AFTAB AHMED GORAR, J.---This single judgment will dispose of captioned Special Anti-Terrorism Appeals altogether because both are arising out of one and same Judgment. Appellants Allah Dino alias Babo son of Saleh, Hote son of Gul Muhammad and Imtiaz Ali alias Barkat son of Abdul Rauf whereby appellants were being convicted and sentenced under the impugned judgment delivered on 15th June 2010 by the Judge Anti Terrorism Court Badin at Badin in Crime No, 139 of 2009, registered under Sections 365-A, 147, 148, 149 Pakistan Penal Code and 6/7 Anti-Terrorism Act, 1997, Police Station Sujawal, District Thatta, as follows:-- "Accused Allandino alias Babu Teetri, Imtiaz Ali alias Barkat Kathorn, Hate Janwari who are produced in custody and absconding accused namely Akbar and Mumtaz convicted under: Sections 365-A/149 Pakistan Penal Code and sentenced to suffer Imprisonment for life with the order for forfeiture of their moveable and immoveable property if any also with fine of Rs,1,00,000/ each. The same accused are also found guilty for the offence of encounter causing damage to the Dispensary by firing rocket launcher and murder of Ramesh Kumar, thereby they are also convicted under Sections 324/149 Pakistan Penal Code read with Section 7(d) of Anti-Terrorism Act, 1997, and sentenced rigorous imprisonment for ten years coupled with fine of Rs,50,000/= each. The fine if recovered be used to repair of damage of alleged property. They are also convicted under Sections 302(b) and 149 Pakistan Penal Code read with Section 7(a) of Anti- Terrorism Act, 1997 and sentenced to suffer imprisonment for life with fine of Rs, 1,00,000/= each.
Fine if recovered shall be given to the legal heirs of deceased as compensation. In case of non- payment of fine in all offences the accused shall suffer rigorous imprisonment for one year more each. The sentences so awarded to run concurrently. Accused named above will have benefit of Section 382-B, Cr.P.C. from their respective dates of arrest"
2. Summarized facts as narrated are that complainant owns Provisional (Kiryana) Shop at Bello Town. On 29-042009 at about 10:00 p.m., the complainant and his nephews namely Ramesh Kumar, Naresh Kumar and cook Amar Singh went on roof of the shop to sleep. Chowkidar of the shop Chandro Mallah was standing in front of their shop. At about 2:30 a.m., three armed persons came on roof through staircase, who brought down them. The complainant saw them on electric light three persons were having KKs and others three armed persons found overpowered chowkidars, was having G-3 Rifle and two others were having Guns The person having G-3 Rifle directed complainant party to stand in a queue and asked about their names etc. Dacoit Loung Sorjo disclosed his identity and told complainant that they are taking all six persons excepting complainant and complainant to arrange five Lacs as ransom for release of their men within a week and after payment of ransom get their persons released from "Forest. In case of failure, they will have to face dire consequences. Thereafter, the dacoits went away alongwith abductees. This incident was narrated to the Management and respectable persons of the locality. They tried to search the abductees but could not get any clue about them. The complainant then lodged the FIR with the delay of three days of the incident.
3. Facts with regard to the FIR bearing crime No, 149 of 2009 whereby an encounter had taken place, it was alleged by the complainant SIP Nooruddin Station House Officer Police Station Belo that 03-05-2009 at about 2215 hours, complainant along with ASI Gul Muhammad Shah, ASI Sajid Shah. H.C. Rasool Bukhsh, H.C. Javed Ali, PCs Abdul Rehman, Ameer Ali and driver PC Hamzo left Police Station in Government vehicle under D.D Entry No, 16 for operation of Nakabandi and patrolling duty at different places to effect the arrest of dacoits of crime No, 139 of 2009. After patrolling at various places, the complainant party reached near the old Dispensary of Village Kot Alimo at Police Picket, where PC Imdad Ali, PC Abdul Nabi and PC Noor Ahmed were found available and in the meantime there started firing upon them at about 2215 hours. The complainant party also made firing in their defence. During encounter one rocket launcher fired upon by dacoits which hit to the wall of dispensary making a hole. The complainant party followed the dacoits but dacoits taking benefit of darkness made escape good in the jungle. Thereafter, complainant came to know that dacoits Loung Soorjo, Babu Teetri, Abdul Rehman Mallah, Shah Nawaz Kathiar, Akbar Bhambhro and others had murderous assaulted the complainant party. One dead body recovered from the place of firing and he was later on identified to be abductee Ramesh Kumar. The operation lasted till to get clue of the dacoits, subsequently the above FIR was lodged.
