' Sub-inspector Khan Nawaz of Police Station Soldier Bazar was the complainant. He stated that upon intimation by Madadgar, Saddar he reached Hali Street behind Ghosia Mosque and found a dead body of an unknown person aged 20/21 years, whose both hands were tied at the back and whose windpipe had been cut. After preparing inquest, report, body was removed to Civil Hospital for postmortem. The appellant along with absconding accused was alleged to have committed crime. Charge was framed against the appellant in the following words:-- "That on 23-8-2005 you along with absconding accused Janzaib . Alias Jahanzaib, Mst. Uzma and Arif kidnapped Mehboob Ali son of Faqeer Muhammad alias Dad Raheem when (at about 1100 a.m.) he proceeded from his house and reached at the shop of Muhammad Asif (situated at Old 1- laji Camp) on his motorcycle bearing No, ABC-5980 CG-125 he received a telephone call on his mobile Phone No, 0300-2164557 and then he left the shop of the said Muhammad Asif after informing him that he is going to the house of one Mst. Uzma and sometime later the abductee dialed telephone to him that he is at the house of Mst. Uzma and you at about 11-00 p.m. Dialed phone from the mobile phone of abductee/deceased and informed to his family about his kidnapping and demanded ransom money of Rs,40,00,000 for release of the abductee and on 23rd, 24th and 25th August you continuously dialed telephone to Asghar Ali (maternal father-in- law), Muhammad Akram and Shaukat All and also dialed telephone on the mobile telephone of uncle of the abductee namely Hamza and repeated the demand of Rs,40,00,000 as ransom money for release of the abductee and on negotiation you agreed to receive ransom money of Rs,500,000 and on 25-8-2005 at about 5-00 a.m. You called Asghar Ali and Muhammad Akram at Lyari Express Way near Pumping Station and received ransom money of Rs,4,85,000 and at the time of payment of ransom money the witnesses had seen you so also absconding accused Janzeb alias Jahanzaib and Arif, who had come there in Suzuki Alto bearing No, AHN-955 VXR Silver Colour with the abductee and his hand and feet were fastened and his mouth was closed with the tape and the witnesses had seen the abductee in your custody and thereafter you dialed telephone to the family of the abductee and threatened them that they had paid Rs,4,85,000 and remaining amount of Rs,15,000 may be kept for funeral of the abduc tee and thereafter on 25-8-2005 the corpse of the abductee duly slaughter his throat was found within the jurisdiction of Soldier Bazar as such you have committed the offence punishable under section 7 of ATA 1997 read with section 365-A/302/34, P.P.C. And is within the cognizance of this Court.
' AND I hereby direct that you be proceeded under the aforesaid charge."
2. At the trial Khan Nawaz (Sub-Inspector P.W.1); Mazhar Ali (Inspector Police P.W.2), Fayyaz Ahmed Qadri (Investigating Officer P.W.3), Asif Khan (relative of deceased, P.W.4), Syed Asim Shah ( who impounded the motorcycle: P.W.5), Asghar Ali (uncle of deceased: P.W.6), Syed Anwer Shah (lent mobile to deceased: P.W.7), Muhammad Akram (brother-in-law of deceased: P.W.8), Nadeem Ahmed (Head Constable, mashir of arrest: P.W.9), Israr Hussain (mashir of place of confinement: P.W. 10), Shahid Hussain (mashir of recovery of crime weapon: P. W.11), Imran Baloch (mashir: Jagdish Kumar (Medico Legal Officer: P. W.13), Muhammad Imran: P.W.14), Muhammad Nawaz Chatta (first 1.0. P.W.15) were produced. Abdul Jalil (mashir of pointation of place of captivity, and recovery) was produced as Court witness. Appellant produced Khurram Ali, Sheikh Mazhar as witnesses. At the conclusion of the trial vide judgment dated 21-4-2006 the appellant was convicted under section 365-A, P.P.C. Read with section 7(e) of Anti-Terrorism Act, 1997 and was awarded sentence of death. His movable and immovable properties to the extent of Rs,100.000 were ordered to be confiscated to the Government. Appellant was also convicted under section 302, P.P.C. And was awarded sentence of death. Fine of Rs, 100,000 was imposed upon him and in case of default of fine he was ordered to undergo further R.I for 5 years. Amount of fine if recovered was ordered to be paid as compensation. Benefit of section 382-B. Cr.P.C. Was not given to the appellant:
3. This appeal was heard by a Division Bench of this Court. Comprising of Mr. Justice Amir Hani Muslim and Mr. Justice Syed Zakir Hussain. The appeal was allowed by Mr. Justice Syed Zakir Hussain whereas Mr. Justice Amir Hani Muslim upheld the conviction under section 365-A, P.P.C. But modified the sentence from death to life imprisonment. However, the appellant was acquitted for offence under section 302(b), P.P.C. There being a difference of opinion between two judges of the Bench, the matter in accordance with the orders passed by the Hon'ble Chief Justice has been referred to me for decision.
