' ALI SAIN DINO METLO, J.--- By this judgment, dated 20th day of May, 2004, passed in Special Case No,4 of 2004 re: The State v. Shaukat Ali and others (F.I.R. No,2 of 2004 of Police Station Khawaja Ajmer Nagri), the Anti-Terrorism Court No,3, Karachi convicted Zafar Iqbal alias Zafro, Shaukat Ali (appellants in Appeal No,19 of 2004), Ali Akbar alias Akoo (appellant in Appeal No,20 of 2004) and Munir Ahmed (appellant in Appeal No,21 of 2004) under section 7(e) of the Anti-Terrorism Act, 1997, read with sections 365-A and 34 of the Pakistan Penal Code, 1860, and sentenced them to suffer death and also ordered to confiscate their immovable properties to the extent of Rs,1,00,000 each.
The convicts have challenged their conviction and sentence by filing the above appeals and the trial Court has made reference, bearing Confirmation Case No,7 of 2004, under section 374 of the Code of Criminal Procedure, 1898, read with section 30(2) of the Anti-Terrorism Act, 1997, for confirming the sentence of death. By our short order passed on 29-9-2006, we, while maintaining the conviction, had declined to confirm the sentence of death and converted it into that of imprisonment for life and disposed of the appeals with the above modification in the sentence and dismissed the reference. These are the reasons for the same.
2. Briefly, the facts are that abductee Muhammad Aslam Lodhi (P.W.5) owned an engineering workshop, known as Bismillah Engineering Workshop, situated at bus stop of Route 4-J, section 3, North Karachi, and appellant Zafar Iqbal, prosecution witnesses, Asif Ali (P.W.2) Muhammad Waheed Aslam (P.W.4), Muhammad Aslam Shaikh (P.W.6), Muhammad Amir (P.W.7) and Muhammad Rashid (P.W.8) were workers on the workshop. On 1-1-2004, appellant Zafar Iqbal invited Muhammad Aslam Lodhi and his above named co-workers to a dinner and took them to his house situated in Bilal Colony, Karachi, where he along with the remaining appellants and absconding accused Mir Hassan alias Miro took them hostages and demanded ransom of Rs,5,00,000 for their release, threatening complainant Muhammad Saqib (P.W.1) son of Muhammad Aslam Lodhi, on telephone, that in case he failed to pay them the ransom he would receive dead body of his father in a gunny bag. His father also confirmed, on telephone, that they had been abducted for ransom and asked him to arrange its payment.
3. On 2-1-2004 at 2050 hours, complainant Muhammad Saqib reported the matter to police and his report was registered as F.1.R. No,2 of 2004 at Police Station Khawaja Ajmer Nagri, New Karachi Town. The demand of ransom was ultimately reduced to Rs,1,15,000 which he paid to appellant Shaukat Ali at the appointed place and time i.e. Near Fire Brigade Station, Bilal Chowrangi on 3-1- 2004 at 4-45 p.m. And he was caught red-handed by a pre-arranged police party. He led to the recovery of the hostages and arrest of appellants Zafar Iqbal and Ali Akbar from House No,D-434 Street No,1, Gulshan-e-Latif, Bilal Colony, Karachi on same day at 6-25 p.m., while their two companions, appellant Munir Ahmed and absconding accused Mir Hassan managed to escape.
An unlicensed T.T. Pistol of .30 bore was seized from appellant Zafar Iqbal and a dagger, from appellant Ali Akbar. Appellant Munir Ahmed was arrested on 9-1-2004. All the abductees identified him in a test/identification parade held before a Magistrate on 15-1-2004. Mir Hassan could not be arrested. After declaring him absconder, the appellants were tried, convicted and sentenced as above.
4. At trial prosecution examined 12 witnesses, including the complainant and the six abductees. The remaining five were SIP Muhammad Khalid (P.No,3) Police Officer recording the F.I.R., Mr. Farooq Ahmed Abbasi (P.W.9), Magistrate conducting the test identification parade, ASIP Choudhry Manzoor Ahmed (P.W.10), Mashir of arrest of appellant Munir Ahmed of recovery of bills of mobile phones, Adnan (P.W.11) son of the owner of the house from which the abductees were recovered, and SIP Ali Muhammad (P.W.12), Investigating Officer. All of them supported the prosecution. The six abductees, the complainant and the Investigating Officer fully implicated the appellants.
