Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No, 1548 of 2011 filed by Muhammad Asif and Criminal Appeal No, 1545 of 2011 filed by Razzaq alias Jaku, appellants (against their convictions) and C.S.R No, 38-T of 2011 sent by the learned trial Court for confirmation of the death sentences of appellants Muhammad Asif and Razzaq alias Jaku or otherwise as all the above stated matters have arisen out of the same judgment dated 03.10.2011 passed by learned Judge Anti-Terrorism Court No, W, Lahore, according to which both the present appellants/convicts were convicted and sentenced as under:-- "under Section 365-A, PPC and sentenced to death and their moveable and immoveable property was ordered to be forfeited to the tune of Rs, 3,00,000/-. under Section 7(e) of ATA 1997 and sentenced to death and their property was ordered to be forfeited to the tune of Rs, 3',00,000/- ' by the learned trial Court in case FIR No, 768 dated 10.12.2010 under Section 365-A, PPC and under Section 7(e) of ATA 1997 Police Station, A-Division, Kasur.
2. The facts of the case have been stated by Muhammad Usman Nadeem complainant/PW-2 real father of Ahsan Ali abductee PW-3 in his statement before the learned trial Court and same statement is hereby reproduced for narration of the facts:-- "On 09.12.2010 at about 6:30 p.m. My son Ahsan Ali aged about 7 years went to purchase some articles from a shop in front of my house but did not return. After some time, I got worried. I searched my son from my neighbors and relatives. Till 12 at night, I could not get any clue about my son. Then I reported the matter to police about missing of my chat At Fajr time, I received a missed call on my Cell No, 03219432065 from Cell No, 0312-4132534. The caller said to me that my son was with him and he had abducted him for ransom. He demanded Rs, 50 lac as ransom. I told him that I had no sufficient sources. Before that Khalil Ahmad and Shan Elahi met me and told that they had seen my son on a motorcycle with two boys who were going from Shehbaz Road to Kashmir Chowk. After meeting many telephonic calls and conversation, the amount of ransom was settled as Rs, 10 lac. Before settlement of Rs, 10 lac, I along with Khalil Ahmad and Shan Elahi went to Police Station and got registered FIR Exh.PA/1. My complaint is Exh.PA. It is signed by me. I tried to manage Rs, 10 lac. I put my signatures on two sides of six notes of Rs, 1000/- denomination each I also got their photocopies. The original notes were given to the police. (Falak Sher ASI presented original six notes. Its photocopies are available on record). These notes are Exh.P1/1-6. Thereafter, I managed Rs, 10 lac. I contacted the accused persons present in the Court. The accused facing trial directed me to reach at Round About of Steel Bagh near DHQ Hospital, Kasur along with Rs, 10 lac. They also directed me not to disclose the matter to any other. They also threatened me of serious consequences to life of my son. I disclosed to them that it was not possible for me to come alone. I also informed that I will reach at the appointed with Shan Elahi PW. I along with Shan Elahi reached at the fixed place at about 10:30 p.m. I put amount of Rs, 10 lac in a black colour canvas bag. After reaching the fixed place mentioned above, I again contacted the accused. They said that there was a great rush at that place, I should reach Kamal Chishti Morre. I again contacted accused through mobile. The accused directed me to come to Ganda Singh Wala Road. I and my companion went towards Ganda Singh Wala Road. Again on my contact, the accused directed me to reach at Potato Cold Storage. I again contacted them. They directed me to alight from the car, move towards "Kacha Passage". I told to him that I will not come out from the vehicle. I took a turn from Adda Maan and reached to opposite side of aforementioned cold storage. I again contacted them through mobile. The accused directed me to wait for some time. After waiting for about 10 minutes, two persons, accused present in the Court, came towards my car. I opened the windows of my car and handed them over the bag containing amount. They saw the amount in the bag in the light of my vehicle. I requested them to return my child as they had already received the ransom amount. They asked me to come to Darbar of Baba Kamal Chishti where two boys will hand over me my child. I and Shan Elahi went to that place but my son was not there. I again contacted the accused who asked me to wait for some time. I contacted them twice or thrice.
