' NAIMATULLAH PHULPOTO, J.---Appellants Mohammad Qasim alias Umair, Farhan Khan and Raheel were tried by learned Anti-Terrorism Court No.III, Karachi in Special Case No. 48/2006 State v.
Farhan Khan and others under Sections 365-A/302/34 P.P.C. Read with section 7(a) and (e) ATA 1997, P.S. Landhi. Learned, Judge, Anti-Terrorism Court No.III, Karachi by judgment dated 29.11.2008 convicted all appellants under Section 7(e) ATA 1997 read with section 365-A/34, P.P.C. And sentenced them to death. Appellants were also convicted under section 302/34, P.P.C. And were sentenced to death. Moveable and immovable properties of the appellants to the extent of Rs.1 lac each were ordered to be confiscated to the Government. The Reference for confirmation of death sentence was made to this Court by trial Court. Appellants have preferred appeals against the impugned judgment. By this single judgment, we intend to dispose of the aforesaid appeals filed by above-named appellants and reference made by trial Court.
2. Brief facts of the prosecution case are that on 13.09.2006, son of complainant, namely, Owais Ali aged about 12-1/2 left the house at about 5:00 p.m. For playing a game, thereafter did not return home till night. Complainant started search for his son for the whole night but could not succeed.
On 14.09.2006 at 2:00 p.m., Qasim alias Umair, the son of female servant in the house of the complainant, informed complainant Sadaqat Ali that on 13.09.2006 at 05:30 p.m. His son met him at 17-J bus stop, Landhi and told accused Qasim to accompany him to a shop for purchase of a kite. It is alleged that accused Qasim refused to accompany the son of the complainant. On 14.09.2006 PW Khan Mohammad met the complainant and told him that on 13.09.2006 at 05:30 p.m.
He had seen his son in Black Queen Bus at 17-J Bus Stop. Complainant reported the matter of missing of his son to Police Station Landhi on 14.09.2006, such report was entered in the roznamcha entry by the police. On 15.09.2006 at 01:15 p.m. Complainant received a call on mobile that his son has, been kidnapped and would be released on payment of ransom of Rs.5 Crore. Complainant replied to the caller that he had no such huge amount to pay him but he issued threat to the complainant that in case of non-payment of the ransom, harm would be caused to his son Owais.
It is further alleged that on 22.09.2006, complainant received a call from kidnappers, they demanded Rs.4 Crore ransom, but he replied to the caller that he would arrange Rs.250,000/-, only.
Complainant reported the matter to the CPLC, who along with AVCC authorities started efforts for the recovery of the son of the complainant. On 01.10.2006, demand was repeated but complainant replied that he has no sufficient means to make arrangement of such huge amount. In the aforesaid period, complainant was in contact with police. On 18.10.2006 complainant took cash of Rs.5 lacs and _proceeded to Korangi-2 along with police officials for making payment of ransom and reached at pointed place at 12:30 mid night. The kidnappers asked the complainant to keep cash of Rs.5 lacs in the street and his son would be returned to him behind petrol pump at Korangi No.2. Complainant kept the money in the street but no one from the kidnappers appeared there to take the money and complainant returned back from the pointed place. On 20.10.2006, he received the calls and finally kidnappers agreed to receive Rs.2 lacs ransom. On 22.10.2006 kidnappers called complainant at 8:30 pm at Korangi No.2, kidnappers contacted' him and asked him to keep the amount at the pointed place then his son would be released. Complainant kept the amount, caller threatened him to go away from the spot. He kept the amount at the corner of the street and saw that on the roof of adjoining house someone was continuously calling him and he was hiding his face. Complainant returned back but his son was not released. Thereafter, complainant lodged FIR, it was recorded vide Crime No. 221 of 2006 at P.S Landhi on 04.11.2006 at 0015 hours, under sections 365-A/34, P.P.C.
