' RAHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Special Anti-Terrorism Appeals Nos.9, 10, 12, 13 and 37 of 2005 and Confirmation Case No,3 of 2005 as they arise out of common judgment.
2. Brief facts giving rise to the present appeals and confirmation case are that on 11-6-2004 P.W.18 abductee Ahmed Naeem was returning to his house in his Car bearing No,AFD-516 after taking lunch in the house of his sister. The car was driven by driver complainant Muhammad Iqbal (P.W.4).
At about 3-15 p.m. The car reached the gate of the Bungalow No,12-E, Second Gizri Street, DHA Phase-IV, Karachi. A white colour Toyota Corolla Car came and stopped in front of the car of victim, in which three persons were sitting. Out of them two persons, armed with pistols came out from the car, who were subsequently identified as appellants Abdul Rasheed and Muhammad Atiq Bajwa, while the third person, who was subsequently, identified as appellant Khalid Aziz remained seated on the driving seat of the car. The appellant Abdul Rasheed went to the front seat of the car where the victim was sitting whereas the appellant Muhammad Atiq Bajwa went towards the driver side of the car where the complainant was sitting. The appellant Abdul Rasheed forcibly pulled out the victim from the car and put him in his car, whereas the appellant Muhammad Atiq Bajwa took the keys from the car. In the meanwhile appellant Khalid Aziz came out from the car, folded both the number plates of his car and then they drove away their car along with abductee. The incident was witnessed by P.W.9 Chowkidar of the bungalow, Jamshed Khan. After the departure of the culprits the complainant and P.W.9 went inside the house, from where the complainant made telephone calls to several persons. After some time Tauqir Ahmed, cousin of the victim, came there who took the complainant to police station where he lodged report at 5-00 p.m.
3. After lodging the F.I.R. The police started the investigation. C.P.L.C. People were also contacted who installed a recording device to record the telephone conversation of the victim's house. On 12- 6-2004 at 1-30 a.m. In the night the mother of the victim and wife of P.W.3 received a telephone call.
She was informed that the P.W.18 was with them and she should wait for his next call. On 15-6-2004 P.W.3 Muhammad 'Naeem, father of the victim, received a written letter of his son through his Chowkidar which was given to him by a person. In the letter it was disclosed that he was abducted and the abductors were interested in receiving money, therefore, the payment should be made but the agency people should not be involved. On 17-6-2004 P.W.3 received a call from one Akbar inquiring from him as to whether he had received the letter of his son and he demanded Rs,5 crore as ransom amount for the release of the victim. Thereafter, negotiations started. Subsequently, the ransom amount was reduced to Rs,61 lac and the amount was to be paid in England. Through the help of C.P.L.C., Pound Sterling 56,000 were handed over to one Bilawal. After receipt of the amount by the culprits through Bilawal released the P.W.18 on 12-8-2004. P.W.3 received a telephone call from the victim on 12-8-2004 at 12-30 a.m. Informing him that he should be picked up from the Bahria Petrol Pump., D.H.A. Thereafter, the complainant went there and brought the victim in his house who narrated the story to his father.
4. The P.W.18 disclosed to his father that after his abduction by above named three appellants the car was taken to an isolated place. The appellants took out his purse and mobile phone. After driving for about 15 minutes the car was stopped at isolated place where one purple colour car of Coure make was parked in which two persons were sitting; one on the driving seat and the other on the front seat. The victim was shifted to the said car whereas appellant Abdul Rasheed sat with him. Subsequently, the victim identified the person who was sitting on the front seat of the said car to be accused Junaid Ansari. The car was driven and stopped at a house where he was put in a room. The appellant Qurban Ali Khoso was guarding him and appellant Junaid Ansari used to come there. They obtained telephone numbers of his residence as well as mobile phone of his father. After three days the culprits forced him to write a letter to his father for payment of ransom amount which he wrote. He remained in the captivity of the culprits for 62 days. In the meantime they allowed him to talk to his father. In the night in between 11 and 12 August, 2004 the culprits brought him from the place of captivity and after walking some distance they put him in a green colour Daewoo car. The car was driven by some person. The appellant Abdul Rasheed and another person were sitting with him on the rear seat. The said person was subsequently identified to be Fida Hussain Khoso. The culprits left him at Shell Petrol Pump, DHA from where he made telephone call to his father who came and took him to his house.
