1. MUHAMMAD ASLAM ARAIN, J.--- These four appeals arise out of judgment, dated 4-8-1991 passed by the Judge, Special Court II (S.TA.) Karachi in Case No.132 of 1990, under section 365/34, P.P.C.
2. (F.I.R. No.410 of 1990 of Police Station Bahadur Abad Karachi). The five appellants in these appeals (alongwith acquitted co-accused Komail and Imran) were tried on the charge of having abducted one Hasan Mahboob son of Mahboob Illahi on 24-8-1990 for ransom. Each one of the appellants were found guilty of the offence under section 365-A, P.P.C. And convicted and sentenced to imprisonment for life, fine of Rs.50,000 each and in default of payment of fine to undergo further R.I.
3. For three years. Accused Komail and Imran were given benefit of doubt and acquitted. Accused Din Muhammad alias Dino was absconder and his case was ordered to be kept on dormant file. The ransom amount of Rs.3 lacs recovered during investigation, is directed to be returned to complainant Mahboob Illahi. The five convicts have challenged their conviction through these appeals.
4. Briefly stated, the facts are that on 24-8-1990 at 1740 hours, one Mahboob Illahi lodged F.I.R. No.410 of 1990 at Police Station Bahadurabad under section 365/34, P.P.C. It was stated that his son Hassan Mahboob aged about 16 years went in his Car No.R-6536 to Bungalow No.15 of one Jehangir Syed Shahzada, near P.I.A. Hospital, and did not return till 3-30 p.m., when Sikandar and Faisal, Jehangir's younger brother Shoaib came and informed him that the car in which Hassan Mahboob had gone, was standing abandoned in a lane in front of their bungalow. Hasan Mahboob was not in the car and the key of the car was missing. He went to the given place, found the car without key in the switch and having got no further information, lodged the report that some unknown persons had abducted his son.
5. Sabir Hussain, Incharge Police Station Bahadurabad, visited Wardat, prepared Mashirnama Exh.37 in presence of Mashirs Babar and Shoaib, examined Chowkidars Jamil and Hayee, and recorded further statement of complainant. Since he could not get any clue of kidnapee, he transferred the case to C.I.A. On 7-10-1990.
6. On the night between 6th and 7th October, 1990, Sultan Masood Kayani, Inspector C.I.A. Anti- kidnapping Cell, Karachi, formed different police parties for patrol alongwith Eagle Squad under supervision of D.S.Ps. Ch. Abdul Hameed and Arshad Kamal Kayani. He himself headed a polite party, which included S.I. Latif, A.S.I. Arshad Butt, A.S.I. Muhammad Maroof, H.C. Afzal Beg and others and went in 2 police vans for patrolling in Manghopir area. During that, he received spy information that some culprits were coming from Hub side. He arranged Nakabandi near Karam Ceramic Factory on the incoming road from. Hub, when at 5-45 a.m. On 7-10-1990, they saw a Suzuki Pickup, which when reached near, was stopped, with 2 persons in it. On investigation, the driver gave his name as Dhani Bux, while the other gave his name as Sulleman. On their search, a .32 bore pistol loaded with 6 live bullets was recovered from the folds of Shalwar of Dhani Bux while from Sulleman a .32 bore pistol loaded with 6 live bullets concealed in the folds of his Shalwar was recovered. As they had no licences, they were arrested under Mashirnama Exh.21, in presence of Arshad Mahmood Butt and Mashirs A.S.I. Muhammad Ayaz and H.C. Afzal Baig. The Suzuki Pick-up was also seized. The arrest of Dhani Bux and Sulleman and recovery of unlicensed arms was conveyed to D.S.Ps. Ch. Abdul Hameed and Arshad Kamal Kayani, who both reached soon, and interrogated the 2 accused.
7. During interrogation both the accused agreed to point out the co---accused who were kidnappers and also the kidnapee Hassan Mahboob. The accused took the police party to Bungalow No.34-A, Khayabane Janbaz Defence Housing Society, which was raided and accused Nazir produced a K.K.
8. Loaded with 20 live bullets which he was carrying and on his pointation, a rifle of .22 bore loaded with 5 live bullets and 15 live bullets of K.K. Were recovered from under a bed on the- floor of a room. Since he had no licence for the said arms, he was arrested under Mashirnama Exh.10, A.S.I.
9. Muhammad Maroof, A.S.I. Arshad Mahmood Butt and a private person Dilbar alias Aslam, acting as Mashirs.
10. Accused Nazir then volunteered to point out co-accused Abdul Sattar Niazi, Muhammad Asim, Komail. Imran and absconding accused Din Muhammad. He first led the police to the house of accused Abdul Sattar Niazi, situated in Dhobi Shat Niazi Colony. He was arrested from his house, under Mashirnama Exh.11 D.S.P. Arshad Kayani and Ch. Abdul Majeed went to C.I.A. Centre with accused Dhani Bux, Sulleman and Nazir.
11. Inspector Masood Kayani, with his party remained back. Accused Abdul Sattar Niazi volunteered to lead the police and point out the house of accused Asim in Jinnah Coop. Housing Society. Accused Asim was arrested from his house in presence of A.S.I. Maroof and Arshad, but nothing was recovered from him. During interrogation, accused Asim agreed to point out the house of co- accused Imran. He led police to Imran's house, wherefrom Imran was arrested, but nothing was recovered from him. Both Asim and Imran volunteered to point out the house of co-accused Komail. They led the police to Komail's house wherefrom he was arrested.
