' SARMAD JALAL OSMANY, J.---This judgment will dispose of all the above-mentioned Appeals which impugn the judgment dated 12-2-2004 passed by the learned Judge, Anti-Terrorism Court No. V, Karachi whereby the Appellants/Accused were convicted for an office under section 7 (c) of the Anti-Terrorism Act, 1997 read with section 365-A, P.P.C. And section 344, P.P.C. And sentenced to death as well as to undergo R.I. For three years and to pay a fine of Rs.10,000 each or in default thereof to suffer R.I. For three months more. They were extended the benefit of section 382-B, P.P.C.
2. The brief facts of the case, as per F.I.R. No.226 of 2003 lodged at Police Station Darakhshan, Clifton, Karachi on 31-8-2003 at 1700 hours by the Complainant Mansoor Javed son of Iqrar Hussain, are that on 30-8-2003 at 1935 hours his nephew Syed Raza Abbas Zaidi (Abductee) had set out from his house bearing No.56-II, 3rd Street, Khayaban-e-Momin, Phase-V DHA, Karachi in a Toyota Lexus Car bearing Registration No.ACS-650 to drop his sister Zoya Zaidi at Bungalow No.86/1, Main Khayaban-e-Shahbaz, Phase-V, DHA, Karachi, Thereafter at about 2345 hours a person namely Mansoor, resident of House No.1460/8, Federal B. Area Karachi called up at the office of the Complainant from Phone No.5864059 and informed that the above-mentioned vehicle was lying abandoned near his house. The Complainant reported the matter to police control at 15. Then at 0130 hours in the morning of the next day a telephone call was received at the residence of the Abductee informing his family that Raza Abbas Zaidi had been abducted and a demand of Rs.10 crores as ransom was made and then the line was immediately disconnected. The F.I.R. Was accordingly lodged on the next day viz. 31-8-2003 at 1700 hours.
3. Per the prosecution, an amount of Rs.7,000,000 (Rupees Seven Million only) was paid to the abductors on 21-10-2003 and then Raza Abbas Zaidi was released by them on the same day when he returned to his home.
4. Upon spy information the Appellant/Accused Rustam Baloch was arrested on 1-11-2003 at about 0345 hours near Sohrab Goth, Karachi. This accused during the course of interrogation disclosed that sometime ago he along with other Appellants/Accused Asif Hussain and Salahuddin as well as absconding Accused had kidnapped Raza Abbas Zaidi and that the said two Appellants would be available at K.F.C. Restaurant in D.H.A. At about 0900 hours on the same day. Accordingly, the Police Authorities reached K.F.C. Restaurant situated at Street No.26, Khayaban-e-Badar, D.H.A. At the said time and day, and saw those two accused persons sitting there in a Suzuki Alto Car who were arrested. Then after the usual investigation, the charge-sheet was filed before the learned Tribunal Court against the Appellants as well as the Co-Accused Zeeshan alias Burger alias Ali Naeem, Abu Sufian, Rafique Jatt, Mst. Natasha alias Nisha alias Sonia, Haji Mashooq Brohi and Atique. The said co-accused were declared absconders after necessary proceedings had been completed against them under sections 87 and 88, Cr.P.C. Then upon the case of the Appellants being bifurcated, the Charge was framed against them to which they pleaded not guilty and claimed their trial.
5. In support of its case, the Prosecution examined P.W. 1, S.I Ali Muhammad who produced the Mashirnama of Arrest of Rustam Baloch son of Ghulam Rasool as Exh. 8; P.W. 2 Mansoor Javed, the real maternal uncle of the abductee who produced his application (Exh. 10) addressed to the S.H.O., P.S. Darakhshan regarding the incident which was subsequently registered as the F.I.R. P.W. 3 A.S.I.