5. The police, after usual investigation arrested the appellants. Appellant Qurban Ali Abbasi was produced before a Magistrate where he gave exculpatory confession. The appellants were produced before Magistrates where they were identified by the victim and P.Ws.4 and 9. After usual investigation the police challaned the appellants in the Court.
6. The learned Judge, Anti-Terrorism Court No,V, Karachi tried the appellants, convicted and sentenced them under the impugned judgment dated 4-2-2005 as under:-- "(a) For offence of abduction for ransom, punishable under section 365-A read with 34, P.P.C. All the present accused Fida Hussain Khoso son of Nadir Hussain Khoso, Junaid Rehman son of Abdul Rahman Ansari, Qurban Ali Khoso son of Himmat Ali Khoso, Abdul Rasheed son of Pehlwan, Muhammad Atiq Bajwa son of Muhammad Anwar and Khalid Aziz son of Abdul Aziz are awarded death sentence and each of them is ordered to be hanged by neck till their death and their properties are ordered to be forfeited to the tune of Rs,1,00,000 (one lac) each, to the Government;
(b) For offence of wrongfully confining the abductee Ahmed Naeem for 62 days, an offence punishable under section 344 read with section 34, P.P.C. All the present accused Fida Hussain Khoso son of Nadir Hussain Khoso, Junaid Rehman son of Abdul Rahman Ansari, Qurban Ali Khoso son of Himmat Ali Khoso, Abdul Rasheed son of Pehlwan, Muhammad Atiq Bajwa son of Muhammad Anwar and Khalid Aziz son of Abdul Aziz are awarded rigorous imprisonment for 3 (three) years each and to pay fine of Rs,50,000 (fifty thousand) each or in default to pay fine, to undergo R.I. For 6 (six) months each;
(c) For offence of kidnapping of the abductee Ahmed Naeem for ransom keeping him hostage for 62 days, charging ransom of Rs,61,00,000 (sixty-one lac) equivalent to 56000 pounds sterling and thereby committing an offence punishable under section 7(3) of the Anti-Terrorism Act, 1997, all the present accused Fida Hussain Khoso son of Nadir Hussain Khoso, Junaid Rehman son of Abdul Rahman Ansari, Qurban Ali Khoso son of Himmat Ali - Khoso, Abdul Rasheed son of Pehlwan, Muhammad Atiq Bajwa son of Muhammad Anwar and Khalid Aziz son of Abdul Aziz are awarded death sentence. Each of them is ordered to be hanged by neck till their death and their properties to the tune of Rs,1,00,000 (one lac) each are liable to be forfeited to the Government;
(d) All the present accused Fida Hussain Khoso son of Nadir Hussain Khoso, Junaid Rehman son of Abdul Rahman "Ansari, Qurban Ali Khoso son of Himmat Ali Khoso, Abdul Rasheed on of Pehlwan, Muhammad Atiq Bajwa son of Muhammad Anwar and Khalid Aziz son of Abdul Aziz are also directed to pay Ahmed Naeem amount of Rs,1,00,000 (one lac) each to the victim/abductee as compensation on account of the mental anguish suffered by him during 62 days of his captivity, as provided under section 544-A, Cr.P.C.
' The punishment of death sentence awarded to the accused persons is subject to confirmation by the Honourable High Court as provided under section 376, Cr.P.C.
' Benefit of section 382-B, Cr.P.C. Is, however, extended to the accused persons and the sentences awarded to the accused persons are ordered to run concurrently.
' The amount of fine, if paid, be deposited in the Government treasury."
7. The appellants have preferred their appeals to challenge their convictions and sentences. The trial Court has sent Reference under section 374, Cr.P.C. For confirmation of sentence.
8. We have heard the Advocates for the appellants, complainant, A.A.-G. For the State and perused the evidence with the help of learned Advocates for the appellants very carefully.
9. From the facts and evidence we found that the prosecution has alleged and assigned different roles to different sets of accused in the commission of offence of abduction. Therefore, we will deal with each set of accused separately.
