2008 PLP 2926 (YLR)

DR. RANA MUHAMMAD SHAMIM, J.

In this appeal the appellant has assailed the judgment dated 31-8-2007 passed by learned Judge Anti-Terrorism Court No.1, Karachi, whereby he convicted the appellant for life imprisonment each for offence under section 7(a) and for offence 7(e) of ATA 1997 registered at Police Station Malir City vide Crime No.214 of 2006 and forfeiture of property to the extent of Rs.2 lacs. The sentences were to run concurrently without rigorous labour, as the appellant being under the age of 18 years, and benefit of section 382-B, Cr.P.C. was also accorded to the appellant.

2. Brief facts of the case as given in the F.I.R. are that on 29-11-2006 Muhammad Faisal, the nephew of the complainant, aged about 7 years, who used to live with the complainant, left the house alone for something and did not return. The complainant informed his family members and while he was searching for the boy with his brothers, at about 1420 a call from mobile No.0306-2526852 came on mobile phone of his younger brother Muhammad Ashfaq bearing No. 0345-2770573 demanding the ransom of Rs.4 lacs for release of the victim with threat of killing in case the police is informed. Thereafter the complainant was contacted on mobile phone at different times but when he shows his inability to arrange such huge amount the caller agreed for Rs.35000. Thereafter the complainant sent his younger brother Mehboob Rabbani with the said amount at the given place of Quaid-e-Abad and then to Badan Shah Darbar, Ghazi Town but the caller did not come. On 30-11-2006 from 1115 to 1735 hours the caller again contacted the brother of the complainant Muhammad Ashfaq on his mobile and fixed the place near Arabia Madressah. Mehran Goth to which Muhammad Ashfaq went there and as per direction of the caller put the amount wrapped in newspaper at Electric Pole point and came back. The caller/culprit informed on mobile phone that the victim would reach home but the boy was not released and the mobile phone was found off. The complainant party thereafter tried to search at its own and did not inform the police due to fear. However, finally the report was lodged by the complainant.

3. The investigation was marked to AVCC during which Inspector Muhammad Babar recorded the statement of witnesses and arrested the appellant who led the police to a well near Mai Niani Dargah where the dead body of the victim was found. The mobile telephone set was also recovered from the appellant and the details of calls were collected through CPLC. Medical opinion was also obtained whereafter the appellant was challaned showing co-accused Aijaz and Imam Ali as absconders. Since the appellant was aged about 17/18 years he was tried under Juvenile Justice System Ordinance, 2000.

4. Charge was framed against the appellant under sections 7(a) and 7 (e) of ATA 1997 on 16-7-2007 to which he pleaded not guilty and thus the matter was put for regular trial. During the trial the-prosecution, in order to prove its case, examined the following witnesses:-

1. P.W. 1 Complainant Ghulam Fareed (Exh.5) who produced F.I.R. (Exh.5/A). Memo. of recovery, inspection and identifica tion of dead body (Exh.5/B)

2. P.W.2 Muhammad Ashfaq (Exh.6) who produced memo. of pointation of place of putting the amount of ransom (Exh.6/A) and receipt of dead body (Exh.6/B).

3. P.W.3 Mumtaz Khan (Exh.7) who produced memo. of arrest of accused and recovery (Exh.7/A).

4. P.W.4 Muhammad Taufiq (Exh.8).

5. P.W.5 Dr. Jagdeesh Kumar, MLO (Exh.9) who has produced post-mortem report of deceased victim, chemical examiner's report and cause of death certificate (Exhs.9/A to 9/C)

6. P.W.6 A.S-I. Zahidullah (Exh.10).

7. P.W.7 Ahmed Chinoy (Exh.11) who produced inquest report (Exh.11/A).

8. P.W.8 S-I.P. Ali Muhammad (Exh.12) who produced memo. of pointation of place of incident by accused and memo of securing details of calls (Exhs.12/A and 12/B).

9. P.W.9 Inspector Muhammad Babar (Exh.13) who produced copy of order of S.S.P.-AVCC about assignment of investigation, copy of letter issued by him to MLO for post-mortem/cause of death certificate, age certificate of appellant issued by Medical Officer, details of calls with Jazz Issuing Advice, copy of letter issued by him to Chemical Examiner (Exh.13/A to 13/E).

5. The prosecution thereafter closed its side vide statement (Exh.14).

6. Thereafter the statement of appellant was recorded under section 342, Cr.P.C. in which he denied allegations against him and claimed to be innocent. He took the plea that he was arrested from his village Adam Khan Panhwar in District Jacobabad on 19-12-2006 on production of his father who was put under pressure by police to do so and the witnesses have deposed against him due to enmity. He did no opt to examine himself on oath but examined DW-1 Khair Bux (Exh.17) and D.W.2 Akhtar (Exh.2) in his defence.

