MOHAMMED KARIM KHAN AGHA, J.---By this common judgment, we propose to dispose of the above appeals filed by above named appellants. The appellants being aggrieved and dissatisfied with the judgments both dated 30.06.2010, passed by the learned Anti-Terrorism Court No.1, Karachi Division in Special Case No. 14 of 2010 (Part-2) and 14 of 2010 (Part-1), 15 of 2010 and 16 of 2010 whereby the appellant No. 1 being a minor was tried separately and was convicted under section 7(c) Anti-Terrorism Act, 1997 read with section 365-A/34, P.P.C. and awarded imprisonment for life and forfeiture of property to the extent of Rs.200,000/- and the remaining appellants Nos.2 and 3 were tried together and by a separate judgment were convicted under section 7(c), Anti-Terrorism Act, 1997 read with section 365-A/34, P.P.C. and awarded imprisonment for life and forfeiture of property to the extent of Rs.200,000/- each and were also each convicted under section 13-D of Pakistan Arms Ordinance, 1965 and awarded 5 years imprisonment and fine of Rs. 5,000/- each, in default of payment of fine, they would all undergo R.I. for 6 months more and benefit of section 382-B, Cr.P.C. was extended to them (the impugned judgments) have filed these appeals against the same.
2. Brief facts of the prosecution case are that the complainant Nisar Ahmed lodged FIR bearing No.27/2010 under section 365-A/34, P.P.C. at police station Awami Colony on 06.01.2010 at about 1900 hours stating therein that his wife informed him that his son is missing from the house and he tried to search for his on but could not find him. Thereafter he orally informed the police about his missing son. On the next day (07-01-2010) at about 11.30 a.m. his brother Muhabat Ali received a call on his mobile phone No.0345-2561242 from mobile phone No.0342-2788782, whereby the caller informed his brother that his son is with them and to arrange Rs. 60 lacs as ransom. The kidnapper told him that they would phone them again later. After this information they started to search for the child but failed and thereafter went to the police station for lodging the FIR regarding the kidnapping for ransom of the complainant's son.
3. On 08.01.2010 ASI Ghulam Ali was patrolling in the area when at about 12.15 a.m. he received spy information that four persons were standing at Murtaza Chowk opposite Nadeem Drycleaners along with a child who was weeping. On such information he rushed towards that place and found four persons in suspicious condition standing there along with one child who they surrounded and apprehended appellant Imran Ali Bhutto, appellant Mashooq Ali, appellant Aamir Ali and accused Mohammad Sharif and got released the abducted boy Fayaz Ali aged 5 years from their possession. ASI Ghulam Ali on a personal search also recovered one without number unlicenced .30 bore pistol with magazine loaded with 6 live bullets from the possession of appellant Imran Ali Bhutto, and one without number unlicensed .30 bore pistol with magazine loaded with 4 live bullets from the possession of appellant Mashooq Ali and during personal search of appellant lmran Ali Bhutto, he recovered Rs. 300/- and Rs. 270/-. And Mobile Phone Nokia 1208 and Rs. 500/- from accused Mohammad Sharif and sealed the above articles on the spot and took the appellants and the accused and case property to P.S. Korangi Industrial Area, where he lodged the FIRs No.22/2010 and 23/2010 under section 13-D, Pakistan Arms Ordinance, 1965 against appellants Imran Ali Bhutto and Mashocq Ali and handed over the victim child Fayaz Ali to his father Nisar Ahmed Lakho on superdiginama.
4. The learned trial court supplied the copies of the case papers to the appellants under section 265-C, Cr.P.C. Thereafter the learned judge took oath as prescribed under section 16 of Anti- Terrorism Act, 1997(sic.).
5. A formal charge was framed against the appellant No.1 who was a minor and whose trial was separated from the appellants Nos.2 and 3 who were both adults to which he pleaded not guilty and claimed trial. Likewise a formal charge was framed against appellants 2 and 3 both of whom were adults both of whom pleaded not guilty and claimed trial.
