1. ' AMANULLAH KHAN YASINZAI, J.---The appellants Fayyaz Ahmed alias Kaka Marri, Rahim Dad, Muhammad Afzal along with absconding accused Mashooq alias Mustafa, Abdul Haq Abro and Haji Muhammad and acquitted accused Shah Nazar Lodhi were tried by Anti-Terrorism Court-I Quetta under sections 365-A, 302, 102-B, 109, 449, 34, P.P.C. Read with section 7-A of the Anti- Terrorism Act for abducting minor Ambreen and committing murder of Muhammad Ayub during the commission of abduction, on conclusion of the trial each of the appellants along with the absconding accused were convicted as follows:-- ' Appellant Fayyaz Ahmad alias Kaka Marri:
(i) For offence under section 365-A. P.P.C. Read with section 7-E of the Anti-Terrorism (Amendment)
2. Ordinance, 2001, sentenced to Death.
(ii) For offence under section 302(a), P.P.C. Read with section 7-A of the Anti-Terrorism (Amendment) Ordinance 2001, sentenced to death.
3. ' Appellant Rahim Dad.
(i) For offence under section 365-A, P.P.C. Read with section 7-E of the Anti-Terrorism (Amendment)
4. Ordinance, 2001, sentenced to death.
(ii) For offence under section 302(a), P.P.C. Read with section 7-A of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to suffer Life Imprisonment.
5. ' Appellant Muhammad Afzal.
(i) For offence under section 365-A, P.P.C. Read with section 7-E of the Anti-Terrorism (Amendment)
6. Ordinance, 2001, sentenced to death.
(ii) For offence under section 302(a), P.P.C. Read with section 7-A, of the Anti-Terrorism (Amendment) Ordinance 2001, sentenced to suffer Life Imprisonment.
7. ' Absconding Accused Mashooq alias Mustafa.
(i) For offence under section 365-A, P.P.C. Read with section 7-E of the Anti-Terrorism (Amendment)
8. Ordinance, 2001, sentenced to death.
(ii) For offence under section 302(a), P.P.C. Read with section 7-A of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to suffer R.I. For life.
(iii) For offence under section 21-L of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to suffer R.I. For 2 years.
9. ' Absconding Accused Abdul Haq Abro.
(i) For offence under section 365-K, P.P.C. Read with section 7-E of the Anti-Terrorism (Amendment)
10. Ordinance, 2001, sentenced to death.
(ii) For offence under section 302(a), P.P.C. Read with section 7-A of the Anti-Terrorism (Amendment) Ordinance, 2001; sentenced to suffer R.I. For life.
(iii) For offence under section 21-L of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to suffer R.I. For 2 years.
11. ' Absconding accused Haji Muhammad.
12. ' For offence under section 21-L of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to suffer R.I. 2 years.
13. ' On 10-1-2002; on the fateful day, at about 1-50 p.m. The episode of this case was reported by P. W.1 Shafiq Ahmad Khan, (Uncle of minor Ambreen) vide Fard-e-biyan (Exh.P/1-A), wherein it was alleged that, on the said date, at about 1-20 p.m., he was present in his house namely Zia House, at Amirabad, Tail Godown, Quetta, he heard hue and cry and came down stairs. He was informed by his Cook Faqir Hussain that, two persons entered the house by breaking the kitchen door, forcibly dragged minor Ambreen. Her mother, who was present there, resisted the same, but they forcibly took away the minor Ambreen and during this time, Muhammad Ayub, Shopkeeper entered and house on hearing the hue and cry; who tried to stop the assailants was fired at the main gate by one of the culprits and on receiving the bullet injuries, he died there and then, whereas the minor Ambreen (hereinafter referred as the abductee') was forcibly taken away in a silver coloured Pajero, parked in front of the gate where five other persons were also present. Thereafter all the culprits decamped from the place of incident. It was further stated by the complainant that, on receiving such information, he tried to chase the accused persons and thereafter he reached Gawalmandi Police Station and informed the Police Authorities, who held Nakas on the roads and informed the city police on Wireless Set about the said incident. Since the vehicle of the culprits could not be traced out, therefore, he came back to home, where police was already present who had removed the dead body of Muhammad Ayub. On the basis of Fard-e-bayan, F.I.R. No.3 of 2002 registered under sections 302/365, P.P.C.
14. ' Investigation of the case was taken in hand and it is the case of prosecution that, on effective efforts, appellant Muhammad Afzal was arrested on 12-2-2002 and abductee was recovered.
15. Thereafter on the disclosure of Muhammad Afzal, appellants Rahim Dad, Faiz Ahmad alias Kaka Marri and Shah Nazar were arrested. However, accused Mashooq, Abdul Haq and Haji Muhammad, could not be arrested and they were declared absconders.
16. ' On completion of investigation, challan was submitted before the Anti-Terrorism Court No.1, Quetta.
17. ' At-the trial, charge was framed against the appellants, acquitted accused-respondent and absconding accused under sections 365-A/ 302/120(b)/109/449/34, P.P.C. Read with sections 7(a) and 7(c) of the Anti-Terrorism Act, 1997 (hereinafter referred as the "Act"), which was refuted by the appellants and acquitted accused-respondent, whereas it was deemed to have been denied by the absconding accused persons. To substantiate the substance of accusation, prosecution examined as many as 20 witnesses, the gist of which is given below:--
(1) P. W.1 Shafique Ahrnad Khan is the complainant of the case. He reiterated the contents of the Fard-e-biyan Exh.P.1-A. Besides, he further deposed that his family owned a shop in the name and style of Qadoosi Trading Company, situated at Mission Road, Quetta, which remained closed for three days on account of the incident, on 13-1-2002, when the shop was opened an envelope was found wherein a letter was written and an amount of Rs.100,000,00 was demanded as ransom, for return of minor abductee. The letter was given to the Investigating Officer at CIA Centre. Thereafter a telephonic call was received at the residence of Dr. Yousaf Pervez (father of abductee) wherein a demand was made for ransom. He further deposed that another envelope was received containing an Audio Cassette which was handed over to Police. Subsequently on the telephone a deal was struck for Rs.30 lacs for the return of abductee. The telephonic conversation was also recorded on the audio cassette, was also given to the Investigating Officer. He also deposed that an amount of Rs.30 lacs was arranged by them and was put in bag which was handed over to the CIA staff. The Notes were signed by the DSP Saleem Lehri and as per directions of the accused persons, the amount was taken to Chaman in the meanwhile a Raiding Party was also constituted and thereafter appellant Muhammad Afzal was arrested and the minor abductee was recovered by the police from a house in Chaman.
