2017 P Cr. L J 568
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
ABDUL WAHAB and 4 others ---Appellants
Versus
The STATE---Respondent
Criminal Appeal (ATA) No. 52 of 2016, decided on 26th December, 2016.
(a) Penal Code (XLV of 1860) ---
----S. 365- A & 34 ---Anti -Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abducting for
extorting property, valuable security, common intention, act of terrorism ---Appreciation of
evidence ---Benefit of doubt ---Prosecution case was that minor son of complainant was abducted
by two unknown persons for ransom and was recovered in a raid from the house of accused
persons ---Entire prosecution case was based on the evidence of complainant, his father and
alleged abductee, which were not enough to m ake basis for conviction of the accused persons ---
Complainant failed to mention the mobile number from which demand of ransom amount was
made to him and did not mention the amount of ransom that had been demanded by the accused
persons ---Specific date and time when he was telephoned for the payment of ransom was also
not mentioned---Complainant simply narrated the story of abduction of his son which story was
narrated to him by his brother ---Statement of said brother of complainant was withheld by the
prose cution and he was not produced as witness nor had been associated in the investigation in
order to bring on record as to who had narrated the story of minor to his brother ---Complainant
had stated nothing about the recovery of his son by the police from the house of accused persons;
he had admitted that accused persons were his close relatives; that they used to visit the houses
of each other; that abductee used to stay in the house of accused persons; that when his son was
missing, he did not enquire from the house of accused persons and that he lodged the report on
the basis of suspicion---Grand father of abductee had recorded his statement in line to the
statement of complainant but had not specifically levelled any allegation against the accused
persons ---Circumstances established that prosecution had failed to prove the charge against the
accused persons ---Accused persons were acquitted in circumstances by setting aside the
conviction and sentences recorded by the Trial Court.
(b) Penal Code (XLV of 1860) ---
----S. 365- A & 34 ---Anti -Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abducting for
extorting property, valuable security, common intention, act of terrorism ---Appreciation of
evidence ---Benefit of doubt --- Statement of minor/abductee --- Evidentiary value ---Prosecution
produced abductee as witness, he narrated the story with regard to his alleged abduction but did
not nominate the accused persons as culprits ---Statement of abductee under S. 164, Cr.P.C. was
recorded by the Judicial Magistrat e, after sixth day of his alleged recovery ---Record was silent as
to why the statement of alleged abductee was recorded after the delay of 6 -days of his recovery --
-Investigating Officer was supposed to produce the minor soon after his recovery in order to
eliminate any suspicion or ambiguity ---Accused persons were present at the time of recording
statement of abductee but no opportunity of cross examining the minor upon his statement was
afforded ---Circumstances had diminished the evidentiary value of such statement of the minor ---
Statement of abductee minor did not inspire confidence, as admittedly minor had been tutored by
the complainant before making the statement ---Accused persons were acquitted in circumstances
by setting aside the conviction and sente nces recorded by the Trial Court.
(c) Criminal trial ---
----Child witness ---Evidentiary value ---Great care and caution was to be taken while examining a
child witness.
State v. Farman Hussain PLD 1995 SC 1 rel.
(d) Penal Code (XLV of 1860) ---
----S. 365- A & 34 ---Anti -Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abducting for
extorting property, valuable security, common intention, act of terrorism ---Appreciation of
evidence ---Benefit of doubt ---Recovery of alleged abductee---Alleged abductee was recovered in
a raid to the house of accused, which was doubtful ---Official witness who was member of
raiding party, in his statement did not mention the exact time as to when raiding party arrived at
the house and the recovery of abductee was effected fr om a residential room of the house ---Said
witness was silent with regard to arrest of any other accused from the house at the time of raid,
while other official witness stated contrary to the said statement--- Statements of official
witnesses were not in line with each other on material points ---Place of occurrence was a thickly
populated area but none from the locality was associated in the investigation process nor a single
independent witness from the locality was produced to support the story of abduction----Friends
of minor abductee, who were accompanying him at the time of his abduction, were not
associated with the investigation ---Circumstances showed that accused persons were involved in
the case on the basis of suspicion---Accused persons were acquit ted in circumstances by setting
aside the conviction and sentences recorded by the Trial Court.
Muhammad Ramzan and 3 others v. The State 2011 YLR 2379 rel.
