JUDGMENT TARIQ SHAMIM, J.- Appellant Shahzad Khan (in Crl. Appeal No. 2158 of 20O2), Appellants Muhammad Riaz and Muhammad Ashfaque (in Crl. Appeal No. 2206 of 2002), Appellant Muhammad Arshad (in Crl. Appeal No. 2158 of 2003) and Ghulam Abbas accused involved in case FIR No. 177 of 2002, dated 07.06.2002 were tried by the Judge Anti- Terrorism Court No. II, Gujranwala, who vide his judgment dated 19.12.2002 while acquitting Mst. Nasreen alias Ayesha* and Mst. Parveen convicted and sentenced the appellants and Ghulam Abbas accused as under:- U/s. 7(e) of ATA, 1997: Death sentence each alongwith forfeiture of their whole properties each.
U/s. 392, PPC. 10 years' R.I. Each and fine of Rs. 1,00,000/- each, In default thereof, they were to undergo further S.I. One year each.
Muhammad Riaz and Muhammad Ashfaq appellants were further convicted under Section 13 of Pakistan Arms Ordinance (No. XX) of 1965 and to 3 years' R.I. Each along- with fine of Rs. 10,000/- each, In default thereof, they were to further undergo six months' S.I. Each.
2. Briefly stated the facts of the casq as per FIR recorded by complainant Muhammad Farooq ;(PW- 1,) are that on 04.06.2002 the complainant alongwith abductee Asim Nadeem (PW-2) collected Rs.
3,00,000/- regarding instalments from Gujranwala and while returning to Sialkotin car bearing registration No. 4/STM when they crossed the bridge of link canal at Moutra, four persons travelling in a car stopped them and got both of them seated in their own car whereas the driver of the car of the accused boarded in the car of the complainant party. Both the cars were taken towards Gujranwala. The accused snatched Rs. 3,00,000/- from the complainant and divided amongst them.. The abductee was got seated in his own car whereas the complainant while snatching 44 bore rifle from the accused jumped from the car and deposited the same with Police Station City Muridke. The complainant told the number of car driven by the accused as 441'5/lslamabad and also informed about snatching of mobile from him and the abductee.
3. After registration of the FIR (Ex.PA) Hameed Shah/Sub-lnspector-Investigating Officer inspected the spot on 07.06.2002 and went to the Police Station City Muridke.
Rifle P-1 was handed over to the Investigating Officer who secured the same vide recovery memo. Ex.PE. Initially, the case was registered under Sections 365 and 392, PPC but later on Section 365-A, PPC was added. The Investigating Officer went to Peshawar alongwith other police officials on 11.06.2002, where the abductee was taken for obtaining ransom. The accused remained in touch with the * complainant party on telephone. The accused received rupees fifty lacs from Tanveer Ehsan and Shabhir Butt at Peshawar. Jahan Zaib accused was arrested, however, the accused who received the ransom amount were pot apprehended. Jahan Zaib accused under the Police custody led to the recovery of Sheikh Asim Nadeem.Abductee from his house at Peshawar. The Investigating Officer recovered car bearing Registration No. B/5480 from Jahan Zaib accused and secured the same vide recovery memo. Ex.PB. Muhammad Ashfaq and Muhammad Riaz were arrested on 20.06.2002 by the Investigating Officer who also recovered the car of the., complainant and secured the same vide recovery memo. Ex.PF. A .30 bore pistol was recovered from the possession of accused Muhammad Riaz which was secured vide recovery memo. Ex.PH. A Kalashinkov was also recovered from Muhammad Ashfaque accused which was secured vide recovery memo.
Ex.PG. A separate case under the Arms Ordinance was registered against them. Muhammad Riaz and Muhammad Ashfaque accused were identified during the identification parade held in the'District Jail, Sialkot on 03.07.2002.
4. After investigation accused Ghulam Abbas, Arshad alias Tariq Lohar, Mst. Nasreen alias Ayesha and Mst. Parveen were found guilty. As they were not arrested, therefore, they were declared proclaimed offenders. However, they were tried by the learned Trial Court in absentia alongwith other accused.