Lastly, they told me that my son was standing at Agro Mall Petrol Pump. I and my companion went to that place and found that my son was standing there. We took him back to home.
' Next day police came to my house and recorded my statement as well as statements of other witnesses including my son. On 14.12.2010 I and my companion Shan Elahi went to Caltex Petrol Pump at Morre Kamal Chishti. Both the accused present in the Court were shaking hand with one person. The name of that person was Muhammad Afzal son of Muhammad Ashraf. Both of us alighted from our car. The accused present in the Court, when saw us started running away on motorcycle. The accused slipped away but the person with whom they had shacked hand was apprehended by us. We inquired his name. He told that he was Muhammad Afzal son of Ashraf. He disclosed to me the names and parentage of the accused present in the Court. I stated the names of accused before the police. He had also told me about the correct address of the accused. On my request, Muhammad Afzal appeared before police for his statement. I also nominated the 'accused present in the Court through written application dated 14.12.2010 Exh.PB. It is signed by me.
On 10.01.2011, the police intimated me that the accused had been arrested and sent to jail. The police directed me to come to jail for identification parade. On 11.01.2011, I and Shan Elahi and Khalil Ahmad participated in the identification parade and, duly identified the accused present in the Court.
' On 04.02.2011 police directed me to identify the bag wherein ransom amount was given to the accused. Bag is P2. Six notes duly signed by me of Rs, 1000/- denomination each, P. 1/1-6 were also identified by me. Regarding the bag and currency notes, memo. Exh.PC was prepared which was signed by me and other PW."
3. After registration of the case, investigation started and on completion of the investigation report under Section 173, Cr.P.C. Was submitted in the trial Court.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 31.03.2011 against the present appellants/convicts stated above under Sections 365-A/34, PPC and under Section 7(e) of ATA 1997 read with Section 34, PPC to which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Falak Sher ASI as PW-1, Muhammad Usman complainant PW-2, Ahsan Ali PW-3, Shan Elahi PW-4, Khalil Ahmad PW-5, Muhammad Afzal PW-6, Rana Muhammad Ilyas Bashir PW-7, Muhammad Muzaffar SI PW-8, Muazzam Ali Inspector/SHO PW-9 whereas PW Khursheed Ahmad SI was given up by the prosecution being unnecessary and tendered in evidence complaint Ex.PA, FIR Ex.PB, memo. Of identification of currency noes Ex.PC, recovery memo. Of Rs, 5,25,000/- Ex.PD, recovery memo. Of Rs, 3,05,000/- Ex.PE, recovery memo. Of Rs, 1,40,000/-Ex.PF, recovery memo. Of motorcycle Ex.PG, recovery memo. Of pistol .30-bore Ex.PH, recovery memo. Of pistol '180-bore Ex.PJ, application to appoint the date for identification parade Ex.PK copy of proceedings of identification parade Ex. PL, site-plan Ex.PM, site-plan of place of recovery of amount Ex.PN, site-plan Ex.PO and closed the prosecution evidence.
6. On the other hand, statements of present appellants Muhammad Asif and Razzaq alias Jaku were recorded under Section 342, Cr.P.C. Who refuted the allegations so leveled against them and both the present appellants have not opted to appear as a witness under Section 340(2), Cr.P.C.
However, Muhammad Asif appellant did not produced any defence evidence whereas Razzaq alias Jaku produced in oral defence evidence Mustafa Kaleem as DW-1 and Rehmat Ali DW-2 and also produced in documentary evidence documents i,e, Ex.DA and Ex.DB. In reply to question "why this case against you and why the PWs deposed against you?" the appellant Muhammad Asif replied as under:-- "All private witnesses are close relative of the complainant and rest of the witnesses are deposed being subordinate police official of the Investigation Officer.
' Reasons of the involvement in this case is that I was working as employee in the factory of the complainant. The complainant did not paid Regular salary of five month to me and on the demand of said salary, complainant threatened to me of dire consequences and also refused to make payment of salary. Whereupon, I along with the help of some other employees/union members jointly demanded for salary. Two days and before two months of lodging of this alleged. FIR complainant had a fight with me and under the grudge of that incidents the complainant with mala fide intention illegally and unlawfully involved me in the instant case.
