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Petitioner: Ch. Aamir Shahzad VS Respondent: Muhammad Makki and 5 others
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani, Lubna Saleem Pervez Title: Ch. Aamir Shahzad vs Muhammad Makki and 5 others Case No.: Criminal Appeal No.8 of 2011 Date of Judgment:2020-07-07 Reported As: 2021 YLR 1641 Result: Appeal allowed
JUDGMENT
JUDGMENT MOHSIN AKHT AR KAYANI, J.---Through the instant criminal appeal, the appellant has called in question judgment of the learned Special Court (Anti-T errori sm Court-I), Rawalpindi, dated 18.01.201 1, whereby Respondents Nos.1 to 5 have been acquitted in private comp laint under sections 365-A/34, 149, 109, P.P.C. read with section 7 of the Anti-T errorism Act, 1997. 2. Brief facts referred in the instant crimi nal appeal are that on 15.09.2009, at about 09:00/09:15 p.m., when Ch. Aamir Shahzad/appellant was going towards his vehicle after offering Isha prayer in F-11 Markaz, he was abducted by two alre dy known accused persons to appellant namely Abdul Ghafoor and Muhammad Makki along with three unknown accused persons to ;ppellant namely Alam Sher, Amir Rehman and Adnan. The appe lant was then taken in his own vehicle and after travelling for a while; he was shifted to another vehicle and taken blindfolded to some unknown place for the purpose of demand of ransom. Accordingly , appellant's sister namely Shabana Kausar got registered FIR No.455/2009 at Police Station Shalimar , Islamabad and during investigation of the matter on 03.10.2009, Aamir Rehman/accused was arrested while in possession of the ransom amount handed over to him by PW-3 Ch. Muhammad Afzal. On the pointation of said accused person, a raid was conducted at Flat No.5, Al- Safa Heights, Sector F-11, Islamabad, wherefrom the appellant was recovered from the illegal confinement of Muhammad Makki and Alam Sher/accused persons (Respondents Nos.1 and 2). However , after the recovery of appellant, his statement was not recorded by the police and the appellant having apprehension that police is not properly investigating the matter filed an application to Assistant Commissioner , Islamabad for recording of his statement under section 164, Cr.P.C., whereafter his statement was recorded along with statements of four others and consequently respondents/ accused persons were summoned, though Respondent No.5 for being absconder was proceeded under section 19(10) of the Anti-T errorism Act, 1997, while the four accused persons were formally charged under section 7(e) of the Anti-T errorism Act, 1997 read with sections 365-A/149, P.P.C., who pleaded not
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guilty and claimed trial. After recording of pro and contra evidence/statements of the parties, the learned trial Court vide impugned judgment dated 18.01.201 1 acquitted respondents/accused persons. Hence, the instant criminal appeal. 3. Learned counsel for appellant contends that the learned trial Court while taking into account minor discrepancies had ignored material facts of the case that the respondents/accused persons themselves admitted during the course of trial that they abducted the appellant; that the learned trial Court had also ignored to appreciate the factum of raid and ransom money recovered from the accused person; that the learned trial. Court has not appreciated the evidence brought on record by the appellant side and acquitted the respondents/accused persons of the charge in whimsical manner; that the learned trial Court has relied upon defective material produced by the defence while passing the impugned judgment, which is illegal, arbitrary and against the settled principles of law . 4. Conversely , learned counsel for respondents Nos.1 to 5 contended that the appellant has miserably failed to prove the charges against the said respondents/ accused persons and the learned trial Court has rightly appreciated all these facts while passing the impugned judgment; that no fact regarding any enmity on the part of respondents/ accused persons has been shown or proved by the appellant; that the case as established by the appellant suffers from doubts and the evidence produced by the appellant side is not consistent, which has rightly been declared inadmissible by the learned trial Court while passing the impugned judgment; that a direct appeal against judgment of acquittal in complaint case is not maintainable in terms of section 25(4) of the ATA, 1997 read with section 417(a)(ii), Cr.P.C.; that Ch. Amir Shahzad/appellant i.e. alleged abductee is absconder in another case FIR No.74, dated 27.02.2014, under sections 420, 468, 471, 406/34, P.P.C., Police Station Shalimar , Islamabad and as such, he loses his normal right of audience and instant appeal is not maintainable. Similarly , learned State Counsel contended that instant appeal is not maintainable as there is no direct appeal provided under the law and special leave to appeal was not obtained by the appellant at the first instance, whereas this defect is not clarified. 