' NAZIM HUSSAIN SIDDIQUI, J.---This judgment will dispose of Criminal Appeals Nos.372, 373 and 374 of 1995 arising from judgment dated 18-9-2000 of a learned Division Bench, High Court of Sindh, Karachi, whereby Criminal Appeals Nos.145 and 150 of 1993 filed by respondents Abdul Rashid and Haider Zaidi respectively were allowed, while Special Criminal Acquittal Appeal No,168 of 1993 preferred by the State against the acquittal of Junaid Iqbal and Kamran Raees was dismissed. Now above three appeals have been preferred by the State. The Appeals Nos.372 and 374 of 1995 are against acquittal of Haider Zaidi and Abdul Rashid, while appeal No,373 of 1995 is against the acquittal of Junaid Iqbal and Kamran Raees.
2. On 2-11-1992 statement of Saeed Ismail was recorded by S.I.P. Muhammad Wan, S.H.O., Police Station Tipu Sultan, Karachi, which was incorporated in the book maintained under section 154, Cr.P.C. And on its basis Crime No,323 of 1992 under section 365-A/34, P.P.C. Was registered at said police station.
3. Saeed Ismail, complainant stated in F.I.R. That his father Abu Muhammad Ismail aged about 59/60 years was a businessm an. It is alleged that on 1-11-1992 at 10.00 p.m. His father had gone to meet his friend Faisal Ismail at the latter's residence at Sharafabad in his Car No,0390 and from there left for home at about 11/45 p.m. But he did not come back. At about 12.10/ O'clock in the night a phone call was received at the complainant's house saying that his father was abducted and second call would be made after sometime. The call was received by the complainant. Second call was received on 2-11-1992 at 8.00 a.m. And the complainant asked as to who was on the other side, but it was not disclosed. On the contrary a demand of Rs,45,00,000 (Forty five lacs) was made as ransom for release of his father. Another call was received after half an hour saying that he (complainant) would be informed about the time and place where said amount was to be handed over. He was threatened that in case the amount was not paid he would have to pick up the dead body of his father from the "Meva Shah" graveyard. At 9/30 a.m. Another call was received asking for payment of aforesaid amount and when he showed his inability to pay it, the demand was reduced to Rupees thirty three lacs. When he told that he, could not even pay said amount, he was informed that two fingers of his father would be sent to him and thereafter he would arrange the amount so demanded. The complainant stated that the person on the other side of phone was talking in Urdu fluently.
4. The police immediately started investigation and arrested Abdul Rashid, Haider Zaidi, Junaid Iqbal and Kamran Raees, as culprits/accused of this case. Abductee Abu Muhammad Ismail, however, was released after an amount of Rs,5,50,000 was paid by complainant to the abductors.
5. On completion of investigation the charge-sheet was submitted before the Special Court No,3 for Suppression of Terrorist Activities, Karachi. Necessary charge under section 365-A/34, P.P.C. Was framed against abovenamed accused/respondents.
6. The prosecution at trial examined Lekh Raj Rathi P.W.1, Ch. Bakhtawar Ali P.W.2, Muhammad Irfan P.W.3, Abu Muhammad Ismail P.W.4, Muhammad Shafi P.W.5, Muhammad Saeed P.W.6, Muhammad Rafiq P.W.7, and Anwar Hussain P.W.B.
7. The statements of respondents were recorded under section 342, Cr.P.C., wherein they denied the prosecution's allegations and claimed to be innocent. In defence they examined Itteqa Hassan Zaidi, Shamsuzzaman, Syed M. Zaffar Zaidi, Habibur. Rehman, Muhammad Iqbal, Sajid Kamal Malik, Shabbir Ahmed and Dr. Muhammad Abdullah.
8. On assessm ent of evidence brought on record learned Special Court No,III for Suppression of Terrorist Activities, Karachi acquitted Junaid Iqbal and Kamran Races and convicted Abdul Rashid and Haider Zaidi under section 365-A/34, P.P.C. And sentenced each of them to suffer life imprisonment and to pay fine of Rs,20,000 or in default thereof to suffer R.I. For further period of two years. Being aggrieved by the judgment of the trial Court tee convicts and the State filed appeal before High Court, which were disposed of as mentioned earlier.
