' ALI MUHAMMAD BALOCH, J.---These three appeals are directed against judgment dated 28-1-1992 passed by the Judge Special Court No, III (Suppression of Terrorist Activities) Karachi, whereby all the three appellants, who were tried under sections 365-A, 34, P.P.C., have been convicted. The sentences awarded to them by the trial Court are as under:--
(1) Appellant Ghulam Hyder--Death sentence;
(2) Appellant Mukhtiar All-Imprisonment for life;
(3) Appellant Riaz Hussain--Iprisonment for life.
' The appellants have challenged their conviction by these appeals filed by them separately. The appellants were found guilty of having kidnapped P.W. Asghar Salam for ransom. In the same case, co-accused Ghulam Shaheed, Nawaz Begum and Zarina Begum are extended the benefit of doubt and are acquitted.
2. Since all the three appeals arise out of the same judgment, the same are being disposed of by this single judgment.
3. The facts of the case in brief are that one Asghar Salam, who was an Executive Vice-President in Habib Bank Ltd. And was living in a flat in Clifton Court, Chaudhary Khaliquzzaman Road, Karachi, had been kidnapped on 23-9-1991. Asghar Salam had left his house at about 7-30 p.m. In his Datsun Sunny car to meet his friend Mr. Hasni, who was staying in Defence Club, Karachi. Since Asghar Salam did not return to his house till next day morning, his wife informed Kousar Salam, the brother of her husband by telephone. Kousar Salam on getting this news reached the house of his brother and after making search at number of places, learnt that the car of Asghar Salam was recovered and was available at Defence Police Station. On enquiry he learnt that the car was found during the previous night with the keys in the ignition switch, with all its lights on and the doors open. Suspecting that it was a case of kidnapping for ransom he made a written complaint on 24- 9-1991 to the S.H.O., P.S. Defence, Karachi. This written complaint was incorporated as the F.I.R. In this case. The contents of this complaint are reproduced as under:-- "My brother Asghar Salam s/o Shaikh Abdus Salam (late), Executive Vice-President, Habib Bank Ltd., resident of A-2 Clifton Court, Ch. Khaliquzzaman Road, Karachi, Tel. No, 536440 left the house on 7- 30 on 23rd September 1991 to meet his friend Mr. Hasnee who was staying at Defence Club, Karachi, Mr. Asghar Salam left in his car No,234-603 Nissan Sunny of white colour. At about 7 a.m I received a phone call from Bhabi (Mrs. Asghar Salam) who said that Asghar Salam had not returned home since yesterday. On enquiry, it was revealed that Mr. Asghar Salam was not at Defence Club and did not reach there. On searching and visiting various hospitals and police stations the car of Mr. Asghar Salam was found in Defence Police Station. On enquiry it was found that the car was in starting condition and the keys were in the ignition switch with all lights on.
' This is a clear-cut case of kidnapping for ransom. I would further add that an attempt of kidnap, threat to life and money extortion was done by one Ashfaq and Hasan Akhtar with others in my office and then in my house on 19th September 1991 for which F.I.R was recorded in Darakshan P.S. And Ferozeabad P.S. And Hasan Akhtar was arrested and released on bail on 23rd September 1991.
Also bailed out were his other accomplices Ashfaq and partners. As from distance my brother looks like me, the same group could kidnap my brother.
' Action may please be taken according to law and my brother Asghar Salam be recovered and the culprits arrested and prosecuted."
4. On 3-10-1991 Asghar Salam returned to his house and informed his family what transpired between 23-9-1991 and 3-10-1991. In short, he disclosed that on his way to the Defence Club in his car on 23-9-1991 at about 8-30 p.m., a light blue colour Car, overtook him and made him to stop when he was in the 8th Street, off Sunset Boulevard. Three persons armed with Kalashnikov came out of the car and surrounded Asghar Salam's car and made him to leave the car and go with them in their car. Asghar Salam was made to sit in the center of the back seat of the car of the kidnappers with two persons on his each side and the third one occupying the front seat, besides the driver. He was taken to a house where he was confined in a room and he was asked to pay a sum of Rs, one crore as ransom for his release. The kidnapee Asghar Salam was then shifted to another house after he was made to walk for about 10 minutes. He was confined inside a room of that house. A chain with a lock was applied to his feet and attached to the cot. In this condition, he was kept there for 9-10 days. During day time he used to be unchained. Negotiations for payment of ransom continued and ultimately a deal was struck for payment of Rs,3 lacs but before the payment of the ransom amount was made, at about 4 p.m. On 3-10-1991 S.H.O. Of P.S. Manghopir raided the house and rescued him.