(e) Criminal trial ---
----Evidence ---Standard of proof ---Suspicion---Suspicion howsoever grave or strong could not
be a proper substitute for proof required in a criminal case.
Muhammad Zahir v. The State 2011 YLR 3030 and Mst. Parveen Akhtar and others v.
The State 2011 YLR 1899 rel.
(f) Criminal trial ---
----Benefit of doubt ----Even a slightest doubt in the case of prosecution, entitled the accused to
be acquitted.
S. A. M. Qadri, Qurban Ali and Aizaz Baqri for Appellants.
Abdul Latif Kakar, Additional Prosecutor -General for the State.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Cr iminal (ATA) Appeal No.52
of 2016 filed by the appellants Abdul Wahab son of Muhammad Naseem, Muhammad Saleem
son of Muhammad Naseem, Abdul Kareem son of Muhammad Naseem, Fida Muhammad son of
Haji Muhammad Hussain and Nida Muhammad son of Muhammad, against the judgment dated
16th February, 2016 (hereinafter referred as, "the impugned judgment") passed by the learned
Special Judge, Anti -Terrorism, Court -II Quetta (hereinafter referred as, "the trial Court"),
whereby the appellants were convicted 365 -A, 34, P .P.C. and sentenced to suffer imprisonment
for life each with fine of Rs.50,000/ - each or in default thereof to further suffer two (02) years'
R.I. each, with the benefit of section 382- B, Cr.P.C.
2. Facts of the prosecution case are that on 15th September , 2013 the complainant Qudrat
Ullah son of Abdul Raziq, lodged FIR No.63/2013 at Police Station Pashtoon Abad Quetta under
section 365- A, 34, P.P.C., stating therein that on 7th September, 2013 his brother Najeebullah
informed him on mobile phone that his minor son Rafiullah age 6- years did not return home
from Madrasa. On such information, he reached home, where the housemates informed him that
when Rafiullah along with other children were coming home from Madrasa, at about 12.30 p.m.
two persons riding on motorcycle taken Rafiullah with them and they were witnessed by the
children of Mohallah. Hence, such information was conveyed to Police Station, whereafter he
searched his son in the houses of his relatives, but failed and now he is sure that his son had been
abducted by unknown accused.
3. In pursuance of above, investigation was entrusted to PW -8 Khalid Mehmood, SI/IO,
who during investigation inspected the site and prepared site map; got published missing
advertisement of abductee Rafiullah in newspaper; on 24th September, 2013 recovered the
abductee in a raid to the house of accused; took into possession pistols; produced the minor
before Judicial Magistrate for recording his statement; sent the recovered pistols to FSL and on
completion of investigation submitted the challan in the Court.
4. At the trial, the prosecution produced eight (08) witnesses. The appellants were examined
under section 342, Cr.P.C. Whereafter, only the appellant Abdul Wahab and Nida Muhammad
recorded their statement s on oath under section 340(2), Cr.P.C., while three witnesses were
produced by the appellants in their defence. On conclusion of trial and hearing arguments, the
trial Court awarded conviction to the appellants as mentioned above. Whereafter the appellant s
have filed the instant appeal.
5. Learned counsel for appellants stated that the entire case of prosecution is doubtful and
the story so narrated by the PWs is not worth credence; that even the star prosecution witnesses
have not supported the prosecution case in specific terms; that the statements of prosecution
witnesses are contradictory to each other; that the recovery of abductee has not been proved to
have been recovered from the appellants; that the impugned judgment is result of misreading and
non-reading of material available on record; that the prosecution at the trial has failed to prove
the charge against the appellant.
6. Learned Deputy Prosecutor General while supporting the impugned judgment stated that
the prosecution through consistent, confidence inspiring and concrete evidence has succeeded in
proving the charge against the appellants and the appellants have failed to rebut their false
implication; that the impugned judgment is based upon proper appraisal of material available on
record.
7. Heard the learned counsel and perused the available record. Perusal of record reveals that
the trial Court on 21st February, 2014 framed the charge and it was alleged against the appellants
that they initially abducted the brother of complainant Qudratu llah namely Rafiullah and
demanded Rs.50,00,000/ - as ransom for his release, whereas actually the brother of the
complainant had not been abducted rather the abductee is the son of the complainant. Anyhow,
in order to substantiate the charge the prosecution has produced the evidence of eight witnesses.
