ABDUL MOBEEN LAKHO, J . --Appellant filed the instant Criminal Appeal on being aggrieved and dissatisfied with the judgment dated 10.09.2013, passed by the learned Judge, Anti-T errorism Court No.1, Karachi, in Special Case No.08/2009, arising out of FIR No.50/2009 for the offences under sections 365-A/302, P.P.C. read with section 7(a)(e) of ATA, 1997, registered at Police Station Awami Colony (AVCC) and in Special Case No.09/2009, arising out of under FIR No.30/2009 for the offence under section 13-E Arms Ordinance, registered at Police Station Landhi (A VCC), whereby the appellant was convicted and sentenced as under:-- a) Convicted under section 7(e) of Anti-T errorism Act, 1997 read with section 365-A, P.P.C. and sentenced him for imprisonment for life and forfeiture of his property . b) Convicted under section 7(a) of ATA, 1997 read with 302, P.P.C. and awarded him imprisonment for life and fine of Rs. 200,000/-. In case of default of payment, he shall further suffer R.I. for (01) year . c) Convicted under section 13(e) Arms Ordinance, 1965 and sentenced to stiffer R.I. for (07) years and fine of Rs.10,000/-. In case of default of payment, he shall further undergo R.I. for (06) months.
However , all the sentences were ordered to run concurrently . The benefit of section 382-B, Cr.P.C. was also extended to the appellant.
2. The brief facts of the prosecution case are that on 31.01.2009 at 1210 hours, Complainant Muhammad Sharif son of Abdul Mehboob lodged FIR at Police Station Awami Colony , Karachi, stating therein that on 30.01.2009 at 6:00 p.m., his son. Zeeshan alias Shani, after delivering meat to Adamjee Company , one Asif friend of the complainant's son Zeeshan alias Shani, his son Noman and his brother-in-law were sitting at his shop and in their presence his son Zeeshan alias Shani informed them that his brother-in-law (Hamzulf) namely Sagheer son of Ameer Hussain had called him on his mobile phone to accompany him to Hyderabad for some work and he would come back before 12.00 midnight On the same night at about 12.00 midnight he received, telephone call from mobile No.0303-2276416 informing him that his son is in their custody and disconnected the call. Thereafter , at about 3.00 a.m., the complainant again received call from mobile phone No.0322-3519599 of his son, but without any conversation the caller disconnected the call. After some time, he again received a call and the caller disclosed to him that his son is in their custody and he should arrange Rs.1 Crore. The caller further informed him that Motorcycle of his son is lying parked at Quaidabad and they would contact him again after two days and disconnected the call. Thereafter , the kidnappers did not contact him and the complainant - suspected that his son Zeeshan alias. Shani was kidnapped by his brother-in-law (Hamzulf) Sagheer son of Ameer Hassan along with his other unknown companions for ransom and they had kept his son at some unknown place. The Complainant informed SIP Muhammad Nawaz Jatoi who recorded his statement and registered FIR No. 50/2009, under section 365-A/34, P.P.C. at Police Station Awami Colony , Karachi. The police arrested accused in the above crimes and brought him at police station.
3. After completion of investigation of these cases, I.O. submitted his report under section 173, Cr.P.C. against the present accused. A charge was framed against the accused to which he pleaded not guilty and claimed his trial at Ex.05 Ex.05/A.
4. At the trial, prosecution examined PW-1/Complainant Muhammad Shareef at Ex.6, he produced FIR No.50/2009 at Ex.6/A, memo of arrest of accused and personal search at Ex.6/B, memo of recovery of dead body , search of dead body at Ex.6/C, memo of recovery , seizure and arrest of accused at Ex.6/D, superdiginama of dead body at Ex.6/E. PW-2/ASI Munsif Khan at Ex.7, who produced station diary dated 31.01.2009 at Ex.7/A. PW-3/SIP Saeedullah at Ex.9, who produced inquest report of deceased at Ex.9/A, Statement under section 154, Cr.P.C. at Ex.9/B, Letter addressed to MLO for issuance cause of death at Ex.9/C. PW-4/Cloth Merchant Abdul Majeed at Ex.10. PW-5/SIP Muhammad Nawaz at Ex.11. PW-6/Sweeper Abbas Masih at Ex.12, who produced memo of pointation of thrown away SIM at Ex.12/A.