5. All the accused were charge-sheeted on 02.11.2002. They pleaded their innocence and claimed trial. The prosecution in order to prove its case produced Muhammad Farooq-complainant (PW-1), Sheikh Asim Nadee-at?Ductee (PW-2), Tanveer Ehsan (PW-3), Muhammad Salman Ghumman, Civil Judge/Magistrate lst Class (PW-4), Munawar Khan, AS1 (PW-5), Muhammad Yaqoob, Constable (PW-6), Abdul Ghafoor Khan, Constable (PW-7), Hameed Ullah-Sub-lnspector (PW-8), Dr. Bashir Ahmed (PW-9). The learned Public Prosecutor while giving up the other PWs closed the prosecution evidence, In their statements under Section 342, Cr.P.C, the accused denied the prosecution case. However, accused Muhammad Ashfaque, Muhammad Riaz, Jahan Zaib stated their involvement due to money dispute with the complainant whereas the other accused stated their involvement recorded under Section 340(2), Cr.P.C, and they also did^ not produce any evidence in their defence.
6. The learned Trial Court after concluding the' trial convicted and sentenced the appellants as stated * above. The appellants have challenged their conviction and sentences through the afore- mentioned appeals while the learned Trial Court has sent Murder Reference No. 16-T of 2003 for confirmation of death sentence. All these matters are being decided together through this single judgment.
7. The learned counsel for the appellants contended that the occurrence of abduction took place on 4.6.2002 whereas the FIR was lodged on 7.6.2002 and no plausible explanation had been provided by the prosecution for the delay; that according to the prosecution story the complainant jumped from the car at Muridke, and he appeared before the Moharrar of the Police Station along with rifle snatched from the accused, however, the SHO of the Police Station did not register the FIR and if the allegations were correct, he was bound to lodge an FIR as it was a continuing offence, but no independent evidence was produced at the trial to prove the factum of abduction of Asim Nadeem to Peshawar; that the story regarding arrival of the police from Sialkot to Peshawar was not proved and the recovery of the alleged abductee from the house of Jahan Zaib Khan appellant was not free from doubt, that the police at Peshawar neither informed nor any help was sought from the concerned Police Station with respect of recovery of the alleged abductee; that all the proceedings after the recovery of the alleged "abductee were recorded on- 12.6.2002 whereas the abductee was allegedly recovered on 11.6.2002; that the recoveries of cars were of no consequence; that the evidence of identification parade was defective, hence, unreliable and that the prosecution case was full of infirmities and doubts, therefore, the appellants were entitled to be acquitted.
8. On the other hand, the learned Deputy Prosecutor-General *and the learned Special Prosecutor for State contended that the infirmities pointed out in the statements of the witnesses by the learned counsel for the appellants were major in nature, therefore, of no consequence; that the prosecution had proved its case beyond a, shadow of doubt against the appellants through credible evidence, that the identification parade was held in conformity with law; that the recovery of cars from the possession of the appellants further connected them with the crime, that the recoveries of arms and ammunitions from Muhammad Riaz and Muhammad Ashfaque appellants were duly proved by credible evidence and that the judgment of the learned Trial Court was based on prdper appreciation of evidence produced at the trial, hence, no interference was called for. t
9. We have heard the learned counsel and have gone through the record with their able assistance.
10. According to Muhammad Farooq, the complainant of the FIR (PW-1), on 4.6.-20O2 while he and Asim Nadeem, the abductee (PW-2) were returning from Gujranwala to Sialkot after collecting Rs.
3,00,000/- in their car bearing registration No. 4-STM, four persons in another car forcibly stopped them and at gunpoint forced them to sit in their vehicle. The car thereafter turned towards Gujranwala where the. Money carried by the witnesses and their mobile phorre were snatched from them. The witnesses were confined in a house situated in a colony; On learning about the business of Asim Nadeem (PW-2), the accused took Asim Nadeem back to the bye-pass road where his car was parked. Two accused sat with Asim Nadeem in the said car which was then driven dway. Muhammad Farooq (PW-1) was taken away in the other car towards Muridke and when the car slowed down due to rush of traffic at Muridke, he snatched the rifle from the accused sitting next to him and jumped from the car. This witness then went to the Police Station and deposited the gun with the Moharrar of the Police Station. Thereafter he proceeded to Police Station Moutra and submitted written application Ex.PA. This witness was also medically examined. He then accompanied the SHO to Muridke who received the rifle P-1. From the Police Station, In the identification parade held on 27.2.2002 under the supervision of a Magistrate, this witness identified Muhammad Riaz and Muhammad Ashfaque appellants. Muhammad Asim Nadeem while taking the witness stand deposed on the same lines as Muhammad Faraoq (PW-1) about the first part of the occurrence, however, he added that from Gujranwala he was taken by the appellants to Faisalabad and was detained there for one night. On the next day, at 