' ABDUL HAMEED DOGAR, J.---Appellants Mst. Sadaf, Asim Aziz, Nasreen Jamal and Azizul Hassan have challenged the judgment, dated 8-5-1999 of the learned Judge Special Court for Anti- Terrorism, Karachi Division, whereby appellants Sadaf and Asim Aziz were convicted under sections 365-A and 34, P.P.C., and were sentenced to suffer R.I. For life and appellants Azizul Hassan and Nasreen Jamal were convicted under the same offence and were sentenced with 10 years R.I. A fine of Rs,50,000 each was imposed on all of them and in default whereof they were ordered to undergo R.I. For one year more.
2. Briefly the case of prosecution is that on 12-8-1998 complainant Aftab Alam's nephew Master Faisal Khursheed, aged about 5 years, a student of KG-II in Progressive National Ideal Public School, had gone to School as usual. At about 12-30 p.m. His mother Yasmeen went to take him from school, where Chowkidar told her that at about 12-20 p.m. One girl aged about 10/11 years had taken away the boy. Thereafter, she returned to home and narrated the facts to the complainant, whereafter, he and his entire family started searching boy Faisal in relatives, but in vain. On the above date at about 2-30 p.m. One unknown lady telephoned and said that the boy is with them and demanded Rs,300,000 as ransom for his release. Complainant thereafter, went and lodged the case.
3. The case of prosecution further is that the telephone number of complainant, viz. 6311993 was kept under observation and it transpired that telephone calls were being made by the callers from telephone booth, as such Sub-Inspector Hafizullah Shah of Police Station, Jauharabad and other police officials under the supervision of S.D.M., Jamshed Quarters stood at some distance of telephone booth and at about 6-10 p.m. Saw a man and a woman going towards telephone booth and caught hold of them and from their search a chit having telephone No,6311993 written was recovered from the pocket of appellant Asim Aziz. They admitted that abducted boy was in their custody at their house. The police party alongwith S.D.M. Reached the house and recovered boy Faisal and arrested appellant Azizul Hassan, Asim Aziz and Nasreen Jamal. Acquitted accused Muhammad Meraj was arrested on 15th August, 1998, whereas Mst. Sadaf was arrested on 18th August, 1998. After usual investigation the case was challaned before the Court of Special Judge, Anti-Terrorism Karachi, from where it was sent to Military Court. All of them were convicted.
Thereafter, they filed appeal before the Appellate Court and the matter was pending and by virtue of judgment of the Hon'ble Supreme Court in Mehram Ali's case (PLD 1988 SC 1445) the case was transferred to the Special Court for Anti-Terrorism for disposal according to law. Appellants submitted an application for recalling and re-examining the prosecution witnesses, but the same was dismissed on the ground that a full opportunity was provided to the appellants/accused to cross-examine the prosecution witnesses by the Military Court.
4. After framing the point for determination and hearing the counsel for the parties at length, the learned Trial Court convicted and sentenced the appellants, as mentioned above, whereas acquitted accused Muhammad Meraj.
5. We have heard Mr. Gul Bahar Korai, the learned counsel on behalf of the appellants, and Mr. Habib Ahmed, Assistant Advocate-General, on behalf of the State, at length and have gone through the record and proceedings in minute details.
6. At the very out-set we issued show- cause notice to the appellants Azizul Hassan and Mst.
Nasreen Jamal as to why their sentence should not be enhanced as the same was not passed against them in accordance with law by the Trial Court. The show-cause notices were served upon them inside jail and Mr. Gul Bahar Korai appeared on their behalf and argued the case.
7. The learned counsel for the appellants contended that the Trial Court has not appreciated the evidence properly while convicting the appellants. According to him the star witness, namely, Chowkidar Abdul Razzak, in whose presence the girl, aged about 11/12 years, who had come to take the boy Faisal from School, was not examined and in his place security guard/administrator, Munawar Ahmed was examined, which creates serious doubt in the case of prosecution. He next argued that the Trial Court has not appreciated the contradiction in the deposition of P.Ws. And has not appreciated the evidence properly. According to subsection (5) of section 39-A of the Anti- Terrorism Act, 1997 (hereinafter to be referred to as the "Act"), the Trial Court has power to recall any witness or re-hear any evidence though already recorded, but the same request made by the appellants was dismissed by the Trial Court without any justification, which has seriously prejudice their case. The provisions of section 103, Cr.P.C., have been violated by not joining any witness from locality at the time of arrest of appellants Asim Aziz and Mst. Nasreen Jamal from the telephone booth, as such mandatory provision of law have been violated and such arrest has got no value in the eyes of law. The Trial Court has acquired accused Muhamamd Meraj, whereas convicted the appellants on the same evidence, as such the benefit of the same may also be extended in their favour and they may be acquitted. Believing the evidence against the appellants and disbelieving the same against acquitted accused renders the entire evidence to be of doubtful nature. With regard to appellant Azizul Hassan, he argued that there is absolutely no evidence available to the prosecution to show his complicity in the commission of offence, as such he deserves to be acquitted. He lastly contended that provisions of section 365-A, P.P.C., are not attracted in this case as neither any proof of demand of ransom amount has been produced nor it has come on record that the telephone calls asking for ransom were made by the appellants. In support of his contentions he has relied upon 1997 SCM R 617, PLD 1996 SC 576 and 1997 MLD 1729.
