SAGHEER AHMAD QADRI, J.---By this judgment we intend to dispose of Criminal Appeal No,125-T of 2007 filed by Qaiser Hussain alias Kashi alias Kashif, appellant-convict and murder reference i.e,, C.S.R No,02/RWP of 2009 sent by the learned Judge, Special Anti Terrorism Court No,II, Rawalpindi/Islamabad whereby appellant Qaiser Hussain alias Kashi alias Kashif son of Azhar Hussain, caste Awan, resident of Balheem, Police Station Sarai Alamgheer, District Gujrat was convicted and awarded death penalty under section 365-A, P.P.C. in case F.I.R. No,82 dated 18-9- 1999 registered at Police Station Chotala, District Jhelum.
2. Facts in order to dispose of these matters are that F.I.R. (Exh.PA) was lodged by Muhammad Iqbal son of Khan Wali, complainant (P.W.6) on 18-9-1999 at 11-30 a.m. vide Rapt No,11 mentioning therein that he was a retired Naib Subedar and he was plying Bus at Nara-Jhelum route; that his uncle Muhammad Sarwar son of Raj Wali along with his five sons had been involved in some business in United Kingdom who had come to the village; that on 12-9-1999 at about 8-30 p.m. Qazafi, Shafique sons of Muhammad Sharif, Qaisar son of Azhar Hussain (appellant), Rashid son of Muhammad Yunus, Shoaib son of Sakhi Muhammad all armed with firearm weapons called his son Qaiser Iqbal and uncle Muhammad Sarwar (both abductees) and accompanied them forcibly. The complainant Muhammad lqbal enquired where they were taking along with the above mentioned two persons and on what fault of them when Qazafi stated that they wanted to get huge amount and if that demand would be fulfilled then they would release Muhammad Sarwar and his son Qaiser Iqbal otherwise they be killed. Qazafi accused further threatened that if this fact was disclosed to the police the complainant would suffer loss thereafter Qazafi, etc. took the complainant's son Qaiser Iqbal and uncle Muhammad Sarwar towards Tilla Hill; that the complainant due to fear of the accused did not follow them nor he informed the police, however, he had been managing the amount to be paid to the accused and on 17-9-1999 went to Tilla Hill, met Qazafi, etc. paid them the ransom amount and beseeched that he would pay the remaining amount subsequently and due to that undertaking he brought back his son Qaiser Iqbal and uncle Muhammad Sarwar from the clutches of the accused. At the time of abduction of above mentioned two persons Shaukat Ali son of Allah Dad and Mukhtar Ahmed son of Rehmat Khan also witnessed this occurrence. Prayed that action be initiated. On this report the above mentioned F.I.R. was registered.
3. Some of the accused were earlier arrested and challan against them was submitted in court and they were tried, however, the appellant Qaiser Hussain alias Kashi alias Kashif remained absconder who subsequently was arrested and challan was submitted against him. He was charged by the learned Judge, Special Court ATA, Rawalpindi on 20-10-2006 under section 365-A, P.P.C. read with section 21-L Anti-Terrorism Act, 1997 to which he pleaded not guilty and claimed trial.
