2 0 1 1 M L D 2 3
[Quet ta]
Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ
AURANGZEB ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 29 of 2008, decided on 29th September, 2010.
Anti -Terrorism Act (XXVII of 1997) ---
----S. 7(e) ---Act of terrorism committed by kidnapping for ransom ---Appreciation of
evidence ---Benefit of doubt ---Firearm allegedly possessed by the accused was not
recovered from him at the time of arrest nor on his disclosure or pointation later ---None
of the official wit nesses testified to the presence of private witness on crime scene nor the
prosecution explained the reason for his presence at the place of occurrence making the
recovery highly doubtful ---Material contradictions in the statements of witnesses were not
considered by the Trial Court ---Garden where abductees were allegedly kept belonged to
the accused, reason to believe his presence in the garden existed unless the contrary was
proved by the prosecution ---Sequence of events did not appeal to prudent mind in that the
accused could not be expected to release one of the abductees who later informed the
Police and got them arrested ---Accused, as per prosecution story, could not be believed to
have attempted to escape by car when he could flee on foot as the co -accused had done ---
One abductee failed to identify the accused while the other was not produced in the court
without assigning any reason --Investigating Officer failed to investigate the case properly
and did not associate any independent witness from the lo cality ---Prosecution could not
prove the alleged offence without reasonable doubt ---Benefit of doubt was exercised in
favour of the accused; his appeal was accepted setting aside the conviction and sentence.
Muhammad Aslam Chisit and Muhammad Mohsin Jave d for Appellants.
Sardar Ahmad Haleemi Special Prosecutor ATA for the State.
Date of hearing: 26th May, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---The appellant feeling aggrieved of judgment
dated 29 -2-2008 made by Special Judge Anti -Terroris m Court -II, Quetta, whereby finding
him guilty of the offence he was awarded punishment to suffer imprisonment for life and
also confiscation of his movable and immovable properties, preferred instant appeal with
contention the trial court wrongly assumed that the incident of abduction is undisputed,
which causes serious prejudice to him. The trial court did not consider the evidence of
Mst. Shakira, who did not identify the appellant as accused person. Further, the case was
not covered under section 365 -A, P.P.C. The evidence is not properly appreciated. He
prayed for his acquittal while setting aside of the impugned judgment.
The counsel for the parties are heard and record is perused. As per counsel for the
appellant the abductee Zarmina has not been pr oduced, while no defence plea has been
taken. While as per State counsel the abductees were recovered from the custody of the
accused, while this fact has not been denied. Also the incident is not denied. Further,
prosecution is not bound to produce each a nd every witness; rather the articles are
produced during course of evidence.
As per record a report was lodged on 6 -11-2007 by one Sanaullah with assertions that he
was proceeding along with Shakira and Zarmina in his car, when they reached near Killi
Mughtian at 3 -00 p.m. where he stopped the car and came out for getting water for
drinking, suddenly three persons namely Aurangzeb, Mohibullah and Hakeemullah armed
with Kalashnikovs took them forcibly into the garden, while Aurangzeb demanded for an
amoun t of one lac rupees, as he was not in possession of so much amount, therefore, he
was allowed to go to Quetta to make arrangement. He on foot reached at main road called
Bostan Police, whereupon Ghulam Nabi D.S.P. and Abdul Salam S.H.O. Bostan along
with p olice personnel reached at the site, he made pointation of the room where the girls
were detained. Suddenly accused Aurangzeb while driving his (complainant's) car rashly;
tried to escape, but collided with Police Mobile bearing No.PN -6679, thereby damaged
both the cars. Accused Aurangzeb was apprehended at the spot, while the remaining two
made their escape good. After completion of investigation case was challaned. After
fulfilling the legal formalities the remaining accused persons namely Hakeemullah and
Mohibullah were declared as proclaimed offenders. Charge was framed on 8 -12-2007
both against appellant and absconding accused persons. On denial of the charge, evidence
was called; on completion of trial finding them guilty of the offence they were award ed
punishment of life imprisonment with order of confiscation of their movable and
immovable properties in favour of the State. Feeling aggrieved of his conviction instant
appeal has been filed.