4. Learned counsel for the appellant made the following submissions:--
(1) The incident is an unseen incident.
(2) No witness from house of the deceased was produced, not even Hamza whose mobile phone was allegedly used.
(3) Prosecution failed to produce two material witnesses one being Yaqoob, who saw the dead body and other being Shaukat who received first phone call for ransom.
(4) Prosecution did not produce mother of deceased to establish that as to when deceased left the house.
(5) Record of the phone calls makes the case doubtful.
(6) Chemical Examiner has merely stated that there was human blood on the Chhuri. He has not identified as to whose blood was it.
(7) Chhuri was recovered after 20/25 days from an open place. One witness stated that it was a garbage dump and other witness did not say anything about it.
(8) It is claimed that purse and money were recovered. Although Court witness Muhammad Jalil did not say anything about money and purse but the witness was not sought to be declared hostile and no question was asked from the witness. Numbers of currency notes were not mentioned.
(9) There is no independent witness of the arrest:
(10) It is alleged that alleged abductee/deceased was transported in car. However, no link with the car has been established. Owner of the car, though he was brother of the appellant was not made either witness or an accused.
(1'I) No person of the locality was associated as mashir for recovery of Churri or money or place of captivity. From the place of captivity no finger prints or any material has been recovered.
(12) There is contradiction in evidence and mashirnama. Prosecution witness stated that appellant threw the knife whereas the I.O. Stated that Jahanzaib gave it to Arif and Arif threw the knife.
(13) All witnesses were interested witnesses and were relatives to each other.
(14) In the mashirnama of pointation of the place of payment of ransom amount available at page 60 of the Paper Book, there is no mention that they had seen the abductee in the car.
(15) Learned counsel referred to pages 100 and 119 of paper book and submitted that house numbers were different. Learned counsel relied upon Imran Ashraf and 7 others v. The State, 2001 SCM R 424, Muhammad Akram v. The State, 2009 SCM R 230 Farman Ahmed v. Muhammad Inayat and others 2007 SCM R 1825, University of Punjab v. Miss Wajiha Arooj, 2008 SCM R 1577, Syed Hashim Ali v. The State, 2006 PCr.LJ 1576, Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1988 SC 388.
5. Learned counsel for the complainant submitted that two direct witnesses appeared in the Court and disclosed name of the appellant in their first meeting with the I.O. And they stated in their evidence that they saw the appellant driving the car when the car came to collect the ransom and they saw the abductee in the car. Learned counsel submitted that recoveries were made at the pointation of the appellant and in such situations section 103 is not applicable. He referred to Article 40 of Qanun-e-Shahadat also. Learned counsel relied upon Mir Muhammad v. The State 1995 SCM R 614, Muhammad Akbar v. The State 1995 SCM R 693. Evidence of mashirs who deposed that recoveries were made in their presence was not challenged in cross-examination. Real brother of the appellant is the absconder. Vehicle number and names of the accused were given on the very first day. The witnesses Fiayaz Qadri, P.W.3, as well as mashirnama at page 60 ,clearly stated that there were mercury lights and therefore identification was made. Telephone data was not really necessary to prove kidnapping for ransom. Learned counsel relied' upon Khawaja Hassanullah v.
The State 1999 M LD 514.
6. Learned A.P.-G. Adopted arguments of the complainant. He submitted that mother of the deceased being neither witness of abduction nor of murder was not a necessary witness: Regarding recovery of Chhuri learned A.P.-G. Submitted that I.O. Who appeared as witness was not suggested that blood on the Chhuri was not that of the deceased. Learned A.P.-G. Relied upon Chief Engineer, Irrigation Department, N.-W.F.P. Peshawar and 2 others v. Mazhar Hussian and 2 others PLD 2004 SC 682.
7. I have considered the submissions made by the learned counsel and have also gone through the record.
8. I may straightaway take out of consideration two aspects. Firstly both the Judges who have disagreed with each other have however unanimously held that charge under section 302(b), P.P.C. Has not been proved. Learned A.P.-G. As well as complainant categorically conceded that charge of murder has not been proved against the appellant. Therefore, as far as his conviction under section 302(b), P.P.C. Is concerned, the appellant is acquitted of the charge of murder.
