' ABDUL HAMEED DOGAR, J.--- By this Special Anti-Terrorism Appeal, appellants Pahlwan, Muhammad Siddique and Muhammad Khan have assailed judgment, dated 19-5-1998, of learned Judge, Special Court Anti-Terrorism, Hyderabad and Mirpurkahs Division at Hyderabad, whereby they were awarded imprisonment for life under section 365-A read with section 149, P.P.C. And also their entire moveable and immovable properties were forfeited through District Magistrate concerned. The case of absconding accused, Jumo, Qasim and Sher was ordered to be tried separately after their arrest. However, appellants were extended benefit of section 382-B, Cr.P.C.
Towards computation of their sentences from the date of their arrest.
2. Briefly stated the facts of the case of prosecution as enumerated in the F.I.R. Are that complainant Muhammad Ibrahim and his brothers Haji Hassan and Haji Ghulam Hussain are Zamindars, having 800 Acres of agricultural land, reside in village Allah Bux Mirjat Taluka Matiari.
They had Autaq in the village where Shafi Muhammad Sahewal was guarding as Chowkidar.
Complainant's brother Muhammad Hassan has 8 sons including abductee Muhammad Ismail. On 27-12-1997 at about 3 p.m. Haji Muhammad Hussain left for Karachi for performing Umrah, whereas complainant and his nephew were available in the village. In the evening complainant and his nephews Gul Muhammad and Haji Muhammad Ismail alias Baboo, leaving Chowkidar Shafi Muhammad in the Autaq, went to attend meal arranged in the name of Almighty Allah (URDU TEXT) by Wadera Ayub Hingoro in village Tahir Hingoro and after taking the meals they returned to their village at about 7-30 p.m. They parked their car outside their house and Haji Ismail alias Baboo went in Autaq and found 6 culprits armed with klashnikoves visible inside in the bulb light. They forcibly abducted away Muhammad Ismail after firing from klashnikov at the gate. Complainant and P.W. Gul Muhammad saw them clearly, whose faces were open and would be able to identify them. The dacoits proceeded towards the jungle. Foot-prints tracker Ali Makrani was called and with his help and the help of neighbourers, namely Dr. Abdullah Balouch, Jan Muhammad Baluch and others, they followed the foot-prints. Complainant also informed about abduction to Police Station Tando Adam and Police Station Odero Lal. While taking the foot-prints of dacoits and abductee, they arrived in village Syed Aali Shah, where police from Odero Lal Police Station also arrived. They all proceeded further and the foot-prints disappeared at village Mazar Khan Khaskheli, at about sunset time. On the next day they again started tracking the foot-prints and they disappeared and/or vanished at about sunset time at Tando Adam Pirani Road. Since the foot-prints could not lead further, as such they returned in the night and lodged the report that dacoits abducted Haji Muhammad Ismail alias Baboo at gun point in order to extort ransom amount. Appellants were arrested and on completion of investigation, were sent up to face trial alongwith the absconders.
3. A charge was framed against the appellants on 12-5-1998 under section 365-A read with section 149, P.P.C., to which they did not plead guilty and claimed trial.
4. In support of its case, the prosecution examined complainant Muhammad Ibrahim, who produced F.I.R., P.W. Gul Muhammad, who produced 164, Cr.P.C. Statements, P.W. Abdullah, P.W.
Zahid Hussain, the Judicial Magistrate, who produced Mashirnama of identification parade and 164, Cr.P.C. Statements of P.Ws. Muhammad Ismail, Haji Muhammad Hassan, Shafi Muhammad, P.W.
Muhammad Siddique, the Mashir, who produced Mashirnama of place of incident, P.W.
Muhammad Younus, Mashir, who produced Mashirnamas of arrest of the appellants. On 12-5-1998, Special Prosecutor moved an application for examining P.W. Haji Dost Muhammad which was allowed and P.W. Haji Dost Muhammad was examined, P.Ws. Jan Muhammad and Shafi Muhammad were given up. Thereafter, prosecution examined P.Ws. Muhammad Ismail abductee, Haji Muhammad Hassan, father of the abductee and Ali Nawaz and the prosecution closed its side.
Special Prosecutor requested for placing the list of cases pending against appellant Muhammad Khan.
