JUDGMENT SYED HASAN AZHAR RIZVI, J.---This judgment will dispose of Special Cr. Anti-Terrorism Appeals Nos.16 of 2009 and 11 of 2009 as these arise out of common judgment dated 28-2-2009 passed by the Judge, Anti-Terrorism Court No.III, Karachi, in Special Case No.5 of 2007, culminating from F.I.R. No.34 of 2007 under section 365-A134, P.P.C. Read with section 7(e) of ATA, 1997 of Police Station Quaidabad, convicting all the three appellants to suffer imprisonment for life while their moveable and immoveable properties to the extent of Rs.50,000 were ordered to be confiscated.
The trial Court, however, extended the benefit of section 382-B, Cr.P.C. To the appellants.
2. The brief facts giving rise to the present appeals are that the complainant Fareed Khan son of Dilawar Khan on 20-1-2007, while coming back from his work, received message from his were through telephone that his son Naveed aged seven years who had gone to Madrassa for study has not come back. Accordingly, he searched his son but all in vain. On 21-1-2007 at about 12-30 hours he reached at Police Station Quaidabad, narrated the story, which was recorded as a roznamcha entry at the Police Station.
3. On 22-1-2007 the complainant received an anonymous call on his mobile telephone that his missing son is in their custody and caller demanded Rs.600,000 for his release. Complainant then lodged F.I.R. No.34 of 2007 on 25-1-2007 at 10-15 hours at Police Station Quaidabad against un- known accused for kidnapping his son Naveed. On 28-1-2007, in response to another call from the unknown caller, the complainant informed him that he had made arrangement of only Rs.320,000, who directed the complainant to bring the said amount at the area near Charagh Hotel and when he reached there, he was again directed to reach Zafar Town near Railway line. The complainant informed CPLC authorities and AVCC police about the demand of the caller, who followed the complainant and proceeded to Zafar Town.
4. At about 10-00 a.m. The kidnappers on mobile phone asked the complainant to come to Railway line opposite godown No.1 Food Department, they all reached at the pointed place at about 10-30 a.m. One person came to complainant and demanded ransom amount of Rs.320,000. However, in the meantime, Police encircled the area and arrested an accused, who disclosed his name Muhammad Qasim and told that the kidnapped by is in custody of his accomplices Saqib Shah and Muhammad Tahir, who are present in a rented house in Katchi Abadi, Khuldabad, Quaidabad, Karachi. Thereafter the Police reached at the pointed place and arrested both the appellants namely Saqib Shah and Muhammad Tahir and recovered kidnapped by Naveed on pointation of appellant Muhammad Qasim.
5. After completing the usual investigation, challan was submitted against the appellants before the trial Court, which on 14-5-2008 framed the charge, Exhibit 3, against them. All the appellants pleaded not guilty and claimed the trial.
6. At the trial, the prosecution examined P.W.1 Muhammad Fareed, Exhibit 7, who produced roznamcha report as Exhibit 7/A, F.I.R. As Exhibit 7/B, mashirnama of inspection of house as Exhibit 7/C, mashirnama of arrest and recovery of mobile from appellant Muhammad Tahir, as Exhibit 7/D, mashirnama of recovery of by, mobile phone and currency notes of Rs.50 as Exhibit 7/E, memo of seizure of audio cassette as Exhibit 7F. The prosecution then examined P.W.2 Mukhtar Hussain, Exhibit 8, who produced mashirnama of place of occurrence as Exhibit 8A. P.W.3 Ch. Manzoor Ahmed, S.I.P., AVCC, was examined as Exhibit 9, who produced mashirnama of pointation of place of kidnapping by the appellant as Exhibit 9A and mashirnama of seizure of call print of mobile phone as Exhibit 9B. P.W.4, S.-I. Ali Muhammad was examined as Exhibit 10, P.W.5 Naveed was examined as Exhibit 11, P.W.6, S.-I. Muhammad Shafiq Tanveer was examined as Exhibit 12, P.W.7 Abdul Rauf Pirzada as Exhibit 13, P.W.8 Abdul Hameed was examined as Exhibit 14, P.W.9 Muhammad Ashfaque Mughal, Civil Judge and Judicial Magistrate, was examined as Exhibit 16, who produced letter for recording judicial confession of appellant Muhammad Qasim as Exhibit 16A and confessional statement of appellant Muhammad Qasim as Exhibit 16B. The prosecution then examined P.W. 10 Waheed Khan as Exhibit 17 and P.W.11 Inspector Muhammad Babar as Exhibit 18, who produced mashirnama of seizure of documents as Exhibit 18A. The prosecution lastly examined P.W.12 S.-I. Bashir Ahmed as Exhibit 19 who produced letter of S.S.P., AVCC, Karachi, as exhibit 19A, letter to Chief, CPLC, as Exhibit 19B, entry of arrival at AVCC, Karachi, as Exhibit 19C, mashirnama of handing over custody of kidnapped by Naveed Khan/ Superdaginama as Exhibit 19D, applications to area Magistrate as Exhibits 19E and 19F. Thereafter the prosecution vide Exhibit 20 closed its side. The trial Court thereafter recorded statement of appellants under section 342(1), Cr.P.C. As Exhibits 21, 22 and 23.
