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Petitioner: Muhammad Rizwan etc VS Respondent: State and another
Court Name: Lahore High Court Judge(s): Ch. Abdul Aziz, Muhammad Amjad Rafiq Title: Muhammad Rizwan etc vs State and another Case No.: Crl. A. Nos. 57199, 57200, 57201 & 57203 of 2019 Date of Judgment:2021-12-22 Reported As: PLJ 2023 Cr.C. 1028 Result: Appeals allowed
JUDGMENT
JUDGMENT Ch. Abdul Aziz, J. Appellants, namely, Muhammad Rizwan, Atif Sharif, Naveed Javed and Syed Muhammad Mukarram involved in case FIR No. 1129/2018 dated 18.07.2018 registered under Sections 265-A, 170 & 171, PPC read with Section 7 of the Anti-Terrorism Act, 1997 (hereinafter referred to as "ATA, 1997") at Police Station Nishtar Colony, Lahore, were tried by learned Judge Anti-Terrorism Court No. II, Lahore. Trial Court vide judgment dated 02.08.2019 proceeded to convict and sentence the -appellants in the following terms:-- "(i) Under Section 365-A, P.P.C. to suffer imprisonment for life with forfeiture of whole property in favour of State: (ii) Under Section 7(e) of ATA, 1997 to suffer imprisonment for life. Both the sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.C was also extended to the convicts". Challenging their conviction and sentence, Muhammad Rizwan, Atif Sharif, Naveed Javed and Syed Muhammad Mukarram filed Criminal Appeal No. 57199 of 2019. Criminal Appeal No. 57200 of 2019, Criminal Appeal No. 57201 of 2019and Criminal Appeal No. 57203 of 2019, respectively. Since all these appeals are inter se connected, hence we intend to dispose of the same through this single judgment. 2. Succinctly stated the case of prosecution as unveiled by Kamran Munir Mirza (PW.1) in FIR (Exh.PA/1) is to the effect that he is resident of HBFC Society, Lahore and a businessman by profession; that he inherited house in Gulberg, which was sold out for Rs.13-crore; that he received his share of Rs.5 crore from the said sale proceeds and deposited it in HBL; that he came to know about the insincerity of his wife Mst. Zaiba, who in connivance with his adopted son Muhammad
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Rizwan after hatching conspiracy planted some bottles of liquor in his house; that Muhammad Rizwan along with his friends Atif, Naveed and Muqarram while posing themselves as employees of ANF conducted raid, and recovered liquor from his residence; that his wife along with others extorted Rs.1 crore from him and extended threats of taking his life; that on 01.05.2018 at about 8:30 p.m. Rizwan again placed bottles of liquor and heroin in his house and Atif etc. as fake officials of ANF conducted raid and took him to an unknown place; that the accused detained the complainant at unknown place for 36-hours and threatened that if he did not give them Rs.3 crores, he would be slain; that accused Atif, Muqarram and Naveed Butt conversed with his wife and an amount of Rs.2 crores was settled to be given in lieu of avoiding the legal implications, which he promised to pay after reaching home; that on 09.05.2018 he along with his wife went to HBL and drew an amount of Rs.2 crores and came to house; that he rang Rizwan etc. to visit his house and in pursuance thereof they came and Atif received Rs.2 crores from him; that the accused extended treats that if he disclosed this fact to police, he would be done to death; that his wife had been frightening him that the accused were very cruel and they would commit his murder. 