5. The appellants in their respective statements under section 342, Cr.P.C. Denied the case of prosecution and claimed innocence. Appellant Pahlwan further pleaded that he was Hari of land of Dodo Khan Rind and was supervising his land which was adjacent to the land of the complainant.
There was dispute on watercourse and due to that enmity he has been falsely implicated.
According to him they were well-known to the complainant party prior to the incident. According to him, on the day of incident complainant, abductee and they were present in the meal arranged by Ayub Hingoro, where complainant and abductee had left the village after taking the meal and thereafter, they heard firing from their village and some women had phoned to Ayub Hingoro about the abduction and thereafter, Ayub Hingoro and they had gone to the village of the complainant and tracked the foot-prints alongwith the complainant party. He was arrested 2/3 days after the incident and so also the other appellants and such news had published in the newspapers. He produced newspaper cuttings 6 in number as Exh.24/A to Exh.24/F. He had neither abducted the abductee nor received any ransom. Appellant Muhammad Siddique also pleaded in his statement further that he looks after the lands of Faiz Muhammad Hingoro which are adjacent to the lands of the complainant and abductee and there was dispute between them and the complainant party over the boundary line of the lands. On the day of incident, he was available at the meal arranged by Ayub Hingoro alongwith complainant/abductee. After taking meals complainant/abductee left for his village and, in the meanwhile, they heard firing and thereafter, he and the complainant party traced the foot-prints. So far identification parade is concerned, he stated that abductee knew him since long. He was implicated in the case due to the above enmity as well as political differences. He denied to have abducted as well as receiving of any ransom amount. Appellant Muhammad Khan after denying to several questions further stated in his statement that on the day of incident he was available at the meal arranged by Ayub Hingoro and had served meals to the abductee and complainant, who after taking meals, proceeded to their village and after sometime they heard fire reports. Some women phoned to Ayub Hingoro about the abduction and thereafter, he and the others tracked the foot-prints. He was known to the complainant/abductee and his father prior to the incident. He was implicated due to enmity and had no concern with the absconsion or receiving any ransom amount. All of them refused to examine themselves on oath as required under section 340(2), Cr.P.C. But claimed that their Advocate would file list of D.Ws. On the same day. Similarly their Advocate filed list of 5 D.Ws., namely, Ayub, Akbar, Allah Jorio, Mehram Ali and news reporters of daily Kavish and also moved application to summon reporters of newspaper and in the said application he stated that private defence witness Ayub will be produced by the relatives of the accused by tomorrow.
6. On the assessm ent of evidence and after hearing the learned counsel for the parties, the appellants were found guilty under the abovementioned sections and were convicted and sentenced as abovementioned.
7. We have heard Mr. Muhammad Ashraf Leghari, the learned counsel for the appellants, Mr. Raja Qureshi, the learned counsel for the complainant and Mr. Syed Jilal Hashmi, the learned Assistant Advocate-General for the State at length and have gone through the R&Ps of the case.
8. The learned counsel for the appellants contended that the incident in this case took place on 27- 12-1997, whereas the matter was reported on 30-12-1997 and the above delay of reporting the matter to police has not been explained by the prosecution. According to him the investigation was also dishonest as the same had commenced even prior to lodging of F.I.R. In support he placed reliance on 1995 SCM R 127. He next argued that the names of the appellants were disclosed for the first time on 16-2-1998 in 161, Cr.P.C. Statement by abductee Muhammad Ismail alias Baboo, who was released on 29-1-1998. Statement under section 161, Cr.P.C. Of P.W. Haji Muhammad Hassan was recorded on 27-2-1998, i,e, after two months of the incident, as such the belated recording of 161, Cr.P.C. Statements of abductee and his father loose its value in the eye of law. In support he placed reliance on 1996 SCM R 1553 and 1993 SCM R 585. So far evidence of payment of ransom is concerned, the words of P.W. Haji Muhammad Hassan, father of abductee, that he paid ransom amount of Rs,5,00,000 to co-accused Jumo Khaskheli, have not been corroborated by anyone else, hence, cannot be relied upon. He further argued that the appellants as well as complainant party reside within the same vicinity and were known to each other, as such the holding of identification parade was immaterial. Irrespective of this, the appellants would have been nominated in the F.I.R.
