This judgment will dispose of Criminal Appeal No.312/J of 2002 filed by Khalid, Muhammad Rafique, Ijaz Butt, Asghar, Shahbaz, Munir Ahmad and Ishfaq, appellants through jail who were convicted under section 7(e) of Anti-Terrorism Act, 1997 and sentenced to undergo Imprisonment for life by learned Judge Anti-Terrorism Court No.II, Gujranwala vide judgment dated 30-7-2002.
Criminal Appeal No. 1520 of 2002 filed by the State for awarding capital punishment to the accused shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that on 2-2-2001 at 8-00 a.m. The complainant Mirza Munir Baig alongwith his brother Mirza Bashir Baig who was ex-Chairman was returning in his Motor Car No. STH-3434 after dropping the children in Cantt. City School and they reached Ghuman Shaheed Chowk, four persons armed with fire-arms were found present there. Out of four accused, Shahbaz Butt and Munir alias Muniri were identified by the complainant.
The other two accused were not known to them. The accused stopped the car and dragged the complainant and his brother from the car. Thereafter, the accused got seated Mirza Bashir Baig, the brother of the complainant, on the pillion seat. Munir accused sat down on one side of the abductee while Shahbaz accused seated on the other side. One out of unknown accused started driving the motor car. The other unknown person sat on the front seat. All the accused also resorted to firing. Many person gathered in the chowk but due to fear, none came forward, Mirza Bashir Baig was take--away by the accused towards Talwarah Mughalan. The road was blocked due to cart loaded with chaff. The accused then reversed the motor car and went away while firing. It was further stated by the complainant that motive behind the occurrence was the murder of one Maqbool khan and the accused were annoyed because the complainant party was pursuing the case against the accused.
3. Investigation of the case was taken over by Muhammad Iqbal, S.-I. (P.W.9). He, after registration of the formal F.I.R., inspected the spot, recorded statements of the witnesses, prepared site plan Exh.P.A., recorded supplementary statement of the complainant in which accused Shada, Deeka, Imdad and Haider Nawaz Were nominated, got recorded the statement of abductee Bashir Baig from the Magistrate under section 164, Cr.P.C., got held the identification parade, Asghar accused was already under arrest to another case, the accused disclosed his involvement, in the instant case, physical remand of Asghar alongwith Khalid, Ishfaq and Rafique was obtained, the accused Shahbaz Butt led to the recovery of .30 bore pistol which was secured vide memo. Exh.P.BB., on the same day Muhammad Akram led to the recovery of .30 bore pistol which was taken into possession vide memo. Exh.P.CC., the investigation was then taken over by Muhammad Irfan ul Haq, Inspector (P.W.10), he arrested Ishfaq accused on 25-2-2001 alongwith a. .30 bore pistol, secured the same vide memo. Exh.P.G., Ejaz Butt accused was also arrested on the same day and on his personal search, a .30 bore pistol was taken into possession vide memo. Exh.P.N., Munir accused at the time of his arrest was found to be in possession of a :30 bore pistol which was taken into possession vide memo. Exh. P. Q., on 26-2-2001, Khalid accused was arrested, from his possession, a 30 bore pistol, alongwith Kalashnikov, a hand grenade and 70 live cartridges were recovered which were secured vide memo. Exh.P.R., Rafique accused on 2-3-2001 led to the recovery of hand grenade and Klashnikov which were taken into possession vide memo. Exhs.P.S. And P.T., on the same day Munir accused got recovered Rs.2,90,600 and 9s.35,000 from the house of Shahid alias Deeka which were secured vide memo. Exh.P.C., on the same day Ijaz accused got recovered Rs.4,00,000 which were taken into possession vide memo. Exh.P.D., this accused also got recovered hand grenade and Kalashnikov, on 1-4-2001, Khalid accused got recovered Rs.2,50,000 which was secured vide memo. Exh.P.E., on the same day Asghar accused got recovered Rs.50,000, taken into possession vide memo. Exh.P.F., on the same day Ishfaque accused got recovered Rs.75,000, hand grenade and a Kalashnikov which were taken into possession Vide memo. Exh.P.X.