8. On the other side, the learned Assistant Advocate-General, vehemently controverted the contentions raised herein above and submitted that the prosecution has fully established the case against appellants Sadaf, Mst. Nasreen Jamal and Asim Aziz. Appellant Sadaf was a previous school teacher of abductee boy Faisal and she was rightly identified by P.W. Munawar Ahmed, security guard/administrator of school to be the lady who had come to take away boy Faisal on the day of incident disclosing herself to be his aunt. He had also produced the bio-data of appellant Sadaf, upon which her photograph was affixed, to Sub-Inspector Hafizullah pointing out to him that she was the lady who has abducted the boy. The learned A.A.-G. Further argued that appellant Sadaf had confined the boy in the house of her mother, appellant Mst. Nasreen Jamal, and police in presence of S.D.M. Jamshed Quarters apprehended appellant Asim Aziz and Mst.
Nasreen Jamal from telephone booth, while making call to complainant for the demand of ransom amount for the release of abductee.
' The subsequent recovery of boy at their pointation further strengthens the case against them, as such they were rightly convicted by the Trial Court. In support of his contention he referred to 1995 SCM R 614. About appellant Azizul Hassan, the learned A.A.-G. Contended that the prosecution has not been able to collect any tangible evidence against him to connect him with the offence of abduction. The only evidence against him is that at the time of recovery the abductee was sitting alongwith him in the house.
9. The contention that the learned Trial Court should have recalled and re-examined the witnesses for fresh examination as the case had proceeded before Military Court and no proper opportunity of cross-examining the witnesses was afforded is devoid of force. Subsection (2) of section 39 of the Anti-Terrorism Act clearly stipulates that all cases including cases before a Court of appeal, which were pending under the repealed Ordinance, shall stand transferred to Anti-Terrorism Court having jurisdiction. Its sub-clause (b) states that the cases, which are transferred from the Court of appeal, shall be decided on the basis of evidence earlier recorded after hearing the parties. Its subsection (4) further provides that the Court is not bound to recall and re-hear any witness who has already been examined before the transfer and can act on the evidence already recorded or produced before the Court, from which the case was so transferred. The provisions of subsection (5), upon which the emphasis were made by the appellants' counsel, are not mandatory, but are discretionary, as such are not binding, therefore, the application for recalling and reexamining the prosecution witness was rightly dismissed by the Trial Court.
10. The factum of abduction of boy Faisal has not been disputed by the appellants. Appellant Asim Aziz has said nothing in his defence in the statement before the Military Court, as such he is said to have accepted whatever has been brought on record by the prosecution against him. Appellant Nasreen Jamal has simply stated in her statement before the Military Court that she suffers from paralysis and besieges forgiveness only. This way she also accepted the case of prosecution against her. Similarly appellant Sadaf has requested for mercy in her statement before the Military Court, as such she too has admitted whatever was brought against her on record by the prosecution. So far appellant Azizul Hassan is concerned, he pleaded before the Military Court that his age factor as well as ill-health be taken into consideration. He has been involved in the case only because he happened to be relative of other accused/appellants.
11. In order to appreciate and evaluate the prosecution evidence, it is essential to discuss its salient features.
12. On the factum of abduction prosecution has examined P.W.1 Syeda Arifa Yasmeen, the mother of the abductee, P.W.3 complainant Aftab Alam, P.W.4 abductee Master Faisal Khursheed and P.W.6 Munawar Ahmed Khan, security uard/administrator of school.
13. P.W.1 Syeda Arifa Yasmeen has deposed that her son Faisal Khursheed, aged about 5 years, was studying in Progressive National Ideal School. She used to drop her in the school daily at 8-30 a.m.