12. On 8-10-1990, on the pointation of accused Komail, Car No.221-421, used in the kidnapping was recovered from show room of J.K. Motors, situated in Sindhi Muslim Housing Society, which, according to accused Komail, he had taken on rent. The agreement of renting out the car and N.I.C.
13. Of accused Komail was produced by Abdul Jabbar owner of J.K. Motors, who further disclosed that accused Komail was introduced to him by one Yousif; owner of Crown Motors.
14. During interrogation, accused Asim voluntarily agreed on 13-10-1990 to produce the ransom amount, which he had kept with one Abdul Wahid, owner of King Carpets on Tariq Road. He led the police to the said shop where Abdul Wahid Motiwala was sitting. Accused Asim asked Wahid to bring the cash kept by Asim with him. Abdul Wahid brought an envelope of Khaki colour, which had three bundles of Rs.1,000 denomination cash, amounting to Rs.3 lac. The cash was secured under Mashirnama Exh.15.
15. On 18-10-1990, accused Sulleman volunteered to give confession for which he was produced before Magistrate C.I.A. On 20-10-1990, who recorded his confession. On the same day i.e. 20-10- 1990, identification test of accused Sulleman, Dhani Bux, Abdul Sattar Niazi and Nazir Ahmed was held by the Magistrate through kidnapee Hassan Mahboob.
16. On 19-10-1990, accused Dhani Bux voluntarily agreed to point out that Oil Tanker belonging to one Khair Muhammad, in village Haji Muhammad Goth, Manghopir area used in removing kidnapee.
17. The police went and recovered tanker NO.QA-4510 at the pointation of Dhani Buy, under Mashirnama Exh.35. After usual investigation, all the seven accused were challaned for offence under section 365-A, P.P.C.
18. The charge was framed against the appellants for offence under section 365/34, P.P.C. And also 365-A/34, P.P.C. On 13-1-1991. The appellants pleaded not guilty and claimed to be tried. Before the charge was framed, N.B.Ws. For procuring attendance of absconding accused Din Muhammad were issued and since he could not be arrested, he was declared absconder.
19. Prosecution examined P.W.1 S. Abdul Jabbar Exh.5. He was the proprietor of J.K. Motors, and dealt in rent-a-car business. He stated that 21-8-1990 while he was in his office at 11 or 12 noon accused Komail came and requested for a car in rent. One Muhammad Yousif of New Crown Motors telephoned him to give car on rent to Komail, as he was his man. Car No.0221--421 Charade was given to Komail and necessary form was signed and identity card of Komail was obtained, which he produced as Exh.6. On 25-8-1990, accused Komail returned the car and paid the amount. Later, on 8-10-1990 police came and enquired about the car and he gave the details to police and also showed the documents executed by Komail.
20. P.W.2 Muhammad Yousif Exh.8 was an employee in the show-room of Crown Motors and he identified accused Komail in the Court, who according to him resided in his Mohallah. He also stated about a telephone call from one Jabbar of J.K. Motors recommending to give car to Komail on rent. The car was then returned and on 8-10-1990, C.I.A. Inspector came to the show-room alongwith accused Komail and Jabbar of J.K. Motors. He was taken to C.I.A. Centre but subsequently released.
21. P.W.3 Arshad Mahmood Butt Exh.9 was posted as A.S.I. In C.I.A. Centre on 7-10-1990. At 2-00 a.m. On the said date he left for patrol duty alongwith Inspector Sultan Masood Kayani, S.I. Latif Shaikh, A.S.I.
22. Maroof, A.S.I. Aijaz and others. He stated that at 5.45 a.m. After Inspector Kayani got spy information that kidnappers were coming in a Suzuki Carry, a Nakabandi was arranged near Karam Factory and at 5-45 a.m. They saw a Suzuki coming. It was stopped and on inquiry the two persons in the car gave their names as Dhani Bux and Sulleman (both accused). On interrogation and a search a .32 bore pistol from Shalwar folds of Dhani Bux and .30 bore pistol from Shalwar folds of Sulleman duly loaded both were recovered under a Mashirnama. He also stated that both accused voluntarily agreed to point out the house of accused Nazir being 34-A Clifton Karachi, who was associated with them in the abduction of Hassan Mahboob. This witness alongwith the two accused and police party then went to the house of Nazir, and on a kock at the door, accused Nazir came out and was arrested. On search of his house from under a bed on floor a 7 mm rive was found lying loaded with five bullets. It was seized and on further pointation of Nazir one K.K. Loaded with 20 live bullets in the magazine was recovered from another room. It was seized by Inspector under Mashirnama Exh.10. A.S.I. Maroof and one Dilbar, acted as Mashirs. Arshad Mahmood Butt also signed Mashirnama Exh.10. He also stated that accused Nazir then volunteered to point out another accused Sattar Niazi, associated in the crime and on such information the police was led by Nazir to the house of Sattar Niazi in Dhobi Ghat Niazi Colony. Accused Niazi came out from his house and was arrested under Mashirnama Exh.11. Accused Sattar Niazi then agreed to point out accused Asim resident of Bahadurabad to be their other associate. The police then went to the house of Asim, knocked at the door and when Asim came out he was arrested vide Mashirnama Exh.12, A.S.I. Maroof and Arshad Mahmood Butt having acted as Mashirs. Accused Asim then volunteered to point out the house of accused Komail and Imran who were also said to be their associates. He took the police party first to the house of Komail in Bahadurabad who was found present and was arrested. Mashirnama Exh.13 for his arrest was prepared. On the pointation of accused Asim the police went to the house of Imran in Bahadurabad and his Flat was pointed of out by Asim. He was found in his flat and was arrested vide Mashirnama Exh.14.