Tahir Naseer who produced the audio cassette allegedly containing the conversation between the abductors and the family of the abducted as well as the record of the incoming and outgoing calls on the abdcutee's Mobile Phone No.0300-9221626 during the relevant period as Article A and Exh. 13 respectively; P.W. 4 Zahoor Ahmed, the Gardner, who produced Memo. Of Recovery of Rs'.400,000 from the house of Accused Asif Hussain as Exh. 15; P.W. 5 Muhammad Irfan who delivered the ransom money to the Appellants, and produced the memo. Of identification parade as Exh.18 and his 164, Cr.P.C. Statement as Exh. 20; P.W.6 Perveen Zaidi, the mother of the Abductee; P.W.7 A.S.-I.
Allah Bachayo who produced the F.I.R. As Exh.23; P.W.8 Inspector Ghulam Akbar who arrested the Appellant/Accused Rustam Baloch and produced the Memo. Of such arrest as well as the F.I.R.
Under sections 324/353, P.P.C. Registered against him as Exh. 26 and 27; P.W.9 Farooq, Assistant Controller, CPLC who produced the Memo. Of place of occurrence as Exh.30; P.W. J.M. Rahmatullah who recorded the statements of some of the witnesses under section 164, Cr.P.C. As Exh.39; P.W.
Atiq-ur-Rahman S.I. (AVCC) who produced the Entry in the Daily Dairy of the AVCC entered on 1-11- 2003 at 1100 hours as Exhs. 41,42, 43.
6. Thereafter the Prosecution closed its side when the statements of the Appellants/Accused were recorded under section 342, Cr.P.C. In which they denied the entire prosecution case and claimed their trial. None of the Appellants examined themselves on oath. Appellant Rustam produced copies of Daily Aghaaz, Karachi dated 31-10-2003 and 7-11-2003 as Exhs. 56 & 57 which showed that he was arrested on these two dates. In his defence, Appellant Asif Hussain examined D.W.-1 Raheel Manager MCB, Sara Center, Branch DHA, who produced a cash cheque in the amount of Rs.3,50,000 dated 4-11-2003 drawn on the account of this Appellant as Exh.D/2; D.W.-2, Shahnawaz Junejo who produced a certified copy of the complaint which he had filed against the police official and F.I.R.
As Exhs. D/4 and D/5; and D.W.3 PC Bahadur who produed a certificate regarding his place of duty as Exh. D/8. Appellant/Accused Salahuddin examined D.W.-4, Dr. Ali Muhammad who produced the Register of the Basic Health Unit, Gidder Appen, Taluka Tando Adam, District Sanghar. Finally the learned A.T. Court after hearing the learned Counsel for the Accused as well as learned S.P.P. For the State, delivered the impugned judgment convicting and sentencing the Accused as afore- stated.
7. Mr. A.Q. Halepota appearing for the Appellant Asif Hussain in A.T.A. No.4 of 2004 has firstly submitted that insofar as the ocular account is concerned, the Abductee has only recognized Appellant Rustam in the identification parade and not Asif and Salauddin. However P.W. Irfan has recognized all three Appellants and has given a role to them viz. Rustam had collected the ransom amount from him and at that time he was riding a motorcycle, whereas four other accused i.e. One woman and three men were sitting in a red coloured Mehran car at some distance out of whom he recognized Appellants Asif and Salahuddin. Further according to this witness, Rustam had handed over the bag containing the ransom amount to Salahuddin. Per learned Counsel the testimony of P.W. Irfan is hearsay since driver Zubair, who had informed him that the mother of the Abductee had given the ransom amount which was to be delivered to the abductors, was never examined consequently the deposition 'of W.P. Ifran was inadmissible under Article 70 of the Qanoon-e- Shahadat. In support of this submission learned Counsel has relied upon Khurshid Ahmed v.