It they had been the real culprits. The learned counsel further submitted that no proper opportunity of examining defence witnesses was allowed to the appellants, which has resulted in miscarriage of justice. The application to examine defence witnesses was rejected then and there and the request to summon them was also refused, which prejudiced their case. In support he relied upon 1993 SCM R 550, 1995 PCr.LJ 1430 and 1394. He lastly submitted that prosecution has failed to prove its case beyond any reasonable doubt, as such the appellants are entitled to acquittal.
9. On the other side, the learned Asstt. A.-G. And the learned counsel for the complainant controverted the contentions of the learned counsel for the appellants and argued that the factum of abduction has been admitted by he appellants and was not denied. The plea that they tracked the foot-prints of culprits, who abducted abductee Muhammad Ismail alias Baboo alongwith other foot-print trackers immediately after the incident, shows that they admitted that Muhammad Ismail alias Baboo was abducted. According to them the evidence of payment of ransom by Haji Muhammad Hassan, father of abductee, to co-accused Jumo Khashkheli, whom the appellants had sold the abductee, was never shaken at trial though sufficiently cross-examined. For the purpose of conviction the above two pieces of evidence have been established by the prosecution beyond any shadow of doubt. The learned counsel further argued that the delay in lodging of F.I.R.
Has been fully explained by the complainant. They had been tracking the foot-prints of the abductee and the appellants all along and the moment they lost the same, came back and reported the matter to police. The investigation in this case was conducted honestly and the appellants have failed to prove any mala fide or dishonest act on the part of Investigating Officer to show that it was dishonest one. Mere assertion would never wash away the fair and proper investigation. Delay in recording of 161, Cr.P.C. Statements of abductee and his father also have been fully explained. Abductee on release from the clutches of the appellants was in a serious condition and had gone to Karachi for treatment and on his return his 161, Cr.P.C. Statement was recorded. The contention that no proper opportunity of defence was provided is also without foundation. In fact the appellants were allowed to produce defence witnesses and they had been able to produce D.W. Ghulam Akbar in their defence only.
10 The learned Asstt. A.-G. While referring to Exh.19 further argued that P.W. Shafi Muhammad was given up and not examined on the ground that he was a bit insane and too much frightened because he had been threatened by the relatives of the dacoits as also the father of the abductee was threatened. He further contended that the learned defence Advocate was informed in advance that he should bring D.Ws. On the next day, if he wanted to examine anyone, as the Court was under the law bound to conclude the trial within a given time. He urged that it was never disclosed by the learned defence counsel nor did it transpire from the evidence that any person was to be examined as D.W.
11. Mr. Raja Qureshi, learned coutisel for the complainant, in support of submissions of learned Asstt.
A.-G., further urged that provisions of subsections (7) and (8) of section 19 of the Act provide that the Special Court shall complete the trial within seven days. In such circumstances the learned counsel appearing for the appellants was bound by a legal duty to make defence witnesses available before the Court on the day which was fixed for examination of appellants and their defence. The learned counsel further stressed that the appellants would have kept in mind the legal requirements relating to the trial and the limitations placed by law on the trial Court. No intention to examine such witnesses appears from the perusal of evidence. He further urged that in view of section 20 of the Act, the appellants were to be awarded death sentence in absence of reasons requiring lesser sentence. In support they relied upon PLD 1988 Kar 539, 1999 M LD 752, 513 and 488, 1995 SCM R 1793, 1994 PCr.LJ 607 and 950. 1994 PCr.LJ 950 and 1999 M LD 1460.
12. The case of prosecution rests upon the evidence of abduction, payment of ransom amount by P.W. Muhammad Hassan, father of the abductee as well as by abductee himself and that of holding of identification parade.
