Iftikhar alias Pappu VS The State etc.

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Criminal Appeal No. 1752 of 2010 (Iftikhar alias Pappu v. The State etc.)

Date of hearing: 04-12-2014

Appellant by: Mr. Asif Javed Qureshi Advocate State by: Mr. Munir Ahmad Sial, DPG

SADAQAT ALI KHAN, J.:- The instant Criminal appeal has been filed by Iftikhar alias Pappu present appellant against the judgment dated 18.06.2010 passed by Special Judge Anti-Terrorism Court No.I, Lahore according to which present appellant was convicted and sentenced as under: - “Iftikhar alias Pappu was convicted under section 365-A PPC and sentenced to life imprisonment and his landed property was ordered to be confiscated in favour of the state.

He was also convicted under section 7 (e) ATA 1997 and sentenced to life imprisonment and his landed property was also stood forfeited to the state”.

in case FIR No. 171 dated 13.4.2006 under section 365- A PPC, 21-L ATA 1997 police station Saddar Pattoki, District Kasur.

2.The facts of the case has been stated by Muhammad Nawaz Bajwa /complainant PW-1 in his statement before the learned trial court and same statement is hereby reproduced for narration of the facts: - “In mid January 2006 Amjad Chaudhary made repeated calls to me from cell numbers 0300-4577284 & 0301- 6501656 on PTCL No.685701863 of my house. He said to me that one industrialist Saith Mian Sahib ws intending to start big Educational Project in Sadiq Abad. For which he told me that my services were needed. He further told me that I should see that Mian Sahib at Phoolnage Kasur. Firstly, I had been delaying. On his insistence on 20-1- 2006, I came at Phoolnagar in the morning, where one person with long beard on his face met me as Amjad Chaudhary. Later on, his real name was disclosed as Arshad s/o Muhammad Ali. He took me to his dera where two persons with names of Iqbal and Asif were present there. Later on, their real names were disclosed as Anwar and Akram. After a while, three other persons entered in his dera. One of them was wearing kot pant and holding briefcase in his hand. Arshad introduced him as Mian Sahib. Real name of Mian Sahib later on, was disclosed as Mian Iftikhar (accused present in court). Two other persons were introduced servants of Mian Iftikhar. Their names were Sarwar Jutt and Zafar Ullah Bhatti. I doubt that names Sarwar Jutt and Zafar Ullah were also fictitious names. I can identify them, if confronted. Mian Iftikhar (accused present in court) said to me that he was planning

to start big educational project by spending amount Rs. 10- Crore.He (accused present in court) further told me that I would be responsible of that project. He further said to me that he would pay Rs.50,000/- monthly salary along with car, driver and petrol. He further told me that I should have furnished security amount Rs.20-Lac. He further told me to arrange money, blank stamp paper to execute agreement, photo copy of my ID card and photo copies of my educational degrees. He said to bring all above said documents with cash at Phoolnagar. I told Mian Iftikhar that I could not arrange huge amount of Rs.20-Lac. He gave me some time to arrange money so I came back to Sadiq Abad. On24-1-2006, I got en-cashed Rs.2-Lac from my account of MCB Sadiq Abad and obtained loan of Rs.5- Lac, from Sami Ullah Jutt, my relative and reached at Phoolnagar in the morning, where again same Arshad met me and took me to same dera where Anwar, Akram, Sarwar Jutt, Zafar Ullah Bhatti, Muhammad Ali and Iftikhar (accused present in court) were already present there. Iftikhar asked me about the arrangement of money. I replied to him that I could arrange Rs.7-Lac, only, which I have brought with me. Arshad obtained Rs.7-Lac, from me and Iftikhar went outside showing his annoyance on the pretext that I could arrange very lesser amount. But rest of persons present there rendered their support to me and said that I should go back to Sadiq Abad and should arrange further amount. They also said to me to arrange maximum amount and they would render their help in meeting with deficient amount. Then I went back to Sadiq Abad. I obtained blank stamp paper valuing Rs.100/- against issuance number 1480 dated 6-2-2006. Rest of photocopies were also arranged by me. However, I could not arrange further amount. Meanwhile, Anwar accused had been contacting me from his cell No.0345-6865553 & Akram accused had been contacting me from his cell No.0321-4581452. I had been replying them that I could not arrange further money. I asked from accused persons about Arshad. They informed me that he had gone to Sharja for his business. Akram made me telephonic call that I should reach at Phoolnagar on 6-4-2006 and arrangement of money had been made for execution of agreement. On 6-4-2006 in the morning, I reached at Phoolnagar, where Akram received me and took me to his dera, where all above said persons except Arshad were present. As soon as I reached in the Dera, they confined me in a room on gun point. They start watching me. In the night, I was shifted in the building adjacent to room where I was earlier confined. That building was in fact house, where women and kids were residing. All above said persons had been guarding me one by one. Rehana, Farzana, Rukhsan, Khalida, Yasmeen, Shamim, Rajin bibi, Shahzadi and Zainab mother of accused persons were also present there. They had been serving me meal and extending threats to the affect that I should accede to directions of accused persons otherwise, they would kill me. After three days, they shifted me in the night to some un-known place, where on 10-4-2006, Anwar, Iftikhar (accused present in court), Sarwar Jutt and Zafar Ullah Bhatti threatened me on gun point to contact my son Khalid Mehmood to bring Rs.10-Lac, and got contacted me on cell No. 0300-8637155 with Khalid Mehmood my son. I said to Khalid Mehmood to bring Rs.10-Lac. He replied that on next day there was holiday, so he could bring amount after that day. On 12-4-2006, at about 12/12.30 a.m. (night), I was taken to bridge Dandianwala near Katta Farm, on car, where Anwar, Akram and Iftikhar (accused present in court) handed over my custody to my son Khalid Mehmood. Khalid Mehmood apprised me that he got me released from accused persons after paying Rs.10-Lac as ransom. Khalid