(2) P.W.2 Muhammad Saleem Lehri, D.S.P., CIA. In his presence the amount of Rs.30 lacs comprising of Notes of Rs.1000 each was handed over to CIA Police. He signed the first and last Currency Notes of each Bundle, for identification of the same.
18. ' The said amount was taken into possession vide memo. Exh. P/2-A.
(3) P.W.3 Abdullah Jan, S.I. He is a marginal witness of the following events of investigation:--
(a) In his presence, on 13-1-2002, the letter allegedly written by appellant was produced by complainant was handed over to Investigating Officer Essa Jan, wherein amount of one crore was demanded, which was taken into possession vide memo. Exh.P/3A; the letter and envelope were tendered as articles 33 and 34.
(b) On 21-1-2002, the complainant again came to CIA Centre and produced another letter allegedly written by appellants which was taken into possession vide memo. Exh.P/3-B. The letter and envelope were produced as articles 35 and 36. On 6-2-2002, the complainant once again came to the CIA Centre and produced video cassette along with a letter, wherein threats were made that if the amount is not received the abductee would be killed. The same was taken into possession vide memo. Exh.P/3-C and video cassette and letter were placed on record as articles 37 and 38.
(c) On 7-2-2002, complainant again produced an audio cassette, which was taken into possession vide memo. Exh.P/3-D wherein the audio cassette was produced as article 43. The witnesses acknowledged his signatures on all the Seizure memos. On 11-2-2002, complainant produced an audio cassette, stated to be a conversation held between the family members of the abductee and the accused person regarding ransom amount. The said audio cassette was taken into possession vide memo. Exh.P/3-E.
(d) In his presence the ransom amount was also given to CIA Police which was taken into possession vide memo. Exh.P/2-A and the Currency Notes were signed by D.S.P. Muhammad Saleem Lehri.
(e) On 13-2-2002, Azhar Hussain Shah, A.S.-I. Posted on telephone emergency placed on record 19 Telephone prints to the. Investigating Officer regarding calls made to the house of abductee, which were taken into possession vide memo. Exh.P/3-F and the telephone prints were placed on record as articles 48 to 57.
(t) On 6-3-2002, in his presence appellant Fayyaz Ahmad alias Kakar Marri, made disclosure that, he along with other accused persons gathered at a Hotel situated near Degree College, Sariab Road and planned about the instant offence. Giving account of the incident, he stated that appellant Muhammad Afzal brought three pistols which were given to Mashooq alias Mustafa, Wadera Rahim Dad and Abdul Haq Abro and a handgrenade was handed over to accused Muhammad Afzal. He further disclosed that the pistol used by him in the commission of offence was taken from his friend. Muhammad Ilyas from whom he (accused) borrowed the same. He also disclosed that at the time of commission of offence, appellant Shah Nazar informed them that due to unavoidable circumstances he cannot accompany them. It was also disclosed by accused that they came in silver coloured Pajero at the place of incident and purchased 50 cartridges from an Arms Shop at Sariab Road, Quetta. Witness further deposed that the accused disclosed about the entire facts i.e., from the moment they entered the house, caught hold of the abductee, came to the main gate, resisted by deceased Muhammad Ayub, on whom he fired and thereafter theyescaped along with the abductee from the scene of occurrence., On such disclosures, a disclosure memo. Was prepared which was signed by the witness produced as Exh.P/3-G. On such disclosure, the police party along with the accused went to a house at Quarry Road, and knocked the door of a house, pointed out by accused. In response to which, Muhammad Ilyas came out, who handed over the Pistol along with licence, borrowed by appellant for the commission of offence, which was taken into possession vide memo. Exh.P/3-H. The pistol and the cartridges were produced as articles 70 and 71.
(g) On 8-3-2002, in presence of D.S.P. Sohail Ahmad Sheikh and others, accused Fayyaz Ahmad further disclosed that he can point out the place of incident and the house where abductee was confined, situated in Pashtoonabad. On such disclosure memo. Exh.P/3-J was prepared. Witness further disclosed that during investigation accused Rahim Dad also made disclosure in respect of the commission of offence and accordingly disclosure memo. Exh.P/3-K was prepared. After the disclosure; the accused Rahim Dad also led the police party to the place of occurrence and pointed out the places where they committed the offence. Accordingly pointation memo. Was prepared, which the witness produced as Exh.P/3-L. He further deposed that accused Fayyaz Ahmad also led the police party on the place of incident and pointed out the places where the offence was committed. On this, pointation memo. Was prepared, which was produced as Exh. P/3- M.
(h) On the pointation of accused Fayyaz Ahmad, the house where the abductee was kept was also shown to police and in this behalf pointation memo. Exh.P/3-N was prepared.
(i) On 12-3-2002, during investigation accused Shah Nazar Lehri, disclosed that he can point out the Hotel, where the plan of offence was made. On such disclosure memo. Exh.P/3-0 was prepared and thereafter he led the police to Sariab Road and pointed out the Hotel, on which, pointation memo.
19. Exh.P/3-P was prepared.
20. ()) On 30-3-2002 in presence of witness, S.I. Fareed Ahmad produced two Certificates issued by the Afghan Government Officials, which were taken into possession vide memo. Exh.P/3-Q and the Certificates were placed on record as articles 72 and 73.
21. On 19-S-2002, in his presence during investigation accused Muhammad Afzal, disclosed that plan of offence was made at the instigation of one Haji Muhammad, who gave Rs.1,30,000. On this disclosure memo. Exh.P/3-R was prepared and thereafter the accused led the police to the house of one Sher Muhammad, from where a buried pistol was recovered and taken into possession vide memo. Exh.P/3-S. The pistol was produced as article 75. He further acknowledged his signature on all the aforementioned memos. And identified the appellant, present in the Court.
(4) P.W.4 Muhammad Zaman. He was the member of police party who went to Afghan Border, for the recovery of the abductee. He deposed that on 12-2-2002, under the directions of high-ups he along with Police Party and Abdul Rahim, servant of Dr. Pervez Yousaf, who was handed over an amount of Rs.30 lacs, i.e. Ransom money, went to Chaman. Abdul Rahim proceeded inside Afghanistan territory under the cover of Police. On his reaching at Taxi Stand Spin Boldak, accused Muhammad Afzal came, who was handed over the bag containing the amount, and took Abdul Rahim on a motorcycle. After covering a short distance the motorcycle got disbalanced and they fell down. As soon as the motorcycle fell down, the Police Party along with the personnel of Afghan Government reached and caught hold of accused Muhammad Afzal. Thereafter the amount was recovered from him and same was taken into possession vide memo. Exh.P/4-A. After arrest of accused Muhammad Afzal, he made disclosure that plan of offence was made at Sariab Hotel, with the connivance of other accused persons. On this disclosure memo. Was prepared, which the witness produced as Exh.P/4-B. Accused also stated that he can get recovered the abductee from a house situated at Killi Kakozai, Murda Karez Chaman. Thus on his pointation, the police proceeded to said Killi and accused led the police to his house, where 4/5 children were playing and accused pointed out towards a girl and stated that she is the abductee. On his pointation the abductee was recovered and a pointation memo. Was prepared, which the witness produced as Exh.P/4-C. Lastly witness identified the accused present in the Court.