4. Prosecution examined total 9 witnesses out of which P.W.1 Muhammad Sarwar, DSP recorded the formal F.I.R. (Exh.PA/1) on the statement (Exh.PA) of the complainant Muhammad Iqbal son of Khan Wali P.W.6 on 18-9-1999. He also conducted the initial investigation at the spot as he prepared site plan of the place of abduction and subsequently on 28-9-1999 he arrested the co-accused of the appellant, namely, Shoaib and Rashid. He also recovered .30 bore pistol from Rashid, accused on 1- 10-1999. P.W.2 Liaquat Ali, S.-I. was entrusted with the warrants of arrest (Exh.PB) of the appellant Qaiser Hussain. He with his report (Exh.PB/1) returned the same as unserved. Subsequently on the basis of his report proclamation (Exh.PC) with his report (Exh.PC/1) was submitted in court. P.W.3 Muhammad Aslam, 5.-I. formally arrested the appellant Qaiser Hussain when he was in the lockup of Police Station Dina, District Jhelum in this case, as he earlier was arrested in another murder case vide FIR. No,118 dated 7-2-2000 under section 302, P.P.C., etc. registered at Police Station Chotala. P.W.4 Iqrar Hussain, HC stated that on 19-11-2005 the appellant in police custody lead to the recovery of Rifle .222 along with a magazine contained 15 live rounds which were secured vide memo Exh.PD. P.W.5 Fateh Khan, Retired Inspector conducted the initial investigation in this case in May, 2000 when during investigation Muhammad Qazafi, Muhammad Shafique and Qaiser (appellant) found the accused involved in the case as they were absconders, therefore, he obtained warrants of arrest on 15-9-2005 and entrusted to Liaquat Ali, S.-I. Subsequently he prepared challan under section 512, Cr.P.C. as these accused were declared absconders under section 87, Cr.P.C. P.W.6 Muhammad Iqbal son of Khan Wali, complainant of this case reiterated the stand as mentioned in the F.I.R. (Exh.PA/1) with addition that subsequent to the abduction of his son Qaiser Iqbal and uncle Muhammad Sarwar he managed to arrange Rs,25,00,000 from sons of Muhammad Sarwar, Rs,5,00,000 from Mukhtar Ahmed son of Allah Dad, Rs,3,00,000, were already lying with him. He further disclosed that Muhammad Mansha son of the abductee Muhammad Sarwar also arranged Rs,4,50,000 from some other friend and paid total ransom amount of Rs,40,00,000, was paid to the accused including the present appellant while going to Tilla Hill and brought back the abductees Muhammad Sarwar and Qaiser Iqbal his son. He furtlr stated that he also promised with the accused-appellant Qaiser to pay Rs,40,00,000 subsequently . Thereafter he went to the police station, lodged the report (Exh.PA) which was signed by me. P.W.8 Mukhtar son of Rehmat Khan one of the eye-witnesses supported the version brought on, 'record by Muhammad Iqbal, complainant on record. P.W.7 is one of the abductees Qaiser Iqbal son of Muhammad Iqbal, complainant who stated that on 12-9-1999 at about 8-30 p.m. (night) he was present in his house along with the father Muhammad Iqbal, complainant (P.W.6) when Qaiser Hussain accused- appellant armed with Kalashnikov, Qazafi and Shafique accused (since convicted) also armed with Kalashnikov, Khalid alias Sadru armed with Repeater gun. Rashid accused (since convicted) armed with .7 MM rifle and Shoaib carrying bag containing ammunitions came to his house, called him out and he and his father both came out. They also called Muhammad Sarwar P.W. from the house. Sarwar was uncle of his father. He stated that the accused persons took them forcibly to Kali Pari in Hills. They demanded ransom from his father. They were kept in hills for 5-6 days and thereafter his father came there at night time on 17-9-1999, paid the ransom money and brought him back along with Muhammad Sarwar. His father further promised to pay Rs,50,00,000 more to the accused. P.W.9 Sajjad Hussain, Inspector Investigation stated that on 9-11-2005 he received information about presence of Qaiser Hussain, appellant in (Tilla Hill near village Hamwala. He raided and arrested him as he was P.Q. and at the time of his arrest Rocket Launcher and six fuises along with five cartridges were also recovered from his possession vide memo Exh.PF and case under sections 4/5 of Explosives Act was registered vide F.I.R. No,157 at Police Station Chotala. He investigated, the said case and submitted challan in court.
5. Learned counsel for the State while giving up Muhammad Aslam, S.-I. and Munir Ahmed, A.S.-I. who were witnesses in another case F.I.R. No,157 of 2005 along with Muhammad Aslam, A.S.-I. of Police Station Chotala as unnecessary closed the prosecution evidence. He has also given up Muhammad Fiaz, Muhammad Irfan, Muhammad Ashraf, Muhammad Tahir, Umer Hayat, S.-I., Abdul Majeed, A.S.-I., Muhammad Ashraf, A.S.-I., Khawar Zaman, DSP, Muhammad Yousaf, Rasib Khan, Zar Muhammad, Inspector, Muhammad Siddiqaue and Khan Javed Khan, S.P. as unnecessary.
