' SHAHID HAMEED DAR, J.---Muhammad Arshad, Khurshid Ahmad and Abdul Majeed-appellants were held guilty under section 365-A/34, P.P.C. And under section 7(e) of the Anti-Terrorism Act, 1997, by learned Judge, Anti-Terrorism Court No,II, Lahore, vide judgment dated 19-7-2010 and sentenced as under:-
(I) UNDER SECTION 365-A/34 P.P.C.:
(a) Muhammad Arshad-convict: to death, with forfeiture of his movable and immovable properties in favour of the State.
(b) Khurshid Ahmad and Abdul Majeed-convicts; to imprisonment for life each with forfeiture of their movable and immovable properties in favour of the State.
(II) UNDER SECTION 7(e) of ATA, 1997:
(a) Muhammad Arshad-convict: to death.
(b) Khurshid Ahmad and Abdul Majeed-convict: to imprisonment for life each.
' All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was, however, extended to Khurshid Ahmad and Abdul Majeed, convicts.
2. Muhammad Arshad-appellant by filing Criminal Appeal No,1243 of 2012, whereas Khurshid Ahmad and Abdul Majeed by filing Criminal Appeal No,2088 of 2010 have called in question their conviction and sentence under the impugned judgment. The learned trial Court has submitted reference under section 374, Cr.P.C. (C.S.R.No,55/T of 2010) for confirmation of the sentence of death of Muhammad Arshad-appellant. We propose to dispose of all these matters together through this single judgment.
3. The facts, as unfolded by Qaiser Mehmood-complainant (P.W.4) in his complaint (Exh.PA) are that he was an agriculturist and also ran the transport-business; he has four children; the elder daughter Mst.Shabeen Shehr, aged eight, was student of prep-class in the Girls Millat Islamia High School, Chah Road Singh, which was situated at a distance of two furlongs from his house; he would take to and bring her back from the school every day; on 17-2-2010, he went to Kasur in connection with his transport-business and on return to his house at 3.00 p.m., he learnt that his daughter had not returned after closure of her school at 2.00/2.30 p.m.; he started searching for her; he reached Chowk Bazaar Road Singh, where he met Noor Muhammad (P.W.2) and his father Master Muhammad Ramzan (P.W.3), who informed him that his missing daughter had been taken away by three armed young motorcyclists, including Abdul Majeed (appellant), riding Motorcycle No,GAK8057 along with an unknown person and Muhammad Arshad, accused (appellant), riding Motorcycle No,LEY-6826; it was Muhammad Arshad-accused (appellant), who lifted and made her sit in between Abdul Majeed and another on their motorcycle; the accused were armed with pistol .30-bore each, who threatened the people, if anyone drew near, they would kill him; Nock Muhammad and Master Muhammad Ramzan also raised alarm, which attracted many others to the spot; the accused drove away their motorcycles along with baby-girl Shabeen Shehr; he (complainant), joined by his relatives hectically searched for the kidnapped child and informed the police by making a telephone-call to Emergency-15, but to no avail. The complainant further contended in the F.I.R. That his business flourished by leaps and bounds in recent years, which caught many evil-eyes and due to this reason some criminals had abducted his minor daughter for ransom. The complainant came across Ghulam Abbas, SI at Adda Chah Road Singhwala, who reduced into writing complaint (Exh.PA), at 4.00 p.m., on 17-2-2010 and despatched it to the police station through Iftikhar Ahmad, constable, on the basis of which, Maqbool Ahmad, A.S.-I. (P.W.9) drew up formal F.I.R. (Exh.PA/1), at 4.25 p.m., the same day.