4. Ended FIR was lodged in the connected case which was being crime No, 150 of 2009 for the murder of Ramesh Kumar. Complainant Lal Chand states about the story of the murder is that on 30.04.2009 his nephew Ramesh Kumar. Naresh Kumar and Amar Singh and chowkidars of Bello Town namely Chandro Mallah. Mitho and Ghulam Qadir Palari were abducted by dacoits Loung Sorjo and his accompanions when on 03-05-2009 at about 2300 hours SHO Bello Nooruddin Brohi informed him on phone that there was encounter between police and dacoits Loung Sorjo and others and at about 2230 hours firing was stopped, police party saw dead body of his nephew Ramesh Kumar who was killed by Loung Sorjo, Baboo Teetri, Abdul Rehman Kapari, Shah Nawaz Katiar and Akbar Bhambhro and others causing fire arm injuries of K.K. and G-3 Rifle. The dead body then brought to the Taluka Hospital Sujawal, complainant also reached there, where he identified dead body of his nephew Ramesh Kumar. After necessary proceedings thereafter dead body was handed over to the complainant.
5. After investigation accused Akbar and Mutmaz were declared proclaimed offenders thereafter necessary requisite requirement was carried. A formal charge at Ex.9 was framed and read over to the accused whereby accused pleaded not guilty and denied the charge vide their plea at Ex.10 to 19 respectively.
6. Prosecution to strengthen charge examined PW-1 Lal Chand at Ex.20, PW-2 Ghulam Qadir at Ex.21, PW-3 Mitho at Ex.22, PW-4 Chandro Mallah at Ex.23, PW-5 SIP Nooruddin Brohi at Ex.24, PW-6 Amar Singh at Ex.25, Abductee P.W-7 Naresh Kumar at x.26, PW-8 Dr. Noorullah Larik at Ex.27, PW-9 Imdad Ali at Ex.28, PW-10 Abdul Wahid Ex.29, PW-11 Asha Raam at Ex. 30, PW-12 Mr. Zeeshan Akhter Khan at Ex.31, PW-13 Mr. Shakil Moulani, Judicial Magistrate at Ex.32, PW-14 Tapedar Muhammad Asif at Ex. 33, PW-15 Malik Muhammad Qasim Inspector at Ex.34.
7. Statement of accused was recorded as provided under Section 342, Cr.P.C. at Ex.36 to 45 respectively whereby accused did not choice to examine themselves on oath in disprove of the charge neither wishes to led any defence evidence as provided under Section 340(2), Cr. Cr.P.C.
8. Learned counsel for the appellant(s) in both Appeals contended that the impugned judgment is in conflict with the facts, law, equity, justice and the principle of natural justice; per learned counsel learned ATC Judge while convicting appellants has not appreciated the relevant facts of the case and did not consider all aspects of the case and had not appraised the entire evidence properly but passed an erroneous Judgment of conviction which is not maintainable in law; per learned counsel name of the appellant Allandino alias Babo could not find place in the FIR bearing No, 139 of 2009, only complainant had identified the present appellant at the time of evidence before the trial Court; per learned counsel PW-1 Ghulam Qadir examined at Ex.21 disclosed that he did not know accused person prior to incident nor he disclosed any description as well as feature in his statement recorded under Section 161, Cr.P.C. but the names of culprits disclosed to him by the police; per learned counsel PW-Chandro Mallah admitted that his statement under Section 161, Cr.P.C. was recorded after eight to ten days of his release; PW-Mitho also disclosed that his statement was recorded after two three days; per learned counsel there are series of contradiction between the evidence of prosecution witnesses on many points; per learned counsel the impugned judgment passed suffers from surmises and conjectures and requires interference by this Court; per learned counsel the identification parade was also not been conducted in accordance with the requisite requirement of Law; per learned counsel there is no direct, reliable and tangible evidence about the murder of deceased Ramesh Kumar by using Rocket Launcher and damaging the alleged wall or kidnapping of abductees against the present appellants; per learned counsel the impugned Judgment awarding conviction is illegal, unjust, improper is the result of non-reading and misreading, as such same is liable to be reversed.
