STATE through AdvocateGeneral, Sindh, Karachi vs FARMAN HUSSAIN and

' SAJJAD ALI SHAH, J.---These are two Criminal Appeals with leave of this Court granted on 10-3- 1992. Petitions in these appeals have been filed by State through Advocate-General, Sindh, calling in question judgment dated 26-11-1991 of Division Bench of High Court of Sindh, Karachi, whereby two appeals filed by seven respondents before us against their conviction for offence under section 365-A/109, P.P.C. And sentence of death to all, have been allowed and in the result they have been acquitted. Case was tried in the Special Court No,1, set up under the provisions of Suppression of Terrorist Activities Act, 1975. Vide the same judgment trial Court in the same case had acquitted three co-accused namely Ronaq Ali, Ghulam Muhammad and Ghulam Murtaza by extending to them benefit of doubt. It appears from the record that convict Farman Hussain had filed a separate appeal in the High Court, which resulted in filing of two petitions in this Court which have been converted into appeals.

2. Briefly stated the relevant facts giving rise to these appeals are that minor boy aged 11 years namely Tariq Nawaz son of Qamar Din Thallo was kidnapped on 1-1-1991 between 1-30 p.m. To 1-45 p.m. From the compound wall of Umbreen Apartments situated in Gulshan-e-Iqbal, while he was playing with other children. It is alleged by the prosecution that three persons came in Suzuki car and from them two forcibly carried away Tariq Nawaz in the car. His sister Aisha Qamar intervened but she was pushed back. Aisha Qamar informed her mother, who in turn informed her brother Yasin on telephone. Yasin lodged F.I.R. At Police Station Gulshan-e-Iqbal on the same day at 2-15 p.m. (14-15 hours). Distance between place of occurrence and police station is one kilometre as is mentioned in F.I.R. (Exh.No,13/A). Culprits are described in F.I.R. As three young persons who came in a cream colour Suzuki car number of which is not known. From them one was in pant and shirt while the two were in Shalwar Qameez and they had forcibly taken away Tariq Nawaz in their car in order to extort ransom for his release.

3. P.W.9 is Inspector, Sultan Masood Kiyani, who was at the relevant time posted in C.I.A. Cell No,2 (anti-kidnapping). On 6-1-1991 (5 days after incident) spy information was received by his superiors and in pursuance of which he raided Bungalow No,B/22 situated in Block 13/D, Gulshan-e- Iqbal and for that purpose he was aided and assisted by 8/10 police mobiles and a fire brigade vehicle. On the way to the place of raid he stopped a taxi and made driver and passenger namely Muhammad Anwar and Abdul Rasheed witnesses and took them along so that raid should be made in their presence. Raid was made at 6-00 a.m. And outside the bungalow announcement was made on the hailer that whoever was inside should surrender as the police had surrounded the bungalow. After that entry was made in presence of witnesses and 8 accused persons came out with arms from different rooms and gathered in the Hall of the bungalow. Aslam Shah alias Samar was armed with 7 MM rifle, Shaukat, Ghulam Abbas and Amir Bakhsh were armed with Klashanikovs. Niaz and Raunaq Ali were armed with pistols while Ghulam Mustafa and Ghulam Muhammad had Revolvers. Except Aslam Shah others had live cartridges as well. On inquiry they could not produce licences for the arms and they were taken in custody. Such Mashirnama was prepared which is Exh.22/A. Police party shouted for the kidnapped boy who came out from the bathroom and appeared to be nervous. He was recovered vide Memo. Exh.22/B. There was a car Suzuki FX in the Porch of the said bungalow which was secured vide Memo. Exh.22/C. Persons arrested were brought to C.I.A. Centre-2, alongwith arms recovered from them.

4. Further investigation was handed over to P.W.10 Qurban Ali Khokhar, who examined kidnapee Tariq Nawaz. On 8-1-1991 on the pointation of respondent Shaukat, who was in police custody he arrested respondent Farman Sheikh from the Par View area of Karachi Airport vide memo. Exh.23/A.

On 14-1-1991 on the pointation of Shaukat he arrested respondent Liaquat, vide memo. Exh.23/B, on 16-1-1991 he produced accused persons before ACM, C.IA., Karachi for identification test, which was held in which prosecution witnesses except one correctly identified accused persons. This investigating officer examined P.Ws. Aisha Qamar, Qamaruddin Thallo, complainant Yasin and others.

5. In the trial Court prosecution examined 11 witnesses, who have been wrongly shown in the index of the paper-book of the High Court as 10 witnesses. P.W.8 is repeated for two witnesses. P.W.1 is Muhammad Yasin complainant, who filed F.I.R. P.W.2 Qamaruddin Thallo is Custom Officer and is father of kidnapee Tariq Nawaz. It is deposed by him that he was in Custom House when he was informed that his son had been kidnapped. He came to his house and was apprised of details by his wife about the kidnapping. On 6-1-1991 he was informed by C.I.A. That his son had been recovered. He claimed in his deposition that one day before the kidnapping he saw Farman Sheikh and Shaukat and one other person standing near the stairs of his Flat. Later during investigation on 15-1-1991 he identified Farman Sheikh and Shaukat in the test before the Magistrate. P.W.3 is kidnapee Tariq Nawaz, who deposed that three persons came in Suzuki car from which two came down and caught hold of him. One of them was wearing Jacket. His sister Aisha intervened but he was taken away in the car. The person who was wearing Jacket had put of the same and put on him to cover him so that he should not see. Later he found himself in a bungalow where one person was already waiting. One person always remained guard over him. He was detained in the bungalow for five days and the persons used to change duties to stand guard over him. He was given meals. They used to tell him that they would contact his father and as soon as money was paid, he would be released. From accused persons he recognized Farman, who used to visit his Flat. On 6-1-1991 police came to the bungalow, recovered him and arrested accused persons.

During investigation he identified two persons in the test before the Magistrate and one of them was Farman Sheikh while the other was the person who had kidnapped him.

6. P.W.4 Nisar Ahmed Nadeem deposed before the trial Court that the bungalow from which kidnapee was recovered is owned by his father-in-law and was rented out to a person, who disclosed his name as Shahnawaz Bhutto, son of Ghulam Haider Bhutto at the rent of Rs,8,000 per month. The rent of six months was paid in advance. On 6-1-1991 he came to know that there was a raid on the bungalow and learnt about details from C.IA. He identified Ameer Bakhsh Umrani to be the person to whom the bungalow was rented, who gave his name as Shah Nawaz Bhutto. He produced copy of rent agreement Exh.16/A and rent receipts Exhs.16/B and 16/C.

7. P.W.5 is Aisha Qamar, who was 10 years old at the time of her deposition. She was playing with her brother Tariq Nawaz at the time of kidnapping. She gave the details as stated above. During investigation she identified two kidnappers in the test as Liaquat All and Ghulam Abbas. P.W.6 is Muhammad Moizuddin, who signed memo. Of Wardat Exh.18/A as Mashir which was prepared on 1- 1-1991. P.W.7 is Abdul Qadir Sanghi, who is doing business of Estate Agency and Commission Agent.

Through him bungalow in question was rented out by Ameer Bakhsh who gave his name as Shah Nawaz Bhutto. Ameer Bakhsh was brought and introduced by Shaukat and Abbas to this witness.

8. P.W.8 is Mr. Muhammad Ahsab Khan, A.C.M., Karachi, under whose supervision identification test was held on 16-1-1991. 19 dummies were mixed up with accused persons. P.W. Muhammad Yasin identified Farman Sheikh and Shaukat Ali only. P.W. Aisha identified Ghulam Abbas and Liaquat Ali.

P.W. Qamaruddin identified Farman Sheikh and Shaukat Ali. P.W. Tariq Nawaz identified Liaquat Ali and Farman Sheikh. P.W. Anwar Dilip did not identify any accused. These witnesses produced memos. Of identification Exhs.20/B and 20/F.

9. S.H.O. Ali Asghar is P.W.9 but is wrongly shown in the index of the paper book of High Court as P.W.B. He registered F.I.R. Exh.13/A at Police Station Gulshan-e-Iqbal and visited Vardat of kidnapping. He recorded statements of some witnesses and then investigation was transferred to C.I.A. P.W.10 Inspector Sultan Masood Kiyani and P.W.11 Sub-Inspector Qurban Ali of C.I.A. Have investigated this case as is mentioned above.

