IJAZ AHMAD CHAUDHRY, J -Irfan Ullah alias Fana. Iftikhar' alias Khara, Nadeem alias Billu, Munawar Hussain, Mirza Sidaq and Naeem Ullah convicts-appellants were sent up to face trial in case F.I.R.
No. 43/09, dated 26.1.2009 (Ex. PA/1), registered under sections 365-A/392, PPC'and section 7(e) of Anti-Terrorism Act, 1997 at Police Station Sadar Jalalpur Jattan District Gnjrat and on conclusion of the trial, vide judgment, dated 24..6-2009 handed down by -the learned Judge, Anti-Terrorism Court-I, Gujranwala, they were convicted under section 365-A, PPC & section 7(e) of the Anti- T(errorism Act, 1997 and sentenced to death with direction to pay fine of Rs. 1,00,000/- each or in default of payment thereof to further undergo S.L fon one year each. If fan alias Fana, Iftikhar alias Khara, Mirza Sidaq and Munawar Hussain, convicts-appellants were also convicted under section 392, PPC and sentenced to 10 years'"R.L each with direction to pay fine of Rs. 50,000/-.each or in default of payment thereof to further undergo S.L for six months each. Irfan Ullah alias Fana, Iftikhar alias Khara, Nadeem alias Billu, Mirza Sidaq and Naeem Ullah, convicts-appellants have challenged their conviction and sentence through Criminal Appeal No. 1026 of 2009 while Munawar Hussain convict-appellant has challenged his conviction and sentence through separate Criminal Appeal No. 1024 of 2009 and both these matters have been heard by us alongwith Capital Sentence Reference No. 21-T of 2009 sent by the learned Trial Court uhder section 374, Cr.P.C, seeking confirmation of the sentence of death passed by the. learned Trial Court against all the above-said convicts-appellants. We propose to decide all these matters jointly through the present consolidated judgment.
2. Briefly the charge was that on 26.1.2009, at 7.25 a.m. in the area of Pul Dawara Kaliana situated within the limits of Bhalair P.S. Jalal Pur Jattan, District Gujrat, the appellants while armed with fire-arms kidnapped Suleman Mustafa in a white colour Suzuki Alto car of black glasses bearing tainted marks 'All Moula' on its back screen and demanded rupees ten 'crore as ransom for release- of' the abductee and on 7.2.2009 released him after receipt of Rs.
4,00,000/-. and appellants namely Mirza Sadaq, Irfan Ollah alias Fana, Iftikhar alias Khafa and Munawar Hussain while armed with fire-arms forcibly snatched Suzuki Car No. LWL/3634 of complainant and mobile phone No. 0302- 7037686 of Fida Hussain Shah driver of the car.
2. On completion of the investigation, the appellants were sent up to face trial and aftef framing of charge on 19.3.2009 against them, the prosecution was invited to lead its evidence, which produced as many as nine PWs. Muhammad Waris, S.L on the receipt of application (Ex. PA) chalked out the formal FIR Ex. PA/1 while PW-2 Ahmad Mujahid Sher Dil, learned Judicial Magistrate,Gujrat conducted identification parade of the accused. PW-3 Saif Ullah was owner of lHaq Bahoo' rent-a-car while PW-4 Mushtaq Ahmad was switching engineer PTCL. Zahid Iqbal (PW-5) handed over the ransom to the accused and in whose presence the accused were arrested and recoveries were effected' from the accused. Ghulam Mustafa complainant (PW-6), Sehar Mustafa (PW-7) and Fida Hussain (PW-8) were the eye-witnesses of .the occurrence of abduction and Arshad Hussain, S.L narrated about the various steps taken by him during the course of investigation.