And pick him at 12-30 p.m. On 12-8-1998, as a matter of routine she went to pick her son at 12-30 p.m. But Chowkidar of school told her that her son has been taken away by a girl of 11/12 years of age. She rushed to her house and did not find the boy available there as such she narrated the same to Aftab Alam, her brother-in-law, and, thereafter, they started his search by going to school again. Meanwhile at about 2-30 p.m. P.W. Nilofar Aftab, wife of complainant Aftab Ahmed, received a telephone call that the boy has been kidnapped and the kidnappers, a lady with cross talk of a man, were demanding ransom of Rs,3,00,000 for the release of abductee boy Faisal. Concerned police and Citizen Police Liaison Committee ('CPLC') were contacted for help. She disclosed to the police on inquiry that on 12-8-1998, a lady teacher of her son disclosed her name as Saba, rang her and asked for a loan of Rs,1,000, as such she suspected her in the kidnapping of her son. She identified appellant Sadaf to be the same in Court.
14. P.W. Aftab Alam, the complainant, has deposed that on 12-8-1998 at about 12-30 p.m. His brother's wife, Mst. Yasmeen, told him that Master Faisal Khursheed, her son, was not available in school and has been taken away by some lady at about 12-15/12-20 p.m. They went to the school and inquired from Madam and Chowkidar, who told them that the body has been taken away by some lady at 12-20 p.m. He immediately contacted C.P.L.C. Through his brother-in-law Maqsood Ali Wajid for help. He further deposed that it was at about 2-30 p.m., his wife Mst. Nilofar Aftab received a telephone call and kidnappers demanded Rs,3,00,000 for the release of the boy. He lodged report on the next day at Police Station Jauharabad, Karachi. According to him on the day of lodging of F.I.R. At about 8 p.m. He received a telephone call from S.S.P., Karachi Central, who told him that Master Faisal Khursheed, the abductee, has been recovered.
15. Abductee Master Faisal Khursheed stated at trial that he studies in KG-II in National Ideal School.
A year prior Miss Saba was his class teacher, when he was studying in nursery. On the day of incident, he was taken away by appellant Sadaf from the school and left him in her house and went away. In the said house a woman, whom he recognized as appellant Nasreen Jamal and old man with white beard, whom he recognized as appellant Azizul Hassan and third person with black beard, whom he recognized as appellant Asim Aziz, were present. Appellant Nasreen Jamal used to beat him and asked him that he cannot go to his house. He was recovered from the said house and at that time one lady with white clothes had come.
16. P.W. Munawar Ahmed Khan in statement in Court stated that on 11-8-1998 at about 12.20 hours a lady came to him and requested to take Faisal saying that she is the aunt of Faisal. She disclosed that Faisal's mother was ill. He asked Miss Parveen, Faisal's class teacher, but she refused saying that class would be terminated after 10 minutes, but under emergency shown, he was allowed to go with appellant Sadaf. He recognized appellant Sadaf to be the same who had taken away Faisal on the day of incident.
17. The factum of abduction was corroborated by P.W. Nilofar Aftab and Miss Tasneem Kausar, the owner of school. They _in their respective statement categorically deposed that P.W. Arifa Yaseem, the mother of boy, has told them that her son Faisal Khursheed has been abducted from school on 12-8-1998 at about 12-15 p.m. By one lady.
18. On the demand of ransom amount, the prosecution has examined P.W. Nilofar Aftab, who, according to her statement, has stated that on 12-8-1998 at about 2-30 p.m. She received a telephone call from some lady that boy Faisal was in their custody and demanded a ransom of Rs,3,00,000 for his release. One hour thereafter, she received another call from same lady with interruption voice of a man that no one should be informed, otherwise the child would be killed. She requested the callers about hearing the voice of her child. They told that he had gone to sleep. The caller reduced the amount to Rs,2,00,000, but she told them that they would be able to arrange Rs,60,000 only on the next day. At 10-00 or 10-30 a.m. She received telephone call and lady inquired about the amount and she replied that the amount was ready. On her request caller lady allowed to listen the voice of abductee Faisal. The abductee, while weeping, requested her mother to come quickly. She was directed to reach at Liaqat National Hospital within half an hour, but she could not reach there.
19. On the recovery of abductee, the prosecution examined P.W. S.I. Hafizullah, P.W. S.I. Mahmood Ahmed Khan and P.W. Inspector Nasir Khan.
