Muhammad Mujibullah Siddiqui, J.--This Appeal is preferred by the appellant, against the judgment dated 28.4.2003, assailing his conviction and sentence awarded by the Special Anti- Terrorism Court No, III Karachi, in Special Case No, 44-A of 2002.
Briefly stated the facts arising to this appeal are that complainant Naik Muhammad lodged F.I.R. at Gulshan-e-Iqbal Police Station, on 24.8.2002, stating therein that he is a Dry Fruit Merchant and is residing with his family at House No, 387, Block-I, Gulshan-e-Iqbal, Karachi. On 20.8.2002, his son Najeebullah aged about 14/15 years went outside the house at about 8.00 p.m. but did not return. A search was made but Najeebullah could not be traced out. On 21.8.2002, two unknown percons who appeared to the Pathans from their voice, contained him on telephone and informed that they have kidnapped Najeebullah. They demanded ransom money of Rs, 30,00,000/- and threatened that if the matter was informed to any one, the complainant shall receive the dead body of his kidnapped son. Because of fear, he did not inform the matter to any one. Similar telephone were received on 22nd and 23rd of August 2002. The complainant replied that it was not possible for him to pay such exorbitant amount. The kidnappers persisted with their demand with the threat to kill Najeebullah, if the demand was not acceded to. Finding no other way he ultimately lodged the F.I.R. against two un-known persons for kidnapping his son, with the intention to extort the ransom money. The negotiation for ransom money continued and the complainant informed the kidnapers that he was able to arrange an amount of Rs, 1,10,000/- only. He offered the same to them to which they agreed. The kidnappers then asked the complainant to reach at the main bridge at Super Highway situated near Bundo Khan Hotel at about 7:00 a.m. alongwith ransom money. The complainant was directed to wear white dress with white cap and to keep the ransom money in a blue color bag so that the kidnapers were able to identify him. They further directed him to come alone and if any body accompanied him his son shall be killed. Complainant reached at the pointed place and after about 15 minutes one Honda Civic Car of white color came from Toll Plaza side in a very high speed and stopped near the complainant. One person was driving the car and the other was sitting on the rear seat. The person sitting on the rear seat took out pistol and pointed towards complainant, and demanded blue bag containing ransom money of Rs, 1,10,000/- in the shape of currentcy notes of Rs, 1000/- denomination. The complainant asked about this son but the person sitting on the rear seat of the car demanded ransom money and tried to snatch the bag. A scuffle ensued on which the driver also took out pistol and pointed the same towards the complainant for shooting him on which the complainant handed over the bag containing ransom money. After delivery of ransom money the said car proceeded in a very high speed towards Sohrab Goth side. After coving some distance, the car took turn toward Toll Plaze side again. The kidnapers had told complainant that his son shall reach his house at the time, ransom money was given. However, the complainant did not find his son when he reached his house. The condition of his wife and mother deteriorated due to shock and the complainant decided to search his son in the locality where he had seen the car of the culprits going after receipt of ransom money. The complainant then hired a taxi and went for the search. While searching his son, when he reached in a street in a village near Gulshan-e-Maymar Housing Scheme, he found the car in which kidnapers had arrived to receive the ransom money and he rushed back to inform the police. When he reached near Gulshan-e-Maymar. Housing Scheme he saw a police mobile and informed the facts to the police officer and showed him the copy of FIR with request for help in recovery of his son. The police party was engaged in snap checking of the cars. At the request of complainant, the police party accompanied him. The complainant showed him place where white car was parked. They saw a person alighting from the said car and going inside a house. The police Cordoned off the said house, whereupon firing started from inside the house and police also retaliated by firing in the air. Under the shelter of aerial firing, the police entered inside the house. When the firing halted, the complainant also rushed inside the house and saw that police had arrested three persons while one had made his escaped good. The appellant was among the arrested person. He was a juvenile and was tried separately from the two adult accused persons. The police secured pistols from each accused and secured Najeebullah son of complainant from a small room inside the house. At that time, both hands and feet of the kidnapee were tied with electric wire and rope.
Police untied the kidnapee and secured rope and electric wire as well as one razor. An amount of Rs, 75,000/- was also secured from the accused persons. Mashirnama was prepared and articles secured were sealed.
The police which recovered the kidnapee belonged to ACLC Sharifabad, Liaquatabad. The investigation was subsequently transferred from Gulshan-e-Iqbal Police to ACLC Police. On completion of investigation the accused persons were sent up to face trial by the Anti-Terrorism Court No, 3, Karachi.