23. He further stated that on 13-10-1990, accused Asim voluntarily agreed to point out one Wahid, running a carpet shop at Tariq Road, where ransom money was deposited. Accused Asim took them to the said shop where Wahid was present and he produced Rs.3 lac in a brown envelope which were in 3 pads of Rs.1,000 denomination each. It was secured under Mashirnama Exh.15. On 14-10-1990, father of abductee came to C.I.A. Police and produced a cassette before Inspector Kayani and it was secured under Mashirnama Exh.16. He admitted in cross-examination that Bungalow No.34-A from where accused Nazir was arrested, was situated in Clifton. He denied the arrest of accused Asim from his house on 7-10-1990 at 6-00 a.m. He admitted in cross of accused Imran that there were so many flats near the flat of Imran but did not take any Mashir from the locality. He admitted that Bungalow No.34-A was in possession of Sardars of Baluchistan and was occupied by accused Nazir as Chowkidar.
24. P.W. 4 Abdul Wahid Exh.7 was the proprietor of King Carpets at Tariq Road. He stated that accused Asim was known to him and they had family and business terms. He also stated that about one and half months before 17-10-1990 when police came to him, mother of accused Asim in presence of Asim, gave him Rs.3 lac for purchase of a car for Asim. This witness stated that he also dealt with car business. The money was kept by Asim for the said purpose but he could not get any suitable car. On 7-10-1990, while he was in the mosque for Isha prayers he was called by and asked him to return Rs.3 lacs kept with him by accused Asim. The witness told the police to come next morning as it was late in night and the shop has been closed. He was taken to C.I.A. Centre and on 8-10- 1990, his elder brother Yousif went to C.I.A. Centre and handed over Rs.3 lacs to C.I.A. Police. This witness was declared hostile by the prosecution as he did not support prosecution case. In cross- examination by A.P.P., he admitted that accused Asim was his relative. He admitted that Mashirnama Exh.15 bore his signature but contents thereof were not correct and that it was signed by him at C.I.A. Centre and not at his shop. He denied that accused Asim had come to his shop and on his pointation he handed over Khaki envelope containing Rs.3 lacs. To a question by the defence counsel he admitted that mother of accused Asim was investor in his car business and she used to invest money in the business.
25. P.W.5 Mahboob Illahi Exh.18 is the complainant and father of the abductee Hassan Mahboob. He stated that on 24-8-1990 at 3-00 p.m. Two Chowkidars came to him from Market, one of whom was Amirullah while name of other he did not remember. They were known to him personally and requested to point out the house of Jehangir and Sikander who were their relatives and that a burglary was committed in their shop. He directed his son Hassan Mahboob (abductee) to take the Chowkidars in his car to the house of Sikandar and Jehangir. They were taken by the abductee in his car No.R-6536 Nissan but Hassan Mahboob did not return for about 15/20 minutes whereupon he got perturbed. He telephoned Jehangir and Sikander and enquired about his son who informed that his son had gone away after dropping the Chowkidars. He took his car and went in search of his son and near P.IA. Hospital, he saw car of his son standing in a lane and was not properly parked. He went near and found that his son was not in the car but the key was in the switch: Through some one he took the car of his son to his house while he himself went to lodge report at Bahadurabad Police Station. On the next day at 3 or 4 p.m. He received a telephone call and the caller threatened him not to collect any persons in his house and also to ask police not to interfere.
26. The caller also informed him that Hassan Mahboob was with him and telephone number be removed from observation and further that due to interference, he would be risking life of his son.
27. For 18 days thereafter there was no contact from accused side while he made search on his own.
28. On 10September, 1990 at 7-00 p.m. He received telephone from the same caller who enquired if complainant was ready to pay a ransom. The complainant replied that he had already paid the ransom and that he was not prepared to talk to the caller until identification of his son was given as he had already been defrauded and was expecting his son back by that time. The caller gave his code name as `Jan' and further threatened to pay ransom as the caller was not concerned with earlier payment. Again after two days he received call from the same `Jan' asking for ransom.
29. Conversation between complainant and caller went on, various questions having been asked by complainant about the identity of his son. On next day `Jan' again telephoned complainant saying that his son takes the medicine `Kalhan'. On this the complainant became sure that his son was with the caller. On enquiry by the complainant about the amount of ransom, he was told that guarantor would talk to him on the subject. Thereafter the guarantor telephoned complainant saying that he was his well-wisher and assured that his son would not be harmed if ransom was paid. The complainant told hint that he had already paid ransom but was willing to pay further according to his capacity. A demand of Rs.50 lacs was made by the guarantor and asked complainant to negotiate for the amount in Defence Mosque where the complainant went but nobody turned up from the culprits side. There was another call from the guarantor saying that he could not come due to some accident, and repeated his demand of Rs.50 lacs, threatening the complainant that if the amount was not paid he would not be responsible for the safety of his son.