And Exh.P.W., Rafique accused also got recovered Rs.1,75,000, taken into possession vide memo.
Exh.P.H., this accused also got recovered a .30 bore pistol, on 9-5-2001, Saleem accused got recovered Rs.30,000, secured vide memo. Exh.P.D.D., on 9-7-2001, Shahbaz accused led to the recovery of Rs.10,000 and again Rs.10,000 which were secured vide memo. Exh.P.I. And Exh.P.N., on 18-7-2001, accused Shahbaz led to the recovery of Rs.87,500 and a .30 bore pistol, Muhammad Akram accused got recovered Rs.45,000, Asif accused also got recovered Rs.45,000 apart from pistol and after completion of the remaining formal investigation, all the accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 10 witnesses in all. Then statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication.
However, after conclusion of the trial, Imdad, Shahid, Saleem, Muhammad Akram and Muhammad Asif were acquitted while the remaining 7 accused were convicted and sentenced as stated above.
5. Learned counsel for the convict appellants after having read the entire prosecution evidence submits that present case remains the private affair of the complainant party and the police; there are material contradictions in the statements of the P.Ws. Inasmuch as according to P.W.4, Umar Baig son of the abductee the ransom amount was paid at Murad Trust Eye Hospital, Gujranwala in the presence of some people while according to P.W.2 Mirza Munir Baig, the ransom amount was paid to Haider Pehlwan, Shahid and Imdad for onward transmission to the appellant but there is even no evidence of transmission of the amount so the trial Court committed an illegality in convicting the appellants on the basis of receipt of ransom; nothing has been brought on record to suggest as to where the alleged abductee was detained; even the Investigating Officer did not visit the house where allegedly the abductee was confined; there is no explanation of delayed F.I.R , in fact it was a case of delayed F.I.R.; elaborating his arguments, learned counsel submits that according to complainant 10 minutes after the occurrence the police had reached at the spot but the F.I.R. Was recorded at 3-00 p.m.; this shows that the story of the prosecution given in the F.I.R. Is dubbed with doubts, fabrication and concoction; there is no mention of demand of ransom amount in the F.I.R. When the complainant had received a telephonic call from the accused much before lodging the F.I.R.; it has not been established as to whether the telephonic call for the demand of ransom was that of the accused; the recoveries apart from being planted one are in violation of section 103, Cr.P.C.; the witness of recovery is one and the same person though the recoveries were allegedly made on different times and dates; merely on the basis of recoveries without any other independent corroboration, conviction cannot be ordered; the recoveries are highly doubtful and unbelievable; the alleged abductee was an influential person and he managed all the recoveries; though the alleged abauctee was released on the next day of occurrence but his statement was recorded after 8 days; no features of the accused having been given in the F.I.R., the identification parade was of no avail to the prosecution; and that on the same evidence, 4 nominated accused from whom recoveries were also effected have been acquitted by the trial Court. Concluding his submissions, learned counsel submits that the prosecution has miserably failed to prove its case against the appellants and they are entitled to acquittal.
6. On the other hand, learned Additional Advocate-General submits that in a case of abduction, the star witness is always the abductee who in the instant case has fully supported the case of prosecution; four persons mentioned in the F.I.R. Were ascribed the roles, the remaining accused also joined the accused mentioned in the F.I.R. At a pointed place, so they were having a common intention and they were all party to the offence; the witnesses were natural; mere relationship of the P. Ws. With the victim or the complainant is no criteria to discard their evidence unless, the same is tainted with mala fide or enmity; in case of abduction for ransom, people do not come forward to give evidence or become witness of recovery pit the risk of their lives, so there being no previous enmity between the appellant and the recovery witnesses, their testimony can be safely relied upon; there are no material contradictions in the statements of the P. Ws. So that whole case of the prosecution should be shut out; the huge quantity of amount and the ammunition recovered on the pointation of the accused cannot be planted upon and that even the trial Judge committed an illegality by not recording sentence against the appellants under sections 365-A, 395, 148 and 149, P.P.C. When from the evidence brought on record, it was proved that the accused were guilty of such offences.