3:30 p.m., the appellants took him to Peshawar to the house of Jahan Zaib Khan appellant where Shahzad appellants was also present. The witness was threatened by the appellant that in case the ransom amount was not paid to them, he would be murdered. On the asking of the appellants the witness contacted his relatives on telephone. Subsequently, on 11.6.2002 the police recovered him from the house of Jahan Zaib Khan where Shahzad appellant was also present. The third witness produced by the prosecution in support of its case was Tanvir Ehsan (PW-3). This witness was an employee of Jttehad Motors'owned by Sheikh Nadeem, the' father of Asim Nadeem. The occurrence was related to this witness by Muhammad Farooq (PW-1). Subsequently, the appellants demanded Rs. One crore as ransom from Sheikh Nadeem, the father of Asim Nadeem (PW-2) for his release and the bargain was struck at Rs. 50 lacs. This witness alongwith Shabbir PW went to Peshawar at'the designated place and was met by four persons in a car. Both the witnesses were made to sit in the car being driven by the accused while their own car remained parked at G.T. Road. Jahan Zaib Kharif, Ashfaque, Arshad and Abbas appellants received Rs. 50 lacs from the witnesses, whereafter three appellants alighted from the car and left whereas Jahan Zaib Khan continued to drive the car. When they stopped at a traffic Signal Jahan Zaib Khan was apprehended by the Police and on his pointation, Asim Nadeem was recovered from his residence. Shahzad appellant was apprehended while guarding the abductee. The car bearing registration No. NWFP/B-5480 was taken into possession by the Police and secured by the Investigating Officer vide recovery memo.
Ex.PB. The statements made by the above witnesses have received full, support from the evidence adduced by Hameed Ullah, Sub- Inspector (PW-8) at the trial. Being the Investigating Officer of the case, he received the rifle P-1 from the Police Station City Muridke, recorded the supplementary statement of the complainant and the prosecution witnesses, inspected the spot and went to Peshawar with the Police party where the subsequently arrested the appellant Jahan Zaib Khan after the appellants and their co-accused had received Rs. 50 lacs from Tarivir Ehsan (PW-3) and Shabhir. On his arrest, Jahan Zaib Khan appellant disclosed that he had kept Asim Nadeem at his residence and thereafter led this witness and others to his house from where the abductee was recovered., This witness also took into possession the car which was being driven by Jahan Zaib Khan appellant at the tfme of his arrest. He also arrested Ashfaque and Riaz accused and recovered the car of the complainant and secured the same through recovery memo. Ex.PF. At the time of arrest, Muhammad Riaz appellant was carrying a .30 bore pistol which was secured - through recovery memo. Ex.PH. From the possession of Muhammad Ashfaque appellants were sent to Jail for identification parade whereafter their physical remand was obtained by this witness. On the pointation of the appellants, car bearing registration No. FDX-5733 was taken into possession vide recovery memo. Ex.PT From the foregoing it is manifest that the prosecution has produced witnesses regarding each phase of the occurrence including the initial part of the occurrence in which Muhammad Farooq (PW-1) and Asim Nadeem (PW-2) were abducted and cash and mobile phones were snatched from them. Muhammad Asim Nadeem (PW-2) narrated the account of his abduction from Gujranwala to Faisalabad and thereafter to Peshawar and being confined in the house of Jahan Zaib Khan appellant. Tanvir Ehsan (PW-3) related the incident to the extent of payment of- ransom amount to Jahan Zaib Khan appellant and others, as well as the arrest of Jahan Zaib Khan by the Police and recovery of Asim Nadeem from his house. The Investigating Officer Hameed Ullah, Sub- Inspector as well as other Police officials have fully supported and corroborated the evidence furnished by the afore-mentioned witnesses: Although these witnesses were extensively cross-examined at the trial, however, nothing favourable could be extracted from them by the defence. After having thoroughly scrutinized their statements, we have come to the conclusion that these witnesses are truthful and have furnished a credible account of the occurrence. The witnesses have succeeded in connecting the links of the occurrence in a most plausible and satisfactory manner? Itwas argued by the learned defence counsel that the delay in lodging of the FIR was not explained, and that the SHO of Police Station Muridke had not registered the FIR which goes to show that he was not convinced about the veracity of the case as reported by Muhammad Farooq (PW-1). We are afraid the arguments is without any force as Muhammad Farooq (PW-1.) after having jumped from the car immediately went to Police Station Muridke and reported the matter, he was medically examined the same day and written application for registration of the FIR was also filed by him at Police Station Mourtra which is evident from Rappat cfuly recorded in the Roznamcha of the. Police Station. The complainant had fulfilled his duty as soon as he had reported the matter to the Police at l\/luridke as well as Police Station Moutra on the same day through written application Ex.PA. If the FIR has been lodged with any delay, the same is attributable to the .Police and no adverse inference can be drawn against the complainant.