13. So far the question of abduction of abductee Muhammad Ismail is concerned, the same was not. Disputed by the appellants. Complainant Muhammad Ibrahim, P.W. Gul Muhammad and abductee Muhammad Ismail had categorically stated in their respective statements at trial that on 27-12-1997 at about 7-30 p.m. Abductee Muhammad Ismail was abducted by six culprits having klashnikovs in their hands from inside his Autaq after parking his car outside, on return from Khairat meals arranged by Wadera Ayub Hingoro. All of them identified all the three appellants in the trial Court at the time of their examination to be the culprits amongst six who committed the offence after making indiscriminate firing. They also deposed in their respective statements that police had recovered about 20 empty bullets of Klashnikov from the place of Wardat, i,e, main gate of the Autaq. The pleas taken by the appellants in cross-examination that the appellants had also gone to attend the Khairat meals of Wadera Ayub Hingoro where abductee, complainant and others were also present, who, after taking meals left for their village and that within short time a woman phoned to Wadera Ayub Hingoro that Muhammad Ismail has been abducted by dacoits and on hearing such news, appellants and many other villagers including Wadera Ayub Hingoro went to the place of abduction and that they tracked the footprints of dacoits and the abductee alongwith complainant party go to establish further the factum of incident of abduction. Eye-witness account of abduction has been fully corroborated by P. Ws. Abdullah and Muhammad Hassan in their respective statements, which too has not been shaken by the defence in cross-examination.
14. So far question of payment of ransom amount is concerned, abductee Muhammad Ismail in his statement at trial had deposed that he identified the appellants out of the six culprits at the time of abduction. He was being shifted from place to place in the forest for about 25 days and, thereafter, the leader of dacoits disclosed his name as Jumo Khaskheli, who told him that all the appellants had sold him to them and have taken away money so he would not be released till payment of ransom amount is received from his father. They inquired about telephone number of his father which was given to them. After 3 days, said Jumo Khasheli disclosed that he had contacted with his father and required some sign of identification, upon which he supplied him copy of the identity card. He further deposed that it was after 4 days thereof that he was told that ransom amount has been received and he would be released on the next day. Thereafter, he was released after 4 days.
His version has been fully supported by his father P.W. Haji Muhammad Hassan that on the fateful day he had left for Karachi for performing Umrah when he was told at about 9.30 p.m. By his brother Abdullah and telephoned that his son Muhammad Ismail has been abducted from his Autaq. Subsequently, he returned and joined the tracking party. While tracking foot-prints, they found a cot and 6 cups, utensils, empty packets of cigarettes lying in a banana garden of appellant Muhammad Hingoro. After about 20 days of Wardat he read in daily Ibrat that his son has been killed by the dacoits due to non-payment of ransom. After about 5/6 days, he received a telephonic call at about 8-30 p.m. From Jumo Khaskheli about arranging ransom amount for release of his son. The said Jumo Khaskheli denied the news of killing of his son and settled Rs,5,00,000 as ransom amount which was, subsequently, paid to him on showing identity card of his son and abductee came back on the next night.
15. So far the evidence of demand and payment of ransom amount furnished by the above two witnesses is concerned, the defence has failed to shake the same in cross-examination. Not even a single question has been asked to the above witnesses that they had falsely deposed and that no ransom amount of whatsoever nature was ever paid for the release of the abductee. This all goes to show that abductee Muhammad Ismail was abducted by the appellants for the purpose of extorting ransom amount which was, subsequently, paid to abducting accused, Jumo Khaskheli, to whom abductee was sold by the appellants. Even otherwise in such sort of cases the evidence of abductee is material and conviction can be based upon his testimony alone if the same inspires confidence. Here in this case a natural and true account with regard to the act of abduction and payment of ransom has been furnished by the abovementioned witnesses and there seems to be no reason to disbelieve their evidence which has been proved beyond any doubt.
16. The recovery of 20 empty shells of klashnikov from the place of Wardat further strengths the factum of abduction that Muhammad Ismail was abducted at gun point after making firing in air from klashnikov. P.W. Muhammad Siddique, the Mashir of Wardat and recovery of empties and Investigation Officer Ali Nawaz have fully supported the said recovery at the trial.