5. The police after investigation challaned in all six accused to stand their trial for an offence under sections 365-A, .109, 34, P.P.C. The names of six accused are:--
(1) Ghulam Hyder--appellant in Cr. Appeal No, 51/92.
(2) Mukhtiar Ali-appellant in Cr. A.No, 73/92.
(3) Riaz Hussain--appellant in Cr. A No, 103/92.
(4) Nawab Khatoon.
(5) Zarina Khatoon.
(6) Ghulam Shaheed.
' The Court of the Special Judge No, III (S.TA.), Karachi, after the trial convicted the three appellants as stated above while the remaining accused were given benefit of doubt and acquitted.
6. The charge in his case was read over to the accused on 13-11-1991, for offences under section 365-A read with section 368 and section 34, P.P.C. To which all the accused pleaded not guilty and claimed to be tried. The prosecution, in order to prove the charge against the accused, examined P.W. Kosar Salam (Exh.3) who produced the written complaint F.I.R. Registered by him with the S.H.O., P.S. Defence, Karachi, on 24-9-1991. P.W. Kosar Salam narrated in Court the story of the abduction of his brother Asghar Salam and stated that he had been receiving telephone calls of the kidnappers demanding the ransom which was finally reduced to Rs,3 lacs. He also produced before the Court an audio cassette containing record of the telephone talk between the kidnappers and Kosar Salam as he had managed to record the same. He also stated that in his report to the police he had shown suspicion in Hasan Akhtar and Ashfaq, the persons who had attempted to extort money from him a few days before kidnapping of his brother and that they had also given beatings to his son. He also stated that on having been freed, his brother Asghar Salam had given him the details about his confinement from 23-10-1991. Asghar Salam disclosed to him that he had seen his kidnappers and other culprits clearly and that one of them was known as Bughio the other's name was being taken as Panhwar and the third one was guessed to be a Hindu. He also disclosed that there were two other culprits one of whom was Riaz Hussain, besides two ladies. Asghar Salam had also disclosed that on 3-10-1991 at about 4-00 p.m. There was commotion when a police officer had pointed a pistol on him but when Asghar Salam told him that he was an abductee, he was not released and taken to Manghopir P.S. He was then taken to different police stations and then allowed to go home in the evening.
7. The second witness examined by the prosecution was P.W. Muhammad Farooq (Exh.4), S.H.O., P.S. Defence. On 23-9-1991 at about 10 p.m. A.S.I. Raja Mumtaz Hussain had produced before him a car belonging to the kidnapee which Raja Mumtaz had found abandoned at 8th Central Street, Defence Phase-II, Karachi. P.W. Muhammad Farooq also stated that on 24-9-1991 F.I.R. Of this crime was registered at the police station by Sub-Inspector Khalid at 11-30 a.m. On 5-10-1991 S.H.O.
Muhammad Farooq was informed by P.S Manghopir that kidnapee had been recovered and that accused persons, namely, Riaz Hussain, Ghulam Hyder, Mukhtiar Ali, Mst. Nawab and Mst. Zarina had been arrested.