According to the learned counsel, since the case was doubtful, therefore, instead of recording FIR.
Rappat was entered in the Roznamcha. Irrespective of what the Police though, the complainant had duly brought to the notice of the Police the occurrence as it had taken place and In support thereof he had also produced the rifle he>had snatched from the accused, which fact is not denied by the Police officials. The complainant having promptly reported the matter to both the Police Stations was not expected to do anything more than what he had done. Thus, in the given circumstances the delay in lodging of the' FIR is a mere irregularity which has no adverse bearing on the prosecution case.
11. Since the accused were not known to the witnesses prior to the occurrence therefore, identification parade was held under the supervision of Muhammad Salman Ghumman, Civil Judge/Magistrate 1st Class (PW-4) in which Muhammad Farooq (PW-1) and Shabhir Hussain, given up PW, duly identified Muhammad Ashfaque appellant whereas Muhammad Farooq (PW-1) also identified Muhammad Riaz appellant as one of the accused. The supervising Magistrate (PW-4) as well as Muhammad Farooq (PW-1) have, fully proved the proceedings of identification parade before the learned Trial Court, lt'was argued toy the learned' counsel for the appellants that Shabhir Hussain PW was not produced by the prosecution at the trial, hence, the best evidence was withheld. We are afraid the argument is without any force for his simple reason that, the prosecution is not bound to produce all the witnesses cited in the calendar of witnesses. Even otherwise, it is for the prosecution to decide which witnesses to produce at the trial. The crux of the matter is that Muhammad Riaz and Muhammad Ashfaque were duly identified in the identification parade.
12. Another aspect which needs consideration at this point is that Dr. Bashir Ahmad (PW-9) while appearing before theTrial Court deposed about the injuries suffered by Muhammad Farooq (PW-1), In the opinion of the doctor this witness had suffered injuries 2 to 4 hours before his examination on 4.6.2002 caused by road accident. This further supports the prosecution version as put forth by Muhammad Farooq (PW-1).
13. Now adverting to the defence plea of Muhammad Riaz and Muhammad Ashfaque appellant's vis- a-vis that they had purchased a car from Asim Nadeem on payment of Rs. 1 lac and balance of Rs. 5 lacs was yet to be paid and since they could not pay the balance amount, they were falsely involved in the case by him. We have noticed that plea raised by these two appellants is lacking and has remained unsubstantiated at the trial, In their statements recorded under Section 342, Cr.P.C, the appellants have failed to provide registration number of the car which they purportedly purchased from Asim Nadeem (PW-2). Further, no receipt was produced in defence showing payment of any cash of Asim Nadeem. Jahan Zaib Khan appellant, from whose house Asim Nadeem was recovered by the Police, stated in his statement recorded under Section 342, Cr.P.C; that he had taken a loan of Rs. 2 lacs on interest and on account of non-payment thereof he had been falsely implicated in the case. This plea is again neither plausible nor substantiated through any evidence, In case this appellant had been implicated in this case falsely by Asim Nadeem, then his name would have been duly mentioned in the FIR. In the given facts and circumstances of the case it is highly unlikely that any of the appellant was falsely implicated by the complainant and others.
14. From the foregoing discussion, we are of the opinion that the prosecution had succeeded in proving its case against Jahan Zaib Khan, Muhammad Ashfaque and Muhammad Riaz appellants.
However, insofar as the case of Shahzad Khan is concerned we have observed that this appellant had nof taken any active part in the initial occurrence as well as the abduction of Asim Nadeem by his co-accused. This appellant only played the role,of a guard at the house of Jahan Zaib Khan appellant fr6m where the abductee was recovered. . Hameed Ullah, Sub-Inspector (PW-8) in his cross-examination.Stated as follows:- "nothing was recovered from the person of Shahzad accused" ' and "according to my investigation Shahzad accused did not visit Punjab regarding this occurrence".
Asim Nadeem (PW-2) in his cross-examination stated as under:- "it is correct that Shahzad accused present in the Court did not participate in the occurrence of my abduction nor he received any ransom in my presence." - From the foregoing we conclude that the case as set up by the prosecution against Shahzad appellant is not free from doubt. Consequently, while extending him the benefit of doubt, we acquit him of all the charges,. He Shall be set free forthwith if not required in any other case. The death sentence awarded to him is NOT CONFIRMED and the murder reference to the extent of Shahzad Khan is answered is NEGATIVE.