17. The points urged by the learned defence counsel on behalf of the appellants with regard to the delay in lodging of F.I.R., names of the appellants having been disclosed belatedly, statement of P.W. Haji Muhammad Hassan having been recorded by police after two months of the incident and the same having not been corroborated are discussed as follows:--
18. As for delay in lodging of F.I.R. Is concerned, admittedly the names of the appellants/culprits did not transpire in the F.I.R. When no person is nominated as accused in an F.I.R. Of a criminal case, the delay in lodging the F.I.R. Would be immaterial as such lodging of F.I.R. Does not cause any prejudice to the accused. The fact that after the recovery of the abductee Muhammad Ismail, the abductee being not physically well was taken to Karachi and stayed there in his bungalow for some days, whereafter they returned to their village, is a satisfactory explanation for such belated examination and disclosure of names of the appellants. The evidence of P.W. Haji Muhammad Hassan, the father of abductee Muhammad Ismail, stands corroborated in material particulars. The evidence of abductee P.W. Muhammad Ismail and that of his father P.W. Haji Muhammad Hassan is quite natural and the same does not appear to be tainted with malice, bias or enmity. Mere fact that the prosecution witnesses are related inter se would I not be sufficient to disbelieve their evidence. We are fortified in our view by the case-law Muhammad Amir v. The State, reported in 1994 SCM R 662, wherein the Honorable Supreme Court has observed that interested witnesses would be reliable when there is nothing on record to suggest that they were not present at spot and had not witnessed the incident.
19. The Honorable Supreme Court in the case of Muhammad Ahmad v. The State, reported in 1997 SCM R 89, on interested witnesses, has held that there can be cases where implicit reliance can be placed on uncorroborated testimony of interested witness if it otherwise inspires confidence. It has further been held in the above-referred case that prosecution is not required to examine every eye-witness of a crime. Inference cannot be drawn adverse to prosecution for not examining a witness who had been won over. The objection of learned defence counsel that P.W. Shafi Muhammad being a witness of occurrence was not examined and was withheld by prosecution has been satisfactorily explained. P.W. Shafi Muhammad was firstly a Chowkidar at the Autaq. A poor person having been threatened by dire consequences by the relatives of dacoits so also the P.W. Haji Muhammad Hassan, the father of the abductee, which was the reason furnished by the leaned State counsel before the Special Court in his statement giving up P.W. Shafi Muhammad.
The fact that P.W. Shafi Muhammad was not produced by the prosecution would not create an adverse inference which may be drawn against prosecution under the stated circumstances.
20. As held in the case of Ali Dost v. The State, reported as 1994 PCr.LJ 950, that if the eye witnesses can identify the accused before the trial Court that is enough. It has been further laid down in the above-referred case "following the rule laid down in the above cases, we hold that the evidence of abductee recorded in Court is enough on the point of abduction. No enmity is alleged against the abductee and nor he had any motive to falsely implicate the appellant. In fact his testimony is free from all doubts".
21. The appellants although have pleaded their false implication due to enmity yet they have failed to disclose the nature of enmity or any document to show that there existed enmity between the parties. The bare words of the appellants that they were falsely implicated due to enmity are not sufficient to believe. As regards the dispute over land as pleaded by the appellants, they have failed to place on record any proof.
22. The contention that no opportunity to examine defence evidence was allowed to the appellants, the provisions of subsections (7) and (8) of section 19 of the Act stipulate that trial should be completed within 7 days. During the trial no reference of whatsoever nature was made to the proposed evidence intended to be produced by the appellants, as such its subsequent suggestion was futile. Admittedly they were asked a day before to produce their defence and they produced Ghulam Akbar who was examined. Merely non-examination of D.W. Ayub, the cousin of D.W.
Ghulam Akbar, would not make any difference as they both were on the same point and, thus, no prejudice was caused at all. The non-production of D.W. Ayub would again rest on the shoulders of the appellants and no benefit of the same could be awarded to them. Neither Makhdoom Muhammad Amin Fahim nor Shahnawaz Junejo or Abdul Hakeem Balouch, the famous dignitaries, were cited as defence witnesses by the appellants nor any of them was examined on the plea that Faislah with regard to the incident was ever held in between them and the complainant party and they were exonerated from the charges. From this it is inferred that the appellants had cooked up false defence.
23. Irrespective of the abovementioned provisions of the Anti-Terrorism Act, the provisions of section 265(F)(6), Cr.P.C. Enunciate that if the accused intends to adduce evidence, he shall be called upon to produce his evidence. According to the said provisions it is the discretion of the Court to summon or refuse to call a defence witness where it considers that the application is made for the purpose of vexation or delay or defeat the ends of justice.