Qabool Ahmed (PLD 1964 Karachi 356) and Ishaq v. The State (PLD 1985 Karachi 595). Further per learned Counsel P.W. Irfan has improved his 164 Cr.P.C. Statement before the learned trial Court since under cross-examination he has admitted that never stated the registration number of the motor cycle or the car in such statement. Finally, with regard to the deposition of P.W. Ifran vis-a-vis Asif, per learned counsel the former only stated that the latter was sitting in the car with Salahuddin to whom Rustam had delivered the money. Hence this is only a circumstantial piece of evidence insofar as the case of Asif is concerned and consequently requires strict corroboration from unimpeachable sources. Per learned counsel a conviction as against Asif on this piece of evidence could only be recorded when it is wholly incompatible with his innocence and hence all such possibilities have to be excluded. For this proposition he has relied upon Muhammad Shaheen Tariq v. The State (1995 P.Cr.L.J. 1717) and Talib Hussain v. The State (1995 SCM R 1538).
8. Next learned counsel has adverted to the other piece of evidence available against Asif v.z recovery of Rs.400,000 from his father's house at his pointation which was allegedly his share of the ransom amount, the witnesses to which were P.W. Zahoor Ahmed and one Police Constable. Per the latter, he is a Gardner and was passing by Asif father's residence when he was asked by the police to become a witness to the recovery. Hence as he was a chance witness, his deposition requires strict corroboration which is not available on the record. Furthermore it has not at all been explained by the Prosecution why a person who admittedly does not reside in the locality was asked to witness the recovery and consequently the provisions of section 103 Cr.P.C. Were violated for which a negative inference is to be drawn. In support of this submission learned counsel has relied upon Tayyeb Hussain Shah v. The State (2000 SCM R 683) and Muhammad Imran v. The State (1993 PCr.LJ 2487). In this respect learned counsel also submitted that per the testimony of D.W.-1 Raheel the Bank Manager, Rs.350,000 were withdrawn from Asif account on the day of the recovery which is quite peculiar as admittedly on such day he was in police custody. Similarly the said witness has admitted that the handwriting on the cheque and the signature were different and also on the counterfoil.
9. Next learned counsel has taken up the evidence of P.W. Perveen, the mother of the Abductee according to whom her husband had collected the ransom amount which she had given to Driver Zubair for deliver to the abductors. Per learned counsel again such evidence is hearsay since neither Zubair nor her husband (father of the abductee) were examined. Similarly per learned counsel, the Abductee has said nothing about any ransom being delivered to the abductors at all.
10. Finally learned counsel has taken up the deposition of A.S.-I. Tahir Naseem who has produced the mobile telephone bill of the Abductee showing that calls were made to and from this phone to the Abductee's house during the period of his captivity. Per learned counsel this cannot be connected in any manner to the Appellants since according to the Abductee none of them were present during his period of captivity. So also the cassettes of such telephonic conversation were played before the learned trial Court but the voices therein were not recognized by any of the witnesses.
11. For all the forgoing reasons learned counsel has submitted that A.T.A. No.4 of 2004 be allowed and Appellant Asif Hussain be acquitted.
12. Mr. Abdul Mujeeb Pirzada appearing for Appellant Salahuddin in A.T.A. No.5 of 2004, has fully supported the arguments of Mr. A.Q Halepota. He has additionally submitted that the identification parade in which P.W. Irfan had identified all the Appellants was defective as this was the second one as in the first parade, he had not made any positive identification. Secondly, the dummies used in both the identifications were the same and consequently it could not be relied upon. Finally, per learned counsel the identification parade was delayed as the accused were arrested on 24-9- 2003 and the test was held on 7-10-2003 for which no plausible reasons have been given by the prosecution at all.
13. Next, learned counsel has submitted that P.W. Irfan was a chance witness as admittedly he was plying a taxi on a daily basis and lived in Nazimabad and on the day of incident he happened to visit driver Zubair whom he knew previously. In these circumstances, the testimony of P.W. Irfan cannot be accepted without corroboration from other sources which is not available at all. Finally, insofar as P.W. Irfan is concerned, per learned counsel, his version as narrated before the learned trial Court regarding delivery of the ransom amount is not in consonance with that of driver Zubair as per his 164 Cr.P.C. Statement. According to the latter, whereas one person came on the motorcycle to collect the money from P.W. Irfan, only two other persons were available in the car where such money was delivered; however, according to P.W. Irfan four such persons were sitting in the car including a woman.