5. In their examination recorded under section 342 of the Code of Criminal Procedure, 1898, (hereinafter referred to as "the Code") and depositions recorded under section 340 (ibid), all the appellants stated that they were innocent and the entire evidence produced against them was false.
6. Appellant Zafar Iqbal contended that he had been falsely implicated because the owner of the workshop, namely, Muhammad Aslam Lodhi (P.W.5) had not paid him his wages etc. Amounting to Rs,1,85,000 due to which he had left his service and had also refused to compromise with him.
Except for his own oral statement, there is nothing to support his contention, which seems to be an afterthought. No suggestion in that regard was put to the owner of the workshop. In his cross- examination, he stated that he had worked only for seven months and his pay was Rs,4,000 per month. This contradicts his claim of Rs,1,85,000. However, his Advocate, on instructions, did not press his appeal against conviction and only prayed for conversion of death sentence into life imprisonment.
7. Appellant Shaukat Ali deposed that on 3-1-2004 he was arrested by police while he was on his way to the market of Bilal Colony to purchase vegetables, but no suggestion in that regard was put to the Investigating Officer and he did not examine any witness in his support. In such circumstances, no weight can be given to his solitary oral word as against the overwhelming prosecution evidence.
8. Appellant Ali Akbar deposed that the Investigating Officer (SIP Ali Muhammad) had arrested him and his younger brother Nazeer Ahmed from his shop of dry-cleaning situated in Latif Colony and had B demanded Rs,50,000 for their release and due to their failure to pay the bribe he was falsely implicated in the case; while his brother was released without payment of any bribe. He examined his brother Nazeer Ahmed, Niaz Hussain and Muhammad Waryal in his support. Their version does not inspire any confidence and seems to have been cooked up only to evade punishment. In his examination recorded under section 342 of "the Code", he stated that he did not know the co- appellants, whereas in his deposition he stated that appellant Zafar Iqbal and Munir Ahmed were his neighbours and were known to him well. He did not say that he was arrested from his shop in presence of his witnesses, though they claimed that he was arrested in their presence. However, their version stood shattered when they stated, in their cross-examination, that they did not know if police had arrested him and co-accused Zafar Iqbal from latter's house and secured the six abductees from there on 3-1-2004.
9. Appellant Munir Ahmed pleaded alibi and contended that the co-appellants were not known to him. He also, contended that police had arrested him on 9-2-2004 at the police station where he had gone himself and not from the street, near his house as claimed by police. He has further contended that he was produced before all the abductees at the police station introducing them (abductees) as press reporters. However, except for his oral statement that at the time of incident he was working with a contractor in Karim Cotton Factory, Kotri, he did not produce any evidence in support of his plea. He did not examine either the contractor or any of the co-workers or any supervisor or any other person from the mill. The Daily Attendance Cards produced by him as Exhs.55 and 56 have no evidentiary value as they do not bear name or stamp of any mill or factory, and do not bear signatures of Labour Officer or Manager. Their scribe is neither examined nor disclosed. Evidence of his brother Ghulam Hyder (D.W.2) and three other witnesses Manzoor Ali (D.W.3) Muhammad Haroon (D.W.6) and Muhammad Bux (D.W.7) to the effect that he was arrested at the police station and not from the street near his house does not make any difference, as place of his arrest is not material for deciding the issue involved in the case. His contention that he did not know the co-appellants was falsified when he himself admitted in his cross-examination that co-accused Zafar Iqbal was his neighbour residing near his house just in the next lane. His contention that all the abductees were presented before him as press reporters is also not supported by any evidence, except his oral assertion which seems to be an afterthought as no such suggestion was put to the abductees and he admitted in his cross-examination that he had not informed the Magistrate conducting the test identification parade about such fact.
