1. Ijaz Ahmad Chaudhry, J.--On conclusion of trial in case F.I.R. No, 183 of 2001 dated 9-7-2001 registered at Police Station Lytton Road; Lahore, the learned Judge, Anti-Terrorism Court No, Ill, Lahore vide judgment, dated 14-9-2002 passed the following orders: "Shabbir alias. Mochha, Tahir alias Banka, Azhar Shabbir and Attiqur Rehman are held guilty under Sections 148, P.P.C. (as they were not less than five at the relevant time and were armed with deadly weapons and Zohair had been killed thereafter) and for offences falling under Section 7(e), A.T.A., 1997 read with Section 395-A, P.P.C. Under Section 148, P.P.C., these four convicts shall suffer R.I. for three years. Under Section 7(e), A.T.A., 1997 read with Section 365-A, P.P.C., they are awarded death sentence each on three counts each. They shall be hanged by the neck till they dead. Under Section 544-A, Cr.P.C. they shall pay compensation of Rs, 1,00,000 each on three counts to each of the abductees and their parents (total Rs, 3,00,000 each convict). These amounts shall be recovered as arrears of land revenue and failing to recover the same, the convicts shall suffer S.I. for six months each on three counts separately."
2. However/through the same judgment Javed co-accused was acquitted. Attique-ur-Rehman, Tahir alias Banka, Azhar Shabbir and Shabbir alias Mochha appellants have challenged their convictions and sentences before this Court by filing Criminal Appeal No, 373/J of 2003 through jail while Kh.
3. Tahir Mahmood complainant/petitioner has filed Criminal Revision No, 1075 of 2002 against the four appellants seeking enhancement of compensation amount awarded by the learned trial Court. It is pertinent to mention here that Shabbir alias Mochha appellant also filed Criminal Appeal No, 1675 of 2002 against his conviction and sentence through a private counsel. All these matters have been heard by us alongwith Murder Reference No, 82-T of 2002 seeking confirmation of the sentences of death passed by the learned trial Court against all the four appellants. We propose to decide all these four matters together through the present consolidated judgment.
4. 2.The brief facts narrated in the F.I.R. (Exh.P.W.13/2) registered on the application (Exh.P.W.2/1) moved by Kb. Tahir Mehmood complainant (P.W.2) are that on 9-7-2001 at 7-00 p.m. co-accused Zohair (died later on) and the appellants (who were identified later on) had stopped Car No, LXY2595 on pistol point near Kothi No, 79, Samanabad within the area of Police Station Lytton Road, Lahore. In the car Kh. Tahir Ma.hmood complainant (P.W.2), his brother Shahid Masood (P.W.3), his nephew Saad Masood (P.W.6), his brother Nasir Moeen (P.W.4) and his son Ghazanfar Ali (P.W.5) were present. The accused were six (2/2 on each motorcycles) and they were young boys wearing pant shirts and armed with pistols who abducted Nasir Moeen, Saad Masood and Ghazanfar Ali forcibly alongwith the car for extracting ransom. However, Kh. Tahir Mahmood complainant and Shahid Masood had alighted from the car. On the alarm raised by the complainant, many people gathered there but none could help them. Then after sometime, the complainant's brother Shahid received a call on mobile from Nasir that they were abducted and asked to listen the culprits/abductors. Then they heard the voice of a culprit, who threatened that the aforesaid three persons' life was in danger and they would be killed if heavy ransom was not paid. Nasir brother of the complainant, Saad nephew of the complainant and Ghazanfar brother of the complainant had been abducted in the above circumstances for ransom. Hence this case was registered.
5. 3.The person who had spoken to the complainant on mobile phone had asked him to arrange Rs, one crore and they would rang up against the next day.
