' AMIR HANI MUSLIM, J.---Appellant Orangzeb has filed this Special ATA Appeal impugning the Judgment dated 21-4-2006 passed by the learned Presiding Officer, Anti-Terrorism Court No,III, Karachi, by which the Appellant was convicted under Section 7(e) of the Anti-Terrorism Act, 1997 read with Sections 365-A and 302, P.P.C. And was awarded death sentence with fine of Rs,100,000, confiscating his movable and immovable properties to the extent of Rs,100,000, in case of default in payment of fine, the appellant was required to undergo further sentence of RI for five years and in case of recovery of fine, it was ordered to be paid to the legal heirs of the deceased in terms of Section 544-A, Cr.P.C.
2. Succinctly, the prosecution story was that on 23-8-2005, the abductee Mehboob Ali son of Faqeer Muhammad alias Dad Raheem, proceeded from his house on motorcycle bearing No, ABC 5980, CG-125, towards the shop of Muhammad Asif, situated at Old Haji Camp, Karachi. However, he left the shop of Muhammad Asif informing him that he was going to the house of co-accused Mst. Uzma. After the abductee reached the house of Mst. Uzma, at 11 a.m. Someone used the mobile phone of the abductee informing the family of the abductee about his kidnapping and demanded ransom amount of Rs,40,00,000. From 23-8-2005 to 25-8-2005, the accused persons time and again telephoned Asghar Ali, maternal father-in-law, Hamza, uncle, Muhammad Akram, brother- in-law of the deceased besides Shaukat Ali and demanded the aforesaid ransom amount for the release of the abductee. After negotiation, the accused persons allegedly agreed to release the deceased Mehboob Ali on payment of ransom money of Rs,500,000.
3. On 25-8-2005 at about 4 a.m. The accused persons directed P.W. Asghar Ali on mobile phone to come to Jehanabad Graveyard alongwith ransom amount. P.W. Asghar Ali and P.W. Muhammad Akram alongwith the ransom amount proceeded on a motorcycle CD-70 and when they reached near Mubarak Hotel before Jehanabad Bridge, they received another phone call to come at Dhobi Ghat. The two P.Ws. When reached near Garden Micheal Center, the accused persons directed them to park the motorcycle near a garage and come on Lyari Express Way. Thereafter Asghar Ali and Muhammad Akram using Naddi passage reached there and on further direction of the accused persons they stopped near pumping station. Thereafter, the P.W. Asghar Ali saw Suzuki Alto Car coming from old Golimar on upper Lyari Express Way. The said car stopped at some distance from the P.Ws. Asghar Ali and Muhammad Akram and two accused persons, one from the rear and one from the front seat came out from it. The P.W. Asghar Ali identified the two co- accused as Jehanzaib and Muhammad Arif, being his relatives. P.W. Asghar Ali handed over the ransom amount of Rs,4,85,000 to co-accused Jehanzaib. After receiving the ransom amount the accused persons sat in the car, which took a long U-turn and P.W. Asghar Ali identified appellant Orangzaib, who was driving the said car while the abductee, whose hands and feet were tied and mouth was tapped, was sitting on the rear seat. After receiving the ransom money of Rs,4,85,000 the culprits allegedly telephoned and threatened the family of the abductee to keep remaining ransom amount of Rs,15,000 for his funeral. Thereafter on 25-8-2005 at about 6-58 a.m. The police recovered the slaughtered dead body of kidnappee Mehboob Ali son of Faqeer Muhammad alias Dad Raheem from a street in Garden East, Karachi.
4. On 29-9-2005 the police arrested appellant Orangzaib and recovered an unlicensed .30 bore pistol duly loaded with three live bullets from him. The police submitted challan against the Appellant, placing the names of co-accused Janzeb alias Jahanzaib son of Muhammad Siddiq, Mst. Uzma wife of Janzeb alias Jahanzaib and Arif son of Juma Khan in column No,2 of the charge- sheet as absconders. The trial Court after issuance of proclamation declared the other co- accused as proclaimed offenders.