7. Learned counsel for the State submits that it is not a case of false implication, there was no reason on the part of P. Ws. To falsely implicate the appellants; it was a case of promptly lodged F.I.R., there was no ill-will or malice on the part of the complainant and the police and that the prosecution has been successful in proving its case against the appellants.
8. I have heard learned counsel for the parties at length and have gone through the record. In the instant case, there is not an iota of evidence on record to suggest that there was any previous enmity between the parties Bashir Baig was abducted by the accused in broad daylight while he was coming in a car alongwith his brother, the complainant after dropping the children in the school. Two accused namely Munir and Shahbaz were named in the P.I.R. While 2 were stated to be unknown. After receipt of ransom amount on Rs.13,00,000, the abductee/victim was released by the accused next day and he reached his house. His statement was recorded on 8-2-2001. An objection was raised by learned counsel for the defence that though the abductee was released on the next day but his statement was recorded 5/6 days thereafter. It may be noted that the defence counsel himself brought on record while cross-examining the abductee that due to fear, the abductee did not come out of his house and then became ill and that for the first time the police approached him on 8-2-2001. One should not expect that a person who had been abducted, confined and released on payment of ransom would be in a position to appear before the police on the same day and make statement rather he would take sufficient time to come to his senses and to be normal. Bashir Baig, the abductee is star witness in this case. The names of the actual culprits could only have been given by the person who was abducted and the accused persons remained with him for about 2 days. The victim had given names of all the accused and identified them during the identification parade. He had identified all the accuses during the identification parade, held in jail through Rana Manzoor Hussain, Magistrate examined as P. W.6.
Ransom amount was recovered from the accused during their physical remand. The contention of learned counsel for the defence that recoveries were effected with very much delay is without force because the recoveries are to be effected when the accused are arrested and they lead to the recoveries. Such a huge chunk of money and ammunition cannot be planted by the police. As to objection that in all the memos. Mirza Shabbir Baig was cited as a recovery witness, it is to be noted that in a case in which the accused are desperate, no independent person comes forward to become a witness at the peril of his life and honour being at stake. The " Certificate" of the accused show that three accused namely Ijaz, Munir and Shahbaz were desperadoes and started their career for the last so many years and were involved in cases of murder, illicit arms, abduction and abduction for ransom.
The case of the acquitted accused is different from that of the convict appellants. They were not the members of the unlawful assembly who put the abductee into car and drove away. They even did not become a party to the abduction at any stage.
As a sequel of the aforesaid discussion, I am fully convinced that the prosecution has been successful in bringing home the guilt against the accused beyond any shadow of doubt. It is important to note that though charge was framed against the accused under sections 365- A/148/149 and 395, P.P.C. But the trial Judge for the reason best known to him, did not either convict or acquit the accused under the said sections. Here I may advantageously rely upon the case of Zulfikar Ali Bhutto v. The State (PLD 1979 SC 53). In the report, their lordships of the Hon'ble Supreme Court in para.826 concluded as under:-- "826. The survey of the cases shows that the law as embodied in sections 236 and 237 of the Criminal Procedure Code read together appears to be that if on the facts alleged it was doubtful which of several offences the provided facts will constitute and on the fact eventually proved of which the accused may be taken to have notice during the recording of evidence at the trial an offence other than the one charged has been committed, then he may be convicted of this other offence, even though he was not charged with it. Their lordships of the Privy Council have indeed put it simply and shortly by saying that a man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. "
The case of prosecution is on much better footing than the one cited as report for the reason that in the case in hand the charge was framed under sections 365-A/149/148 and 395, P.P.C. And sufficient evidence had also come on record from the prosecution side to prove the same but the trial Court neither acquitted nor convicted the accused from the said charges.
However, all the sentences shall run concurrently but the benefit of section 382-B, Cr.P.C. Shall not be given to the appellants because of their desperate act.
With above addition in the conviction and sentence of convict appellants, Criminal Appeal No.312/J of 2002 is disposed of.
Imprisonment for lifeunder section 365-A read with section 149, P.P.C.
And forfeiture of property.
2 years' R.I. under section 148, P.P.C. And 10 years', R.I. And to pay a fine of Rs.50,000 each, in default R.I. For one year.under section 395, P.P.C.