4. After registration of the case, Ghulam Abbas S.-I. (P.W.10) took over the investigation and immediately reached the venue of crime, inspected it and prepared visual site plan (Exh.PS); he recorded statements of the prosecution witnesses under section 161 Cr.P.C. And searched for the accused; on 19-2-2010, he recorded supplementary statement of the complainant whereby he nominated the unknown accused as Khurshid; at about 2.00 p.m., on 4-3-2010, when he along with his fellow police officials was present at Gagarr Chowk, the complainant informed him that the accused were present at an abandoned brick-kiln, where they had asked him to arrive at so as to receive the ransom amount of Rs,1,00,000; on receipt of this information, the Investigating Officer along with his companions reached the said brick-kiln, where Qaiser Mehmood-complainant passed on the ransom amount to the accused; the police-party encircled the accused, apprehended them and recovered the kidnapped-child and handed over her to her father, the complainant; on personal search of accused Arshad (appellant), ransom amount of Rs,50,000 consisting of ten currency notes of the denomination of Rs,5000 each (P1/1-10), a pistol .30-bore (P2) with ten live bullets (P11/1-10), Nokia mobile-phone-1208 (P3), charger-Nokia (P4) with lead (P5) and five tablets of Ativan-2mg (P6/1-5) were recovered, which were secured by the Investigating Officer vide memo Exh.PF, Exh.PG, Exh.PH, Exh.PJ & Exh.PK, respectively; motorcycle bearing Registration No,6826/LEY (P7) was also recovered at the instance of Muhammad Arshad (appellant), the same day, which was taken into possession by the Investigating Officer vide memo Exh.PL; the personal search of Abdul Majeed-accused (appellant) yielded ransom amount of Rs,25,000 consisting of five notes of the denomination of Rs,5000 each (P8/1-5), a 30-bore pistol (P9) along with eight live bullets (P10/1-8), Nokia-mobile (P12) with SIM (P13), motorcycle No,8057/GAK (P14), which were secured vide recovery memos Exh.PM, Exh.PN, Exh.PO & Exh.PP, respectively; the personal search of Khurshid Ahmad, accused/appellant resulted in recovery of ransom amount of Rs,25,000 consisting of five notes of the denomination of Rs,5000 each (P15/1-5) and a pistol .30-bore (P16) with seven live bullets (P17/1-7), which were seized vide recovery memos Exh.PQ and Exh.PR, respectively; all the recovery memos were attested by the same set of witnesses, i.e, Maqbool Ahmad A.S.-I.. (P.W.9) and Falak Sher A.S.-I. P.W. (not produced); Muhammad Arshad and Abdul Majeed, accused/appellants were sent to judicial lock up on 5-3- 010, whereas Khurshid Ahmad was sent to judicial lock up for test identification parade, which was held on 11-3-2010 under the supervision of Muhammad Sher Abbas, Civil Judge/ Judicial, Magistrate (P.W.6); on 16-3-2010, he recorded statement of Abdul Latif (P.W.7), the owner of Motorcycle No,LEY/6826; on completion of, investigation, he prepared challan under section 173, Cr.P.C. And submitted it before the Court for trial of the accused in accordance with law.
5. The appellants on indictment pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced ten witnesses, namely, Muhammad Younas 175/MHC (P.W.1), Noor Muhammad (P.W.2), Muhammad Ramzan (P.W.3), Qaiser Mehmoodcomplainant (P.W.4), Muhammad Iqbal 879/C (P.W.5), Muhammad Sher Abbas, Civil Judge/Magistrate First Class (P.W.6), Abdul Latif (P.W.7), Shabeen Shehrabductee (P.W.8), Maqbool Ahtnad A.S.-I. (P.W.9) and Ghulam Abbas S.I. (P.W.10). Thereafter, the appellants were examined under section 342, Cr,P.C., whereby they professed their absolute innocence in the matter and denied all the charges against them. They did not opt to depose under section 340(2), Cr.P.C. Nor they adduced any evidence in defence. The contentions adopted by them in reply to question as to why this case against them and why the PWs deposed against them, read as under:-
(I) MUHAMMAD ARSHAD: "I have been falsely implicated by the complainant on totally hearsay evidence. I have not committed any offence. The case has been registered due to grudge of property bargain as the same was being struck by me in favour of the complainant Qaiser. In order to avoid the commission of bargain, Qaiser has lodged the instant complaint falsely against me.
' No P.W. Has deposed regarding the alleged offence against me."
(II) ABDUL MAJEED: "Due to my relation with Arshad as a friend, the complainant has involved me in a false and fabricated case. I have committed no offence at all as stated in the F.I.R."
