RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Special ATA Appeal No,95 and Confirmation Case No,12 of 2000 as they arise out of a single judgment.
2. The present appeal has been directed against the judgment dated 11-9-2000 passed by Anti- Terrorism Court No,1I, Karachi in Special Case No,126 of 2000 State v. Muhammad Moosa and others by which the learned Judge had convicted the appellants Muhammad Moosa, Umed Ali and Abdul Ghafoor for an offence punishable under section 148, P.P.C. and sentenced them to suffer R.I. for 3 years and to pay a fine of Rs,10,000 each, or in default thereof to undergo R.I. for one year. The above named appellants were also convicted for an offence punishable under section 365-A read with section 149, P.P.C. and sentenced each of them to death. They were also convicted for an offence punishable under section 7 of Anti-Terrorism Act, 1997 (hereinafter referred to as ATA of 1997), and sentenced to suffer R.I. for 7 years and to pay a fine of Rs,10,000 each, or in default thereof to undergo R.I. for one year more. Whereas, the appellants Jam and Mazar were convicted for the offence punishable under section 365-A read with section 109, P.P.C. and sentenced to undergo R.I. for 14 years and to pay a fine of Rs,50,000 each, or in default thereof, to undergo R.I. for 3 years more. All the appellants were also directed to pay Rs,50,000 each as compensation to the victim under section 544-A, Cr.P.C. or in default thereof to suffer R.I. for 6 months more.
3. Brief facts giving rise to the present appeal are that complainant Abdul. Aziz son of Haji Hussain had a Pan shop situated near SPARCO Road, Karachi. On 12-1-2000 at about 8-00 p.m. his son Shahzad aged about 15/16 years went to Raza Corner to purchase Ban-Kabab, after taking money from the shop but he did not return, therefore, the 'complainant searched for him but he failed to locate him. As such, at about 11-00 p.m. he went to Police Station Mobeena Town, Karachi, and lodged a report of missing of his son. During the search, while he was coming back to his house a person namely Aziz, told him that 3/4 persons sitting in a white coloured Old Model Toyota Car had forcibly taken away his son Shahzad in .the said vehicle to some unknown place, therefore, the complainant alongwith said Aziz again went to the police station and lodged a report of abduction which was recorded by the police at 2-15 a.m. on 13-1-2000.
4. After, few days of the abduction of his son, the complainant received a telephone call from an unknown person demanding Rs,5,00,000 as ransom amount for the release of his son, therefore, he contacted C.P.L.C. who gave him a device for recording the conversation of the culprits. Again, the complainant received a call for ransom amount but he told them that he could not pay them the ransom, therefore, the culprits reduced the ransom amount to. Rs,4,00,000 and subsequently up to Rs,3,00,000 but he offered them Rs,2,00,000 and then increased the said amount to Rs,80,000. The culprits did not accept the said amount and threatened him that his son Shahzad would be killed.
During the said telephonic conversation at one point of time the culprits told him that he would receive a present from Edhi Centre, when the demand of ransom amount of Rs,4,00,000 was not accepted by him, therefore, he approached Edhi Centre where used to see the dead bodies brought from Hyderabad side and Surjani Town but he did not find his son.
5. After four months of the incident, on 18-5-2000, he received a telephone call from Police Station, Mobeena Town to arrive at Cantt. Police Station, Hyderabad, therefore, he went there where he saw his son and the police of Mobeena Town, Karachi present. He received custody of his son.
6. In the meantime the Police of Mobeena Town, Karachi visited the scene of incident, prepared Mashirnama of Wardat and recorded the statements of witnesses but they could not get any clue of the abductee. On 18-5-2000, SIP Abdul Rauf of Mobeena Police Station, Karachi received a telephone call from S.H.O., Hamid Ali Thahim of Cantt. Police Station, Hyderabad informing him that they had recovered the abductee and arrested the culprits. Thereafter, he informed the incident to the complainant and directed him to ,reach at Cantt. Police Station, Hyderabad.