7. Learned Trial Court, after hearing the learned counsel for the parties and material placed before him framed the following points for determination:-- (1) Whether victim boy Muhammad Faisal died unnatural death? (2) Whether victim Muhammad Faisal was kidnapped for ransom on 29-11-2006 at about 1100-1200 hours and demand for payment of ransom was made from P.W. Muhammad Ashfaq on his Mobile Telephone No.0345-2770573 using 0306-2526852 during the period from 29-11-2006 to 30-11-2006 for release of victim? (3) Whether present accused Asif receiving ransom amount of Rs.35,000 on 30-11-2006 having been put by P.W. Muhammad Ashfaq near Electric Pole Adjacent to Arabia Madressah? (4) Whether present accused Asif led police and on his pointation the dead body of victim was recovered on 21-12-2006 from the Well near Main Niani Dargah and also on 27-12-2006 and showed/pointed the place from where the victim was kidnapped by him on 29-11-2006 being the ground near the house of complainant Ghulam Fareed? (5) What should the judgment be?

8. Learned Trial Court determined the above points in affirmative and consequently convicted the appellant, as stated above, hence this appeal.

9. The learned counsel appearing for the appellant have contended that the appellant has falsely been implicated in this case due to enmity. They contended that the appellant was arrested from his village and neither any thing was recovered from him nor the dead body was found on his pointation. They further contended that the learned trial Court has not considered the material placed before him in its true perception and has not properly appreciated the evidence available on record; that the learned trial Court has failed to take into consideration that there is delay of 8 days in lodging the F.I.R.; that the date of recording 161, Cr.P.C. statement, as mentioned in it, is 24-12-2006 while the complainant has stated that the same was recorded on 9-12-2006 and 21-12-2006 and so also the P.W.2 has stated different dates; that the P.W.2 has stated that he had doubt on the appellant since beginning but did not nominate him in the F.I.R.; that P.W.3 in his deposition has stated incorrect location of the hotel where he saw the appellant; that the witnesses are close relatives and thus interested and their evidence is not reliable; that the complainant has not supported the case of the prosecution; that the complainant in his F.I.R. has not disclosed the presence of P.W. Mumtaz Bhatti at the time of keeping ransom amount at the pointed place; that there is contradiction in the deposition of P.W. 1 as to the timings of call; that the complainant in his 161, Cr.P.C. statement has stated that he has not seen the accused/appellant while in his deposition he has stated that he has not seen the accused persons at 1600 to 1615 hours on 30-11-2006; that P.W.2 has stated that he lastly received call at 1715 hours for payment of ransom amount while the amount was said to be put at 1530 hours i.e. before the call is received; that there is contradiction in the statement of P.W.3 as he in his deposition has disclosed that one of the accused was of fair colour while the other was of black colour while in his statement under section 161, Cr.P.C. he has only stated that the accused were of thin body; that P.W.3 has stated that on seeing the appellant entering into the hotel with ransom amount he informed the AVCC but he has stated that he did not remember the name of the PCO/Shop from where he rang upto the AVCC police nor the person attending his call; that P.W.3 has disclosed the complexion of the accused to the complainant but he did not mention the same in the F.I.R. which creates doubt; that neither SIM nor ransom money was recovered from the appellant; that the appellant being the child cannot be ordered to labour or given corporal punishment rather he should be sent to Borstal institution where child offenders are detained and given education and training for their mental moral and psychological development given as contained under section 2 (a) of Juvenile Justice System Ordinance, 2000. The learned counsel finally contended that in view of the above the impugned judgment is liable to be set aside and the appellant may be acquitted. In support of his contentions he placed reliance on the cases of Nasir Abbas v. The State (2007 PCr.LJ 497). Ghulam Rasool v. The State (2007 MLD [Karachi] 1203). Javed Sabir v. The State (2008 YLR [Lahore] 990).

10. On the other hand learned counsel appearing on behalf of the State have supported the impugned judgment. While referring to Article 21 of Qanun-e-Shandat Order they contended that the appellant has failed to show any fact constituting motive for his false involvement by the complainant as mere statement is not sufficient to prove the same. The learned counsel further contended that the dead body was recovered at the pointation of the appellant in presence of the witnesses whose evidence in this respect is consistent and could not be shattered in cross-examination; that the delay in lodging the F.I.R. is very much explained in the F.I.R.; that the appellant has failed to show that he had any enmity with the complainant party merely pleading the enmity is not sufficient to prove the same; that the learned counsel for the appellant has failed to point out. any material contradiction calling for interference in the impugned judgment. They finally prayed that the appellant is involved in heinous crime of murder of a minor and does not deserve any leniency from this Honourable Court hence the appeal may be dismissed. In support of their contentions, learned counsel have placed reliance on the cases of Muhammad Arshad v. State (PLD 1996 SC 122) and Mukhtar Ahmad v. The State (2000 PCr.LJ 186).