' All the story of the alleged FIR is fabrication and unbelievable because I arn innocent and poor citizen of this country. All the allegation and role attribution is fake, false and incorrect. All recoveries are fake, police planted recoveries against me. I did not received any ransom amount recovered from me. The PWs are all interest witnesses and close relatives of the complainant. I have no any previous criminal history and I am previous no convict or not record holder"
' Likewise, in reply to a question "why this case against you and why the PWs deposed against you?" the appellant Razzaq alias Jaku replied as under: "All private witnesses are close relative of the complainant and rests of the witnesses are deposed against subordinate police official of the Investigation Officer.
' I am a poor man. I have no concern with accused. I have never been working with co-accused or Afzal PW in Irfan Textile Mills Feroz Pur Road, Lahore. I do not any of them in any way. The complainant has got me involved intentionally in this case. I had not done any such occurrence.
My family members are never involved in any criminal case including me. My brother Sajjad runs the business of fish in Mustafa Abad Tehsil & District Kasur and has a big fish shop at Mustafa Abad Bazar. We three brothers work together at this shop. I did not receive any ransom amount from complainant neither any ransom amount was recovered from. The police planted fake recoveries against me in connivance with the complainant. The police kept my parents, my married sister and my brothers into custody illegally. My brothers and sisters filed writ petitions into different Courts against the SHO of Police Station A-Division Kasur.
' The complainant got all these fake proceedings done against me due to anguish of mine that I misbehave (CHER CHAR) with the complainant wife openly in Kasur Bazaar 2/3 days prior to this case. The complainant had threatened me of revenge. The complainant is an influential and well of man in the society who have registered the fake case against me through conspiracy with the police. I am innocent in this case.
' PW Usman is co-partners of the complainant and PW Khalil is (BEHNOI) of complainant. All private witnesses are close relative of the complainant and rest of the witnesses are deposed being subordinate police official of the Investigation Officer."
7. After conclusion of the trial, learned trial Court convicted the present appellants Muhammad Asif and Razzaq alias Jaku with above stated sentences through judgment dated 03.10.2011. Hence these two appeals.
8. Learned counsel for the appellants contended that:--
(i) the judgment of the trial Court dated 03.10.2011 is against law and facts on the file and is liable to be set-aside.
(ii) that the prosecution has failed to prove its case against the present appellants as there are many major discrepancies in the statements of the PWs and . The learned trial Court has convicted the appellants on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial Court is not maintainable in the eyes of law;
(iv) Identification parade is not in accordance with law and is liable to be set-aside;
(v) lastly submitted that appeal may be accepted and the judgment of the trial Court dated 03.10.2011 may kindly be set aside and appellants may be acquitted.
9. On the other hand, learned APG has vehemently opposed the appeal and submitted that:--
(i) prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present appeal.
10. We have heard the learned counsel for the parties and perused the record.
11. The detail of prosecution case as given by Muhammad Usman complainant PW-2 real father of Ahsan Ali abductee PW-3 has already been given in Paragraph No, 2 of this judgment; therefore, there is no need to repeat the same to avoid the repetition and duplication.
12. Abductee of this case is Ahsan Ali PW-3 aged about 7-7/1-2 years, student of Golden Two, Munir Shahid Colony, Kasur real son of Muhammad Usman complainant PW-2 who remained under the custody of abductors/present, appellants from 9.12.2010 to 10.12.2010 and was released on 10.12.2010 by the abductors after receiving ransom amount Rs, 10,00,000/- from Muhammad Usman real father of abductee Ahsan Ali PW-3.
13. The case of the prosecution is based on following evidence:--
(i) Statement of abductee Ahsan All aged about 7-7-1/2 years student of Golden Two, Munir Shahid Colony, Kasur who has identified present appellants during his statement before the Court.
(ii) Last seen evidence furnished by Shan Elahi PW-3, Khalil Ahmad PW-5.