5. Arguments heard, record perused. 6. Perusal of record reveals that on 15.09.2009, appellant was allegedly abducted from F-11 Markaz when he dropped his family members including his inter Mst. Shabana Kausar/PW -1, Mst. Rukhsar Kausar and his wife Mst. Tayyaba at Irfan Dental Clinic situated in F-11 Markaz for medical treatment, when he never returned back, is sister Shabana Kausar lodged the FIR o. 455/2009 at Police Station Shalimar , Islamab ad for his abduction. However , Mst. Shabana Kausar/PW -1 received a call on her mobile No.0322-5509009 from mobile number of her brother Aamir Shahzad/appellant i.e. No.0333-5777794, Whereby the caller told her that her brother is in safe custody and his car No.PG-237 has been parked near greenbelt Filtration Plant, F-11, the said caller demanded Rs.25 crore as ransom for release of appellant. The said caller also extended threats not to inform the police and granted two days time for arranging the ransom. Complaina nt Mst. Shabana Kausar got submitted the complaint Ex.PA, which was converted into FIR No.455, dated 16.09.2009, under sections 365-A/34, P.P.C. Police station Shalimar , Islamabad. After initial investigation the alleged abductee has been recovered and three accused persons were arrested, however , appellant being dissatisfied with the investigation conducted by police filed private complaint under sections 365-A/149/ 109/34, P.P.C. read with section 7 ATA, 1997, which was admitted for regular hearing by the Anti-T errorism Court, Islamabad. Where after, the respondents were acquitted by the learned Trial Court vide judgment dated 18.01.201 1. Hence, the instant criminal appeal. 7. Learned counsel for respondents has raised two objections regarding maintainability of instant criminal appeal, which are as under: a) Ch. Aarnir Shahzad/Appellant i.e. complainant/abductee filed the instant criminal appeal against judgment of acquittal, who himself is an absconder in case FIR No.74, dated 27.02.2014, under sections 420, 468, 471, 406/34, P.P.C., Police Station Shalimar , Islamabad and as per the respondent's objec tion, the instant appeal is not competent as the absconder loses his normal right of audience as held in cases reported as PLD 1981 SC 265 (Hayat Bakhsh v . The State ) and 2005 PCr .LJ 1789 Lahore ( M. Saleem Akhtar v . S.H.O. Police Station Chotiana ). b) A direct appeal has been filed by the appellant against judgment of acquittal, which is a violation of section 417(a)(ii), Cr .P.C. and section 25(4) of the ATA, 1997.
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Before going into merits of the case, we have to decide the above referred two objections raised by the respondent side at first instance. 8. To controvert the aforementioned objections, the learned counsel for appellant contends that the objections of the respondent side are related to those accused persons who absconded in any criminal case, whereas in this case, he appellant 'having been declared fugitive offender in criminal case FIR No.74/2014, which has no nexus with the instant case, even otherwise, the appellant was not declared absconder at the time of filing of instant appeal on 25.01.201 1, while the appellant was declared absconder on 12.01.016 i.e. after five years of filing of the instant appeal, therefore, judgments relied upon by the respondent side are not applicable to the present caase. There is no cavil to proposition that a person fugitive from law has no right of audience and even the case law cited by respondent side confers this aspect, but the proposition in hand is different, whereby the fugitive offender loses his concession of bail as well as joining of court proceedings, but the respondent side has failed to justify the right of representation earlier available to the appellant under the law, which could not be curtailed due to subsequent event in another FIR after six years of filing of appeal. The Constitution of the Islamic Republic of Pakistan, 1973 ensures and provides guarantee for equal protection of law to every individual and as such, the case in which the appellant is an accused has no nexus with this case, even the presence of appel lant is not required in this case. The legal questions and arguments could only be addressed by his counsel Whose power of attorney is still intact, the Court can decide the appeal even without appellant in terms of section 423, Cr.P.C. Reliance is placed upon PLD .1971 SC 223 (Asif Ali v. The State ), PLD 1961 Dhakka 78 (Hafiz and another v. The Store ) and PLD 1961 Karachi 709 (Muhammad and Others v. The State ), therefore, the objection raised by respondent side regarding maintainability of instant criminal appeal on abscondance of appellant is misconceived and same is hereby rejected. 