7. After completion of the trial, the trial Court has convicted all the three appellants as mentioned herein above.
8. Mr. Habib Ahmed, Advocate for Saqib Shah, appellant in Special Criminal ATA No. 11 of 2009, has contended that there are two sets of witnesses i.e. Private witnesses comprising of complainant, his son Naveed, the abductee, Mukhtar Hussain, the brother-in-law of the complainant and Abdul Rauf Pirzada and the other set is comprising of Police officials and Judicial Magistrate. Learned counsel has urged that the complainant, who was declared hostile, did not involve Saqib Shah and has stated before the trial Court as under:-- "It is incorrect to say that at the place of captivity police arrested the accused Saqib Shah who also kidnapped the by in the house. It is incorrect to say that accused Saqib Shah was arrested along with accused Tahir. However on the next day early in the morning at Fajar accused Saqib Shah was arrested by the police from his house when he was sleeping."
9. Mr. Habib Ahmed, Advocate, further argued that the prosecution was to prove that Saqib Shah was present in the house, where the abductee was in captivity, but the prosecution has failed to prove the presence and arrest of appellant Saqib Shah from there. According to him, appellant Saqib Shah was not available in the place of confinement of abductee and the complainant during his cross-examination has denied that at the place of captivity police arrested the appellant Saqib Shah, who was alleged to be with the kidnapped by in the house.
10. The learned counsel has further contended that the judicial confession made by appellant Muhammad Qasim was retracted confession, which has no evidentiary value. According to him, the Judicial Magistrate after recording confession of appellant Muhammad Qasim, handed over his custody to the I.O. The learned counsel further submitted that the appellant was arrested on 28- 1-2007 and the judicial confession was recorded on 2-2-2007 i.e. After a delay of five days. The learned counsel for the appellant further contended that retracted confession of an accused under section 164, Cr.P.C. Is inadmissible and cannot be used as substantive piece of evidence for recording conviction. He has referred Article 43 of the Qanoon-e-Shahadat Order, 1984, which reads as under:--- "43. Consideration of proved confession affecting person making it and others jointly under trial for same offence. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved.
(a) such confession shall be proof against the persons; making it; and
(b) the Court may take into consideration such confession as circumstantial evidence against such other person.
11. Mr. Habib Ahmed, the learned counsel for the appellant, has also argued that the kidnapped by, namely, Naveed during the cross- examination admitted that he was instructed by Police for giving statement before the trial Court, the appellants were shown to him in the Court and their names were also tutored by the Police. The learned counsel further contended that the trial Court has completely overlooked the material contradictions in the evidence of prosecution witnesses, which goes to the root of the case.
12. Mr. Muhammad Rafi Muzni, learned counsel for the appellants Muhammad Qasim and Muhammad Tahir while adopting the arguments of Mr. Habib Ahmed, Advocate, has further argued that there is tampering of the date in Exhibit 7A, the Roznamcha Entry No.12 of Quaidabad Police Station. According to him the said report was lodged on 25-1-2007, but by manipulation the date has been changed to 21-1-2007. He has further submitted that the complainant in his evidence has given his Mobile No.0321-2620132, but in Exhibit No.9B, the Memo regarding Seizure of call print of mobile phone, the mobile phone number was mentioned as 0301-2620123 and during evidence before the trial Court complete record of the complainant's mobile No.0301-2620132 was produced, while the SIM of said number was issued in the name of Ghulam Akbar and not in the name of the complainant. According to the learned counsel for the appellants Muhammad Qasim and Muhammad Tahir, it is unbelievable that Muhammad Qasim was arrested from the godown without having any weapon in his possession.
13. The learned counsel further contended that the confessional statement of Muhammad Qasim was not voluntarily and was recorded under duress and coercion as the P.W.9 Judicial Magistrate in his cross-examination has admitted that at the time of recoding confession, appellant Muhammad Qasim was in custody of Investigating Officer Bashir Ahmed. He has further submitted that if the confessional statement of appellant Muhammad Qasim, being retracted, cannot be used against him, the same cannot be used equally as circumstantial evidence against other appellants. He in support of his contention has relied upon the case reported in 2003 SCMR 1419, relevant page 1425.