10. As regards the actual abduction, the prosecution made such allegation against the appellants Abdul Rasheed, Muhammad Atiq Bajwa and Khalid Aziz. To prove the said allegation the prosecution relied upon the evidence of P.W.4 complainant Muhammad Iqbal, P.W.9 Chowkidar Jamshed Khan, P.W.18 abductee Ahmed Naeem, P.W.11 Judicial Magistrate Zulfiqar and P.W.13 Judicial Magistrate, Abdul Qadeer.
11. The evidence of abductee P.W.18 reveals that when he reached at the gate of his house in his car which was driven by P.W.4 another white colour car came in front of his car. From the said car the appellants Abdul Rasheed and Muhammad Atiq Bajwa, armed with pistols, came out. The appellant Abdul Rasheed forcibly took him out from the car and put him in his car whereas the appellant Muhammad Atiq Bajwa forcibly took the keys of the victim's car from P.W.4. The appellant Khalid Aziz went to front, backside of his car, then came and sat on the driving seat. Thereafter, they drove the car. In the identification tests held before P.Ws.11 and 13, he picked out all the - three appellants to be the culprits of the crime by specifying their roles as mentioned above. His evidence is supported by P.W.4. He gave the same details of the incident as mentioned by P.W.18 and he assigned similar roles to appellants Abdul Rasheed and Muhammad Atiq Bajwa. A His evidence further reveals that he could not see the face of the driver of the car, therefore, in the identification test he picked out the appellants Abdul Rasheed and Muhammad Atiq Bajwa to be the culprits. He assigned them the same roles as mentioned by the victim. Their evidence is further supported and corroborated by P.W.9. He was Chowkidar of the bungalow of the P.W.18. His evidence reveals that on 11-6-2004 at 3-00 or 3-15 p.m. He was performing his duties at the gate of the bungalow when he saw the car of the victim arriving there. His further statement is same as that of the victim and P.W.4.. He also saw the driver of the vehicle of the appellants. He identified all the three appellants before the Magistrates in the identification tests. He assigned them similar roles as given by P.W.18. Their evidence is further supported and corroborated by Judicial Magistrate P.Ws.11 and 13. Their evidence reveals that identification tests of appellants Abdul Rasheed and Muhammad Atiq Bajwa were held before P.W.11 and identification test of Khalid Aziz was held before P.W.13. In the said tests the P.Ws.4, 9 and 18 identified the appellants Abdul Rasheed and Muhammad Atiq Bajwa before P.W.11 and assigned them the roles as mentioned above.
Whereas the evidence of P.W.13 reveals that P.Ws.9 and 18 identified appellant Khalid Aziz to be the culprit who was driving the vehicle.
12. All the P.Ws. Were subjected to a very lengthy cross-examination but defence counsel could not shake their evidence. There are no material contradictions or discrepancies in their evidence. The learned Advocate for the appellants has challenged the statements of P.Ws.4, 9 and 18 on the ground that they had improved their statements by assigning the role to appellant Khalid Aziz of folding the number plates of the vehicle which they did not state in their police statements. The said contradiction has been proved in accordance with law. As such, it appears that the witnesses, in their earlier statements, did not state such fact but in the Court they deposed so. At the most, the said piece of evidence can be excluded from consideration but the remaining portions of the statements of the witnesses are supported and corroborated by all the three witnesses, therefore, because of the said discrepancy the entire evidence of the witnesses cannot be brushed aside.
From the evidence it has been established that the appellants Abdul Rasheed, Muhammad Atiq Bajwa and Khalid Aziz had abducted the P.W.18.
13. The prosecution led evidence of finger prints against the appellant Abdul Rasheed. The allegation of the prosecution was that the finger prints of the culprits were obtained from the car in which P.W.18 was abducted. Aftefthe arrest of the appellant the Finger Prints Expert obtained the finger prints of the appellant Abdul Rasheed. He matched the said finger prints and found the finger prints of the appellant matching with the finger prints lifted from the car. In order to prove such allegation the prosecution examined P.W.16, S.-I. Nasrullah Khan. He stated that he wrote a letter to the Finger Prints Bureau for taking finger prints from the car of the abductee and produced the letter Exh.17 which shows that A.S.-I. Hafeezullah, Finger Prints (Investigation) lifted the finger prints from the car. The evidence of P.W.19 reveals that he requested the Finger Prints Bureau to take the finger prints of the appellants and in pursuance to his request the Bureau people came and took the finger prints of the appellant including Abdul Rasheed. The finger prints were examined by the Expert who formed the opinion that the finger prints of the appellants Abdul Rasheed matched with the finger prints lifted from the car. The report of Expert was produced under section 510, Cr.P.C. The evidence on the above point went unchallenged and uncontroverted, therefore, from the above piece E of evidence the involvement of appellant Abdul Rasheed has further been established.