10. In the Trial Court in their statements under section 342, Cr.P.C., respondents before us and acquitted co-accused denied prosecution allegations and proclaimed false implication at the instance of police. Some of them have shown their connection with Sindh People's Students Federation. Ghulam Muhammad named D.I.-G. Police Akhtar Siddiqui and Ghulam Murtaza Sanjrani as instrumental for involving him falsely in this case. He had produced some documents to show his dispute with Ghulam Murtaza Sanjrani and in that connection filing of cases against him. Farman Hussain claimed that he was arrested on 8-1-1991 at 1-30 p.m. From Airport while he was on duty. On the day of incident also he was on duty. Shaukat All stated that he is President of SPSF and for that reason had been victimised at the instance of the Government. Aslam Shah also claimed to be office-bearer of SPSF., Tech. College and stated that he had been falsely implicated by the police and was arrested from Civil Hospital on 5-1-1991 at 11-00 a.m. Niaz Ahmed has stated that he is Central Vice-President of SPSF and has been falsely implicated by the Government in this case. Rounaq Ali claimed false implication as he could -not make payment to the police for his release. Respondents and acquitted co-accused further examined themselves on oath as defence witnesses.

11. It would be pertinent to observe that while trying a criminal case, it is the duty of the Court to appraise evidence strictly according to the legal requirements described by law without being swa yed away emotionally for any other extraneous reasons, which fall outside the pale of legal jurisdiction of appraisement of evidence. In the criminal jurisprudence which we follow, it is invariably the duty of the prosecution to prove the case against accused beyond doubt and the accused is presumed to be innocent until the case is fully proved against him and in that process not only if there is room for doubt, benefit thereof is to go to the accused but if any legal provision, which is to be relied upon in the appraisement of evidence and is open to two interpretations, one beneficial to the accused is to be adopted. The Court is to administer the laws as are operative in the country and if such laws fail to achieve the desired results, then it is the duty of the legislature to amend them suitably to make them effective. Court is not permitted to deviate from the principles and guidelines laid in the law for appraisement of evidence. To bring home guilt to the accused, legal evidence is required to be of incriminating nature to connect accused with the commission of crime beyond the shadow of reasonable doubt.

13. In this case prosecution has produced direct evidence of two child witnesses in support of charge of kidnapping and evidence of recovery of kidnapee and arrest of accused persons from the same bungalow which was raided and recovery of arms from them and evidence of identification test. Prosecution has also produced evidence of complainant Yasin and Qamaruddin to corroborate evidence of child witnesses. Prosecution has also produced evidence of witnesses to show that bungalow from which kidnapee was recovered was hired on rent by Ameer Bakhsh.

After evaluation of evidence trial Court being not satisfied ruled out of consideration evidence of identification test which took place on 16-14991 under the supervision of Magistrate. Trial Court very heavily relied upon evidence of kidnapee Tariq Nawaz supported by his sister Aisha who are both child witnesses and held that identification test is not a legal requirement if eye-witnesses can identify the accused before the trial Court. For this preposition reliance is placed by the trial Court on the case of Muhammad Yousuf tai v. The State PLD 1988 Kar. 539 in which facts are entirely different. In the reported case appellant was convicted by the Special Court (Offences in Banks), Karachi, for offence under section 403 read with section 109, P.P.C. And sentenced to R.I. For two years and fine of Rs,2 Lacs. It was alleged that appellant posed as Rafiq Khan in whose name joint account was opened alongwith Mst. Wahida Taj. Appellant withdrew the entire amount by five cheques and misappropriated the same with abetment of other co-accused. Mrs. Yasmeen had introduced appellant and alleged Mst. Wahida Taj to the Bank for opening the account. During the investigation appellant participated in the identification test supervised by the Magistrate. It was contended on behalf of the appellant that evidence of identification test was not reliable as Mst.

Yasmeen could not identify the appellant. High Court rejected the contention for the reason that there was other adequate evidence available on the record, hence failure to pick out correctly for valid reasons would not nullify other evidence and in such circumstances of that particular case, identification in the Court would suffice. Relevant paragraph from the report is reproduced as under:- "Adverting to the above first submission of Mr. Azizur Rehman Memon, learned counsel for the appellant that the identification test is not reliable, it may be observed that he has referred to the factum that P.W.6 Mrs. Yasmeen was unable to identify the appellant in the identification test carried out by the learned A.C.M. VII on 3-12-1984. In this behalf it may be pointed out that P.W.6 Mrs. Yasmeen has given a cogent reason for not identifying the appellant, in her cross-examination, namely, that she was unable to recognise the accused person or any one of them as they had changed their 'Huh' and that accused Yousuf Zai at the time of identification test was not wearing glasses and had removed his mustaches. Furthermore, in identification test P.W.2 Muhammad Farooq had identified the appellant. There seems to be ample evidence on record to prove the factum that the appellant was the person who opened the above account in the Karimabad Branch of the Bank and had deposited the above cheque Exh.2/F and had withdrawn the above amount through ExIs.2/H to 2/H-4. In this behalf reference may again be made to the evidence of P.W.1 M. Ismail Ghachi the Manager of the branch concerned of the Bank, P.W.2 Muhammad Farooq and P.W.4 Muhammad Akram Rathore the Manager of Taj Company Ltd. In whose presence and in the presence of P.W.1 the appellant made the extra-judicial confession which factum has been even admitted by the appellant by putting a question in the cross-examination to P.W.4 Muhammad Akram Rathore to the effect that the above extra-judicial confession was extracted under coercion. We may observe that there is no legal requirement to the effect that there should be an identity test of an accused person. If the eye-witnesses can identify the accused before the trial Court that is enough. In the present case the appellant had visited the Karimabad Branch of the Bank not only at the time of opening of the account but had also visited five times while withdrawing the amount of Exh.2/F through five cheques during the period from 5-9-1984 to 17-9- 1984 whereas the identification parade was held on 3-12-1984 and the evidence of the above witness was recorded in December, 1985."

14. From the perusal of the relevant paragraph reproduced above it is clear that observation was made by the High Court in peculiar circumstances of that case and was to be confined to that case without intending to lay down a proposition of general application that identification test is not necessary and can be replaced by identification of accused persons by the witnesses in the trial Court. It would be pertinent to point out here that in a criminal case if a witness gets a momentary glimpse of accused and claims that he would be able to identify him, then after arrest identification test becomes very essential which is to be conducted strictly according to guidelines and legal requirements enunciated by the law.

15. It appears from the judgment of the trial Court that corroboration to the statement of kidnapee was sought from the deposition of Aisha, who is also child witness. Evidence of P.W. Aisha was criticised on the ground that she did not give description of three accused persons who came in Suzuki car and two of them forcibly kidnapped her brother Tariq. She did not give description to her mother who was informed by her immediately after the incident. Her mother informed her brother Yasin on telephone, who lodged the report with police. No description of those two or three accused persons is mentioned in F.I.R. Except that one was in pant and shirt and two were in Shalwar- Qameez. Kidnapee Tariq identified in the test Liaquat and Ghulam Abbas as accused persons who took him away in the car. P.W.5 Aisha in the Jest identified Liaquat and Ghulam Abbas as kidnappers. P.W.3, Tariq Nawaz stated in his evidence that Ghulam Abbas was not with Liaquat Ali when he was kidnapped. Trial Court has held that the case is proved against respondents beyond doubt by independent evidence of two child witnesses Tariq Nawaz and Aisha and sentenced seven respondents to death while relying upon the evidence of same two child witnesses acquitted Ghulam Muhammad, Rounaq Ali and Ghulam Murtaza.