30. After a few days, he again received telephone call from `Jan' demanding Rs.50 lacs as ransom and also extending threats. The amount was subsequently reduced to Rs.30 or 35 lacs but after negotiations on different dates, he agreed to pay Rs.3 lacs as ransom. He was asked to bring Rs.3 lacs to Mudassar Mosque in K.DA. Scheme-I at the agreed time of 11-00 or 11-30 a.m. And agreed date was 26September, 1990. He was directed to put the money on the third rack in the wall in the lower portion of the mosque. He then went and put the cash wrapped in newspaper and put it at specified place. He then offered Nafal and since nobody turned up in the mosque, he came back with the money. Soon thereafter he was asked on telephone as to why he had not kept the, money as promised. The complainant informed that there was nobody in the mosque and therefore, he brought back the money. Again he was directed to go and keep the money at the specified place and the caller repeated his name as `Jan'. Complainant went and kept the money at desired place and after half an hour he was asked on telephone by the guarantor if he had paid the money and complainant confirmed it. The caller insisted on disclosing the amount which he had paid saying that if complainant did not disclose about the exact amount his son would not be released as the guarantor gas to inform the person having custody of kidnapee. On this the complainant disclosed that he had paid Rs.3 lacs. His son was released on Super Highway and came back home on 2October, 1990. The conversation between him and callers on telephone was recorded by him and its tape was given to police. He produced F.I.R. As Exh.19 and Tape as Article A.
31. He denied in cross-examination regarding the mention by him in the F.I.R. That the key of the car of his son was not in the switch. He also denied to have mentioned in the F.I.R. That the Mohallah boys told him about the car standing in a lane. He was asked about various omissions in his F.I.R. Andth th nd further statement to C.I.A. Police: He stated in cross-examination that earlier also he had paid ransom of Rs.3 lacs.
32. P.W.6 Afzal Baig Exh.20 was Head Constable C.I.A. On 7-10-1990 when during the night between 6th and 7th October, 1990 he accompanied Inspector Sultan Masood Kayani for patrol to Manghopir area, he got the facts about spy information received by Inspector Kayani and having stopped a Suzuki near Karam Ceramic Factory and that those persons were stopped and on interrogation they gave their names as Dhani Bux and Sulleman. He also gave the facts about recovery of unlicensed arms from them. The Mashirnama Exh.21 was signed by him as one of the Mashirs. He denied in cross-examination that both Dhani Bux and Sulleman were arrested on 6-10-1990 at 3-00 p.m. From their house.
33. P.W.7 Hassan Mahboob Exh.22 is the kidnapee in the case. He stated that on 24-8-1990 at 3-00 p.m.
34. In response to call bell, he went outside and saw two Chowkidars enquiring about his father who was called and under directions of his father, he took the Chowkidars in his Car No.R-6536 Nissan Sunny to the house of Jehangir and left them there. On his way back, when he reached at P.IA.
35. Hospital, a Charade of white colour with tinted glasses came end blocked his way. One of the occupants of the said car came down and forcibly pulled him out on pistol point and pushed him in the Charade car where three other culprits were already seated. His car was left at the road with the key in the starter, his head and face was covered with a white pillow and he could slightly see.
36. The car was stopped after about 15 or 20 minutes, when accused Dhani Bux came inside the car.
37. He was then taken to a room and was made to be seated. He pointed out at accused Dhani Bux in Court to be the same. At about mid-night time, he was taken in a wagon to some other house where he was kept for about 4 and 5 days and two culprits used to bring meals for him. They were identified by him in Court to be accused Sattar Niazi and Nazir. He also stated that during this period, one culprit with muffled face used to visit him and said that they were demanding Rs.50 lacs from his father for his release. After live days he was taken in a Tanker to Baluchistan but he could not say who had taken him to Baluchistan but gave the name of one person in the Tanker as Ishtiaque. He also stated that he was taken in the jungle in hilly track and accused Sulleman was there and he correctly pointed out to Sulleman in Court. He was kept there for about 9 days and during this period, Sulleman got tired and said that if he was paid Rs.1,00,000 he would set hurt free.
38. The witness also stated that he was told by Sulleman that accused Komail, Asim, and Imran had got him abducted and that they would have got Rs.50 lacs from his father. The witness further stated that he was kept in a jungle for about 25 days during which he was shifted from one place to another and during this time two culprits with muffled faces came and enquired about the medicine which he used to take and the name by which his uncle called him. He gave the name of medicine and also informed that he was called Malang. The names of these two culprits were given by Sulleman as Komail and Asim and they were known to the witness as they resided in his Mohallah. Thereafter he was taken in a truck and left on Super Highway and was given R s.130 and he was told that they had received the ransom and were therefore releasing him. During his stay in jungle, the family of accused Sulleman used to visit him and gave meals. The children of Sulleman also disclosed that real name of Ishaque is Din Muhammad or Dino. After coming to his house he was not in proper senses and was therefore, kept in a room, his father not allowing any body to see him. He then was sent to Lahore, without meeting anybody. He read in the newspaper that his abductors had been arrested and so also he saw the photographs of such culprits but could not identify any of them. He was then called to Karachi where identification test through him was held and from a line of 15 or 17 persons he picked out accused Sattar Niazi, Dhani Bux, Sulleman and Nazir.
39. P.W.8 Munawar Exh.23 stated that on 13-10-1990 at 3-00 p.m. While he was sitting at the bus stop near National Identity Card Office, Tariq Road, police van came and took him to a Police Inspector in another van. He found accused Asim in police custody whom he identified in the Court. In his presence Asim took the police to the counter where Abdul Wahid, a bearded man was sitting.
40. Accused Asim asked Abdul Wahid to return the Amanat which was kept with him in respect of ransom. Abdul Wahid handed over one envelope to police which contained three bundles of Rs.1,000 denomination each amounting to Rs.3 lacs which police secured under Mashirnama Exh.15.