14. As regards the case of appellant Junaid Ansari, the prosecution assigned him the role of providing Toyota Corolla car in which the P.W.18 was abducted, the role of sitting in the Coure car when the abductee was shifted from Toyota car to the said car and then the abductee was taken to a house where he was confined where the appellant also visited the P.W.18.
15. In order to prove the above allegations the prosecution relied upon the evidence of P.W.12 Muhammad Saleem Lakhani, P.W.15 Muhammad Ali and P.W.18 victim Ahmed Naeem. The evidence of P.W.12 reveals that he was .Friend of appellant and was running a car showroom at Islamia College, Karachi. On 5-6-2004 the appellant contacted him and told him that he needed a car on rent, therefore, he should make some arrangement. On which P.W.12 contacted P.W.15 who was running a business of rent a car and he obtained Car No,AFG-547 Corolla on 5-6-2004 and handed it over to the appellant. This was the same car in which the P.W.18 was abducted. The evidence of P.W.15 reveals that he was running the business of rent-a-car. On, 5-6-2004, P.W.12 contacted him for hiring a car and after execution of required agreement, Car bearing No,AFG-547 was handed over to P.W.12 on rent of Rs,1,900 per day. On 12-6-2004 at 6-00 p.m. The car was returned to him.
On 15-8-2004 the police informed him that the said car was involved in a criminal case. He informed the police that the car was hired to someone else and he would produce the same when he ' receives it. On the next day he produced the car before the police. The evidence of P.W.18 reveals that after his abduction from near the gate of his house the appellants Abdul Rasheed, Muhammad Atiq Bajwa and Khalid Aziz drove the car for about 15 minutes. When the car reached at isolated place in Defence area the appellants shifted him to purple colour Coure car and he was made to sit on the rear seat. The appellant Abdul Rasheed also sat with him. The purple car was driven by some unknown person whereas appellant Junaid Ansari was sitting on the front seat.
Thereafter, he was taken to a house where he was confined. In the said house the appellant was visiting him. After his release the police took him to the police station where he saw cars and identified two cars, one Tyoyta Corolla bearing No,AFG-547 and the other purple colour Coure car to be the same cars, which were used in the crime. The evidence of P.W.19 Atiqur Rehman, Investigating Officer reveals that on the information received from appellant Fida Khoso he arrested the appellant Junaid Ansari from his house and secured the purple colour Coure car which was parked inside his house. The appellant, in his statement under section 340(2), Cr.P.C.
Admitted that in the first week of August, 2004 he purchased that car from one Rano Khan Bhutto, father of the absconding accused Mujeebur Rahman and transferred pit in the name of his brother Abdur Rahman. He handed over the car to the police along with its papers. The evidence of P.W.13 Judicial Magistrate reveals that in the identification test P.W.18 identified the appellant Junaid Ansari to be one of the culprits who was present in the car when he was shifted from the car in which he was kidnapped from near the bungalow.
16. All the pieces of evidence show the clear involvement of the F appellant in the commission of abduction. He was the person who facilitated the shifting of the abductee from one car to another.
He, then taken him to a house, where the abductee was confined, in the company of appellant Abdul Rasheed and one unknown culprit who was driving the car. His involvement is further established from the fact that he was visiting the place of captivity of the P.W.18. It has also been established that he obtained the Toyota car in which P.W.18 was abducted, therefore, he was required to explain as to under which circumstances the car was used for the commission of crime but he failed to explain the same. On the contrary, the presence of the appellant in the Coure car when the abductee was brought in Toyota car at the said place and shifted him to the Coure car clearly establishes the involvement of the- appellant with the commission of crime. Furthermore, the recovery of the Coure car further strengthened the case of the prosecution with regard to the involvement of the appellant and further that after two months of the incident the car was purchased by him from the father of absconding accused- and got if registered in the name of his brother.