The perusal of record reveals that the offence alleged agai nst the appellant and
absconding accused persons was of abduction for ransom, mischief for causing damage or
grievous damage to property/ official vehicle. They are only convicted for the offence
under section 7(e) of Anti -Terrorism Act, 1997. In support o f prosecution case the
complainant Sanaullah appeared and got recorded his statement as P.W. According to him
he along with his friends Zarmina and Shakira proceeded towards Kuchlak from Quetta at
1-00 p.m. While ahead from Kuchlak near Mughtian they stopp ed, three armed persons
came there asked him to step out, he did the same, whereupon one of them boarded on
driving seat and took them towards garden, where they were got out of the car, he was
kept standing outside, while his friends were taken inside. Th ey asked him to pay one lac
rupees, whereafter, they would release the girls. The demand reached and settled up to
Rs.70,000. He get out from there and on reaching at Road contacted SP Pishin and S.H.O.
Bostan. On the same S.H.O. reached at the site and to ok police at garden, where girls
were present. Further, asserted that accused (appellant) Aurangzeb was trying to escape in
his complainant) car, which collided with police mobile, thus stopped. S.H.O. arrested
him, while remaining two namely Mohibullah an d Hakeemullah were succeeded to
escape. During course of cross -examination he admitted that he took both the girls
without obtaining permission of their families. He further admitted that on 6 -11-2007 he
has no concern or relation of any sort with the appe llant, nor he was familiar with him
(appellant). P.W.3 Amir Muhammad A.S. -I. is also witness of the occasion. According to
him on receiving information about the incident on telephone of D.S.P. they reached at
the site with S.H.O. Bostan Abdul Salam along with D.S.P., where a car was coming from
garden which collided with their car and damaged, they arrested the appellant, from
whose possession one magazine along with 30 live cartridges were recovered, which were
taken into custody. He signed memo of recove ry Exh.P/3 -A and Exh.P/3 -B as witness.
Further, at site accused Hakeemullah was holding Kalashnikov in his hand and
Mohibullah escaped from site. The mentioned D.S.P. Ghulam Nabi appeared in the court
and recorded his statement as P.W.6. As per his stateme nt on 6 -11-2007 he left for his
home at 1 -00 p.m. while at 5 -00 p.m. S.H.O. Bostan Abdul Salam informed him on
telephone about - abduction of two girls, one boy and of a corolla car by three persons. He
reached at the site. The abductee boy was present ther e, who told that the abductor
demanded Rs.70,000 as ransom from him, while let him go to bring the money and locked
the girls in a room in garden. Meanwhile, a white coloured Corolla car approached them
in speed, which was identified by the boy, which hit the police mobile thereby damaging
both the vehicles. The appellant/accused was apprehended, both appellant and the girls
were brought to Thana at Bostan. P.W.7 Abdul Salam is the mentioned S.H.O., who is
also Investigation Officer, deposed that during cou rse of investigation he recovered the
abductees Shakira and Zarmina under supervision of D.S.P. He produced site map,
memo of recoveries and challan. During course of cross -examination he deposed that
the complainant approached him on his mobile phone near ly at 3 -00 p.m. whereupon he
informed his superior Saleem Lehri SP and Malik Ghulam Nabi D.S.P. Bostan. He
further deposed that he handed over custody of abductee girls to their parents on 7 -11-
2007 on order of Judicial Magistrate, where they were produced . One of the abductees
Mst. Shakira appeared as P.W.4. in her statement stated that she along with Zarmina
went with Sanaullah, the complainant, for drive in his car, when they reached ahead of
Kuchlak, a car came and stopped their way and asked Sanaullah to come down and
asked him about the girls, who replied that he is taking them to their home. Said persons
were three or four in number having arms, while muffled their faces, she did not know
their names, who demanded for one lac rupees for releasing them (girls), they were
brought into room in garden and Sanaullah was let out, after one hour police came there
and took them to Police Station Bostan. She showed her inability to recognize any of
the accused persons. She was declared as hostile. But she denie d all the suggestions put
to her. Though as per Investigation Officer medical examination of complainant,
abductees and accused Aurangzeb was carried out, but no medical or chemical analysis
report has been brought on record.
