SARMAD JALAL OSMANY, J.---This Appeal has been filed against the judgment of the learned Anti- Terrorism Court No,5. Karachi, whereby the appellant has been found guilty of committing the crime of abduction for ransom punishable under section 365-A, P.P.C, read with section 7(1) (a) of the Anti-Terrorism Act, 1997 and was accordingly sentenced to death. He was also sentenced to pay a fine of Rupees 1,00,000 which if realized, was to be given to the legal heirs of the deceased under section 544-A, Cr.P.C.
2. The brief facts of the matter per F.I.R. No,8198 of Police Station North Nazimabad, Karachi are that on the day of incident viz. 23-2-1998 at about noon the appellant/accused who used to work with the complainant's father-in-law Abdul Latif, came to their residence and started discussing something with the latter. Thereafter both of them left the house in the latter's Car No,W4097. As Abdul Latif did not return home that night, the complainant alongwith other members of his family started searching for him but failed to locate him. On the next day viz. 24-2-1998 at about 15-15 hours some unknown persons phoned the family and informed them that their relation was with him. Thereafter at 15-45 hours another call was received and ransom in the amount of Rs,50,00,000 was demanded. Hence the complaint.
3. On 25-2-1998 the car of the deceased was found abandoned in Block N, North Nazimabad whereafter Inspector Javed of Police Station North Nazimabad who was conducting the investigation seized the said car. Thereafter on 1-3-1998 dead body of the deceased Abdul Latif was found in Sindh Qabirstan by S.-I. Fazalul Rehman of Police Station Gulbahar upon information delivered by an anonymous caller. He took the body to Abbasi Shaheed Hospital where autopsy was performed which revealed that the deceased had died due to fire-arm injuries.
Appellant/accused Sameer Sarwar alongwith co-accused Iqbal were arrested on 28-6-1998 from the custody of A.S.-I. Ameer of Police Station Gulbahar who had detained them in another crime.
4. The accused volunteered to confess his guilt and accordingly recorded his confessional statement before the concerned Judicial Magistrate where he admitted the crime in question which according to him was committed alongwith co-accused Iqbal alias Bahu Qasai as well as absconding accused Kashif Rasheed, Mujahid and Junaid. Thereafter upon completion of investigation the challan was filed before the learned trial Court. The absconding accused viz. Junaid, Mujahid, Kashif and Rasheed could not be apprehended and hence were declared proclaimed offenders. A charge was framed against appellant/accused and co-accused Iqbal under sections 365-A, 368, P.P.C. Read with section 120-B, P.P.C. As well as under section 302, P.P.C.
Read with section 7 of the Anti-Terrorism Act to which they pleaded not guilty and claimed their trial.
5. The prosecution in support of its case examined 13 witnesses; P.W.1 Muhammad Azeem, the Judicial Magistrate Court No,III. Central Karachi who produced the appellant's confessional statement as Exh.29; P.W.2 Mst.Irshad Begum one of the wives of deceased Abdul Latif; P.W.3 Abid Jamil a step-on of the deceased; P.W.4, Manzoor Hussain the son-in-law of the deceased; P.W.5 Muhammad Arshad a nephew of the deceased who produced Exh.49 being Mushirnama of the house where the deceased was confined; P.W.6 Dr.Moula Bux who produced the post-mortem examination report of the deceased as Exh.52, P.W.7. A.S.-I. Shahid Ahmed Khan who produced the seizure memo. Of the deceased's car as Exh.55, P.W.8, S.-I. Fazlur Rehman of Police Station Gulbahar who produced the memo. Of dead body of the deceased as Exh.58; P.W.9 P.C. Ghulam Shabbir who is the witness to the seizure of the deceased's car. P. W.10 P.C. Sher Muhammad who is the witness to the Memo. Of dead body plus empties and blood-stained earth; P.W.11 Inspector Javed Hussain, the Investigating Officer who produced Exhs.63, 64, 66 and 67 being the sketch of .The place from where the dead body was recovered, transcript of the audio-cassette containing the conversation between the accused and the members of the deceased's family; Chemical Analysis Report and Report of the Fire-arms 'Bureau respectively, P.W.12, A.S.-I. Muhammad Amir who had arrested appellant as well as co-accused Iqbal and finally P.W.13, P.C. Shafqat Ali who is the witness of such arrest. Both the appellants and co-accused Iqbal were examined under section 342, Cr.P.C. In which both denied the allegations as levelled against them. The appellant also examined himself under Oath whereby he stated that he was arrested on 10-6-1988 near Sir Syed College, Karachi, when he was to go to Punjab by train. The arresting officer, A.S.-I. Amir of Police Station Gulbahar, also took away Rs,25,000 as well as his train ticket and his watch. He further stated that he was maltreated and tortured and compelled to confess the murder of the deceased. He stated his innocence throughout.