8. The third witness for prosecution was Raja Mumtaz (Exh.5). He stated before the Court that he had noticed a car belonging to the kidnapee with the ignition key in the slot and with his head lights on. Suspecting something wrong, he brought the car to police station and then passed on a message to the control. The prosecution then examined the kidnappee Asghar Salam (Exh.7), who gave the details of his ordeal and narrated the story in a great detail. He stated that accused Ghulam Hyder Bughio was one of the four persons who had stopped his car on 23-9-1991 at about 8-30 p.m. At 8th Street in Defence. Three of the culprits, who had surrounded his car, took him in their car were not present during the trial, meaning thereby that they were not arrested by police and were not tried. He identified Ghulam Hyder, who was present in Court at the time of his examination to be one of those culprits, who sat on his side in the back seat of the car at the time of his abduction and also to be one of the persons, who was standing by his side during the demand of ransom during his captivity, which was made by a culprit whose features were given by the abductee but he was not arrested by the police. The kidnapee Asghar Salam also stated that accused Ghulam Hyder was the person who had brought the scotch-tape from another room of the house, blind-folded him with it when he was shifted to another house on foot.. According to Asghar Salam, accused Ghulam Hyder Bughio was the person, who used to remain as a guard outside the room where he was confined. He further stated that during the talks about the amount of ransom to be paid, Ghulam Hyder was present and he had been reducing the amount of the ransom. Asghar Salam's telephone number was also taken by Ghulam Hyder. He was one of those who enquired about the names of the wife and other family members of Asghar Salam. In respect of accused Riaz Hussain, Asghar Salam stated before the Court that he saw the accused Riaz Hussain in the adjacent room in company of S.H.O. Afridi after the raid. He stated that the key of the lock of his chain was given by accused Riaz Hussain to the S.H.O. Who had unlocked the chain and released him. He also pointed out that accused Ghulam Shaheed and accused Mukhtiar, who were arrested by the S.H.O. From the adjoining room after the raid were seen by him. In respect of the accused Nawab Khatoon and Zarina Khatoon he stated that they used to remain in the adjoining room where he was confined and that he came to know their names only when they were apprehended by the police. He also stated that SMG was recovered by the police from the folds of Shalwar of accused Riaz in his presence and a mauzer/pistol was recovered from the folds of Shalwar of accused Mukhtiar along with the magazine containing 5 bullets. Identity card of Riaz was also secured by the police from his pocket in his presence. Accused Riaz, Mukhtiar, Nawab Khatoon and Zarina Khatoon were arrested in his presence on the day of the raid, and therefore, identified them in the Court to be the same persons. P.W. Asghar Salam was also put to identification test to identify accused Ghulam Hyder Bughio, Ghulam Shaheed, Nawab Khatoon and Zarina Khatoon. He had correctly picked them out in the test. Asghar Salam also identified in the Court the chain lock and the key with which he was kept in captivity. He also identified the miniature-copy of the identity card of accused Riaz, which was attached to the key of the lock with which he was secured. He identified the jug and the glass the cot, the rally and pillow which were being used by him during his captivity. He also identified the "Burqa" in Court which he was made to wear during his abduction in the car as well as from the first house to the second house where he was confined. He further stated that the "Burqa" was lying in his room when the police had recovered it.
9. The police claimed to have arrested accused Ghulam Ryder on 4-10-1991 at about 2-45 a.m. In presence of P.W. Muhammad Azam and S.I. Javed Abbas and also claimed to have recovered three wrist-watches from his possession. However, the recovery from the possession of Ghulam Hyder does not relate to the present case and the circumstances in which the police is alleged to have arrested the accused Ghulam Hyder at about 2-45 a.m. From near Hasan Square, also does not appear to be true as the appearance of Muhammad Azam at 2-45 a.m. Near Hasan Square is not believable in the circumstances of the case. In any case, accused Ghulam Hyder had been arrested by the police but the time and place of his arrest appears to be not proved by the prosecution satisfactorily.
10. The prosecution also examined P.W. Ghulam Nabi (Exh.9) who stated that he was in company of S.H.O. Afzal Khan Afridi of Manghopir P.S. At the time the S.H.O. Raided the house where the kidnapee Asghar Salam was confined. He testified that the police overpowered accused Mukhtiar All and accused Riaz Hussain in his presence from whom loaded weapons were recovered. The police also arrested the two lady accused Nawab Bibi, Zarina Bibi and accused Ghulam Hyder in his presence and also rescued the abductee, who was found chained with the cot. He identified the chain, the lock, the cot, which were recovered from place of incident. He also testified that the accused Riaz was the person who produced the key from his possession, with which the abductee Asghar Salam was unlocked. Prosecution also examined P.W. Rasool Bux (Exh.11) the A.C.M., Karachi-East, who had supervised the identification parade through P.W. Asghar Salam and testified that the identification parade was held and the memo. Was in his handwriting. The next witness for prosecution was Afzal Khan Afridi, the S.H.O. Of P.S. Manghopir. He stated before the Court that on 3-10-1991 on a spy information at about 3-00 p.m. He went to the place pointed out to him by some secret informer, knocked at the door of the entrance of the house, managed to enter inside also with the police force and Mashir Ghulam Nabi. He arrested accused Mukhtiar Ali and recovered a mauzer after overpowering him. He also stated that he took into possession Klashnikov which was in possession of accused Riaz, after arresting him. He also arrested accused Ghulam Shaheed, Mst Nawab Begum, Mst. Zarina and rescued abductee Asghar Salam who was tied with a chain. He stated that.