17. The learned Advocate for the appellant has attacked the evidence by challenging the statement of P.W.12 that he was accomplice of the crime, therefore, his evidence should not be accepted without any corroborative piece of evidence. The learned A.A.-G. Has argued that from the investigation, the involvement of the P.W.12 was not established as per statement of the Investigating Officer who stated such facts, therefore, he cannot be termed as accomplice in the crime. Accomplice is a person who abets, associates or does some act in the commission of the offence. In the present case the P.W.12 deposed that he was friend of Junaid Ansari. The said fact has not been denied by the appellant in the cross-examination. In such type of relationship a friend usually helps another friend in case some need arises. The evidence of P.W.12 reveals that his friend appellant Junaid Ansari needed the services of P.W.12, therefore, he requested him for arranging a vehicle on rent, as such, in the capacity of a friend P.W.12 obliged him by obtaining the car in his name which was handed over to the appellant. There is no evidence to show that P.W.12 had any knowledge about the commission of the crime or the appellant Junaid Ansari had joined P.W.12 with him for commission of the crime. The case was thoroughly investigated by the police.
The police found that P.W.12 was not involved in the case, therefore, the evidence of P.W.12 cannot be termed as evidence of an accomplice of a crime keeping in view the peculiar facts and circumstances of the case. From the evidence of P.W.12 it has been established that the Car bearing No,AFG-547 was handed over to Junaid Ansari which was used in the commission of crime and the P.W.18 identified the same to be the car in which he was abducted.
18. The learned Advocate for the appellant further stated that the culprit who was sitting in the car was having a strong build but the appellant was not having such build as observed by the trial Court, therefore, the mistaken of identity of appellant Junaid Ansari cannot be ruled out. The P.W.18, in his cross-examination, admitted that he stated in his police statement that the person who was sitting on the front seat beside driver in purple colour car was of strong build, clean shaved and wheatish colour but he further added that appellant Junaid Ansari was the person who was sitting on the front seat and at that time he was clean shaved. However, when he saw him in the Court he stated that he was having short beard and mustaches but he was not having strong build at that moment. It is pointed out that the incident took place on 11-6-2004 whereas the statement of P.W.18 was recorded on 7-1-2005. It is possible that during the period of confinement of the appellant he might have lost weight because of undernourished food, mental agony of jail and tension of the case. As such, the said fact by itself is not sufficient to discard the evidence of the P.W.18 on the identification of the appellant Junaid Ansari when he stated that at the time of incident he was strong build but when his statement was recorded and he saw the appellant he was not having strong build but the person was same. The question of identity of a person is involved. The person can be identified from the features of his face. The P.W.18 saw the face of the appellant at the time when he was taken to the house. Subsequently, he also saw him when he visited him several times at the place of his captivity. In such a situation, there was no need for holding identification test through a Magistrate because identification test is essential when the witness sees momentary glimpse of the culprit but in the present case the P.W.18 saw the appellant several times.
Nevertheless, 'he identified the appellant in the identification test to be the culprit. He also identified him in the Court to be the culprit. Hence the identity of the appellant has .Been established beyond any reasonable doubt. Thus, the prosecution has proved the involvement of the appellant in the commission of the crime.
19. As regards the case of the appellant Qurban Ali Khoso the role assigned to him was of guarding the P.W.18 when he was confined in the room of a house, judicial confession and identification test.
20. In order to prove the case, the prosecution relied upon the evidence of P.Ws.18 and 13. The evidence of P.W.18 reveals that when he was confined in the room he saw the appellant oftenly guarding the place and watching him during the period of his confinement of 62 days. His evidence further reveals that he identified the appellant in the identification test held before P.W.13.
The Magistrate has fully supported the evidence of P.W.18 by stating that the witness had identified the appellant to be the culprit, who was guarding him. The defence counsel could not shake the evidence of P.Ws. 18 and 13 on the above aspect of the case. Thus, the prosecution has proved the involvement of the appellant through the said piece of evidence.