3. The matter after the registration of FIR was probed by Fayyaz Ehsan Inspector (PW.5), Muhammad Ameen Inspector (PW.12), Qadeer Bashir Inspector (PW.13), Umer Daraz Inspector (PW.23), Anwar Saeed Kingra DSP (PW.24) and Rana Muhammad Akmal Inspector (PW.25), during which they took steps towards the completion of investigation like arrest of the appellants and their co-accused, who in pursuance of their respective disclosures got recovered articles/cash amount on different dates. The detail of these proceedings in reference to the nature of articles, the date and place of recoveries are mentioned in the below mentioned schedule. Name of appellantDate of RecoveryPlace of recovery Recovered article (s) Muhammad Rizwan18.07.2018 18.07.2018 29.07.2018 07.09.2018 13.09.2018 24.09.2018 01.10.2018 08.10.2018Ashyana Road Bank Stop His house situated at Korray Stop Walton Shop of his father His house situated at Walton Road Koray Pind, Lahore His house situated at Street No. 2, Mohallah Qasian His General Store situated at Qasian Wali Gali Walton Road His house situated at Street No. 2 Qasian Wali Gali Korray Pind His house situated at Korray Pind, Qasian Wali GaliMotorcycle 125 through memo Exh.PD Rs. 5 Lac through memo. Exh.PG Rs. 5 Lac through memo. Exh.PD Car through memo Exh.PM Sound System worth Rs. 4 Lac through memo. Exh.PQ Rs. 2 Lac through memo. Exh.PK Rs. 3 Lac through memo. Exh.PT Rs. 5 Lac through memo. Exh.PL Zeba 18.07.2018 House of Muhammad RizwanRs. 2 Lac through memo. Exh.PB Syed Muhammad Muqarram22.10.2018 29.10.2018 13.11.2018 06.01.2019His house situated at Ghousia Colony Fateh Garh His house situated at Ghousia Colony Fateh GarhRs. 50,000/- through memo. Exh.PR Rs. 50,000/- through memo. Exh.PS
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10.01.2019 His school in the name and style of Avicenna situated at Canal Point Housing Scheme House situated at Street No. 4, House No. 9, Walton Road, Lahore House situated at Street No. 4, House No. 9, Walton Road, LahoreRs. 50,000/- through memo. Exh.PW. Rs. 1 Lac through memo. Exh.PHH Rs. 1 Lac through memo. Exh.PLL Muhammad Usman06.01.2019 08.01.2019His house No. E-336, Street No. 3, Walton, Lahore. His house No. E-336, Street No. 3, Walton, Lahore.Rs. 8 Lac through memo. Exh.PGG Rs. 2 Lac through memo. Exh.PJJ Atif Sharif28.01.2019 11.02.2019 21.02.2019 02.03.2019 09.03.2019 17.03.2019His house situated at 235-E Street No. 2, Qadri Colony Walton Road, Lahore His house No. 235-E Street No. 2, Qadri Colony Walton Road, Lahore His house No. 235-E Street No. 2, Qadri Colony Walton Road, Lahore His house No. 235-E Street No. 2, Qadri Colony Walton Road, Lahore His house No. 235-E Street No. 2, Qadri Colony Walton Road, Lahore His house No. 235-E Street No. 2, Qadri Colony Walton Road, LahoreRs. 10 Lac through memo. Exh.PMM Rs. 5 Lac through memo. Exh.PNN Rs. 15 Lac through memo. Exh.PRR Rs. 10 Lac through memo. Exh.PTT Rs. 8 Lac through memo. Exh.PVV Rs. 3 Lac through memo. Exh.PXX Abdul Rasheed11.02.2019 21.02.2019 02.03.2019 09.03.2019 17.03.2019His shop situated at Street No. 2, Mohalla Qasian Walton Road, Lahore Shop situated at Street No. 2, Mohalla Qasian Walton Road, Lahore House No. E-201/3 Qasab Colony Street No. 2 House No. E-201/3 Qasab Colony Street No. 2 House No. E-201/3 Qasab Colony Street No. 2Rs. 1 Lac through memo. Exh.PQQ Rs. 140,000/- through memo. Exh.PSS Rs. 2 Lac through memo. Exh.PUU Rs. 2 Lac through memo. Exh.PWW Rs. 3 Lac through memo. Exh.PYY Naveed Javed13.09.2018 24.09.2018 13.11.2018 10.01.2019His house situated at Qadri Colony Street No. 02 His house situated at Qadri Colony Street No. 02 Canal Paint Housing Scheme Harbanspura Lahore in Avicenna School His house situated at 233-E Street No. 2, Walton Road, LahoreRs. 1 Lac through memo. Exh.PN Rs. 2 Lac through memo. Exh.PJ Photocopy of rent deed through memo. Exh.PX. Rs. 1 Lac through memo. Exh.PKK 4. The police after the completion of investigation placed the matter before the trial court where prosecution in order to prove its case against the appellants produced 26-PWs, out of them, Kamran Munir Mirza (PW.1), who is abductee as well as complainant of the case, Fayya z Ehsan inspector (PW.5). Muhammad Ameen Inspector (PW.12), Qadeer Bashir Inspector (PW.13), Umer Daraz Inspector (PW.23), Anwar Saeed Kingra DSP (PW.24) and Rana Muhammad Akmal