Learned counsel have relied upon 1995 SCMR Page 27 R/L 128, 2011 SCMR Page 762, NLR 1989 S.D.
Page 334, 2007 SCMR 605, 1995 SCMR page 1345, 1998 SCMR Page 25, 1998 SCMR Page 279, PLD 1996 P.I.(sic), 1993 SCMR Page 417 and NLR S. Decision Page 233 and 2017 YLR 1641.
9. Learned Deputy Prosecutor General opposed the captioned Criminal Appeal(s); per learned DPG the impugned judgment is as per spirit of law, well versed and acquainted with the prosecution case; per learned DPG there is sufficient material available with the prosecution which would connect the appellants with the commission of offence; per learned DPG an, innocent person has lost his life of his no fault therefore the learned trial Court has rightly convicted and sentenced the appellants; per learned DPG there is no illegality and irregularity in the impugned judgment; per learned DPG the impugned judgment may be upheld and the Appeal(s) moved before this Court by the appellants may be dismissed.
Learned DPG relied upon 1999 MLD 514.
10. We have scanned the entire evidences available on record. It is now by settled provisions of criminal law that this Court has to reappraise the entire evidence for safe administration of justice.
We would like to introduce evidence of prosecution witnesses as follows:-- PW-I Lal Chand, deposed as follows:- "On 29-04-2009 we were sleeping on the roof our shop while at about 2:30 a.m., accused Long Sorjo came there and took away/ abducted the Ramesh Kumar, Naresh Kumar, Khaim Chand, Chando Mallah [Chowkidar], Mitho [Chowkidar] and Ghulam Qadir forcibly on gunpoint while directed to pay ransom amount Rupees Five Lac to him at Khadi Bailo [Forest] for their release.
Then after 2/3 days accused Long Sorjo killed my maternal nephew Ramesh Kumar"
PW-2 Ghulam Qadir, deposed as follows:- "Accused Long Sorjo, Sikandar and Babu were watching us as guard. Complainant paid Rupees Five Lacs to accused persons for our release and after payment we were released. I do not know' whether complainant to whom paid ransom amount. Then accused Babu Teetari, Hote, Hassan took abductee Ramesh with them and shifted him in separate place. The witness correctly point out accused present in Court namely Babu Teetari, Hote, Shahnawaz and Imtiaz alias Barkat are the culprits of his abduction for ransom"
PW-3 Mitho, deposed as follows:- "Accused Long Sorjo disclosed us that abductee Ramesh sell out by them in Rupees Two Crore.
Then we went to Halai city where we met locality persons and narrated them whole story then they called complainant and then complainant brought us home.
PW-4 Chadro deposed as follows:- "One culprit disclosed his name as Long Sorjo and others were his companion. Thereafter I do not know what happen with us. Witness pointed towards accused Hote, Allandino alias Babu Teetri and Imtiaz Ali alias Bakrat they abducted us with other culprits"
PW-5 Nooruddin Brohi, SHO PS Bailo [the then he was] deposed as follows:-- "I checked the pickets and Imdad Ali and Noor Ahmed present there including Abdul Nabi. We were checking those persons suddenly firing started from the back side of dispensary. We also fired in retaliation. while taking the shelter of dispensary. The firing remained continued for about half an hour and stopped. We tried to catch out the culprits but due thin forest and bushes accused persons escaped good from the scene. During the search we found one dead body on the back side of police pickets of dispensary then 1 asked from complainant regarding the sumbol his abducted person who disclosed me that the iron wrist is on his left side hand. However, complainant Lai Chand informed me that is Ramesh Kumar who is his nephew"
PW-6 Amar Singh, deposed as follows:- "After 26 days accused released us in between the city of Hala and Matiari and .they further asked that ransom payment was paid our relatives. Meals prepared by accused themselves. Five persons were released by culprits including me i,e, Khaimo, Naresh, Chandro Mallah, Mitho Mallah and Ghulam Qadir Palari, then we went our own houses. On 15.06.2009 1 went to the second Judicial Magistrate Sujawal where I identified accused Allandino alias Babu Teetari who had abducted us along with others. Witness pointed towards accused Imtiaz Ali whose alias is Barkat, Hote Janwari and Babu Teetari that they abducted them with their companions"