3. During investigation 161, Cr.P.C. Statements of PWs were recorded. On 09.11.2006 complainant received a mobile call and he was told that his son has been murdered and his dead body has been thrown in nala. During investigation appellant Farhan and Muhammad Qasim alias Umair were arrested on 28.11.2006 and appellant Raheel was arrested on 13.04.2007. After usual investigation challan was submitted against accused Farhan Khan son of Asghar Ali Khan, Mohammad Qasim Umair son of Mohammad Ayoub and Raheel son of Mohammad Mushtaq under sections 365-A/ 302/34, P.P.C. Before Anti-Terrorism Court Karachi. Accused Akber son of Akram was shown as absconder.
4. Charge was framed against appellants Farhan Khan, Mohammad Qasim alias Umair and Raheel by learned Judge, Anti-Terrorism Court No.III, Karachi at Ex.7 under the above referred sections. To the charge, appellants pleaded not guilty and claimed to be tried.
5. In order to prove its case, prosecution has examined the following witness:
(1) P.W-1 Complainant Sadaquat Ali Shahzad at Ex.11.
(2) PW-02 ASI Ghulam Asghar at Ex.12.
(3) P.W-3 Mohammad Khursheed ASI at Ex-13
(4) P.W-4 Mohammad Shoaib Alam at Ex.14
(5) P.W-5 Mohammad Ayoub at Ex.15
(6) P.W-6 Nasir Ahmed Khan at Ex.16
(7) PW-7 Khan Mohammad at Ex.17
(8) PW-8 Ghuffranuddin at Ex.18
(9) P.W-9 Muhammad Shabbir at. Ex.19
(10) P.W-10 Zuhair at Ex.21
(11) PW-11 Mohammad Tanveer at Ex.21
(12) P.W-12 Shoukat Ali at Ex.22
(13) PW-13 Mohammad Afaq at Ex.23
(14) PW-14 Mr. Ahsan Ali Malik, Judicial Magistrate at Ex.24
(15) PW-15 Mr. Maqbool Ahmed, J. M-XI Karachi East at Ex.25
(16) P.W-16 Dr. Abdul Razzak Shaikh at Ex.26
(17) P.W-17 Muslim Shah at Ex.27
(18) P.W-18 I.O/SIP Ali Mohammad at Ex.30
(19) C.W-19 I.O. Tahir Naseer, SIP, I.O. At Ex.31 ' Thereafter, prosecution side was closed at Ex.32. Learned Trial Judge inspected Nala, from where dead body was recovered. Such inspection notes have been produced at Ex.33.
6. The statements of accused were recorded under section 342, Cr.P.C. 'at Ex.34, 35 and 36.
Appellant/accused Mohammad Qasim alias Umair has denied prosecution allegations and stated that he was arrested on 28.11.2006. Regarding identification parade, he has stated that P.Ws. Had seen him at AVCC before identification parade while he was in custody. On a question as to why P.Ws. Have deposed against him? He replied that his mother was serving as maid servant in the house of complainant. On 13.09.2006 at evening time he told the complainant that his son had asked him to give him company as he was going to purchase kite but he had refused him and raised plea that he had not committed alleged offence. On 06.12.2006 Administrative Judge ATC had passed orders for his release for want of evidence, but he was not released by I.O. Ali Mohammad of the case. Other allegations have also been denied by him. Appellant Raheel has also denied prosecution allegations and stated that he had never demanded ransom from complainant, no offence had been committed by him. He had surrendered before the police as his father was detained by the police. Regarding identification parade, he has stated that PWs Muslim Shah and Ghaniul Haq had seen him in police custody before identification parade. Appellant Farhan Khan has also denied prosecution allegations and stated that P.Ws are interested and they have deposed against him at the instance of investigating officer. PW Mohammad Afaq had wrongly picked up him in the identification parade. He has pleaded innocence. All the appellants declined to give statements on oath in disproof of prosecution allegations and did not lead evidence in defence.
7. Learned Judge, Anti-Terrorism Court No.III, Karachi on the conclusion of the evidence, after assessm ent of evidence, awarded death sentences by judgment dated 29.11.2008 as stated above.