6. As observed above the learned trial Court, after hearing learned counsel for the accused as well as the learned Special Public Prosecutor for the State, convicted the appellant/accused for the crime under section 365-A P.P.0 and sentenced him to death as well as fine of Rs,1,00,000. Co- accused ,Iqbal however was acquitted due to lack of evidence.
7. Mr. S.K. Jatoi, learned counsel for the appellant has submitted that the following pieces of evidence have been relied upon by the prosecution which has led to the conviction of the Accused:
(a) Circumstantial evidence.
(b) The retracted confession of the appellant/accused.
(c) Recoveries.
(d) Medical Evidence.
(e) Report of the Ballistic Expert.
8. As regards appellant's confession, learned counsel has submitted firstly that it is belated since he was arrested on 27-6-1998 whereas the confession was recorded on 8-7-1998. Hence per learned counsel coercion/intimidation at the hands of the police cannot be ruled out. Secondly the confession was not voluntary as is readily apparent from the cross-examination of P.W.1 Muhammad Azeem the Judicial Magistrate, hence it should be ruled out of consideration. In support of this proposition learned counsel has relied upon Qadir Baksh v. The State (PLD 1981 Karachi 581), Manzoor v. The State (PLD 1973 Lahore 714) and Tooh v. The State (1975 PCr.LJ 440).
Finally learned counsel has submitted that since the confession was retracted there should be some independent corroboration which is lacking in the case for which he has relied upon State v.
Muhammad Naseer (1993 SCMR 1822). In this regard learned counsel has also referred to the cross-examination of P.W. The Judicial Magistrate who has admitted therein that the confession was not voluntarily.
9. Next learned counsel has referred to the circumstantial evidence on the record which consists of the deposition of P.W.2 Irshad Begum who is the deceased's first wife, P.W.3 Abid who is the step- son of the deceased's second wife. P.W.4 Manzoor Hussain who is the nephew and son-in-law of the deceased and P.W.5 who is another nephew of the deceased. In this regard learned counsel has submitted that none of the P.Ws. Have implicated the accused except P.W.3 Abid who has stated that on the day of the incident the accused had gone alongwith the deceased at about noon time which on its own is not very convincing as admittedly the appellant was the servant of the deceased and it was quite natural for both of them to be in each other's company and to leave together for work. Consequently, per learned counsel, in the circumstances of the case it cannot be concluded that the accused had either committed the murder of the deceased or was involved with this crime. In support of this proposition he has relied upon Pinyo v. The State (PLD 1961 (W.P.)
Karachi 720) and Muhammad Rafique v. The State (1992 PCr.LJ 2119).
10. As far as the medical evidence on the record is concerned learned counsel has submitted that this is not denied as admittedly the deceased died due to fire-arm injuries. However, the same cannot stand on its own unless corroborated by some other piece of evidence which is not forthcoming in the matter.
11. Finally with regard to the recovery of TT Pistol and positive ballistic report, per learned counsel this remains unproved as the Expert has not been examined.
12. For all the foregoing reasons learned counsel has prayed that the appeal be allowed and the accused acquitted.
13. On the other hand, Mr. Habib Ahmed, A.A.-G. Has strongly opposed the appeal and supported the impugned judgment.
14. Regarding the confession learned A.A.-G. Has submitted that normally corroboration is required where the same is retracted. However this is not an inflexible rule and where the Court comes to the conclusion that the confession rings true and is made without duress or coercion then it should be believed on its own. For this proposition he has relied upon: Mst. Naseem Akhter v. The State (1999 SCMR 1744), Haq Nawaz v. The State (2000 SCMR 785), Nasreen Akhtar v. The State (2000 SCMR 1635), Ahmed Hassan v. The State (2001 SCMR 505), Najeeba v. Ahmed Sultan (2001 SCMR 988) and Tarique Mehmood v. The State (2002 SCMR 1493). Even otherwise per the learned A.A.-G. Adequate corroboration is available in the shape of medical evidence, recovery of .30 bore T.T. Empties and the positive ballistic report with regard to the pistol recovered from the accused.
15. Next learned A.A.-G. Has submitted that the circumstantial evidence also weighs heavily against the appellant firstly since the deceased was last seen in his company which raises a very strong presumption that he was involved with the kidnapping and murder of the deceased. For this proposition learned A.-G., has relied upon Mst. Rubina Bibi v. State (2001 SCMR 1914). Secondly, the prosecution witnesses viz. P.W.2 Irshad Begum who is the first wife of the deceased, P.W.3 Abid who is the step-son of the deceased second's wife. P.W.4 Manzoor Hussain who is the deceased's nephew and son-in-law and P.W.5 Muhammad Arshad have all with one voice testified that after the disappearance of the deceased in the company of the appellant, some unknown persons started making demands for ransom etc. Which is strong circumstantial evidence of the fact that the appellant alongwith the other absconding accused had kidnapped the deceased, and thereafter murdered him since their demand for ransom was not met by the deceased's family.