PW-8 Dr. Noorullah Larik, Medical Officer, Sujawal Hospital, deposed as follows:- "In my opinion conducting the post mortem of Ramesh Kumar son of Jaitha Nand aged 25 years the cause of death is heavy blood loss and shocked due to rupture of heart and lung due to close range of fire arm injury"
11. Thus the remaining prosecution witnesses / mushirs of arrest and recovery as well are Investigation Officer and the Judicial Magistrate and the Doctor whom have narrated story in relation to the proceeding which they had carried out. All the prosecution witness have fully implicated the appellants with the commission of offence and their testimony appears to have been trust worthy, confidence inspiring and is in league to each other. There are minor contradiction which could not negate the whole scenario because the abduction is not denied, the death of abductee Ramesh Kumar is not A denied who as alleged has been caused due to close range by fire arm injury, the ransom amount as alleged has been paid to the culprits is not denied at all. There is chain of circumstances which ultimately linked to each other. The learned defence counsel could not help to point out with regard to the denial of supra stated aspect just like Abduction, Murder and the Ransom. Apart from above all the prosecution witnesses have correctly identified the accused persons before the court because accused persons abducted the chowkidars and relatives of the deceased Ramesh Kumar on gunpoint i,e, PWs (i) Naresh Kumar (ii)
Khaim Chand (iii) Chando Mallah [Chowkidar], (iv) Mitho [Chowkidar] and (v) Ghulam Qadir.
Suffice to say there are minor contradictions in the identification parade of the appellants because it has been found after due scruting the accused persons and the witnesses were in one and same mobile van of police when were brought before the Judicial Magistrate for identification parade. Be that as it may, when victim of the occurrence were abducted whereby all have been remained in the illegal confinement of dacoits approximately twenty six days and abductees/victims/eye- witnesses seen the assailants over there viz. place of illegal confinement which was being guarded by co-assailants dacoits as alleged whereby witnesses have correctly picked up the appellants in the identification parade before the learned Court below.
In the case of Khawaja Hassanullah v. The State reported 1999 MLD 514, it has been held as follows: -- "---Art.9---Id.entification parade--Purpose---Sole purpose of identification test is to ensure that an innocent person, either deliberately or by mistake, is not involved in the case--- Identification of accused is not a legal requirement but when it is necessary. Court is duty bound to examine all the possible steps were taken for holding fair identification test and the witnesses, at their own, had correctly picked up the culprits" ---S. 365-A--- Abduction for ransom--- Sentence--- Work of culprits in cases of abduction for ransom is mostly divided and pre-planned---Abduction is done by some of the culprits, place of confinement is guarded by others and ransom is extorted by one or two of them---Object of all the culprits being to extort money, punishment could be the same irrespective of the role played by each of them"
12. In identification test no illegality seems to have been committed. We are of the view that in this particular case there was no need for identification as the offence was proved by the irrefutable testimony of P.Ws., particularly the victim eye-witnesses namely Amar Singh Chando Mallah [Chowkidar], Mitho [Chowkidar] and Ghulam Qadir. Even otherwise, it is general trend nowadays that the people avoid to depose against person who are involved in atrocious offence. This case is to be decided on the basis of evidence available on record. The contention raised on behalf of the appellants would have no force and the case of the prosecution stands proved by all canons beyond shadow of any reasonable doubt. Learned defence counsel tried to shake the testimony of witnesses to absorb the identification of appellants but nothing word could be brought out from the mouth of witnesses in identification of the appellants because the eye-witnesses are the victim of the occurrence and had rightly picked up the appellants when the identification parade was held between the dumy's and no innocent person has been involved by the eye-witness except the appellants.