9. It has been alleged that many telephone calls were made demanding ransom. Learned counsel for the appellant vehemently argued that name of the persons whose mobile phone calls were alleged to have been received was produced and record of phone calls made was also not produced. Even Asghar Ali, P.W.6, who was the star witness for the prosecution did not utter a single word as to who made the phone calls. Therefore, as far as evidence of telephone calls is concerned, that too has to be taken out of consideration.
10. The key piece of evidence against the appellant is firstly deposition of Asghar Ali. It may be pointed out that the role attributed to the appellant is that when the car came to collect the ransom, the appellant was driving the car and deceased/alleged abductee was at that time kept in a hostage on back seat of the car. Witness Asghar Ali stated that after having been directed to two different places he was finally directed to come to Lyari Express Way. He further stated that when he reached there he was directed to stop near Water Pumping Station and then he saw a Suzuki Alto of Silver Colour coming from Old Golimar on upper Lyari Express Way. The car stopped at some distance. Two persons one, from seat next to the driver and the other from the back seat came out. They took out their pistols, bag of ransom was handed over to them and the two persons stated that the abductee was available in the car and he would be released at a some distance.
After receiving the amount of ransom they sat in the car and the car took a long turn passed close to the witness and then the witness stated that he saw the present appellant driving the car and the abductee with his mouth taped was sitting on the rear seat of the car. He also stated registration number Of the car. In the cross-examination be stated that there were street lights and a mercury bulb was also fixed at the Water Pumping Station. P.W.8, Muhammad Akram in his evidence in all respect corroborated the statement of P.W.6., Asghar Ali. This is one piece of evidence against the present appellant.
11. Second piece of evidence is ,recovery of Chhuri at the pointation of the appellant. When Chhuri was sent to the Chemical Examiner, he stated that Churri had stains of human blood on it. Whose blood it was not explained by the Chemical Examiner. Regarding recovery of Chhuri, learned counsel for the appellant submitted that one witness stated that it was recovered from a garbage dump and other witness did not say anything about the garbage dump. Both the witnesses exactly pointed out the place from where it was recovered; one started it to be by the side of road on a vacant plot and other called it a garbage dump. In my opinion there is no significant difference here. Contention of learned counsel for the appellant was that mashirs of recovery. Of Chhuri were relatives and were interested persons and since the police did not cite an independent mashir and therefore such evidence could not be believed. One fact which cannot be overlooked is that witnesses are clear on the point that Chhuri was recovered on the pointation of the present appellant. In such a situation Article 40 of the Qanun-e-Shahadat will apply. In the cross- examination the evidence regarding recovery of Chhuri has not been shaken in any material respects.
12. Second corroborating piece of evidence against the appellant is recovery of purse and money.
Learned counsel for the appellant stated that number of the currency notes was not mentioned.
P.W.12., Imran Baloch in his evidence stated that he was stopped by a police mobile and police people showed him the appellant in handcuffs and stated that he was willing to point some place/house. He agreed to be a witness and he stated that appellant led to a house where there was a big gate which was knocked at by the accused and in response to the knock a person came out and witness along with police party entered the house. They saw an Alto Car of the same colour and number which it was alleged that the present appellant drove at the time of receiving of ransom. Witness stated that accused pointed out the vehicle and stated that it was the same car. Accused also pointed out some amount of ransom which was lying under a T.V Trolley in a briefcase which was taken amount out from the briefcase and then it was handed over to the police. Number of currency notes is not given but they were sealed and they were produced in the Court at the time of evidence. On this particular aspect the evidence has remained unshaken.
Abdul Jalil, Court witness No,3, also deposed about recoveries.
13. It is essentially these three pieces of evidence which establish role of the appellant in the kidnapping. Learned counsel for the complainant relied upon Khawaja Hassanullah's case (Supra), where it has been held that it is not necessary that all the culprits must have actively participated in each and every step of abduction. It has been held that if the work is divided between persons, such as one drives the vehicle, other collect ransom amount, yet another stands guard over the alleged abductee and yet another keeps watch over the area: all of them are equally guilty because whatever is done by them is done under some planning and under a scheme of things.
Therefore, in my opinion the prosecution has successfully established offence under section 365-A, P.P.C. Read with section 7(e) of the Anti-Terrorism Act. However, considering young age and circumstances of the case while maintain the conviction I modify the sentence to life imprisonment. The appeal is therefore, dismissed in the above terms. Confirmation Reference No, 5 of 2006 is disposed of accordingly.