9. Similarly , regarding the second objection raised by the respondent side, learned counsel for respondent contends that when an accused person is acquitted pursuant to dismissal of criminal complaint, the complainant has to seek a special leave to appeal in terms of general law i.e. section 417(2), Cr.P.C. and this aspect was specifically provided in section 25(4-B) of the ATA, 1997, which is as under: 25. Appeal . (1) An appeal against final judgment of an Anti T errorism Court shall lie to a High Court. (2) (3) (4) (4-A) (4-B) If an order of acquittal is passed by an Anti-T errorism Court in any case instituted upon complaint and the High Court, on an Application made to it by the complainant in this behalf, grant Special leave to appeal from the order of acquittal, the complainant may within thirty W ays present such an appeal to the High Court. Learned counsel for respondent while arguing his case contended that the appellant has not filed any application for special leave before this Court, rather directly filed an appeal, which is not maintainable and as such, leave could not be granted at this belated stage. 10. Conversely , learned counsel for appellant contended that instant appeal was directly filed on the wrong advice of the counsel, the office of this Court had not raised any objection at the time of filing of instant appeal, even this Court has issued notices to the respondents vide order dated 04.04.201 1 while considering the law and the facts in the judgment of the acquittal and as such, at this stage the appellant should not be burdened for the mistake and act of the Court. He further contended that criminal appeal has been filed within prescribed period and this Court in the interest of justice can convert one kind of proceedings into another while exercising inherent powers in terms of section 561-A, Cr.P.C. which are meant to cater such exceptional circumstances in which the Court shall not look into the technicalities at the time of admission of instant appeal. 11. We have gone through the arguments advanced by both the parties and in order to resolve the controversy we are fortified with the view taken by the apex Court in cases reported as 2017 SCMR 56 (Muhammad Akram v. DCO Rahim Yar Khan ), 2017 SCMR 118 (Mian Asghar Ali v. Government of Punjab through Secretary ), PLD 2018 SC 449 (Sher Alam Khan v. Abdul Munim ) and PLD 2012 SC 421 (Mst. Gul Jan v. Naik Muhammad ), whereby the
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apex Court, while relying upon. the principle of Ex Debito Justitiae (from what is due to justice), has converted one type of proceedings into another by holding that an appeal has to be converted into revision and vice versa and constitution petition could be converted into an appeal and vice versa. The Courts not only can exercise the powers to advance the cause of justice but also to prevent injustice, no fetters or bars could be placed on the High Court or on the Supreme Court to convert and treat one type of proceedings into another and proceed to decide the same. Reliance is placed upon 2020 SCMR 500 (Commissioner of Income T ax (Legal) R TO v. ED-Zublin AG Germany ). 12. In view of above principles, laid down by the apex Court, the provisions of section 561-A, Cr.P.C. rescue the appellant in order to meet the ends of justice and this Court is of the view that appellant should not be burdened due to mistake of his counsel as well as of the office of this Court, who have not considered the law in its true perspective at the initial stage, although the appeal was filed within time, but no special leave was obtained, nor any such order was passed. However , there is no bar to consider the instant appeal as an application for special leave at this stage and allow the same while giving effect from the date of admission of instant appeal i.e. 04.04.201 1, as the Court shall not sit as a silent spectator and to watch that who has committed the mistake. Reliance is placed upon 1981 SCMR 294 (Abdur Rahim v. The State ). Every Court has inherited powers to ensure justice is done and if foul play is visible, the Judge has to rectify the same, whereas this Court committed a mistake while entertaining the instant appeal directly at its initial stage, which could not be considered against the appellant although he has also not applied the law in a proper manner , therefore, relying upon the principle of "Actus Curiae Neminem Gravabit " that no one should be prejudiced by the act of Court. Reliance is placed upon 2016 SCMR 834 (Muhammad Ijaz v. Muhammad Shaft ); 2013 SCMR 1419 (Lanvin Traders, Karachi v. Presiding Officer ) and PLD 2016 SC 872 (Khushi Muhammad v. Mst. Fazal Bibi). The objection of respondent side regarding non-filing of application for special leave stand condo ned, the appeal is maintainable while invoking the inherited powers in terms of section 561-A, Cr .P.C. in order to meet the ends of justice. 13. In order to decide the case on evidence available on record, it has been observed that the appellant has nominated Muhammad Makki, Alam Sher, Aamir Rehman, Abdul Ghafoor and Adnan Khan as accused persons in a private complaint, however , accused Adnan Khan did not appear and absconde d during the trial, who has been tried in absentia. 