20. P.W. Hafizullah, the Investigating Officer has deposed that he immediately after registration of F.I.R. Proceeded to the school and recorded statements of Chowkidars, Head Mistress and Miss Fehmida. P.W. Munawar Ahmed Khan recognized the lady from biodata maintained in school to be the same who had taken away Faisal a day earlier. He proceeded to the house of complainant and recorded statement of P.W. Arifa Yasmeen and P.W. Aftab Alam. He also came to know that telephone No,6311933 of complainant party is under observation. Thereafter, he under the supervision of S.D.M. Adnan Qadir of Jamshed Quarters alongwith other police in civil dress went towards a telephone booth at about 6-10 p.m. On the same day where they saw a woman and a man coming to telephone booth and when they had just started a call, they were apprehended and a chit with telephone No,6311933 was recovered from the pocket of appellant Asim Aziz. On inquiry they disclosed their names as Asim Aziz and Nasreen Jamal and admitted that the child was in their custody at their own. They led them to the house and on opening the door, the abductee was seen sitting with an old man, appellant Azizul Hassan. He identified the appellants to be the same. He arrested acquitted accused Muhammad Meraj at the pointation of appellant Asim Aziz. On 18-8-1998 appellant Mks Sadif was arrested on the pointation of appellant Asim Aziz. He also identified them to be the same present in Court.
21. P.W. S.I. Mahmood Ahmed Khan, S.I. Nasir Khan and Court-witness Adnan Qadir, S.D.M. Jamshed Quarters have supported the statement of Investigating Officer, S.I. Hafizullah and have deposed in their respective statements before the Court that they were in the raiding party and appellants Asim Aziz and Miss Nasreen Jamal were arrested from telephone booth while making telephone call and a chit containing telephone No,6311933 was recovered from his pocket and at their pointation the abductee was recovered from the house. They identified the appellants to be the same in Court.
22. P.W. Syeda Parveen Shah, Judicial Magistrate, has deposed that on 20-8-1998 she had arranged identification parade in which Miss Sadaf was picked by P.W. Munawar Ahmed to be the same who had taken away abductee on 12-8-1998.
23. Though the appellants examined D.W. Muhammad Asif in their defence, yet nothing fruitful revealed from the same. By simply saying that police has illegally detained them in custody was not sufficient.
24. The case-law referred by the learned counsel for the appellants is on different facts and circumstances and has no relevance with the present case, the Hon'ble Supreme Court in the case of Mir Muhammad v. The State, reported in 1985 SCM R 614, referred by the learned A.A.-G. Has held that provisions of section 103, Cr.P.C., will not be applicable in the case where discovery in consequence of information given by or on the pointation of the accused is to be made. The association of two respectable inhabitants of the locality is not required in a case where accused himself leads the police to a particular place and gets the article recovered.
25. From what has been discussed above, we are of the considered view that not only factum of abduction has been established in this case, but it has been proved beyond any shadow of doubt that boy Master Faisal Khursheed was abducted by appellant Sadaf and was detained in the house of her mother, appellant Mst. Nasreen Jamal. The factum of demand of ransom amount for the release of abductee by appellant Mst. Nasreen Jamal and Asim Aziz stand proved not only from the fact that they were arrested while making telephone call for such demand at the telephone booth, but a chit containing telephone number of the complainant was also recovered from them.
Irrespective of this, they led to the recovery of abductee from their house in presence of abovementioned witnesses, with whom they did not suggest any enmity. Though their counsel had cross-examined all the abovementioned witnesses, but could not shatter their evidence, as such there is no hesitation in holding them guilty of the offence. The contention of the learned counsel for the appellants that co-accused Muhammad Meraj was acquitted by the Trial Court on the same evidence, the benefit of which should also be extended in favour of the appellants, is devoid of force as none of the prosecution witnesses has implicated him with the commission of offence.
26. Accordingly while dismissing their appeal, we maintain the conviction and sentence of appellants Asim Aziz and Miss Sadaf, whereas enhance the sentence against appellant Nasreen Jamal to imprisonment for life. We also order the forfeiture of their movable as well as immovable properties as the sentence of fine awarded to them by the Trial Court was not proper.
27. Adverting to the case of appellant Azizul Hassan, it has rightly been admitted by the learned A.A.-G. That prosecution has not been able to adduce any evidence linking him with the offence of abduction, we hardly find any evidence from the record that he had helped the commission of offence or abetted the same in any manner. The only word that abductee boy was sitting alongwith him in the house would not show that he had the knowledge that the boy has been abducted and was confined in the house by the other appellants. It has also not come on record that he was guarding the abducted boy and the door of the house was closed by him at the time of his recovery.
28. Accordingly while extending benefit of doubt, we allow his appeal and acquit him.
' The above are the reasons of our short order, dated 17th August, 1999.