6. In order to substantiate the charge, the prosecution examined 09 witnesses and produced certain relevant documents which had been exhibited and thereafter the learned Special Public Prosecutor closed the side of the prosecution.
7. Thereafter the statement of the appellants were recorded under section 342, Cr.P.C. The appellants did not examine themselves under oath nor did they call any witnesses in their defense.
8. After hearing the learned counsel for the parties, the learned trial court had pronounced the impugned judgments.
9. Learned Counsel for the appellants made the following main submissions:
1. That there was a delay in filing the FIR 27/2010 in the kidnapping for ransom case which was fatal to the prosecution case.
2. That on the personal search of accused Sharif one Mobile was recovered which was allegedly used in the above said offence for demand of ransom from the relatives of the abductee, however he was released by the I.O. Ishrat Rana under section 169, Cr.P.C. which made all the appellants in effect all innocent as they should have been subject to the same treatment.
3. That there are major contradictions in the evidence of the PW's that makes their evidence unreliable.
4. All the PW's are interested parties and not independent and therefore cannot be relied upon.
5. That according to the contents of the memo of recovery the place of recovery of the abductee is very thickly populated area yet nobody was associated as mushir from the said area despite this being a legal requirement.
6. That no ransom was demanded by the appellants nor was it given to or recovered from the appellants.
7. That based on the cross-examination of the 10 his evidence cannot be safely relied upon. Among other things he deposed as under:- "It is correct that I received investigation of this case on 09.01.2010 and recorded statement of witnesses under section 161, Cr.P.C. on 10.01.2010. I came to know that accused Sharif was innocent within 5 or 6 days when investigation was with me. It is correct that I did not take accused Muhammad Sharif when I prepared memo of vardat and memo of place of captivity. I released accused Muhammad Sharif on his statement and statements of co-accused and on statements of inspector Muhammad Babar and Inspector All Muhammad, they were not present at the time of arrest of accused. It is correct that there is no value of statement of accused under Qanun-e- Shahadat Article 38 recorded by Senior Police Officer, but I had released during investigation. It is correct that I produced accused before Judicial Magistrate for recording their confessional statement but accused refused for the same. It is correct that when I produced accused for remand before honourable Administrative Judge, ATCs they complained about maltreatment in the hands of police and honourable Administrative Judge referred them for medical checkup to Medical Superintendent Civil Hospital. I verified the FIR and phone No.0342-2788782 on which the alleged call was made by the accused and it is not mentioned in the FIR. It is correct that the mobile phone number 0342-2788782 is not mentioned in my statement of the witnesses recorded 161, Cr.P.C. by me. It is correct that no call was made on Mobile Phone No.0345-2651242 from Mobile No.0342-2788782 on 07.01.2010 at 11:30 a.m. it is correct that PW Nisar Ahmed Lakho and PW Muhabat Ali Lakho have stated in their 161, Cr.P.C. statements that Imran Ali Bhutto, Mashooq Ali and Aamir Ali were seen there and they are residing in the same mohalla. It is correct that PW ASI Ghulam Ali, PC Ghulam Mustafa and PC Akram have stated in their 161, Cr.P.C. statement that they made telephone to P.S Awami Colony and from there they came to know that FIR against 4 accused was lodged of kidnapping for ransom. It is correct that it is mentioned in column No.5 of FIR that investigation of crime No.2712010 will be conducted by SIO Police Station Awami Colony after receiving investigation of this crime. It is correct that I have submitted the data which was collected after three months of submission of challan. It is correct that on 22.01.2010 I submitted challan and I collected the data on 20.04.2010. I have not submitted any supplementary challan after collecting further evidence during investigation later on in this crime before court. It is correct that the victim child was produced before me but I did not record statement of victim child under section 161, Cr.P.C. It is correct that the victim child was not capable to give any statement, so I did not record his statement. It is correct that there is no signature of any officer on Ex.5/B under which the victim child was handed over under the Superdiginama. ASI Ghulam Ali handed over the custody of child to his relatives. As soon as the boy was recovered from the possession of accused, the child was handed over to his relatives at police station. PW Ghulam Ali did not state that he handed over the child to relatives under the Superdiginama. The SIM from which the call was received was not recovered from any accused.