(5) P.W.5 Wazir Khan Nasir, S.P. City. He was head of the Police Team who went to Afghan Border for the recovery of minor. He narrated the facts as deposed by P.W.4, pertaining to the recovery of abductee and arrest of accused Muhammad Afzal. He further acknowledged his signatures on the disclosure memos. And pointation memos. Exhs.P/4-..A to 4-C. He further deposed that site-plan Exh.P/5-A was also prepared by him. On reaching Quetta, he handed over the bag containing the ransom amount to CIA Police and the abductee was handed over to her father Dr. Yousaf Pervez.
22. Thereafter on 14-2-2002, under the directions of DIG, he went to Chaman border for taking the custody of accused Muhammad Afzal from Afghan Authorities and after taking his custody brought him to Quetta.
(6) P.W.6 Mazhar Hussain Gondal, Retired A.S.-I. He deposed that on 10-1-2002, he along with other police officials went to the place of incident and prepared inspection plan Exh.P/6-A and in his presence Khaliq Dad S.-I. Secured blood vide memo. Exh.P/6-B and recovered two empties, which were taken into possession vide memo. Exh.P/6-C and further also took into possession the broken lock of the kitchen vide memo. Exh.P/6-D. He acknowledged his signatures on all the memos.
(7) P.W.7 Zafar Iqbal, Head Constable. He is Mashir regarding the bloodstained Shalwar, Qamiz and Banyan of deceased Muhammad Ayub, taken vide memo Exh.P/7-A. He acknowledged his signatures on the same.
(8) P.W.8 Syed Muhammad Haroon Agha, Judicial Magistrate. He recorded 164, Cr.P.C. Statements of witnesses Muhammad Illyas, Sher Muhammad and Muhammad Saddique in presence of accused Fayyaz Ahmad alias Kaka Marri and Muhammad Afzal. Witness deposed that on 13-3- 2002, the Investigating Officer produced accused Fayyaz Ahmad and witness Muhammad Illyas in his Court. He identified himself to accused and witness and satisfying himself, he recorded the statement of witness Muhammad Illyas and accused Fayyaz Ahmad was allowed to cross- examine him. He produced the envelope, statement, his Certificate on the statement and notice issued by him to accused Fayyaz Ahmad as Exh.P/8-A to 8-D. Witness further deposed that before 20-5-2002, he issued Notice to accused Muhammad Afzal on the request of Investigating Officer regarding statements of witnesses Muhammad Siddique and Sher Muhammad under section 164, Cr.P.C. And on 20-5-2002, he recorded statements of both the witnesses in presence of accused Muhammad Afzal, after observing the codal formalities. He produced the envelopes, statements of witnesses, notices and written requests of police as Exhs.P/8-E to P/8-0. Witness further deposed that on 16-5-2002, Investigating Officer requested him for obtaining the specimen handwriting of accused Muhammad Afzal, and also produced the accused along with a letter. On this he selected one paragraph from the letter and asked the accused to write down the same in his handwriting in three different modes i.e. Fast, medium and slow. The accused reduced the same in writing and after obtaining the said specimens; he signed the same and affixed the seal of the Court. Witness produced the said specimens as Exhs.P/8-P to 8-R.
(9) P.W.9 Dr. Fareeda, M.L.O. Civil Hospital, Quetta. On 10-1-2002, at about 1-40 p.m. She examined the dead body of deceased and issued Certificate Exh.P/9-A. She found the following injuries:-- "No.
1. Entrance wound on back of the occipital region 1/2 cm, in diameter with bleeding. No.2 Exit wound left averted margin in rounded in shape on interior lateral side of right eye. 3 x 3 cm in diameter.
23. No.3 Both eyes are black. No.4 Bleeding from nose and mouth. Probable Cause of Death ' Injury too vital organ in cranial cavity, command shot and death.
24. Nature of Injuries ' Fresh and caused with fire-arm."
(10) P.W.10 Inayatullah, Judicial Magistrate-HI, Quetta. He recorded the confessional statement of accused Fayyaz Ahamd alias Kaka Marri. He deposed that on 14-3-2002, accused Fayyaz Ahmad along with co-accused Rahim Dad and Shah Nazar were produced. After observing codal formalities, in their presence he recorded 164, Cr.P.C. Statement of accused Fayyaz Ahmad and allowed opportunity of cross-examination to co-accused person. He produced the envelope, statement and his Certificate appended at the bottom of confessional statement as Exhs.P/10-A to 10-C.
(11) P.W.11 Sohail Ahmad Sheikh, D.S.P. Before him, accused Fayyaz Ahmad alias Kaka Marri, and Rahim Dad, made disclosures and pointations, on which, various memos. Were prepared, detail given by P.W.3 Abdullah Jan. He deposed about the said disclosures and the pointation made by both the accused persons. Besides, he deposed that on 8-3-2002, identification parade of accused Rahim Dad was conducted in Cantt. Police Station where witness Faqir Muhammad identified him thrice, Identification Memo. Exh.P/11-A was prepared, which bears his signatures. Witness deposed that on the same day, accused Rahim Dad was also identified by Mst. Laila mother of abductee and in this respect Identification Memo. Exh.P/11-B was prepared and said accused was also identified by abductee Ambreen on the same day, thus another Identification Memo. Exh. P/11-C was prepared. Witness identified his signatures on all the Identification Memos. Witness further deposed that during course of pointation by the accused persons, he prepared site-plans Exhs.P/11-D and 11-E
(12) P. W.12 Faqir Muhammad. He is the servant of complainant and was present at the time of incident. He deposed that on 10-1-2002, at about 1-15/1-30 p.m. He heard hue and cry upon which, he came out and saw two accused persons, one of them was pulling the door of kitchen and other entered in Kitchen and pointed pistol at him. To save himself, he ran in a room and dialed, number of Qadoossi Store, which was engaged. Thereafter he heard firing. After firing he again dialed the number which was attended by Ejaz and he informed him about the incident. Thereafter he came out and found the dead body at the gate. Witness further deposed that on 8-3-2002, during identification parade he identified accused Rahim Dad to be the person who pointed out pistol on him at the time of incident.