The trial court while analyz ing the evidence produced arrived to the conclusion that the
incident of abduction of two ladies, their recovery and arrest of accused/appellant are
not disputed along with the fact that the house was situated in the garden belong the
appellant. It has bee n wrongly assumed that these facts are admitted, rather they are
required to be established by the prosecution, irrespective of the pleas taken by the
accused/appellant in his defence. P.W. 1 Sanaullah is the complainant and one of the
abductees. He while reporting the matter named all the three accused persons
specifically, but during course of cross -examination he showed having no friendly or
business relationship or even acquaintance with accused/appellant before the day of
incident. Despite the same he specified all the three accused persons in his written
report quite strangely. Apart from P.W.1, the complainant, P.W.3 Amir Muhammad,
P.W.6 Ghulam Nabi D.S.P., P.W.7 Abdul Salam S. -I./ S.H.O. are witnesses of the
occasion. According to all these witnesses the appellant tried to escape from the site in
car of the complainant while driving it rashly, which collided with police mobile,
whereupon he was got arrested. Only P.W. 1 and P.W.3 deposed about presence and
escape of the remaining two accused persons, while P.W.6 and even P.W.7 the
Investigation Officer are completely silent about presence or escape of both the
absconding accused persons. As per P.W.3 Amir Muhammad Khan the remaining two
accused persons escaped from the site on foot. Despite the fact th at P.W.3 was one of
the members of the police party who reached at the place of incident in supervision of
P.W.6 Ghulam Nabi D.S.P and P.W.7 Abdul Salam S.H.O./Investigating Officer, but
both these witnesses neither saw the absconding accused persons as th ey have neither
mentioned their presence, nor described the mode of their escape. In addition as per
P.W. Sanaullah while they were standing near Mughtian by road -side three armed
persons approached them and asked him to step out, while one of them drove h is car
and took them into the garden. But one of the abductees namely Shakira P.W.4 while
recording her statement deposed that while they were proceeding a car reached there
and blocked their way and asked Sanaullah (P.W.1) to step out. They contradict eac h
other about the way the incident occurred. Despite declaring her hostile she was not
cross -examined to this effect.
Furthermore, as per F.I.R. time of incident is entered as 3 -00 p.m. while time of report
is nearly 5 -30 p.m. P.W.1 Sanaullah, being the complainant, stated that at 1 -00 p.m. he
along with his friends Shakira and Zarmina, the abductees, left for Kuchlak while
reaching near Mughtian the incident occurred. He did not mention the time of incident
in his statement. While P.W.3 Amir Muhammad dep osed in cross -examination that they
left from Thana at 3 -00 or 3 -30 p.m. while reached at the site at 4 -00 or 5 -00 O'clock
despite the fact the place of occurrence is only 5 kilo meters away from Thana. While as
per P.W.6 he was informed about the incident on 5-00 p.m. whereupon he reached at the
site. Contrary to the same the complainant contacted him on telephone nearly 3 -00
O'clock, whereupon he informed his superior namely Saleem Lehri SP and Malik
Ghulam Nabi D.S.P. He did not disclose the time when he reached at place of incident.
As per P.W.7 he -on getting information about the incident informed his superiors
including D.S.P., P.W.6, this means he informed him immediately. But as per P.W.6 he
was informed at 5 -00 p.m. the time in between 3 -00 p.m. to 5-00 p.m. is not explained.
Furthermore, he (P.W.6) stated that he reached at the site and the boy (complainant)
told him about the facts, but the complainant (P.W.1) is silent about presence of P.W.6,
rather he only deposed that on his telephone after som e time the police reached at the
place told by the S.H.O. This means that S.H.O. was either present at the site or he sent
the police personnel without accompanying them. In addition as per complainant
(P.W.1) Sanaullah he through his mobile telephone call ed S.P. Pishin and S.H.O.
Bostan, while he got their numbers from 15 Quetta. But contrary to the same as per
P.W.3. Amir Muhammad through telephone D.S.P. got the information about the
incident, whereupon they along with S.H.O. Bostan and D.S.P. reached at the site.