11. We have heard learned counsel appearing for the appellant as well as that of State and with their assistance have gone through the evidence placed on record, from which we gathered that the appellant has challenged the finding of the learned trial Court on the following points:

(i) that the learned trial Court has failed to consider the point of delay, which in the instant case is of 8 days; (ii) that the learned trial Court has failed to consider the fact that the prosecution has failed to prove its case beyond any iota of doubt as there were material contradictions/ improvements in the evidence of the prosecution witnesses; (iii) that the learned trial Court has not taken into consideration the evidence of defence witnesses produced by the appellant and based his finding only on prosecution evidence; (iv) that the learned trial Court has failed to follow the provision of Juvenile Justice System Ordinance, 2000 while awarding conviction to the appellant.

12. Regarding first point as to delay of eight days in lodging the F.I.R., the complainant has very much explained the reason for such delay. He stated in the F.I.R. since the culprit had threatened to kill the victim in case he informs the incident to police or any other agency hence he avoided to report the incident immediately. In the examination-in-chief also the complainant has deposed that the caller has threatened him not to inform police failing which the victim would be killed. No suggestion was put to the said witness/complainant as to the delay in lodging the F.I.R. Even otherwise, it has variously been held by the Honourable Court that in kidnapping cases the relatives of victim due to threat of killing the victim take considerable time to approach the police with a ray of hope in cases they will not inform the police the victim will be with them unhurt. Hence, in such circumstances, as in this case also there was threat of killing, the delay does not create doubt in the prosecution case.

13. Regarding second point as to contradictions/ improvements made by the prosecution witnesses, we have carefully examined the evidence adduced by the prosecution and so also the contradictions/ improvements pointed out by the learned counsel for the appellants. Learned counsel for the appellants have given much stress on the point that the .SIM from which the ransom amount was demanded is not recovered so also the ransom amount. The same is not supportive to the defence in view of the fact that every culprit at the first instance destroys the SIM used in a crime. As regards the cash amount. It has come in evidence of the Investigating Officer that the appellant had spent the same. Furthermore, the appellant received the amount on 30-11-2006 while he was arrested on 21-12-2006 and in this period the paltry amount of Rs.35000 cannot be expected to remain as it is. As to the fact that complainant has not disclosed in. the F.I.R. that P.W. Mumtaz Khan had also accompanied P.W. Muhammad Ashfaque while putting the amount of ransom at the pointed place. It is settled principle of law that the F.I.R. is neither a detailed narration of each and every fact nor it is substantial piece of evidence. Which also finds mention in the impugned judgment. Learned counsel for the appellant have not been able to rebut the same from any case-law. The contradictions, as pointed out by the learned counsel for the appellant, are not material in nature and, in our view, on the basis of same the impugned judgment cannot be set aside.

14. On third point, we have perused the evidence of defence witnesses and so also the statement of accused under section 342, Cr.P.C. The appellant in his statement under section 342, Cr.P.C. has pleaded false involvement in the crime due to enmity. He has further stated that he was arrested from his village Adam Khan Panhwar in District Jacobabad on 19-12-2006. There is no cavil with the arguments of learned counsel for the appellant that evidence of both the defence witnesses are consistent but it is only to the extent of arrest of the appellant on 19-12-2006 from village Adam Khan Panhwar. Otherwise D.Ws. have admitted that the appellant is not residing in village Adam Khan Panhwar but is residing at Malir No.15 Karachi. Learned counsel for the appellant have failed to point out that if for the sake of argument it is presumed that the appellant is arrested from the village Adam Khan Panhwar, how the appellant becomes innocent, rather in our view from it inference can be drawn that the appellant has committed the offence in Karachi and then fled away to Jacobabad to save his skin. Furthermore, these DWs have not supported the plea of the appellant as to the enmity with the complainant party. They have said not a single word that the appellant had any enmity with the comp lainant or any of his relatives. From perusal of the evidence of the defence witnesses it is clear that they have specifically stated that they do not know about the kidnapping or recovery of body etc. hence their evidence do not support the plea taken by the appellant as to false involvement.

15. Before discussing fourth point relating to Juvenile Justice System Ordinance, 2000. We would first reproduce the relevant provisions of ibid law:--

12. Orders that shall not be passed with respect to a child.

Notwith standing anything to the contrary contained in any law for the time being in force no child shall be:- (a) awarded punishment of death or ordered to labour during the time spent in any borstal or such other institution: and (b) handcuffed, put in fetters or given any corporal punishment at any time while in custody: Provided that where there is reasonable apprehension of the escape of the child from custody, the child may be handcuffed...