It is correct the IMEI number was not recovered from the possession of accused. I checked the mobile phone of accused Sharif but the IMEI number was not available in data. I do not know the IMEI number of Mobile Phone recovered from accused Sharif. It is correct that Inspector Ali Muhammad and Inspector Babar are witnesses in my case and I am also witness in their cases. It is not correct that I have prepared memo of vardat and memo of place of captivity at AVCC office.
It is not correct that I have falsely implicated the present accused in this case".
10. Learned Counsel for the appellants submitted that in view of the above facts, circumstances, grounds and contradictory depositions of the PWs the impugned judgments should be set aside by this Court and the appellants should be acquitted On the other hand, the learned Additional Prosecutor General for the State supported the impugned judgments which according to him had been decided correctly based on the evidence and the law and should be upheld.
11.We have considered the submissions raised by the learned counsel for the parties (both oral and written), minutely gone through ,the evidence and the record and considered the law and the authorities cited by them at the bar.
PW1 was Nisar Ahmed (complainant) who was the father of the abducted boy (Fayaz) who in essence narrated how on 06-01- 2010 at about 7 p.m. he reached home and was told by his wife that his son was missing. After looking for his son in the locality he verbally informed PS Korangi Industrial Area (KIA) about his missing son. On the next day (07-01-2010) at about 11.30 am his brother Muhabat Ali received a call on his mobile phone from mobile phone No.0342 -2788782 (which was not mentioned in the FIR) demanding 60 lacs for the return of his son where after he lodged his FIR at PS KIA. At 1.30 am on 8-01-2010 his brother received a call from PS Awami Colony which informed him that his child had been recovered and told him to collect his child from PS KIA which he did subject to signing superdiginama.The next day, despite not being an eye-witness, he showed the police from where his son was kidnapped. In cross he conceded that his house and Murtaza chowk (from where his son was recovered) were in the same Mohalla. His statement before the police also mentions the ransom amount of 6 lacs and not 60 lacs.
PW 2 was Muhabat Ali who was the brother of PW 1 and the uncle of the abductee Fayaz. He corroborates PW 1 about looking for his son, orally informing the police, receiving the ransom demand for 60 lacs from mobile No. 0342 2788782, the registering of the FIR and the call from the police at about 1 a.m. informing him about the recovery of his nephew and the collection of his nephew from PS KIA. Despite not being an eye-witness he also informed the police from where his nephew had been kidnapped. On cross he conceded that his statement was recorded on a milk shop in front of Nadeem Dry cleaners. He denied that the abductee came to his shop to buy things from him. He confirmed giving his statement to the 10 and receiving the ransom demand.
He also conceded that he and PW 1 are residing in the same house and that Murtaza chowk is about 50 paces from his house and that he gave his mobile phone No. to the police in case his nephew was found. He denied owing appellant Mashooq money and that they were quarrelling over such sums. He also denied beating appellant Mashooq and falsely implicating him in this case. (bold added)
PW 3 was Mohammed Akram who was a P.C. posted at KIA at the time of the incident. He stated that a spy had informed ASI Ghulam Murtaza that four persons were with a kidnapped boy. He confirmed being present when the appellants were arrested and the abducted boy was recovered and that ASI Ghulam'Ali had recovered unlicensed weapons and ammunition from appellants Imran and Mashooq. (no mention of recovery of mobile phone) On cross he conceded that Murtaza Chowk is in the jurisdiction of PS Awami Colony and that there were also shops in Murtaza Chowk.
PW 4 was ASI Ghulam Ali who confirmed that he received spy information about four persons standing at Murtaza Chowk with a boy who was crying. On reaching the scene he and his men arrested the appellants and the accused Muhammed Sharif who could not provide any information about the child. He conducted personal search of the appellants and the accused Muhammed Sharif and recovered unlicensed pistols and ammunition from appellants Imran and Mushooq. He searched appellant Amir but nothing was recovered from him. On personal search of accused Muhammed Sharif he recovered a nokia phone. He lodged FIRs 22 and 23/2010 against appellants Imran and Mushooq under the Arms Act. During cross he stated that a part of Murtaza Chowk was in the Jurisdiction of PS Awami Town and part of it was in the jurisdiction of PS KIA.