The star witnesses of the prosecution are PW -1 Qudrat Ullah, who is the father of minor
abductee Rafiullah, PW -3 Abdul Raziq is the grandfather of abductee Rafiullah, while the
alleged abductee Rafiullah was produced as PW -6.
8. We have scrutinized the statements of said three witnesses with utmost care and caution
and have come to the conclusion that the statements of said three witnesses are not enough to
make basis for conviction of the appellants. It appea rs from the statement of PW -1 that he has
failed to mention the mobile phone number from which demand of ransom amount was made to
him. PW -1 has also failed to mention the amount of ransom that had been demanded by the
abductors. He has also not mentioned the specific date and time when he was telephoned for
payment of ransom. Nothing has come on record that PW -1 has provided the mobile phone
number to the police from which demand of ransom was made. PW -1 simply narrated the story
of abduction of his son Ra fiullah and such story was narrated to him by his brother Najeeb Ullah,
whereas the statement of said Najeeb Allah was withheld by the prosecution and he was not
produced as witness nor had been associated in the investigation process in order to bring on
record that who had narrated the story of abduction of minor Rafiullah to said Najeeb Ullah.
Even otherwise, PW -1 has stated nothing about the recovery of his minor son by the police from
the house of appellants. In his cross -examination, PW -1 stated that he is a labourer and earning
Rs.300/ - per day, while his father is a driver. He admitted the suggestion that with great hardship
and difficulties he is passing his time. PW -1 further admitted that the accused -appellant are his
close relatives; the appellan t Fida Muhammad is his brother -in-law and they used to visit the
houses of each other, while his son/abductee used to stay in the house of appellant Fida
Muhammad. PW -1 admitted the suggestion that when his son was missing, he did not enquire
from the hous e of the appellant Fida Muhammad. He further admitted that he lodged the report
on the basis of suspicion.
9. Similarly, PW -3 being grandfather of alleged abductee has recorded his statement in line
to the statement of PW -1 and has not specifically leveled any allegation against the appellant
rather admitted all the suggestions put by the defence with regard to relationship of the parties
and having visiting terms with the houses of each other.
10. Likewise, the prosecution has examined the alleged abductee Rafiullah as PW -6, who in
his deposition narrated the story with regard to his alleged abduction, but did not nominate the
appellants as the culprits, who have abducted him. It has further come on record that the
confessional statement of abductee under s ection 164, Cr.P.C. was recorded by PW -7 Faisal
Hameed Judicial Magistrate, after alleged recovery of sixth day of the minor. The record is silent
as to why the confessional statement of the abductee was recorded after delay of 6 -days of his
recovery, whil e in order to eliminate any suspicion or ambiguity the Investigating Officer should
have produced the minor before the Judicial Magistrate soon after his recovery. Even otherwise,
all the accused though were arrested, but no opportunity of cross -examining the minor upon his
confessional statement was afforded. Hence, non -production of minor soon after his recovery for
recording his confessional statement and non- providing proper opportunity of cross -examining
the minor by all the accused, have diminished the evidentiary value of such confessional
statement of minor. Statement of abducted child did not inspire confidence, as admittedly he had
been tutored by the complainant before making the same. Even otherwise, it is also a well settled
proposition of law t hat while examining a child witness great care and caution is to be taken. In
the case, titled State v. Farman Hussain, PLD 1995 SC 1. The relevant portion is reproduced
herein below:
"Evidence of child witness is a delicate matter and normally it is not s afe to rely upon it
unless corroborated as rule of prudence. Great care is to be taken that in the evidence of
child element of coaching is not involved. Evidence of child came up for examination
before Division Bench of the High Court in the case of Amir Khan and others v. The
State PLD 1985 Lah. 18 in which after consideration of the relevant case -law on the
subject, Abdul Shakurul Salam, J. (as he then was) as author of the judgment observed
that "children are a most untrustworthy class of witnesses, for , when the tender age, as
our common experience teaches us, they often mistake dreams for reality, repeat glibly as
of their own knowledge what they have heard from others and are greatly influences by
fear of punishment, by hope of reward and the desire of notoriety. In any case the rule of
prudence requires that the testimony of child witness should not be relied upon unless it
is corroborated by some evidence on the record."
11. The comparative study of statements of all the three star witnesses is sugge stive of the
fact that the report of abduction of his son was lodged by the complainant merely on the basis of
some misunderstanding or suspicion, whereas to the contrary it has come on record that both the
parties were in visiting terms to the houses of e ach other and even the alleged abductee used to
stay in the house of appellant Fida Muhammad being his close relative. PW -1 in his Court
statement has admitted the suggestion that he has not searched his son to the house of appellants.
