1999 PLP 1513 (MLD)

HAMID ALI MIRZA, J.

This is a criminal appeal under section 7 of Suppression of Terrorist Activities (Special Courts) Act 1975 read with section 410 of Cr.P.C. directed against the judgment of conviction dated 30-5-1994 passed by Special Judge for Suppression of Terrorist Activities Act Nawabshah, whereby the appellant (and three others tried in absentia) have been convicted under section 365-A/34, P.P.C. and have been sentenced to undergo imprisonment for life and further their movable and immovable properties be forfeited to the extent of Rs.50,000 each and in default to undergo further R.I. for three years more, hence the present appeal. The facts leading to this appeal in brief are that as per F.I.R. lodged by complainant Qamaruddin on 22-9-1992 at Police Station Sakrand at 1215 hours, Crime No. 156 of 1992 wherein he stated that on I1-3-1992 there was a water rotation of his land in Deh Jamal Kero, so he sent his son Imamuddin alongwith Gul Sher, Meenhon and Hadi Bux for rotation of water, when at 11.00 P.m. Meenhon and Hadi Bux came back and informed him (complainant) that as they all four were at the land for the rotation of water, at 8.00 p.m. five armed persons among whom one was armed with Kalashnikov and rest were armed with the guns, hatchets and Lathis and the person armed with Kalashnikov was identified to be Sikandar Bhatti son of Bahadur and the rest were not identified, abducted them but when they reached at Sukhpur Station, Sikandar Bhatti gave them a letter demanding Rs.5,00,000 for release of Imamuddin and Gul Sher. The complainant alongwith his brother and co-villagers on hearing this went to the place of Wardat and from there they tracked the foot prints of dacoits and abducted persons which were lost near Buchari Phatak. The complainant has further stated that after one and a half month he alongwith his brother and villagers were sitting in Otak one Muhammad Malook Rind came and demanded ransom for the release of abductees to whom ransom of Rs.1,13,000 alongwith one Rado watch was paid/given in presence of his brothers, when on the next day abductees Gul Sher and Imamuddin returned but due to fear he did not lodge the report, however, later on law Enforcing Agencies started operation to arrest the dacoits hence he went to lodge report that Imamuddin and Gul Sher were abducted by Sikandar Bhatti and others and were released after payment of ransom. P.W.8 Imam Bux was the Additional S.H.O. Sakrand on 22-9-1992 when he recorded the F.I.R. (Exh.4/A) of Qamaruddin. He recorded 161, Cr.P.C. statements of Imamuddian and Gul Sher and then got 164, Cr.P.C. statements of the said witnesses recorded before the F.C.M. and Mukhtiarkar Sakrand. He alongwith the complainant Qamaruddin proceeded to the place of Wardat and prepared such Mashirnama (Exh.11/A) in presence of Mashirs Eid Muhammad and Muhammad Urs. He also recorded 161, Cr. P. C. statements of P. Ws. Moonhon, Ghulam Ali, Nooruddin and Hadi Bux. He got spy information on 22-12-1992 when he was in the village of complainant that accused Sikandar Bhatti wanted in the case was standing at Sarhari Link at Mohri waiting for someone, therefore, he immediately rushed to that place in Government vehicle and apprehended the said accused and prepared such memo of arrest (Exh.11/B) in presence of same Mashirs and on the same day he produced the accused before the F.C.M. and Mukhtiarkar for recording his judicial confession (Exh.10/A). He also got recorded 164, Cr.P.C. statements of P. Ws. Hadi Bux and Meenhon before the FCM and Mukhtiarkar Sakrand on the same day and thereafter he handed over the case papers to S.H.O. Muhammad Usman Jamali who subsequently submitted the charge-sheet before the trial Court. Before the trial Court prosecution examined eight witnesses. P. W. I Qamaruddain is the father of Imamuddin and uncle of Gul Sher who were abducted and had filed the F. I. R. P. W.1 Qamaruddin has deposed as was told to him by P.W.5 Hadi Bux and P.W.2 Meenhon, that the dacoit Sikandar Bhatti alongwith other dacoits abducted Gul Sher and Imamuddin who gave them a chit in which there was demand of Rupees five iac as ransom for the release