5. The trial Court framed charge Exh. 17 to which the Appellant pleaded not guilty and claimed to be tried. At the trial the prosecution examined 16 witnesses including Abdul Jalil, Court Witness, Exh.
35.
6. The prosecution examined P.W.1 SIP Khan Nawaz as Exh.
19. He produced roznamcha entry as Exh. 19-A, inspection memo of dead body as Exh. 19/B, inquest report as Exh. 19/C, F.I.R. As Exh. 19/D, Izarband of deceased as Exh. '19/E, tape as Exh. 19/F, envelope as Exh. 19/G and roznamcha entry as Exh. 19/H. P.W.2 Inspector Mazhar Ali was examined as Exh. 27, who produced inspection memo of place of incident and recovery as Exh. 20/A, small tin box containing blood-stained earth as Exh. 20/B and wrapping cloth as Exh. 20/C. SI Fayaz Ahmed Qadri, P.W.3 was examined as Exh.
21. He produced site plan as Exh. 21/A, bundle of clothes as Exh. 21/B, memo. Of receiving the audio cassette and CD as Exh. 21/C, envelope contained audio cassette and CD as Exh. 21/D, the audio cassette as Exh. 21/E, CD as Exh. 21/F, inspection memo. Of place of payment of ransom amount and its site plan as Exhs. 21/G and 21/H respectively, receiving copy of letter written to CPLC as Exh.
21/I, the record of mobile phone as Exh. 21/J, letter of the I.O. To SHO, PS Pak Colony as Exh. 21/K, road certificate as Exh. 21/L and motorcycle of the deceased as Exh. 21/M.
7. Thereafter the prosecution examined P.W.3 Asif Khan son of Abdul Sattar as Exh. 22, P.W.5 ASI Syed Asim Shah as Exh. 23, who produced seizure memo of motorcycle as Exh. 23/A, P.W.6 Asghar Ali son of Jalab Ali as Exh.
24. He produced news clipping of daily "Aghaz" as Exh. 24/A. The prosecution also examined P.W.7 Syed Anwer Shah son of Syed Mehboob Shah as Exh. 25, P.W.8 Muhammad Akram son of Muhammad Hussain as Exh.
26. P.W.9 Nadeem Ahmed son of Abdul Majeed as Exh. 27, who produced mashirnama of arrest and recovery as Exh. 27/A, cloth cover as Exh. 27/B, pistol along with its magazine and three live bullets as Exhs. 27/C, 27/D and 27/E respectively. Then the prosecution examined P.W.10 Israr Hussain son of Rahim Bux as Exh. 28, who produced pointation memo of place of detention and recovery as Exh.
28/A. Envelope as Exh. 28/B, purse as Exh. 28/C, CNIC of deceased as Exh. 28/D, electricity bill as Exh.
28/E, Sui Gas Bill as Exh. 28/F, roll of tape and rope as Exhs. 28/G and 28/H respectively. Shahid Hussain of Mahmood P.W.11 examined as Exh. 29, has produced envelope as Exh. 29/A, knife as Exh.
29/B and memo of handing over the knife as Exh. 29/C. P.W.12, Imran Boloch son of Ali Sauleh was examined as Exh. 30 who produced envelope as Exh. 30/A, 120 currency notes of denomination of Rs,1000 each as Exh. 30/B, memo of recoveries as Exh. 30/C. MLO/Dr. Jagdish Kumar, P.W.13, was examined as Exh.
31. He produced postmortem report as Exh. 31/A and clothes of deceased as Exh. 31/B. The prosecution then examined P.W.14, Muhammad Imran son of Abdul Rehman as Exh. 32, P.W.15, IO/SIP Muhammad Nawaz Chattah as Exh. 33, who produced sketch/site plan of recovery of knife/churri as Exh. 33/A, sketch of place of recovery of purse and etc. As Exh. 33/B, carbon copy of letter addressed to C.P.L.C. As Exh. 33/C, mobile phone calls record as Exh. 33/D, Chemical Examiner's reports of clothes of the deceased and knife as Exhs. 33/E and 33/F respectively. Lastly, the prosecution examined CW-3, Abdul Jalil son of Abdul Majeed as Exh.