16. Finally, learned A.A.-G has submitted that there is positive evidence of a demand of ransom being made and hence section 365-A, P.P.C. Is fully applicable notwithstanding the fact that there is no evidence of the appellant of ever having contacted the deceased's family in connection with the demand for ransom. For this proposition he has relied upon State v. Farman Hussain (PLD 1995 SC 1).
17. Consequently, learned A.A.-G. Has supported the impugned judgment and prayed that the appeal be dismissed.
18. We have heard the learned counsel as well as learned A.A.-G. And our conclusions are as follows:--
19. It would be seen that the major piece of evidence in this matter is the judicial confession of the appellant/accused whereby he has not only confessed to kidnapping the deceased, but also killing him in conjunction with the absconding accused. The Magistrate before whom the confession was recorded has testified that this was done in accordance with law after the appellant was given time for reflection and also informed that it would be used against him. Nothing has been brought about in the cross-examination of the Magistrate which would establish anything to the contrary.
At the most it could be said with regard to the confession is that it was recorded belatedly viz. After 20 days of the arrest of the accused. However, it is well-settled that the delay in the recording of the confessional statement by itself cannot negate the same if otherwise it is proved to have been made voluntarily. In this regard reference can be made to Khan Muhammad v. The State (1999 SCMR 1818) and Ahmed Hassan v. The State (2001 SCMR 505). As observed above we have already reached the conclusion that the confession was voluntary and made without any pressure on the part of the prosecution. However since the same has been retracted, as a matter of abundant precaution and prudence, as per well-settled law, we now propose to examine whether any corroborative evidence is available.
20. In the first instance, this is available per the medical evidence on the record which establishes that the deceased died due to fire-arm injuries which per P.W. Dr. Moula Bakhsh who performed the postmortem examination are five in number. The testimony of this witness has gone unrebutted as he was not cross-examined at all by the Defence. Secondly, the appellant himself pointed out to the Police the house in Jehangirabad where the deceased was confined as well as the area in the graveyard where he was killed. Thirdly it would be seen that the pistol recovered from the appellant has bCen matched with the empties recovered from the scene of the crime. Finally it would be seen that the circumstantial evidence also corroborates the confessional statement of the appellant. In this regard the most glaring fact is that the deceased was last seen leaving the house of his second wife alongwith the appellant whereafter the latter disappeared till he was arrested in another crime by the Police authority in Gulbahar. Admittedly, the accused was the employee of the deceased and his disappearance immediately after the incident is very strong circumstantial evidence from which a reasonable inference can be drawn that the accused was responsible for the death of the deceased. For this proposition the case of Rubina Bibi v. The State (supra) can be referred to. Finally, it would be seen that that the family members of the deceased viz P.W.2 Irshad Begum who is the first wife of the deceased. P.W.3 Abid who is the step son of the deceased second's wife P.W.4 Manzoor Hussain who is the deceased's nephew and son-in-law and P.W.5 Muhammad Arshad have all with one voice testified that after the disappearance of the deceased in the company of the appellant, some unknown persons started making demands for ransom etc. Which also corroborates the confessional statement of the appellant. This is also strong circumstantial evidence of the fact that the appellant alongwith the other absconding accused had kidnapped the deceased, and thereafter murdered him since their demand for ransom was not met by the deceased's family.
21. In view of the foregoing circumstances we are of the opinion that the prosecution has successfully established the guilt of the appellant.
22. As far as the application of section 365-A, P.P.C, is concerned we are of the opinion that notwithstanding the fact that neither the appellant or any of the other accused were ever identified by the P. Ws. As having demanded the ransom, the fact remains that such demand has been established by the prosecution through the exhibition of the transcript of the telephonic calls made for such ransom. Such transcript was produced by P.W. Inspector Javed Hussain the Investigating Officer as Exh.64. The demand for ransom was made during the period when the deceased was in the custody of the appellant and the other co-accused. Hence we have no hesitation in concluding that the deceased was kidnapped for no other reason than ransom for which a demand had been made hence the provisions of section 365-A, P.P.C. Are fully applicable. In the case of Farman Hussain (supra) the Hon'ble Supreme Court has laid down that section 365-A, P.P.C. Would be attracted to the facts of my case where it is established that object of kidnapping the victim was to obtain ransom.
23. In view of the foregoing discussion we would dismiss the appeal and maintain the conviction and sentence, with the modification that sentence of fine shall be deemed to be, forfeiture of property to the extent of Rs,50,000, and further amount of Rs,50,000 is awarded as-compensation to the heirs of deceased/abductee under section 544-A, Cr.P.C. In case of default in payment of compensation the appellant should undergo rigorous imprisonment for 6 months. The confirmation reference is accepted and the death sentence is confirmed.