9. In order to appreciate the points involved in these matters it would be appropriate to give a brief resume of evidence of main witnesses of prosecution.
10. Muhammad Saeed complainant deposed that ransom was settled at Rs,5,50,000, which he paid at the agreed place and which was seen and counted by the police. This happened on 5-11-1992 at about 10.00 or 10/30 a.m. Near Jinnah Terminal. According to him, he had paid said amount to respondent Abdul Rashid. In cross, he denied the defence suggestion that his father was dealing with the business of Hundi. He also denied that he too was doing the same business. He admitted that, in the year 1987 also his father was abducted. A suggestion was given to him in cross- examination by learned counsel, who appeared for Junaid Iqbal and. Abdul Rashid, that his father at his own had disappeared as he was to pay huge amounts to the various persons in respect of Hundi Business and suddenly reappeared and that in conspiracy with police personnel the drama of abduction was staged to involve the innocent persons, which suggestion he had denied. He admitted that his statement, under section 164, Cr.P.C., was also recorded by a Magistrate. A suggestion was also given to him that his father came back in the night of 4-11-1992 and not on 5- 11-1992, which was denied by him.
11. The star witness of this case is abductee Abu Muhammad Ismail. He deposed that on 1-11-1992 at about 11.25 p.m., he left his house and was returning home in his car, which he himself was driving.
On Bahadurabad Chowrangi a car came and blocked his car. One person came from backside with a revolver in his hand and directed him to stop the car and switch off the engine. He was forcibly pushed on front seat, which was besides the driving seat. Said person started driving car and another person came and sat on the rear seat. The car started playing on various roads. The person, who was sitting on the rear seat made his seat in a straight position, as such, he laid down on front seat. He was taken to a building, then to another building then to top floor of another building and was detained there for a night and day. One person used to guard him. He was blindfolded. Again he was taken in a car to a building and was detained on its ground floor in a room. He was kept there for three days. Different people used to come and visit him. He deposed that he was threatened that they would kill his son Muhammad Saeed. They threatened him that they would cut his fingers and send the same to his wife. They always demanded money from him.
Several phone calls were made to his house, which according to him, were taped. Those cassettes he had not given to the police, as he had no faith in police personnel, but produced the same before the Court. According to him, on 5-11-1992 at about 12.00 noon he was released, after ransom was paid. He identified all the abovenamed four accused/respondents in the identification parade before Magistrate and also identified them in the Court, when the case proceeded. They were Junaid Iqbal, Haider Zaidi, Kamran Raees and Abdul Rasheed.
12. He specifically stated that his car was blocked by respondent Haider Zaidi. He asserted that car after abduction was driven by respondent Junaid Iqbal. He categorically stated that respondent Abdul Rasheed was the person, who sat on rear seat of the car. He maintained that revolver was kept on him at the time of abduction by respondent Junaid Iqbal. According to him, Kamran Raees was not present. He stated that he was taken to second building by Haider Zaidi and respondent Abdul Rasheed used to keep guard over him, when he was in detention for three days, while in detention respondent Junaid Iqbal used to visit the place. He mentioned that Junaid Iqbal had obtained telephone numbers of his family. Further, he stated that Junaid and Rasheed were the persons, who went to release him. In cross a suggestion was given to him that on 5-11-1992 after 5.00 p.m. He was informed by the police that culprits had been arrested, which he denied. It was also suggested to him that during the period of his detention he was kept in factory of Rifa-e-Aam Society, which he denied. A suggestion was also given to him that he had not appeared before the Magistrate for identification test on 5-11-1992 and that he had only appeared on 10-11-1992, which was also denied by him. It was also suggested to him that soon after his abduction, he was blindfolded and he replied that so was done but after some time. He deposed that none of the respondents was known to him prior to the incident. It was suggested to him that he owed twenty- five thousand dollars to respondent Junaid Iqbal, misappropriated the same, and involved the respondents in this case, which was denied by him.
13. Anwar Hussain is the Investigating Officer. He stated that the culprits after receiving ransom had gone inside K-7 Factory of arms and ammunitions/repair. He raided the factory alongwith the police personnel and arrested all the respondents and recovered from there arms and ammunitions and the amount of ransom.