10. Notwithstanding the fact that evidence of the six abductees, who are the victims of the crime and against whom there is nothing to show that they had any reason to implicate the appellants falsely in such a heinous crime, did not require any corroboration, the same is sufficiently corroborated by the evidence of appellant Shaukat Ali's arrest while receiving the ransom, recovery of the abductees on his pointation from appellant Zafar Iqbal's house and simultaneous arrest of appellants Zafar Iqbal and All Akbar from there. All the abductees were found in captivity in a room of the house with their legs tied, hands fastened on their back, and mouth muffled tightly. The witnesses giving the corroboratory evidence, namely complainant Muhammad Saqib Lodhi (P.W.1), A.S.-I. Choudhry Manzoor Ahmed (P.W.10), Adnan (P.W.11) and the Investigating Officer, SIP Ali Muhammad, also do not have any motive to implicate the appellants falsely. Evidence of the Magistrate, namely, Mr. Farooq Ahmed Abbasi,(P.W.9) who had conducted the test identification parade in which appellant Munk Ahmed was identified by the abductees, also renders some corroboration to the ocular evidence of the abductees.
11. The evidence of the abductees, being consistent in all material particulars and free from any taint of malice, carries high intrinsic value. They all have stated that appellant Zafar Iqbal had invited them to a dinner at his house saying that he had been blessed with a son and that after taking food and tea they had gone unconscious (obviously due to the administration of some intoxicant), and that on regaining sense they found themselves captives in appellant's custody with their hands, feet and mouth tied tightly and that appellant Zafar Iqbal had demanded and negotiated the amount 'of ransom with the complainant and that they were ultimately secured by police in a raid. They are all consistent in describing their ordeal during the period of captivity.
There are no material contradictions in their evidence.
12. Messrs, Safdar Mehmood and Nasir Rizwan, Advocates for appellants Shaukat Ali, Ali Akbar and Munk Ahmed, relying upon some minor discrepancies in the prosecution evidence prayed for their aequittal, and alternatively requested fo converting their death sentence into life imprisonment. Mr. Nasir Rizwan, referring to some minor defects in the charge and examination of the appellants under section 342 of "the Code" and relying upon the cases of Muhammad Amir Khan and 5 others v. The State PLD 2005 Lah. 435 and Mumtaz All and another v. The State 2000 PCr.LJ 367, also prayed for retrial.
13. As mentioned above, learned counsel for the appellants could not point out any major contradiction in the evidence of the prosecution witnesses and indeed there is none. They referred to some minor discrepancies, which in our opinion are not material for the purpose of discrediting their evidence. One of such contradictions referred to by the learned counsel is that out of the six eye-witnesses, the F.I.R. Mentions names of only five, omitting name of Muhammad Waheed (P.W.4). In this regard, it may be mentioned that the first informant (P. W.1.) was not confronted with it and, therefore, in view of the provisions of Article 140 of the Qanun-e-Shahadat, 1984, the same cannot be used as a contradiction. Similarly, contradiction in the statements of the two Police F Officers Manzoor Ahmed (P.W.10) and Ali Muhammad (P.W.12) regarding making entry about arrest of appellant Munir Ahmed in the Roznamcha (Daily diary) of Police Station Korangi Industrial Area, within whose jurisdiction he was arrested is also of no consequence, as his arrest is not a material piece of evidence used against him. Likewise, non-recovery of mobile telephone sets or failure to prove the telephone bills are also inconsequential as telephonic conversation is not the only evidence relied upon by the prosecution. In the same way, the minor irregularities in the conduct of test identification parade will have no bearing on the prosecution case as the abductees were with the appellants for two days and there can be no apprehension of their mistaken identity. In this respect reference may be made to the cases of Munir Ahmed and another v. The State 1998 SCMR 752 and Muhammad Akbar v. The State 1998 SCMR 2538. Learned counsel referred to few other discrepancies also but all were minor and inconsequential and we do not consider it necessary to discuss them.
14. As regards contention of the learned counsel for' retrial on the ground of defects in the charge and examination of the appellant under section 342 of "the Code", we are not persuaded to agree with him. No doubt, right of defence is the essence of a criminal trial and an accused is entitled to adequate opportunity of defence and the framing of charge is one of the steps in that direction as it puts the accused on notice at initial stage as to what is the case against him which he has to meet, but it is not all and an error in the charge or even omission to frame it may not be material or fatal to the trial. Sections 232(1) and 535 of "the Code" are clear on the point. For the sake of convenient reference, they are reproduced as under:-- "232. Effect of material error.--- (1) If any Appellate Court, or the High Court or Court of Session in the exercise of its powers of revision or of its powers under Chapter XVII, is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit."