Mehmood came there on his car on which, we went to Police Station, Sadar Pattoki. I made statement (Ex.PA), which was read-over to me and I made my English signature”.

3.After the completion of the investigation, Challan was submitted in the trial court and trial court after observing the legal formalities provided under the Criminal Procedure Code framed the charge on 26.02.2010 against appellant who pleaded not guilty and claimed trial.

4.Prosecution evidence was summoned and the prosecution produced Muhammad Nawaz Bajwa complainant as PW-1, Khalid Mehmood Bajwa PW-2, Muhammad Shafique PW-3, Muhammad Iqbal SI PW-4, Naseem Abbas PW-5, Muhammad Sarwar constable PW-6, Muhammad Aslam SI PW- 7 whereas PWs namely Muhammad Aslam SI, Riaz Hussain SI, and Sami Ullah were given up by the prosecution being unnecessary and after tendering in evidence FIR Ex.PA, recovery memo of Cheque No. 232770 MCB Ex.PB, recovery memo of copy of Rapt No. 44 dated 11.4.2006 Ex.PC, rough site plan Ex.PD and Ex.PE closed the evidence.

5.Statement of the present appellant under section 342 Cr.P.C was recorded in which he refuted the allegations leveled against him and the appellant did not opt to record his own statement under section 340(2) Cr.P.C and also did not produce the defence evidence and in reply to question No.8 “why this case was registered against you and why the PWs have deposed against you? replied as under: - “Akram, (my co-accused already convicted) is husband of my Sali. We both are married at Jamber Klan. There was murder of Rana Younas of Bhaipheru. Rana Zulifqar son of Rana Younas nominated me as accused of murder of Rana Younas, however, local police declared me innocent during investigation. Rana Zulifqar filed private complaint about murder of his father Rana Younas against me, Arshad, Akram, Anwar and Muhammad Ali, which is pending decision in the court of Mr. Amjal Hussain, ld. ASJ, Kasur. Rana Zulifqar and Muhammad Nawaz Bajwa complainant/alleged abductee of this case are very close friends and used to commit fraud together. Nawaz Bajwa has implicated me on the asking of Rana Zulifqar, complainant of murder case, falsely, by cooking up this false story”.

6.After conclusion of the trial, learned trial court convicted the present appellant Iftikhar alias Pappu with above stated sentences. Hence this appeal.

7.Leaned counsel for the appellant contended that:-

(i)the judgment of the trial court dated 18.06.2010 is against law and facts on the file and is liable to be set-aside;

(ii)it is submitted that the story of the prosecution is improbable and not believable;

(iii)it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial court wrongly convicted present appellant in surmises and conjectures;

(iv)and lastly submitted for the acceptance of the appeal of the present appellant;

8.On the other hand, learned DPG has vehemently opposed the appeal and requested for dismissal of the same and submitted that:-

(i)prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present.