21. As regards the judicial confession which was recorded by P.W.13, he produced the judicial confession as Exh.70. A perusal of,the confession reveals that it is an exculpatory confession as the appellant alleged that the victim was confined in his house under the threat and pressure of co- accused. The A.A.-G. And Advocate for the complainant have also not relied upon the said piece of evidence and admitted that self-exculpatory confession cannot be termed as confession under the law. We fully agree with the above view. Nevertheless, the prosecution 1 has proved involvement of the appellant through victim.
22. As regards the case of appellant Fida Hussain Khoso, the role assigned to him was of his presence in the car when P.W.18 was released and recovery of Daewoo green car. The prosecution relied upon the evidence of P.W.18, P.W.13 Magistrate, P.W.10 Mashir Inspector Tasawar Ameer and P.W.19 Inspector Atiqur Rahman. The evidence of P.W.18 reveals that he saw the appellant in the car when he was released and left at the petrol pump. P.W.18 identified him in the identification test to be the said person but in the Court when he saw the appellant he stated that he had doubt whether the appellant was the same person amongst the four persons who were in the Daewoo green colour car. He further confirmed his doubt by stating that all the accused present in the Court except Fida Hussain, to whom he had doubted, were the same who were involved in his abduction for ransom. By admitting the above fact, after seeing the appellant in the Court, a doubt has been created with regard to identity of the appellant. The P.W.18 has made his own statement doubtful. As such, it is very unsafe to rely upon such piece of evidence. The learned A.A.-G. And Advocate for the complainant have also not supported the case against the appellant.
23. As regards the recovery of green car, the P.W.10 Mashir and P.W.19 Investigating Officer admitted that in the Mashirnama of recovery of car it was mentioned that the car was parked outside the house of the appellant. The prosecution did not collect the registration book of the car so as to connect the same with the appellant. The car was parked outside the house of the appellant. As such, it was not in his exclusive possession. No other evidence was led to connect the car with the appellant. As such, the prosecution has failed to prove this piece of evidence.
24. From the evidence available on record we are of the considered view that the involvement of the appellant Fida Hussain Khoso has not been proved beyond any reasonable doubt, therefore, he is entitled to the benefit of doubt.
25. From the evidence and roles assigned to the appellants it is clear that the intention of all the appellants except appellant Fida Hussain was to abduct the P.W.18 and in order to achieve the said object various roles were assigned to different sets of appellants. From the said facts it is clear that the appellants had prepared a detailed plan to achieve the goal of abduction of the P.W.18 and as per planning the appellants performed their roles. The prosecution has proved such roles in respect of all the appellants except appellant Fida Hussain, therefore, the punishment of the said appellants would be the same irrespective of the role played by each of them.
26. Next point for consideration is as to what was the purpose of abduction. The prosecution alleged that the purpose of the abduction was to extract ransom amount. In order to support the said plea the prosecution relied upon the evidence of P.W.3 Muhammad Naeem, father of the victim and P.W.18. His evidence reveals that his Chowkidar gave him a letter Exh.19 written by his son P.W.18 in which his son had informed him that the culprits were interested in receiving the payment for his release. Thereafter one Akbar made telephone call to him and demanded Rs,5 crore as ransom amount for the release of P.W.18. Subsequently, it was reduced to Rs,61 lac. The amount was to be paid in England. Therefore, the complainant contacted C.P.L.C. People who arranged the services of one Bilawal. Pound Sterling 56,000 were given to the CPLC people and through Bilawal the amount was received by the culprit in UK and thereafter the victim was released.
27. His evidence to the extent of demand of ransom amount and sending the letter Exh.P.19 to him by the victim has been fully supported and corroborated by P.W.18 who stated that the culprits had told him that he was abducted to extract ransom amount and directed him to writ a letter which he wrote and then it was received by his father P.W.3. Thus, the purpose of abduction was to extract ransom amount.
28. As regards the payment of ransom amount the prosecution did not lead any evidence to prove such aspect of the case. The prosecution did not examine any person from C.P.L.C. To depose . That the complainant had paid Pound Sterling 56,000 to be delivered to Bilawal. The prosecution also did not examine said Bilawal or any person from UK to prove the allegation. However, the prosecution produced the statement of Stephen John George, Detective Inspector, Greater Manchester Police recorded by Magistrate P.W.11 as Exh.52. A perusal of such statement reveals that it was recorded in the absence of the appellants as at that time none of the appellants was produced before the Magistrate. A statement under section 164, Cr.P.C. Is to be recorded in presence of accused after complying with the requirements of law so as to make the same statement a substantive piece of evidence if the witness resiles from his previous statement. In the present case Stephen John George was not produced before the trial Court for recording his statement. As such, the statement Exh.52 carries no weight at all, hence it is discarded.