6. 4.On 10-7-2001 the complainant received another call and his brother Nasir Moeen informed him that they were being tortured and he should arrange for money as soon as possible. Then phone was given to another person who had asked the complainant to arrange money till 2-00 p.m. It was told by the complainant that heavy amount could not be arranged and he could have arranged an amount of Rs, 15 lacs only. Thereupon, the venue for making the payment was settled near Shama Cinema, Lahore. Another call was received with a direction to the complainant to move towards Mozang and then they were directed to proceed to Bahawalpur House and also asked to stop near Darbar. Shahid Masood (P.W.3) was with the complainant and the complainant was directed to put the money on the bonnet of the car. Then an unknown person was seen passing nearby the car and the aforesaid persons/accused while sitting in the other car had directed him to bring the bag from bonnet of the taxi of the complainant, who took the same and handed over the same to the accused. Then another call was received that the amount was less whereupon the complainant told the accused on phone that another bag containing an amount of Rs, 5,00,000 was also available, which was directed to be put on the bonnet of the car as well. The said person was also asked to bring the second bag and in the meanwhile the said bag was nabbed by the police. Then firing started and the accused succeeded in running away from the spot. The said boy was taken to Police Station Lytton Road, Lahore, whose name was disclosed as Umar Daraz (P.W.I), who claimed innocence while stating that he had just gone to say his Asar prayer and was returning to home when a direction was issued to bring the bags. He also disclosed that he had identified Shabbir alias Mochha who used to visit as a friend of him while playing cricket and his companion Zohair alias Bhai, Jan. On the other hand in the morning according to Nasir Moeen (P.W.4) after the telephonic contact with the complainant, he was taken on a motorcycle to some place situated within the area of Ichhra, Lahore and the car was handed over to him with a direction to help the complainant in arranging for the money and he was set at liberty. He had come to his home at about 8/9-00 a.m. and his statement was recorded by the police. After the acceptance and taking of money the accused according to P.W.6 Kh. Saad Masood and P.W.5 Ghazanfar Ali came back to the place where they were confined in Gulshane- Ravi and they were talking with each other about the cross-firing which had taken place between them and the police. Then they told the witnesses that they wanted to kill them but had thought that they should be set at liberty, who then were released at about 11-00 p.m.
7. 5.Muhammad Tariq Javed, S.-I. (P.W.20) stated that on 29-7-2001 he was posted as S.-I. at Police Station Ichhra. Lahore and was present at Shama Chowk on the said date, when the S.H.O. informed him that some accused were present at L.D.A. Park. Thereupon the said place was raided and four accused were apprehended, who disclosed their names as Attiqueur-Rehman, Azhar Shabbir, Tahir alias Banka and Irfan. On their personal search, .30 bore pistols were recovered from their possession, which were taken into possession. The said accused having been involved in a number of cases were sent to judicial lock-up and arrangement was made for identification parade of the accused as they were allegedly involved in the present case. The witnesses namely Nasir Moeen (P.W.4), Kh. Saad Masood (P.W.6) and Ghazanfar Ali (P.W.5) on 9-8-2001 were summoned at Camp Jail, Lahore and they identified the appellants namely Attique-ur-Rehman, Shabbir alias Mochha and Azhar Shabbir as the accused who were involved in the abduction from the spot and also remained present at the place where these witnesses were confined. The said identification parade was supervised by Allah Rakha Anjum, M. I. C./Special Judicial Magistrate (P.W.9).
8. 6.Mustansar Aftab Bajwa, S.H.O./Inspector appeared as P.W.17, who had arrested Attique-ur- Rehman, Azhar Shabbir, Tahir alias Banka and Irfan alias Fondi in the present case on 29-7-2001 and they were sent to judicial lock-up. P. W. 8 Shahzad Rafique, Inspector had arrested Shabbir alias. Mochha appellant and one Sajjad Haider alias Adhha Kamboh while present at Naka at Jail Road on 6-2-2002 and pistol .30 bore P.6 was recovered from the possession of Shabbir alias Mochha alongwith two grenade and after disclosure he also led to the recovery of Rs, 2,00,000 part of ransom amount from his House No, 440-E, Johar Town, Lahore. Shabbir alias Mochha was sent to jail. Then identification parade was conducted by Muhammad Farooq Rashid, Special Judicial Magistrate (P.W.21) in which the complainant and other witnesses had correctly identified the appellant namely Shabbir alias Mochha.
9. 7.After the completion of the investigation report under Section 173, Cr.P.C. was submitted in the Court of learned Judge, Anti-Terrorism Court No, Ill, Lahore constituted under the Anti-Terrorism Act, 1997. Then the copies of the statements of witnesses and other documents required under Section 265(c), Cr.P.C. were supplied to the appellants, who then were charge-sheeted which was denied by them.
10. 8.In order to prove the guilt of the appellants the prosecution produced as many as 22 witnesses.