8. Appellants challenged their convictions and sentences before this Court through Special Criminal Anti-Terrorism Appeals Nos.37, 38 and 39 of 2008, which were heard along with capital sentence Reference No.5 of 2008. This Court vide judgment dated 11.04:2013 disposed of the aforesaid appeals filed by the above named appellants as well as Reference made by the Trial Court. Death sentence awarded to the appellants under section 302, P.P.C. Was converted to imprisonment for life. Benefit of Section 382-B, Cr.P.C. Was extended to them and Reference for confirmation of death sentence made by the trial Court was declined for the following reasons:--\
24. For the above stated reasons as the Appellants/accused were young boys at the time of incident, murder was not committed due to sectarian rivalry. In these circumstances, in the interest of justice death sentence imposed upon the Appellants under Section 302, P.P.C. Is converted to imprisonment for life. Benefit of section 382-B, Cr.P.C. Shall also extended to them.
25. Appeals are accordingly disposed of Reference for confirmation of death made by the trial Court is declined and answered in negative.
9. Thereafter, State through Prosecutor General filed Criminal Appeals Nos. 27-K. To 32-K of 2013 and Honourable Supreme Court of Pakistan vide order dated 13.11.2013 while maintaining conviction of all the three appellants in the criminal appeals remanded case to this Court by setting aside the judgment to the extent of non-confirmation of Reference made by the Trial Court with further direction to decide the question of quantum of sentence to be awarded to three appellants afresh after allowing due opportunity of hearing to them. Relevant portion is reproduced as under:--
4. Strongly questioning the findings of the learned Division Bench of the High Court of Sindh, contained in the impugned judgment as regards modification in the quantum of sentence of the three convicts/respondents No.1 in these appeals, on the ground of their young age at the time of commission of crime, learned ASC/ Additional Prosecutor General have contended that there was no iota of reliable or authentic piece of evidence available before the High Court for taking into account the age facts of these convicts, as mere mentioning of their age in the title of their statements under section 342, Cr.P.C., which is not recorded on oath, was not sufficient to arrive at such conclusion. Moreover, even then at least two of the convicts were not young to that extent, which could have been considered as mitigating circumstance in their favour for altering their death sentence into imprisonment for life or answering the murder reference in the negative.
5. Apart from it, learned ASC/ Additional Prosecutor General also brought to our notice a serious anomaly/confusion caused through the impugned judgment of the High Court, inasmuch as, the trial Court in its judgment dated 29.11.2008 has awarded death sentence to all the Respondents No.1 in these appeals on two counts, firstly, under section 7(e) of the Anti-Terrorism Act, 1997, read with section 365-A/34, P.P.C., having kidnapped deceased Owais Ali son of complainant Sadaqat Ali Shahzad and secondly, under section 302/34, P.P.C. For committing his murder. As against it the High Court in its impugned judgment has very specifically modified the death sentence into imprisonment for life awarded to these Respondent No.1 for commission of offence under section 302, P.P.C., which impliedly suggests that death sentence awarded to them by the trial Court under section 7(e) of the Anti-Terrorism Act, 1997 read with sections 365-A/34, P.P.C. Has not been disturbed, but it is still intact.
6. This being the admitted position, instead of deciding this aspect of the case ourselves, we deem it appropriate that while maintaining the conviction of all three Respondent No.1 in these criminal appeals, remanded the cases to the learned Division Bench in the High Court of Sindh by setting aside its judgment to the extent of non-confirmation of murder reference made by the trial Court with further directions to decide the question of quantum of sentence to be awarded to the three Respondents afresh, after allowing due opportunity of hearing to them in this regard, as passing a speaking order for this purpose. Order accordingly. Appeals stand disposed of.
10. Mr. Abdul Rasheed Nizamani learned Advocate for the appellants mainly contended that accused Qasim was aged about 21 years at the time of recording his statement under section 342, Cr.P.C. Accused Raheel was aged about 18 years at the time of recording his statement recorded under section 342, Cr.P.C. Mr. Nizamani argued that appellant Farhan was aged about 25 years at the time of recording his statement under section 342, Cr.P.C. Mr. Nizamani, learned advocate for appellants argued that youth of accused constitute an extenuating circumstance for lesser penalty. No other point/ground worth consideration has been raised in support of appeals.