16. In appeal High Court has appraised evidence properly and in accordance with the legal requirements of law. In this case most important evidence upon which the fate of the whole case depends is of kidnapee P.W.3 Tariq and his sister P.W.5 Aisha. Both are child witnesses hence their evidence is to be assessed with care and caution. It is note worthy that P.W.5 Aisha did not give description of two accused persons who forcibly kidnapped Tariq Nawaz in her presence. Time of incident was about 1-30 p.m. And it is strange that no body else saw the act of kidnapping despite the fact that cries must have been raised and there was resistance by Aisha. Incident took place inside the compound of Umbreen Apartments which is a building with flats fully inhabited. In any case to say that one was in pant and shirt and two were in Shalwar-Qameez is not the description, which can be helpful at the time of identification test. Respondent Ghulam Abbas was arrested on 6-1-1991 and Liaquat on 14-1-1991 and identification test took place on 16-1-1991. Identification was not held in proper manner and number of dummies was not proportionate to number of accused persons made to stand in the test. Identification test of Abbas was held after ten days for which it can be said that it was open to doubt. Evidence of identification test in such circumstances is assailable and not fit to be relied upon.

17. On the point of identification test P.W.8 Mr. Muhammad Ahsab Khan A.C.M. Deposed before the trial Court that kidnapee Tariq Nawaz identified two accused persons namely Liaquat Ali and Farman Sheikh. At that time five accused persons stood in the row alongwith 15 dummies. He admitted that in the identification test by the witnesses, 13 accused were mixed with 19 dummies except when Tariq came, 5 accused were made to stand with 15 dummies. He did not mention names of the accused persons and of dummies in the pro formas according to their position of standing in the line with serial numbers. At another place in the cross-examination this witness had admitted that names of dummies were written in the pro formas by Court Muharar. He further deposed that Aisha Qamar identified Ghulam Abbas and Liaquat Ali. Qamaruddin and Yasin identified Farman Sheikh and Shaukat Ali. It would be pertinent to point out here that it is the case of the prosecution that on night preceding the kidnapping Qamaruddin and Yasin while coming back from Airport saw Farman Sheikh and Shaukat All near the flat of Qamaruddin and exchanged greetings with them. If the accused and witnesses mentioned above knew each other so well then there was no need of identification test. In any case Yasin did not mention this fact in F.I.R. And deposed that he mentioned this fact in his police statement which was recorded on 16-1-1991 on which date the test was held. On the other hand Qamaruddin deposed before the trial Court that he stated before the police but not in his earlier statement recorded by S.H.O., Ali Asghar of Police Station Gulshan-e-Iqbal that another person was with accused Farman. He further reiterated that his statement before police and in the Court were correct as he had indicated before the police that person who was with accused Farman was not known to him while accused Shaukat was already known to him.

18. Question of identification test came up for examination in the case of Lal Pasand v. The State PLD 1981 SC 142 in which it is held that identification test with unexplained delay of one week and conducted not in accordance with rules and mixing proper number of dummies cannot be relied upon when eyewitness has not given proper description of assailant seen by him at the time of incident. It was further observed that mere description of accused having green eyes and thin neck was not sufficient as such description could apply to a large number of persons. In the instant case no description is given at all of the accused persons as stated above. With advantage reference can be made to the case of Abdul Sattar and another v. The State 1981 SCMR 678 in which evidence of identification test was rejected on the grounds of discrepancies in statements of witnesses and improbabilities inherent in their versions, particularly contradictory descriptions of height of assailants as given by them and mentioning them as boys of young age.

19. Farman and Liaquat were not arrested from the bungalow. P.W. Tariq deposed before the Trial Court that he saw Farman coming to the bungalow on two occasions. P.Ws. Qamaruddin and Yasin also claimed to have seen Farman and Shaukat near the Flat of Qamaruddin at night which preceded the act of kidnapping. Qamaruddin was not sure about the identity of other person with Farman as indicated by him in the statement made to the police. According to P.W.10 Qurban Ali of CIA., who had taken over the investigation, he examined kidnapee Tariq Nawaz. It is not ascertainable from the evidence of this witness as to on what date he recorded statement of Tariq Nawaz and whether in the statement, Tariq Nawaz has mentioned this fact that on two occasions Farman Sheikh had visited bungalow and latter was already known to Tariq Nawaz, who referred to Farman Sheikh as uncle Farman. Relatives of Tariq could have been contacted to throw more light on this very important clue. Qurban Ali has further deposed that he arrested Farman Sheikh on 8-1- 1991. He further deposed that he met with kidnapee on 6-1-1991 and thereafter only on 16-1-1991. He further admitted that Qamaruddin father of kidnapee did not see him from 7-1-1991 to 15-1-1991.

Qamaruddin has stated before the Trial Court in his cross-examination that it was correct to say that police examined him for the first time on 16-1-1991. Identification test also took place on 16-1- 1991. P.W.1 Yasin, complainant has also admitted before the Trial Court in his deposition that he stated for the first time before police on 16-1-1991 that he saw Farman Sheikh and others near the Flat of his sister on 31-12-1990. In such circumstances it cannot be ruled out that assertion made by Qamaruddin and Yasin that Farman Sheikh and others were seen near the Flat of kidnapee on the night preceding the act of kidnapping is an improvement in the case of prosecution made for the first time on 16-1-1991 when the identification test took place and that is why need was felt to ask both these witnesses namely Qamaruddin and Yasin to participate in the identification test to identify Farman and Shaukat.

20. There is still one other angle from which involvement of Farman can be looked at. Farman was not arrested from the bungalow but was arrested subsequently on 8-1-1991. It is alleged that house was raided on 6-1-1991 and Tariq Nawaz was recovered. If police statement of Tariq Nawaz had been recorded on 6-1-1991, then it is expected that he might have mentioned this fact in that statement that uncle Farman had come twice to the bungalow and was seen by him. In that case Yasin and Qamaruddin uncle and father of Tariq Nawaz could have mentioned their meeting with Farman and could have offered their additional statements on 8-1-1991, when Farman was arrested, to the effect that they had seen him and one other person near the Flat on the night before the kidnapping. In such circumstances presumption is unavoidable that on 16-1-1991 before identification test was held accused persons including Farman were shown to the complainant and Qamaruddin and story was fabricated that Farman and one other co-accused were seen by complainant and Qamaruddin near the Flat on the night preceding the kidnapping and that is how it became necessary to have their additional statements recorded on 16-1-1991, which was the date of identification test. For such reasons evidence of complainant Yasin and Qamaruddin on this point does not sound convincing and truthful and cannot be relied upon as corroboration to the evidence of two child witnesses.

21. Another set-back in the prosecution case is that Mashirs Muhammad Anwar and Abdur Rashid who were present at the time of raid and in whose presence respondents and acquitted co- accused were arrested and weapons recovered from them and in whose presence kidnapee was recovered, were not examined in the trial Court at all. In this context reference can be made to the evidence of P.W.9, Inspector Sultan Masood Kiyani, who testified before the trial Court that Mashir Muhammad Anwar was seen by him in the compound of the Court building for two days when the hearing of the case was in progress and thereafter he had not seen him. He further expressed ignorance whether Rashid was still alive or had died and he had not seen them for the past 2/3 days. He denied suggestion in cross-examination that he had concealed those Mashirs but maintained that he did not try to trace them. By not producing these Mashirs, it can be safely presumed that they had been withheld on purpose and had they been produced, they would have not supported the prosecution case. This presumption is beneficial to the accused and is to be adopted. Non-production of the Mashirs without valid reasons would react adversely on the recovery of weapons and arrest of accused persons. In the absence of Mashirs reliance cannot be placed on the evidence of Investigating Officer for the reason that it, is alleged by the defence that investigation was not conducted in an honest and impartial manner.

22. First of all the manner in which it is alleged that accused persons were arrested and produced weapons does not sound to be truthful. After call was given by police on hailer it is claimed that all eight accused persons came out from different rooms and assembled in the hall and each accused brought his fire-arm with him. None of 8 accused was without arm or forgot to bring his arm and the impression gatherable is that all 8 accused persons were sitting ready duly armed waiting for police to come and arrest them. No attempt was made by.Any one of them to escape or conceal his weapon. The story of arrest as narrated is too good to be accepted and is not free from doubt.

23. Arrest and recovery of weapons, as alleged by the prosecution, is not accepted by the defence and is disputed. Ghulam Muhammad claimed that he was arrested from restaurant near Passport Office on 5-1-1991. He claimed that he was implicated falsely in this case due to enmity of D.I.-G.