In the case of Muhammad Afzal 1982 SCMR 129, it has been held as follows:-- S. 302--- Identification proceedings---Value--Not safe to accept statement of a witness about complicity of an accused in a crime if witness did not describe accused by name or other particulars during investigation and still not made to identify him out of a group---Identity of accused if proved by other convicting evidence, direct or circumstantial, absence of identification test proceedings, held, immaterial---[Identification]
(c) Penal Code (XLV of 1860)
"----S.302---Evidence, apprecia-tion of--Identity of accused in no way found doubtful and corroborated by recoveries made at instance of accused---Conviction not interfered with [Identification]
13. For what have been discussed above and in the light of evidence so adduced before the learned trial Court remained unshaken are reliable, confidence inspiring and there is no material contradiction found in the evidence of prosecution witnesses as well as in the eye-witnesses, therefore, we are of the firm opinion that prosecution has proved its case against the appellants beyond shadow of any doubt.
14. We have taken guideline from the case law reported as 2012 SCMR 721 in the case of Muhammad Riaz and others v. Bilqiaz Khan and others, it has been held as follows:-- "---Ss. 365 & 365-A---Abduction and abduction for ransom---Re-appraisal of evidence--- Preconditions--- Passing of ransom---Proof--- Accused were convicted under S.365-A, P. P. C. by Trial Court for abduction for ransom and sentenced to imprisonment for life and High Court converted the conviction to only abduction under S.365, P.P.C., and sentence was reduced to 7 years' imprisonment--Reasons which found favour with High Court to reverse conviction under S. 365-A, P.P.C., to one under S.365 P.P.C., were that middle man who received the ransom amount for onward transmission to accused was neither made an approver nor a witness; nothing was brought in evidence as to wherefrom ransom amount was obtained or borrowed and manager of the bank from where money was drawn was also not produced and payment of amount was not free from doubt-Validity-Such observations of High Court were conjectural, fanciful and reflected non-reading of material evidence---Prosecution was not obliged to make middle man as approver or to explain as to from where ransom amount was drawn or to produce the bank manager-Passage of money was not a pre-requisite to prove S. 365-A, P.P.C.,---Accused had abducted two persons for the purpose of extorting ransom and had compelled complainant to comply demand for cash/ransom for releasing the abductees--- Supreme Court set aside conviction and sentence passed by High Court and restored that of Trial Court---Appeal was allowed"
[The underline is ours] It has also been held in a case law reported as 2012 SCMR 140 Javed lqbal and another v. The State, it has been held as follows:-- "----S. 365-A---Abduction for ransom--- Reappraisal of evidence---Quantum of sentence- Ransom, receipt---No recovery from accused---Conviction and sentence of 14 years of imprisonment, awarded by Trial Court to accused was maintained by High Court---Plea raised by accused was that no recovery was either effected from him or on his pointation--Validity---Plea raised by accused was insignificant as it was not the role but it was the goal of abduction for ransom which mattered---Presence of accused at the time when all accused persons picked the ransom near letter box at railway station was sufficient to connect him with the offence of abduction--Accused was also found in the company of co-accused at the time when deceased was abducted on motorcycle---Reasoning for award of sentence to accused by High Court and Trial Court were sound and did not warrant interference---Once the offence was proved, accused should have been awarded sentence of death but as legal heirs of deceased had entered into compromise with co-accused and the compromise had been accepted, therefore, Supreme Court enhanced the sentence of 14 years' imprisonment to imprisonment for life with forfeiture of all moveable and immovable properties---Appeal was dismissed.
15. We have scrutinized the case in hand and it had transpired that the state of affairs is simultaneous, ransom has been paid by complainant and it had duly been received by the accompanion of dacoits, thereafter abductee Ramesh Kumar has also lost his life at the hands of appellants. Perhaps there is no canon for creating any reasonable doubt with regard to the abduction receiving of ransom as well as death of an innocent citizen as such the case of prosecution went proved and stand at his own legs instead weaknesses of defence. As stated supra and in the light of case law referred to above, the case law referred by the learned defence are distinguishable.
16. At the juncture, the conviction and sentence awarded to the appellants by the learned trial Court needs no interference by this Court and the impugned judgment delivered on 15th June, 2010 by the learned trial Court stand upheld whereby conviction and sentence awarded to the appellant is maintained. Both the Appeals stand dismissed.
These are the reasons of the short order dated 27-04-2018