41. P.W.9 Syed Shahzad Nagi Exh 24 was Special Magistrate C.I.A. Karachi and on 20-10-1990, C.I.A.
42. Police asked him to supervise identification parade. The witness Hassan son of Mahboob Illahi was produced before him whom he made to sit in his Chambers. The police produced four accused namely Sulleman, Dhani Bux, Abdul Sattar Niazi and Nazir Ahmed and they were mixed with seven dummies. Each one of the accused was separately called to stand in the line and witness Hassan Mahboob was called to identify. The four accused named above were individually picked out by Hassan Mahboob. The memo of identification as Exh.26 was prepared by him. He also recorded confession of accused Sulleman on 20-10-1990 which he produced as Exh.30. He admitted that the confession Exh.30 did not bear the seal of the Court on any of the four leaves. He denied a question in cross-examination that all the documents were prepared by the police in between 24th and 25th of February, 1991.
43. P.W.10 Sultan Masood Kayani, gave the facts of his having headed a police party to patrol Manghopir area where on spy information he arranged Nakabandi and spotted a Suzuki which was stopped and Sulleman and Dhani-- Bux were seated in the said van. On interrogation they produced weapons and gave their names as well. He also gave the fact of arrest of other accused on the pointation of Dhani Bux and thereafter by one after other accused. He also arrested various accused, recovered weapons from them and arranged identification test through Magistrate. A number of questions were put to him in cross-examination regarding certain omissions in the 161, Cr.P.C. Statements by the witnesses. He submitted challan in Court on 21-10-1990.
44. P.W. Sabir Hussain Exh 36 was S I Bahadurabad on 24-8-1990 and recorded F.I.R. Lodged by complainant Mahboob Illahi. He went to the Wardat near P.IA. Hospital and prepared Mashirnama Exh.37. He examined Mashirs Baber and Shoaib and also 2 Chowkidars Jamil and Hayee. He entrusted the accused to C.I.A. On 7-10-1990. The transcription of the tape produced by complainant is on record as Exh.38, showing the conversation between an accused and Mahboob Illahi.
45. The statements of the accused under section 342 of Cr.P.C. Were recorded and they denied the allegations against them. Accused Muhammad Asim stated that he was arrested from his house but not at the pointation of Abdul Sattar Niazi. He stated that no witness had deposed against him except the I.O., 'who is brother-in-law and subordinate of D.S.P. Arshad Kamal Kayani with whom he had enmity. He stated that he would wish to examine his father Haji Dildar Ahmed, and mother as defence witnesses. He filed his written statement as Exh.40/A and stated that the money recovered from Abdul Wahid Motiwala was his own amount which he gave to Abdul Wahid for the purchase of a car. He stated that he was a man of means and he produced bank statement as Annexure `A', showing his balance since 1987 when he started the business. He also stated that he was involved falsely due to enmity with D.S.P. Arshad Kamal Kayani who had seized his car in June, 1990, a complaint of which was made to the Chief Minister Sindh, who had taken action against Arshad Kamal Kayani. He also stated that the I.O. Masood Kayani is the brother-in-law of Arshad Kamal Kayani and being his subordinate in C.I.A., falsely implicated him.
46. Accused Dhani Bux, besides denying the allegation, stated that no identification parade was held and the memo of identification parade .Is fabricated document. He denied that he knew co- accused Sulleman, who in his confession had implicated him. He stated that he would examine Haji Pirano and Haji Hussain as defence witnesses. He also filed his-written statement Exh.40/A and gave the details, how he has been implicated. He produced alongwith his statement Annexure `C', the deposition of Dilbar Hussain, who acted as Mashir, during the raid on Bungalow wherefrom accused Nazeer was arrested.
47. Accused Sulleman besides denying the allegations, also stated that no identification parade was held nor he was picked out by any witness. He denied to have given confession. He also riled his written statement as Exh.42/A and gave the details and the manner in which he was arrested.
48. Accused Nazeer Ahmed also denied that he was picked out in the identification test and further denied to have produced an unlicensed K.K. And an assault rifle at the time of his arrest. He denied to have any knowledge of his implication by co-accused Sulleman in his confession.
49. Accused Komail in his statement under section 342 of Cr.P.C. Besides denying the allegations stated that he was student of M. Com. And had been awarded scholarship for higher studies abroad due to his academic career. Accused Muhammad Imran also gave a similar statement that he was falsely implicated.
50. Accused Abdul Sattar Niazi, besides denying the allegation, filed his written statement and stated that he had personal enmity with Ex.-S.S.P. C.I.A. Habibullah Niazi, who had involved him in false cases in 1986. His father had filed a Habeas Corpus petition in the High Court and on 3-2-1996 he was produced before Magistrate whom he showed the marks of violence on his body. He also stated that Arshad Kamal Kayani and Ch. Hameed, had fabricated false cases and in one of such cases he was released under section 169 of Cr.P.C. And in the other cases he was granted bail. He moved an application against Habibullah Niazi, Ch. Hameed and Arshad Kamal Kayani and an inquiry was held, whereupon Habibullah was transferred from Sindh to Punjab. He further stated that on 7-10-1990 Ch. Hameed, Arshad Kam Kayani and one Hawaldar Afzal, now under suspension, had forcibly entered into his house and arrested him on gunpoint. He was taken to C.I.A. Centre where he was tortured and that no identification parade was held. He stated that he would examine Arshad Javed, Yousif Khan and Zaffar Khan in his defence.
51. Statement of accused Abdul Sattar on oath was recorded as Exh.48. His defence witness Arshad Javed was examined as, Exh.49, who stated that on 7-10-1990 while he was sleeping in his house alongwith Abdul Sattar Niazi, police came and raided their house at 4-05 a.m. The police took him and Abdul Sattar Niazi to C.I.A. Police Station and later released him while foisted case on Abdul Sattar Niazi. He is the real brother of Abdul Sattar Niazi. Yousif Khan another defence witness is the neighbour of Abdul Sattar Niazi who stated that on 7-10-1990 at 4-5 a.m. Police raided the house of Abdul Sattar Niazi and took him away alongwith his younger brother. Zafrullah Khan was the other defence witness and gave the same facts about the arrest of Abdul Sattar Niazi as the other defence witness.