6. After conclusion of the prosecution evidence statement of the appellant under section 342, Cr.P.C. was recorded wherein he denied all the allegations and in reply to a question "why this case against him and why the P.Ws. deposed against him" stated "False case was registered against me. l was involved in this case by the local police due to my relationship with Qazafi co-accused. The witnesses have deposed against me on the asking of police."
' He did not opt to lead any defence evidence nor to appear as his own witness under section 340(2), Cr.P.C. in disproof of the allegations levelled against him.
7. At the conclusion of the trial, the learned trial Court passed the conviction and sentence as mentioned in the opening paragraph of this judgment.
8. Learned defence counsel argued that the impugned judgment passed by the learned trial Court is against law and facts of the case; that there is a delay in lodging the F.I.R. which is unexplained; that there is no independent evidence available on record about payment of any ransom money nor any such amount was recovered from the appellant's possession; that all the earlier proceedings under sections 87/88, Cr.P.C. whereby the appellant was declared as proclaimed offender were fake and fabricated; that the statement of a witness, namely, P.W.8 Mukhtar son of Rehmat Khan was recorded under section 161, Cr.P.C. with the delay of about six days hence has no evidentiary value. Learned counsel in this respect placed reliance on Muhammad Khan v. Maula Bakhsh and another (1998 SCM R 570); that no identification parade whatsoever was conducted by the Investigating Officer thus the identity of the appellant is in doubt; that the P.Ws. in their statements disclosed that they were pointed out the identity of the accused-appellant by the police; that all these aspects were not taken into consideration by the learned trial Court thus only on the basis of the statements of the interested witnesses the learned trial Court passed the conviction against the appellant vide impugned judgment which is not sustainable in the eye of law. While relying on Sahib Gul v. Ziarat Gul and others (1976 SCM R 236) and Syed Saeed Muhammad Shah and another v.. The State (1993 SCM R 550) prayed that as material contradictions and improvements were present in the statements of the witnesses the sentence passed against the appellant be set aside and he be acquitted of the charge.
9. On the other hand, learned Law Officer has vehemently opposed this appeal on the grounds that the delay in lodging the F.I.R. (Exh.PA) is explained by the complainant Muhammad Iqbal (P.W.6) in his statement as well as in the F.I.R. itself that he due to fear to the lives of the abductees Qaiser Iqbal and Muhammad Sarwar initially did not inform the police and subsequently when he got backed them after payment of ransom he lodged the report; that identity of the accused- appellant is clear from the statement of P.W.7 Qaiser Iqbal the alleged abductee as he remained in the captivity of the appellant where he had ample opportunity to see him; that the statements of the witnesses, are straightforward, convincing and non-recovery of any ransom in view of the facts and circumstances that the appellant remained absconder for more than six years is of no value rather an inference can be drawn against the appellant on the basis of said abscondence; that the prosecution was able to prove the charge against the appellant beyond any reasonable shadow of doubt. While relying on Muhammad Akbar v. The State (1998 SCM R 2538) learned Law Officer argued that in the circumstances no identification parade was required, therefore, the conviction passed against the appellant be maintained and the appeal filed. by the appellant be dismissed.
10.We have heard the learned counsel for the parties at length and perused the record with their able assistance.
11.Admittedly the F.I.R. (Exh.PA) was recorded on 18-9-1999 whereas according to P.W.6 Muhammad Iqbal, complainant the occurrence/abduction took place on 12-9-1999 at 8-30 p.m. As already mentioned that the complainant in the F.I.R. right from beginning stated that the accused- appellant Qaiser Hussain and his co-accused/convicts forcibly abducted his son Qaiser. Iqbal (P.W.7) and uncle Muhammad Sarwar from the house and when he enquired, they demanded ransom and then subsequently P.W.6 Muhammad Iqbal, complainant on 17-9-1999 went to nearby hilly area known as Tilla Hill and paid Rs,40,00,000 to the accused Qazafi and Qaiser Hussain, the present appellant. The complainant Muhammad Iqbal appeared as P.W.6 and he with full details narrated. The initial part of the occurrence when Qaiser Iqbal and Muhammad Sarwar were forcibly abducted by the appellant along,. with his co-accused and then he further furnished the 'complete details how and in which manner and from whom he managed ransom money i.e, Rs,40,00,000 and then he paid the same to the appellant. He was cross-examined at length but he remained consistent, on all material aspects of the case. He specifically gave explanation regarding delay in lodging the F.I.R. as he was threatened by the accused including the appellant that if he disclosed this fact to anyone specially the police the lives of the abductees will not remain safe thus his conduct for concealment of the facts from the police for 6-7 days till the safe arrival of the abductees is quite natural and justified.