11. Learned A.P.G., assisted by learned advocate for complainant argued that appellant Farhan was aged about 23 years and copy of his CNIC shows his date of birth as 12.12.1982. It is argued that accused Farhan in his statement recorded under section 342, Cr.P.C. Has mentioned his age as 25 years and accused Raheel was aged about 18 years at the time of recording his statement under section 342, Cr.P.C. Learned A.P.G. Argued that appellant Qasim's date of birth is 15.02.1987 and in his statement under section 342, Cr.P.C. His age has been mentioned 21 years. Learned APG argued that young ages of the accused are not the mitigating circumstance to convert the death sentence to the imprisonment for life. Learned AP.G. Argued that there is no iota of reliable piece of evidence available on record regarding exact ages of the appellants. In support of his contentions he has relied upon the cases reported as Muhammad Saleem v. The State (2001 SCM R 536) and Faisal Aleem v. The State (PLD 2010 SC 1080).
12. Learned Advocate for appellants did not press the appeals on merits for the reasons that conviction has already been maintained by the Honourable Supreme Court but has only prayed for converting the death sentences into imprisonment for life keeping in view the youth of accused/convicts.
13. The evidence produced before the trial Court find an elaborate mention in the judgment of the trial Court as well as in the judgment dated 11.04.2013, passed by this Court in aforesaid appeals.
Therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.
14. We have carefully examined the respective contentions agitated on behalf of the appellants and for the State in the light of evidence on record, relevant law and have carefully perused the judgment of the trial Court. This Court vide judgment dated 11.04.2013 in aforesaid appeals converted death sentence awarded to the appellants to imprisonment for life. In Criminal Appeals Nos. 27-K to 32-K of 2013 vide order dated 13.11.2013, Honourable Supreme Court maintained conviction and remanded case for deciding the quantum of sentence afresh as mentioned above.
15. In our considered view, there is no legal force in contention of learned counsel for the appellants that youth of accused is mitigating circumstance to convert the death sentence to the imprisonment for life for the reasons that ground of young age was never raised by accused before police during investigation so also before the trial Court. Learned Counsel for the appellants was asked by us that why question regarding age was not raised before the learned trial Court but he could not satisfactorily answer except that statements of accused were recorded under Section 342, Cr.P.C. At Ex.34 to 36 on 15.11.2008, wherein age of accused Muhammad Qasim alias Umair has been mentioned 21 years, in CNC his date of birth has been mentioned as 15.02.1987, age of accused Raheel was mentioned 18 years and age of accused Farhan was mentioned 25 years and in CNIC his date of birth has been mentioned as 12.12.1982. It is generally observed that trial Courts mention the ages of the accused at the time of recording statement under Section 342, Cr.P.C. At random on the basis of physical appearance of accused or sometimes at the instance of the accused. Thus, it cannot be considered as gospel truth to determine the quantum of sentence.
Appellants have failed to produce documentary evidence regarding their exact ages. Young ages of accused Raheel and Qasim by itself are not mitigating circumstance. Age of accused Farhat Khan has already been mentioned in his statement under section 342, Cr.P.C., as 25 years. We are fortified by the dictum laid down in the case of Muhammad Saleem v. The State (2001 SCM R 536).
16. Young age by itself is not a mitigating circumstance as held by Honourable Supreme Court of Pakistan in the case of Muhammad Yar v. The State (1997 SCM R 401) Relevant portion is reproduced as under:-- "Lastly an objective attempt was made by the learned counsel for the appellant that the appellant was young boy of 18 years, hence his sentence may be altered from death to life imprisonment.
We are not convinced by his such contention. Young age by itself is not a mitigating circumstance. The appellant had killed three persons in broad daylight. He does not deserve any sympathy. We have gone through the evidence produced by the prosecution, (sic) in juxtaposition. The trial Court as well as the Appellate Court have properly assessed the evidence produced by the prosecution and the defence version. It is neither the case of misreading or non- reading of the evidence. Hence there is no material in the appeal which may call for interference by this Court. In result. Of our above said observations the appeal is dismissed."