(iii) Identification Parade.
(iv) Evidence of handing over of ransom amount Rs, 10,00,000/- to present two appellants furnished by Muhammad Usman PW-2 and Shan Elahi PW-4.
(v) Evidence of recovery of Ransom amount and other articles i,e, Motorcycle and pistols furnished by Shan Elahi PW-4 and Muazzam Ali PW-9 (I.0 of this case)
14. Now we take up above stated pieces of evidence turn by turn.
(i) Statement of ahductee Ahsan All aged about 7-7-1/2 years student of Golden Two Munir Shahid Colony, Kasur who also identified present appellants during his statement before the Court.
15. Abductee Ahsan All PW-3 stated in his statement before the trial Court as under:-- "I was coming back to home after purchasing sweets. Two persons on motorcycle got me boarded and forcibly took away. Both those persons are present in the Court. (The boy pointed out with finger the presence of both the accused who are present in the Court). The accused took me to the house of Asif. Who is the resident of Manawala. They made me drink sedative milk and I slept. Next morning they brought me on line with my parents. The accused present in the Court forced me to talk to my parents and apprised them to pay ransom failing which they will kill me. In the afternoon they forced me to smoke. I remained present at the home of Asif. In the night the accused facing trial left me at Agro Mall petrol pump where from I was taken back my father.
16. (ii) Last seen evidence furnishes by Shan Elahi PW-4 and Khalil Ahmad PW-5.
' Shan Elahi PW-4 and Khalil Ahmad PW-5 both stated that on.
9.12.2010 at 06:45 pm they were standing outside the shop of Al-Hafiz food corner at main Shehbaz Road and saw that two persons on a motorcycle were taking away the child Ahsan Ali (abductee PW-3). They also identified present two appellants during their statements before the trial Court.
They had also identified present two appellants on 11.1.2011 in the proceedings of the identification parade held in District Jail, Kasur under the supervision of Rana Muhammad Ilyas Bashir Judicial Magistrate PW-7.
17. (iii) Identification Parade.
' Muazzam Ali inspector/SHO PW-9 I.0 of this case stated that on 19.12.2010 he arrested Muhammad Asif present appellant and sent him to judicial lockup on the second day i,e, 20.12.2010 for the identification parade and on 10.01.2011 he arrested Razzaq alias Jaku present appellant and on the same day sent him to judicial lock for identification parade.
18. Muhammad Usman complainant PW-2 and Shan Elahi PW-4 stated before the trial Court that they had identified present two appellants on 11.1.2011 during proceedings of the identification parade held in District Jail, Kasur under the supervision of Rana Muhammad Ilyas Bashir Judicial Magistrate PW-7. These two witnesses also identified present two appellant during their statements before the trial Court.
19. Muhammad Afzal PW-6 stated that on 14.12.2011 at 10/11:00 a.m. He was present at Petrol Pump near Baba Kamal Chishti to get petrol for his motorcycle. Meanwhile, both the accused present in Court came there to get petrol for their motorcycle. Both of them were previously known to him.
Muhammad Usman complainant PW-2 and Shan Elahi PW-4 were also standing at the petrol pump to get petrol for their Car. Present appellants after seeing Muhammad Usman and Shan Elahi stated above quickly slipped away upon which Muhammad Usman and Shan Elahi inquired from him about the accused persons and he disclosed their names to the witnesses stated above.
Muhammad Usman complainant PW-2, Shan Elahi PW-4 and Khalil Ahmad PW-5 correctly identified present two appellants in the proceedings of the identification parade mentioned above.