12.Learned defence counsel during arguments pointed out the statement of P.W.8 Mukhtar son of Rehmat Khan one of the eyewitnesses in whose presence the abductees were forced by the accused including the present appellant to accompany them and he during cross-examination stated "I made statement before the police after about six days of the occurrence." Learned defence counsel has tried to draw an inference rather to get benefit in favour of the appellant that as it was a delayed statement recorded by the police under section 161, Cr.P.C., therefore, it has no value. No doubt in normal course after registration of an F.I.R. statement of a witness who has been shown as such in the initial report with the police if his statement is recorded with delay, an adverse inference is to be drawn and this statement to some extent becomes valueless but if the facts and circumstances of the present case are seen it is clear from the record as narrated above that occurrence took place on 12-9-1999 and F.I.R. was got recorded by P.W.6 Muhammad Iqbal, complainant on 18-9-1999 by explaining the delay of six days that due to fear of the accused/appellant as they threatened for dire consequences in case it was disclosed to the police and on the same day i.e, 18-9-1999 the statement of P.W.8 Mukhtar was also recorded by the police, therefore, this objection is without any substance. It is further to be clarified here that recording of statement of the P.W. with delay is not itself sufficient to discard its value, the circumstances make it so. If the statement is delayed due to certain ulterior motives like filling up certain lacunas in the prosecution version then it has become valueless and if circumstances justified then every statement recorded with delay is not to be discarded.
13.Next objection raised by the learned defence counsel was about the non-conducting of the identification parade of the accused/appellant. No doubt in cases in which identity of an accused is in doubt identification parade is a mechanism provided to rule out all possibilities of false implication of an innocent person in the commission of an offence and in those eventualities identification parade is must. Herein in this -case the name of the appellant was mentioned in the F.I.R. by P.W.6 Muhammad Iqbal, complainant corroborated by P.W.8 Mukhtar son of Rehmat Khan.
Moreover P.W.7 Qaiser Iqbal the abductee who remained in the captivity of the accused for about 5-6 days he had the: opportunity to see them and while appearing as a witness lie identified the appellant Qaiser Hussain in court. In these circumstances, no necessity arises for getting conducted any identification parade. In this respect reliance can be placed on a judgment passed by the Hon'ble Supreme Court of Pakistan in Muhammad Akbar v. The State (1998 SCM R 2538) wherein their Lordships while discussing all these aspects observed as under:-- "Accused was not previously known to the abductee, nor any motive was attributed to the abductee by the defence to implicate the accused falsely in the case---Abductee having had a good opportunity to see the accused regularly during his captivity, holding of identification test after a long delay could not render his evidence unreliable."
14.As far as non-recovery of any ransom money or any weapon of offence allegedly in possession of the appellant at the time of abduction are concerned it is admitted fact that the appellant remained as proclaimed offender for about six years, the recovery of ransom money and the weapon of offence used at that time in the circumstances do not arise.
15.Resultantly, while keeping in view the all material aspects of the case as discussed above the learned trial Court rightly passed the conviction and sentence against Qaiser Hussain alias Kashi alias Kashif,-appellant vide impugned judgment dated 30-11-2006 which is upheld.
16.In the light of the above, C.S.R. No,2 of 2009 is answered in AFFIRMATIVE and the death sentence awarded to Qaiser Hussain alias Kashi alias Kashif, appellant is CONFIRMED.