Riaz Hussain had produced a key with which the abductee was unlocked. The property recovered from the place viz. Cot chain, lock, key, pillow, rally jug and a glass were identified by him in the Court to be the same. Separate cases for being in possession of the arms without licences against accused Riaz and Mukhtiar were also registered. He also examined abductee Asghar Salam.
11. Statement of P.W. Muhammad Khalid Khan, A.S.I. P.S Defence was also recorded (Exh.17), before whom Kosar Salam had come to the police station on 24-9-1991 and produced a written complaint, on the basis of which the F.I.R. Was recorded. He produced that F.I.R. In the Court. The prosecution also examined P.W. Muzaffar All Kalwar, Inspecptor Police Gulshan-e-Iqbal P.S. (Exh.18), who claimed to have arrested the accused Ghulam Hyder on 4-10-1991 at about 1-45 a.m. And recovered three wristwatches and purse from his personal search. He was arrested on suspicion and stated that after interrogating accused Ghulam Hyder, he recovered one K.K. Two magazines loaded with 53 live rounds and a pistol on the pointation of accused Ghulam Hyder. Therefore, separate cases of being in possession of all such arms were also registered against Ghulam Hyder by Inspector Muzaffar Ali Kalwar. Then on information that accused Ghulam Hyder was wanted in the case of abduction for ransom of Asghar Salam he handed over the custody of the accused to Police Station Defence. P.W. Muzaffar also produced in Court the report of the examiner of the fire- arm, Criminalistic Division, Sindh Karachi, certifying that the K.K. Recovered from the possession of Ghulam Hyder was of prohibited bore and was automatic type of weapon. The report in respect of mauzer recovered from the accused Mukhtiar Ali suggested that it was an automatic weapon. The prosecution thereafter closed their side.
12. The accused in their statements under section 342, Cr.P.C. Denied all the allegations against them. Accused Ghulam Hyder Bughio stated that he belonged to Dadu and had stood surety for his co-villeger Haji Sheral Kamrani, who had purchased a Suzuki Pick-up from one Qamaruddin Pathan of Karachi and that since the co-villager could not pay money to the Pathan he had been got involved in this case by said Pathan. Besides, in the same breath he also stated that he was involved in this case as'he had enmity with one Gul Muhammad who was the first husband of his wife Nawab Begum. He stated that Investigating Officer Muzaffar Ali Kalwar was a friend of one Dr. Bashir who was friendly with Gul Muhammad, the first husband of his wife. He also stated that he was arrested from Dadu and then brought over to Karachi and that no wrist-watch was secured from him and that the Mashirnama of his arrest was not correct. Accused Riaz Hussain in his statement under section 342, Cr.P.C. After denying all the allegations of the prosecution against him stated that he was implicated falsely due to his relationship with co-accused Ghulam Hyder Bughio. He denied the recoveries from him and stated that he was not arrested from the place where the kidnapee was said to be confined. Accused Mukhtiar Ali simply denied all the allegations of the prosecution. Accused Ghulam Hyder Bughio as well as Riaz Hussain neither examined themselves on oath nor they produced any defence evidence. Accused Mukhtiar Ali, however, examined himself on oath and stated that on 3-10-1991 he was working as messenger in the State Bank of Pakistan, Karachi from 9-00 a.m to 4-00 p.m. And he produced such certificate of his presence on his duty in the State Bank. He claimed in his statement that after 5-30 p.m. On that day after reaching his house, he was going to offer prayers when he was taken away in a police mobile from the entrance of the mosque. He stated that no ammunition was recovered from his possession. He also examined defence witness Ghulam Hussain who supported his claim that accused Mukhtiar Ali was taken away by police from near the gate of the mosque after about 5-30 p.m.