Although Rana Muhammad Ilyas Bashir judicial magistrate PW-7 stated that during the proceedings of identification parade present appellants had raised objection stating therein that they were shown to the witnesses when they were in-police custody. This is the usual defence plea which an accused always takes to challenge the veracity of the identification parade. In the instant case we find that the afore-referred plea remained merely an allegation and was not supported by any material on record. Reliance is placed on case Ghazanfar Ali alias Pappu and another v. The State etc. (PLJ 2012 SC 213). Even otherwise, the holding of identification parade is not mandatory and it is merely a corroborative piece of evidence. If the statement of a witness qua the identity of an accused even in Court inspires confidence, if he is consistent on all material aspects and there is nothing in evidence to suggest that he is deposing falsely. Ahsan All abductee PW-3, Muhammad Usman complainant PW-2, Shan Elahi PW-4 and Khalil Ahmad PW-5 have also identified present two appellants during their statements before the trial Court. They were cross- examined at length but their evidence could not be shaken during the process of cross- examination. They corroborated each other on all material aspects of the case. Their evidence is trust worthy, straight forward and confidence inspiring. In Harbajan Singh vs. State of Jammu and Kashmir ((1975) 4 Supreme Court Cases 480), the Court upheld the conviction where no identification parade had been held and observed that the failure to hold identification parade would not be fatal in cases where enough corroborative and conclusive evidence was available. A similar view was taken in Jadunath Singh vs. State of U.P ((1970) 3 Supreme Court Cases 518).
Further reliance is placed on case Muneer Ahmad and another v. The State (1998 SCM R 752) in which Hon'ble Supreme Court of Pakistan has observed at pages 757, 758 and 759 as under:-- "It may be observed that in this case an identification parade we held in which the eye-witnesses identified the two appellants as the culprits, but it has also come on record that, before the identification test, the eye-witnesses had seen the appellants at the Police Station. The trial Court as well as the High Court, in the circumstances, did not place any reliance on the identification test.
In our view, in the present case, there was no necessity of holding the identification test as the facts show that the abductee as well as the other two witnesses had ample opportunity to see the culprits. As regards the abductee, Abdul Ghani, the evidence is that he remained in the custody of the abductors for over a month and, therefore, came to know the abductors very well. The other two eye-witnesses, namely, Dhani Bux and Mushtaque also had several opportunities of seeing the appellants and, therefore, in their case also it can be said without any doubt that they came to know of their identity.
'Reference can be made with advantage to two earlier decision of this Court. In the case of State v.
Farman Hussain (PLD 1995 SC 1), it was observed that a distinction is to be made between a case in which the witness had had only a fleeing glimpse of the accused who happened to be strangers and a witness who had known the accused previously or who had met the accused several time. In the former case, it was observed, the Court insists upon having appropriate identification parade whereas in the latter case, the identification parade can be dispensed with as the witness can identify the accused even in the Court.
' In the case of Zakir Khan v. State (1995 SCM R 1793), which was also a case of kidnapping, it was held that where the abductee remained with the accused abductors during the captivity and had clearly seen their faces holding of an identification parade was not a mandatory requirement. It was observed as follows: "That question as to the identification of the accused in a case of kidnapping by the kidnapee who had seen the accused for the first time, who had not been known to him previously, was examined in detail in State v. Farman Hussain (PLD 1995 SC 1). By a majority view, as per the observations made by one of us (Ajmal Mian, J), a clear distinction was drawn between the circumstances where the witness only gets a glimpse of the accused who happened to be a stranger to him and where although the witness had met the accused for the first time but he had seen him several times. It was held in the latter case the necessity of holding an identification parade could be dispensed with and the accused could even be identified in the Court for the first time. In the present case the kidnapee had remained with the accused sufficiently long not only to identify them by their faces but to identify them even by their names. This is not a case where a witness had only gotten a glimpse of the accused but in this case, admittedly he had remained with them during his captivity and had clearly seen their faces. Therefore, in our opinion, holding of an identification parade was not a mandatory requirement in the present case."
' As observed earlier, in the present case, there was no necessity of holding of identification parade and the prosecution case is not prejudiced by the fact that an irregular identification parade was held for identification of the appellants. The holding of the identification parade, which was found to be invalid, does not affect the testimony of the eyewitnesses who identified the appellants in Court during the trial.