The adult accused persons namely Sultan @ Sheenu son of Shehzada and Habibullah son of Muhammad Shah who were tried separately, were convicted for the commission of offence under Section 365-A PPC read with Section 7(e) A.T.A. 1997, and were sentenced to death. Their movable and immovable properties were also confiscated to the Government. The appeals at their instance have been heard separately and the conviction awarded to them has been upheld while the death sentence awarded to them has been converted into life imprisonment.
The appellant Bashir, being juvenile was tried separately under the provision of Juvenile Justice Ordinance, 2000.
The appellant pleaded not guilty to the charge.
The prosecution examined PW-1 Faisal Ahmed son of Anees Ahmed, Ex. 5, PW.2 Shaisata Hamid, Judicial Magistrate, who produced copies of identification memo as Ex. 7 and Ex. 8 as well as copy of Statement of PW. Khair Muhammad under Section 164 Cr.P.C. as Ex.
9. PW.3 Khair Muhammad son of Haji Allah Bux vide Ex. 10 who produced the copy of mashirnamas of arrest of the accused and recovery of abductee etc., as Ex.
11. PW4 Choudhary Muhammad Aamir SIP vide Ex. 12 who produced copy of pointation memo of place of incident by the accused as Ex.
13. PW. 5 Kanson Dean Inspector/I.O.Ex. 26 who produced copies of FIR, mashirnamas as well as statement of PW Najeebullah and Naik Muhammad and copy of judgment in the case against adult accused as Ex.
27 to Ex.
31. The trial Court held that the prosecution successfully brought home the guilt to accused and therefore, convicted him for the offence punishable under section 365-A PPC read with Section 7(e) of the A.T.A. 1997, and sentenced him to suffer imprisonment for ten years. His moveable and immovable properties were also confiscated to the Government. Being aggrieved with the conviction and sentence the appellant has preferred this Appeal. We have heard Mr. Mahmood A. Qureshi, learned counsel for the appellant and Mr. Habib Ahmed learned A.A.G. for the State.
Mr. Mahmood A. Qureshi, submitted that the main prosecution witnesses namely, Najeebullah the kidnapee and his father complainant Naik Muhammad, could not be examined in the case against the appellant Bashir Ahmed for the reason that they had left Karachi and were not traceable. Their statements recorded in the case against adult accused persons namely, Sultan and Habibullah were produced in this case under Article 47 of the Qanun-e-Shahadat Order, 1984. The learned trial Court has placed reliance on the statement of kidnapee and his father complainant Naik Muhammad, recorded in the case against the adult accused persons which is not warranted in law. He has submitted that although the learned trial Court has referred the provision contained in Article 47 of the Qanun-eShahadat Order, 1984 in the impugned judgment but has misdirected in interpreting the same. He has submitted that under Article 47 of the Qanun-e-Shahadat Order, 1984, evidence given by a witness in a judicial proceeding, is relevant for the purpose of proving, in a subsequent judicial proceeding, the truth of the facts stated, when. the witness is dead or cannot be found; provided the proceeding was between the same parties or their representatives in- interest; the adverse party in the first proceeding had the right and opportunity to cross-examine and the questions in issue were substantially the same in the first proceeding and second proceeding but the other two conditions were not satisfied. In the first proceeding the matter was between the State and the two adult accused, while in the second proceeding the matter was between the State and the present Juvenile appellant. The appellant had no right and opportunity to cross-examine the witnesses in the first as in the second proceeding. Mr. Mahmood A. Qureshi, argued with sufficient force that although the questions in issue were substantially the same in the first proceeding, with the result that the evidence of the ki'dnapee and his father complainant Naik Muhammad have been used against the appellant without giving him the right of cross- examination, which cause is not warranted in law. He has further submitted that only such evidence can be considered which fulfils the requirement of examination-in-Chief, opportunity of cross-examination to the adverse party and re-examination, if so desired by a party calling the witness. He has submitted that without cross-examination a statement is not admissible in evidence.
The learned A.A.G. is not able to controvert the above contentions raised by the learned counsel for the appellant.
The learned counsel for the appellant has further submitted that no sentence of imprisonment can be awarded to a juvenile and consequently, the impugned sentence is not sustainable in law. The learned A.A.G. has conceded to this proposition. While agreeing with the contentions of learned counsel for appellant we are of the opinion that, the conviction and sentence awarded to the juvenile appellant is not sustainable in law which is hereby set aside. The r appellant is acquitted and is directed to be released forthwith if not required in any other case.
After hearing the learned advocates for the parties on 9.3.2004 the appeal was allowed by a short order. These are the detailed reasons in support thereof.