35. Who produced newspaper clipping of daily Ummat dated 27-8-2005 as Exh. 35/A. Thereafter vide statement Exh. 34, the prosecution closed its side.
8. Thereafter, the trial Court recorded statement of the Appellant under section 342(1). Cr.P.C. As Exh.
27. The Appellant denied the prosecution story and claimed innocence. He produced his statement duly printed and signed, annexing some news clipping and CTC of challan of Crime No,194 of 2003, as Exhs. D-37/A, D-37/B, D-37/C, D-37/D and D-37/E respectively. The Appellant however did not offer himself to be examined on oath and in his defense has examined D.W.1 Khurram Ali son of Sarwar Behzad, Exh. 38 and D.W.2, Shaikh Mazhar son of Shaikh Abdul Rauf, Exh.
39. Thereafter vide statement Exh. 40, the defense Counsel closed his side.
9. The trial Court formulated following points for determination framed issues for determination:--
(1) Whether the kidnapee died unnatural death due to the injuries caused to him by the kidnappers?
(2) Whether the deceased/kidnapee namely Mehboob Ali was kidnapped by the accused persons including the present accused and then due to the less payment of Rs,15,000 to the agreed amount of Rs,500.000 of ransom, he was murdered by the accused persons (including the present accused)?
(3) To what extent the present accused is responsible and what offence has been committed by him?
(4) What should the order-be?
' The learned trial Court after hearing the arguments of Defense Counsel and SPP for the State has passed the impugned Judgment.
10. The learned Counsel for the Appellant at the outset has submitted that the trial Court relied on circumstantial evidence in the shape of recovery of churri, purse of deceased, etc. On the pointation of the appellant when in fact the defence version was to the effect that the accused/appellant was already in the custody of the police even prior to the registration of the present F.I.R.
11. The learned counsel for the Appellant has further submitted that there is no direct evidence in respect of kidnapping and murder of the deceased Mehboob Ali by the present Appellant.
According to him, the prosecution has failed to discharge its burden in bringing home the guilt of the Appellant. The next contention of the learned Counsel was that memo regarding seizure of one Audio Cassette and one CD with covers, Exh. 21/C, produced by P.W.3, S.-I. Fayaz Ahmed Qadri does not disclose as to who has recorded the mobile-phone conversation made with the accused persons regarding demand of ransom amount. According to the learned counsel, P.W.3, S.-I. Fayaz Ahmed Qadri, the first I.O., even did not hear the voice recorded in the audio cassette, Exh. 21/E. He further submitted that the prosecution has failed to prove that the voice recorded in the cassette was of the appellant as the audio cassette. Exh. 21/E was not sent to the expert for voice identification. He next submitted that, in view of the above, this piece of evidence which is dependent upon Exh. 21/E, its Urdu translation and record of mobile-phone, Exh. 21/J, were inadmissible and no conviction could be recorded on such piece of inadmissible evidence.
12. The learned Counsel for the Appellant has further contended that memo of place of payment of ransom amount and its site plan. Exhs. 21/G and 21/I respectively were prepared in violation of provision of Section 103, Cr.P.C. As no independent person was cited as mashir nor the I.O. Has called anyone from the locality to act as mashir. According to the learned Counsel, P.W.6 Asghar Ali and P.W.8 Muhammad Akram, brother-in-law of the deceased, were cited as mashirs, who claimed to have identified the Appellant and other accused persons when they went to pay the ransom amount. He submitted that there is no mention in the memo place of payment of ransom amount, Exh. 21/G, that the deceased was also sitting in the car.
13. The learned counsel for the Appellant next contended that the prosecution has failed to prove the contents of the mobile phone calls list, Exh. 21/J. The learned counsel dilated that the first I0 wrote letter, Exh. 21/1, to the C.P.L.C. Pursuant to which mobile phone call list was sent by the C.P.L.C.