While as per said D.S.P. (P.W.6) S.H.O. Bostan informed him on telephone about the
incident and when he reached at the site the S.H.O. and other staff was already present
at the site, while as per Investigating Officer/S.H.O. (P.W.7) the complai nant contacted
him on his mobile phone. He further deposed that before day of incident he was not
familiar with the complainant. It is again astonishing that complainant though not
acquaintance with the S.H.O. despite the same he managed to get his mobile phone
number that too from 15 Quetta, the emergency cell. Moreover, as per official witnesses
P.W.3 and P.W.7 on search conducted at the site of the accused from his pocket of
shalwar a magazine of Kalashnikov loaded with .30 live cartridges were recovered ,
which were taken into custody. But P.W.1 complainant and P.W.6 are ignorant of the
fact. Further, the statement of P.W.3 being witness of recovery and also signatory of the
memo of recovery, as per his own showings, were recorded on next day of recovery.
The reason for the same is not mentioned.
It is also to be noted that despite alleging recovery of magazine and live cartridges the
Kalashnikov was not recovered from possession of the appellant neither at time of his
arrest nor thereafter on his disclo sure or pointation. It is further to be noted that memo
of recovery of above mentioned articles was prepared which is present on record as
Exh.P/3 -A and Exh.P/3 -B. Two witnesses namely Amir Muhammad and Faisal Ahmed
signed them. Amir Muhammad being police personnel appeared as P.W.3, while the
second witness is a private person shown as resident of Kasi Killa, Quetta. None of the
witnesses deposed about presence of any private person at the occasion, who was made
witness. Even the prosecution has not explai ned the occasion of presence of this witness
at site being not resident of the area. This fact makes the recovery doubtful.
Keeping in view the evidence produced by the prosecution though the offence alleged
against the accused/persons i.e. kidnapping fo r ransom is a heinous crime, but the
prosecution has failed to establish the same free from doubt due to defective
investigation and defective prosecution, as material contradictions as mentioned in
preceding paras appeared in statements of the witnesses, which have not been
considered by the trial Court. Though the appellant did not deny his presence and his
arrest from the alleged site, but it is to be noted that as per P.W.3 and P.W.7,
Investigating Officer, the alleged garden is property of appellant Au rangzeb, as such his
presence therein has the reason, the contrary is required to be proved by the
prosecution. Moreover, the sequence in which the incident is alleged to have been
occurred is not appealing to the prudent mind. As per prosecution case the complainant
and the two girls were taken into garden, whereby the accused persons after confining
the girls let the complainant go to make arrangement for money, whereupon he
(complainant) being in possession of mobile phone called the police, who arrested
appellant Aurangzeb trying to flee from the site in car of the complainant, while
remaining two escaped on foot. It is hard to believe that the accused persons remained
in the garden after setting the complainant free, providing him opportunity to approac h
the police, despite having the chance and time to change their place they kept waiting in
the garden for return of the complainant. Furthermore, as per map of site Exh.P/7 -B
there is only one way leading to the main road from the alleged house, from wher e
abductees were recovered and on said lane the police personnel were approaching, there
seems to be no occasion for the appellant to make effort for escape from the same that
too in car of the complainant, rather he may have ran away on foot in the garden as his
other two accomplices did. It is also to be observed that one of the abductees Mst.
Shakira P.W.4 though appeared before the court while got recorded her statement, but
she refused to identify the appellant as the real culprit. She was declared hos tile. In the
circumstances the prosecution was required to produce the second abductee Mst.
Zarmina, but she was not produced in the court without assigning any reason. The
Investigation Officer failed to investigate the case properly. He did not collect t he
evidence from the place of incident, nor associated the residents residing nearby.
Despite producing the F.I.Rs. previously lodged, wherein the appellant was implicated,
the result of the same have not been brought on record. The trial court has rightly held
them of no consideration.
In view of above discussion the prosecution has failed to make out any case against the
appellant for the offence under section 6(2)(e) of Anti -Terrorism Act, 1997 free from
reasonable doubt, therefore, exercising benefit of the same in favour of the appellant,
while accepting the appeal, the conviction granted under section 7(e) of Anti -Terrorism
Act, 1997 to appellant Aurangzeb son of Salahuddin in case pertaining to F.I.R. No.15
of 2007 of Police Station Bostan through j udgment dated 29 -2-2008 of Special Judge,
Anti -Terrorism Court -II, Quetta is hereby set aside. Appellant Aurangzeb be relased at
once, if not required in any other case.
A.R.K./106/Q Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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