14. The learned counsel for the appellants has also submitted that the complainant in his statement before the' trial Court stated that Muhammad Tahir came and demanded ransom amount and was arrested by the Police and appellant Muhammad Qasim opened the door where the abductee was in captivity, which is a material contradiction and creates doubt. According to him if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of an accused then he will be entitled to such benefit not as a matter of grace and concession but as matter of right. He in support of his contention has relied upon the case of Tariq Pervez v. The State reported in 1995 SCMR 1345.
15. The learned counsel for the appellants urged that no independent person belonging to the locality has been cited as the mashir of arrest of the appellants. It was further contended by the learned counsel for the appellants that the abductee was recovered from the house which does not belong to the appellants. The learned counsel for the appellants has further submitted that the prosecution did not examine Mst. Dilshad, the mother of the abductee and the were of the complainant, who was an important prosecution witness. According to the learned counsel for the appellants, the delay in recording judicial confession and contradiction and discrepancies in the evidence of prosecution witnesses, vitiate the whole trial, hence, the impugned judgment passed by the trial Court is not sustainable in law.
16. The learned counsel for the appellants has further contended that the complainant took a loan of Rs.20,000 from appellants Muhammad Qasim and Muhammad Tahir and when they demanded the loaned money, the complainant has foisted the present case upon the appellants.
17. Mr. Muhammad Rafi Muzni, the learned counsel for the appellants, has also contended that appellant Muhammad Tahir has been alleged to be arrested on the pointation of the appellant Muhammad Qasim, otherwise no evidence is available on the record against the appellant Muhammad Tahir. Learned counsel for the appellants further contended that ingredients of common intention of the appellants are missing in the instant case.
18. The learned for the appellants has further contended that the complainant Muhammad Fareed during his evidence before the trial Court has not identified the appellant Saqib Shah before the trial Court and admitted that appellant was not arrested from the place where the abductee by was recovered. He further submitted that the complainant in his cross-examination has further admitted that all the three appellants were arrested by the Police in his presence, appellant Saqib Shah is residing in his mohallah, all the mashirnamas were prepared in his presence and after preparation he put his signature at the spot. He has, therefore, submitted that the prosecution has failed to prove its case against the appellants and the impugned judgment is liable to be set aside.
19. On the other hand, Mr. Ali Haider Saleem, Assistant Prosecutor-General argued that on the pointation of appellant Muhammad Qasim the kidnapped by was recovered and appellants Muhammad Tahir and Saqib Shah were arrested from the place of captivity of abductee. He has further contended that the complainant and the abductee identified all the appellants before the trial Court. The appellant Muhammad Qasim has made confessional statement before a Judicial Magistrate voluntarily, without any duress, coercion or undue influence, therefore, the same was rightly used by the trial Court against him and as circumstantial evidence against other appellants for convicting them. According to the learned State Counsel, in the confessional statement before the Judicial Magistrate the appellant, Muhammad Qasim, has admitted that he along with his cousin Muhammad Tahir and friend Saqib Shah, the other appellants, they had kidnapped Naveed aged about 7 years and demanded ransom amount from Muhammad Fareed, the father of abductee Naveed. The Police arrested him and on his pointation the abductee was recovered and the appellants Saqib Shah and Muhammad Tahir were arrested.
20. The learned Assistant Prosecutor-General has further contended that association of two independent witnesses as provided under section 103, Cr.P.C. Is not required in a case where the accused himself leads the police to a particular place and gets the article recovered. He in support of his contention has relied upon the case reported in 1995 SCMR page 614. The Assistant Prosecutor-General has also submitted that evidence of police officials is as good as of any other witness and has relied upon the cases reported in 1991 SCMR page 1617 and 2000 MLD page 275.
21. We have heard the learned counsel for the appellants, learned Assistant Prosecutor-General and gone through the record as well as case law cited by them. P.W.5 the victim/abductee has fully supported the prosecution case. The abductee in his evidence has fully implicated the appellants, relevant portion whereof reads as under:-- "I know the persons who kidnapped me. The three accused sitting in Court today had kidnapped me they are namely Qasim, Saqib and Tahir. I remained there for nine days. Thereafter Police came and got me recovered from Quarter."