And thereafter a second list, Exh. 33/D, was manufactured by the P.W.15, S.I.P. Muhammad Nawaz Chattah, the second I.O. According to the learned counsel both the lists were inadmissible in evidence as these were neither signed nor attested by anyone nor any official of the C.P.L.C. Nor bore stamp of the C.P.L.C.
14. The learned Counsel for the Appellant next contended that house of the brother of the appellant had different number and recovery, claimed to have been effected from the house, which was never owned by the brother of the Appellant. In this regard he has drawn attention of the Court to the examination-in-chief of P.W.14 Muhammad Imran in which he has deposed that he was looking after the Property bearing No,72/A, Gali No,3, Ghazi Nagar, Usmanabad and first floor whereof was rented to Jehanzaib through property dealer Muhammad Iqbal at the rate of Rs,1800 per month.
The learned Counsel has argued that in the memo of place of detention and recovery, Exh. 28/A, produced by P.W.10 Israr Hussain, the address of Jehanzaib, brother of the Appellant, is mentioned as House No,95-15/K-16. Imran Muna Bhai Building, which is different than the address given by P.W.14 Muhammad Imran. He contended that this by itself was sufficient to establish that recoveries were never effected from the house of the appellant's brother Jehanzaib.
15. The learned counsel for the Appellant further submitted that without obtaining search warrant the lock of the house of Jehanzaib was broken, which act of the I.O. Was violative of Article 14 of the Constitution of the Islamic Republic of Pakistan. He also submitted that C.W.3, Abdul Jalil, co- mashir, was closely related to the deceased, therefore, he was an interested witness and his evidence cannot be relied upon. He further submitted that the said co-mashir was not confronted with the Mashirname of recovery. He argued that memo of recovery of ransom amount. Exh. 30-C, was prepared in violation of Section 103, Cr.P.C. And ought to have been discarded by the trial Court.
16. The learned counsel for the Appellant further contended that P. W.11, Shahid Hussain, who produced seizure memo of weapon of murder, Exh. 29/C, has deposed that the Churri was recovered from the katchra kundi at the pointation of the Appellant, which was a public place and the I.O. In violation of Section 103, Cr.P.C. Did not cite any independent person to act as mashir. He further contended that P.W.15 S.I.P. Muhammad Nawaz Chattah in his deposition has admitted that 161 Cr.P.C. Statements of C.W.3 Abdul Jalil and P.W.10 Israr Hussain were verbatim. According to the learned counsel, P.W.15, the second Investigating Officer has further admitted in his deposition that some statements and memos were prepared by him in his own handwriting whereas remaining documents were prepared by munshi/police official, K-tukat.
17. The learned counsel for the Appellant further contended that the parties are related and were inimical to each other. According to him P.W.6. Asghar Ali is closely related to the deceased has deposed that he identified the accused persons being his relative. He further submitted that co- accused Uzma is the niece of P.W.6 Asghar Ali ran away with absconding accused Jehanzaib, the brother of the Appellant, and married to him owing to which she was also nominated in the F.I.R. As co-accused. The learned Counsel further submitted that conviction on capital charge ought to have been based on cogent and unimpeachable evidence. According to .Him evidence of P.W.6 Asghar Ali was neither confidence inspiring nor trustworthy, and conviction based on such evidence was liable to be set aside. He contended that P. Ws. Asghar Ali and Muhammad Akram have attended the Nikah ceremony of Mst. Uzma with accused Jehanzaib and on account of matrimonial dispute the Appellant and other co-accused have been nominated in the F.I.R. He also contended that evidence of P.W.6 Asghar Ali and P.W.8 Muhammad Akram, cannot be relied upon as they were related to the deceased and were interested witnesses.
18. The learned counsel for the Appellant further contended that according to P.W.10 Israr Hussain purse, Exh. 28/C, NIC of deceased, Exh. 28/D, Electricity Bill. Exh. 28/E. Sui Gas Bill, Exh. 28/F, roll of tape, Exh. 28/G and rope, Exh. 28/H, were recovered on the pointation of the Appellant by cutting/breaking open the lock of 15th floor while he admitted in the cross-examination that he visited only one room which was pointed by the Appellant. Therefore. The recoveries were not made in presence of the P.W.10 Israr Hussain. According to the learned counsel for the Appellant there is no direct evidence against the Appellant to connect him with the alleged offence.