(III) KHURSHID AHMAD: "Due to my relation with Arshad as a friend, the complainant has involved me in a false and fabricated case. I have committed no offence at all as stated in the F. I . R. "
' The learned trial Judge on conclusion of the trial held them guilty of the offences charged and sentenced them as mentioned hereinabove.
6. Learned counsel for the appellants has submitted that there is no connecting evidence in respect of kidnapping of Shabeen Shehr (P.W.8) by the appellants; the contention of the complainant (P.W.4) regarding payment of the ransom amount, Rs,1,00,000 to the appellants for release of the kidnapped child is unbelievable and does not appeal to reason; the statements of the cornplainant (P.W.4) Shabeen Shehr (P.W.8), Noor Muhammad (P.W.2) and Muhammad Ramzan (P.W.3) materially contradict each other, therefore, conviction and sentence on a capital charge on the basis of discrepant evidence is not sustainable; the evidence of the star-witness, the kidnapped child (P.W.8) has virtually caused collapse of the prosecution case as she did not name the appellants, Khurshid Ahmad and Abdul Majeed in her testimony at all and her version regarding involvement of Muhammad Arshad-accused (appellant) is also discrepant and ambiguous, which renders no corroboration to the statement of the complainant (P.W.4); the recovery of the ransom amount at the instance of the appellants hardly connects them with the commission of offence as currency-notes involved were not tainted with any distinguishing marks; the evidence of recovery of cell-phones does not advance the prosecution case in any way, as the Investigating Officer failed to find any link between the cell-phones recovered from the accused and that of the complainant; the discrepancy-laden prosecution evidence has been misread and misunderstood by the learned trial court while passing the impugned judgment, which may be annulled and appellants may be acquitted of the charge.
7. Learned Deputy Prosecutor General Punjab while supporting the impugned judgment submits that the case of the accused falls within the definition of section 7(e) of the Anti-Terrorism Act, 1997 read with section 365-A P.P.C. As they kidnapped a baby-girl for ransom, which was virtually paid to them by the complainant to rescue his daughter; the statements of the complainant (P.W.4) and the kidnapped-child (P.W.8) are in line inter se, which connect the appellants with the commission of offence beyond any shadow of doubts; the recoveries of motorcycles, the ransom amount and the cell-phones from the appellants fully connect them with the offence charged; the kidnapped- child delivered a spontaneous and believable testimony during trial as P.W.8, which has been properly appraised and given importance by the learned trial court; the trivial contradictions in the testimonies of the witnesses hardly do any damage to the prosecution case, rather they lend a touch of spontaneity to it; lastly submits that the appellants have committed a heinous offence and they do not deserve any leniency.
8. We have heard at length the learned counsel for the parties and perused the record with their assistance. Qaiser Mehmood (P.W.4) is the complainant of this case, who cited the name of his father Master Muhammad Ramzan (P.W.3) and that of Noor Muhammad (P.W.2) in the F.I.R.
(Exh.PA/1) with the assertion that they were the eye-witnesses of kidnapping of his minor daughter Shabeen Shehr (P.W.8), aged eight, on 17-2-2010. He has also mentioned the registration numbers of the Motorcycles, GAK-8057 (P14) and LEY-6826 (P7), used by the accused/ appellants during the occurrence. The complainant admittedly is not the eyewitness of the kidnapping of his minor daughter (P.W.8). He, however, has claimed that he paid ransom amount of Rs,1,00,000 to the appellants on 4-3-2010 at a brick kiln , where police also reached in time and they apprehended the abductors red-handed and recovered from them not only the ransom amount but also the kidnapped child. There are certain other recoveries in this case, the evidentiary value whereof shall be discussed in the paragraphs to follow.