7. At Hyderabad, the S.H.O., Hamid Ali Thahim of Cantt. Police Station, Hyderabad was conducting investigation of Crime No,29 of 2000 of his police station under section 365-A read with section 34, P.P.C. On 18-5-2000 he alongwith his police party apprehended 3 persons namely Muhammad Moosa, Abdul Ghafoor and Umed Ali (the present appellants) from a telephone booth near Firdous Cinema, Hyderabad and one telecard was secured from the possession of appellant Umed Ali. On interrogation they volunteered to produce the victim boy of this case and to take the police to village Adam Chang near Jhirk, District Thatta. Therefore, after obtaining the necessary permission from higher officials, the police went there where the appellants pointed out towards a house where one white Toyota Car bearing Registration No,J-6833 was parked, which was secured and then on the pointation- of appellant Umed Ali the police apprehended two persons who were standing outside of a house and guarding it who disclosed their names as Mazar and Jam (the present appellants). Then the police entered into the said house where they found a boy was sitting. On inquiries the boy disclosed his name as Shahzad, the abductee of this case. Thereafter, a Mashirnama was prepared. The abductee was sent to Hyderabad in the said car whereas the police and the culprits remained there for further completion of the formalities. While returning to Hyderabad, on the way, the S.H.O., Hamid Ali Thahim informed the incident to Mobeena Town Police Station, Karachi. After reaching at Cantt. Police Station and arrival of the father of the abductee, the custody of the abductee was handed over to the complainant.
8. The Mobeena Town Police produced the appellants and directed the witnesses to reach at City Court on 30-5-2000, as . identification test was to be held for identifying the culprits through the witnesses. After completing the usual investigation the appellants were challaned before the Administrative Judge Anti-Terrorism Courts, Karachi, from where the case was assigned to the Anti-Terrorism Court No,II, Karachi for disposal according to law.
9. On 31-8-2000 a charge under sections 148, 365-A read with sections 149 and 109, P.P.C. and section 7 of ATA, 1997 was framed against the appellants but they pleaded not guilty.
10. In support of the case the prosecution examined 9 witnesses namely P.W.1 Abdul Aziz (complainant, he recorded telephone calls in which demand of ransom amount was made). P.W.2, Muhammad Shahzad (the victim), P.W.3 Abdul Aziz (eye-witness of abduction, Mashir of Wardat and identified two appellants in the Identification test). P.W .4 , A . S.-I. , Muhammad Ashique (he recorded the report of missing of boy and F.I.R. of abduction), P.W.5 Head Constable, Hakim Ali (Mashir of recovery of car from Police Station Cantt., Hyderabad and audio cassette). P.W.6, A .S.- I., Nisar Ahmed (Mashir of arrest of 3 appellants at Hyderabad, recovery of telecard, recovery of car, abductee and arrest of 2 appellants at village Adam Chang). P.W.7, Inspector, Hamid Ali (Mashir of arrest of 3 appellants at Hyderabad, recovery of telecard, recovery of car, abductee and arrest of 2 appellants at village Adam Chang). P.W.8. Mr. Maqbool Ahmed (Judicial Magistrate, he held Identification Test) and P.W.9 S.I.P. Abdul Rauf (I.0.)
11. The appellants in their statements recorded under section 342, Cr.P.C. denied all the allegations of the prosecution. Appellant Muhammad Moosa stated as under:-- "I am milk seller. I used to take milk on donkey-cart for selling in Mills. Area, near Kotri Phatak. I was arrested on 4th day of 5th month, this year, at 12-0' Clock noon when I was returning after purchasing grass for my donkey. The police left the donkey cart unattended. I was taken to Hyderabad on the pretext that I was required by one Sahib. I was taken to Cantt. Police Station. I was detained there for 2/3 days. On my inquiries the S. H.O. told me that I had stolen a car. I was then shifted to ladies police station, while shifting I was blind folded. I was kept there for 5, 7 or 8 days. I was then taken to SITE Police Station. The other accused, present in Court, were also detained there. After 6/7 days we all were taken from there and were taken to Cantt. Police Station.