According to him, the prosecution has produced circumstantial evidence which is not strong enough to convict the appellant.
19. According to the learned counsel, the evidence of recovery of certain incriminating items on the pointation of the Appellant by itself does not prove the offence of murder against him. According to him, the incident had taken place, on 25-8-2005 and the Appellant was arrested on 29-9-2005 while on his pointation on 2-10-2005 recovery of weapon of murder/churri having human blood, Exh. 29/C was affected, from a place where other people had also access, which creates doubt.
20. The learned counsel for the Appellant alternatively argued that if at all this Court comes to the conclusion that the Appellant is guilty of the alleged offence the capital punishment be commuted into life imprisonment in terms of ratio laid down in the case of Ansar Ahmad Khan Barki v. State reported in 1993 SCM R 1660. He further contended that on the ground the doubts highlighted hereinabove by him the Appellant is entitled to lesser punishment.
21. On the other hand, the learned Counsel for the Complainant Mr. Habib Ahmed, has partially supported the impugned Judgment. According to the learned counsel, the case of kidnapping for ransom against the Appellant stands proved by the prosecution. He has contended that the role of the Appellant for the purpose of kidnapping for ransom stands established if he is present at scene.
According to him, there is direct evidence against the Appellant as far as kidnapping for ransom is concerned and P.Ws. Asghar Ali and Muhammad Akram have seen the Appellant driving the Alto Car used in the offence, when he came for collecting ransom money along with other co-accused and deceased was sitting in the car. He has further contended that the Appellant was implicated an the same day by P.Ws. Asghar Ali and Muhammad Akram in their statements recorded under Section 161, Cr.P.C. And even the registration number of Alto Car used in the crime was also given.
According to the learned Counsel both the P.Ws. In one voice have deposed before the trial Court that the Appellant was present at the time when they went to the place for payment of ransom amount, which amount was received by Jehanzeb from them and the deceased was murdered subsequently.
22. It was next contended by the learned counsel for the Complainant that recovery effected on the pointation of the appellant has not been denied by the Appellant in the cross-examination. He has contended that recovery of weapon of murder, rope, roll of tape and purse of the deceased containing NIC and utility bills and alto car were affected at the pointation of the Appellant in presence of Mashirs Muhammad Ishaq, Shahid Hussain, lmran Baloch, A.S.-I. Ghulam Abbas, Abdul Jalil and Israr Hussain. He next contended that in case if the recovery of incriminating articles is effected on the pointation of the accused, then persons of the locality are not required to be cited as mashir and provisions of section 103, Cr.P.C. Would not be attracted and instead Article 40 of the Qanun-e-Shahadat would apply. In support of his contention he has relied upon the case of Mir Muhammad v. State, reported in 1995 SCM R 614, and case of Muhammad Akbar v. State reported in 1995 SCM R 693, wherein their lordships have held that "the plain reading of section 103, Cr.P.C.
Would show that the provisions of this section apply to a case where the police conducts search of a house/place to recover an article for which search is to be made and not to a case where anything is to be discovered in consequence of the information given by or on the pointation of the accused. The recovery to be made on the pointation of accused is relevant under Article 40 of the Qanun-e-Shahadat, 1984. The association of the two respectable inhabitants of the locality is not required in a case where the accused himself leads the police to a particular place and gets the article recovered." He has also relied upon the case of Zakir Khan v. State reported in 1995 SCM R 1793 and the case of State v. Farman Hussain reported in PLD 1995 SC 1.
