' NASIR ASLAM ZAHID, J.---This judgment will govern Criminal Appeal No,321 of 1994 filed by Muneer Ahmed and Criminal Appeal No,322 of 1994 filed by Mashooque as these appeals arise out of the impugned judgment dated 31-5-1993 of the High Court of Sindh whereby the joint criminal appeal filed by the two appellants against their conviction by the Special Judge for Suppression of Terrorist Activities, Larkana, was dismissed. Leave was granted by order dated 2-8-1994 of this Court which is reproduced here:- "These petitions for leave to appeal are directed against the judgment dated 31-5-1993 passed by a Division Bench of High Court of Sindh in Criminal Appeal No,102 of 1992, whereby the appeal filed by the petitioners challenging the conviction and sentence awarded to the petitioners by the learned Judge, Special Court of Supersession of Terrorist Activities, Larkana, on charge under section 365-A/34 P.P.C., was dismissed and their conviction and sentence awarded to them by the learned trial Judge was affirmed.
2. It is alleged by the complainant, Dhani Bakhsh, that on 11-3-1991 at about 7.00 p.m. He was sitting in his Oil Mill where his son, Abdul Ghani, was milking his buffalo, when two unknown persons armed with Kalashnikoves entered his Mill. They dragged his son and put him in a car. He raised cries. The people of the vicinity came there. The culprits took away his son in the car. The complainant got recorded F.I.R., at the Police Station. It is further case of the complainant that he had been receiving letters/ chits for payment of ransom for release of his son. He paid an amount of Rs,3,00,000 and his son was released after a period of one and half months. After about 8 days of release of his son on payment of ransom the abductee's statement was recorded. Petitioners Munir Ahmed and Mashooque were arrested by the police and put to identification test before a Magistrate. In identification parade the eye-witnesses picked out the two petitioners to have abducted Abdul Ghani. However, after usual investigation the two petitioners were challaned before the Court to face trial. The prosecution examined seven witnesses in support of its case. The petitioners denied the allegations levelled against them by the prosecution. However, learned trial Judge found both of the petitioners guilty for the offence and sentenced them to suffer imprisonment for life with benefit of section 382-B, Cr.P.C. And forfeiture of their properties. They filed appeal before High Court of Sindh at Karachi; but the same was dismissed. The petitioners have challenged the same before this Court and requested for leave to appeal.
3. We have heard the learned counsel for the petitioners at length. The main grievance of the petitioners was that the Trial Court has rejected the evidence with regard to identification parade, but relied upon the identification of the petitioners before the Trial Court had lost its value. The learned Judge, Special Court of Suppression of Terrorist Activities and the High Court had not properly assessed such situation. It was further contended that if identification of the petitioners before the Trial Court is excluded from consideration there was no other evidence to connect them with the crime. The points raised before us need reappraisal of the entire evidence. We are, therefore, inclined to grant leave for the purpose mentioned hereinabove.
2. We have heard Mr. K.M.A. Samdani, learned Senior Advocate Supreme Court for appellant Muneer Ahmad, and Mr. Muhammad Ibrahim Satti, who was nominated to represent pauper appellant Mashooque. We have also heard Raja Abdul Ghafoor, learned Advocate-on-Record who has appeared for the State and Mian Tariq Mahmood, learned Deputy Attorney-General who has appeared on notice.
3. Basic facts have been given in the leave granted order reproduced hereinabove. Some other facts/dates may also be mentioned. The abduction took place on 11-3-1991 at 7 p.m. From complainant Dhani Bux's Oil Factory in Larkana Town. Complainant's son Abdul Ghani was abducted in the presence of the complainant and his nephew Mushtaq. F.I.R. Was lodged within half-anhour of the abduction at 7.30 p.m. At police station 'A' section, Larkana, located about 1 k.m.