(13) P.W.13 Muhammad Illyas. He is the person, from whom accused Fayyaz Ahmad borrowed pistol which was used in the commission of offence. This witness deposed that on 9-1-2002, accused Fayyaz Ahmad, who is his friend came and took his Pistol on the pretext of a marriage of his relative. The pistol along with licence was given to him. The accused returned the pistol on 10-1- 2002. He further deposed that on 6-3-2002, the accused in the custody of police came to his house, he handed-over the pistol and licence to police. Thereafter he recorded his statement before the Magistrate.
(14) P.W.15 Laila, mother of abductee. She stated that on 10-j-2002, she was present in the house, when three persons entered from the main gate. On seeing them, she bolted the door. The accused persons pushed the door of TV Lounge and then they opened the door of the Kitchen by breaking the lock and one of the accused had a Pistol. She and her children started crying. On hearing their cry, the Cook Faqir Muhammad came there and on seeing the accused person, he ran in the room through kitchen. She tried to inform the other family members on telephone about the incident.
25. During this time she heard the cries of abductee that 'do not take me'. On this she left the telephone and rushed towards her and saw that two persons were dragging her. In the meanwhile Ayub came inside, who was fired at. Thereafter the abductee was taken by accused persons in the vehicle. Witness further deposed that on 8-3-2002, at Cantt. Police Station, she and her daughter Ambreen identified the accused Rahim Dad.
(15) P.W.15 Ambreen, the abductee. She deposed that on 10-1-2002, she was present in TV Lounge of her house along with her sister. At that time, four persons tried to open the door of TV Lounge, they came through the kitchen door. When they reached in the TV Lounch, her mother went towards Telephone and they caught her and took her outside. During this time Ayub came to save her, but one of them fired at him with a pistol. Thereafter they put her in the vehicle and went away. She further deposed that the person who took her from the home was identified by her in the Cantt.
26. Police Station. She also identified her signatures on the identification memo. Exh.P/11-C. She deposed that thereafter she was taken to a house at Quetta and then shifted to Afghanistan, where some ladies were also present. The witness identified accused Rahim Dad to be the person, who caught hold of her at the time of incident and identified by her during the identification parade.
(16) P. W.16 Abdul Rahim. He is the person who was sent to Afghan Border along with ransom amount, in the company of police. He deposed that along with Dr. Yousaf Pervez, Hamayun Jogezai and' other police personnel, he went to Chaman. He along with the bag crossed the border by foot and reached Taxi Stand Spin Boldak. After reaching there, appellant Muhammad Afzal came on a motorcycle and demanded the amount and stated that after receiving the amount he would hand over the abductee. The witness handed over the amount. Thereafter accused Muhammad Afzal took the witness on a motorcycle but due to rough road, the motorcycle got disbalanced and they fell down. During this time police party came and apprehended the accused. Thereafter they came to Spin Boldak and then to Chaman. After two hours the police recovered the abductee. He identified the accused Muhammad Afzal, present in the Court.
(17) P.W.17 Farzand Ali. He is the Handwriting Expert. He examined the specimen handwriting of accused Muhammad Afzal by comparing it with the letter sent to the family of abductee, demanding ransom amount. After examination he issued Certificate Exh.P/17-B.
(18) P.W.18 Khaliq Dad, A.S.-I., the first Investigating Officer. He conducted investigation for one day only i.e. The day of incident. According to hire he recorded the Fard-e-biyan of complainant on the day of incident i.e. 10-1-2002 on the basis of which, registered F.I.R. Exh.P/18-A, inspected the site of incident, prepared site-plan Exh.P/18-B, besides securing blood-stained earth, led etc. He also prepared inquest report (Exh.P/18-C) of deceased Muhammad Ayub. On the next day i.e. 11-1-2002, under the directions of high-ups the investigation papers were handed over to the CIA.
(19) Nazir Ahmad I.P./Investigating Officer. In absence of main Investigating Officer Essa Jan I.P. CIA, he conducted the investigation of the case. According to him, on 11-5-2002, he was entrusted with the investigation of the case. On 16-5-2002, he obtained the specimen handwriting of accused Muhammad Afzal in presence of Judicial Magistrate. This witness also got recorded the statements of witnesses and accused before the Magistrate. In his presence the accused Muhammad Afzal made disclosures and on the pointation of accused, he prepared the pointation memos. Besides he also prepared Maps of the house of Dr. Yousaf Pervez, Echo Hotel and house of Sher Muhammad. He produced the pointation memo. And Maps as Exhs.P/19-A to 19-E.
(20) P.W.20 Essa Jan I.P. He deposed that on 11-1-2002, he was entrusted with the investigation of the case. He narrated about the events of investigation, as detailed in the statements of above witnesses. Besides, he stated that he prepared the Map of Zia House Exh.P/20-A, obtained the FSL report of blood-stained clothes of deceased vide Exh.P/20-B, Map of place of recovery of Pistol and cartridges Exh.P/2-C, made on the disclosure of accused Fayyaz Ahmad from the house of witness Muhammad Ilyas. Witness also obtained report in respect of pistol and cartridges from Karachi and produced the forwarding letter and report as Exhs.P/20-D and 20-E. He also prepared Map of Echo Hotel and produced it as Exh.P/20-F. After conducting investigation, he prepared incomplete challan Exh.P/20-G and thereafter submitted complete challan Exh. P/20-H.
27. ' Thereafter, the prosecution closed its side and learned trial Court examined appellants and acquitted accused under section 342, Cr.P.C. Wherein they denied the prosecution case and pleaded innocence. Appellants recorded their statements on oath as envisaged under section 340(2), Cr.P.C. In defence, appellant Muhammad Afzal, produced D.W.1 Naik Muhammad and D.W.2 Khaliq Dad. They both stated that appellant Muhammad Afzal was arrested from a hotel at Chaman and he bears good moral character. Appellant Fayyaz Ahmad produced D.W.3 Anjum Aziz Khan, the Representative of Chief Engineer Office Quetta, who produced the Attendance Register, showing attendance of accused in office, who was working as Chowkidar, with effect from 1st to 31st January, 2002. Appellant Rahim Dad produced D.W.4 Allah Bakhsh, who deposed that on 25-2- 2003, while appellant and he came out, after seeing a movie, they were arrested by police.
28. ' On the conclusion of trial, learned Special Judge, Anti-Terrorism Court No.1, Quetta, convicted and sentenced the appellants as well as absconding accused persons, in the terms, specified hereinabove.