5. PW-7/Dr . MLO JPMC, Karachi at Ex.14, who produced postmortem report at Ex.14/A) Certificate of cause of death at Ex.14/B. PW-8/Inspector Ali Muhammad at Ex.15, who produced memo of pointation of place, of Vardat at Ex.15/A, memo of recovery of motorcycle No.KBQ-8763 at Ex.15/B, memo of seizure of mobile phone call print at Ex.15/C, Mobile phone call print 6 leaves at Ex.15/D. PW-9/H.C. Said Mehmood at Ex.16, who produced FIR No. 30/2009 at Ex.16/A. PW-10/Inspector Mehar Ali at Ex.17, who produced FSL report at Ex. 17/A. PW-11/Laborer Mohammad Asif Sarwar at Ex.18. PW-12/Inspector Ch. Manzoor Ahmed at Ex.19, who produced order of SSP AVCC dated 01.02.2009 at Ex.19/A, another order of SSP AVCC dated 01.02.2009 at Ex.19/B, Roznamcha Entry No.14 at Ex. 19/C, Roznamcha Entry No.18 at Ex. 19/D, letter dated 02.02.2009 at Ex. 19/E, letter dated 02.02.2009 at Ex. 19/F, another letter dated 02.02.2009 at Ex. 19/G, letter dated 18.02.2009 at Ex. 19/H, Letter addressed to Chemical Examiner at Ex.19/I, Report of Chemical Examiner at Ex.19/J, Entry No.40 at Ex.19/K, Entry No.26 at Ex.19/L, Entry No.55 at Ex.19/M. Thereafter , learned SPP for the State closed the side of prosecution as at Ex.20.
6. Statement of accused Sagheer Ahmed son of Ameer Hassan was recorded under section 342, Cr.P.C. at Ex.21, wherein he denied prosecution allegations and professed his innocence. Accused in his statement further stated that "He is innocent and nothing to do with the alleged offence. He did not meet him on 30.01.2009 at about 1800 hours. He denied the allegations levelled against him and prayed for justice . In disproof of the charges, he did not examine himself on oath. Accused also led evidence in his defense and examined Nighat Ara as DW-1 at Ex.22, DW-2 Sharif Khan at Ex.23, DW-3 Afsheen Kanwal at Ex.24, DW-4 Mohammad Aamir Khan at Ex.25, who in effect were alibi witnesses.
7. The learned trial court, after hearing the parties and on assessment of the evidence, convicted and sentenced the appellant vide judgment dated 10.09.2013, which is impugned before this Court by way of filing the instant Appeal.
8. Learned counsel for the appellant contended that the appellant has been falsely implicated in this case with mala fide intention and ulterior motives; that nothing incriminating has been recovered from him; that the pistol has been foisted upon him; that the report of FSL is managed one; that there are major contradictions in the statements of prosecution witnesses; that the impugned judgment is the result of misreading and non-reading of evidence; that no identification parade was conducted; that there is violation of section 103, Cr.P.C.; that the learned trial court has not applied its judicial mind while convicting the appellant. He further submitted that prosecution is duty bound to prove its case beyond a reasonable doubt and the present case is not free from doubts. Lastly he prayed that appellant may be acquitted by extending him the benefit of doubt. In support of his contentions he has placed reliance on the case of Azeem Khan and another v. Mujahid Khan (2016 SCMR 274), Hashim Qasim and another v. The State in Cr. Appeals Nos. 115 and 116 of 2013 and C.P. No. 161 of 2013 (2017 SCMR 986) and Muhammad Akram v . The State (2009 SCMR 230 ).
9. Learned Deputy Prosecutor General contended that the appellant is a dangero us and desperate criminal; that the appellant voluntarily led the police party and got the dead body of Zeeshan Shani recovered on his pointation lying in an iron box, that the pistol loaded with magazine containing 6 live bullets and one empty was lying on the ground, which was sent to ballistic expert and such report is against the appellant; that that the witnesses including private persons in their respective depo sitions have supported the case of the prosecution and implicated the appellant with the commission of offence without major contradictions or discrepancies and the minor contradictions, if any, are of no significance and the same may be ignored in view of the facts and circumstances of the case. Finally , he prayed that the prosecution has successfully proved its case against the appellant beyond shadow of reasonable doubt and the learned trial court has rightly convicted the appellant and prayed for dismissal of appeal. In support of his contentions he has placed reliance on the cases of Hamid Mahmood and another v.
The State (2013 SCMR 1314 ), Nazir Shehzad and another v. The State (2009 SCMR 1440 ), Zakir Khan and others v. The State (1995 SCMR 1793 ; The State v. Manzoor Ahmed in Cr. Appeals Nos. 1 and 2 of 1965 (PLD 1966 Supreme Court 664) and Muhammad Sharif v . The State (2011 SCMR 1046 ).
10. The appellant counsel has read out the entire evidence and we have heard learned counsel of the parties and perused the entire record available before us and considered the relevant law including the cases cited at the bar .
11. Admittedly there is no eye witness to the kidnapping and murder which makes this a case of circumstantial evidence and thus we have considered the prosecution evidence with great care and caution.