From the place of incident. Abductee Abdul Ghani remained in the custody of the abductors for over a month and he was released on or about 13-4-1991 after payment of ransom of rupees three lacs. Statement of the abductee was recorded after about a week of his recovery on 21-4-1991. The present appellants Muneer Ahmad and Mashooque were arrested on 16-7-1991 and they were kept in the police station when their identification parade was held on 21-7-1991. According to the evidence which has come on record, another son of the complainant, namely, Abdul Razzaq, and the complainant took the ransom money and paid it to the abductors when abductee Abdul Ghani was released. Abdul Razzaq was not produced in evidence by the prosecution. The stand of both the appellants in their statements under section 34, Cr.P.C. Was of total denial, but they added that they had been involved in the case because of a dispute between the complainant and Mashooque over a plot and since Muneer was a friend of Mashooque, he had also been roped in by the complainant.
4. Before we refer to the contentions advanced by learned counsel for the appellants it is considered appropriate to reproduce the F.I.R. (English translation) as for appreciating some of such contentions, reference to the contents of the F.I.R. Is necessary:-- "Complaint is that namely Abdul Ghani aged about 26 years is my son. I have got Oill mil at Anaj Mandi Road, Shewa Mandli Mohalla Larkana. My house is built to the upper portion of the said mill, in which I, my son Abdul Ghani and other family members are residing. I and Abdul Ghani both look after the said oil Mill. Today, in the evening time, I, my son Abdul Ghani and my nephew Mushtaque Sheikh son of Haji Illahi Bax Sheikh resident of Shahi Bazar, Larkana were present at the Oil Mill. My son Abdul Ghani were milking buffalo, which was standing in the Mill. About 7.00 p.m. The two unknown persons entered in the mill, who were armed with Kalashnikove. After just coming, they pointed out the kalashnikove at us and gave threatening as that not to move from your place. We remained silent, due to fear. Thereafter, both accused persons caught hold to my son Abdul Ghani from his arms and forcibly dragged him from out side of the Mill. Thereafter, we followed them, and saw that one (alto) white coloured car was parked beside the gate, and one other person was sitting on the steering side, and was driving car. They making my son Abdul Ghani sitting in car and drove away towards east by taking Anaj Mandi Road. Thereafter, we raised cries. On our crising the Mohalla persons namely Muhammad Yousif Bhatta and others came there. We narrated the above facts with them. Thereafter, I left from there.
' Now, I appeared at Police Station and lodged the complaint that three (3) unknown persons who will be identified by us on seeing again duly armed have kidnapped my son Abdul Ghani for taking ransom money. We could not see the car number. I am complainant. Investigation be done.
5 The following contentions have been raised by Mr. K.M.A. Samdani, learned Senior Advocate Supreme Court, who has appeared for appellant Muneer:-- "(a) There is no explanation from where the police got the clue that the two appellants were the culprits and, therefore, they were apprehended.
(b) According to learned counsel, in the F.I.R. The complainant does not mention that he knew the appellants and had referred them as 'unknown persons'. Mr. Samdani argued that though the complainant referred to the culprits as unknown persons which gives the obvious impression that he did not know them previously, yet, in his evidence, complainant stated that the two appellants were residents of two other Mohallas of Larkana and he had seen them but did not know their names. Learned counsel relied upon the following statement made by the complainant before the trial Court:-- 'Accused Muneer resides in Gajarpur Mohalla while the other Mashooque resides at Bonder Road Mohallah. I know both these accused by face.'
' In the F.I.R. No such mention is made that the complainant knew the two appellants and they were described only as 'unknown persons' and admittedly when the culprits came inside the mill of the complainant, their faces were open and could be seen by the witnesses including the complainant.
It was, therefore, argued that this creates a doubt about the prosecution case.
(c) It was then contended by Mr. Samdani that, according to the evidence, although Muneer was present when the ransom money was passed but he did not receive any money and only Mashooque and Sikandar were paid the money. According to the evidence, Muneer was present along with other persons but neither ultered anything nor took or handled the money in the presence of the witnesses."