52. Accused Nazeer Ahmed Exh.52 was examined on oath and he stated that he was Chowkidar in the Bungalow of Sardar Sanaullah Khan Zahri in the Defence Society, when he was arrested by police and at that time famiiy of Mr. Zahri was present in the Bungalow and he was not armed with any weapon when police arrested him from the said Bungalow.
53. Dildar Ahmed Exh.52, who is father of accused Asim was examined as defence witness and he stated that his son Asim dealt in car business and that Asim was given money by him for doing business of cars in partnership with Wahid Motiwala. He particularly stated that he had given Rs.3 lads to Abdul Wahid Motiwala on behalf of accused Asim for the said business.
54. Accused Dhani Bux in his statement on oath stated that his statement on oath is the same as the one given by him under section 342 of Cr.P.C.
55. Haji Peerano Exh.57 appeared as defence witness for accused Dhani Bux. He stated that accused Dhani Bux was his neighbour and had taken cement blocks from him on loan, which amount he had gone to recover. On a particular date, he went to Dhani Bux and as he reached there; the police party consisting 10-12 persons came to the house of Dhani Bux and enquired about Haji Punhoon his brother. Since Dhani Bux could not give the whereabouts of Haji Punhoon, the police forcibly took away Haji Dhani Bux Accused Sulleman in his statement on oath adopted 342, Cr.P.C.
56. Statement.
57. Mr. A.Q. Halepota, the learned Advocate for appellants Asim and Abdul Sattar Niazi has contended that so far as the prosecution case against Asim is concerned, the allegation is that he pointed out to the shop of Abdul Wahid Motiwala at Tariq Road where the ransom amount of Rs.3 lacs was kept. P.W. Abdul Wahid has not supported the case of prosecution on that score and he was declared hostile. Accused Asim produced Bank account showing that he was a man of means and Rs.3 lacs kept with P.W. Abdul Wahid was his own amount. It is also contended that the only important piece of the evidence against accused Asim that he pointed out the shop of Abdul Wahid, where money was kept has not been put to him in his statement under section 342 of Cr.P.C. Further, that the amount was recovered by police in presence of Mashir Munawar Khan, who admittedly was resident of Korangi, 10 miles away from the shop of Abdul Wahid Motiwala and no witness from locality i.e. Tariq Road was associated in the recovery proceedings. Thus there is clear violation of section 103 of Cr.P.C. And reliance is placed on Yamin Kumhar and others v. The State PLD 1990 Kar. 275. In these circumstances the recovery at the pointation of accused Asim becomes of no evidentiary value. For appellant Abdul Sattar Niazi, it is contended that his identification was delayed, as he was arrested on 7-10-1990 and identification test was held on 20-10-1990. The dummies mixed had no similar marks as of the accused put to test. The ratio of dummies was not in accordance with law. For this contention, reliance is placed on Lal Pasand v. The State PLD 1982 SC 142 and Muhammad Nasim Agha and another v. The State 1978 P Cr. L J 579.
58. Mr. Raja Mir Muhammad, the learned Advocate for appellant Dhani Bux and Sulleman has contended that the statement of the abductee was recorded by police on 20-10-1990, and on the same day, identification test was also held. The test is admittedly delayed because the kidnapee returned back on 2nd October, 1990 and the test held on 20-10-1990: The identification test further becomes doubtful for the reason that the kidnapee stated that 15-17 persons were in the line while P.W. Syed Shahzad Naqvi, the Magistrate, who supervised the test, stated that 7 dummies were mixed with each accused. It is also contended that no independent witness was associated during arrest of Dhani Bux and Sulleman, through the area from where they were arrested is an industrial area and witnesses could have been available. Thus the very arrest and the subsequent events become doubtful. It is also contended that confession by appellant Sulleman on 20-10-1990 also lends no support to prosecution case as it was recorded after. 13 days of his arrest. Reliance is placed on (i) 1975 P Cr. L J 440, where confession recorded on third day of arrest of accused was ruled out of consideration and (ii) Akhtari Begum v. The State PLD 1960 Kar. 797 where confession after 8 or 14 days after arrest, and the Magistrate not putting necessary questions to accused was held to be not voluntary or reliable. Reliance is also, placed on Ghulam Muhammad v. The State PLD 1971 Lah. 850.
59. Mr. Qais Rasheedi, Advocate for appellant Nazeer has contended that evidence against Nazeer, is, as stated by abductee that Nazeer used to serve him meals. It is also contended that material evidence has not been put to the accused in his statement under section 342 of Cr.P.C. As to the, effect of such omission by trial Court, reliance is placed on (i) PLD 1967 Kar. 186 and (ii) 1969 SCMR 777. In (i) above, it was held that when important piece of evidence is not put to accused in his statement under section 342, Cr.P.C. Nor opportunity given to him to explain that evidence, such evidence cannot be used for conviction of accused. In (ii) above it was held that circumstances from which inference adverse to accused is sought to be drawn, should be put to accused when he is questioned under section 342.
60. Appellant Nazir was an employee of Baloch Sardars and it was his duty to serve meals to the guests. Nazir was Chowkidar and Sulleman and Dhani Bux used to come at the bungalow of their Sardar. There is no evidence that the ransom was distributed amongst various accused. It is lastly argued that the confession of co-accused Sulleman could not form basis of conviction of appellant Nazir, particularly when it is retracted. Reliance is placed on Shabihul Hassan v. The State PLD 1991 SC 898.