14. Vide order, dated 15-5-1995, leave to appeal was granted to consider whether the learned Judges , of Division Bench were justified in allowing the convicts/respondents' appeals and dismissing the State's acquittal appeal, keeping in view the. Evidence brought on record.
15. It is contended on behalf of the appellant that in view of ,unimpeachable evidence adduced by the prosecution indicating involvement of all the respondents the High Court was not justified in acquitting the respondents and also dismissing the acquittal appeal preferred by the State.
16. It is noted that High Court in the impugned judgment, while referring to daily Jang, Nawa-e- Waqat, Karachi, dated 6-11-1992 stated that above named four respondents were arrested by law enforcement agencies alongwith fifth co-accused and it being so the memo. Of their arrest (Exh.26) by police stood belied. Further, it was observed that both mashirs of recovery namely Muhammad Shafi and Muhammad Rafique in their respective deposition said go bye to the prosecution's version and were declared hostile, as such, the entire prosecution's case fell to the ground. High Court also observed that the personnel of law enforcing agencies not being police officers were not authorised to collect any evidence and the evidence so collected by them was not the legal evidence, therefore, it could not be the basis for conviction. On above reasoning, it was held that the respondents were not arrested in the terms of mushirnama Exh.26 and it could not be relied upon, as whole story manifestly was a manipulated affair. High Court also held that since the respondents, under section 13(d) of the Arms Ordinance was acquitted, as such, the prosecution's version about recovery of arms and ammunitions and amount of ransom has become meaningless. High Court also criticised the identification parade saying that it was not held on 5-11-1992, as in view of statement of Ch. Bakhtawar Ali, Inspector of police the respondents were all along with the police till about 6.00 p.m. Resultantly their identification parade on 5-11-1992 by Mr. Lekh Raj Rathi, Magistrate at about 3/30 p.m. Of said date was not possible.
17. Before adverting to the contentions raised on behalf of the appellant and the reasons assigned by the High Court for acquitting the respondents, we feel it necessary to examine first whether the finding of acquittal recorded by High Court could be disturbed.
18. While deciding a criminal 'case the basic duty of the Court is to scrutinise the evidence brought on record strictly in accordance with the established judicial norms without being influenced by facts, which tend to push in the background, the substantial evidence, which is pivotal for reaching the correct conclusion. Positive legal evidence cannot be excluded on probabilities alone nor the entire prosecution case can be thrown aside simply for the reason that the evidence of some of the witnesses is incredible and untrustworthy. If the prosecution's case rest upon various sets of evidence each is to be examined and accepted or rejected on its own worth. On the intrinsic value of one set of evidence the effects of other independent and substantial evidence cannot be nullified.
19. It is a case of non-reading and misreading of evidence. Substantial and irrefutable evidence was ignored and disbelieved on the ground, which are not sustainable in law. It resulted in grave miscarriage of Justice. Dictums laid down by this Court in the cases relating to kidnapping/abduction for ransom were neither followed nor referred. Instead on technical pleas the respondents were acquitted. Above grounds justify interference in the verdict delivered by High Court.
20. This Court in the case reported as State through Advocate-General, Sindh, Karachi v. Farman Hussain and others ,(PLD 1995 SC 1) laid down a dictum that approach of the Court in the cases of kidnapping for ransom 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.
21. A Full Bench of this Court in the case reported as The State v. Nazir Ahmed and others (1999 SCM R 610) laid down various dictums relating to the case of kidnapping/abduction. It was held that unless there were strong reasons to discredit the testimony of abductee/kidnapee, his/her statement carried substantial evidentiary value. Further, it was held that when the prosecution's version appeared to be truthful, sufficient, convincing and confidence-inspiring the placing reliance on various sets of evidence including statements of complainant and abductee was justified. It was also observed that ordinarily the acquittal judgment must be given due weight and mere possibility of recording different view would not be sufficient for interference but where there is a blatant Misreading of evidence leading to grave miscarriage of justice or make wholly artificial or shocking impression, which no reasonable person could perceive then under such exceptional circumstances, interference is justified.