' Learned counsel then referred to the evidence of the eye-witnesses, namely, Dhani Bux, Mushtaque and abductee Abdul Ghani, as well as the evidence of S.H.O. Abdul Khaliq, the Investigation Officer. It was submitted that no arms were recovered; no money was recovered and the Investigation Officer did not make any statement about the efforts made by him for the recovery of klashnikovs and the ransom amount. It was submitted that the aforesaid aspects create a doubt about the case of the prosecution and, according to the established law, if there was any doubt, the same should have been resolved in favour of the appellants. It was added that complainant Dhani Bux in his evidence does not name the appellants as the abductors.
6. Mr. Muhammad Ibrahim Satti, learned counsel, who appeared for pauper appellant Mashooque, submitted that the three eye-witnesses were closely related and interested witnesses and there was an independent witness Muhammad Yousaf, who had arrived along with other Mohalla persons after the abduction on -the cries of the complainant and Mushtaque, but this witness named in the F.I.R. Was not examined. According to learned counsel, the evidence of interested/related eye-witnesses require corroboration as independent evidence was available but, for reasons best known to the persecution, such independent evidence was not brought on record. Another witness Muhammad Muneer Sargani, a Mashir of "Wardat', did not support the prosecution case and, according to Mr. Satti, this fact also weakened the case of the prosecution as he was an independent witness. It was then emphasised that neither the klashnikov nor the ransom money nor the Alto car, in which, according to the prosecution, the abductee had been taken away by the culprits, were recovered, nor there is any explanation by the Investigation Officer about such non-recovery and about the efforts made for such recovery. According to Mr. Satti, evidence of the Investigation Officer shows that no such effort had been made nor he had given any explanation about this. Learned counsel also reiterated the contention of Mr. K.M.A. Samdani that there is a serious doubt as to how the police came to know about the names of the appellants which led to their arrest.
7. It may be observed that in this case an identification parade was held in which the eye- witnesses identified the two appellants as the culprits, but it has also come on record that, before the identification test, the eye-witnesses had seen the appellants at the police station. The trial Court as well as the High Court, in the circumstances, did not place any reliance on the identification test. In our view, in the present case, there was no necessity of holding the identification test as the facts show that the abductee as well as the other two witnesses had ample opportunity to see the culprits. As regards the abductee, Abdul Ghani, the evidence is that he remained in the custody of the abductors for over a month and, therefore, came to know the abductors very well. The other two eye-witnesses, namely, Dhani Bux and Mushtaque also had several opportunities of seeing the appellants and, therefore, in their case also it can be said without any doubt that they came to know of their identity.
' Reference can be made with advantage to two earlier decision of this Court. In the case of State v.
Farman Hussain (PLD 1995 SC 1), it was observed that a distinction is to be made between a case in which the witness has had only a fleeting glimpse of the accused who happened to be strangers and a witness who had known the accused previously or who had met the accused several times.
In the former case, it was observed, the Court insists upon having appropriate 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.
In the case of Zakir Khan v. State (1995 SCM R 1793), which was also a case of kidnapping, it was held that where the abductee remained with the accused abudctors during the captivity and had clearly seen their faces holding of an identification parade was not a mandatory requirement. It was observed as follows:-- "The question as to the identification of the accused in a case of kidnapping by the kidnapee who had seen the accused for the first time, who had not been known to him previously, was examined in detail in State v. Farman Hussain (PLD 1995 SC 1). By a majority view, as per the observations made by one of us (Ajinal Mian, J), a clear distinction was drawn between the circumstances where the witness only gets a glimpse of the accused who happened to be a stranger to him and where although the witness had met the accused for the first time but he had seen him several times. It was held that in the latter case the necessity of holding an identification parade could be dispensed with and the accused could even be identified in the Court for the first time. In the present case the kidnapee had remained with the accused sufficiently long not only to identify them by their faces but to identify them even by their names. This is not a case where a witness had only gotten a glimpse of the accused but in this case, admittedly he had remained with them during his captivity and had clearly seen their faces. Therefore, in our opinion, holding of an identification parade was not a mandatory requirement in the present case."