15. Now adverting to the cases of Muhammad Arshad alias Tariq appellant (Crl. Appeal No. 2158 of 200.3) and Ghulam Abbas convict, it has been noticed by us that they have been convicted by the learned Trial Court in "absentia". The Honourable Supreme Court of Pakistan in the case of Mir Akhlaq Ahmad v. The State (2008 SGMR 951) has observed as under:--- '
"In the case in hand, the trial of the appellants was conducted by' the Special Judge and murder reference was answered in affirmative by the High Court in their absence. Now the question arises as to whether the trial against the appellants, in absentia, was validly and legally conducted.
Article 9 of the Constitution of Islamic Republic of Pakistan envisage that no person shall be deprived of life or liberty save in accordance- with law. Article 10(1.) of the Constitution, inter alia, provides that no person who is arrested shall be denied the right to consult and be defended by a legal practitioner of his choice. Subsection (11 -A) to Section 10 of the Anti-Terrorism Act, 1997, which was inserted vide Ordinance No. XIII of 1999, dated 27.811999i and Ordinance IV of 1999, dated 27.4.1999, states that an accused person shall not be denied the right to consult or defend by a legal practitioner of his own choice. The afore-noted provision of law is in line with Article 10(1) of the Constitution and in, fact reiterates the said Article of the absconding at the relevant point of time, therefore, they undoubtedly, were denied the right to defend themselves and deprived the right to consult or defend by legal practitioner. The above question came up for determination before the Lahore High Court and the learned Division Bench of the said Court in the case reported as Zia Ullah Khan and others v. Government of Punjab and others PLD 1989 Lah. 554 has held that the trial of an accused person in absentia is violative of Article 10 of the Constitution of Islamic Republic of Pakistan, itmay be noted that the said judgment was assailed by the Government of Punjab in Civil Appeal No. 680 of 1989 and'this Court in a case reported as Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602 dismissed the appeal and upheld the judgment. Another Division Bench of the Lahore High Court in a case reported as Qari Abdul Hayee and another v. The State 2005 YLR 1865 while relying upon the aforesaid cases of Zia Ullah and others and Government of Punjab through Secretary, Home Department (ibid) has also taken the similar view.
In view of the above, we feel that the trial of the T, appellants, in absentia, undertaken by the Special Judge, Anti-Terrorism Court, was violative of Articles 9 and 10(1) of the Constitution and Section 10(11-A) of the Anti-Terrorism Act, 1997, thus, cannot be allowed to sustain. Furthermore, the appellants were not afforded any opportunity of hearing and, thus, they were condemned unheard which is contrary to the principle of natural justice. We are Convinced that the judgments, cohvictions and sentences rendered and awarded by both the Courts, in the absence of the appellants, to&their extent are not sustainable' " under the law and violative of the Constitution and law, which has necessitated the retrial of the case."
2. From the above discussion it is manifest that the conviction and sentences of Muhammad Arshad and Ghulam Abbas are bad in law. However, their cases are slightly distinct from each other inasmuch as Muhammad Arshad alias Tariq after having been convicted and sentenced by the Trial Court preferred an appeal before this Court whereas no appeal of Ghulam Abbas is pending before us although, to his extent also, the learned Trial Court has sent murder reference for confirmation or otherwise of his death sentence, In view thereof, we set aside the conviction and sentence of Muhammad Arshad appellant and remand the case to the learned Trial Court for holding trial of the said appellant in accordance with law. Insofar as Ghulam Abbas, convict, is concerned, his conviction and sentence is also set aside. Since he is a proclaimed offender, his perpetual warrants of arrest are issued. As and when he is arrested, he shall be tried by the learned Trial Court in accordance with law. The sentences of death of Muhammad Arshad appellant and Ghulam Abbas, convict, are NOT CONFIRMED. The murder reference to their extent is answered in the NEGATIVE. *
3. Insofar as Jahan Zaib Khan, Muhammad Ashfaque and Muhammad Riaz appellants are concerned, we are convicted that the prosecution has succeeded in proving its case beyond a shadow of doubt against them. Consequently, we dismiss Appeals Nos. 2206 of 20O2 and 2159 of 2002 filed by Jahan Zaib Khan, Muhammad Riaz and Muhammad Ashfaque, appellants, and maintain conviction and sentences awarded to them by the learned Trial Court. Their death sentence is MAINTAINED and the murder reference to their extent is answered in the AFFIRMATIVE.
Criminal .
Sher Afsar V. The State Cr.C 355 (M.A. Zafar, J.)