29. ' Appellant Fayyaz Ahmad alias Kaka Marri, Rahim Dad and Muhammad Afzal, have challenged their conviction and sentence by means of filing Criminal Appeals Nos.72, 73 and 76 of 2002 respectively. The learned Anti-Terrorism Court has also sent a reference for confirmation or otherwise of the death sentences awarded to accused persons. Whereas against the acquittal of accused Shah Nazar Lehri, the State through Advocate-General, has filed Criminal Acquittal Appeal No.89 of 2002. Since all the matters arise out of same judgment, therefore, we propose to dispose of all the matters through this common judgment.
30. ' We have heard Mr. Basharatullah, Advocate for appellant Rahim Dad, Messrs W.N.Kohli, Baz Muhammad Kakar, Advocates for appellants Fayyaz Ahmad alias Kaka Marri and Muhammad Afzal. Mr. Muhammad Amir Rana, Advocate, appeared for absconding convicts Mashooq alias Mustafa, Abdul Haq Abro and Haji Muhammad in Murder Reference No.30 of 2003 made by the learned trial Court, Ch. Rafique Ahmad, learned counsel appeared for respondent Shah Nazar in Criminal Acquittal Appeal No.89 of 2002. The State in all the matters was represented by Mr. Khalid Dogar, Public Prosecutor, ATA.
31. ' Mr. Basharatullah, learned counsel contended as follows:- A. The judgment of trial Court is based on inadmissible evidence. He referred to the memos, prepared on the disclosures of appellants, during the course of investigation. According to learned counsel, all the disclosure memos., made by appellants and leading to the place of incident by the appellants, are inadmissible in evidence, thus the trial Court has erred in relying upon such evidence. B. The trial. Court has wrongly relied upon the statements of witnesses recorded under section 164, Cr.P.C. As the said witnesses namely Muhammad Siddique and Sher Muhammad were not examined by the trial Court.
32. C. The identification parade of appellants was defective and thus could not be relied upon by the trial Court.
33. D. The letters dated 13-1-2002 and 21-1-2002 allegedly written by appellant Muhammad Afzal were wrongly taken into consideration by the trial Court, as the same were not proved, in accordance with law. Accordingly the learned counsel stated that the Audio and video cassettes were also illegally considered. E. The confessional statement of appellant Fayyaz Ahmad alias Kaka Marri, has been illegally considered as a circumstantial piece of evidence against other appellants.
34. ' To support his contentions, learned counsel relied upon the following case laws:--
(i) AIR 1925 Madras 879 Ayyam Perumal. Pillai v. Emperor.
(ii) PLD 1959 Pesh. 115 Nisar Muhammad v. Khanzali and another.
(iii) PLD 1958 SC (Pak.) 1 Muhammad Bashir Alam v. The State.
(iv) PLD 1960 (W.P.) Kar. 195 Sheru v. The State.
(v) 1971 PCr.LJ 224 Salehon v. The State.
(vi) PLD 1974 Quetta 28 The State through the Advocate-General Province of Balochistan, Quetta v.
35. Jamil Iqbal.
(vii) 1978 PCr.LJ 458 Saleem Pervaiz v. The State. (viii) PLD 1981 SC 142 Lal. Pasand v. The State.
(ix) PLD 1991 FSC 53 Arif Nawaz Khan and 3 others v. The State.
(x) 1999 SCMR 2203 Faqirullah v. Khalil-uz-Zaman and others.
(xi) PLD 2003 SC 389 and 704 Saeed Ahmed v. The State and Sheikh Muhammad Ajmad v. The State.
(xii) 2003 SCMR 1419 Khalid Javed and another v. The State.
36. ' Messrs W.N. Kohli, Muhammad Amir Rana and Baz Muhammad Kakar, learned counsel adopted the arguments of Mr. Basharatullah, Advocate.
37. ' Mr. Khalid Dogar, learned Public Prosecutor, argued that, learned trial Court has rightly relied upon the disclosure memos., as the same led to the recovery of abductee and further appellants in their disclosure memos. Led the Police authorities to the place i.e., Restaurant, where conspiracy was hatched and to the place of incident as well as got recovered the pistol, used in the commission of offence. According to him, the identification parade was rightly relied upon, wherein P. Ws. Laila and Ambreen, the abdcutee and P.W. Faqir Muhammad, identified appellant Rahim Dad. Regarding Criminal Acquital Appeal, he contended that, involvement of respondent Shah Nazar Lehri, has been proved, but he was acquitted on erroneous grounds. In support of his contentions, learned counsel placed reliance on following case-laws:--
(i) PLD 2004 SC 250 Fazal Rehman and others v. The State and another.
(ii) 2000 PCr.LJ 299 Pehalwan and others v. The State.
(iii) PLD 2003 SC 389 and 704 Saeed Ahmed v. The State and Sheikh Muhammad Ajmad v. The State.
(iv) 2003 YLR 300 Muhammad Anwar alias Lalu v. The State.
38. ' Ch. Rafique Ahmad, learned counsel appearing for acquitted accused contended that, appeal is not legally maintainable, as the Advocate-General can only file appeal, on the directions of Federal or Provincial Government, but the same has been filed by Additional Advocate-General without any directions from the Federal or Provincial Government and further on merits, no case is made' out against the acquitted accused, as admittedly he never participated in the commission of offence.
39. ' To elaborate his first contention, Mr. Basharatullah, learned counsel referred to the memo., prepared on the disclosure of appellant Fayyaz Ahmad alias Kaka Marri on 6-3-2001 being Exh.P./3- G. This disclosure memo. Pertains to the conspiracy hatched to Eco Hotel and thereafter Fayyaz Ahmad got a pistol from his friend P.W. Muhammad Illyas and came to the house of complainant, from where, he and others abducted the minor girl. On the basis of said disclosure memo, appellant led the police to the house of Muhammad Illyas, from where T.T. Pistol was secured which was allegedly used in the commission of offence. Learned counsel contended that only the recovery of pistol is admissible, whereas rest of the contents of the disclosure memo. Are inadmissible.
40. ' Learned counsel then referred to the memo., prepared on the disclosure of appellant Muhammad Afzal being Exh.P/3-R, whereby the appellant made disclosure about the conspiracy and further stated that he can get recovered the abductee and then held the police to the place of incident.
41. Learned counsel contended that, disclosure memo. To the extent of recovery of minor is admissible, whereas rest of the contents being inadmissible, are liable to be ruled out of consideration. Learned counsel also referred to the second memo. Made on the disclosure of appellant Fayyaz Ahmad, wherein he made disclosure and then lcd the police party to the place of incident and to the place where the minor girl was kept after abduction and on his pointations, Memos. Exhs.P/3-M and 3-N were prepared.
42. ' Learned counsel then referred to the memo., prepared on the disclosure of appellant Rahim Dad, being Exh.P/3-K, whereby he narrated about the conspiracy and thereafter he led the police party to the place of incident, on the basis of which, pointation memo. Exh.P/3-L was prepared.