' There is another important piece of evidence in this case, which relates to the test-identification of Khurshid Ahmad accused/appellant, which was supervised by Muhammad Sher Abbas, Judicial Magistrate Section 30, Kasur (P.W.6). Barring the statements of the child-witness Shabeen Shehr (P.W.8), there are two other testimonies having been rendered by the eye-witnesses of her kidnapping, namely, Noor Muhammad (P.W.2) and Muhammad Ramzan (P.W.3), who is the grandfather of the victim. Surprisingly, both the eyewitnesses (P.W.2 and P.W.3) resiled from their previous statements while rendering testimonies before the trial court and they categorically stated that Shabeen Shehr had been kidnapped by some unknown persons. They were declared hostile and subjected to cross-examination by the learned public prosecutor but they emphatically denied to have made any statement before the Investigating Officer against Muhammad Arshad, Abdul Majeed and Khurshid Ahmad appellants in terms that they had kidnapped the minor daughter of the complainant. Both the prosecution witnesses dented the prosecution story further by stating that they had identified Khurshid Ahmad accused in District Jail, Kasur on 11-3-2010 on the asking of the police and that they had seen the said accused in the lock-up of police station A Theh Shekham earlier than the date of their test-identification, with the cooperation of the police. Muhammad Ramzan (P.W.3) further testified that he had not rendered any statement before the police on 21-2-2010 qua the fact that the accused had demanded ransom from the complainant for releasing his minor daughter, within his hearing. They (P.W.2 & P.W.3) categorically denied to have deposed falsely on account of having been won over by the accused. Both of them also denied the suggestion that the said accused had kidnapped baby Shabeen Shehr in their presence. They did not utter a word if they ever informed Qaiser Mehmood (complainant/P.W.4) about involvement of Khurshid accused in the occurrence. Their testimonies have been brushed aside by the learned trial court, as is manifest from the impugned judgment.
9. Qaiser Mehmood-complainant (P.W.4) has categorically admitted that his daughter had not been kidnapped in his presence. Baby Shabeen .Shehr was recorded by the learned trial court as P.W.8 after she prudently replied to a few questions put to her by the court. She in her statement- in-chief said that she was kidnapped by accused Arshad, who took her to a brick kiln and he put his hand on her mouth. While facing cross-examination, she rendered quite a few contradictory depositions which cannot be overlooked easily by assuming that she may have stated so out of innocence. She categorically stated that Arshad accused kidnapped her when she slept at her house; further said that she never slept at the brick kiln and that she never slept at a place outside her house; she always stayed with her parents at her house; no one else accompanied Arshad accused when he kidnapped her; Arshad accused administered to her sleeping pills during period of captivity and that she did not make any statement about the occurrence before the police. The aforementioned depositions of the child-witness are self-contradictory and hard to believe. If she had been kidnapped only by Arshad accused from her house, it should have been so alleged by the complainant in the F.I.R. She has not stated even a word that she had been kidnapped by the accused on way to her house from the school. She did not mention about the motorcycle(s) used in the occurrence. According to the prosecution's case, she was rescued from the clutches of the accused by the police, seventeen (17) days after her kidnapping but she categorically stated that she never slept at a place, other than her house. Her testimony does not provide any clue as to demand of ransom or its virtual payment by her father to the accused/appellants and her release as a matter of bargain, between them and her father nor she mentioned that she had been rescued by the police. Apparently there are many gaps and loopholes in her statement, which makes it very difficult for this court to rely on it. Once prosecution took risk of producing her at trial as a witness, they should bear the brunt of their ill-advised act. The innocence of the child-witness cannot be allowed to exceed limits so as to abridge the inconsistencies and pitfalls, caused by her in the case. Her testimony as a prosecution witness has changed the tenor of F.I.R. And if both kept in juxtaposition inter se, they would appear to have annulled each other, to the detriment of the prosecution's case.
10. It transpires from the statement of Qaiser Mehmood-complainant (P.W.4) that the accused demanded ransom amount of Rs,10,00,000 from him for the first time on 21-2-2010, which was finally settled between them at Rs,1,00,000. He through the courtesy of the defence, introduced the factum of some telephone-calls, having been made by the accused, but he failed to identify their SIM-nurnber(s) in his testimony. He contended to have received seven/eight telephone calls from them before the recovery of his kidnapped child on 4-3-2010 but his memory failed, as he made an attempt to recollect their phone numbers. The Investigating Officers Maqbool Ahmad SI (P.W.9) and Ghulam Abbas S.I. (P.W.10) could not collect any call-details-record (CDR) of the cell-phones of the accused or that of the cell-phone of the complainant during investigation. The prosecution produced no evidence regarding telephone linkage between the accused and the complainant at any stage. This particular part of the statement of the complainant for want of corroboration cannot be relied on.