3. In their statements recorded under section 342, Cr.P.C, the appellants had denied and controverted all the allegation of facts levelled against them by the prosecution and professed their innocence. However, to a question that "Why this ease against you and why the PWs deposed against you?", Iftikhar alias Khara appellant replied in the following terms :-- 'i am permanent resident of Village Dilawar Pur whereas the complainant is also previously resident of village Dilawar Pur. I supported in the election of MPA, Naseer Sidh opponent candidate of Ahid Raza's. candidate Arfan Ullah (elected MPA). The s,aid Ahid Raza refrained me to do so, but I did not agree with him to support the opponent of Abid Raza. The complainant was the main supporter of Abid Raza's candidate. During the election Abid Raza and complainant had. threatened me of dire consequences. Unfortunately, this occurrence had taken place. The complainant and Abid Raza involved me in this case due to the above-said grudge. Police had arrested me on 4.2.2009 from my house. The matter of my arrest was published in the Daily Nawa-e-Waqt dated 6.2.2009, the Daily Jazba dated 7.2.2009 and the Daily Dak dated 6.2.2009. All the PWs are inimical to me and close related to the* complainant. Due to this reason, they deposed against' me in this case. I am innocent." In reply to the aforesaid question, Nadeem alias Billu and Irfan Ullah alias Fana also endorsed the above-said reply while Munawar Hussain Mirza Sidaq and Naeem Ullah appellants also professed their innocence. However, neither they had opted to make statements under section 340(2), Cr.P.C, on oath, nor they produced any witnesses in their defence. The learned Trial Court in order to reach just conclusion of the case, examined Muhammad Tufail as 4. Upon conclusion of the trial the learned Trial Court, after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt, they were convicted and sentenced as mentioned and detailed above. Hence,, all these matters before this Court.
5. The learned counsel for the appellants contends that evidence produced by the prosecution is not. worthy of reliance; that the prosecution has failed to stand on its own legs; that Ghulam -Mustafa complainant (PW-6) was not present *jt the spot, he w-as father of Suleman Mustafa "the alleged abductee, who has not been produced in spite of the fact that ho was the most important witness in the present case; that PW-8 Syed. Fida Hussain Shah, driver was employee of the complainant and dtte to this reason he has given tutored statement; that Sahar Mustafa daughter of the .complainant has made' certain contradictions in her statement on material points; that the eye-witnesses w'ere interested and their statements cannot be relied upon without any independent corroboration which is missing in the present case that, the recoveries have been planted upon the appellants which otherwise have been effected in violation of section 103; Cr P.C.; that record of mobile phone from which the calf was made to the complainant for demand of ransom amount has not been taken into possession by PW-9 Arshad Mehmood, S.L; that there.was election rivalry between the parties and due to this rdason the accused have been involved in the present case with mala fide intention and ulterior motives; that Arshad Mehmood, S.I. (PW-9) has admitted that the complainant was previously residing at village^ilawar Pur which was place of residents of the accused and due to this reason the appellants have been falsely implicated, in the present case; that identification parade is not worthy of reliance as the accused had raised objection that they were arrested much before sending them to jail; that DPO Gujrat had held press conference on 5th February, 2009 and admitted that the accused had been arrested; that he had also stated that the ransom amount has not been paid and this fact has been proved through the statement of CW-1 Muhammad Tufail, representative of 'Nawa-e-Waqt', who was an independent witness and his statement is worthy of reliance and during the cross-examination he admitted that the said news has been published on behalf of Namanigar, it was also admitted by him that DPO Gujrat had addressed a press conference and it was mentioned that the child has been recovered without any payment of ransom from Gujranwala; that Mst. Sahar Mustafa a 5 (PW-7) daughter of the complainant admitted during the cross- examihation that Suleman Mustafa the alleged abductee came back home on 4.2.2009 at 8.00 p.m. Li such circumstances, the prosecution has not been able to prove its case against the appellants who may be acquitted of the Charges. .