He did not produce departure or return entries made at the PS which he allegedly handed over along with all other documents to SIO of PS KIA who did not record his statement or give evidence.
He stated that Murtaza Chowk was a small chowk with many shops. The child appeared to be intoxicated and nervous and only disclosed his name to him. There were no public Mashirs due to the late hours and as such police personnel were made witnesses.
He did not seal the mobile phone and he did not check its SIM No. He denied maltreating the appellants or arresting the appellants from their house.
PW 5 was the abductee Fayaz Ali who was 5 years old at the time. He stated that he was playing outside his house from where the four persons kidnapped him and took him to a house where a lady was present. He recognized the appellants in court. During cross he stated that the police came in the house of the accused at night hours where there was other children and that Imran was teaching him as well as other children.
He conceded that it was correct that his father had shown him the appellants outside the Court before he appeared in Court to give his evidence.
PW 6 was Mst Parveen who stated that she was asleep in her house at 06- 01-2010 when at about midnight appellant Mashooq came to her house with a child. She kept the child over night and in the morning the appellant came and took him away. She identified appellant Mashhooq in Court.
On cross she denied knowing PW 2 (who was the brother of the complainant) and deposing falsely.
PW 7 was Nazir Ahmed who was duty officer at PS Awami Colony at the time of the incident when the complainant (PW1) lodged the FIR concerning the kidnapping of his son for ransom. The complainant came to him alone and did not disclose the number from which the ransom call had come from (which contradicts the evidence of the complainant). According to him Murtaza Chowk fell within the jurisdiction of PS KIA.
PW 8 was Mohammed Babar who at the time o the incident was posted at AVCC Karachi. Appellant Mashooq Ali took them to the house where they had detained the abducted boy overnight. He was examined by I0 and produced telephone data. He identified appellant Mashooq Ali in Court.
PW 9 was Israt Rana who was inspector AVCC and 10 of the case at the time of the incident. He received the other relevant documents and custody of the four accused. He visited place of incident and place where child was held captive, he recorded 5.161 statements, sent a letter for mobile phone data. He found accused Mohammed Sharif to be innocent and made out a section 169, Cr.P.C. statement and hence he was not sent up for trial. He collected the telephone data on 20-4-2010 which delay was apparently on account of some technical fault. During cross he stated that he was aware of Sharif being innocent within 5 or 6 days of the investigation being handed to him. He conceded that the appellants refused to record their confessional statement before a judicial magistrate and complained of maltreatment and that they were referred for medical checkup by the remand judge, he also confirmed that the alleged mobile phone number from where the ransom demand came was not mentioned in the FIR and that no such call was made at 11.30 a.m. on 07-01-2010 to PW 2 (the complainants brother which contradicts PW 2's evidence on this point and is key in determining whether even a ransom demand was even made), he conceded that the complainant and his brother knew the appellants who were residing in the same mohalla, he also conceded that in column No.5 of the FIR the investigation was to be carried out by SIO PS Awami Colony yet he carried out the investigation and did not record the section 161 statement of the SIO PS Awami Colony, he also conceded that he did not record the statement of the victim child as according to him the child was not capable of giving any statement, he further conceded that the SIM from where the alleged ransom call was received was not recovered from any of the appellants, the IMEI number of the mobile phone was also not recovered from any of the appellants, he conceded that Nadeem Dry cleaners is close to the house of the complainant, he denied that the appellant Amir had told him that he was an employee of Nadeem dry cleaners, he was unaware of any dispute between appellant Amir and Muhabat Lakho (PW 2 the complainant's brother who allegedly received the ransom call) and the case has been lodged out of enmity, he also conceded that the abductee did not attend any ID parade. (bold added)
13.It would appear that the case of the prosecution is that four accused kidnapped Fayaz while he was playing and thereafter demanded a ransom of either 6 or 60 lacs for his safe return from PW 2, who was the complainant's brother. It would appear that the case of the appellants is that they have been falsely implicated in this case by the police due to an enmity between the complainant's brother and the appellants which is amply shown by the letting off of accused Mohammed Sharif who was arrested along with the appellants and from whom the mobile phone from which the alleged ransom calls were made was recovered.
