2012 P Cr. L J 415
[Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
MEHBOOB ---Appellant
Versus
THE STATE---Respondent
ATA Criminal Appeal No.(S) 4 of 2011, decided on 11th August, 2011.
Penal Code (XLV of 1860) ---
----S. 365- A/34 ---Anti -Terrorism Act (XXVII of 1997), S.7(e) ---Abduction, act of terrorism ---
Appreciation of evidence ---Benefit of doubt ---Prosecution, could not produce tangible evidence
in support of the charge against accused, connecting him with the commission of the offence ---
Alleged abductee, being star witness of the prosecution had not uttered a single word against
accused and could not identify him as one of the culprits ---Accused had been convicted and
sentenced on the sole evidence of father of alleged abductee who could also not identify accused before the court ---Father had simply deposed that he was informed by his son/alleged abductee
that accused was involved in his abduction---Neither alleged abductee had been recovered from the custody/possession of accused, nor any evidence had been brought on record to establish that house, wherefrom alleged abductee was allegedly recovered, belonged to accused---Accused had been convicted and sentenced on the sole basis of similarity of name by the Trial Court ---No one
could be convicted only on the basis of similarity of his name with the culprits ---No doubt
conduct of accused, soon after the incident, would play an important part in determining his guilt
and same was a corroborative piece of evidence, but in the present case, neither the warrants, nor the proclamation made in three national newspapers as required under S.19(10) of the Anti -
Terrorism Act, 1997 had been brought on record to establish the alleged abscondence on the part of accused ---No question relating to abscondance was put to accused while recording his
statement under S.342, Cr.P.C., whereas the Trial Court was bound to ask such question from
accused ---Prosecution having failed to prove its case against accused beyond reasonabl e doubt,
benefit of such doubt must be extended to accused---Conviction and sentence recorded by the
Trial Court was set aside and accused was acquitted of the charge and was released, in circumstances.
PLD 2001 Quetta 64 and 2001 SCMR 56 rel.
Muhammad Sadiq Ghuman and Najm -ud-Din Mengal for Appellant.
Abdullah Kurd, P.G. for the State.
Date of hearing: 28th July, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This appeal is directed against the judgment
dated 15th February, 2011, passed by the Special Judge, Anti -Terrorism Court, Dera Allah Yar,
whereby appellant Mehboob son of Meer Jan was convicted and sentenced under section 365- A
read with section 34 of the P.P.C. to suffer life imprisonment and forfeiture of his property to the
extent of Rs.2,00,000; under section 7(e) of the Anti -Terrorism Act, 1997 for life imprisonment
and forfeiture of his property to the extent of Rs.2,00,000. The aforesaid se ntences were
ordered to be run concurrently, with benefit of section 382- B of the Cr.P.C.
2. The relevant facts, arising out of instant appeal, are that on 30th October, 2009, a case
vide Crime No.114 of 2009 under section 365 read with section 34 of the P.P.C. was registered
at Police Station Dera Murad Jamali, District Nasirabad on the Fard -e-Bayan Exh.P/1- A of
complainant Dr. Shah Nawaz son of Khair Muhammad, wherein he alleged that at about 7- 45
p.m., one Abdul Kareem came to his house and informed him that he, along with Inayatullah and
Ali Gohar, was coming from Bazaar towards their homes. At about 7- 30 p.m., when they reached
near the house of Muhammad Nawaz Mengal, three persons, duly armed with Kalashnikovs, who can be identified on appea rance, stepped down from an Alto Car and forcibly abducted
Inayatullah and went towards northern side cricket ground. Resultantly, aforesaid F.I.R. was
registered.
3. After registration of the F.I.R., investigation of the case was entrusted to one Abdul Rauf,
SI, who went to the place of incident, recorded the statements of witnesses. He got non- bailable
warrants of arrest of absconding accused persons. On the basis of spy information, a raid was
conducted at the house of appellant, in result whereof recovery of the abductee Inayatullah was affected from his house, however, he (appellant), along with co- accused persons, made their
escape good. He recorded the statement of abductee and after completion of the investigation, incomplete challan was prepared. Since the accused persons could not be arrested despite publication, therefore, they were declared proclaimed offenders and were preceded in absentia. The accused persons were convicted and sentenced in absentia vide judgment dated 14th May, 2010. Subseque ntly, appellant was arrested, who submitted an application under section 19(10)
of the Anti -Terrorism Act, 1997 before the trial Court, which was rejected. Thereafter, he
preferred Criminal (ATA) Appeal No.(S)25 of 2010 and vide Order dated 10th November, 2010, this Court, after setting aside the order dated 25th June, 2010 and judgment dated 14th May, 2010, remanded the matter to the trial Court for decision afresh.
4. On remand, a formal charge was framed and read over to the appellant on 13th
December, 2010, to which he did not plead guilty and claimed trial. At the trial, the prosecution,
in order to prove the accusation, produced eight witnesses. P.W.1 Dr. Shah Nawaz she
complainant of the case, who produced his Fard- e-Bayan Exh.P/1- A and F.I.R. Exh.P /1-B.