14. The initial statement was recorded by PW-1 Mst. Shabana Kausar/ compla inant of case FIR No.455/2009 (Ex.P A/1), wherein no accused was nominated by name. She did not identify the caller who made call for the purpose of ransom, however , she ackno wledged that she knew accused Muham mad Makki and Abdul Ghafoor prior to the said occurrence as she and her brother purchased several properties from them valuing about Rs.15 crore. She also acknowledged that her brother/alleged abductee was also known to accused persons prior to said occurrence and she recorded supplementary statement regarding nomination of accused persons. 15. The appellant has produced his other sister i.e. Mst. Rukhsar Kausar as PW-2, who narrated the entire story of the alleged occurrence, however , she further stated that she along with her sister went to airport to receive her other brother namely Afzal Cheema, who was in USA at the time of alleged incident and was informed by Mst. Shabana Kausar . She also acknowledged that she was informed by her sister that caller demanded Rs.25 crore for release of her brother and she also did not nominate any accused person in her statement before the police. 16. The appellant has produced his brother i.e. Ch. Muhammad Afzal as PW-3, who stated that he was in USA on 15.09.2009 when he was informed by her sister regarding kidnapping of Aamir Shahzad/appellant, where-after he came to Pakistan on 16.9.2009. He further stated that he has also received a call from the abductor who demanded Rs.25 crore for the release of his brother and in default, abductor threa tened to kill his brother . Ghafoor and Makki accused present in the Court used to meet him and told him that they would help him tracing out his brother as both the said accused persons called him in their office and told him that they would settle the issue with alleged abductor for release of his brother for the sum of Rs.10 crore, whereupon he replied that he needs some time for arranging the ransom amount, they also assured him that they will arrange ransom amount of Rs.5/7 crore for him. PW-3 told all these facts to the police and on the instructions of police, he confirm the accused persons for delivery of ransom amount, upon which he was informed that amount would be received at Jungle Hotel Kashmir Highway by the abductor . After receiving this information, the police has arranged a bag containing notes Ex.P1,
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which were photocopies of the original currency notes. PW-3 reached at Jungle Hotel at about 04/4:30 p.m. along with police party headed by DIG and when he saw a white colour Corolla car, from which accused Aamir alighted, came towards him and received the bag Ex.P1, he was arrested by the police, who during interrogation at spot disclosed about the place of confinement of Aamir Shahzad (alleged abductee) as Flat No.5, Al-Safa Heights, F-11, Islamabad. Police party on pointation of Aamir Rehman raided the said flat and arrested the accused Makki and Alam Sher while in possession of pistol Ex.P-2 (black colour) while Aamir Shahzad/appellant was tied up with ropes Ex.P3/1-2. 17. During the course of cross-examinati on, PW-3 Ch. Muhammad Afzal acknowl edged that police did not record his statement during entire investigation despite the fact that police party visited him at his house and he also joined investigation 5/6 times, while he visited the police station for 8 times. He did not recognize the voice of caller who called for ransom amount, nor he remember exact number on which he received the call, but he handed over the SIM to police. PW-3 did not give the original currency notes of Rs.10 crore, rather police told him that they have arranged the photostat currency nots, however , he did not remember the name of said police officer who arranged the same. He also acknowledged that his brother/appellant filed a private complaint after four months of recovery . He purchased flats from accused persons and he came to know about the names of Aamir Rehman and Alain Sher in the police station, he handed over the bag to accused Aamir Rehman. 18. Appellant/Ch. Aamir Shahzad Cheema (abductee) appeared as PW-4 and recorded his statement in the following manner:- On 15.09.2009, I took my sister Rukhsar Kausar and my wife Tayyba Aamir to dental clinic in F-11 Markaz Islamabad. The time was 7/7:30 P.M. I dropped them at the clinic whet they asked me to go to say prayer as they will take some time for their checkup. I did not go to say prayer and remained sitting in my car there. Meanwhile I received a telephone call of my friend Rashid for seeing the flats. I went to see the flats at the place where he called me. After visiting the flats, I came back to the above said clinic but I did not see my family outside the clinic and then I went to mosque to offer prayer . Meanwhile a heavy rain and storm started, when I came outside the mosque, there was heavy rain outside and nobody was present. When I was going to open the door of my car through key, five persons including' accus ed Makki and Abdul Ghafoor , now present in