From there I was taken and delivered at Central Prison, Hyderabad. From Hyderabad Prison, my custody was taken by Karachi Police. I was detained at Mobeena Town Police Station and then to another police station. I used to be kept in another police station during night hours and used to be brought back to Mobeena Town Police Station in the day time. I was then given in custody of Central Prison."
Appellant Umed Ali stated as under:-- "I own the White Toyota Corolla Car bearing Registration No,J-6833, I ply it privately through Hussain driver, as I cannot drive the car since last 2 years after fracture of my left arm in an accident. On 7-5-2000 I was sitting on a hotel of Makrani by the side of Baba Salahuddin when at 4-00 p.m. I was arrested by police, whom I could not identify. I was taken to Hyderabad. I was detained in Women Police Station for 2 days, then I was taken to SITE Police Station, from there I was produced for remand and then I was involved in this case. From Police Station Cantt. I was handed over to Karachi Police, who challaned me in this case. Again says after my arrest I was detained at the Police Station Cantt. for 2 days, then I was shifted to Women Police Station where I was detained for 6/7 days and from Women Police Station I was taken to SITE Police Station where I was detained for 7, 8 days. From there I was taken to the Magistrate and my remand was obtained, as stated above."
Appellant Abdul Ghafoor stated as under:-- "We had not shaved for so many days.
Our clothes were also dirty. Police had maltreated us. After identification test our photographs were taken and then we were sent to jail."
Appellant Jam stated as under:-- "I am cultivator and I am innocent." Appellant Mazar stated as under:-- "I was arrested while I was present on my land and I was doing the work on my fields."
12. The appellants neither examined them on oath nor led any evidence in their defence to substantiate their respective defence versions.
13. The learned trial Judge after considering the material available on the record formed opinion that appellant Muhammad Moosa, Umed Ali and Abdul Ghafoor were the members of unlawful assembly and appellant Muhammad Moosa and Abdul Ghafoor were found directly involved in physically kidnapping the victim whereas, appellant Umed Ali was found having shared common object with the above named appellants in kidnapping the victim by being physically present at the spot of incident and transported the victim in his car. The remaining two appellant Jam and Mazhar were also found guilty being guarding the victim at the house from where he was secured, therefore, the learned trial Judge convicted and sentenced the appellants, as mentioned above under the impugned judgment. The appellants were dissatisfied with the said judgment, therefore, they have preferred the present appeal.
14. During the pendency of appeal, on 11-1-2002, the learned A.A.-G. pointed out that the appellants Jam and Mazar were sentenced to R.I. for 14 years and fine of Rs,10,000 for offence punishable under section 365-A, P.P.C. but the punishment of 14 years and fine was not provided under the said section as the punishment provided therein is death or imprisonment for life and forfeiture of property, therefore, he prayed that notice may be issued to the appellants for enhancement of sentence. Accordingly a notice was issued to the appellants which was served upon them.
15. The learned Advocate for the appellants have argued that there are material contradictions in the evidence of the P.Ws. that prior to holding identification test the witnesses had seen the appellants; that identification test was not held in accordance with law as the dummies were not having the same features, height and structure as that of appellants; that the provisions of section 103, Cr.P.C. were violated as no private person was associated as Mashir at the time of arrest of the appellants or recovery of abductee. They have also argued that the case of the prosecution is highly doubtful, therefore, the appellants may be acquitted. The Advocate for the appellants Jam and Mazhar, further argued that they were merely present at the place of recovery of abductee; that they had not participated in the commission of this crime and that they were not identified by the abductee in the identification test, therefore, their involvement in the case has not been proved.