23. The learned counsel for the Complainant next contended that it is also incorrect that there was matrimonial dispute between the Appellant and P.Ws. Asghar All and Muhammad Akram. He has pointed out portion of cross-examination of both these witnesses in which it has come on the record that both these P.Ws. Have attended the Nikah ceremony of Appellant's brother Jehanzaib with co-accused Uzma, therefore, the contention of the learned counsel for the Appellant that the P.Ws. Have strained relations with the accused is incorrect. He next contended that deceased was lastly seen in car accompanied by Appellant and other co-accused at the time when P.Ws. Asghar Ali and Muhammad Akram went to hand over the ransom amount to co-accused Jehanzaib and Muhammad Arif and the recoveries effected at the pointation of the Appellant have not been even denied nor any suggestion to the effect has been made, which would lead to the conclusion that prosecution has proved the case of abduction of deceased Mehboob Ali, under Section 365-A, P.P.C., against the Appellant. He, however, conceded that murder of deceased Mehboob Ali, at the hands of the present Appellant has not been proved, as the prosecution has failed to collect material evidence connecting the Appellant with the murder of deceased Mehboob Ali. According to the learned counsel the Appellant was wrongly convicted under Section 302, P.P.C. By the trial Court.
24. The learned Assistant Prosecutor General has adopted the arguments of Mr. Habib Ahmed, Advocate.
25. I have heard the learned counsel for the Appellant, learned counsel for the Complainant and learned Assistant Prosecutor-General and have perused the record. The contention of Mr. Shaukat Hussain Zubedi, learned Counsel for the Appellant that prosecution has failed to prove the audio cassette, Exh. 21/E. Produced by P.W. Asghar Ali, which is claimed to be the voice of accused persons carries weight. Even the Investigating Officer did not hear such audio-cassette. The conversation recorded in the audio-cassette was in Baluchi language, which was translated by P.W. Asghar Ali. Even the said audio-cassette was not sent to any voice identification expert to establish that it was voice of the co-accused. I accordingly, hold that no conviction can be recorded on the basis of this piece of evidence produced by the prosecution.
26. I am not persuaded liy the contention of the learned counsel for the Appellant that the mashirnama of inspection of place of payment of ransom, Exh. 21/G was prepared in violation of section 103, Cr.P.C., inter alia, on the ground that the I.O. Did not cite any independent person as witness though it was a public place. The place of payment of ransom can only be pointed by the person who had been to such place. P.Ws. Asghar Ali and Muhammad Akram. Had paid the ransom amount in the early morning, which fact they have disclosed on the same day to the Police after they learnt through newspaper that deceased Mehboob Ali has been murdered. In fact mashir from the public would in no way have any material bearing on the case of the prosecution.
P.Ws. Asghar Ali and Muhammad Akram had disclosed in their statements under section 161, Cr.P.C.
As well as before the trial Court that co-accused Jehanzaib and Muhammad Arif came out from Alto Car bearing No,AHN-955, collected the ransom money and sat in the car. Thereafter the said Alto Car took a long U-turn, close to the said P.Ws., who saw the Appellant driving the Alto Car while the deceased sitting on the rear seat. The contention of the learned Counsel for the Appellant that the fact that deceased was sitting in the Alto Car did not appear in the mashirnama Exh. 21/G is also misconceived and of no help to the Appellant as the P.Ws. Asghar Ali and Muhammad Akram have stated this fact not only before the police but also in the Court.
27. The contention of the learned counsel for the Appellant that the Lyari Express Way was not functional when this incident took place, therefore, there was no occasion that the car could be driven on such place. P.W. Asghar Ali has deposed that he saw a Suzuki Alto, silver color, coming from Old Golimar on upper Lyari Express Way, which shows that the car was being driven on the bank of Lyari Express Way and the bank was under construction since long therefore even this contention was without force.
28. As far as the contention of the learned counsel for the Appellant that Exhs. 21/J and 33/D, the lists of the mobile phone calls and Exh. 21/I, letter of 1st Investigating Officer, cannot be relied upon, inter alia, on the ground that these were computer generated lists, which were neither signed nor stamped by any official of the C.P.L.C. I do not differ on this point with the learned counsel as this piece of evidence was inadmissible in evidence and cannot be used against the Appellant for purpose of conviction.