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Inspector (PW.25) who investigated the case at different point of time and Ishtiaq Ahmed Khan Civil Judge/Cum-Judicial Magistrate (PW.26) who recorded the statement of Kamran Munir Mirza under Section 164, Cr.P.C. After the conclusion of prosecution evidence, the learned trial court also examined the appellants under Section 342, Cr.P.C. during which they were asked the questions arising out of the prosecution evidence but they denied almost all such questions while pleading their innocence and false involvement in the case. Appellants neither made statements under Section 340(2) of Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, the appellants were convicted and sentenced as afore-stated, hence the instant criminal appeals. 5. It is contended on behalf of appellants that the case of prosecution is nothing but jumble of lie arising out of matrimonial dispute of complainant with his wife to which the appellants also became victims; that the incident of abduction took place on 01.05.2018 whereas it was reported to police on 18.07.2018 and for this delay no explanation whatsoever was offered; that the delay gains more significance when seen in the context that the complainant was well connected and one of his cousins was a senior officer of FIA; that the detail of occurrence was brought on record during trial by complainant Kamran Munir Mirza as PW.1 but before cross-examination he died natural death, thus his statement could not be made basis for awarding conviction; that learned trial court committed an error by treating the statement of Kamran Munir Mirza recorded under Section 164, Cr.P.C. as substantive evidence under Article 47 of Qanun-e-Shahadat Order, 1984; that though during investigation some cash amount was recovered from the appellants and was canvassed as proceeds of ransom amount but on account of flaws in the recovery proceedings, the same had no legal sanctity; that daughters of complainant were important witnesses in the case but none of them appeared during trial as witnesses and their non-appearance gives rise to an inference under Article 129(g) of Qanun-e-Shahadat Order, 1984 and that since the prosecution failed to prove its case beyond ambiguity, thus conviction awarded to the appellants is not maintainable. In, support of afore-mentioned arguments, reliance was placed upon Nisar Muhammad v. Khanzali and another (PLD 1959 (W.P) Peshawar 115), Nasarullah v. The State (1995 MLD 515), Mumtaz Khan v. The State (1992 PCr.LJ 412), Muhammad Uzair v. The State (2005 YLR 1533), Mst. Asia Bibi v. The State (PLD 2019 SC 64), Mst. Mehboob Bibi v. The State (2017 SCMR 1835) and Ihtesham-ul- Haq v. The State (2010 PCr.LJ 852). 6. On the other hand, the learned law officer 'assisted by learned counsel for the legal heirs of complainant came forward with the submissions that the delay in the registration of an abduction case is always considered insignificant and cannot be used to the detriment of prosecution case; that non-appearance of complainant for cross-examination was due to his demise, thus from this omission no premium can be given to the appellants; that even otherwise, during investigation complainant got recorded his statement under Section 164, Cr.P.C. and since the appellants were provided ample opportunity of cross-examination, hence such statement of the complainant was admissible under Article 47 of Qanun-e-Shahadat Order, 1984; that the guilt of appellants was further established from the recovery of cash amount as well as from the sound system, motorcycle and the car purchased from the crime proceeds; that the appellants also pointed out the place where complainant was detained; that even the date of withdrawal of amount for paying ransom was proved from the corresponding dates of cheques exhibited during trial and that since prosecution proved its case against the appellant, hence the conviction awarded to them calls for no interference. In support of afore-mentioned arguments, reliance was placed on Hamza Alam v. The State (2021 YLR 380), Arbab Tasleem v. The State (PLD 2010 SC 642), Saeed Ahmad alias Saeed Akbar v. The State (1985 SCMR 1455), Roshan v. The State (1985 PCr.LJ 2312), Mumtaz and another v. The State (1992 MLD 1448) and Muhammad Hafeez v. Special Judge, Anti-Terrorism Court, Mirpurkhas and 2 others (2001 PCr.LJ 199).