' In the facts of this case, the contention that there was no explanation about how the police got the clue that the appellants were culprits and were, therefore, apprehended is of no consequence. It has been found, both by the trial Court as well as the High Court, that none of the three eye- witnesses had any enmity with the appellants and had no reason to involve them falsely. The plea advanced on behalf of the appellants that there was some dispute over a plot of land between Mashooque and Dhani Bux has been rightly ignored by the Courts below us, apart from a general statement to that effect, no details whatsoever about the identity of the property and the dispute were brought oil record through the statements of the accused, evidence of the defence witnesses or through cross-examination of the eye-witnesses. The clear evidence of the three eye-witnesses including abductee Abdul Ghani, who had remained in the custody of the abductors for over a month, established the guilt of the appellants and even if there was no definite explanation on record as to how and when the police got the information or the clue about the two appellants being involved in the kidnapping, such unbiased testimony was not liable to be rejected specially for the reason that there was no animosity between the parties and there was no reason for false implication of the appellants by the three eye-witnesses.
' The other contention advanced by Mr. Samdani is that in the FIR, the appellants were described as 'unknown persons' by the complainant, Dhani Bux. In this evidence before the trial Court, he stated that accused' Muneer resides in Gajarpur Mohallah whereas accused Mashooque resides in Boder Road Mohallah of Larkana Town, and that he knew both the appellants by fact. Admittedly, the complainant did not know the names of the appellants. He might have seen them previously in Larkana. He might have come to know later on that the two appellants were residents of different Mohallas of Larkana. But the mere fact that the two appellants were described as "unknown persons" in the FIR does not create a dent in the prosecution case calling for acquittal of the appellants. Additionally, it may be observed that, apart from complainant Dhani Bux, the evidence of the other two witnesses including abductee Abdul. Ghani who remained in the custody of the abductors for over a month, had proved the guilt of the appellants.
20. (iv) Evidence of handing over of ransom amount Rs, 10,00.000/- to present two appellants furnished by Muhammad Usman PW-2 and Shan Elahi PW-4.
' Muhammad Usman complainant PW-2 stated in his statement before the trial Court that after receiving many telephonic calls and during conversation, the amount of ransom was settled as Rs, 10,00,000/-. Before settlement of Rs, 10,00,000/- he along with Khalil Ahmad PW-5 and Shan Elahi PW-4 went to the Police Station and got registered FIR Ex.PA/1 on his written application Ex.PA.
Muhammad Usman complainant. PW-2 and Shan Elahi PW-4 both stated that on 10.12.2010 at 10:30 p.m they handed over ransom amount Rs, 10,00,000/- contained in a black bag to abductors/present appellants at appointed place i,e, Ganda Singh Wala Road, near Potato store.
21. (Sic)
22. (v) Evidence of recovery of Ransom amount and other articles i,e, Motorcycle and pistols furnished by Shan Elahi PW-4 and Muazzam Ali PW-9 (I.0 of this case)
' Muazzam Ali Inspector/SHO/I.0 of this case PW-9 stated that on 26.1.2011 Muhammad Asif appellant during interrogation disclosed and led to the recovery of ransom amount Rs, 5,25,000/-, 300 notes of denomination of Rs, 1,000/- each P-3/1-300, 20 notes of denomination of Rs, 5,000/- each P-4/1-20, 250 notes of denomination of Rs, 500/-each P-5/1-250 along with mobile set P-6 and Sims P-7 from a trunk lying in his residential house which were taken into possession through recovery memo. Ex.PD attested by Shan Elahi PW-4 . He further stated that Razzaq alias Jaku present appellant disclosed and led to the recovery of ransom amount Rs, 3,05,000/- lying in a trunk from his residential house which was taken into possession through recovery memo. Ex.PE. He further stated that on 2.2.2011 Muhammad Asif present appellant during interrogation disclosed and led to the recovery of the pistol P-9 from the trunk lying in the room of his residential house which was taken into possession through recovery memo. Ex.PH. He further stated that Muhammad Asif also got recovered motorcycle which was also taken into possession through recovery memo.