6. On the, contrary, learned Deputy v Prosecutor General opposes the appeals, on the ground that the eyewitnesses are' patural and confidence inspiring; that F.I.R, had been lodged with promptitude and the' statements of the eyewitnesses shows that they had seen the incident and they had made consistent statements regarding participation of the accused/appellants in the present case; the eye- witnesses had no enmity or grudge to falsely implicate the appellants in the present case; that they were independent and natural witnesses, who had identified the accused during the identification parade conducted by PW-2 Ahmad Mujahid Sher Dil, learned Judicial Magistrate; that out of 50 dummies five accused were identified correctly; that recoveries have been effected from the appellants and the prosecution has succeeded in making out a case beyond any shadow of doubt, hence, the appeals filed by the appellant may be dismissed. ' .
7. We have, heard the learned counsel for the parties and also perused the record with due care and caution.
8. The occurrence in this case was alleged to have taken place on 26.1.2009 at 7.25 a.m. in the area of Pul Dawara Kalian situated within the limits of Bhalair, 15 k.m. towards West from Police Station Jalalpur Jattan District Gujrat while the matter -was reported by Ghulam Mustafa complainant (PW:6) through application (Ex. PA) submitted to Arshad Mahmood, S.L (PW-8) at Pulli Dawara Bhalair the same day at 8.45 a.m. on-the basis of which formal F.I.R. No. 43/2009 (Ex. PA/1) was drafted by Muhammad Waris, S.I. (PW-1) at the Police Station on 26.1.2009 at 9.45 a.m. The prosecution case in brief was that the complainant was resident of Kotla Arab Ali Khan who had gone to United Kingdom for manual work. He returned to Pakistan 1-1/2 year back on the death of his father. His four children namely Sehar Mustafa aged 14/15 years, Mariam Mustafa aged l2 years, Haleema Sadia aged 9 years and Suleman Mustafa aged 6 years were studying in Educator School Barahadari Gujrat. On ibj. 1.2009 at about 7.15 a.m., his driver Fida Hussain Shah (PW-8) was going to Gujrat in Suzuki Car bearing registration No. 3634-WL for dropping the children to school! When he reached near Pull Mukkiana, a white colour Alto car having black window' glasses and on the back screen words "All MOLA" were inscribed, intercepted them. Two persons armed with fire-arms came out of the car and encircled the children. They forcibly , got down driver Fida Hussain and Suleman Mustafa abductee and shifted Suleman Mustafa in their own car. The persons who; got down driver and Suleman Mustafa, one of them was of heavy physique, aged 25/26 years and the second w'as of medium height, slim body aged 25/26 years. They Inuffled face of the driver and made him to sit on fronts seat of the car of the. complainant. One Of the accused drove the car of the complainant and took; the car towards Peru Shah Kotla Dhinda. where the car stuck in the sand. The accused came out of the car. ln the meanwhile, one motorcyclist came from Perfu.Shah side.and accused decamped on the said motorcycle, ' whereas, son of the complainant Suleman - Mustafa was taken to an unknown place by the accused in. their own car. They left Fida Hussain driver and. children of the, complainant there,
6. Sahar Mustafa (PW-7) and Syed Fida Hussain,Shah (PW-8) are the eye-witnesses of the occurrence of the alleged abduction of Suleman Mustafa. Mst.