Saleem Akhtar and Ghulam Mustafa Sanjrani on account of dispute over land. He produced documents in support of his assertion. Trial Court acquitted Ghulam Muhammad, Rounaq Ali, Ghulam Murtaza on the ground that Tariq attributed no role to them. Likewise other accused persons also denied their arrest from the bungalow as alleged by the prosecution. P.W.10 Qurban Ali, Investigating Officer admitted in the cross-examination before the Trial Court that during the investigation of this case three persons, Mohabat, Qurban and Ghulam Sarwar were arrested and subsequently released under section 169, Cr.P.C.

24. Keeping in view all the factors stated above and in the absence of valid reasons for not examining two Mashirs of arrest and recovery of kidnapee and J weapons, serious doubt is cast upon the authenticity of the story of raid as is alleged by the prosecution. No explanation is offered for not producing the Mashirs of the raid. In such circumstances evidence should have been produced that efforts were made to locate the Mashirs but without success. In that connection process server who was assigned this duty should have been examined. In support of this reference can be made to the case of Allah Ditta v. The State PLD 1958 SC (Pak.) 290 in which it is held by this Court that only such a person could make a statement of fact on that point as has been engaged in the task of searching for witness for the purpose of serving the summons for his appearance. In the absence of any direct evidence, the mere procuring the appearance of witness was not sufficient for satisfying the declaration that "delay and unnecessary adjournment" would be involved in relevant condition of section 33 of the Evidence Act which is to the effect that it should have been proved that the witness could not be found. For reasons aforementioned it can be said that story of prosecution with regard to the raid and in it arrest of accused persons and recovery of weapons from them and recovery of kidnapee is not fully free from doubt. This is being so observed for the reason that no legal evidence is produced as is required under the law.

Evidence of child witness is a delicate matter and normally it is not safe to rely upon it unless corroborated as rule of prudence. Great care is to be taken that in the evidence of child element of coaching is not involved. Evidence of child came up for examination before Division Bench of the High Court in the case of Amir Khan and others v. The State PLD 1985 Lah. 18 in which after consideration of the relevant case-law on the subject, Abdul Shakurul Salam, J. (as he then was) as author of the judgment observed that 'children are a most untrustworthy class of witnesses, for, when of tender age, as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and the desire of notoriety". In any case the rule of prudence requires that the testimony of child witness should not be relied upon unless it is corroborated by some evidence on the record.

25. In this case kidnapee Tariq, who is pivotal witness of the prosecution identified in the test only two respondents. He did not identify remaining respondents and other co-accused who remained with him in the bungalow for five days, when he was detained. Other accused persons he identified in the Court and not in the identification test as prescribed in the law. He is corroborated by his sister and both of them are child witnesses. Both these witnesses are corroborated by complainant Yasin and Qamaruddin whose evidence cannot be relied upon as their assertion is an improvement in their version not mentioned in their earlier statements. Story of raid is not free from doubt for reasons mentioned above. Trial Court has acquitted three accused persons namely Rounaq Ali, Ghulam Muhammad and Ghulam Murtaza who were arrested alongwith weapons during the raid when kidnapee was recovered from the bungalow. This was so done by the Trial Court on the ground that kidnapee had not assigned any role to them in respect of his kidnapping and detention. This does not make the case of acquitted co-accused any different from that of remaining seven respondents, who were likewise arrested from the bungalow during the raid and have been sentenced to death. Kidnapee Tariq Nawaz stated in his evidence that from accused persons one at a time used to stand guard over him. He has not alleged any maltreatment and further it is not the prosecution case that any ransom was demanded from father of kidnapee. It would be very dangerous to record conviction with sentence of death to seven persons on the basis of sole testimony of child witness Tariq, whose evidence is not corroborated by any other independent source for confirmation. Evidence of his sister P.W.5 Aisha, who is a child witness is confined to the identification of Liaquat and Ghulam Abbas as kidnappers only and her evidence is not reliable as she failed to give description of kidnappers in her earlier statement.

26. All the pieces of evidence produced by prosecution are defective and tainted, hence cannot be used to corroborate each other. Evidence of hiring bungalow by Ameer Bakhsh through Shaukat and Abbas was not put to them in 342, Cr.P.C. Statements, in which 14 stereotype questions were repeated. Even otherwise that evidence alone is not sufficient to warrant conviction when story of raid as narrated by prosecution is not found totally reliable. In any case High Court has assessed evidence in a proper manner and no reason exists to justify setting aside judgment of acquittal rendered by the High Court. There is difference between appraisal of evidence in this Court in appeal arising from conviction and in appeal arising from acquittal recorded by High Court. In appeal arising from acquittal, appraisal of evidence in this Court not so rigid as in the appeal arising from conviction and normally in the former case this Court hesitates to interfere unless it becomes necessary on the ground of gross misreading of evidence resulting into miscarriage of justice. This question came up for examination before this Court in the case of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and after consideration of plethora of case-law on the subject, it was held that this Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases only to avoid miscarriage of justice and for no other purpose.

27. For facts and reasons mentioned above there are no merits in these appeals which are dismissed.

(Sd.)

' Sajjad Ali Shah, J.

' AJMAL MIAN, J.---I have had the advantage of reading the draft of the proposed judgment of my learned brother, Sajjad Ali Shah, J. The propositions of law enunciated therein seem to be correct but I am unable to agree with the conclusions drawn on the basis of the material on record.

2. Before touching upon the merits of the case, I may observe that there cannot be two opinions that the duty of the Court is to administer the laws as are operative in the country and if such laws fail to achieve the desired result, then it is the duty of the legislature to make necessary amendments therein. However, at the same time, it is also a well-settled proposition of law that while applying a particular law, the Court should take into consideration the object for which it has been enacted. The interpretation of the law should be placed in a manner which may advance the object and suppress the mischief for which the law in question might have been enacted and not to construe in a manner which may defeat the object of the law.

3. It is a matter of public knowledge that in Sindh, on account of kidnapping for ransom, commission of dacoities and other offences, the people are feeling insecured. The learned trial Court has dilated upon these aspects in detail. I am inclined to subscribe to the view found favour with it. The approach of the Court in matters like the case in hand should be dynamic and if the Court is satisfied that the offence has been committed in the manner in which it has been alleged by the prosecution, the technicalities should be overlooked without causing any miscarriage of justice.

4. In the present case, the main evidence rests on two child witnesses though there are some corroborative pieces of evidence. The question which requires consideration is, what is the evidentiary value of the above child witnesses and whether their testimony with the corroborative pieces of evidence can warrant allowing of above acquittal appeals against any or more of the respondents. In this behalf it may be pertinent first to deal with the -question of evidentiary value of a child witness. In this regard reference has been made by the learned trial Court as well as by the High Court and Mr. Abdul Ghafoor Mangi, learned Additional Advocate-General Sindh, appearing for the appellant/State to some precedents.. It may be pertinent to refer to the case-law on the above subject:

(i) Abdullah Shah v. The State 1968 SCMR 852; ' in which Hamoodur Rahman, J. Sitting with Muhammad Yaqub Ali, J., while declining leave to appeal, made the following observations as to the competency of the child witness:--- "We have no hesitation in saying that there is no substance in either of these contentions. Section 118 of the Evidence Act, as rightly pointed out by the High Court, makes all persons competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from extreme old age, disease, whether of body or mind, or any other cause of the same kind. In the present case the Court had, by questioning the child concerned, fully satisfied itself that she was capable of understanding the questions put to her and of giving rational answers to those questions. Indeed, the trial Court had remarked that she also stood the cross-examination well and her evidence was in no way shaken by such cross-examination. In the circumstances she was a fully competent witness. Whether she was to be believed or not, was for the Courts below to consider. Both the Courts below have believed her testimony because she was a natural witness and her version found corroboration from the medical evidence and the other circumstances of the case."

' It may be observed that in the above case the conviction under section 302, P.P.C. Was based on the solitary evidence of Mst. Jameela, a girl aged about 7 or 8 years, against her father who had killed her mother.

(ii) Umar v. The Crown 1969 SCMR 600; ' In the above case, there was a solitary eye-witness Mst. Jamul, aged 9 years only. It was contended before this Court that the conviction under section 302, P.P.C. Could not be sustained on the basis of the statement of the above child witness. The above contention was repelled as under:- "Counsel for the appellant urged before us that Jamil, P.W.2, was not mentioned as an eye-witness to the occurrence in the F.I.R. Lodged by Allah Dino, P.W.4, and that, therefore, she was not present at the occurrence and was only a tutored witness, but P.W.4, merely lodged the information he was given by P.W.1 and P.W.1 stated in her deposition 'Jamul said that her father had killed her mother'.