As observed earlier, in the present case, there was no necessity of holding of identification parade and the prosecution case is not prejudiced by the fact that an irregular identification parade was held for identification of the appellants. The holding of the identification parade, which was found to be invalid, does not affect the testimony of the eye-witnesses who identified the appellants in Court during the trial.
8. In the facts of this case, the contention that there was no explanation about how the police got the clue that the appellants were culprits and were, therefore, apprehended is of no consequence.
It has been found, both by the trial Court as well as the High Court, that none of the three eye- witnesses had any enmity with the appellants and had no reason to involve them falsely. The plea advanced on behalf of the appellants that there was some dispute over a plot of land between Mashooque and Dhani Bux has been rightly ignored by the Courts below as, apart from a general statement to that effect, no details whatsoever about the identity of the property and the dispute were brought on record through the statements of the accused, evidence of the defence witnesses or through cross-examination of the eye-witnesses. The clear evidence of the three eye-witnesses including abductee Abdul Ghani, who had remained in the custody of the abductors for over a month, established the guilt of the appellants and even if there was no definite explanation on record as to how and when the Police got the information or the clue about the two appellants being involved in the kidnapping, such unbiased testimony was not liable to be rejected specially for the reason that there was no animosity between the parties and there was no reason for false implication of the appellants by the three eye-witnesses.
9. The other contention advanced by Mr. Samdani is that in the F.I.R. The appellants were described as "unknown persons' by the complainant, Dhani Bux. In his evidence before the trial Court, he stated that accused Muneer resides in Gajarpur Mohallah whereas accused Mashooque resides in Boder Road Mohallah of Larkana Town, and that he knew both the appellants by face. Admittedly, the complainant did not know the names of the appellants. He might have seen them previously in Larkana. He might have come to know later on that the 2 appellants were residents of different Mohallas of Larkana. But the mere fact that the two appellants were described as "unknown persons" in the F.I.R. Does not create a dent in the prosecution case calling for acquittal of the appellants. Additionally, it may be observed that, apart from complainant Dhani Bux, the evidence of the other two witnesses including abductee Abdul Ghani who remained in the custody of the abductors for over a month, had proved the guilt of the appellants.
10. As regards the third contention of Mr. Samdani, it is correct that Dhani Bux in his evidence before the trial Court did not specifically say that the ransom money had been paid to Muneer but the other two witnesses, namely, abductee Abdul Ghani and Mushtaque, identified Muneer and Mashooque as the abductors in the Court. The contention of learned counsel does not create a doubt as to the prosecution case against the appellants.
11. As regards Mr. Muhammad Ibrahim Satti's (learned counsel appearing for the pauper appellant) contention that the three witnesses were closely related to each other and interested witnesses and their evidence required independent corroboration which was available inasmuch as one witness Muhammad Yousaf was alleged to have arrived alongwith other Mohallah persons immediately after the abduction but this witness though named in the F.I.R., was not examined, it is correct that the 3 witnesses are no doubt closely related to each other but, as observed, there was no animosity between the parties and the three closely related eye-witnesses including the abductee had no possible reason for falsely implicating the appellants. The fact that Muhammad Yousaf was not examined does not affect the evidence of the three eye-witnesses and the mere fact that they were related to each other, in the facts of this case, did not require any independent corroboration.
The fact that no recovery was made is of no consequence as the culprits had been arrested several months after the incident. The contention that the Investigationg Officer had not mentioned about any efforts for recovery of Klashnikov, ransom money or the Alto car or that the investigation was inefficient and left much to be desired, does not prejudice the prosecution case in view of the clear and unambiguous evidence of the three eye-witnesses.
12. We find no infirmity in the judgment dated 31-5-1993 of the High Court of Sindh calling for interference. Criminal Appeals Nos.321 and 322 of 1994 are, therefore, dismissed.