11. Umar Daraz (P.W.1) is a person who was directed by Shabbir alias Mochha appellant to bring the bag containing ransom amount from the bonnet of the car in which the complainant and his brother Shahid had come at Bahawalpur House. P.W.1 had disclosed the name of Shabbir alias Mochha appellant as a person who had asked him to bring the bag and his name was introduced through this witness. P.W.2 Tahir Mahmood is the complainant. Shahid Masood brother of the complainant got recorded his examination-in-chief on 29.5.2002, when the cross-examination was reserved. Subsequently, on 18.7.2002, the learned P.P. requested for not to read the statement of P.W.3 being unnecessary and the order was accordingly passed by the learned trial Court. P.W.4 Nasir Moeen, Ghazanfar Ali P.W.5 and Kh. Saad Masood (RW.6) were the alleged abductees, who were set at liberty on different times after the receipt of the amount of Rs, 10,00,000 from the complainant party. The identification parade had been proved through the statements of the witnesses/abductees, who had correctly identified the appellants in the identification parade supervised by Allah Rakha Anjum, M.I.C. P.W.9 and Muhammad Farooq Rashid, Special Judicial Magistrate P.W.21. The gist of evidence of P.Ws.17, 18 and 20 has been discussed in the preceding paragraphs. The remaining witnesses are formal in nature.
12. 9.After the close of the prosecution evidence, statements of the appellants were recorded under Section 342, Cr.P.C. who denied the allegations and professed their innocence. They did not opt to make statements under Section 340(2), Cr.P.C. or produce any evidence.
13. 10.The learned trial Court after hearing arguments of both the parties passed the impugned judgment. Hence all these matters before this Court.
14. 11.Learned counsel for the appellants have contended-that the identification parade had been conducted in violation of the relevant Rules and the law declared by the superior Courts, which cannot be relied upon as the role had not been ascribed to the convicts at the time of identification parade. It is also contended that at the time of identification parade of Shabbir alias Mochha appellant he was not given the option to change his place of sitting and in such circumstances the proceedings of identification parade being illegal could not be relied upon. It also contended that the witnesses admittedly did not know the assailants previously who had committed the offence and if the identification parade is excluded from consideration as piece of evidence then the other evidence is not sufficient to connect them with the commission of 'the crime as the recoveries are inconsequential and the appellants may be acquitted. It is lastly contended that the witnesses had not given the sequence similar to each other by each accused at the time of the incident and the said statements being contradictory in nature cannot be relied upon, hence the convictions and sentences passed against the appellants may be set aside.
15. 12.Learned counsel for the complainant and the learned Special Prosecutor have opposed this appeal and contended that Ghazanfar Ali (P.W.5) and Kh. Saad Masood (P.W.6) were kept for 24 hours by the appellants in illegal confinement, who had seen the accused continuously during the said period and it was not difficult for them to identify them. It is also contended that Nasir Moeen (P.W.4) was also kept in illegal confinement by all convicts/appellants and they had not muffled their faces, who were identifiable and they were correctly identified by these witnesses during the identification parade. It is also contended that minor omissions in the identification parade cannot be made basis for discarding the same as the facts of the present case are entirely different and the appellants were not seen by the witnesses at a glance but they were continuously seen by the witnesses and there was no question of misidentify of the appellants. It is next contended that the witnesses had no enmity or grudge to falsely implicate the appellants in the present case and there was no question of substitution of the appellants; that the recovery of Rs, 2,00,000 had been effected from Shabbir alias Mochha, which huge amount could not be got planted upon Shabbir alias Mochha by the complainant party only to falsely implicate him in the present case; that the prosecution had been able to prove the case against the appellants beyond any shadow of doubt and Umar Daraz (P.W.1) was an independent witness who had identified Shabbir alias Mochha when he was asked to hand over the bag of money to him by Shabbir alias Mochha while sitting in the car, hence the appeals may be dismissed. It is also contended that while allowing Criminal Revision No, 1075 of 2002, the compensation amount may be enhanced to a reasonable extent.
16. 13.We have heard the arguments of the learned counsel for the parties and also perused the record.
17. 14.The occurrence in the present case had taken place in the daylight at 7-00 p.m. on3.7.2001 and Kh. Tahir Mahmood (P.W.2) registration of the case at 7.45 p.m. The story of the F.I.R. and the other facts accrued subsequently, have been duly described in Paras. Nos, 2 to 4 ante, which need not to discuss here to avoid repetition.
15. During the incident Nasir Moeen, Ghazanfar Ali and Kh. Saad Masood had been abducted in a car, while returning from their business alongwith Tahir Mahmood complainant, who was driving the car, and Shahid Masood was sitting on the front seat. Both of them had alighted from the car.