He further argued that evidence of the solitary eye-witness Mst. Jamul, P.W.2, was of a child aged about 9 years only, and as such could hardly be relied upon for the purpose of sustaining the conviction on a charge for such a grave offence, but the evidence of Mst. Jamul, P.W.2 seems to us to be amply corroborated by the evidence of P.W.1, Mst. Khatija, P.W.3, Mitho, and P.W.4, Allandino; P.W.2, was a competent witness and her evidence was substantive evidence in the case."

' Bashir v. The State PLD 1974 Pesh. 113; ' in which a Division Bench of the Peshawar High Court has dilated upon as to the evidentiary value of a child witness and has sustained conviction under section 302, P.P.C. And observed as under:--- "In Fatu Santal v. King-Emperor AIR 1921 Pat. 109, it has been held that the mere fact that the evidence of the only eye-witness of the crime is that of a child of 6 years of age is not a ground for not relying upon it especially when the evidence is given without hesitation and without slightest suggestion of tempering or tutoring or anything of that sort and there is corroboration of the evidence in so far as it narrates actual facts and particulars of all the subsequent conduct immediately afterwards. There can be no slightest suggestion that Mst. Gulaba was tutored to give the evidence. She gave evidence without hesitation in a straightforward manner. Her conduct after the occurrence in informing her uncle Wahab Khan immediately about the crime and charging Bashir before Wahab Khan and Wahab Khan promptly lodging a report is a corroboration of her testimony. Both Mst. Gulaba and Mst. Benazira have stated that Bashir had come out of Jawar and fired at Lal Zari. Lal Zari sustained fire shot injuries at her left side face and it clearly indicates that the assailant fired at Lal Zari in his standing position. The Jawar was only three feet high. According to the observation of the Investigation Officer, the appellant at point No,5 was visible from points Nos.3 and 4 as explained above. The appellant had absconded for about a month after the occurrence. The absconding of the accused further corroborates the evidence of the two eye- witnesses."

(iv) Amir Khan and 3 others v. The State PLD 1985 Lah. 18; ' In the above case, four accused persons were convicted under section 302/34, P.P.C. For murdering three women while sleeping in the room in which the above women were sleeping.

There was no adult male member of the family but there were two minor children, namely, Aurangzeb, P.W.9 and Mst. Reshman, P.W.10, aged about nine and four years respectively at the time of occurrence. A Division Bench of the Lahore High Court declined to concur with the convictions and sentences awarded to the accused persons which included death sentence and quoted with approval the following extract from the Outlines of Criminal Law by Dr. Kenny, Downing Professor of the Laws of England, Cambridge University: "Children are a most untrustworthy class of witnesses, for, when of a tender age, as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, and are greatly influenced by fear of punishment, by hope of reward, and by desire of notoriety."

5. From the above judgments it is evident that child witnesses have been accepted even by this Court as competent witnesses even in a murder case. The conviction was sustained by this Court though the solitary eye-witness was a child aged 7 or 8 years with some corroborative evidence. In this regard, it may be pertinent to observe that section 118 of the Evidence Act, 1872 (now Article 3 of the Qanoon-e-Shahadhat, 1984 which contains certain additions), hereinafter referred to as the Act, deals with the question as to who may testify. It provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. The explanation to the above section lays down that a lunatic is competent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. In other words, the above provision of the Act makes all persons competent to testify unless the Court considers it otherwise on account of above reasons which includes tender age.

6. In the present case the learned trial Court, which had the advantage of observing demeanour of the child witnesses, had made the following observations as to their evidence:--- "The evidence of P.W. Tariq Nawaz Thallo and of P.W. Aisha Qamar appear to be true, simple, natural, honest and trustworthy. Each and every word of P.W. Tariq Nawaz and Baby Aisha Qamar appears to be true, honest and natural. They do not appear to be hostile or inimical towards the accused and this fact stands proved by perusing the record that even after alleging that the accused Farman Sheikh was one of the culprits who got him abducted and got him confined for long five days away from his parents and was recovered by the police but in spite of all these bitter facts the small boy takes the name of accused Farman with respect calling him 'uncle' i,e, Uncle Farman. The very senior counsel like M/s. Mujeeb Pirzada, Ashraf Kazi, Khawaja Naveed and Ejaz Mangi cross-examined the P.Ws. Tariq Nawaz Thallo and Baby Aisha Qamar at length but totally failed to shake their evidence. I have never come across to such a true, honest, simple and natural witnesses during my whole career of service. I have thoroughly examined their evidence and I do not hesitate to hold that each and every word stated by P.Ws. Tariq Nawaz and Baby Aisha Qamar is true, trustworthy and must be believed. They gave evidence in a most impressive and convincing manner and they were while deposing before the Court, appeared to be telling only and only truth and they could not be shaken by heavy cross-examination to which they were subjected. It is settled view of the superior Court that where a child witness is not shaken in cross-examination the same would be sufficient for conviction of the accused. The defence has totally failed to bring out any material to show why P.Ws. Tariq Nawaz and Baby Aisha Qamar should falsely implicate the accused."

6. I have also perused their testimony minutely and I am also impressed by the same. Their testimony appears to be straightforward, natural, truthful and confidence inspiring. I am unable to discover any contradiction between the testimony of the above two child witnesses as to warrant discarding of the same. The High Court's following observations in the judgment under appeal are not warranted by the material on record:--- "The 2 important witnesses P.Ws. Tariq Nawaz and Baby Aisha Qamar both being minors, and their evidence being discrepant and untrustworthy, could not have been made basis of conviction on charge of capital offence: ' The above conclusion is founded on misreading of evidence and is not sustainable.

' Besides the testimony of P.Ws. Tariq Nawaz and Baby Aisha Qamar, the two child witnesses, there are corroborative pieces of evidence against some of the accused persons.

7. I may now revert to the merits of the case.

' The prosecution case was that on 1-1-1991 at about 1-45 p.m., P.Ws. Tariq Nawaz, aged 11 years and Baby Aisha Qamar were playing near the stairs of their flat when a Suzuki car of beach colour came having three occupants including the driver; two of them came out from the car, they (one of them who was wearing jacket), caught hold of Tariq Nawaz and forcibly put him in the car. Baby Aisha Qamar first caught hold of the jacket of one of the culprits and then the door of the car, but she was pushed back. Tariq Nawaz was kidnapped in that car. After that, Baby Aisha Qamar informed her mother about the incident. Thereupon, she contacted her brother P.W. Yasin, who lodged the F.I.R. At Police Station Gulshan-e-Iqbal at 2-15 p.m., which is situated at about one kilometre from the place of incident. It was also the case of the prosecution that after kidnapping Tariq Nawaz, he was taken to Bungalow No,22, Block No,13-D, Gulshan-e-Iqbal, Karachi, hereinafter referred to as the bungalow, where he was confined in a room for five days till the morning of 6-1- 1991, when a police party on receiving spy information raided the bungalow and recovered the above kidnapped minor Tariq Nawaz and arrested the following eight accused alongwith the weapons mentioned in the memo. Of arrest:---

(i) Shaukat Ali;

(ii) Ghulam Abbas;

(iii) Aslam Shah;

(iv) Amir Bux; (v). Niaz Ahmed;

(vi) Ghulam Muhammad;

(vii) Ghulam Mustafa;

(viii) Rounaq Ali.

' Accused Farman Hussain was arrested on 8-1-1991 on the pointation of accused Shaukat Ali, whereas accused Liaquat Ali was arrested on 14-1-1991 on the pointation of accused Shaukat Ali.