Court, came there and tried to snatch key of car from me on gunpoint. At my resistance, accused forcibly got me seated in the rear seat of my car and one of the accused namely Maki sat with me on one side while the other accused namely Abdul Ghafoor sat with me on other side. Two accused sat on front seats. The accused drove the car and after passing some distance accused boarded me in another vehicle like Hiace. They covered my eyes with a piece of cloth and got me laid on the back seat of above said vehicle. After travelling for about 1-1/2 hours, accused confined me in a room and removed the cloth from my eyes. After some time, both accused Makki and Abdul Ghafoor came to me and told that they have abducted me for ransom and if my family pays ransom to them, they would release me otherwise, they would kill me. They were demanding ransom after every 2/3 days and were also telling me that my family was not fulfilling their demand. After 5/6 days, the accused shifted me during night to some other place. They again shifted me to previous place on 01.10.2009 On 03.10.2009, police recovered me. My brother Afzal was also accompanying the police at that time. At the time of recovery , my hands and feet were tied with ropes, P3/1-2. At the time of my recovery , accused Maki and Alam Sher were arrested from place of my recovery . I do not know whether police was accompanied by any accused. Again said accused Aamir Rehman was also present at the time of recovery but I do not know whether accused 'Aamir Rehman came along with police or he was already there. 19. After recording of above referred statement, the appellant further stated that he was not satisfied with the investigation and he filed private complaint Ex.PB and verified his signature as Ex.PB/1. 20. Basharat Hussain/ASI of Police Station Shalimar appeared as CW-1, who stated that on 03.10.2009, he was posted at P.S. Shalimar , Islamabad and at about 03:30 p.m., he along with Ghulam Muhammad Shah, S.I, Javid Awan, S.I, Habibullah, ASI, and other HCs/ constables together with Muhammad Afzal Cheema went to Jungle Hotel situated at Kashmir Highway , Islam abad, where at about 04:20 p.m. whereby PW-3 Ch. Muhammad Afzal Cheema was holding a black colour bag containing the ransom money and Ghulam Muhammad Shah, S.I. assigned them different positions, PW-3 Ch. Muhammad Afzal Cheema went behin d Jungle Hotel, where a Corolla
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car was parked at some distance, in which accused Aamir Rehman, now present in the Court, was sitting and when PW-3 Ch. Muhammad Afzal Cheema proceeded towards said accused Aamir Rehman, he alighted from his car and proceeded towards PW-3 Ch. Muhammad Afzal Cheema, who handed over the black colour bag containing ransom amount to the said accused Aamir Rehman, whereafter Aamir Rehman was apprehended by the raiding party and the amount of Rs.10 crore was recovered, which consisted of 200 bundles in the denomination of Rs.5000/- having two colour copies of 5000 currency notes in which there are 98 blank papers. The bundles are referred as Ex.P5/1-200. The amount was taken into possession vide recovery memo Ex.PC, signed by him and Javid Awan S.I./I.O. also took into possession car bearing registration No.RLD-36 9, vide recovery memo Ex.PD. On the personal search of accused Aamir Rehman two mobile phones (Exh.P6/1-2), NIC (Exh.P7) and cash of Rs.5010/- (Exh.P8) were recovered, taken into possession vide recovery memo Ex. PE. On spot investigation, accused Aamir Rehmand disclosed that abductee has been detained in Al-Safa Heights, Sector F-11/1, Islamabad, whereupon raiding party reached at the said place on pointation of accused Aamir Rehrnan,, door of Flat No.5 was knocked, whereby accused Alam Sher was arrested on opening the door. Muhammad Makki present in the Court was also present inside the flat, who was also arrested and Aamir Shahzad/alleged abudctee was recovered from the said flat, who was tied up with ropes referred Ex.P3/1-2. From personal search of accused Alam Sher and Makki pistols .30 bore were recovered. From accused Makki his I.D card, driving license, two bank cards, one metro card, a cheque valuing Rs. One Lac, Nokia mobile phone and cash Rs.12,000/- were also recovered and taken into possession vide Ex.PF , whereas pistol was separately taken into posses sion as Ex.PG. Pistol recovered from accused Alam Sher was taken into possession vide recovery memo Ex.PH, Honda car PG-237 was also taken into possession by I.O. through Ex.PJ and car has been presented as P-10. 21. CW-1 Basharat Hussain/ASI acknowledged that PW-3 Ch. Muhammad Afzal Cheema brought the dummy notes to Police Station. At the time of arrest of accused Aamir Rehman, 15/20 persons were present at Jungle Hotel and except PW-3 Ch. Muhammad Afzal Cheema, no private person was with police at Jungle Hotel. He also stated that no pistol was recovered from accused Aamir Rehman at the time of his arrest. The flat from where abductee was…
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