13. We have heard learned counsel appearing for the appellants. Learned counsel for the accused Ghulam Hyder Bughio challenged the entire story of the prosecution against the accused to be fabricated one and he pointed out that identification by the abductee was not worth reliance as the test was not held in accordance with the requirements of law. Further contention of the learned counsel is that evidence against co-accused Mst. Nawab Begum, Zarina Begum and Ghulam Shaheed is similar to the evidence against accused Ghulam Hyder and therefore, accused Ghulam Hyder also should have been given the benefit of doubt on the point that the identification parade was not reliable. The learned counsel further contended that appellant Ghulam Hyder was in custody from 4-10-1991 while identification test was held on 17-10-1991 and during this period of 13 days Ghulam Hyder was in police custody and therefore, the police had managed the identification parade. Besides, it was argued that the identification parade was a joint parade, it suffers from the defects of non-mentioning the names of the dummies and inadequate numbers of the dummies in proportion to the accused persons put to test. Learned counsel relied on the judgment of the Supreme Court, reported in PLD 1981 SC 142 and argued that in view of this authority the identification parade in this case was totally unreliable. As regards the story of the police to have raided the place where Asghar Salam was said to be kept in captivity, learned counsel argued that the same is not believable as in spite of being heavily armed with automatic weapons the alleged abductors guards put no resistance as there was no firing and no one was injured. The learned counsel for the accused Riaz Hussain and Mukhtiar Ali adopted the arguments of Mr. A.Q. Halepota, counsel for accused Ghulam Hyder Bughio and they further contended that since no evidence of the ownership of the house, in which the kidnapee was claimed to be detained was produced, it cannot be said that the house belonged to accused Riaz Hussain. Since accused Mukhtiar Ali and Riaz Hussain were not put to the identification test through the kidnapee Asghar Salam they cannot be convicted on the remaining evidence and according to them the benefit of doubt should also be extended to them.
14. Mr. M Sarwar Khan, learned AA.-G. Appearing for the State however laid stress on the point that the abductee in this case was an Assistant Vice-President of Habib Bank and was quite an independent person. Absolutely no motive has been attributed to him to have implicated the accused persons without any reason. According to him the evidence of P.W. Asghar Salam the kidnapee alone is worth reliance and conviction can safely be based on his statement. According to the learned counsel the story given in vivid details by the kidnapee even without corroboration was worth reliance, However, corroboration in shape of the statement of his brother Kosar Salam as also the evidence of I.O. Mr. Afridi who found the kidnapee chained inside the room in presence of the accused Mukhtiar Ali and Riaz Hussain is available in this case.
15. We have considered the evidence on record as well as the arguments of the learned counsel made before us. The first point for consideration is, whether Asghar Salam was kidnapped when he was going from his house to Defence Club on 23-9-1991? On this point the evidence of P.W. Kosar Salam, P.W. Asghar Salam, P.W. Raja Mumtaz Ali leaves no room to doubt the fact of the kidnapping of Asghar Salam. The second point for consideration whether Asghar Salam was kidnapped for the purpose of ransom? On this point again one has to revert to evidence of P.Ws. Kosar Salam and Asghar Salam. P.W. Asghar Salam the kidnapee while narrating the story of his abduction stated that accused Ghulam Hyder Bughio was one of those 4 culprits who had initially abducted him from the 8th Street, Defence on the date of incident and that he was the person, who was available inside the room where he was confined and that he was asked to pay the amount of ransom by Ghulam Hyder and his other colleagues. He had stated that the other 3 culprits who had initially abducted him in the car, were not available in the Court. Such statement of Asghar Salam appears to be honest and trustworthy as he had not tried to rope in other culprits. No doubt, the identification parade has not been held in accordance with the requirements of law and much weight cannot be attached to its sanctity but evidence of Asghar Salam cannot be brushed aside as regards involvement of accused Ghulam Hyder in his abduction, captivity and demand of ransom of his release. Further, Asghar Salam has implicated accused Ghulam Hyder saying that he was the person, who sat on his side in the car at the time of kidnapping brought the scotch-tape from another room of the house and blind-folded him when he was shifted from one house to other on foot. Again after reaching the second house accused Ghulam Hyder after getting out of his room locked it from outside and he was also observed to, be lying outside the door presumably to keep guard. Again on the 4th or 5th day of the captivity accused Ghulam Hyder had come inside the room where Asghar Salam was confined and sat by the side of the kidnapee on the floor. This was the occasion when negotiations for payment of the ransom were being carried out with the abductee. Asghar Salam has emphatically and vividly given the details that Ghulam Hyder was the person who was one of his abductors, and the person who was keeping him confined and negotiating with him as well as his brother Kosar Salam for payment of ransom for his release.