16. On the other hand, learned A.A.-G. has stated that there are no material contradictions in the evidence of the P.Ws. but the contradictions are minor in nature which are bound to occur in the present type of case, therefore, the same can be overlooked. He has further argued that the evidence of victim and P.W. Abdul Aziz is natural, honest, truthful and independent; that they have no enmity with the appellants to falsely implicate them and the said evidence is sufficient to convict the appellants. He has further argued that the evidence of the above named P.Ws. is supported and corroborated by the identification test held before the Magistrate which was conducted in accordance with law where 25 dummies were mixed up and further added that for large number of dummies it was not possible to secure the dummies ,having similar, feature, height and structure as that of three appellants; that their evidence is further supported and corroborated by two police officials of Hyderabad District who had apprehended the appellants and on the pointation the three appellants the abductee was recovered and that the police officials have no enmity whatsoever with the appellants to falsely implicate them in this heinous crime. He has further argued that the provisions of section 103, Cr.P.C. are not attracted in the present circumstances of the case as the appellants were arrested from a public place and that the police officials had asked the persons present at the said place to act as Mashir but they declined, therefore, the requirement of law has been fulfilled and in absence of mala fide established against the police officials their evidence is reliable as the police officials are also good witnesses like other citizens. He has relied upon the case of Muhammad Naeem v. State (1991 SCMR 1617), to substantiate his contention.
17. We have given due consideration to arguments and assessed the evidence in the light of their respective contentions. We find that the case is based upon ocular testimony, demand of ransom amount, recovery of abductee on the pointation of 3 appellants where 2 appellants were guarding the said place.
18. On the point of abduction, the prosecution have relied upon the evidence of victim Shahzad and P.W. Abdul Aziz. The evidence of P.W.2 Shahzad reveals that on 12=1-2000 at about 8 or 8-30 p.m. he left his shop to purchase Ban Kabab when he reached near Aziz Decoration Shop a car with white colour arrived there. Out of which two persons got down and on pistol point they pushed him and made him to sit on the rear seat of the car. On his inquiry the culprits told him that he was picked up for taking money. Two persons who were sitting on Aziz Decoration Shop, saw the incident. He raised cries. A sheet of cloth was put over his face and then the car was driven. After covering long distance his eyes were opened and he found himself in a mountains area.
19. The evidence of P.W.2 Shahzad has been supported and corroborated by P.W.3. Abdul Aziz who deposed that on 12-1-2000 at 8-00 or 8-30 p.m. he was present at Aziz Decoration Shop, when one white coloured car came, out of which, two persons came out and they forcibly took Shahzad, put him in the car and drove away. The evidence of the above witnesses went unchallenged, thus, from the evidence of above two P.Ws. it is clear that P.W.2 Shahzad was abducted.
20.As regards the ransom amount, the prosecution has relied upon the evidence of P.W.1 Abdul Aziz, the father of the abductee. His statement reveals that after few days of abduction he received a call from an unknown person in which a demand of Rs,500,000 was made for the release of his son, therefore, he contacted C.P.L.C. who gave him a device for recording the voice which was being taped in an audio cassette. Subsequently, the ransom amount was reduced to Rs,400,000 with a threat of killing the abductee if the amount was not paid. Then the negotiations started between the P.W.1 Abdul Aziz and the culprits on telephone. Then the amount was reduced to Rs,300,000 but the complainant agreed to pay the amount of Rs,80,000 which was not accepted by the culprits. This portion of the statement of complainant went unchallenged as no question was put to the witness by any of the appellants denying the said facts. As such, it has been established that after the abduction of P.W.2 the culprits demanded a ransom amount from P.W.1 Abdul Aziz, father of the abductee.
21. As regards the involvement of the present appellants, the prosecution have relied upon the evidence of P.W.2 Shahzad, P.W.3 Abdul Aziz. P.W.6 A.S.-I, Nisar Ahmed of Cantt. Police Station, Hyderabad and P.W. 7 S.H.O., Hamid Ali Thahim of Cantt. Police Station, Hyderabad.