11. The crucial aspect of the prosecution case relates to payment of the ransom amount, Rs,1,00,000 by the complainant (P.W.4) on 4-3-2010 to the accused and recovery of his kidnapped daughter from the captivity of the accused, the same day. We come across the statements of Qaiser Mehmood-complainant (P.W.4), Shabeen Shehr (P.W.8), Maqbool Ahmad, S.I. (P.W.9) and Ghulam Abbas SI (P.W.10) in this respect. The complainant has asserted in his testimony that he informed the police before taking a decision to pay the ransom amount, Rs,1,00,000 to the accused on 4-3- 2010, which fact is also admitted by the Investigating Officers (P.W.9 & P.W.10). The complainant fetched twenty currency notes, bearing the denomination of Rs,5000 each with him, so as to deliver it to the accused. As per demand of the accused, he was supposed to pay the ransom amount to them at an abandoned brick kiln, which was a few kilometers away from his residence. The police party arrived at the brick kiln almost at the same time when complainant reached there. This is, what can be found from the testimonies of Maqbool Ahmad S.I. (P.W.9) and Ghulam Abbas S.I.
(P.W.10). The currency notes were not tainted with any distinguishing mark(s). Muhammad Arshad accused received the ransom amount from the complainant and on receiving it, he distributed Rs,25000 each to Abdul Majeed and Khurshid Ahmad accused by retaining Rs,50000 with him. The complainant has not pointed out in his testimony whether his abducted daughter was in the grip of the accused at that time nor he has specified the place or corner of the brick kiln wherefrom she was recovered by the police. The receipt of ransom amount by the accused in aforesaid fashion has also been deposed about by the Investigating Officers but not the kidnapped child (P.W.8), who has said nothing in her testimony in this regard. The complainant recorded an interesting answer in his testimony, "when I paid ransom money to the accused persons and they handed over my daughter to me, police reached there." He also deposed that "deserted brick kiln of Jahangir Dogar where the accused handed over my daughter to me after receipt of ransom money is at a distance of about 8 k. m. From my village Teekhanwali." He further contended that "after the demand made by accused Arshad of ransom, I first time met him at the brick kiln where after receiving the ransom money accused handed my daughter over to me". He, however, deposed in his statement-in-chief that it was the police who recovered the kidnapped child from the accused. Maqbool Ahmad SI/IO (P.W.9) did not say a word in his examination-in-chief qua the recovery of the kidnapped child by the police from the accused and even in his cross-examination, conducted in a mindless way by the defence, he failed to bring it on the record that the police effected the recovery of the kidnapped child. Ghulam Abbas SI/IO (P.W.10), however, stated in his testimony that the police encircled the accused, apprehended them and got released the minor before handing over to her father. The complainant has not stated anywhere in his testimony that he saw his daughter Shabeen Shehr (P.W.8) in the company/grip of the accused when he went to the brick kiln to pay the ransom amount, and so is the tenor of the testimony of Maqbool Ahmad SI/IO (P.W.9). One gets the impression from the statement of the complainant that his daughter may not have been at the place where he paid the ransom amount to the accused and she might have been delivered to him at a later stage. Shabeen Shehr (P.W.8) kept silent about payment of ransom-money by her father to accused Arshad and she did not utter a word as to arrival of the police at the brick kiln or any role having been played by them in her recovery before she met her father. She is undoubtedly the star witness of the prosecution case. Her statement suffers from inherent contradictions and a number of loopholes. It also stands contradicted by her real grandfather Muhammad Ramzan (P.W.3) and Noor Muhammad (P.W.2). The events of 4-3-2010 have been narrated contradictorily by Qaiser Mehmoodcomplainant (P.W.4), Shabeen Shehr (P.W.8), Maqbool Ahmad S.I. (P.W.9) and Ghulam Abbas S.I. (P.W.10), which renders the story of payment of ransom by the complainant to the accused and recovery of the kidnapped child from them unbelievable. The distribution of the ransom amount amongst themselves by the accused at the spot looks unnatural and hard to digest. It appears that a fake event has been fabricated by the prosecution to implicate all three accused/appellants and in their bid to do so they cast thick shadows of doubt over their own case. The testimonies of the prosecution witnesses do not inspire confidence and despite raw-handling of the case by the defence during trial, they look unworthy of reliance and credibility. The testimonies of the complainant (P.W.4), the kidnapped child (P.W.8) and those of the Investigating Officers (P.W.9 and P.W.10) owing to inherent contradictions, inconsistencies and ingrained discrepancies cannot be held creditworthy or worth reliance, hence, stand discarded.