Ghulam Shabbir Ujjan, who was one of the three persons who came in the car for kidnapping, remained absconder. In addition to that, Mohabbat Khan, Qurban and Sarwar were also arrested, but the above last three persons were released under section 169, Cr.P.C. Statements. After completion of investigation, challan was submitted against 11 accused. After that, charge was framed against them under sections 365-A/109, P.P.C. Ghulam Shabbir Ujjan was shown as absconder. The case proceeded against 10 accused. The trial Court acquitted three accused, namely, Rounaq Ali, Ghulam Muhammad and Ghulam Mustafa on the ground that there was no clear evidence about their actual involvement in the kidnapping of master Tariq Nawaz, but convicted accused (i) Shaukat Ali, (ii) Aslam Shah, (iii) Ghulam Abbas, (iv) Amir Bux, (v) Niaz Ahmed, (vi) Farman Hussain and (vii) Liaquat All and awarded death sentence to each of them and forfeited all their movable and immovable properties in favour of the State. The High Court, upon appeal, set aside the above convictions and sentences. The State had filed the present acquittal appeals.

8. The trial Court as well as the High Court have discarded the identification of some of the accused in the identification parade by the P.Ws. On account of non-observance of technicalities.

Reliance has been placed in this regard on the case of Lai Pasand v. The State PLD 1981 SC 142 in which this Court, while setting aside the conviction in a murder case, has dilated upon as to the required number of dummies in an identification parade and pointed out that the ratio of ten to one accused is not an inflexible rule. While commenting upon the veracity of a witness, the following observations were made:--- "Now, although the witness was an honest witness, the dangers of errors in identification are so great that in our humble opinion, safe in exceptional circumstances, it would not be safe to base a conviction on the evidence of a solitary eye-witness if the witness has only had a fleeting glips of the assailant. And, as in the instant case, there are no special circumstances, we hold that the learned Chief Justice erred in convicting the respondent solely on Saadullah Khan's evidence."

' Similar view was taken in the case of Abdul Sattar and another v. The State 1981 SCMR 678, wherein the following observations were made:--- "At the outset we have to observe that having examined the evidence, we are satisfied that both the Courts below have rightly rejected the evidence of the recoveries, therefore, the only question before us is whether it would be safe to rely on the ocular evidence, because admittedly the appellants were complete strangers to the prosecution witnesses. And, as we are sitting in this High Court Building Karachi, we cannot do better than quote the wise conservation made by a Judge in this very building in Ramzan and others v. Emperor AIR 1929 Sindh 149. The learned Judge observed:- `The recognition of a dacoit or other offender by a person who has not previously seen him is, I think, a form of evidence, which has always to be taken with a considerable amount of caution, because mistakes are always possible in such cases.'

' We agree with these observations, and, therefore, evidence of the identification of strangers must always be scrutinised very carefully. And, this means that the two Courts erred in ignoring the discrepancies of the assailants by the witnesses on the ground that, the witnesses were educated or disinterested witnesses."

9. There cannot be any cavil with the proposition of law propounded in the above reports. However, it may be pointed out that as a rule of prudence the Court insists upon having the ratio of dummies eight to ten per accused, but there is no statutory provision fixing the number of dummies in the Code of Criminal Procedure. It is not an inflexible rule. The Court in a proper case may dispense with the above required ratio if identification by the witnesses is not doubtful, and there are other corroborative pieces of evidence available on record. I may also observe that question, whether any identification parade was warranted, depends on the facts of each case. In this regard reference may be made to the judgment in the case of Muhammad Yousuf Zai v. The State PLD 1988 Kar. 539 relied upon by the trial Court, in which a Division Bench of the High Court of Sindh (to which I was a member and happened to be the author of the judgment), made following observations as to the requirement of the identification parade:--- "We may observe that there is no legal requirement to the effect that there should be an identity test of an accused person. If the eyewitnesses can identify the accused before the trial Court that is enough. In the present case the appellant had visited the Karimabad Branch of the Bank not only at the time of opening of the account but had also visited five times while drawing the amount of Exh.2/F through five cheques during the period, from 5-9-1984 to 17-9-1984 whereas the identification parade was held on 3-12-1984 and the evidence of the above witness was recorded in December, 1985."

10. A distinction is to be made between a case in which witness has had only a fleeting glimpse of the accused who happened to be stranger and a witness who had known the accused previously or who had met the accused several times. In the former case, the Court insists upon having proper identification parade, whereas in the latter case the identification parade can be dispensed with as the witness can identify the accused even in the Court. My above quoted observations in the case of Muhammad Yousuf Zai (supra) pertain to the above second category of cases. The present case in fact falls in the above second category of cases as Tariq Nawaz was kidnapped, he was taken into a car and was confined in the bungalow for five days, where he had ample opportunity to see some of the accused repeatedly. He even saw them at the time of arrest. He was, therefore, in a position to identify the accused. Besides that, the evidence of P.W. Abdul Qadir Sangi, an estate agent, and of P.W. Nisar Ahmed Nadeem is also very pertinent; whereas the former dealt with the accused Shaukat, Ghulam Abbas and Amir Bakhsh Umrani, while the latter dealt with Amir Bakhsh Umrani by letting out the bungalow. Another aspect which one should not overlook is that the incident had taken place on 1-1-1991. The testimony of Tariq Nawaz was recorded on 13-2- 1991 and of Baby Aisha Qamar on 14-2-1991 i,e, within about six weeks from the date of incident and not after one or two years and, therefore, they could have identified the persons who were instrumental in kidnapping Tariq Nawaz. In this view of the matter, in my view, in the present case the prosecution could have proved the case without even having identification parade.

11. Before dealing with individual case of each of the accused, I may observe that the prosecution failed to produce two Mashirs, namely, Muhammad Anwar and Abdul Rashid, who were Mashirs to the raid of the bungalow, arrest of the above eight accused with the arms, recovery of Tariq Nawaz and to the recovery of the car used in the commission of the offence. The prosecution has relied upon the testimony of P.W.9 Sultan Masood Kiyani, I.O. Anti-kidnapping Cell, C.IA. Who was also a signatory to the Mashirnamas. In the cross-examination of P.W.10, Qurban Ali, I.O. (who took over the investigation from P.W.9 Sultan Masood Kiyani), a suggestion was made to the effect by the defence counsel that the accused Amir Bakhsh Umrani, Niaz and Aslam Shah were arrested on 5-1- 1991 at 11-00 a.m. From the Civil Hospital, Karachi, and accused Shaukat was arrested from Nipa Chowrangi by one Muhammad Maroof, A.S.I. On 4-1-1991, which was denied. The defence has not produced any reliable evidence in support of the above assertion except the statements of the accused under section 340(2), Cr.P.C. The omission on the part of the prosecution to produce the above two Mashirs is a serious lapse on its part. However, one should not overlook the factum that since the offence of kidnapping is committed by organised gangs, the members of the public are scared of appearing as witnesses against them. Keeping in view the above fact and also because that there is sufficient evidence on record to prove the prosecution case against some of the accused persons, the above lapse on the part of the prosecution cannot vitiate the whole trial. It may be pertinent to point out that not only P.W.9 Sultan Masood Kiyani was a member of the raiding party but P.W.10 Qurban All was also a member of the above raiding party and he had also seen the arrest of the aforesaid eight accused from the bungalow. The factum of arrest is also confirmed by P.W.3 Tariq Nawaz.

12. The accused Ghulam Abbas and Liaquat were two of the three persons who came in the car and kidnapped Tariq Nawaz. Accused Shaukat and Ghulam Abbas contacted Abdul Qadir Sangi, P.Ws. Of J.B.Estate Agency, for taking on rent a bungalow on behalf of accused Amir Bakhsh Umrani. Abdul Qadir Sangi asked them to bring their Sahib. Thereupon, they brought Amir Bakhsh Umrani and introduced him to Abdul Qadir Sangi as Shah Nawaz Bhutto. After negotiation, the bungalow was taken on rent on 20- 9-1990 at the rate of Rs,8,000 per month in the name of Shah Nawaz Bhutto. The lease agreement was signed by P.W.4 Nisar Ahmed Nadeem on behalf of his father-in-law and by Amir Bakhsh Umrani. Two receipts for the payment of Rs,72,000 and Rs,24,000 dated 20-9-1990 and 18-10-1990 respectively, Exhs.16/B and 16/C were issued in favour of Shah Nawaz Bhutto son of Ghulam Haider Bhutto. P.W. Abdul Qadir Sangi has deposed that he had asked about the identity card of Shah Nawaz Bhutto but he was told that the identity car would be delivered later on. The above three accused were identified by P.W. Abdul Qadir Sangi in the Court. Accused Amir Bakhsh Umrani was identified by P.W. Abdul Qadir Sangi as well as by P.W.4 Nisar Ahmed Nadeem. There is also recovery of the car from the bungalow which was used for kidnapping Tariq Nawaz, which is also a corroborative piece of evidence. At this stage it may be pertinent to reproduce the following statement of Tariq Nawaz made by him in his examination-in-chief:--- "On 1-1-1991 it was 1-30 - 1-45 p.m. I and my sister Aisha were playing near the stairs of our flat situated in Ambreen Apartment, Gulshan-eIqbal, Karachi. In the meanwhile a Suzuki car of beach colour came there. 3 persons were in that car including the person in the driving seat. Two of the persons came down from the car and one of them was wearing jacket. Those 2 persons caught hold of me. My sister Aisha Qamar caught hold of the jacket of one of the culprits but those persons forcibly put me in the car. My sister Aisha then caught hold of the door of the car but one of the culprit who caught hold me asking the driver Bhaj-ha-Bhar. The accused then fastly drove awaythe car. On the way I found the building of Moin Square. The person who was wearing the jacket put off the jacket and after taking away the pistol from that jacket put the jacket on me.