18. All the said persons appeared before the learned trial Court as P.Ws. 4, 5, 6, 2 and 3 respectively. It is, however, noted down here that only examination-in-chief of Shahid Masood (P.W.3) was recorded and cross-examination was reserved, who was later on given up by the learned P.P. and his statement is out of consideration. The said P.Ws. belonged to business community, who admittedly did not know the appellants previously and had no enmity with them to falsely implicate them in the present case. The appellants were arrested later on and correctly identified by the P.Ws. during the identification parade supervised by the Judicial Magistrates, who appeared as P.Ws.9 and 21. We do not find any contradiction in their statements regarding the place, time and the manner in which the occurrence had taken place regarding the abduction of the three P.Ws. namely Nasir Moeen, Ghazanfar Ali and Kh. Saad Masood (P.Ws.4, 5 and 6) who were taken to some house and were confined there immediately after the incident. They had also supported the story of contacting the complainant on phone through Nasir Moeen (P.W.4) and he handed over the phone to one of the accused who was subsequently known as Shabbir alias Mochha and he raised a demand for ransom amounting to Rs, one crore for the release of the alleged abductees and the phone was disconnected. Then on the next day the complainant was again contacted through Nasir Moeen (P.W.4) real brother of the alleged abductees and subsequently the ransom amount was settled at Rs, 15,00,000. Nasir Moeen (P.W.4) was taken to Ichhra as per his own statement on a motorcycle and was sanded over the car with a direction to help the complainant for arranging ransom amount, who returned to the house while the remaining abductees namely Ghazanfar Ali and Kh. Saad;Masood remained in the confinement of the accused. It was also stated by P.W.2 that on phone he was summoned and was taken to Bahawalpur House while P.W.1 Umar Daraz was coming out of the mosque and he was asked to hand over the bag lying on the bonnet of the car by the two persons sitting in the rear seat of another car and P.W.1 identified one of the said persons as Shabbir alias Mochha appellant who was known to him previously as he used to play cricket. The said appellant was accompanied by another boy namely Zohair who also used to come to play cricket. P.W.1 identified Shabbir alias Mochha appellant who had received the said bag from him and he was asked to bring the second bag when he was nabbed by the police.
19. Both the accused succeeded in fleeing from the spot while P.W.1 was taken to Lytton Road Police Station and he was not found involved in the case, whose statement under Section 161, Cr.P.C. was recorded in which he mentioned the name of Shabbir alias Mochha appellant who had received the bag containing the amount from him in the above said manner. Due to cross-firing the appellants had succeeded in running away from the place of payment of amount. Then the accused also released Ghazanfar Ali (P.W.5) and Kh. Saad Masood (P.W.6) at 11-00 p.m. and they also got recorded their statements before the police under Section 161, Cr.P.C. in this regard immediately after their release from the alleged detention. All these witnesses namely Tahir Mahmood (P.W.2), Nasir Moeen (P.W.4), Ghazanfar Ali (P.W.5) and Kh. Saad Masood (P.W.6) admitted during cross-examination that they did not know the accused previously. Only Umar Daraz (P.W.1) had explained that he knew Shabbir alias Mochha, who identified him and also told the police the names of the person who had received the said amount. There was absolutely no enmity or grudge with the P.Ws. to falsely implicate the appellants/convicts namely Attique- urRehman, Tahir Ali alias Banka, Azhar Shabbir and Shabbir alias Mochha.
16. During investigation after the arrest of the accused the P.Ws. also identified Attique-ur-Rehman, Tahir Ali alias Banka and Azhar Shabbir at Camp Jail and Allah Rakha Anjum, M.I.C. (P.W.9) had supervised the identification parade on 9.8.2001 and the convicts were identified in three criminal cases. The identification parades of three criminal cases were held separately and we have perused the proceedings of identification parade in which the witnesses had correctly identified Attique-ur-Rehman, Tahir alias Banka and Azhar Shabbir by stating that they were their accused.
20. There is no evidence that any other criminal case had been got lodged by the P.Ws. and they had identified the accused in another criminal case. Similarly the second. identification parade had been supervised by Mr. Muhammad Farooq Rashid, Special Judicial Magistrate (P.W.21) in which Shabbir alias Mochha appellant had been identified by the complainant and other witnesses. The abductees namely Nasir Moeen, Ghazanfar Ali and Kh. Saeed . Masood had correctly identified the appellants in the present case, which was quite possible as they had not seen the accused who had abducted and .kept them in illegal confinement at a glance but Ghazanfar Ali and Kh. Saad Masood had remained in illegal confinement of the four convicts and one Zohair who had been murdered subsequently in the police encounter for about 26 hours and they having spent sufficient time with the convicts who I had not muffler,' their faces and they were talking with each other freely and also had given some be4ing to the P.Ws. Hence there was no question of misidentify of the accused and the present case indistinguishable from the cases of identification parade wherein the P.Ws. had only seen the accused at a glance but had not spent some time with them, so there could be some doubt regarding identification of the accused. On the other hand in the present case not only these two witnesses had spent about 26 hours in the custody of the convicts but Nasir Moeen (P.W.4) also remained for about 12 hours in the custody of the accused and there was sufficient time with the P.Ws. to recognize them and their features. It cannot be expected from the witnesses who belonged to business community that they would know that how they had to make the statements before the Magistrate about the description and the roles of the accused played by them during the incident. Even otherwise, it was only a case of abduction for extracting ransom and the P.Ws. had successfully proved that the present appellants after abduction had confined them in illegal confinement and also demanded ransom amount.
