1999 PLP 488 (MLD)

ABDUL HAMEED DOGAR, J.

By a common Judgment we propose to dispose of Criminal Appeals Nos.16 of 1993, 73 of 1993 and Criminal Acquittal Appeal No.178 of 1993, filed by appellants Khadim Hussain, Ali Akbar Shah and Advocate-General, Sindh, Karachi, respectively, as they arise from the same Judgment dated 13-12-1992 of the learned Judge, Special Court No.1I (Suppression of Terrorist Activities) Karachi. Appellants Khadim Hussain and Ali Akbar Shah have challenged their conviction and sentence of death and imprisonment for life, whereas the learned Advocate-General, Sindh, has impugned acquittal of respondent Shaikh Parvez Iqbal.

2. Precisely, the facts of the prosecution case are that on 19-10-1991 at about 7.30 p.m. when complainant Muhammad Jamil entered into Zahid Property Centre to visit his maternal cousin Junaid Ashraf, the owner of the Centre, he received a Danda blow on his head near shoulder, He saw a person aged about 32 years, sallow complexion, height about 5/6 feet, wearing Shalwar Kamis with a Danda in his hand and was directing him to come outside, hand over wrist watch and money. The complainant handed over him his watch "topaz" of light blue colour. It is alleged that in the meanwhile two persons with Klashnikovs also came inside. Of them, one was of about 30 to 35 years of age with black complexion, height 5'-11", He asked his maternal cousin Junaid Ashraf to move toward outside, forced him to leave the chair and made him sit in a white colour Suzuki Alto car, which was parked outside, wherein another person was already sitting at the driver's seat. Thereafter, another person with Klashnikov and one with Danda also sat in said car which proceeded towards Nipa Chowki. Complainant could not note the number of car.

3. The incident was witnessed by P. Ws. Muhammad Amin, Talib Ali, Muhammad Jawed Ashraf, Amin Soomro, and Murad Ali, who were present in the office. Of them, Muhammad Jawed Ashraf and Amin Somro had sustained danda blows at the hands of the culprits. The complainant and P.Ws. could identify the culprits, if shown.

4. Appellants Khadim Hussain and Ali Akbar Shah and acquitted accused Shaikh Parvez Iqbal were arrested and challaned to face trial before the above mentioned Court. The trial Court framed charge under sections 365-A/34 and 392/34, P.P.C. against the appellants, acquitted accused and absconding accused, namely Shaikh Jawed Iqbal, Muhammad Jaman, Allah Dino, Faizu, Yar Muhammad and Barkat.

5. At trial the prosecution examined P.W.1 A.C.M. Lakhraj Rathi, P.W.2 Abu Bakr, P.W.3 Tanveer Ahmed, P.W.4 Tunaid Ashraf, P.W.5 Muhammad Hanif, P.W.6 Dr. Zulfiqar Shaikh, P.W.7 Naseer Lodhi, P.W.8 Malak Muhammad Amin, P.W.9 Shabbir, P.W.10 Muniruddin Qureshi, P.W.11 Muhammad Farooq and gave up P.Ws. Qamar Zaman and Talib and closed the side. However, the Court examined Jawed Akhtar and Abu Bakr as C.W.1 and C.W.2 respectively.

6. The appellants, as well as acquitted accused in their respective statements under section 342, Cr.P.C. denied the case of prosecution and claimed to be innocent. Appellant Khadim Hussain stated that he was implicated falsely in the case due to political consideration, as he had affiliation with "Jiay Sindh Progressive Group". He was neither produced before any Magistrate for identification nor his 164, Cr.P.C. statement was recorded. Appellant Ali Akbar Shah simply claimed that he too was falsely implicated. Both the appellants examined themselves, on oath, as required under section 340(2), Cr.P.C. but did not examine anyone in defence. The trial Court framed the following points for determination: "Whether present accused (1) Khadim Hussain (2) Ali Akbar Shah (3) Sheikh Pervez Iqbal alongwith absconding accused on 19-10-1991 at about 7-30 p.m. armed with deadly weapons abducted abductee Junaid Ashraf from Rashid Minhas Road near Zahid Property Sons, Gulshan e-Iqbal, Karachi in furtherance of their common intention for extorting ransom amount of Rs.2,50,000 in the way and manner as alleged by the prosecution?"