61. Mr. Shaukat H. Zubedi, learned AA.-G. At the very outset stated that he did not support conviction of appellants Asim, Abdul Sattar Niazi and Nazir. For appellants Dhani Bux and Sulleman, there was evidence of abductee P.W. Hassan Mahboob, coupled with confession of accused Sulleman. He however, argued that if the evidence of abductee and confession of accused Sulleman is believed; there was a case for conviction of Dhani Bux and Sulleman but not otherwise. He has next pointed out that the memo of identification parade shows the names of 21 dummies, and according to the abductee there were 15/17 persons while Magistrate has said that there were seven dummies. The evidence of the Magistrate contradicts the memo of identification itself and the circumstances show that no identification test was actually held but the memo was prepared at C.I.A. Centre and the Magistrate simply signed it. It is also pointed out that P.W. Arshad Mahmood Butt stated in Court that accused Dhani Bux and Sulleman volunteered to point out the house of accused Nazir at Clifton while in fact the bungalow wherefrom Nazir was arrested is situated in Defence Society. On the point of arrest of Imran and Komail at the pointation of Asim, the Mashirnamas Exh.13 and Exh.14, on the point of time are doubtful and could not be relied upon. It is also contended that evidence of two witnesses i.e. Arshad Mahmood Butt and the I.O. On the point of recovery of K.K.
62. And 7 m.m. Rifle from Nazir, there is material contradiction. I.O. Stated that .22 bore rifle was secured from the possession of accused Nazir and K.K. Was secured from another room. P.W. Arshad Mahmood Butt stated that from possession of accused Nazir,, one 7 mm rifle was recovered. It is also contended that the statement of abductee by police, identification test and confession of Sulleman are all on one and the same day i.e. 20-7-1991.
63. The learned A.A.-G. Has also referred to legal lacunas in the case. The two accused Sulleman and Asim wanted to give the evidence on oath which was denied to them and thus there is violation of the mandatory provision of section 340 of Cr.P.C. As to the value of confession by accused Sulleman which is retracted, independent corroboration was needed which has not been produced. Reference is made to 1982 SCMR 321-332. He has also pointed out to the confession and signature of accused which is obtained at the fag-end of the page leaving a wide space between the closing lane of the confession and the signature. He has also pointed out that the confession of Sulleman may at the most involve Dhani Bux and Sulleman but it could not be used against other accused. He has also pointed out to the evidence of the abductee Hassan Mahboob and referred to number of contradictions and improvements. He has thus argued that when a witness makes improvements, he renders the findings of truth impossible.
64. We have heard the arguments of the learned Advocates at length, perused the evidence and the case-law referred.
65. We would first like to discuss the evidence regarding the abduction of Hassan Mahboob. There is no ocular evidence in that regard. The F.I.R. Lodged by complainant Mahboob Illahi P.W.5 shows that two persons namely Sikander and Faisal Jehangir's younger brother Shoaib came to his house and informed him that the car of his son was parked in a lane in front of their bungalow, and the key was not in the car. This brief information is narrated by complainant in the F.I.R. No one had actually seen Hassan Mahboob being abducted.
66. After the F.I.R. On 24-8-1990, the subsequent events begin when on 7-10-1990 under the supervision of Inspector Sultan Masood Kayani in Manghopir area, a Suzuki van was intercepted on spy information. The two occupants of the car namely Dhani Bux and Sulleman, during interrogation disclosed the names of the culprits, who were associated with them in the abduction of Hassan Mahboob. On such information, the houses of co-accused were raided on the same day, one after the other and as many as five such accused were arrested. It is from these accused that the police got information about their involvement in the case.
67. We would now like to dilate upon the conduct of investigation agency, who arrested Dhani Bux and Sulleman at 5-45 a.m. On 7-10-1990. At that time it could be said that no independent witness was available for being associated as Mashir. However, subsequent thereto and on the pointation of accused Dhani Bux and Sulleman, the houses of five accused were raided and no private witness was taken. No reason is shown in evidence for such lapse on the part of the investigating officer.
68. The areas from which, such accused were arrested, admittedly are thickly populated areas and the witnesses could have been available, but such a course was not followed. There is violation of section 103 of Cr.P.C. If any case-law is needed on this point, reference may be made to Yamin Kumbar v. The State PLD 1990 Kar. 275 and a latest pronouncement of Maqbool Ahmed Shah v.
69. The State 1992 P Cr. L J 48. The arrest of the accused and recovery from them in our view, would lose the evidentiary value in these circumstances.
70. On the point of payment of ransom amount, by Mahboob Illahi, the version given by him does not inspire confidence. He never disclosed to any agency that ransom was being demanded from him on telephone. The telephone talk had been taped by him but such information was never given by him till his son/abductee Hassan Mahboob returned. Even after the return of his son, he did not appear before the concerned agency to give the facts about return of his son. After three days, he quietly sent his son to Lahore who returned from there after more than 15 days i.e. On 20-11-1990, after he read in the newspapers at Lahore that the kidnappers involved in his kidnapping were arrested. The kidnapee was not allowed to meet any one during his stay in his house at Karachi for three days and even police was not informed about his return.