Sahar Mustafa was the eldest daughter of the complainant aged about 14/15 years and he was also gping alongwith Maryam Mustafa aged l2 years, Haleema Sadiq aged 9 years and Suleman Mustafa aged 6 years, ,PW- Syed Fida Hussain Shah was the driver of the car belonging to Ghulain Mustafa complainant and he used to take in the morning the children of the complainant namely Mst. Maryam Mustafa, Sahar Mustafa"; Haiima Sadia and Suleman Mustafa to Educator School Bharadari, Gujrat. Both the eye-witnesses have fully recognized the, appellants at the time of occurrence as it was day light occurrence and the accused have not muffled their faces and they had rightly identified them during the test of identification parade. Both the eye-witnesses, PW-7 Mst. Sahar Mustafa and PW-8 Syed Eida Hussain Shah have given the description of the accused in their statements recorded under section 161.'Cr.P.C, which were recorded much before the identification parade. Both the eye-witnesses had no grudge., ill-will or ulterior motive to falsely implicate the appellants in. the present case and to substitute the innocent persons with the actual accused in a case entailing capital ,sentence:. " Presence of both the eye-witnesses has been established and there is no contradiction in their statements regarding time,, place and the manner in which the. occurrence had taken place. Neither complainant Ghulain Mustafa (PW-6) nor. Syed Fida Hussain Shah (PW-8) had any enmity or grudge to falsely implicate the appellants in the present case. Even otherwise, it has been admitted by the learned counsel for the appellants during the arguments that the incident had taken place but the accused had been substituted, he has failed to point out any material or evidence for substitution of the accused if they had not participated in the incident, goth the eye-witnesses were subjected to lengthy cross-examination but the defence had failed to shatter their evidence and also to"gain anything in its favour. Both the eye witnesses remained consistent regarding incident of abduction and the manner in which Suleman Mustafa was abducted and they also remained consistent regarding the involvement of the accused who had actually came out of the car and took the victim out of the car. In such circumstances, we find that the ocular account, furnished through the statements of Mst. Sahar Mustafa (PWL7) and Fida Hussain (PW-8) is worthy of reliance and the learned Trial Court has rightly relied upon their statements.
10. It has been contended by the learned counsel for the appellants that they were permanent resident of Village Dilawar Pur where the complainant also used to reside previously and they have been falsely implicated in this'case, due to their rivalry with Abid Raza group as they had supported in the election of MPA Naseer Sidh opponent candidate of Abid Raza's. candidate, The complainant was the majn supporter of Abid Raza's candidate and the occurrence took place and.the complainant and Abid Raza have involved them in this false case.
Suffice it-to say that, if the prosecution had any intention to falsely implicate the appellants in the present case by fabricating false evidence' the complainant and the eye-witnesses could easily mention the names of the appellants jn the FIR* which show's bona fida on the part of the prosecution that, they did . not mention the names of the appellants in the FIR. Even otherwise, the defence has failed to point out that why and when the complainant had shifted his resident from village Dilawar Pur and as.'to whether any criminal litigation was pending between both the parties.
From the perusal of the evidence it has been established on the record that the complainant or the eye-witnesses had no enmity or grudge to falsely implicate the appellants in the present case. The story of the prosecution is quite natural and we do not find any discrepancy in their statements. 11.
The next contention of the learned counsel for the appellants is that they were arrested from their houses on 4.2.2009 and the matter of their arrest was published in various newspapers including Daily Nawa:e-Waqt on 6.2.2009 and DPO Gujrat had addressed a press conference and it was mentioned that the child had been recovered without any payment of ransom from Gujranwala. In this respect, news representative of Nawa-e-Waqt was summoned as CW-1, who admitted that the news about the arrest of the accused was published, in their newspaper dated 6.2.2009, however, he admitted during the cross-examination that the news was published without proper verification and 'the aforesaid news was not collected by him personally. It was conveyed to him by. his Assistant. Even otherwise, no importance can be given to such news-item as the Reporter who was present at the time of press conference had not been produced before the learned Trial Court. Neither CW-1 Muhammad Tufail was present at the time of press conference nor copy of the press conference has been produced in this regard. So we are not inclined to give any importance to this CW and contention of the learned counsel for the -appellants having no substance is out of consideration.