12. A close scrutiny however of the evide nce available on record reflects that all the prosecution witnesses have fully supported the case of the prosecution and implicated the appellant with the commission of the offences so charged. There are no major contradictions in the evidence of the PWs and even any minor contradictions which there may be have not materially effected the prosecution case and can be ignored. In this respect reliance is placed on Zakir Khan v . State (1995 SCMR 1793 ).
13. At the outset of the prosecution case PW-11 Mohammad Asif Sarwar fully implicated the accused by supporting the version of the complainant PW-1 by stating that he was sitting on the meat shop when at 06:00 p.m. his friend Zeeshan came on the shop on his motorcycle and he informed his father (complainant) that he has to go Hyderabad with his (Hamzulf) Sagheer and will return well before 12:00 midnight. It was on the appellant's invitation that the deceased had accompanied him and went missing. Importantly PW-11 Mohammad Asif is an independent witness who had no reason to falsely implicate the appellant.
14. It has come on record that the police arrested the appellant after the complainant showed his suspicion on the appellant. Most crucially from the place of his arrest the appellant immediately led the police party along with PW-1 Muhammad Shareef, PW-2 Munsif Khan and PW-4 Abdul Majeed and got recovered the dead body of deceased on his A pointation lying in an iron box, the key to the iron box followed by the recovery of 30 bore pistol and empty used in the crime from the house of the appellant which was fully corroborated by PW-1 Muhammad Shareef, PW- 2 Munsif Khan and PW-4 Abdul Majeed in their evidence. Again importantly the police had no idea where the dead body was or the key to open the box which could have only been in the knowledge of the appellant and as such his pointation in this respect is of great significance. The report of FSL is positive and the medical evidence fully supports the prosecution case. No explanation whatsoever has been put forwarded by the appellant regarding this recovery of the dead body of the deceased Zeeshan alias Shani. No evidence of enmity in terms of mala fide or ulterior motive has been brought on record by the appellant which might have actuated the complainant or police or any other PW to falsely implicate the appellant in this case. No identification parade was required as the complainant PW-1 Muhammad Shareef and PW-11 Asif knew the appellant who in any event led them to the dead body .
15. The prosecution has therefore base d on the above discussion successfull y proved the case against the appellant by producing corroborative circumstantial evidence which links the appellant to the murder of the deceased through ocular evidence, medical evidence in the form of medical report, recovery of body , key to box, pistol, the deceased motor bike from the place where the ransom caller mentioned, the CDR data, positive FSL report. Furthermore, the evidence of the prosecution witnesses is consistent trustworthy and confidence inspiring and the defence has failed to shatter their evidence during cross-examination.
16. We are fortified on our findings by the case of Hamid Mahmood and another v. The State (2013 SCMR 1314 ) which held as under: "Chain of guilt is found not to be broken and irresistible conclusion of guilt is satisfactory from the evidence, which is connecting the accused with the commission of the offence without any doubt or suspension. If the circumstantial evidence brought on the record is of such nature then the conclusion would be in the shape of conviction and no other conclusion shall be drawn by any stretch of imagination in such a case, for the guilt of the accused, penalty of death or life imprisonment shall be a normal event."
17. Likewise reliance is also placed on the case of Nazir Shehzad and another v. The State (2009 SCMR 1440 ) which held as under: "Having rejected, above noted pieces of evidence, we have considered and scrutinized the remaining prosecution evidence, in, depth. P.W.13 stated in clear terms that, after arrest of the accused he firstly interrogated Samar Jan and later on he interrogated Nazir Shahzad. Both the appellants, who were separately interrogated, informed the Investigating Officer about the place i.e. Rohi Nala in the area of Police Station Kahna, where they had thrown the dead body . This discovery based on the information furnished by the appellants led to the recovery of dead body from the Nullah. There is no doubt about it that prior to information furnished by the appellants the whereabout of dead body were not known to anyone. The information furnished by the appellants to the Investigating Officer can be used against them under Article 40 of Qanun-e-Shahadat Order , 1984. As in a case of circumstantial evidence where there has been discovery as a result of confession made under Article 40 of the Qanun-e-Shahadat Order , 1984, it is expected to find the discovery of something which can be associated with the deceased."
18. As to the defense taken by the appellant we note that this was not put to any witness during cross-examination; that the DWs are all closely related to the accused and we consider such defense to be an afterthought which we disbelieve.
19. Thus as mentioned earlier based on the above discussion and our reassessment of the evidence we find that the prosecution has proved its case against the appellant beyond a reasonable doubt. Hence, we do not find any merit in the instant appeal, therefore, the impugned judgment C dated 10.09.2013 is upheld and the convictions and sentences awarded by the trial Court are hereby maintained and the appeal is dismissed.