Then when car stopped and the jacket was removed from my person I found myself in a bungalow where we arrived a person was already available there as he was waiting for us. One of the culprits who had caught hold of me sat over me while the other went and brought the medicine for the injuries I had received while I was dragged by the culprits while putting me in the car. In the meanwhile a tape recorder was also brought to me. The person who was already waiting for us in the bungalow brought the meal for me. The person who was sitting over me and I then took the meal together. Thereafter that person went away and in his place another person came there to sit over me. In the same way during my stay in the bungalow for 5 days 5/7 persons changed the duties of sitting over me. They used to sit over me in order to guard me. The persons who put me in the car from my flat and present in the Court and on the pointation of the witness they are accused Liaqat All Mastoid and Ghulam Abbas while the 3rd person is not present in the Court. The accused on the pointation of the witness Niaz Ahmed brought the meal for me. The accused who used to sit over me as guards are (on the pointation of the accused) Aslam Shah, Shaukat and Amir Bakhsh. During my stay in that bungalow the accused obtained our telephone number.

Whenever the accused found me worried they used to console saying that they had no enmity with my father and they would contact my father and as soon as the money will be paid I would be released."

13. There is a lengthy cross-examination conducted by four learned counsel appearing for different accused but nothing has been brought out which could cast any doubt as to the veracity of the above-quoted statement of Tariq Nawaz. The initial portion of the above statement is fully corroborated by his sister, Aisha Qamar. She was also subjected to lengthy cross-examination by a number of learned counsel appearing for the accused, but her testimony also remained unshaken.

The High Court has wrongly observed that Tariq Nawaz was unable to identify the two accused persons who were members of the kidnapping party. In this regard, it may be pertinent to point out that in the above-quoted portion of the testimony, Tariq Nawaz had clearly identified Liaqat Ali Mastoi and Ghulam Abbas as the accused persons who had put him into the car. The third accused Ghulam Shabbir Ujjan had absconded and was not present in the Court and, therefore, he could not have been identified. In the identification parade Exh.20/E (at page 86 of the second paper book in Criminal Appeals Nos.107 and 108 of 1992), 15 strangers were intermingled with five accused, namely, Liaqat All Mastoi, Farman Hussain, Ghulam Sarwar, Qurban Ali and Mohabbat Khan. Tariq Nawaz identified the accused Liaqat Ali Mastoi and Farman Hussain. Since Ghulam Abbas was not included in the above identification parade, therefore, Tariq Nawaz had not identified the said accused. The remaining three accused were not seen by him and, therefore, he had not identified them, factually they were acquitted by the learned trial Court. At this juncture it may be pertinent to point out that accused Liaqat Ali was arrested as per prosecution on 14-1-1991, the identification parade in respect of him was held on 16-1-1991 i,e, within two days and, therefore, there was no delay as far as he was concerned. Additionally, the ratio of dummies in respect of identification by Tariq Nawaz was one to five. It may also be stated that P.W.5 Aisha Qamar also identified accused Liaqat Ali and Ghulam Abbas in the identification parade as well as in the Court as the persons who had kidnapped her brother while he was playing with her.

14. It may also be stated that the time of kidnapping was about 1-45 p.m., which was lunch time and therefore, no adverse inference can be drawn from the fact that there was no other child or Chowkidar of the building available at that time.

15. Similarly no adverse inference can be drawn from the fact that eight accused persons with the arms were arrested in the morning of 6-1-1991 from the bungalow without their offering any resistance. It has come on record that there were eight or ten vehicles fully loaded with armed police personnel accompanied by two D.S.Ps. And Inspectors. There was also one fire brigade vehicle which was used for dropping some of the police personnel on the roof of the bungalow. It was about 6-00 a.m. And, therefore, the above eight accused were available in the bungalow. One of the D.S.Ps. Made announcement on the hailer asking the accused persons to surrender. In the above factual background, the factum that no resistance was offered by the accused persons, was not unusual.

16. The High Court has also adversely commented upon the factum that the accused Shaukat Ali, Ghulam Abbas and Amir Bakhsh Umrani in their statements under section 342, Cr.P.C. Were not confronted with the factum that they had taken the bungalow on rent in the manner described hereinabove. It is true that there was omission on the part of the prosecution in that regard.

However, this omission has been rectified by the prosecution by asking the above three accused persons in their cross-examination when they were examined under section 340(2), Cr.P.C.

17. It will not be out of context to point out that appreciation of evidence by the trial Court is to be given full weight by an appellate Court for the reasons that the trial Court had the advantage of observing the demeanour of the witnesses. If the appellate Court is to take a different view in respect of a particular witness or witnesses than what found favour with the trial Court, it should give cogent reasons for doing so. In this regard, it may be appropriate to refer to the following passage from the judgment of this Court in the case of Allah Ditta v. The State PLD 1958 SC (Pak.)

290):--- "In the case of the witness Sawaya it is necessary to consider whether in accepting his evidence fully, and thereby overruling the estimate of that evidence formed by the trial Judge, the learned Judges of the High Court have acted in accordance with the principles underlying the safe administration of justice. One of these principles is that an Appellate Court should always give a full measure of weight to the opinion formed by a Judge of first instance regarding the credit and credibility of a witness who has been examined at length before him in relation to the facts of the case. We consider that in accepting the evidence of Sawaya; without considering that the trial Judge had disbelieved him on important points, and without examining the specific reasons given by the trial Judge for such disbelief, the learned Judges of the High Court have departed from a well-settled principle, which was stated by Lord. Shaw in the case of Clarke v. Edinburgh Tramways Co. 1919 (SC) HL 35, 36 in the following words:--- `When a Judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not.'

' We consider that on the facts, the safer view to take regarding the evidence of Sawaya was that upon which the trial Judge acted."

18. I am mindful of the various pronouncements made by the Superior Courts including by this Court as to the scope of an acquittal appeal. It will suffice to refer to the case of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11, in which this Court has dilated upon the scope of interference with an acquittal judgment. In the above report it has been inter alia held that the. Supreme Court would not on principle ordinarily interfere with an acquittal judgment and instead would give due weight and consideration to the finding of the Court acquitting the accused and that the mere fact that Supreme Court might have taken a different view on the reappraisal of the same evidence, would not be a ground for interference. It has been further held that if the conclusion reached by the acquitting Court was such that no reasonable person could conceivably reach the same and was impossible, then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion.

19. In the present case I have already observed that the High Court has misread the evidence, it has drawn adverse inferences on wrong assumptions. The testimony of the two child witnesses has been discarded on reasons not well-founded. In the case of Abdullah Shah v. The State (supra), on the basis of a solitary statement of Mst. Jamila, aged about 7 or 8 years, this Court sustained conviction in a murder case. In the case of Umar v. The Crown (supra), again this Court, on the basis of a solitary eye-witness, Mst. Jamul, aged 9 years only, the conviction under section 302, P.P.C. Was sustained. Whereas in the present case, Tariq Nawaz was aged about 11 years, while his sister Aisha Qamar was aged about 10 years. The trial Court, after putting necessary questions to them, found them fit to understand the questions and to give rational answers. They withstood lengthy cross-examination conducted by about four counsel for the accused persons. If they would have been tutored, they would have been shaken in the cross-examination. I have already observed hereinabove that .I concur with the observations of the learned trial Court that the testimony of the above two child witnesses appears to be true, simple, natural, honest and straightforward.