9.We have heard the learned counsel for the parties and perused the record.

10.The detail of prosecution case as mentioned in the FIR Ex.PA recorded on the statement of Muhammad Nawaz Bajwa complainant PW-1 has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.

11.Muhammad Nawaz Bajwa complainant/abductee PW-1 has nominated following 14 accused in the FIR Ex.PA: -

(i)Muhammad Anwar (ii) Muhammad Akram. Both these accused were initially convicted by the trial court on 11.1.2010 but their criminal appeal No.112 of 2010 was allowed by this court on 21.9.2011 and they were acquitted.

(iii)Mst. Zanib Bibi (iv) Mst. Rehana Bibi (v) Mst. Rajan Bibi (vi) Mst. Shameem Bibi (vii) Mst. Yasmeen Arshad (viii) Muhammad Arshad. These six accused were tried at one time by the trial court and learned trial court after conclusion of the trial acquitted them vide judgment dated 15.1.2007 except Muhammad Arshad who was convicted by the trial court but his criminal appeal No. 29 of 2007 against his conviction was

accepted by this court on 13.10.2010 in result of which he was acquitted.

(ix)Muhammad Sarwar (x) Mst. Rukhsana Bibi (xi) Mst. Farzana Bibi and (xii) Mst. Naheed Bibi. These four accused were tried at one time by the trial court and learned trial court after conclusion of the trial acquitted them vide judgment dated 4.4.2008 except Muhammad Sarwar who was convicted but his criminal appeal No. 337 of 2008 was accepted by this court on 13.10.2010 and he was acquitted.

(xiii)Muhammad Ali was acquitted on 14.12.2007 by the trial court and (xiv) present appellant Iftikhar alias Pappu who was convicted through the instant judgment.

12.Muhammad Nawaz Bajwa complainant/abductee PW-1 stated in FIR Ex.PA as under: -

13.He further stated in the FIR Ex.PA as under: -

14.Muhammad Iqbal SI/PW-4 I.O of this case stated that on 14.1.2010 he came to know that Iftikhar present appellant was confined in District Jail, Gujrat in some other case and after fulfilling necessary legal formalities, he brought him and on 27.1.2010 he obtained physical remand of present appellant Iftikhar and thereafter he was sent to judicial lockup on

15.Admittedly nothing was recovered from the present appellant during the interrogation.

16.In view of the above, case of the present appellant Iftikhar alias Pappu is at par with above stated accused who have been acquitted by disbelieving evidence of the prosecution and same evidence cannot be believed now to the

extent of present appellant Iftikhar alias Pappu without independent corroboration which is missing in the present case. Reliance is placed on case Akhtar Ali and others v. The State (2008 SCMR 6) in which Hon’ble Supreme Court of Pakistan has observed at page 12 as under: - “it is a settled law that eye witnesses found to have falsely implicated five out of eight accused the conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration”.

17.It is observed that mere absconsion is not a conclusive proof of a guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. Further suspicions after all are suspicions and the same cannot be take the place of proof and the value of the absconsion depends upon the facts of each case and in the instant case only on the basis of absconsion conviction cannot be maintained as other evidence has been disbelieved by us. Reliance is placed on case Muhammad Tasaweer Vs. Hafiz Zulkarnain and two others (PLD 2009 SC 53) in which Hon’ble Supreme Court of Pakistan at page 57 observed as under: - “Adverting to the question of abscondence, it may be stated that mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstances against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent which is to be decided keeping in view overall facts of the case. In the instant case, the respondents appeared before the investigating officer of their own and they were not arrested”.

18.For the foregoing reasons, we are persuaded to hold that prosecution has badly failed to bring home guilt of the appellant to the hilt and the learned trial court was not justified in convicting him while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradiction especially unreliable story deposed by PWs. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellant. The Criminal appeal No.1752 of 2010 filed by Iftikhar alias Pappu present appellant is accepted and conviction and sentences awarded by the learned trial court

through judgment dated 18.6.2010 against him is set-aside and the appellant is ordered to be acquitted of the charge in case FIR No. 171 dated 13.4.2006 under section 365-A PPC, 21-L ATA 1997 police station Saddar Pattoki, District Kasur. He shall be released forthwith if not required in any other case.

(Abdul Sami Khan) (Sadaqat Ali Khan) Judge Judge

Approved for reporting

Irfan