Ex.PG. He further stated that on the same day Razzaq alias Jaku present appellant disclosed and led to the recovery of pistol P-10 along with six live bullets P-11/1-6 which were taken into possession through recovery memo. Ex.PJ attested by Shan Elahi PW4. He further stated that on the same day Razzaq alias Jaku present appellant disclosed and led to the recovery of ransom amount Rs, 1,40,000/- from, his house which was taken into possession through recovery memo. Ex.PF attested by Shan Elahi PW-4. He further stated that on 4.2.2011 complainant Muhammad Usman PW-2 also identified black bag at the Police Station in which ransom amount was given to present appellants by the complainant on 10.12.2010 as discussed earlier. Shan Elahi PW-4 has supported the above mentioned recoveries in his statement before the trial Court.
23. All the witnesses Muhammad Usman complainant PW-2, Ahsan Ali abductee PW-3, Shan Elahi PW-4, Khalil Ahmad PW-5 and Muhammad Afzal PW-6 were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated each other on all material aspects of the case. They had no grudge, or ulterior motive to falsely implicate the present two appellants in an abduction. Their evidence is trust worthy and straight forward. If they had any grudge or ill-will to falsely implicate the present two appellants, they could have nominated present two appellants in the FIR. Almost whole ransom amount has been recovered from the possession of present two appellants and they did not claim the same to be their own in their statements recorded under Section 342, Cr.P.C. It is not believable that huge amount could be planted upon the present appellants by the police having no grudge, ill-will or ulterior motive to falsely implicate them in an abduction case of Ahsan Ali PW-3 aged about 7-7-1/2 years who also deposed against present two appellants. The story of the prosecution is quite natural and we do not find any discrepancy in the statements of PWs stated above.
24. Adverting to defence plea of present two appellants, Muhammad Asif appellant/convict stated in his statement under Section 342, Cr.P.C. In reply to question "why this case against you and why the PWs deposed against you?" as under:-- "All private witnesses are close relative of the complainant and rest of the witnesses are deposed being subordinate police official of the Investigation Officer.
' Reasons of the involvement in this case is that I was working as employee in the factory of the complainant. The complainant did not paid Regular salary of five month to me and on the demand of said salary, complainant threatened to me of dire consequences and also refused to make payment of salary. Whereupon, I along with the help of some other employees/union members jointly demanded for salary. Two days and before two months of lodging of this alleged FIR complainant had a fight with me and under the grudge of that incidents the complainant with mala fide intention illegally and unlawfully involved me in the instant case.
' All the story of the alleged FIR as fabrication and unbelievable because I am innocent and poor citizen of this country. All the allegation and role attribution is fake, false and incorrect. All recoveries are fake, police planted recoveries against me. I did not received any ransom amount recovered from me. The PWs are all interest witnesses and close relatives of the complainant. I have no any previous criminal history and I am previous no convict or not record holder."
25. Likewise, Razzaq alias Jaku appellant/convict stated in his statement under Section 342, Cr.P.C.
In reply to question "why this case against you and why the PWs deposed against you?" as under: "All private witnesses are close relative of the complainant and rest of the witnesses are deposed against subordinate police official of the Investigation Officer.
' I am a poor man. I have no concern with accused. I have never been working with co-accused or Afzal PW in Irfan Textile Mills Feroz Pur Road, Lahore. I do not any of them in any way. The complainant has got me involved intentionally in this case. I had not done any such occurrence.
My family members are never involved in any criminal case including me. My brother Sajjad runs the business of fish in Mustafa Abad Tehsil & District kasur and has a big fish shop at Mustafa Abad Bazar. We three brothers work together at this shop. I did not receive any ransom amount from complainant neither any ransom amount was recovered from. The police planted fake recoveries against me in connivance with the complainant. The police kept my parents, my married sister and my brothers into custody illegally. My brothers and sisters filed writ petitions into different Courts against the SHO of Police Station A-Division Kasur.
' The complainant got all these fake proceedings done against me due to anguish of mine that I misbehave (CHER CHAR) with the complainant wife openly in Kasur Bazaar 2/3 days prior to this case. The complainant had threatened me of revenge. The complainant is an influential and well of man in the society who have registered the fake case against me through conspiracy with the police. I am innocent in this case.