43. ' Learned counsel also referred to the memo., prepared on the disclosure of appellant Muhammad Afzal, wherein he narrated about the entire facts and stated that he can recover the T.T. Pistol from a house in Pashtoonabad, which he was having at the time of commission of offence and thereafter the police got recovered the pistol vide memo. Exh.P/3-S. ' Learned counsel lastly referred to the memo. Prepared on the disclosure of accused Shah Nazar Lehri, being Exh.P/3-0, on the basis of which, he led the police party to the Echo Hotel, where pointation memo. Exh.P/3-P was prepared.
44. ' Adverting to the contention of Mr. Basharatullah, learned counsel, it is well-settled that, a confession made to the Police Officer, reed not to be proved against the persons, as envisaged under Article 40 of the Qanoon-e-Shahadat Order, 1984, which is independent and under Article 39, even a confession made before a police officer shall not be proved against its maker, when he is in police custody, except if he is a Magistrate. -Under Article 40, if any fact is revealed by the accused, during course of investigation in custody of a Police Officer, such information, where it amounts to a confession or not, which relates distinctly to the fact, disclosed may be proved. Thus information supplied by the accused in police custody under Article 40, the same would be admissible only to the extent, where it relates to disclosure of recovery of incriminating articles. It may be observed here that, it is well-settled that any admission or confession made by an accused person in police custody, shall not be admissible in evidence against its maker. If any fact is revealed in consequence of information received from an accused person in police custody, such information, if relates distinctly to the fact; thereby disclosure may be proved i.e. If an accused person states that, he knows where a weapon is lying and leads the police to the discovery of such weapon only such disclosure is admissible. If an accused person says before the Police Officer that he can lead the police to the place of weapon, with which, he committed the offence, shall not be admissible and thus later part of the sentence is totally inadmissible, which does not relate to the discovery of crime weapon, which needs to be proved independently. Article 40 of the Qanoon-e-Shahadat Order, is corresponding to section 27 of the repealed Evidence Act, which has been interpreted by various Courts. The scope of section 27 was examined in the case of Sukhan v. Emperor (AIR 1929 Lahore 344), wherein his Lordship Mr. Justice Shadi Lal, the Hon'ble Chief Justice, as he then was, made the following observations:- "This, no doubt, is the rationale of the exception enacted by S.27, but its scope must depend upon the actual language employed by the legislature. As I have pointed out, the wording of the section shows that the requirements of both the conditions specified above must be satisfied before an incriminating statement can be received in evidence. These conditions, when combined lead us to the conclusion that only that portion of the information is provable which was the immediate or proximate cause of the discovery of the fact. Anything, which is not connected with the fact as its cause, or is connected, with it, not as its immediate or direct cause, but as its remote cause, does not come within the ambit of the section and should be excluded."
45. ' The said view was followed in the case of Pulukuri Kottaya v. Emperor (AIR 1947 Privy Council 67) wherein Sir John Beahumount, who authored the judgment, observed as follows:-- "Section 27, which is not artistically worded provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved."
46. ' In the said case, it has further observed as follows:-- "In their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past use, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to, the discovery of a knife; knives were discovered many years ago. It lead to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
47. ' Section 27 also came up for interpretation in the case of The State through the Advocate-General of Balochistan; Quetta v. Jamil Iqbal (PLD 1974 Quetta 28), wherein Mr. Justice Abdul Hayee Qureshi, the Hon'ble Chief Justice, as he then was, made following observations:-- "In my humble view the test of admissibility is to consider what portion of the statement relates distinctly to the fact discovered and anything which is superfluous or unnecessary for the purposes of disclosure of the fact discovered would be inadmissible. Under such' circumstances it is the duty of the Court to dissect and analyze the full statement into smaller sentences and to admit only such portion as would indicate that the accused led to the discovery of the particular fact. It should be very important to bear in mind that it is not every statement that a person made to the police in connection with the recovery that is admissible but only such portion of its as relates distinctly to the fact discovered that is admissible. In several cases ingenuity of a police officer or the folly of the prisoner in composing the sentence, conveying the information, may result in defeating the provisions of section 25 of the Evidence Act.
48. ' Such results have to be avoided. To quote an instance if an accused person states that a weapon of offence is lying at a particular place and he would produce the same, that portion will be admissible but if he states that the weapon with which he killed the deceased will be produced by him. Such statement will be inadmissible. Such statement does not relate to the fact discovered but it relates to the use of the object, which has been found. This would amount to giving a history in regard to the use of the object and is far from being distinctly related to the fact discovered. I cannot do better than to quote from Sarkar's book "On Evidence" (Tenth Edition at page 270) where it is stated as follows:-- "The phrase 'whether it amounts to a confession or not' is in one sense unfortunate and somewhat' misleading, as it may seem to favour the idea of a wider interpretation and it may be logically argued that it also includes a confession involving direct acknowledgement of guilt or any incriminating statement suggesting participation in the crime. The object of the section, the ground on which admissibility is based and its use, and the safeguard provided in sections 25, 26, preclude the idea that Legislature ever intended to admit statements to the police containing an actual confession of crime. This lax interpretation would at once nullify the wholesome provisions in sections 25 and 26 and render them nugatory. It would offer a strong temptation to the police to drag in such statements along with the information leading to the discovery of facts."
49. ' On a careful consideration of the principles of law I am of the view that in the present case the statement made by the respondent that he had concealed the knife is not admissible because the same is a total confession for the simple reason that he could not conceal an object without possessing it and by admitting such a statement, a confession in its totality will be admitted. The result is that the statement of the respondent is only admissible to the extent that he would produce the knife before the police."
50. ' The said view has also been confirmed by the Hon'ble Supreme Court in the case of Khalid Javed and another v. The State (2003 SCMR 1419), wherein following observations were made:- "There is yet another important aspect of the case i.e. Whether the recovery of incriminating articles i.e. Churri article P-19 and dagger article P-7 is admissible under Article 40 of the Qanun- eShahadat Order, 1984. As per this Article when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody pf a Police Officer so much of such 'information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. This Article corresponds to section 27 of repealed Evidence Act 1872 which has been interpreted in various judgments including the one reported in the case of The State through the Advocate-General, Province of Balochistan, Quetta v.