29. The next contention of the learned counsel for the appellant that evidence adduced by the Prosecution shows two different addresses of Jehanzaib. Brother of the Appellant. According to the learned counsel for the appellant, the representative of the landlord of Appellant's brother, P.W.14 Muhammad Imran has deposed that Appellant's brother was his tenant and was residing at 1st floor of Property bearing No,72/A. Gali No,3. Ghazi Nagar Usmanabad whereas the prosecution has effected recoveries of purse (Exh. 28/C), NIC (Exh. 28/D)), utility bills (Exhs. 28/E and 28/F), tape (Exh.
28/G) and rope (Exh. 28/H) on the pointation of the Appellant from a place different than the one mentioned by P. W.14 Muhammad Imran. This contention of the learned counsel is also incorrect. In fact the address appearing in mashirnama of pointation of the place of confinement of abductee, personal search and recovery, Exh. 28/A and the address given in the deposition by P.W.14.
Muhammad Imran is the same except that P.W.1 4 has given survey number instead of house number. Moreover, P.W.15, S.I.P. Muhammad Nawaz Chattah in his cross-examination has categorically deposed that place of recovery of purse and etc., was situated at a distance of about 15-20 paces away from the road in Gali No,3.
30. The next contention of the learned counsel for the Appellant that Mashirs of recovery of Churri.
Namely, Shahid Hussain and Muhammad Ishaque were relations of the deceased and were interested persons and the police did not cite the independent Mashir from the vicinity of the house of the Jehanzaib, brother of the appellant. With profound respect this contention of the learned counsel for the Appellant is misconceived. If a recovery is effected on the pointation of the accused person then the provisions of section 103, Cr.P.C. Will have no application and the provisions of Article 40 of Qanun-e-Shahadat would apply, which allows such practice. Moreover, mere relationship with the deceased would not disqualify any person to become witness or act as Mashir. Additionally, simple relationship of a prosecution witness with the deceased or other Prosecution witness cannot render his evidence unreliable unless it is established that he had motive to implicate the accused falsely in the case as has been held by the Honourable Supreme Court in the case of Zakir Khan v. State reported in 1995 SCM R 1793. No such material has been brought on record to establish that the aforesaid prosecution witnesses were not reliable nor any motive has been attributed by the appellant's counsel to hold that these witnesses have given evidence to falsely implicate the appellant. Be that as it may, if something related to the case was recovered or any fact was discovered in consequence of the information conveyed by the accused then the same would be admissible in evidence within the purview of Article 40 of Qanun-e- Shahadat, 1984.
31. In regard to the contention of the learned counsel for the Appellant that the Appellant was only seen driving the car and did not actively participate in the kidnapping of the deceased is also without substance. In the case of kidnapping for ransom role of every member is not relevant but it is the achievement of common object for obtaining ransom amount. In the case in hand, prosecution has brought sufficient evidence against the Appellant to prove his guilt for the offence of kidnapping for ransom punishable under section 365-A of P.P.C. I am fortified by the Judgment of the Division Bench of this Court in the case of Hasanullah v. State reported in 1999 M LD 514 wherein it has been held that "in case of abduction for ransom, it is not necessary that all the culprits must have collectively done all the criminal acts together from the stage of abduction till extortion of money. In such cases mostly, the work is divided. Abduction is done by a few of them, place of confinement is guarded by others and ransom is extorted by one or two of them. This is done under a planning. The object of all is to extort money. Therefore, the punishment could be the same irrespective of the role played by each of them."
32. However, the conviction of the Appellant under Section 302(b) PPC was unsustainable as there was no sufficient evidence against the Appellant to connect him with the alleged murder of deceased Mehboob Ali. Accordingly, the impugned Judgment to the extent of conviction awarded to the Appellant under section 302(b) P.P.C. And the compensation awarded thereof is set aside. In the given circumstances, while dismissing the appeal I modify the punishment awarded to the appellant under the impugned judgment from death to that of RI for life.
' The above are the reasons of my short order dated 29-3-2010.
' Office is directed to return the R & P as the trial Court is proceeding with the case against the absconding accused who have been arrested by the police.