14. Next learned counsel has submitted that strangely enough there is no account at all as how the ransom amount was collected although the Abductee remained in the custody of the abductors for over 50 days. In this connection, it is also strange that no trap was laid for the arrest of the accused at the time of delivery of the ransom amount and neither were the currency notes marked. Per learned counsel, normally this is done by the law enforcing agencies.
15. Finally, learned counsel has submitted that non-examination of material witness viz. Driver Zubair renders the entire prosecution case doubtful. In these circumstances only one inference could be drawn viz. That his evidence was not favourable to the prosecution case. In this regard, learned counsel has relied upon Muhammad Shaheen Tariq v. The State (1995 PCr.LJ 1717).
16. For all the forgoing reasons learned counsel has prayed that A.T.A. 5/2004 be allowed and Appellant Salahuddin be acquitted.
17. Mr. Gohar Iqbal, appearing for Appellant Rustam in A.T.A. Nos. 8 and 11 of 2004 (two appeals have been filed by this Appellant against the same impugned judgment), has firstly submitted that according to the prosecution case, Rustam has been shown to be arrested on 1-11-2003. However, per the newspaper repots on the record, he was arrested on 31-10-2003, which causes a doubt at least in the manner of his arrest and the date thereof.
18. Next, per learned counsel P.W. Mansoor Javed, who is the Uncle of the Abductee, has admitted that he dictated the application regarding the incident to his Chowkidar Sikander Khan, which he had submitted at Police Station Darakhshan, Karachi on 31-8-2003 at about 11-00 a,m. (Ex.10).
According to learned counsel this is a very strange behaviour as why should the uncle of the Abductee dictate the application to his Chowkidar which causes a doubt in the matter.
19. Reverting to P.W. Irfan, learned counsel has submitted that he is a chance witness and hence his testimony requires strict corroboration. Even otherwise, it is quite strange as to why the driver of the family should be entrusted to deliver the ransom money and even more peculiar that said driver (Zubair) should in turn ask P.W. Irfan to do so. Similarly, P.W. Irfan has admitted in his cross- examination that he has improved upon his 161, Cr.P.C. Statement in Court and also that it was in the second instance when he recognized Appellant Rustam before the Magistrate during the identification parade. In this connection, learned counsel has also submitted that strangely five persons came to collect the ransom amount which is not normal behaviour as why should so many culprits expose themselves when only one would be sufficient. Again, admittedly four persons including the Appellants and a woman were sitting in the car to whom Appellant Salahuddin delivered the money; per learned counsel P.W. Irfan has not said anything about the distance between him and these four persons which would enable him to recognize them. Finally, per learned counsel in abduction for ransom cases, the delivery of the ransom amount is the most crucial occasion and gives the police authorities a golden chance to apprehend the culprits.
However, quite surprisingly, this was not done in the present case at all.
20. Next learned counsel has submitted that the 161, Cr.P.C. Statement of driver Zubair is in conflict with the deposition of P.W. Ramzan as the former does not talk about any person being available in a car or that any culprit had come on a motorcycle to collect the ransom amount.
21. Finally with regard to the deposition of Abductee P.W. Raza Abbas, learned counsel has submitted that according to him, Appellant Rustam had hit him with the butt of a pistol at the time of his abduction. This witness has admitted in cross-examination that he never saw the Accused person when he appeared before the Judicial Magistrate for the purpose of identification which means that he was not present on that date at all before the latter.
22. For all the foregoing reasons learned counsel has prayed that A.T.As. 8 and 11 of 2004 be allowed and Appellant Rustam be acquitted.
