given by the accused that he was got beaten by Iqbal Qadir and complainant party in the police station seems to be natural.
17. On the other hand, learned State counsel states that there is no delay in lodging the report. It is a day light occurrence, witnessed by the number of prosecution witnesses who deposed in support of the prosecution version and story in toto. He further submits that motive is also mentioned in the F.I.R. And also supported by number of witnesses during trial. On Court's question it was admitted that there is dispute over the property left by Abdul Qadir deceased between Iqbal Qadir and Saleem Qadir etc. Even the litigation is pending in the Court to this effect, has been admitted. He, therefore, seeks that the judgment of the trial Court be maintained.
18. We have heard the arguments of the learned counsel for the parties, perused the evidence and looked into all the documents placed in the judicial file. Judgment of the trial Court also gone through. It is most unfortunate, because in this case two close relatives (brothers) are aggrieved persons, regarding the property left by their father. Due to eldest, Abdul Qadir have been occasioned to act as Managing Director. But he does not like to part away the shares of the others.
This attitude brought civil as well as criminal litigation, involving the family from toe to top, in the manner which is highly deplorable.
19. We entirely agree with the propositions raised by the learned defense counsel, when he submits that motive mentioned in the F.I.R. For the commission of crime, if considered would have been solved the dispute, if property would have been got partitioned. In this case, the role of Muhammad Ashraf Abbasi was just of a person who acted on the dictation of Iqbal Qadir, with a view to create fear for Saleem Qadir etc. To keep themselves away from demanding their shares from Iqbal Qadir.
Very cleverly Iqbal Qadir played on the back, that is the reason that he throughout never appeared before the Court to make any statement in this matter. His remaining presence behind the scene that is in clandestine manner to hoodwink the affairs for the purposes of achieving ulterior motives.
20. Muhammad Ashraf Abbasi and other witnesses have appeared in the Court. We have gone through their cross-examination and number of contradictions have been found. There are number of improvements in their statements. Muhammad Ashraf Abbasi has stated that he was all alone at the Petrol Pump at the time of alleged occurrence. Discarding the presence of other prosecution witnesses, which is totally contradicted with the statements of the rest prosecution witnesses evidence. Abdul Khanan P.W. Tried to show that he was independent witness. He deposed that he has no relation whatsoever with Qadir Family. He has given his address as being resident of Sadiqabad, which is located at a distance of 7/8 miles from the petrol pump. He proceeded from his house with a view to purchase one tin mobile oil and came to this petrol pump.
His statement is replete with lies. He, himself admits that there are about 20 petrol pumps in the way. What was the reason of his coming to this petrol pump and leaving the others located in his way, is really astonishing which leads to reach the conclusion that Abdul Khanan is liar and deposed maliciously in favor of the prosecution. Similarly, the other witnesses have deposed at the instance of Iqbal Qadir. The injuries on the person of accused Saleem Qadir proved by the doctor, is also an important fact to be considered that under what circumstances he suffered and why? Only proper explanation was from the mouth of the accused that he was beaten by S.-I. Abdul Ghani and Iqbal Qadir etc. In the police station, which is plausible.
21. Above all, after having gone through the prosecution and defense version, the occurrence took place for the purpose or object to take over the possession of the petrol pump along with cash and others. In that course, it would have been most appropriate for the accused/assailants to take over the possession of the petrol pump etc. Then and there instead of taking/abducting away Muhammad Ashraf Abbasi to some unknown place. No doubt that some criminals do act abnormally but not to the extent of extraordinary vision. In this case there is no independent witness believable and as such prosecution has failed to prove the case beyond any reasonable doubt.
22. We, therefore, accept the appeal set aside the judgment of the trial' Court and acquit all the three accused. They be released immediately from jail if they are still undergoing sentence awarded to them.