17. There is no cavil to the proposition that youth of accused alone does not constitute an extenuating circumstance as would justify imposition of lesser penalty prescribed by law. Reliance is placed upon the case of Faisal Aleem v. The State PLD 2010 SC 1080. The relevant portion is reproduced as under:-- There is no cavil to the proposition that youth of accused alone does not constitute such an extenuating circumstance as would justify imposition of lesser penalty prescribed by law"
Harnamun v. Emperor (AIR 1928 Lah. 855), Maghar Singh Naghar Singh and others v. Emperor (AIR 1941 Lah. 220), The State v. Tasiruddin (PLD 1962 Dacca 46), Sher Hassan v. The State (PLD 1959 SC
(Pak) 480), Ghulam Hyder v. The State (1970 PCr.LJ 1052)".
18. Ground for mitigation of sentence could not be pressed into service on the basis of something which had never been proved on the record as held in the case of Muhammad Mumtaz Qadri v.
The State (PLD 2016 Supreme Court 13).
19. We have given our anxious consideration for determination of quantum of sentence to be awarded to the appellant in the present case in which a boy of 12 years has been murdered for ransom. We are guided by the dictum laid down by Honourable Supreme Court of Pakistan in the case of Hamid Mahmood and another v. State 2013 SCM R 1314 on the point of quantum of sentence. It is held as under:-,- "20. In the instant case, the accused were involved in a brutal murder of a young boy who had been kidnapped by them for ransom. The accused persons were well known to the abductee, hence, apparently the accused had no intention of ever releasing the abductee on the receipt of ransom to avoid the risk of identification and capture. A heinous crime has been committed, which is a factor to be taken into consideration for determination of the sentence to be awarded and in sentence cases of brutal premeditated murder of a young child, death sentence appears to. Be appropriate, as has been held by this. Court in the case, reported as Talib Hussain v. The State (1995 SCM R 1538). In the said case on account of the murder of a young boy, the sentence of life imprisonment was enhanced to sentence of death.".
20. The upshot of above mentioned discussion is that no benefit can be extended in favour of appellants for their Mustafa Mughal, C I) young ages, which does not constitute a mitigating circumstance in this case. According to prosecution evidence, appellants kidnapped a boy for ransom and committed murder. Hence, appellants do not deserve any leniency in sentence. Trial Court has examined each and every piece of evidence carefully and appreciated evidence according to settled principles of law.
21. Death sentence in a murder case is a normal penalty and the Courts while diverting towards lesser sentence should have to give detailed reasons as held by F. Honourable Supreme Court of Pakistan in the case of Dadullah and another v. The State (2015 SCM R 856). Relevant portion is reproduced as under:-- .. Death sentence in a murder case is: a normal penalty and the Courts -while diverting towards lesser sentence should have to give detailed reasons. The appellants have committed the murder of two innocent citizens and also looted the bank in a wanton, cruel and callous manner. Now a days the crime in the society has reached an alarming situation and the mental propensity towards the commission of the crime with impunity is increasing. Sense of fear in the mind of a criminal before embarking upon its commission could only be inculcated when he is certain of its punishment provided by law and it is only then that the purpose and object of punishment could be assiduously achieved. If a Court of law at any stage relaxes its grip, the hardened criminal would take the society on the same page, allowing the habitual recidivist to run away scot-free or with punishment not commensurate with the proposition of crime, bringing the administration of criminal justice to ridicule and contempt. Courts could not sacrifice such deterrence and retribution in the name of merry and expediency. Sparing the ace used with death sentence is causing a grave miscarriage of justice and in order to restore its supremacy, sentence of death should be imposed on the culprits where the case has been proved".
22. For the above stated reasons no occasion has been found by us for reducing the appellants sentences from death to imprisonment for life.
23. As a sequel to the discussion made above, we find no reason whatsoever to interfere in the conclusion arrived at by the trial Court in conviction and death sentence awarded to appellants.
Consequently, appeals are dismissed and Reference for confirmation of death sentence is answered in affirmative.