' PW Usman is co-partners of the complainant and PW Khalil is (BEHNOI) of complainant. All private witnesses are close relative of the complainant and rest of the witnesses are deposed being subordinate police official of the Investigation Officer."
26. Both the present appellants have not opted to ap pear under Section 340(2), Cr.P.C. And Muhammad Asif appellant also did not produce any oral defence evidence., However, Razzaq alias Jaku appellant produced in oral defence evidence Mustafa Kaleem DW-1 and Rehmat Ali DW-2 and also produced documentary evidence Ex.DA to Ex.DB to establish his defence plea. Considering above, none of the appellants could establish their defence plea with solid evidence and same was rightly discarded by the trial Court with sufficient reasons.
27. In view of the above discussion, it is our confirmed view that prosecution has proved its case against both the present two 51 appellants beyond shadow of doubt through above referred evidence.
28. So far as quantum of sentence is concerned, we found that prosecution has led no evidence to show that present appellants were previously involved in such like crime and was ever convicted for such like offences. 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 case and manner in which the occurrence had taken place as to which sentence will meet the ends of Justice. Further, admittedly Ahsan Ali abductee PW-3 did not receive any injury at the hands of the appellants during his abduction period i,e, 9.12.2010 to 10.12.2010.
29. In view of the above, the sentence of death of Muhammad Asif and Razzaq alias Jaku appellants is harsh. Reliance is placed on case Saleem-ud-din and others v. The State (2011 SCM R 1171) in which Hon'ble Supreme Court of Pakistan has observed at Pages 1180 & 1181 as under:- "Coming to the case in hand. Four persons (appellants) have been awarded sentence of death each by the trial Court, which has been confirmed by the learned Division Bench of the High Court.
The offence for which the appellants are charged with is abduction of two persons for ransom. No doubt that the two Courts below have held the appellants guilty of the offence they are charged with but there are certain factors which are required to be considered while deciding as to what would be the appropriate sentence on the given facts and circumstances of the case.
' There is element of alleged beating by the abductors to the abductees, when they were kept for the night in the captivity but there is no medical evidence that any physical injury was caused to any of the abductee.
' The period of detention is also very short i,e, one night only. It is also not in evidence that after receiving the ransom amount, how and to what extent each one of the appellants has received his respective share in the ransom money.
' The prosecution has led no evidence to show that the appellants were previously involved in such like crimes and were ever convicted for any offence.
' Finally, we press into service the principle as enunciated in the case of Israr Ali v. State (2007 SCM R 525), where a Shariat Appellate Bench of this Court, comprising of five Hon'ble members ruled that question of sentence demands utmost care on the part of Court dealing with life and liberties of people -accused persons are also entitled to extenuating benefit of doubt on the question of sentence and in this reported case, sentence of death awarded under Sections 302(b), PPC and Article 12 of Offence of Zina (EOH) Ordinance, 1979, awarded by the trial Court and maintained by the Federal Shariat Court, was converted into imprisonment for life.
' We, in the proceeding Paragraphs of our judgment, have already highlighted some important facts of the case, which remained unanswered by the High Court and which have not been reasonably explained by the prosecution, therefore, applying the test of benefit of doubt in determining the quantum of sentence, we allow these appeals partially and while maintaining the conviction of the appellants, alter their sentence of death of life imprisonment each under Section 365A, PPC. The remaining sentences of fine etc. Are left intact:
30. For the foregoing reasons, convictions of present two appellants under Section 365-A, PPC and under Section 7(e) of ATA 1997 are maintained but their sentences are altered from death to life imprisonment. All the sentences shall run concurrently. The benefit of Section 382-B, Cr.P.C. Is also given to the appellants Consequently, with the above said modification in the sentences of Muhammad Asif and Razzaq alias Jaku present appellants, Criminal Appeal No, 1545 of 2011 filed by Razzaq alias Jaku and Criminal Appeal No, 1548 of 2011 filed by Muhammad Asif present appellants are hereby dismissed C.S.R No, 38-T of 2011 is answered in NEGATIVE and death sentences of Muhammad Asif and Razzaq alias Jaku present appellants are NOT CONFIRMED.