22. The evidence of P.Ws. 6 and 7, who are the police officials of Cantt. Police Station Hyderabad, reveal that in connection with Crime No,29 of 2000 of Cantt. Police, Hyderabad, they apprehended the appellants Muhammad Moosa. Umed Ali and Abdul Ghafoor from a Telephone Booth near Firdous Cinema, Hyderabad and from the possession of appellant Abdul Ghafoor a telecard was secured. On interrogation the appellants took them to village Ahmed Chang of District Thatta where on their pointation towards a house, which was being guarded by appellants Jam and Mazar, they recovered the abductee P.W.2 and the car owned by the appellant Umed Ali, parked outside the house. The abductee was immediately sent to Hyderabad in the said car whereas after completion of formalities they took the appellants to Cantt. Police Station, Hyderabad. The police of Mobeena Town Police Station, Karachi were informed. Subsequently, P.W.9, S. I. P. Abdul Rauf of Mobeena Town Police Station, Karachi came at Cantt. Police Station, Hyderabad, who took the abductee and then the car and the appellants were taken to Karachi.
23. The evidence of P.W.2 Shahzad reveals that after his abduction he was kept in a but where persons other than the culprits who had abducted him were guarding him. After 4 months of incident viz. 18-5-2000 he was recovered from the said house by the police where two persons were guarding the place. On 30-5-2000, an identification parade was held where he identified the appellants Muhammad Moosa, Umed Ali and Abdul Ghafoor to be the persons who had abducted him whereas he did not identify the remaining two appellants viz. Jam and Mazar. He was subjected to cross-examination but nothing came on record to discredit his evidence. A suggestion was made to the witness that he had seen the appellants before the identification parade but he-denied the same.
24. The evidence of P.W.3 Abdul Aziz shows that on 30-5-2000 an identification parade was held in which he identified the appellant Umed Ali being the person who was sitting on the driver seat of the car at the time of abduction. The appellant Muhammad Moosa was identified to be the person who pushed the abductee in the car at the time of: abduction. This witness was also subjected to cross-examination but nothing has come on record to discredit his evidence.
25. The P.W.9 S.I.P., Abdul Rauf stated that he received a telephone call from S.H.O., Abdul Hamid of Cantt. Police, Hyderabad, informing him about the recovery of abductee and arrest of culprits, therefore, he went to the Cantt. Police Station and recovered the abductee and arrested the appellants. Then he had produced the appellants before the Judicial Magistrate for holding the identification test through the witnesses.
26. All the witnesses were further subjected to cross-examination in which the details of the incident and clarifications were obtained. No enmity was suggested between the appellants and the witnesses, no motive was suggested to these witnesses to falsely implicate the present appellants by the witnesses.
27. From their evidence, it is clear that the appellants Muhammad Moosa, Umed Ali and Abdul Ghafoor had actually abducted P.W.2 Shahzad whereas appellants Jam and Muhammad Moosa were guarding the house who were apprehended by the police, as such, the appellants shared common object to commit the offence. It is pertinent to point out that the abductee was in the captivity of the appellants for more than 4 months and then with the timely intervention of Hyderabad Police the abductee was recovered from 'Thatta District from the possession of the appellants.
28. The learned Advocate for the appellants have mainly argued that the police have not cited the private Mashirs in this case, therefore, their evidence is not reliable. It is pointed out that through P.Ws. Nos.6 and 7 it has come on the record that they had asked the persons available at the place of arrest of appellants to act as Mashir but they declined to do so. As such the rule laid down in the authority reported in the case Muhammad Aneem (supra) is attracted. They have further 'argued that during identification parade the dummies were not having the similar features, height and structure, therefore, identification test has lost its value. In this connection it is pointed that the learned Magistrate had arranged 25 dummies for the identification test from the Court premises and for arranging such a large number of dummies it is rather difficult to arrange the dummies having same features height and structure as that of 3 appellants, therefore, such type of minor discrepancy can be overlooked in the present circumstances of the case when the abductee was in the custody of appellants for about 4 months and was shifted from but to jungle and then the place from where he was recovered as such he had seen them during the said period. In fact in such a situation, the identification of appellants through abductee was not essential.