29. It is pointed out that the trial Court examined Muhammad Nadir, Bank Manager as court- witness. His evidence reveals that on 9-8-2004 he received a cheque of Rs,61 lac issued by the P.W.3 and he allowed the same to be encashed. The cash was received by the person who brought the cheque. The identity of the person who received the cash has not been established as the prosecution did not examine such person. P.W.3 did not state that he issued the cheque of Rs,61 lac which was to be utilized for sending the said amount to United Kingdom. There is also no evidence that the said Rs,61 lac were converted into Pound Sterling to be sent to United Kingdom. There is also no evidence to show that the P.W.3, contacted any person dealing in "Hundi" and he paid the said amount to him for delivering Pound Sterling 56,000 in UK to Bilawal. In absence of above pieces of evidence it cannot be held that Rs,61 lac taken out from the Bank account of the P.W.3 were utilized for the said purpose.
30. Furthermore, the Manager was examined as court-witness, therefore, it was incumbent upon the trial Court to have given opportunity to prosecution and accused to cross-examine the witness.
A perusal of statement of the Manager reveals that the trial Court allowed the appellants to cross- examine the witness but no opportunity was given to the prosecution to cross-examine him. In the absence of giving opportunity to the prosecution to cross-examine the witness the statement of the Manager cannot be termed as evidence within the meaning of Qanun-e-Shahadat Order, 1984.
As such, it has lost its evidentiary value.
31. The prosecution has relied upon some E-mails, therefore, it is necessary to examine as to what is E-mail and related points. E-mail is an electronic way to send and receive messages (which may include images, audio and video files) through Internet. It requires: (1) computer (other devices like Mobile may also be used); (2) Internet connection; and (3) E-mail account. If anybody wants to send or receive E-mail from his stand alone computer then that computer should have an internal or external Modem (a hardware device) installed in it. In Cyber Cafes or other such environments a central computer has a modem installed and all other computers share the Internet connection through that central computer usually called Internet Server. An internet connection is obtained from Internet Service Provider (ISP). Examples of such ISPs in Pakistan are Cybernet, BrainNet, Gerry's, etc. E-mail Accounts can be divided into two types; Free and Paid. Free E-mail Accounts have limited space and personal information of the account-holders that can be disclosed to third party depending upon policy of the E-mail Service Providers (ESP). Some examples of free E-mail Service Providers are Hotmail, Yahoo, Gmail, etc. Anyone knowing operation of computer and internet can easily create himself an E-mail account with any desired name provided that name is not already created on the server computer of the ESP, nobody can send E-mail from E-mail account of other person unless he or she knows his or her account name and especially the passwo rd. Similarly nobody can read the E-mails of other person without knowing his/her passwo rd. However, anyone can send E-mail to any other person if he or she knows E-mail account name of the other person; passwo rd of the receiving person is not required for this purpose. The receiver of an E-mail can put filters on some known undesirable E-mail accounts to restrict them from sending E-mail. Paid E-mail accounts have more space, security and other features. Most of the ISPs also provide free or paid E-mail Accounts.
32. There are several free software tools available on Internet which can trace back the IP Address of the Sender through the header text of the E-mail received. After getting the IP of the sender, the concerned ISP can be contacted to get further information (i.e. The telephone line which was used by the IP at that particular date and time of the E-mail sent). The address of the telephone holder/owner can obtained from PTCL/NTC. In this way the E-mail sending computer can be identified and the data of the E-mail can be retrieved from it by using Computer Forensics Tools. It is also possible to prove it in Court of Law provided proper chain of custody of maintained.
However, it is difficult to identify the particular person who sent the E-mail; this is the area where investigation by some police agency is required. There is no law by which Cyber Cafes are required to keep record of persons using the computer of cafes, therefore, Cyber Cafes do not keep record of the persons using computers there, nor do they keep history of data for long.