Such detailed evidence of Asghar Salam leaves no room to doubt that it is not true. Therefore, the conclusion of the Trial Judge to the effect that accused Ghulam Hyder was guilty of abduction, concealment of the kidnapee and the demand of ransom for release of the abductee appears to be justified and correct.
16. As regards the role of the accused Riaz Hussain there is evidence of Asghar Salam to the effect that he saw accused Riaz Hussain for the first time on the day when S.H.O. Afridi rescued him. The words, in which P.S. Asghar Salam has stated this part of the evidence are reproduced as under:- "I told him that I was not a culprit and I was abductee. On this he told me to be at ease. I then saw present accused Riaz Hussain along with S.H.O. Afridi in the adjacent room,. He on being demanded, gave the key of lock to the S.H.O. Who unlocked my chain and released me."
' Again in another part of his evidence P.W. Asghar Salam in respect of accused Riaz Hussain has stated as under:-- "I see accused Riaz Hussain in the Court. The house in which I was confined for all these 10 days belongs to him. He used to come off and on in my room during these 10 days."
17. From the above evidence wee come to the conclusion that accused Riaz Hussain was not party to the abduction of Asghar Salam. There is no evidence against him in respect of demand of ransom from Asghar Salam also. Therefore he is not found liable for an offence under section 365- A, P.P.C. In any manner. However, he is found guilty for keeping Asghar Salam concealing knowing that he had been kidnapped. Thus the charge under section 368 read with section 365, P.P.C. Alone is proved against him. As regards accused Mukhtiar Ali the only evidence against him is that he was arrested from the place wherefrom the kidnapee Asghar Salam was rescued. The kidnapee Asghar Salam very clearly stated in his cross-examination that accused Mukhtiar was not one of those 4 culprits, who had kidnapped him and that he did not see accused Mukhtiar at any time after the abduction till 3-10-1991 i.e. The date of the rescue of kidnapee. Under these circumstances, we do not find anything against accused Mukhtiar Ali in this case and, therefore, his conviction cannot be sustained.
18. Now reverting to the sentence, no doubt offence under section 365-A is punishable with death, which has been awarded to the accused Ghulam. Hyder by the trial Court but we feel that there are reasons for awarding lesser sentence to accused Ghulam Hyder. Accused Ghulam Hyder's wife and other relations have undergone the ordeal of the trial in this case and they remained in jail all along from the year 1991. Besides in this case we are relying only on the evidence of kidnapee.
Therefore. We are of the view that extreme sentence of death was not justified. We therefore, while dismissing the appeal of appellant Ghulam Hyder alter it to R.I. For 14 years and a fine of Rs,25,000 which if recovered, be paid to the kidnapee as compensation. In case the fine is not realised, the appellant Ghulam Hyder shall undergo further R.I. For one year. However the benefit of section 382- B, Cr.P.C. Is allowed to him. As regards accused Riaz Hussain he is found guilty for an offence under section 368 read with section 365, P.P.C. His appeal is dismissed but sentence of life imprisonment awarded to him is reduced to R.I. For 7 years and fine of Rs,10,000 and in default to suffer further R.I.
For 6 months. Benefit of section 382-B, Cr.P.C. Is allowed to him also. The appeal of accused Mukhtiar Ali is allowed and he is acquitted. He may be released forthwith if not required in any other case.