24. In the case of Mahmood Ahmed and 3 others v. The State, reported as 1995 SCM R 127, on the point of delay in lodging the F.I.R. And belated examination of witnesses by police, is on different facts and circumstances and is not applicable in this case as in the referred case, in spite of the fact that the complainant knew the names of the culprits instead he did not lodge the report promptly and the F.I.R. Did not contain any explanation for delay in lodging the same. With regard to belated examination of witnesses by police, the delay having been properly explained, aforesaid authority will not be helpful to the appellants. In 1996 SCM R 1553 in the case of Abdul Khalique as also in 1993 SCM R 550 in the case of Syed Saeed Muhammad Shah, the delay in lodging of F.I.R.
And recording of statements has been fairly and plausibly explained. The case State v. Sobharo reported as 1993 SCM R 585, pertains to a criminal acquittal appeal filed by the State against acquitted accused Sobharo. This case is distinguishable as the facts of the referred case were quite different from the present case. In the two decisions Manzoor Ali v. The State, reported as 1995 PCr.LJ 1394 and Khawaja Hassanullah v. The State, reported as 1995 PCr.LJ 1430, the identification made by the abductee was held to be doubtful because of his shortsightedness and the accused having been previously shown to him by police, while in the subsequent case the complainant in the case had exonerated the accused of the abduction of the child in his evidence in Court and the delay in the recording of statement of the abductee was not plausibly explained.
25. On the other hand, the law cited by the learned Assistant Advocate-General and Mr. Raja Qureshi, learned counsel for the complainant, is to the following effect: ' In the case of Muhammad Ismail Jamali and another v. The State, reported as 1994 PCr.LJ 607, a learned Division Bench of this Court has held that omissions or minor contradictions would not falsify the entire prosecution evidence, which otherwise inspired confidence and appeared to be natural. In another decision in the case of Ali Dost v. The State, reported as 1994 PCr.LJ 950, dismissed the appeal of the convict in a similar case on the ground that evidence of abductee recorded in the Court was enough on the point of abduction being free from all doubts and that the abductee had no enmity nor any motive to falsely implicate the accused.
26. The Honorable Supreme Court of Pakistan in the case of Zakir Khan and others v. The State, reported as 1995 SCM R 1793 has observed that mere relationship of a prosecution witness with the complainant or other prosecution witnesses cannot render his evidence unreliable unless it is established that he had motive to implicate the accused falsely in the case. It has been rather held that the rule is well-established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be over looked. In PLD 1988 Kar. 539, in the case of Muhammad Yousuf Zai v. The State, it has been ruled that identification test of an accused is not a legal requirement and if the eye- witnesses can identify the accused before the trial Court, that is enough. In another decision of this Court in the case of Ali Akbar Shah v. The State, reported in 1999 M LD 488, conviction of the appellant was maintained on the ground that the complainant as well as the abductee had not only deposed about abduction, but had fully implicated the accused, when the release of the abductee after payment of ransom amount was also proved and that the P.Ws. Had correctly identified the accused in the identification test before the Magistrate as also at the trial. In yet another decision of this Court in the case of Abdul Hameed alias Hameed v. The State, reported as 1999 M LD 752, the appeal of the appellant was dismissed on the ground that the prosecution witnesses were independent and their testimony being reliable inspired confidence. The abductee, who had no enmity or motive for false implication of the accused had also identified the appellant and the evidence regarding payment of ransom was also consistent and free from doubt. The case of Sikandar Ali Sheikh v. The State, reported as 1999 M LD 1460, also supports the views taken in the earlier decision.
27. The law referred by the appellants' counsel is on different facts and circumstances and has no bearing upon this case, whereas the law relied upon by the learned counsel for the complainant is quite in agreement with the case of prosecution and fully supports it.
28. The appellants are accused/convicts of offence under the Suppression of Terrorists Activities Act, 1975, which provides in section 8 that "accused shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence".
29. The above provision clearly lays down that the burden to prove innocence squarely lies on the appellants when the prosecution has discharged its burden.
' In view of above discussion, we had dismissed the above appeal by a short order, dated 25-3- 1999. The above are the reason therefor.