P.W.2 Inayatullah is the abductee. P.W.3 Abdul Karim alleged to have witnessed the occurrence. P.W.4 Muhammad Ashraf, constable, is witness to the memo of site inspection, which he produced as Exh.P/4- A. P.W.5 Dr. Muhammad Ibrahim, Medical Officer, D HQ Hospital, Dera
Murad Jamali, examined the abductee Inayatullah and issued Medico Legal Certificate Exh.P/5 -
A. P.W.6 Haji Muhammad Nawaz is father of the abductee. P.W.7 Ali Haider, constable, is witness to the recovery memos Exh.P/7- A and Exh.P/7- B of a bductee etc. P.W.8 Hidayatullah,
SHO, arrested the appellant on 17th June, 2010 from his house. He produced the site sketch prepared by Abdul Rauf, SI/IO as Exh.P/8- A and incomplete Challan Exh.P/8- B. Then the
prosecution closed its side.
5. Thereafter, the appellant was examined under section 342 of the Cr.P.C., wherein he
denied the prosecution allegation and claimed to be innocent. He did not opt to record his
statement on oath as envisaged under section of the 340(2), Cr.P.C., nor produced any evidenc e
in defence. The trial Court, after close of the parties' evidence, vide impugned judgment,
convicted and sentenced the appellant, as mentioned hereinabove, hence, this appeal.
6. We have heard the learned counsel for the appellant as well as the learne d counsel for the
State and have gone through the record with their valuable assistance. It has been argued by the
learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond the shadow of doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the presen t appeal may be dismissed.
7. After hearing the learned counsel for the parties and going through the evidence, we have
arrived at a confident conclusion that the prosecution had, indeed, failed to prove its case against
the appellant beyond reasonable doubt. In this context, we have noticed that a careful reappraisal of evidence produced by the prosecution not a single bit of tangible evidence could be found in support of the charge against the appellant, connecting him with the commission of the offence .
The alleged abductee P.W.2 Inayatullah being star witness of the prosecution has not uttered a
single word against the appellant and could not identify him as one of the culprits. He has
disclosed the names of the culprits as Amanullah and Muhammad Anwar (absconding accused)
with further clarification that he can recognize the remaining two accused persons on their appearance.
8. The record reveals that the appellant has been convicted and sentenced on the sole
evidence of P.W.6 Muhammad Nawaz, who is t he father of abductee Inayatullah. He could also
not identify the appellant Mehboob before the Court and has simply deposed that he was
informed by his son Inayatullah that Amanullah, Muhammad Anwar and Mehboob son of Peer Jan Bangulzai were involved in hi s abduction. He could also not identify the accused before the
trial Court.
9. Admittedly, neither the abductee Inayatullah has been recovered from the
possession/custody of the appellant, nor any evidence has been brought on record to establish
that the house, wherefrom the abductee was, allegedly, recovered, belonged to the appellant. The
name of the appellant is Mehboob son of Meer Jan and while according to the evidence of P.W.6, Mehboob son of Peer Jan was involved in the abduction of his son. It see ms that the
appellant Mehboob has been convicted and sentenced on the sole basis of similarity of name by the trial Court with the following observation: --
"So far as difference of accused's father name is concerned, in fact both the words Peer Jan and
Meer Jan are written alike in Urdu language. There is only difference of putting three dots under
word "Peer". In case of not putting three dots under word "Peer" the word is read as "Meer", therefore, accused's plea is after though and without subst ance."
We are afraid that both the words are not only written with different alphabets, but also pronounced with different accents in both the languages viz. Urdu and English. It seems that the trial Court is unaware about the importance of dot (.), whic h's putting makes a person from to
and its omitting makes him from to. Admittedly no one can be convicted only on the basis of similarity of his name with the culprits.
10. The record is also indicative of the fact that the trial Court, while convicting the
appellant, has also placed reliance on the alleged abscondance of appellant. No doubt, conduct of
the accused, soon after the incident, plays an important part in determining his guilt and the same is a corroborative piece of evidence, but in the insta nt case, neither the warrants, nor the
proclamation made in three national newspapers as required under section 19(10) of the Anti -
Terrorism Act, 1997 have been brought on record to establish the alleged abscondance on the
part of appellant. Besides, the r ecord also reflects that no question relating to abscondance was
put to the appellant while recording his statement under section 342 of the Cr.P.C. Admittedly,
the trial Court is bound to ask such question from the accused. If such incriminating piece of evidence is omitted to be put against the accused while recording his statement under section 342
of the Cr.P.C., same cannot be considered to be a piece of evidence against him. Reference can be made to the cases -reported in PLD 2001 Quetta 64 and 2001 SC MR 56.
The upshot of the discussion made above is that the prosecution has miserably failed to prove its
case against the appellant beyond reasonable doubt and the benefit of such doubt must be extended to the appellant. This appeal is, therefore, allowed. The co nviction and sentence
recorded by the trial Court is set aside and appellant Mehboob son of Meer Jan is acquitted of the charge. He shall be released forthwith, if not required in any other case.
These are the reasons of our short order dated 28th July, 2011 announced in the open Court.
H.B.T./92/Q Appeal allowed.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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