14.After having studied the evidence in detail and considered it in a holistic manner we are of the considered view as set out in the following paragraphs below.
15.The delay in registering the FIR for kidnapping for ransom by one day is not fatal to the prosecution case as it is quite common in such cases for there to be a delay in lodging the FIR as initially the family are too busy looking for the abducted person and are in such a complete state of panic, fear and anxiety that they do not immediately consider lodging an FIR as usually they are concerned with the safety of their loved ones. In any event in this case the delay was not particularly long i.e. about a day.
16.Likewise the fact that two independent Mushirs were not available late at night is not fatal to the prosecution case as it is well known that in this day and age and the current climate of fear prevailing in Karachi that ordinary people do not like to involve themselves in such criminal matters where they may have to give evidence at trial against hardened criminals. Furthermore, as it was late at night few people were likely to be around to act as Mushirs.
17.However, in our considered opinion this is a case of too many discrepancies, material contradiction& irregularities and unanswered questions and that in essence the prosecution has failed to prove its case beyond a reasonable doubt. It is true that minor contradictions and discrepancies can generally be ignored but in this case we find these to be too material and too many as to cast doubt on the prosecution case.
18.We set out a number of these discrepancies/contradictions below.
(1). The circumstances and chain of events arouse a great deal of suspicion which do not appeal to a reasonable prudent man as being believable.
(a)For example, the boy was abducted by 7pm on 06-01-2010, the FIR was registered on 07-01- 2010 and the appellants were arrested and the boy was recovered by 1 a.m. on 08-01-2010.The whole kidnapping, ransom demand capture of the appellants and recovery of the abductee happened within the space of 2 days. This seems improbable.
(b)Why would local people keep the abductee within the same location as his parents and other family members and persons who could recognize them with the boy? This makes little if any sense.
(c)Why would the appellants allow themselves to be seen out with the abductees in plain sight hanging around Murtaza Chowk which was approx 50 yards from the Complainants' house especially if the whole Mohalla was looking for the boy along with the police.
(2). There were no eye-witnesses to the kidnapping. Yet the complainant and his brother took the police to the spot where the boy was allegedly kidnapped from.
(3).When registering the FIR crucially the mobile number from where the ransom demand was made was not mentioned. It came only later, probably as an afterthought.
(4).Why did the kidnappers contact the brother of the complainant rather than the complainant directly?
(5).Why did the brother of the complainant give his mobile number to the police rather than the complainant just in case the boy was found? The role of the brother of the complainant does not seem to have been considered at all especially as it appears that he had enmity with the appellants and seems unnecessarily to be involved in the incident more than his brother who was the father of the abductee (see below).
(6).The learned trial Judge has ignored the alleged enmity apparently between appellants Amir, Mashooq and the brother of the complainant which may be a reason for the complainant and his brother using the police to falsely implicate the appellants.
(7).The learned trial Judge has not considered that the appellant Amir worked at Nadeem Dry Cleaners which was roughly where he was arrested. It would seem improbable that appellant Amir would be outside his place of work with the abductee.
(8). Most of the witnesses are interested witnesses.
(9) There was no evidence that any call was made at 11.30 a.m. on 07-01-2010 to the complainant's brother's phone from the alleged kidnappers phone. Hence there is no proof of any ransom ever having been demanded except the word of the complainant's brother, which did not find support from any corroborative piece of evidence.
(10). No SIM or IMEI in connection with the phone which allegedly made the ransom call was ever recovered and were not in the name of or possession of the appellants.
(11). Why was Sharif who was arrested along with the other three appellants from whom the phone was recovered let off without any compelling reason. If the phone was recovered from him logic would seem to dictate that he was the prime suspect in the ransom aspect of the case.
(12). The 10 was not able to adequately explain why it took him around 3 months to collect the telephone data.