22. On the point of identification, this Court in the case reported as Muhammad Akbar v. The State (1998 SCM R 2538) held that identification test is not a requirement of law but only one of the methods to test the veracity of evidence of an eye-witness, who has had an occasion to see the accused and claimed to identify him. Further, it was observed when a witness has spent considerable time with the accused and has had an opportunity to take a good look at him, holding of identification test would not be necessary.
23. Adverting back to the grounds which, found favour of the High Court it is noted that there was no legal justification to disbelieve the prosecution's version especially on the basis of news item in the daily Jang and Nawa-e-Waqat, Karachi dated 6-11-1992. Besides other evidence led by the prosecution, there were recoveries of arms and ammunitions and of the amount paid as ransom in presence of masheers Muhammad Shafi and Muhammad Rafique, who were declared hostile, but on that basis alongwith evidence of recovery could not be discarded. Investigating Officer on the point of recovery is, as good witness as possibly, anybody else. Can be. The Investigating Officer has given details of recovery and in our view his testimony on that point was not shattered. No law has been cited before us to show that the personnel of law-enforcing agencies, when they get information about commission of a cognizable offence, they cannot transmit the same to the concerned police officer. There is lot of difference between the collecting of material evidence and simply passing on such information, received while performing the routine duties. Every individual is required to give necessary information to the police regarding commission of a cognizable offence, if it comes to his knowledge. An amount of Rs,5,36,260 was recovered from the respondents, which is a substantial amount. The police personnel could not afford to foist said amount from their own pocket.
24. The star witness is abductee and his testimony could not be ignored on the ground noted by High Court. In fact, his testimony was not at all discussed by the High Court, which is reliable and inspires confidence. He had no reason to falsely implicate the respondents especially, when, as proved from the record, he had not even seen them prior to the occurrence.
' Veracity of his testimony was to be weighed upon its own strength and not upon insignificant material, which was brought on record to support the main assertion i.e, abduction.
25. The trend of cross-examination showed that the factum of abduction was not seriously disputed, but the involvement of the respondents was challenged. As pointed earlier, suggestion was given in cross-examination to the complainant that his father at his own disappeared and reappeared after sometime, but nothing material was brought on record to substantiate it. The plea of false involvement on the ground that the abductee allegedly owed US $ 25,000 to respondent Junaid Iqbal, is, ex-facie, false and has no legs to stand. Likewise, the plea of said respondent that an amount of Rs,5,36,260 was taken away from his house is also without any substance. Alibi plea of respondent Haider Zaidi of being confined in "Families Own Hospital" from 1st November to 3rd November, 1992 is only a made up story. Evidence of D.W. Dr. 'Hussain Akhtar on this point does not inspire confidence. Said doctor in cross-examinations admitted that there was no permanent regular register, showing entries date wise of the patients but only separate files of patients were maintained. Further, he admitted that there was no other doctor or assistant, except him in said hospital. The certificate relied upon was arranged and it is a fake document.
26. Abductee lived in captivity of the respondents for 4/5 days and had seen them closely. He also conversed with them. Even if the evidence of identification test is excluded altogether, yet, his sole testimony is sufficient to conclusively prove that the respondents had abducted him.
27. In consequence, the Appeal's Nos.372 and 374 of 1995 are allowed, the impugned judgment is set aside, the conviction and sentence of respondents Haider Zaidi and Abdul Rashid awarded by trial Court, are upheld. The Appeal No,373 of 1995 is also allowed to the extent that respondent Junaid Iqbal, is also convicted under section 365-A/34, P.P.C. And sentenced to suffer life imprisonment and to pay fine of Rs,20,000 or in default thereof to undergo R.I. For further period of two years. Respondent Kamran Raees was rightly acquitted by trial Court, as he was not implicated by the abductee in his evidence. The State Appeal (No,373 of 1995) to the extent of his acquittal is dismissed. The trial Court is directed to take the respondents Haider Zaidi, Abdul Rasheed and Junaid Iqbal in custody and send them to jail to serve out their sentences. They would be entitled to benefit of section 382-B, Cr.P.C. The trial Court is also directed to report compliance of above order to the Registrar of this Court within a month from receipt of this order.