7. On the assessment of evidence, appellants Khadim Hussain and Ali Akbar Shah @ Sain and absconding accused, namely, Shaikh Jawed Iqbal, Muhammad Juman, Alah Dino @ Allana Kalhoro, Faizu, Yar Muhammad @ Mawali and Basarat were found guilty under section 365-A/34, P.P.C.,. Appellant Khadim Hussain was convicted and sentenced to death, whereas others with imprisonment for life. Accused Shaikh Pervez Iqbal was given benefit of doubt and was acquitted.

8. We have heard M/s. Azizullah K. Shaikh and Hussain Shah Rashdi for the appellants and Mr. Muhammad Qasim Mirjat for acquitted accused Shaikh Parvez Iqbal and Mr. Habib Ahmed, Assistant Advocate-General on behalf of the State at length and have also perused the record and proceedings.

9. Mr. Azizullah K. Shaikh, learned counsel for appellant Khadim Hussain, mainly contended that learned trial Court has not appreciated the evidence and the impugned judgments is based upon misreading and non -appraisal of evidence. He argued that the payment of ransom was not proved. According to P.W. Abu Bakr, the ransom was paid near Al-Karam Square, whereas P.W. Tanveer Ahmed stated that it was paid near Karimabad. He next argued that according to Muhammad Farooq Investigating Officer Appellant Khadim Hussain was arrested on 4-12-1991 and his 164, Cr.P.C statement (confession) was recorded on 10-12-1991 and thereafter, his custody was handed ,over to Police Station Aziz Bhatti, whereas he was ,actually arrested on 27-10-1991 from his house in Dhani Bux Village and was handed over to army personnel, as such, said confession, being belatedly recorded, lost its evidentiary value. He also contended that the identification test, held on 1y-12-1991 by P.W., Lekhraj Rahti, A.C.M. III, Karachi (East), should not have been taken into consideration, as the strictures were passed against said Magistrate by this Court in Constitutional Petitions Nos.D-292, D-325, D-339 and D of 1992. He concluded that the case against the appeallant was doubtful.

10. Mr. Hussain Shah Rashdi, learned counsel for appellant Ali Akbar Shah, argued that admittedly no one from the vicinity was cited as witness and the admission of Investigating Officer that he did not deem it necessary to record statement of any person from neighbouring shops, created serious doubts about the occurrence itself. He also argued that in the impugned judgment learned Judge has referred appellant ' Ali Akbar Shah' as ' Sain', but there is no evidence to substantiate his assertion. He further argued that allegation against the appellant was simply of holding a Klashnikov at the time of alleged abduction, as such, it was not sufficient for awarding conviction. The appellant was arrested on 8-12-1991. It being so, said piece of evidence in all fairness should have been discarded out-rightly. He lastly contended that co-accused Shaikh Parvez Iqbal was acquitted on the same evidence, therefore, benefit of doubt should also have been extended to the appellant as the case of both of them was identical.

11. Mr. Muhammad Qasim Mirjat, learned counsel for respondent Shaikh Parvez Iqbal submitted that abductee Junaid Ashraf has not implicated the respondent in the commission of this crime in any manner, and that eye witnesses Muhammad Hanif, Abu Bakr and Tanveer Ahmed have also not assigned him any specific role in this crime as such, there being no incriminating evidence, he was rightly acquitted and this appeal merits to be dismissed.

12. Mr. Habib Ahmed, learned Assistant Advocate-General, vehemently opposed above contentions and contends that there are six pieces of incriminating evidence against appellants Khadim Hussain and Ali Akbar Shah namely, ocular evidence, of abductee Junaid Ashraf, eye-witnesses complainant Muhammad Hanif, Abu Bakr and Tanveer Ahmed, evidence of payment of ransom supported by P.Ws., Abu Bakr and Tanveer Ahmed. Besides above, the other pieces of evidence against them are of identification test held before said Magistrate, audio cassette, confession of appellant Khadim Hussain and medical evidence. According to him, the trial Court has rightly convicted appellants Khadim Hussain and Ali Akbar Shah and also for valid reasons acquitted respondent Shaikh Parvez Iqbal.