51. Jamil Iqbal (PLD 1974 Quetta 28) where it has been held that statement of an accused before the police is admissible if an accused person states that a weapon of offence is lying at a particular place and he produces the same, that portion will be admissible but if he states that the weapon with which he killed the deceased will be produced by him, such statement will be inadmissible. In instant case perusal of Exh.P.F. And Exh.P.K. Pertaining to the recoveries of dagger and Churri from the possession of Khalid . Javed and Aleem Ahmed respectively indicates that the police had effected the recoveries of both these incriminating articles in presence of witnesses as.It has been incorporated in these memos. That with these weapons they had committed the murder of Mst Ghazala Naveed, therefore, to this extent the statement so recorded in the recovery memo. Is inadmissible. Thus its result would be that on discarding the said portion of the statement incorporated in the recovery memos. The prosecution is left only with the recoveries of dagger and Churri articles P.7 and P-19 and now the burden is upon it to prove through other evidence that these articles being crime weapons were used for the murder of deceased."
52. ' The provisions of Articles 37, 38, 39 and 40 of the Qanun-e-Shahadat Order, also came up for consideration in the case of Sheikh Muhammad Amjad v. The State (PLD 2003 SC 704) wherein the Hon'ble Chief Justice Mr. Justice Nazim Hussain Siddique, made the following observations:-- "19. Articles 37,-38 and 39 of Qanun-e-Shahadat Order, 1984 corresponding to sections_ 24, 25 and 26 of the Evidence Act are relevant to determine the criteria as to which statement could be treated as confession. In criminal cases great responsibility rests upon the Courts to determine if the confession is voluntary and true or is lacking within the scope of either term "Voluntary" and "True". If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority, it would be treated as not voluntary. Voluntary and true are two different terms related with confession and each of them has its own significance. A confession, which is voluntary, is admissible in evidence even though it may be incorrect in its contents. As against above, a confession, which is not voluntary, is not admissible though it may be true, whether a confession is voluntary and true is a question of fact and is to be determined keeping in view the attending circumstances of each case. Voluntariness relates to its admissibility, while its truth is looked into for the purpose of assessing its value. Therefore, for proving confession it shall be both voluntary and true.
20. Article 38 ibid lays down that a confession made to a police officer shall not be proved against a person accused of any offence. The rule embodied in above Article is for the reason that a police officer shall not be encouraged to extort confession for showing efficiency by securing convictions.
53. Under this Article a confession made to a police officer is to be ignored even if it was made in the immediate presence of a Magistrate, as the Article 38 is independent and is not controlled by Article 39.
21. Article 39 deals with confessions, which are made not to a police officer but to persons other than police officers i.e. To fellow prisoner, a doctor or a visitor and makes such confessions inadmissible, if they were made while the accused was in the custody of police officer. The Articles 38 and 39 lays down different rules.
22. Further, it is noted that as per Article 40, corresponding to section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the appellant, under Article 40 ibid, relating to incriminatory articles is admissible."
54. ' Thus in view of the above discussion, the disclosures made by accused persons are inadmissible and only the disclosure made by appellant Fayyaz Ahmad, that the pistol was lying with P.W.
55. Muhammad Illyas and led the police to the place of Muhammad Illyas and got recovered the Pistol, is admissible and thereafter the onus will be upon the prosecution to prove, whether the said weapon was used in the commission of offence or otherwise, which shall be discussed at a later stage. Thus the disclosure memos. Referred to hereinabove, made by appellants during the course of investigation are ruled out of consideration.
56. ' It may be observed that the trial Court while relying upon these disclosure memos. Has discarded the settled principles of law, which negates the principles laid down by the Superior Courts for safe dispensation of justice.
57. ' It may be noted that, appellants while making disclosures led the' police party to the place of incident and to the house situated in Pashtoonabad, where allegedly the abductee was kept and to the. Echo Hotel situated at Sariab Road, Quetta where allegedly conspiracy for abduction of minor was hatched, are also inadmissible in evidence as nothing was discovered, while the appellants in police custody led to the aforesaid places. It has been noted with due regrets that, investigation of the case was also not properly conducted. It was alleged that the abudctee was taken to Pashtoonabad, after she was abducted from the place of incident, but after recovery of abductee, she was not taken to identify the place where she was kept, she could have confirmed the said fact, and also about the subsequent events, as to who took her to Afghanistan and how. So much so that, her statement was not recorded, as from whose custody she was recovered nor the said accused who kept her in the house and took her to Chaman was not identified by the abductee, for reasons best known to the prosecution. Further, the disclosures made by appellants and leading the police party to the place of incident, as well as to the house at Pashtoonabad and to the Restaurant, cannot be considered as substantive or circumstancial pieces of evidence, as the said places were already in the knowledge of police.
58. ' Reverting to the next contention of Mr. Basharatullah, Advocate, that the trial Court has wrongly relied upon the confessional statements of Siddique and Sher Muhammad, made before the Magistrate, as they were not examined before the trial Court and their statements were tendered as Exhs.P/8-H and P/8-N. It may be observed here that a statement of a witness recorded under section 164, Cr.P.C. Cannot be considered as a substantive piece of evidence, and can only be used to contradict the person in the Court, who made the statement. The said witnesses never appeared before the trial Court, but the trial Court relied upon the same by committing a grave illegality, thus such reliance was entirely unwarranted by law, specifically when the said witnesses never appeared before the Court. In this regard, we are fortified by the case-law reported in 1971 PCr.LJ 224.
59. ' Mr. Basharatullah further argued that the identification parade of appellant Rahim Dad conducted in the police station was defective. He pointed out that it was held after a considerable delay and besides proper procedure was not adopted. Learned Public Prosecutor opposed the arguments and contended that, no illegality or irregularity was committed, while carrying out the identification parade of appellant.
60. We have perused the record. It may be mentioned here that the appellant Rahim Dad was identified by P.Ws. Faqir Muhammad, Ambreen, the abductee and Mst. Laila, mother of abductee. It may be pointed out that the abductee also identified the appellant in the Court and stated in unequivocal terms that, on the day of incident, she identified appellant Rahim Dad as he dragged her out of the house and thereafter took her in the vehicle. It may be observed here that, in the first place the P.Ws. Had no enmity with the appellant had no motive to falsely implicate him. Suffice it to observe that the abductee was put to lengthy cross-examination and she stood firm to the test and being a minor answered intricate questions intelligently and nothing was elicited to impeach her credibility. Thus the contention of Mr. Basharatullah, learned counsel is repelled. The presence of appellant Rahim Dad is very much established at the place of incident.