29. As regards the contradictions pointed out by the learned Advocate for the appellants, suffice it to say that all these contradictions are minor in nature through which completion of the case and the story of the prosecution has not been changed, therefore, such type of contradictions do occur in the evidence and can be overlooked being minor in nature particularly when the case of the prosecution has not been changed on the material points i.e, in the manner in which the offence was committed or the persons who committed the said offence.
30. As regards the arguments that the witnesses had seen the appellants before the identification test, no such evidence has been pointed out wherein such fact was admitted by the P.Ws. but on the contrary such suggestions were made to witnesses but they denied the same.
31. No plausible defence has been taken by the appellants in this case nor any evidence has been led to substantiate their defence. They did not examine themselves on oath nor examine any witness in their defence on any point asserted by them or in rebuttal of evidence led by the prosecution.
As regards the sentence of fourteen years under section 365-A, P.P.C., the said section reads as under:-- "[365-A. Kidnapping or abduction for extorting property, valuable security, etc. who ever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise for I obtaining release of the person kidnapped or abducted, shall be punished with death or imprisonment for life and shall also be liable to forfeiture of property]."
33. From the above provision of law it is clear that the punishment provided therein is death or imprisonment of life and forfeiture of property as such the sentences of fourteen years and fine awarded by the trial Court are illegal as they are beyond the scope of section 365-A, P.P.C. It is pointed out that vide Ordinance No,XVII of 1988 for the first time section 365-A, P.P.C. was inserted and the punishment provided therein was death or imprisonment of either description for a term which may extend to fourteen years and should not be less than three years and should also be liable to fine. Subsequently, this section was replaced by Act III of 1990. The punishment provided therein was imprisonment for life and forfeiture of property. Subsequently, an amendment was made in the said section vide Ordinance No,XIV of 1990 dated 10-12-1990 and Act No,II of 1991 dated 28-3-1991 wherein the sentence of death was also included in the aforementioned sentences. Thus, from 10-12-1990 the punishment provided under section 365-A, P.P.C. is, death or imprisonment for life and forfeiture of property.
34. After considering the material available on the record we are of the considered view that the prosecution have proved their case against she appellants beyond any shadow of 4oubt, as such, the appellants have been rightly convicted for offences punishable under sections 148, 365-A read with sections 149, 109, .P.P.C. and under section 7(ii)- of ATA, 1997.
35. In the light of what has been stated above, the conviction and sentence awarded to the appellants Muhammad Moosa, . lamed Ali and Abdul Ghafoor under section_148, P.P.C. is maintained. The conviction awarded to all the appellants ": under section 365-A read with sections 149 & 109, P.P.C. is maintained, but the sentence _of appellants Muhammad Moosa, Umed Ali and Abdul Ghafoor is modified from death to imprisonment for life and that of appellant Jam and Mazar from R.I. for 14 years to imprisonment for life. They are further sentenced to forfeiture of their properties to the Government of Pakistan, to the extent of Rs,100,000 each, the sentence of fine of Rs,50,000 or in default thereof to undergo R.I. for 3 years is set aside as it was not provided under section 365-A, P.P.C. The conviction and sentence awarded to the appellants Muhammad Moosa, Umed Ali and Abdul Ghafoor for offence punishable under section 7(ii) of ATA 1997 is maintained.
The payment of compensation as ordered by the trial Court under the impugned judgment is maintained which on realization should be 'paid to the victim P.W.2 Shahzad.
36. For the reasons discussed above, the appeal of the appellants is dismissed with the above modification in the sentences. The reference for confirmation of death sentence is rejected.