13. On scrutiny of the evidence we are of considered view that the prosecution has fully proved, its case against the appellants and at the same time it failed to establish its case against respondent Shaikh Parvez Iqbal. Reasons of our findings are as follows: (i) Admittedly, the factum of abduction stands proved as the same was never challenged by the Appellants during trial. Complainant Muhammad Hanif and abductee Junaid Ashraf in their respective deposition have not only stated about abduction, but have categorically, implicated appellants Khadim Hussain and Ali Akbar Shah to belt amongst others, culprits of this crime and correctly identified them in Court during trial. The complainant as well as abductee Junaid Ashraf in their statements fully implicated the appellants and stated that appellant Khadim Hussain was armed with a Danda and caused Danda blows to complainant Muhammad Hanif, one Amin Soomro and Jawed Ashraf, while appellant Ali Akbar Shah was armed with a Klashnikov at the time of incident. Their version is supported by the medical evidence of Dr. Zulfiqar Shaikh, who, in his statement, has corroborated that Muhammad Jawed Ashraf, Muhammad Amin and complainant Muhammad Hanif had sustained lacerated wounds, contusion and abrason on different parts of their bodies. (ii) According to the abductee, he was released after 17 days on payment of ransom of Rs.250,000 by his uncle Abu Bakr. This is supported by E P. Ws., Abu Bakr and Tanveer Ahmed in their respective statements, at trial. P.W. Abu Bakr stated that the abductee was his nephew and was abducted on 19-10-1991 at 6 or 7 p.m. He received a phone call in his office, whereby caller demanded Rs.1.00 crore as ransom for his release and such negotiations continued for 7 or 8 days and the ransom was ultimately settled on 3-11-1991 at Rs.400,

000. Rs.250,000 were paid at that moment, while the balance was to be paid after release of the abductee. He further stated that on the above date at about 5 or 5.30 p.m. he and P.W., Tanveer Ahmed handed over Rs.250,000 to one person, who disclosed his identity and the abductee was released on the following day. He identified appellant Khadim Hussain to be the person to whom he paid said ransom. He also prepared a cassette of entire conversation on telephone and handed it over to the police. His version is fully" supported by P.W., Tanveer Ahmed, who too identified appellant Khadim Hussain to be the person who received the ransom. Audio cassette was also produced in evidence through this witness. (iii) So far as evidence of identification test is concerned, all the above mentioned witnesses have fully supported the prosecution case and stated that both the appellants were correctly identified by them in the identification test held before a Magistrate and they had also correctly identified them during the trial. Though thoroughly cross examined yet, their testimony was not shattered. The contention that the evidence of Lekhraj Rahti Magistrate, who held identification test, should not be taken into consideration as strictures were passed against him by this Court in several petitions, has no force as said strictures have no concern with this case. (iv) The confessional statement of appellant Khadim Hussain recorded by P.W., Muniruddin Qureshi, A.C.M. II, Karachi (East) in Crime No.181 of 1990 has nothing to do with the present case and cannot be considered for the reason that the same was not recorded in the present case nor necessary details relating to this crime were disclosed therein.

14. From the above discussion, it is evident that the prosecution has proved its case and the trial Court has rightly convicted appellants Khadim Hussain and Ali Akbar Shah. Looking to the mitigating circumstances of the case, while maintaining the conviction, we alter the sentence of death of appellant Khadi Hussain to imprisonment for life and maintain the sentence of imprisonment for life awarded to. Ali Akbar Shah. With above modification in sentence to Appeals Nos. 16 of 1993 and 73 of 1993 are dismissed. The benefit section 382-B Cr.P.C. is extended to them.

15. Since none of the prosecution witnesses has implicated respondnt Shaikh Parvez Iqbal, as such, the verdict of acquittal in his favour is maintain, and Acquittal Appeal No.178 of 1993 is dismissed. 16 Above are the reasons for short order announced on 5-3-1998. N.H.Q./A-229/K Order accordingly