12. There, we find another important but faulty piece of evidence, which relates to test identification of accused Khurshid Ahmad (appellant), which has been tendered by Muhammad Sher Abbas, learned Judicial Magistrate Section 30, Kasur (P.W.6), who submitted his report Exh.PD along with letter Exh.PE of the learned District and Sessions Judge, Kasur. Astonishingly, this witness said nothing to prove identification of the said accused in jail and the methods adopted except for submitting report Exh.PD and letter Exh.PE in evidence. One cannot understand the strategy of the prosecution to have examined P.W.6 in aforesaid fashion, as it was not only contrary to law but violated the elementary principles of evidence. Even if the exhibits in question were to be accepted as proper record of the witness's evidence, it would not materially assist the prosecution-case. In an identical situation, a Division Bench of this Court while dealing with the case of Lal Singh accused/appellant (ILR 1924 (Vol.V) Lahore 396) observed as under:-- "Mr. Phalibus, a Magistrate of Montgomery, was called to prove the identification in the Montgomery Jail and the methods adopted. Instead, however, of stating in Court the details and the results, he merely refers to certain documents which are described as exhibits, in which he states that his evidence is to be found. These documents are put on the record as his evidence. It is quite obvious that the procedure adopted in this matter offends against the most elementary principles of evidence, and Mr. Sawhney can only attempt to justify it by saying, that it was done to save time. This is obviously no excuse for an attempt to record the evidence of a witness in a manner which is not only contrary to law but which violates the first principles of evidence. There is no doubt that it would shorten the labours of a trial Judge if he were to be permitted to record written statements of witnesses in the form of exhibits by the mere production of the witnesses and their testimony that the exhibits embody the details of their evidence. But any person with any knowledge of and regard for judicial procedure should know that such a method of recording testimony would if applied to all the witnesses reduce the trial to a mere travesty."
' The learned Bench went on to observe.--- "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know' that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused. Person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was . In a position to show that he knew a certain accused pePson by sight."
' The evidence given by the learned Magistrate. (P.W.6) does no good and remains inconsequential to the prosecution-case.'
13. Insofar as the recovery of ransom amount of Rs,1,00,000 (Rs,50,000 (P1/1-10) from Arshad- appellant and Rs,25,000 each (P8/1-5 & P15/1-5) from Abdul Majeed and Khurshid Ahmadappellants), pistols (P2, P9 & P16), motorcycles (P7 & P14), mobile-phones (P3 & P 12), charger-Nokia (P4) with lead (P5), five tablets of Ativan (P6/1-5) and other articles, at the instance of the appellants, mentioned hereinabove, are concerned, it has lost relevance/ importance in view of the evidence, as tendered by P.W.4, P.W.8, P.W.9 and P.W.10 having been rejected and disbelieved by us, in preceding paragraphs. There hardly exists any such evidence on the record, which may connect the appellants with the commission of the crime alleged. It appears to be a badly investigated case, which shows mindlessness and incompetence of the Investigating Officers, whose clumsy and blundering approach has virtually cost the prosecution their case.
14. On the whole of the evidence, we are unable to come to the conclusion that the participation of the appellants in the crime in question has been established beyond a reasonable doubt. We, therefore, accept these appeals, set aside the conviction/sentence recorded against them by the learned trial court and acquit them of all the charges. They be released forthwith, if not required in any other case.
15. Death sentence awarded to Muhammad Arshad-appellant is NOT confirmed and Capital Sentence Reference is answered in the negative.