23. Learned A.A.-G. Mr. Habib Ahmed, has conceded that the case of Appellants Asif Hussain and Salahuddin are not free from doubt, firstly since P.W. Irfan is a chance witness and hence his account requires strict corroboration as to the positive identification of these Appellants which is not available. In this regard, he has submitted that per 164 Cr.P.C. Statement of driver Zubair, only one person came to receive the ransom amount from P.W. Ramzan and he could not identify him since at that time they were standing outside the car about 50 yards away. Zubair has said nothing about other four culprits being available in a car to whom the person who received the ransom amount handed over the same. In these circumstances it was futile for the prosecution to examine Zubair in Court. Secondly, per learned A.A.-G, it is quite strange as to why five culprits would come to collect the ransom amount and expose themselves unnecessarily. Similarly, no surveillance was mounted by the police authorities in order to apprehend the culprits which is normally done at the time when ransom is delivered as this is the best opportunity. Finally, the recovery of part of the ransom amount at the behest of Appellant Salahuddin is again doubtful because it has come on the record that on the same day an amount of Rs.3,50,000 was withdrawn from his bank account.
Per learned A.A.-G, this could not have been done voluntarily be Salahuddin as he was at that time in police custody.
24. However, as to the case of Appellant Rustam, per learned A.A.-G, his conviction can be supported through the evidence of the Abductee alone according to whom Rustam was the person who had hit him on the head with a butt of pistol and then forced him into the rear seat of his car and thereafter the culprits drove him away. The learned A.A.-G, has submitted that the Abductee is honest since he has only picked out Rustam and not the other Accused in the identification parade which was properly held as the number of dummies used were 10. Similarly, there is no enmity between the Abductee and the Accused and hence the former is to be believed.
In support of his submission he has relied upon The State v. Farman Hussain (PLD 1995 SC 1) and State v. Nazeer Ahmed (1999 SCM R 610).
25. We have heard both the learned counsel as well as the learned A.A.-G and our conclusions are as follows:-
26. It would be seen that the following pieces of. Evidence are available in the matter. I. The ocular account; II. The recovery of alleged ransom amount; III identification test; IV. Record of the calls made from the Abductee's mobile telephone to his family.
27. Insofar as the case of Appellants Asif Hussain and Salahuddin are concerned, it would be seen that only P.W. Irfan has identified them as the Accused who were standing outside a white Suzuki Mehran Car at the time when he handed over the ransom money to Appellant Rustam who had come to collect it on a red coloured Motorcycle. Further according to this witness, Rustam had handed over the bag containing the ransom money to Salahuddin whereas Asif Hussain was standing on the other side of the car. Under cross-examination, P.W. Irfan has admitted that he was standing about 40 to 50 yards away from driver Zubair when Rustam had come to collect the ransom amount and also that he had spoken to Rustam for only about 30 seconds. A perusal of this account would show that the spot where the ransom amount was delivered i.e. Ghani Chowrangi in SITE was a busy area and traffic was flowing on the roads. Similarly, P.W. Irfan had only spoken to Rustam briefly for about 30 seconds whereafter the latter joined the other Accused sitting in the Suzuki Car and all of them drove away. In these circumstances, we are of the opinion that this witness hardly had any time or opportunity within which to register and retain the facial features of Asif Hussain and Salahuddin who were admittedly standing at some distance from him.
So also it is quite strange as to why five persons should come to receive the ransom amount and expose themselves and even if this were accepted then why out of the four Accused available in the car, two should stand outside to be recognized conveniently. It would also be seen that P.W.
Irfan was a chance witness who happened to visit driver Zubair on the day when the latter was asked by the family of the Abductee to deliver the ransom amount at the appointed place.
Consequently, the testimony of P.W. Irfan vis-a-vis the recognition of Asif Hussain and Salahuddin requires corroboration which is not forthcoming at all from any source.