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7. Arguments heard. Record perused. 8. The gluttony of an unfaithful wife Zeba is canvassed by the prosecution as the root cause of this crime. Her husband Kamran Munir Mirza (PW.1) had derived handsome share from the sale of ancestral house and the amount was deposited in his bank account. Zeba (since dead) orchestrated a design with her self-proclaimed son Rizwan (appellant) for extorting money from her husband Kamran Munir Mirza (PW.1) and thereby foisted liquor and narcotics on two occasions, got him arrested in a sham raid conducted by fake officials of ANF. Since the tale of the crime is mentioned in Para-2 above, hence it is not being recapitulated in the instant para as it will be an exercise in futility. 9. An in-depth analysis of the record unfolds that the crime is comprising upon two transactions, on each occasion the liquor and narcotics were foisted upon the complainant and handful of amount. was extorted from him on the pretext of avoiding the legal implications. of such recoveries. As per prosecution case, the raid was conducted by appellants Atif, Muqarram and Naveed Butt, who introduced themselves as ANF officials. The first incident occurred on 01.05.2018 and the second took place on 09.05.2018 but their detail was reported to police by Kamran Munir Mirza (PW.1) through his written application (Exh.PA) on 18.07.2018. The afore-mentioned delay of about 2 1/2 months gains significance when seen in the context that Kamran Munir Mirza was a well-settled businessm an and one of his relatives, namely, Dr. Usman was Director, FIA, who even remained posted. as DPO in different districts. Keeping in view the fact that as per canvassed accusations, an amount of Rs.30,000 Million was extorted from the complainant thus the crime, if having some truth, for all practical purposes was of higher magnitude. In accordance with attending circumstances, afore-mentioned delay of 2 1/2 months in reporting the crime to police, is disastrous for the case of the prosecution. In the case reported as Mst. Mehboob Bibi and others v. The State (2017 SCMR 1835) while dilating upon the factum of delay in a case of abduction for ransom, the Hon'ble Apex Court held as under: "As per the prosecution, Usman Hameed was abducted on 01.12.2005 at about 04:00 p.m. but the FIR was got registered after four days i.e. 05.12.2005 at 03:30 p.m., therefore, there is a delay of four days in setting the machinery of law in motion. The complainant tried to explain the delay in reporting the crime to the Police by mentioning in the FIR that the appellants side had threatened him that in that eventuality his son would be murdered but the said explanation does not appear to be plausible." 10. A circumspective scanning of record unfolds that the main edifice of prosecution case rests upon the evidence of complainant Kamran Munir Mirza (PW.1). Even during investigation, he was the sole person who provided the detail of crime like planting of narcotics, conducting of sham raid, his detention and release, payment of amount so demanded by the perpetrators as well as the imparting of crime's information to police. Kamran Munir Mirza (PW.1) was residing in HBFC Society, Lahore along with family comprising upon his wife Zeba and two daughters Arooba etc. The afore-mentioned Zeba was also arrayed as one of the accused in the case and was even arrested but as per prosecution case on 19.07.2018 while she was brought to the house of her husband for recovery, she committed suicide by jumping from the rooftop. So far as, the daughters of Kamran Munir Mirza (PW.1) are concerned, despite being fully grown up young-girls and having mature age of deposing before the court, none of them appeared before the trial court to lift veil from the actual genesis of the transaction in question. It is anxiously noticed by us that none out of the two daughters was even made witness in the case. Though this is the prerogative of the victim of crime to decide the citing of the witness in the case but still if the evidence of an important witness is excluded for no good reason, such omission gives rise to many doubts and foremost out of them is to the effect that had such person appeared in the dock, he would have deposed unfavourably. The case in hand is no exception as even after skimming the file we have not come
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across even a single legally acceptable explanation for withholding the important evidence of both the daughters. In the foregoing circumstances we are not left with any other option but to draw an inference in of Article 129 Illustration (g) of Qanun-e-shahadat Order, 1984 (hereinafter referred to as "QSO, 1984"), which for ready reference is mentioned hereunder: 129. Court may presume existence of certain facts. The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the public and private business, in their relation to the facts of the particular case. Illustrations The court may presume: (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Rafique, etc. v. State and others (PLJ 2011 SC 191) observed as under: ".......that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e- Shahadat Order can fairly be drawn that if PW would have been examined, his evidence would have been unfavourable to the prosecution." 