71. The manner in which ransom money has been paid is also not believable. The complainant has stated that he informed the caller on telephone that he had earlier paid Rs.3 lacs and that he was being defrauded when second demand for ransom was made. Neither he communicated the earlier payment nor the subsequent payment to any agency. On his own, and believing that it would be safe for him to pay the ransom amount without intervention of any agency, he placed the money in Mudasser Mosque. He first brought back the money from the said mosque as no one had come to collect the same but when threatened on telephone after few minutes he again went and placed the money at the same place in the mosque where he was directed to place. Whether this money was taken away from the mosque by appellant Asim or by some one else remains a mystery. The recovery of Rs.3 lacs from P.W. Abdul Wahid at the pointation of appellant Asim also becomes doubtful as P.W. Abdul Wahid who was the prosecution witness did not support the case and was declared hostile. Appellant Asim has by documents shown that he was a man of means dealing in the business of cars and had deposited this amount of Rs.3 lacs with Abdul Wahid. On the point of recovery of the amount from P.W. Abdul Wahid, prosecution examined P.W. Munawar Exh.3 who acted as Mashir, but this witness is a resident of Korangi, ten miles from Tariq Road where the carpet shop of Abdul Wahid is situated. Abdul Wahid has denied to have produced the money before police as alleged and stated that he was taken to C.I.A. Centre from a Mosque where he had gone to offer Isha prayers and the money was brought to C.I.A. Centre by his brother, next day, whereafter he was released. In these circumstances it cannot be said with certainty that the amount of Rs.3 lacs recovered from Abdul Wahid was the same amount which Mahboob Illahi had placed in the mosque and was taken away by appellant Asim or any other accused as ransom. It is important to note that amount so recovered was not shown in Court to Mahboob Illahi who could say that this was the same amount which he had placed in the mosque.
72. Another piece of evidence is identification of four accused namely Sulleman, Dhani Bux, Abdul Sattar Niazi and Nazeer Ahmed by abductee Hassan Mahboob. The identification test in our view is of no evidentiary value, firstly because it was held after 13 days of the arrest of such accused and secondly, the proper number of dummies was not mixed. Number of dummies' given by abductee and the Magistrate P.W. Shahzad Naqi contradict each other and it seems that no identification test was in fact held. The abductee admitted that photographs of the abductors' had appeared in newspapers while he was at Lahore. In these circumstances we attach no importance to the identification test.
73. Yet another circumstance in the case is judicial confession by appellant Sulleman. He was arrested on 7-10-1990 while the confession is recorded on 20-10-1990. We have perused the original confession and find that thumb-impression of the appellant on confession is taken at the fag end of the white paper leaving a big gap in between the last line of his confession and L.T.I: No certificate has been appended by Magistrate so as to show that he was satisfied about the correctness or voluntariness of confession. On such confession, the trial Court had acquitted co- accused Komail and Imran, The confession was retracted and it lends no support to prosecution evidence.
74. We have also noticed that during trial complainant made material improvements upon his F.I.R. He mentioned in the F.I.R. That Jehangir and Shoaib came to inform him that the car of his son was seen in a lane unattended but in evidence he stated that his son did not return for some time and he made enquiries on telephone from Jehangir and Sikander about his son Hassan Mahboob. He also stated in the F.I.R. That when he went to the place where car of his son was standing the key was not in the car but in his deposition he has stated that key was in the starter of the car. These and many other improvements and contradictions could not have been resolved in favour of prosecution.
75. We have also noticed another legal lacuna in the trial. Accused Sulleman and Asim in their statements under section 342 of Cr.P.C. Wanted toll be examined on oath but they were not so examined and the mandatory provisions of section 340 of Cr.P.C. Have been violated.
76. As to the transcript of conversation between complainant and the caller on telephone, we cannot accept that `Jan' who was negotiating for payment of ransom was any one of the accused involved in the kidnapping of Hassan Mahboob, for the simple reason that this tape was withheld by the complainant till long after his son returned. There is no expert opinion that it was the voice of either accused Asim or of any one of the other culprits.
77. It has also come in evidence that on 7-10-1990 when Sulleman and Dhani Bux were arrested and were found in the possession of unlicensed pistols, cases under Arms Ordinance were separately registered against them. Neither the copies of such F.I.Rs. Have been brought on record nor the result of such cases is shown. This would lead to an inference that no cases were filed against Dhani Bux and Sulleman for their having possessed unlicensed arms. Be that as it may, the mere recovery from them of unlicensed arms without any evidence against them, would not connect them with the offence of abduction of Hassan Mahboob. The confession by Sulleman as stated above is no confession in the eye of law and as such it could not be used against co-accused or even against Sulleman as it is retracted. It is inherently defective.
78. We would like to observe that the order of the trial Court directing the payment of the recovered amount of Rs.3 lacs to the complainant is an erroneous order. The complainant has failed to prove through his evidence, that the amount of Rs.3 lacs recovered from Abdul Wahid was the same amount which he had placed in the mosque for ransom. He was also not shown in Court, the recovered amount so that he could identify that it was the same. This amount is claimed by appellant Asim to be his own amount given to P.W. Abdul Wahid for the purchase of a car. From the bank account and other documents produced by him it is established that he is a man of means and could afford that much amount for payment to Abdul Wahid who also dealt in the business of sale and purchase of cars. We direct that this amount be paid to appellant Asim.
79. The inherent defects in the evidence discussed above could not form basis of conviction of appellants on a capital charge, when a portion of such evidence was disbelieved in respect of acquitted accused Komail and Imran. The case was not free from doubt and the conviction and sentence cannot be sustained. We, therefore, while allowing all the appeals, set aside the conviction and sentence and acquit the appellants. They shall be released forthwith if not required in any other case.
80. N.H.Q./N-427/K