"535. Effect of omission to prepare charge. --- (1) No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal or revision thinks that a failure of justice has been occasioned by any omission to frame a charge, it shall order that a charge be framed, and that the trial be recommenced from the point immediately after the framing of the charge."
15. It will also be advantageous to reproduce section 225 of "the Code" and its illustrations (d) and (e):--- "225. Effect of errors.--- No error in stating either the offence or the particulars required to be'stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice.
Illustrations
(d) A is charged with murder of Khoda Bakhsh on the 21st January, 1882. In fact the murdered person's name was Haider Bakhsh, and the date of the. Murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the trial, which referred exclusively to the case of Haider Bakhsh. The Court may infer from these facts that A was not misled and that the error in the charge was immaterial.
(e) A is charged with murdering Haider Bakhsh on the 21st January, 1882. When charged for the murder of Haider Bakhsh, he was tried for the murder of Khoda Bakhsh. The witnesses present in his defence were witnesses in the case of Haider Bakhsh. The Court may infer from this that A was misled, and that the error was material."
16. From the plain reading of the above statutory provisions one can easily understand that the Legislature never intended to vitiate a trial on the grounds of errors in the charge or omission to frame it, unless they are shown to have misled the accused and thereby caused miscarriage of justice. Illustrations (d) and (e) of section 225 of "the Code" clearly show that misleading is not to be lightly inferred. The use of words "in fact" in sections 225 and 535 clearly signifies that mere claim of having been misled will not be sufficient but it must be shown, by convincing reasons, that he was in reality misled i.e. Owing to the confusion created, he could not properly defend himself which in fact resulted into the miscarriage of justice. For this view, reference can be made to the cases of Nadir Shah v. The State 1980 SCMR 402 and S.A.K. Rehmani v. The State 2005 SCMR 364.
17. The defect pointed out in the charge is that the name of only one abductee i.e. Muhammad Aslam Lodhi is mentioned in it while according to the case of prosecution six persons were abducted. The trial Court has also given its findings that all the six persons were abducted. No doubt, Muhammad Aslam Lodhi, owner of the workshop, was the main abductee capable of fetching ransom and other abductees, who were merely workers on his workshop, were abducted simply because they were accompanying him, but it does not mean that their abduction did not constitute any offence. The trial Court should have framed charge regarding their abduction also.
However, the appellants were neither charged nor convicted for their abduction. It is a favour done to them inadvertently, of which they cannot be allowed to take further advantage. They have been convicted and sentenced only on one count and no prejudice has been caused to them due to the omission of charging and convicting them on other counts. They fully availed the opportunity of defending themselves by cross-examining the prosecution witnesses and producing defence evidence at their will. There is nothing to show that they were misled in their defence in any manner or that any injustice had been done to them.
18. There is also no force in the contention of the learned counsel that examination of the appellants under section 342 of "the Code" should have been confined only to the facts and particulars mentioned in the charge. The purpose of section 342 is to enable the accused to explain any circumstances appearing in evidence against him and 1 not to explain the charge for whose explanation there is a separate section i.e, 265-E in "the Code". Therefore, under section 342 questions are required to be put to the accused in respect of all the material pieces of evidence produced against him so that he may be able to explain all those circumstances and cannot be limited only to the facts and particulars mentioned in the charge.
19. As regards the contention of the learned counsel for the appellants regarding conversion of sentence from death to life imprisonment, to which Mr. Habib Ahmed, A.A.-G., also agreed, we are of the considered opinion that the case is fit for that. All the appellants are young men between 24 to 35 years of age and from their conduct of releasing the abductees in haste by drastically reducing the demand of ransom from Rs,5,00,000 to Rs,1,15,000 in two days, they seem to be the first offenders. Thus, they are not the hopeless cases and after coming out from prison they may prove to be useful members of the society. In an identical case re: Ajab alias Rajab and another v.
The State reported in 2004 MLD 180 (Karachi), relied upon by the learned counsel for the appellants, a Division Bench of this Court of which one J of us (Sarmad Jalal Osmany, J.) was a member, converted the sentence of death to that of imprisonment fora life. We, therefore, dismiss the reference for the confirmation of death sentence, convert the sentence of death into that of imprisonment for life and dispose of the appeals only with this modification in the sentence.