33. The prosecution has produced E-mails Exhs.12, 13 and 14 sent by David Brown to Mr. Memon of C.P.L.C.. Neither said Memon nor David Brown has been examined to prove the said E-mails. An E- mail address can be created by anybody under any name, therefore, the person who created the E-mail address is required to be examined in Court so as to prove its authenticity otherwise it will adversely effect the authenticity of the E-mail. Further, E-mail must have been mailed through a computer by using internet, which can be connected through a telephone. The E-mail could have been traced through telephone number about the identity of the person who sent the E-mail.
34. The prosecution did not take any efforts to prove the said E-mails in accordance with law. As such, they cannot be relied upon, hence the same are discarded.
35. The prosecution also produced letters Exsh.36-A to C issued either by Mr. Hamish Daniel, British Deputy High Commissioner; Mr. Steve Lee Jones, Drug Liaison Officer; or Chief Citizens Police Liaison Committee (C.P.L.C.) but none of these persons was examined signatories of the documents were produced before the. Court to prove the said documents. As such, the said documents cannot be safely relied upon.
36. The prosecution also produced audio cassettes allegedly containing the conversation of P.W.3 and culprits but the voices in the audio cassettes were not got identified through P.W.3 or any other person. As such, the conversation in the audio cassettes cannot be safely relied upon unless the voices are identified by the concerned persons, hence the said piece of evidence also carries no weight.
37. After considering the material available on the record we are of the considered view that the prosecution has proved the case against all the appellants except Fida Hussain, therefore, they have committed an offence punishable under section 7(e) of Anti-Terrorism Act, 1997 read with section 365-A, P.P.C. Hence, they are liable to be convicted and sentenced for the said offences.
The learned trial Judge has separately convicted and sentenced the appellants for offence punishable under section 365-A, P.P.C. And 7(e) of Anti-Terrorism Act, 1997. The ingredients of the offence fall under provisions of two different statutes viz. P.P.C. And Anti-Terrorism Act, 1997. By virtue of section 235(2), Cr.P.C. The Court is competent to try both the offences in a single trial for such offences but by virtue of section 26 of General Clauses Act only one sentence is required to be awarded to the accused. The accused is not required or liable to be punished for the acts and omission constituting an offence under two or more enactments, therefore, we convicted the appellants except Fida Hussain for offence punishable under section 7(e) of Anti-Terrorism Act, 1997 read with section 365-A, P.P.C. To the above extent the convictions awarded by the trial Court under clauses (a) and (c) were merged together. As regards the conviction and sentence for offence punishable under section 344 read with section 34, P.P.C. Such offence is merged in the offence of abduction, therefore, the trial Court was not required to pass separate sentence for the said offence. Therefore, the conviction and sentence for the said offence were set aside by our short order.
38. As regards the sentence, from the facts and circumstances of the case it is not known as to how the abductee was released. Such mystery has not been solved or clarified by the prosecution.
As such, the said fact can be taken as mitigating circumstance for awarding lesser sentence.
39. Above are the reasons of our short order, dated 12-1-2007, by which we had disposed of the appeals and confirmation case in the following manner:-- "For reasons to be recorded separately, no case against appellant Fida Hussain Khoso has been made out, therefore, conviction and sentence awarded to him under the impugned judgment are set aside. The appellant is acquitted and set at liberty. He is in custody. He should be released forthwith if not required in any other custody case.
' As regards remaining appellants, we modify the conviction and sentence awarded to them under the impugned judgment as under: ' Appellants Qurban Ali, Junaid Rehman, Khalid Aziz, Muhammad Atiq Bajwa and Abdul Rasheed are convicted for offence punishable under section 7(e) of Anti-Terrorism Act, 1997 read with section 365-A, Cr.P.C. And sentenced to suffer imprisonment for life. Their movable and immovable properties to the extent of Rs,1,00,000 each are confiscated to Government. They are directed to pay compensation of Rs,1,00,000 each to the abductee, as provided under section 544-A, Cr.P.C. Or in default thereof to suffer rigorous imprisonment for six months with benefit of section 382-B, Cr.P.C.
' Consequently Special A.T.A. Nos.9, 12, 13 and 37 of 2005 are dismissed with the above modification in the conviction and sentence. The Special A.T.A. No,10 of 2005 is allowed. The Confirmation Case No,3 of 2005 is also dismissed.