20. In my view, the above acquittal appeals must succeed against the following accused:----

(i) Ghulam Abbas, he was one of the three accused persons, who had actually kidnapped Tariq Nawaz in the car. Against him there is evidence of Tariq Nawaz corroborated by his sister, Aisha Qamar.

' Besides that, he contacted Abdul Qadir Sangi, an estate agent, for taking on rent the bungalow in the name of Shah Nawaz Bhutto. The testimony of Abdul Qadir Sangi corroborates the evidence of the above child witnesses. He was also arrested from the bungalow as a result of the police raid on 6-1-1991.

' Liaquat Ali; he was also one of the three accused persons who had actually kidnapped Tariq Nawaz in the car. Against him there is evidence of Tariq Nawaz corroborated by his sister, Aisha Qamar.

(iii) Amir Bakhsh Umrani; he had taken on rent the bungalow where the kidnapped Tariq Nawaz was kept for 5 days. The bungalow was used by the gang of kidnappers for keeping the kidnapped persons. He has been identified by Abdul Qadir Sangi, an estate agent, and Nisar Ahmed Nadeem, who had let out the bungalow to Amir Bakhsh Umrani in the name of Shah Nawaz Bhutto. The tenancy agreement Exh.16/A also corroborates the factum that he had taken on rent the bungalow.

Whereas Exhs.16/B and 16/C are the receipts of the payments made by Amir Bakhsh Umrani in the name of Shah Nawaz Bhutto amounting to Rs,72,000 and Rs,24,000 respectively. He claimed that he was the President of S.P.S.F. It is not explained by him from where he got the above money for making payment. Tariq Nawaz had deposed that Amir Bakhsh Umrani was one of the accused persons who used to guard him in the bungalow. He was also arrested from the bungalow as a result of the police raid in the morning of 6-1-1991. He, therefore, had fully participated in the commission of the offence.

(iv) Shaukat Ali; he alongwith accused Ghulam Abbas contacted Abdul Qadir Sangi for taking on rent the bungalow for Amir Bakhsh Umrani. They introduced Amir Bakhsh Umrani as Shah Nawaz Bhutto to Abdul Qadir Sangi. He has been identified by Abdul Qadir Sangi, who had confirmed the factum that he and Ghulam Abbas contacted him for taking on rent the bungalow. Tariq Nawaz kidnapped has deposed that Shaukat All was one of the accused persons who used to guard him in the bungalow. He was also arrested from the bungalow in the morning of 6-1-1991 in consequence of the police raid.

21. I am satisfied that there is sufficient evidence against the above four accused persons and the High Court was not justified in acquitting them. The acquittal judgment has resulted in miscarriage of justice.

22. As regards the three remaining accused, who were also convicted by the trial Court, it may be stated that against accused Farman Hussain, the only evidence is that of Tariq Nawaz, who had stated that 'uncle Farman' had visited the bungalow twice. There is no other corroborative evidence against him.

' Against accused Niaz Ahmed, the evidence consists of statement of Tariq Nawaz that he brought meals for him. The other piece of evidence against him is, that he was arrested from the bungalow in the morning of 6-1-1991 as a result of the police raid.

' Whereas the evidence against the remaining third accused Aslam Shah consists of the testimony of Tariq Nawaz, in which he had deposed that Aslam Shah was one of the accused persons who guarded him in the bungalow as per his turn. The other piece of evidence against him is that he was also arrested from the bungalow in the morning of 6-1-1991.

23. On the basis of the above evidence, I would have maintained the judgment convicting them if the High Court would have confirmed their convictions and sentences. However, since these are acquittal appeals and as the High Court has acquitted them, I would not interfere with their acquittal. Their case is distinguishable from the case of the above four accused as to the quantum of evidence available on record.

24. I would, therefore, dismiss the acquittal appeal against the above three accused, namely, Farman Hussain, Niaz Ahmed and Aslam Shah, but would allow the appeal against accused Ghulam Abbas, Liaqat Ali, Amir Bakhsh Umrani and Shaukat All and would set aside the acquittal judgment against them and would restore the judgment of the trial Court. But as regards the quantum of sentence, in my view, extreme penalty of imposition of death and forfeiture of their movable and immovable properties as was ordered by the trial Court, is not warranted at this stage for the reason that inter alia above four accused were acquitted by the High Court and after acquittal, restoration of death sentence would be very harsh. Secondly,, they appear to be young people and they were, at the relevant time, students. I would, therefore, substitute sentence of 14 years' R.I. And a fine of Rs,25,000 to each of them; in default of payment of fine, to undergo further R.I. Of one year. However, I am not inclined to extend the benefit of section 382-B, Cr.P.C. As I have already substituted death sentence by 14 years' R.I.

25. There was also some argument before the High Court though it was not urged before us, on the question, whether section 365-A, P.P.C. Is attracted to the present case as the father of the kidnapped Tariq Nawaz has not deposed that he was contacted by any of the accused for payment of ransom. The factum that none of the accused contacted the parents of the kidnapped child for payment of ransom, is of no consequence as this is not the requirement of the above provision of P.P.C. The determining factor is as to the object of kidnapping. There was no enmity between the parents of the kidnapped Tariq Nawaz and the above accused persons. Tariq Nawaz in his above-quoted statement from the examination-in-chief has deposed that "During my stay in that bungalow the accused obtained our telephone number. Whenever the accused found me worried they used to console saying that they had no enmity with my father and they would contact my father and as soon as the money will be paid I would be released".

26. Before concluding the discussion, I may observe that the case of the defence was that some of the above accused persons were the office-bearers of S.P.S.F. And of the People's Students Federation and that they were arrested at the behest of the then Government for political victimisation. The above plea is unfounded as the police would not have framed the above accused persons in a case in which the main evidence was of child witness. Neither Tariq Nawaz nor Aisha Qamar had any personal reason to make statements against some of the accused persons falsely nor anything has been brought on record by the defence to show that their parents had any such motive.

27. The High Court of Sindh is directed to cause the arrest of the above convicted accused/respondents so that they may serve out the sentences awarded to them. The compliance of the above order is to be reported to the Supreme Court without any delay.

(Sd.) , ' Ajmal Mian, J.

' SALEEM AKHTAR, J.---I agree that Criminal Appeal No,107-K of 1992 should be dismissed.

2. In Criminal Appeal No,108-K of 1992 I agree with Ajmal Mian, J., that it should be allowed against Shoukat Ali Mughal (respondent No,1), Ghulam Abbas (respondent No,2) and Ameer Bux Umrani (respondent No,4). In my view it should be dismissed in respect of Aslam Shah @ Sarwar (respondent No,3), Niaz Ahmad Jakhrani (respondent No,5), Farman Hussain Shaikh (respondent No,6) and Liaquat Ali Mastoi (respondent No,7).

(Sd.)

' Saleem Akhtar, J.

' ORDER OF THE COURT ' Farman Hussain is respondent in Criminal Appeal No,107/92 and is also respondent No,6 in Criminal Appeal No,108/92 and both appeals against his acquittal are dismissed. So far as other respondents in Criminal Appeal No,108/92 are concerned, acquittal of respondent No,3 Aslam Shah @ Sarwar and respondent No,5 Niaz Ahmed Jakhrani is upheld. However, acquittal of respondent No,7, Liaquat Ali Mastoi is upheld by majority and appeal against him is dismissed. Acquittal of respondent No,1, Shoukat Ali Mughal, respondent No,2, Ghulam Abbas and respondent No,4, Ameer Bux Umrani, is set aside by majority and in consequence appeal against them is allowed and they are sentenced to 14 years' R.I. And fine of Rs,25,000 each and in default of payment of fine they have to undergo further R.I. For one year.

2. The trial Court or the Sessions Judge concerned, if the trial Court is not functioning, is directed to take steps to cause arrest of the above-named three respondents so that they may serve out the sentences.

(Sd.)