11. Every complex legal question provokes the minds of jurists to ponder upon it and case in hand is of no exception. As mentioned above, during trial the prosecution case was mainly structured upon the examination-in-chief of complainant Kamran Munir Mirza (PW.1) but his death before the cross-examination gave rise to a legal intricacy and it calls for our in-depth indulgence. The examination-in-chief of Kamran Munir Mirza (PW.1) was recorded on 31.05.2019 but the case was adjourned as the learned defence counsel requested for an opportunity to prepare his brief. Unfortunately, subsequent thereto Kamran Munir Mirza (PW.1) could not appear in the witness box so as to be cross-examined by the defence and died natural death. A pressing need is felt to mention here that during investigation, a statement under Section 164 Cr.P.C (Exh.PBBB/1-11) of Kamran Munir Mirza was recorded on 07.08.2018 by Ishtiaq Ahmed Khan Judicial Magistrate (PW.26). In the impugned judgment, the learned Judge ATC placed explicit reliance upon 164, Cr.P.C statement of the complainant and apparently by treating it as substantive evidence handed down guilty verdict to all the appellants. It appears that the trial court under erroneous legal notion treated 164, Cr.P.C. statement of complainant Kamran Munir Mirza as admissible through necessary implication of Section 265-J, Cr.P.C. The provision of Section 265-J is placed in Chapter-XXII-A of Criminal Procedure Code, 1898 inserted through Law Reforms Ordinance, 1972 which pertains to trials before courts of Session. In order to adjudge the applicability of Section 265-J to the case in hand it is considered essential to have a look upon its phraseology: "The statement of a witness duly recorded under Section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the court, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872." (emphasis provided) The language of Section 265-J is explicit in sense and sheds no ambiguity that statement of a witness under Section 164, Cr.P.C recorded during investigation can only be treated as evidence, firstly if it is recorded in presence of accused, secondly if the accused had prior notice of it, thirdly if he is given an opportunity of cross-examination, fourthly if such witness is produced and examined during trial. It is noticed that the police through application (Exh.PAAA) requested the Judicial Magistrate Model Town, Lahore for recording the statement of Kamran Munir Mirza under Section 164, Cr.P.C and the
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needful of recording such statement was done on 08.08.2018. Nothing as such is available on record to gather that the accused in custody were served with some notice about the recording of such statement, thus the condition precedent of "if he had notice of it" postulated in Section 265-J, Cr.P.C remained unfulfilled. Even otherwise, cross-examining a witness is essentially a right of accused to be provided with all fairness and seriousness. Though accused cross-examined Kamran Munir Mirza, but the fact remains that they had no prior knowledge about the exact nature of such statement and indeed were taken by surprise. Even the case diaries and the deposition of Investigating Officers are in eternal silence about the serving of a notice upon the appellants so as to intimate them about the 164, Cr.P.C statement to be recorded on the following day. The serving of a notice in accordance with Section 265-J, Cr.P.C. is not a simple formality, rather essentially a legal requirement which if not fulfilled is likely to entail consequences of discarding such incriminating evidence. The non-adherence to the mandatory provision of serving a notice before recording 164, Cr.P.C statement in the instant case, left not even least prospect of treating it as evidence. The question of serving prior notice for recording 164, Cr.P.C statement came up for hearing before the Hon'ble High Court of Sindh in case reported as Ghulam Muhammad v. The State (1985 PCr.LJ 829) and was dealt with the following observation: "When statement of P.W. Ayyub made under Section 164, Cr.P.C. is tested in the light of the above principles laid down in PLD 1982 Kar. 975, it is found that in the circumstances of this case much reliance cannot be placed on such statement. No notice in writing had been given to the appellant before such statement was recorded. Neither the police diary nor the statement of Investigating Officer indicates that any verbal notice in this regard was given to the appellant." The mandatory requirement of notice arising out of Section 265-J, Cr.P.C was further thrashed by a Division Bench of the Hon'ble Sindh High Court in another case reported as Abdul Hakeem and another v. The State (PLD 1982 Karachi 975) with the following observation: "A reading of this section makes it plain that the statement should be recorded in the presence of the accused, the accused should have notice of the recording of such statement, and he should have notice of the recording of such statement, and he should also be given an opportunity of cross-examining the witness. On the fulfillment of these conditions, the statement should be brought on record, within the discretion of the court. Such discretion should be exercised if in the process of recording such statement sanctity attaches to it, as normally, such statements are recorded only in cases involving capital sentence. The mere fact of a police officer stating that he put the accused on notice would not be sufficient. Such notice should be in writing and should also state that he has a right to cross-examine the witness. Normally, in these circumstances, the accused knowing peril in the process would attempt to engage an advocate and ask for copies of police statements in advance, so as to effectively cross-examine the witness. Non-compliance with the spirit underlying Section 265-J exposes the statement to serious criticism. After all, if an accused is suddenly marched off to the court and asked to cross-examine a witness, he cannot effectively exercise his right under the law. It is also cardinal principle of law enshrined even in the Constitution that every person has a right to be defended by an advocate of his choice. In these circumstances, if no proper notice is given, failure of justice might inevitably result and the court has to be on caution. Applying these tests to the instant case, we find that no notice in writing was given to the appellants before recording the statements under Section 164 Cr.P.C. and there is absence of mention even in the police diary, as according to the Investigating Officer he did not even mention this fact in the police diary." It further follows from the plain review of Section 265-J, Cr.P.C that the 164, Cr.P.C statement of a witness will attain the status of evidence if the witness subsequently appears before the trial court and more importantly is examined as such. The appearance of witness and his examination are to be read in conjunction and not in isolation from each other so as to attain admissibility.…
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