61. ' Coming to the next contention of Mr. Basharatullah, learned counsel, that the trial Court has wrongly placed reliance on the - anonymous letters dated 13-1-2000 and 21-1-2000, allegedly written by appellant Muhammad Afzal whereby ransom amount was demanded for return of abductee. Thy contention of learned counsel has substance. It may be observed that, it has not been proved that, who has written the said letters. The first letter was statedly received through post by complainant party and produced by P.W. Shafique and second letter was received from a boy, but it could not be proved. Learned Public Prosecutor stated that the specimen signatures of appellant Muhammad Afzal were taken and the Handwriting Expert has given a positive report that the said letters were written by Muhammad Afzal. We are not persuaded to agree with the said contention of learned Public Prosecutor. Though the Handwriting Expert has stated that after comparing the said letter with the handwriting of appellant, in his opinion both the letters were written by appellant Muhammad Afzal. From a plain perusal of anonymous letters and writing of appellant, it reveals that both the letters were not written by the same person. Thus in such circumstances, no reliance can be placed on these letters, alleged to have to be written by appellant Muhammad Afzal.
62. ' Mr. Khalid Dogar, learned Public Prosecutor contended that, prosecution has proved its case against appellant Fayyaz Ahmad alias Kaka Marri as his presence has been established at the place of incident. He contended that, confessional statement of the appellant was recorded by the Magistrate wherein he also confessed that he fired at deceased Muhammad Ayub and in addition to above, the empties recovered from the place of incident were sent to the Ballistic Expert, along with the pistol recovered on the pointation of appellant from Muhammad Illyas, have been matched.
63. ' When confronted with the same. Mr. Basharatullah, learned counsel could not give any satisfactory reply.
64. It may be pointed out that regarding murder of Muhammad Ayub, the said matter was compromised between the appellants and the legal heirs of deceased, which compromise was accepted and appellants were acquitted of the charge under section 302, P.P.C.
65. Now on taking into consideration the , confessional statement of appellant, coupled with the recovery of empties and pistol and the Report of Ballistic Expert, tpe presence of appellant Fayyaz Ahmad and his participation in the commission of offence stand established.
66. ' Learned Public Prosecutor, further contended that the recovery of abductee from the possession of appellant Muhammad Afzal, further lends supports to the prosecution case that the appellants in furtherance of their common intention committed the said offence. It may be observed that a police party went to Afghanistan, where the amount of rupees thirty lacs was put in a bag and handed over to Muhammad Afzal at Spin Boldak. In this regard statement of P.W.16 Abdul Rahim is relevant, who deposed that, while he handed over the amount to Muhammad Afzal and thereafter they went on a Motorcycle, at some distance, the motorcycle got disbalanced and they fell down and appellant was overpowered by the police party, who was following them. It may be mentioned here that, the only evidence which has come against appellant Muhammad Afzal is that, he received that ransom amount. As regards the statement of P.W. Muhammad. Zaman and P.W.
67. Wazir Khan, who deposed that after apprehending the appellant Muhammad Afzal, he made a disclosure in the Police Station of Afghanistan that he can lead for the recovery of abductee where she has been confined and further on his pointation, the minor was recovered, a minute perusal of the same, does not inspire confidence. As far as apprehending of appellant Muhammad Afzal at the place Where he came to receive the amount, is concerned, the same is proved and remaining portion that abductee was recovered at his instance, is doubtful. Admittedly money was taken by P.W.Abdul Rahim to Spin Boldak (Afghanistan), who handed over the same to appellant, from where he was arrested. The said witness was not associated by police in recovery of abductee 'and he stated that, after the appellant was apprehended at Spin Boldak, he came to Chaman and stayed with P.W. Shafique and after two hours the abductee was recovered. It may be mentioned here that the manner, in which the abductee was stated to be recovered is doubtful. As per prosecution case, the appellant was arrested at Spin Boldak in Afghanistan and he was brought to Chaman and at the time of recovery, even the personnel of Law Enforcement Agencies of Afghanistan were present at the time of recovery, but none was examined. Besides, in this regard the statement of abductee was very essential and she was the only witness, who could have stated that, whether she was recovered from the possession of appellant Muhammad Afzal or not.
68. It is the case of prosecution that after abduction she was kept in Pashtoonabad and thereafter she was brought to Chaman by appellant Muhammad Afzal. In this regard no 'such statement has been made by abductee herself. Inasmuch as that, she even did not identify appellant Muhammad Afzal in Court. Thus, in these circumstances, it does not appeal to a prudent mind that abductee was in the custody of appellant Muhammad Afzal for such a long time, but she could not identify him, whereas she rightly picked up appellant Rahim Dad in the identification parade. Thus the recovery of abductee from the custody of appellant Muhammad Afzal seems to be doubtful.
69. No one was examined from Afghan Government and the independent witness were also not associated. Inasmuch as the statement of abductee is also silent in this regard. Thus it can be inferred that, appellant Muhammad Afzal was acting as a Mediator between the actual culprits and his role is only that of giving assistance to the main culprits. Even Mr. Khalid Dogar learned Public Prosecutor, could not give satisfactory reply regarding recovery of abductee from the possession of appellant Muhammad Afzal. #TBS I J #TBE From the overall discussion the prosecution has proved its case against appellant Fayyaz Ahmad alias Kaka Marri and Rahim Dad, who actually participated in the abduction of minor. Besides the prosecution has proved that appellant Muhammad Afzal, received the ransom amount. As regard the absconding accused, the prosecution has failed to prove its case against them, beyond any shadow of doubt.
70. Now coming to the Criminal Acquittal Appeal filed against accused Shah Nazar Lehri. Ch. Rafique Ahmad, learned counsel pointed out that the appeal has not been filed by the competent person i.e. Advocate-General and further under the , Anti-Terrorism Act, appeal against acquittal was to be filed on the directions of Federal or Provincial Government, but in this case, no directions were issued by any of the Governments, thus the same being incompetent is liable to be dismissed.
71. Besides, the learned counsel stated that, admittedly respondent Shah Nazar Lehri, has not participated in the commission of offence. The only evidence which has come on record against him is that he made disclosure before the police that conspiracy was hatched in his presence.
72. Suffice it to observe that we have ruled out all the disclosures made by appellant in police custody and whereas, on merits, no case is made out against the appellant Shah Nazar Lehri, thus the Criminal Acquittal Appeal filed against him is rejected.
73. Coming to the last question, as to the quantum of sentence. It may be observed that on minute assessm ent of the overall circumstances, as detailed hereinabove, in our considered opinion, the sentence of life imprisonment, would meet the ends of justice.
74. Thus the death sentence awarded by the trial Court is modified and appellants Fayyaz Ahmad alias Kaka Marri, Rahim Dad and Muhammad Afzal are convicted and sentenced to suffer R.I. For life and to pay fine of Rs.1,00,000 each and in default to further undergo R.I. For one year each.
75. However, they shall be entitled for the benefit of section 382-B, Cr.P.C.
76. 'As regard the absconding accused, since nothing incriminating has come on record against them, therefore, they are acquitted of the charge. .