(13). No attempt was ever made by the complainant or anyone else to gather any ransom money.
In fact it is unclear whether the ransom demanded was 6 lacs or 60 lacs.
(14). No statement was taken from the abductee after his recovery until the trial.
(15). No identification parade was held. Such an ID parade should have been held as soon as possible after the abduct, e was L recovered. Even PW 6 Ms Parveen was not even asked to attend an ID parade to see if she could pick out the appellants.
(16). That the father of the abductee had shown the abductee the appellants outside the Court prior to the abductee identifying them in court.
(17). The abductee's evidence was short and it our view did not particularly inspire confidence possibly because of, his tender age.
(18). According to the abductee he was recovered by the police from the house of PW6 Ms Parveen and not Murtaza Chowk C which is in direct contradiction with the recovery memo and police version of events surrounding his recovery.
(19). If PW 6 Ms Parveen's story was genuine and was to be believed then she should have been an accused as she helped hide the boy rather than a witness. Like the abductee her evidence was short and in our view again did not inspire much confidence.
(20). The I0 as indicated above was totally demolished and completely discredited during cross examination and as such neither his evidence nor his investigation can in our view be safely relied upon.
(21). The during the course of his investigation was found to be dishonest by the learned Trial Judge who recommended his removal from police service.
19. No doubt kidnapping for ransom is a horrific crime which is currently plaguing our society and needs to be deterred in the strongest possible way; however our abhorrence of it cannot blind us from carefully reviewing the evidence and ensuring that it satisfies the test of proof beyond a reasonable doubt which is the cornerstone of the criminal standard of proof. In criminal cases it is well known that the prosecution has to prove its case beyond a reasonable doubt and the benefit of the doubt must be extended to the accused.
20.In the case of Faheem Ahmed Farooqui v. State (2008 SCM R 1572) it was held as under at P.1576 at Para D.
"It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt.
(bold added)
21.Indeed as was held by the Hon'ble Supreme Court in the later case of Muhammed Akram v.
The State (2009 SCM R 230) regarding the benefit of doubt at P.236 Para 13: "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.
(bold added)
22.It is also notable that the learned trial Judge has found the 10 to be dishonest and has recommended his removal from police service. In the recent case of Azeem Khan v. Mujahid Khan (2016 SCM R 274) the Hon'ble Supreme Court had this to say about a dishonest investigation and its impact on the appraisal of evidence at P.290 Para 30.
"We have found that in the recovery memo with regard to the bones, clothes of the deceased and pair of slippers, subsequent addition has been made at a later stage and for that reason alone the same is liable to be discarded. In the case of Muhammad Sharif v. The State (1980 SCM R 231) interpolated/over-writing made in the inquest report were considered seriously by this Court and it was held that in such a case the Court should be at guard and has to take extra care in making the appraisal of evidence, because once dishonestly in the course of investigation is discovered then Court would always seek strong corroboratory evidence before relying on the other evidence of the prosecution. (bold added)
23.It is worthwhile to mention hear that per prosecution accused Sharif was arrested along with the appellants and the abductee was said to have been recovered from all of them including Sharif. Not only this but cellular phone was also recovered from Sharif which was allegedly used to make the ransom demands but surprisingly he was let off by the 10. Furthermore, neither the complainant nor the prosecution made any application to join him as an accused. Though the trial court after taking cognizance had the power to summon and join Sharif as a co-accused it failed to do so.
24.It may be that paras 18(1) to (21) above if taken individually may not be fatal to the prosecution case, however in our considered view when read together they entitle all of the appellants to the benefit of the doubt.
25.Thus, all the appellants (Aamir Ali, Mashooq Ali and Imran Ali Bhutto) stand acquitted in respect of FIRs 27/2010, 22 and 23 of 2010 and Special Case 14, 15 and 16 of 2010 and Spl. Cr. A.T. Jail Appeals 29, 30, 42 and 43 of 2010 and all the appeals are allowed and the impugned Judgments are both set aside with the observation that the appellants may all be released from jail forthwith unless involved or convicted in any other case.