All the three witnes ses including the alleged abductee have failed to utter a single word against
the appellants in the Court connecting them with the charges of abduction. The prosecution has
failed to bring on record any mobile phone number from which the appellants made phone calls
to the complainant or allegedly made any demand of ransom amount. Even the complainant has
failed to give any details of such mobile phone numbers in his Court statement through which
calls were made.
12. The recovery of abductee Rafiullah from t he house of the appellant Abdul Wahab is also
doubtful. PW -2 Shakil Anwar, ASI, being the member of raiding party, in his statement did not
mention the exact time when the raiding party raided the house and the recovery of abductee was
effected from a resi dential room of the house. The statement of PW -2 is also silent with regard to
arrest of any other accused from the said house at the time of raid while to the contrary PW -4
stated that besides the recovery of abductee five other accused were also arrested , but he
mentioned the names of accused Saleem. Fida Muhammad and Abdul Wahab, whereas he has
failed to mention the names of remaining two accused. PW -2 stated that they broke the locks of a
room, from where the recovery of abductee was effected, while to the contrary PW -4 stated that
the room in which the abductee was detained, was locked and the locks of said room were got
opened. PW -8/I.O. in his cross -examination stated that the room, in which the abductee was
detained was opened. Again, stated that the same was locked and locks were broken. PW -4 has
mentioned the recovery of T.T. pistols from the possession of the appellants, while PW -2 stated
nothing about recovery of any weapon from the possession of the appellants. It has further come
on record that all the appellants have separate houses, thus the arrest of all the appellants from
the house allegedly owned by the appellant Abdul Wahab is also doubtful, when otherwise the
Investigating Officer has failed to collect any evidence regarding the ownership of the house in
question. We are also fortified by the dictum laid down in the case of Muhammad Ramzan and 3
others v. The State, 2011 YLR 2379.
13. It has come on record that the alleged place of occurrence is a thickly populated area, but
none from the locality was associated in the investigation process. Even otherwise, according to
the complainant he came to know about the abduction of his son through his brother Najeeb
Ullah, but the Investigating Officer has failed to even associate the brother of complainant in the
investigation process or to make him the prosecution witness, whose statement is otherwise was
essential in order to know the sources through which the brother of complainant came to know
about the abduction of his nephew. Furthermore, not a single independent witness from the
locality was produced to support the story of abduction. The friends of the PW -6, who were
accompanying him at the time of his abduction were also not associated in the investigation
process. It appears that the appel lants were involved in the case on the basis of suspicion and
legally the suspicion, even if strong, could not be taken as a substitute for legal evidence.
Reliance in this regard is placed on the cases of Muhammad Zahir v. The State 2011 YLR 3030
and Mst. Parveen Akhtar and others v. The State, 2011 YLR 1899.
14. The story so narrated by the prosecution witnesses is doubtful; that the case of
prosecution is lacking independent corroboration sufficient doubts have been created in the case
of prosecution, but the learned trial Court has failed to extend benefit of the same to the
appellants. It is a well settled principle of law that even a slightest doubt in the case of
prosecution entitles the accused to be acquitted and it is not necessary that there shoul d be series
of contradictions and doubts, which could benefit the accused. The impugned judgment of the
learned trial Court is suffering from illegalities and irregularities as the learned trial Court has
failed to take into consideration all aspects of th e case, whereas it is evident from the above
analysis that the case of prosecution is doubtful on all counts.
For the above reasons, the appeal is accepted and .the impugned judgment dated 16th
February 2016 passed by the learned Special Judge, Anti -Terro rism, Court -II Quetta is set aside
and the appellants Abdul Wahab son of Muhammad Naseem, Muhammad Saleem son of
Muhammad Naseem, Abdul Kareem son of Muhammad Naseem, Fida Muhammad son of Haji
Muhammad Hussain and Nida Muhammad son of Muhammad, are acquitt ed of the charge under
section 365- A, 34, P.P.C., in FIR No.63/2013 at Police Station Pashtoon Abad Quetta. The
appellants being in custody, are ordered to be released forthwith, if not required in any other
case.
These are the reasons of our short order dated 20th December, 2016.
JK/16/Bal. 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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