21. 17.The payment of ransom amount has also been proved through the statements of Umar Daraz (P.W.1) and Tahir Mahmood complainant (P.W.2) beyond any shadow of doubt and subsequently an amount of Rs, 2,00,000 was also recovered from the possession of Shabbir alias Mochha appellant. The said huge amount could not be planted upon the accused to falsely involve him in the abduction case, when the said amount was to be kept as case property for a long period and a business man cannot take the risk of blocking the huge amount instead of investing the same in his business especially when there was no previous enmity to falsely implicate the accused in a criminal case. No doubt, it cannot be identified that some amount was handed over to the accused as ransom amount but the recovery of the huge amount which is not owned by Shabbir alias Mochha, who only claimed that it had been planted upon him is also a strong circumstance against him.
22. 18.The purpose of the precautions during the identification parade was to satisfy if the eye- witnesses had seen the accused at a glance and to ascertain whether they were in a position to identify the accused or not. But in the present case the three witnesses who were abducted and kept in confinement had remained with the accused for a period of 12 hours to 26 hours, who having seen them for a quite considerable period could identify them easily during the identification parade. We do not find any reason that they would identify those persons as the real culprits falsely in the commission of the offence in which they were aggrieved who actually had not participated in the incident. Hence in spite of the fact that the witnesses had not described the roles of each accused is riot sufficient to exonerate the appellants from the commission of the present incident but their identification before the kearned Magistrate during the identification parade is a strong circumstance against the appellants to prove their involvement in the present case beyond any shadow of doubt.
23. 19.From the three appellants namely Attique-ur-Rehman, Tahir and Azhar Shabbir an amount of Rs, 5,000 was recovered on their pointation from the garden. We are unable to understand that why they had concealed the said amount of Rs, 5,000 by digging the earth, which could be spent by them easily and there was no reason for keeping the same in safe custody for creating an evidence against themselves after recovery of the same. We do not accept this piece of evidence which was useless as number of notes were not noted down by the complainant and the recovery of said notes do not provide any sufficient proof that the said notes were actually out of the ransom amount paid by the complainant for the release, of the three abductees.
24. 20.In the above facts and circumstances we find that the prosecution had been able to prove the case against the appellants beyond any shadow of doubt and the convictions recorded under Sections 148/366-A, P.P.C. and under Section 7(e) of Anti-Terrorism Act, 1997 read with Section 149, P.P.C. are maintained.
25. 21.So far as quantum of sentence is concerned, under Section 148, P.P.C. the appellants were awarded three years imprisonment, which is maintained. However, keeping in view the facts and circumstances of the case, we feel that the death sentence awarded to the four convicts for the abduction of the three persons is a harsh order when one out of them was released by them after 12 hours alongwith the car and the others two were also freed by them about 26 hours of the incident of their own in spite of that the matter had already been reported to the police and total ransom amount, as claimed by the appellants was not paid to them. It shows that the appellants had no intention to cause any bodily harm to the said abductees. Thus, the death sentence awarded to the appellants is not maintained, which is converted to life imprisonment. However, the direction regarding payment of compensation amount and undergoing of six months' S.I. each in default of payment thereof is maintained. All the sentences shall run concurrently and benefit of Section 382-B, Cr.P.C. is also extended to the appellants.
26. 22.With the above reduction in the quantum of sentence only, the impugned judgment is modified accordingly and both Criminal Appeals Nos, 373-J of 2003 and 1675 of 2002 are dismissed.
27. 23.Criminal Revision No, 1075 of 2002 filed by Kh. Tahir Mahmood complainant seeking enhancement of compensation amount is not maintainable in a case tried by the Court constituted under the Anti. Terrorism Act, 1997. Even otherwise we have considered that adequate compensation has already been awarded by the learned trial Court. This criminal revision is dismissed accordingly.