22. During the cross-examination the victim further stated that when Police knocked the door, the abductee opened the door of house where he was confined. No suggestion was put to the abductee by the learned Counsel for the appellants that neither the appellants kidnapped the victim nor the Police recovered him from their captivity. The evidence of P.W-5 the abductee was very specific and confidence inspiring.
23. The complainant, P.W.1, in his evidence, recorded before the trial Court, has stated that Mobile Samsung C-110 having SIM No.0334-3386420 was recovered from appellant Muhammad Qasim and such mashirnama was prepared in his presence as Exhibit 7D. S.I. Ch. Manzoor Ahmed, P.W.3 has produced mashirnama as Exhibit 9B, regarding call prints of mobile phone No.0301-2620132 of complainant, which shows that from 20-1-2007 to 28-1-2007 complainant has dialed and received calls several times from mobile No.0334-3386420, recovered from the appellant Muhammad Qasim. P.W.4 SIP Ali Muhammad, who was a member of raiding party, arrested the appellants and recovered the abductee from the captivity, has stated before the trial Court that Samsung Mobile C-110 with SIM No.0334-3386420 was recovered from the possession of the appellant Muhammad Qasim.
24. As regard to the admissibility of the judicial confession is concerned, P.W.9 Muhammad Ashfaq Mughal, the Judicial Magistrate, who recorded the confessional statement of the appellant Muhammad Qasim, stated before the trial Court that on 2-2-2007 the appellant Muhammad Qasim was produced before him for recording his Judicial Confession. The Judicial Magistrate introduced himself to the appellant Muhammad Qasim and asked him that he has been produced before him for recording his Judicial Confession and gave two hours' time for reflection. The Judicial Magistrate examined the appellant Muhammad Qasim and enquired from him about any maltreatment and found no marks of violence or maltreatment on his person. The Judicial Magistrate reduced the judicial confession of the appellant Muhammad Qasim in writing. The Judicial Magistrate further stated before the trial Court that when he recorded the statement of the appellant Muhammad Qasim, police was not present. As far as the delay in recording the judicial confession is concerned, it cannot render the judicial confession nugatory as appellant Muhammad Qasim recorded his statement voluntarily.
25. In the present case, the judicial confession made by appellant Muhammad Qasim was corroborated by the independent evidence of the complainant, abductee, E Abdul Rauf Pirzada as well as the evidence of Police Officials, whose evidence recorded before the trial Court, is confidence-inspiring. No allegation of enmity has been alleged by the appellants against inspiring prosecution witnesses to F falsely implicate them in the present case.
26. With regard to the manipulation and tampering of date in Police Roznamcha Entry No.12, as contended by the learned counsel for the appellants, we have perused the record and find that the said date has been mentioned on three different places and there was overwriting only at one place, therefore, it cannot be said that the date has been tampered or changed in the Police Roznamcha Entry.
27. The contention of Mr. Muhammad Rafi Muzni, learned counsel for the appellants Muhammad Qasim and Muhammad Tahir, that the abductee was recovered from the house, which does not belong to the appellants, is also misconceived. P.W.7 Abdul Rauf Pirzada, an independent witness, has stated in his evidence before the trial Court that the house of his brother Dr. Abdul Waheed, is situated in Khuldabad near Rahmani Masjid Quaidabad. The house was rented out to appellant Muhammad Qasim in the month of January, 2007. He has further stated that the Police came at his house and recorded his statement under section 161, Cr.P.C. And appellant Muhammad Qasim, to whom house was rented out, who was present in the Court, is the same person. During the cross- examination before the trial Court the said witness stated that, "It was me who rented out the house in question as my brother was ill at that time. I have not made any tenancy agreement with accused Qasim in writing. It is correct that at the time of renting out the house I had collected the any identification of accused Qasim. From the evidence of P.W.7 Abdul Rauf Prizada, it is well established that the house from where the abductee was recovered was in possession and occupation of Muhammad Qasim the appellant.
28. The prosecution has brought on record confidence inspiring evidence in the the of voluntary judicial confession of appellant Muhammad Qasim, evidence of the Abductee supported and corroborated by the other prosecution witnesses coupled with the memo of call prints of mobile phone No.0301-2620132 of the complainant Muhammad Fareed, which fully establish the case against the appellants beyond any shadow of doubt, as such, the appellants have been rightly convicted for offences punishable under section 365-A/34, P.P.C. For kidnapping Naveed son of Muhammad Fareed. We do not find any infirmity in the impugned judgment to warrant interference in Appeal.
30. In view of the aforesaid reasons, both the Special Anti-Terrorism Appeals, filed by the appellants, are dismissed. The above are the reasons of our short order dated 11-8-2010.