12. Ahmad Mujahid Sher Dil, learned Judicial Magistrate (PW-2) supervised the identification parade at District Jail, Gujrat on 10.2.2009 and proceedings of the identification parade is Ex. PB, which .has been perused by this Court. From the perusal of the same it is found that the learned Judicial Magistrate had taken due care and caution and also followed the procedure laic down by the superior Courts for conducting identificatioh parade. Irfan alias Fana, Iftikhar alias Khara, Nadeem alias Billu, Munawar Hussain and Mirza- Sidaq were correctly identified by Syed Fida Hussain Shah (PW-8). Thereafter, position of the accused and the dummies was changed.and Mst. Sahar Mustafa (PW-7) was summoned, she had also correctly identified the above-said accused- appellants. From the perusal of the identification parade, we are satisfied as no major contradiction in conducting the identification parade has been found. The objection raised by the learned counsel for the appellants that the accused were shown to the PWs prior to the identification parade has got no (* evidentiary value as PW-7 and PW-8 during the cross- examination categorically stated that they did not visit the Police Station during investigation of this .case and CIA Centre. Both the PWs had also denied the suggestion that they, were taken to CIA Centre where movie and photographs of the accused persons were taken on 5.2.2009 which were showrn to them during the investigation of this case before identification parade. ,
13. Recovery in the present case was legally inconsequential as it has been effected in violation of pj section 103, Cr.P.C. ' Even otherwise, particulars and denomination of the ransom amount having not been furnished in the FIR.
14. So far involvement of Naeem Ullah appellant is concerned, we are satisfied that the prosecution has not been able to prove its case against him. Neither1 he was not identified during the'identification parade nor he had actively participated, in the abduction of the alleged victim. The only recovery of school bag etc. belonging to the victim wa& taken into possession from him which is not sufficient to connect him with the commission of the crime entailing capital ^ sentence. Even Otherwise,-recovery alone is not sufficient to- connect the appellant with the commission of the crime. We have no hesitation in holding that the prosecution has miserably failed to prove its case against Naeem Ullah appellant, hence, Criminal Appeal No. 1026 of 2009 to the extent of Naeem Ullah appellant is accepted arid the judgment A of conviction and sentence to his extent is set, aside. He is acquitted of the charge by extending benefit of doubt, to him. He shall be released from jail forthwith if is not required in any other criminal case. . '15. In view of above discussion, We feel no hesitation in holding that the prosecution had been able to bring home guilt of Irfan Ullah alias Fana. Iftikhar alias Khara, Munawar, Hussain, Mirza Sidaq and Nadeem alias Billu appellants beyond any shadow of doubt. So far as quantum of sentence is concerned, we find that five persons have been sentenced to death, who were 20 to 23 years of ages at the time of jp6ident, they were first offenders and were not previously convicted in any case. Two sentences i.e. death and life imprisonment have been provided under section 365-A, PPC and section 7(e), ATA, 1997 and it is the discretion of the Court to decide keeping in view the circumstances of, the incident and the manner in which the occurrence had taken place as to which sentence will, meet the ends of justice, ln such a situation awarding of the death, penalty to five persons appears to be a harsh order, which is converted to imprisonment for rfe. However! the. direction regarding payment of fine or undergoing of sentence in default thereof is not maintained as the same is not provided under the above-said provisions of law and the benefit of Section 382-B, Cr.P.C, shall also be extended to the appellants. The sentence of, 10 years alongwith fine of Rs. 50.000/- each or in default of payment thereof to further undergo S.L for six months each awarded by the learned Trial Court under section 392, PPC to-Irfan alias' Fana, Iftikhar alias Khara, Mirza Sidaq and Munawar Hussain appellants is also maintained. However, both these sentences shall run concurrently. With this modification in the quantum \ of sentence Criminal Appeal No. 1026 of 2009 and Criminal Appeal No. 1024 of 2009 are hereby dismissed. I6. Consequently, the death sentence awarded to Irfan Ullah alias Fana, Iftikhar alias Khara, Munawar Hussain, Mirza Sidaq, Nadeem alias Billu and Naeem Ullah convicts is not confirmed and Capital Sentence Reference No. 21-T of 2009 is replied in the negative.