16. Perusal of the operative part of the judgment in the light of above provision of law, it is crystal clear that the learned trial Court has taken into consideration the fact that the appellant... being child cannot be awarded punishment of death or ordered to labour etc....and thus has clearly mentioned in the judgment that.. the sentences to run concurrently and without rigorous physical labour and 'subject to strict provisions of sections 2(b) and 12 of Juvenile Justice System Ordinance, 2000... learned counsel for the appellant has failed to point out as to what else could be done by the learned trial Court. Even otherwise, we may observe that in case the appellant has any complaint as to the compliance of ibid provision of law, he may move against the concerned authorities for redressal of his grievance.

17. The prosecution in order to prove its case examined complainant (Exh.5) who deposed that while he along with his brothers was searching for the victim at about 1415 hours a call on mobile phone of his brother with mobile phone No.0306-2526852 came demanding Rs.4 lacs as ransom for release of the victim. When the complainant showed his inability to pay Rs.4 lacs the ransom amount was fixed at Rs.35000. The complainant sent his younger brother P.W. Mehboob Rabbani with the amount to given place at about 2015 hours but the culprit did not come. Thereafter on 30-11-2006 at 1715 hours the culprit again contacted the brother of the complainant and gave the deadline of. 1730 hours for payment of ransom. The complainant sent his brother P.W. Muhammad Ashfaq accompanied by P.W. Mumtaz who put the amount at given place. The complainant has stated that he left P.W. Mumtaz at the place where the amount was put and P.W. Mumtaz returned at about 1820-1830 and informed that he has seen two youngsters belonging to their area/locality taking the amount of ransom. Thereafter when the victim was not released by the culprit, the complainant lodged the F.I.R. The complainant further deposed that on 21-12-2006 at about 1930 he was called by Investigating Officer Inspector Muhammad Babar and Najeeb Danewala of CPLC and he reached with P.W. Muhammad Ashfaque. He stated that the appellant in their presence led the police to the well and on his pointation the dead body of victim Muhammad Faisal was recovered. P.W.2 Muhammad Ashfaque (Exh.6) has corroborated the statement of P.W.1 and so also P.W.3 Mumtaz Khan (Exh.7). F. W.3 Mumtaz Khan has also stated that he remained at the place where the ransom amount was put and saw that after 2-3 minutes time two youngsters came and one of them took the amount. He stated that on 21-12-2006 he saw a youngster (the appellant) who has taken the ransom amount near the Hotel of Anwar Baloch and informed the police and. on his pointation the present appellant was arrested. P.W.4 Muhammad Taufiq (Exh.8) has stated that in his presence the dead body was taken out of the well. P.W.5 Dr. Jagdeesh Kumar (Exh.9) had conducted the post-mortem report. He stated in his deposition as to cause of death as being unnatural. The evidence of the said witness as well as the cause of death has not been controverted by either side. P.W.6 A. S-I. Zahidullah Khan (Exh.10) has stated that he recorded the F.I.R. of the complainant. P.W.7 Ahmed Chinoy (Exh.11) deposed that in his presence the dead body was recovered. P.W. 8 S-I.P. Ali Muhammad (Exh.12) and P.W.9 Inspector Muhammad Babar (Exh.13) have also corroborated the statement of the P.Ws. In our humble view the prosecution has proved its case against the appellants beyond reasonable doubts on material particulars being the prosecution evidence was consistent, corroborative, direct, cogent, confidence-inspiring and not discrepant, creating dent in the prosecution case. Nothing has been brought on record that what is the motive for which the appellant has been involved in this case by the complainant. Even the appellant has failed to prove enmity, as alleged, against the police or the complainant party, merely saying that he has falsely been implicated is not sufficient to prove his innocence particularly in view of the fact that the evidence of the prosecution witnesses could not be shattered in cross-examination. In the circumstances the defence plea put to prosecution witnesses that the appellant was arrested from village Adam Khan Panhwar in District Jacobabad on 19-12-2006 at the face of it appeared to be highly misconceived and even improbable in facts and circumstances of the case as the D.Ws. have admitted that the appellant is residing at Karachi and they have not said a single word as to the incident. The learned trial Court rightly appreciated the evidence on record and conviction was recorded against the appellant acting upon the material available with the learned trial Court by holding that the prosecution has succeeded to establish its case against the appellant. Provisions of Juvenile Justice System Ordinance, 2000 have been taken into consideration while awarding conviction to the appellant. No illegality/irregularity, infirmity or mis-appreciation of evidence is found in the impugned judgment. The case law cited by the learned counsel for the appellants are not attracted to the present case in the light of above discussion as each and every case is to be decided on its own merits. The instant appeal is accordingly dismissed. The conviction awarded to the appellant by the learned trial Court is maintained. Above are the reasons of short order dated 30-6-2008 whereby the instant appeal was dismissed. H.B.T./M-131/K Appeal dismissed.