' In this connection it would be seen that the Abductee has not recognized these Appellants in the identification test. Finally it would be seen that no surveillance was mounted at the time when the ransom amount was delivered which is rather strange since this is the best opportunity to apprehend the criminals. For all the forgoing reasons, in our opinion, the testimony of P.W. Ifran regarding the identification of Appellants Asif Hussain and Salauddin is not free from doubt.
28. Reverting to the recovery of part of the ransom amount (Rs.400,000) at the pointation of Appellant Asif Hussain, it would be seen that this is also not free from doubt as firstly it has been established that on 4-11-2003 (when the recovery was made) an amount of Rs.350,000 was encashed from this Appellant's bank account when admittedly he was in police custody. Secondly, it would be seen that one of the witnesses to the recovery was P.W. Zahoor who was a grander by trade and happened to be available near the residence of Asif Hussain from where the recovery was made. Hence P.W. Zahoor being a chance witness his testimony requires strict corroboration which is not available on the record.
29. With regard to the positive identification of Appellants Salahuddin and Asif before the Magistrate by P.W. Irfan, the same is hardly of any consequence in view of our conclusion that the presence of this P.W. At the time when the alleged ransom amount was paid to the Accused is doubtful. Finally, insofar as the record of the Abductee's Mobile Telephone is concerned at the most this would only establish that during his captivity, calls were made to his home from said telephone. As the Abductee has not recognized Salahuddin and Asif at all, again this piece of evidence alone, being circumstantial in nature, in the absence of corroboration, cannot in any manner connect them to the crime in question.
30. Reverting to the case of Appellant Rustarn, it would be seen that the main piece of evidence available against him is the deposition of the Abductee himself, according to whom he was abducted by two persons who had arrived at the scene in a yellow taxi cab. One of them came out of the cab, opened the door of the Abductee's car and hit him on the head with a butt of a T.T. Pistol and ordered him to go in the rear seat and sat down with him whereas the other person occupied the driver seat and drove away the car. The Abductee has given a detailed and graphic account thereafter of his captivity and ultimate release by the Accused persons. He recognized Appellant Rustam in Court as the person who had hit him with a Pistol butt and had sat next to him. He had also recognized Appellant, Rustam in the identification test before the Magistrate. The Abductee had withstood cross-examination in the learned trial Court and nothing has been stated by him therein which would counter his examination-in-chief. We have no occasion to disbelieve the Abductee since firstly he does not have any reason to falsely implicate Appellant Rustam as the latter was unknown to him. In this respect, it would be seen that he has not identified Appellants Asif Hussain and Salahuddin which speaks volumes about his honesty. Secondly, in such a heinous offence as the present one viz. Kidnapping, the eye-witnesses would have a photographic memory of the Accused. In this respect reliance can be placed upon the case of Solat Ali Khan v. The State (2002 SCM R 820). It is equally well-settled that conviction in a criminal case can be recorded on the strength of a single eye-witness's testimony if it inspires confidence. Particularly in cases of kidnapping and abduction it is well-settled that unless there are strong reasons to discredit the testimony of the kidnapee, he is to be believed. In this respect reference can be made to the case of Nazeer Ahmed (supra). In the facts and circumstances of the case we have no reason to disbelieve the Abbuctee. Consequently, for all the foregoing reasons in our opinion the Prosecution has been able to prove the charge against Appellant Rustam.
31. The upshot of the above discussion is that Spl. A.T.As. Nos.4&5 are allowed. Appellants Asif Hussain and Salahuddin stand acquitted. They shall be released forthwith, if not wanted in any other case. However, Spl. A.T.As. Nos.8 and 11 are dismissed and hence the conviction of Appellant Rustam is maintained. As to the punishment to be awarded to this Appellant, we are of the opinion that in the facts and circumstances of the case, the death penalty would be very harsh particularly as no harm was done to the Abductee and he reached his home safely. Consequently, we would convert the death sentence awarded to Appellant Rustam to imprisonment for life whilst maintaining his order punishments. All the Appeals stand disposed off including the murder reference.