of Gul Sher and Imamuddin. P. W.2 Meenhon deposed before the trial Court that five dacoits duly armed appeared on the land at 8.00 p.m. and he only identified Sikandar Bhatti who abducted them forcibly at the point of deadly weapons and after covering three miles distance the dacoits left him and Hadi Bux with direction to bring Rupees five lac for the release of Gul Sher and Imamuddin for which a chit was given to them. P. W.3 Imamuddin is the person who was kidnapped alongwith Gul Sher and was released after his detention for one and a half month. He deposed before the trial Court that he alongwith Gul Sher, Meenhon and Hadi Bux were present on land for water rotation when at about 8.00 p.m. five dacoits fully armed appeared and he identified two persons Sikandar Bhatti and Ishaque Chandio and the rest three were not known to him. He deposed that the dacoits abducted them and on the way they left Meenhon and Haji Hadi Bux but took him and Gul Sher giving away a chit to Haji Hadi Bux and Meenhon for payment of Rupees five lac as ransom amount for their release and he was released after one and a half months alongwith Gul Sher when Sikandar Bhatti told them that they have received ransom amount and he took them in a car and left him and Gul Sher near their village when they reached at home at midnight and he met with his father who informed him that he gave Rupees five lac cash and one Rado watch to Muhammad Malook Rind as ransom and again said that cash Rupees one lac and twenty thousand was paid. P.W.4 Gul Sher is the person who was abducted alongwith Imamuddin. He has also deposed before the trial Court the same as was deposed by P.W.3 Imamuddin except that he deposed that two of the dacoits had muffled faces while the rest had not covered their faces whereas P. W .3 Imamuddin had said that faces of dacoits' fellows were open. P.W.5 Hadi Bux is the person who was present at the place of incident at the time of rotation of water from where he alongwith three others was abducted by five dacoits and was subsequently released on the way and was given chit of demand of Rupees five lac for the release of Imamuddin and Gul Sher. He has before the trial Court deposed as has been said by P.W.2 Meenhon. P.W.6 Muhammad Bux was posted as Mukhtiarkar and F.C.M. Sakrand on 22-12-1992. On the said date appellant/accused Sikandar Bhatti was produced before him for recording his judicial confession (Exh.10/A) which he recorded. P.W.7 Eid Muhammad is the Mashir of memo. of Wardat (Exh.11/A) and of memo. of arrest of appellant/accused (Exh.11/B) who has deposed that the said memos. were prepared in his presence and same bore him thumb- impressions. P.W.8 Imam Bux is the Investigating Officer and Additional S.H.O. at the relevant time at Police Station Sakrand. He registered the F.I.R and visited the Wardat of abduction. He recorded the statements of the witnesses so also their 164, Cr.P.C. statements and arrested the accused and prepared such memo. of arrest and got his judicial confession corded before the F.C.M. and Mukhtiarkar Sakrand. After completion of the investigation he passed on the case papers to S.H.O. Muhammad Usman who subsequently challaned the accused/appellant showing co-accused absconders. In the trial Court, appellant/accused in his statement under section

342. Cr.P.C. denied the charged offence and stated that he has been falsely implicated in the case at the instance of police and Malook Rind. He also did not examine himself as witness as provided under section 340(2) of Cr.P.C. and also did not examine any witness in his defence. Contention of the learned counsel for the appellant is that F.I.R. has been lodged after six months of the alleged incident and the explanation offered to the same is neither cogent nor convincing and further ocular evidence tendered is interested, tainted, false and further the judicial confession allegedly made by the appellant is neither voluntarily nor true. The prosecution has to prove whether the appellant/accused alongwith absconding accused in prosecution of their common object abducted P.Ws. Imamuddin and Gul Sher for the purpose of extorting money and released the said abductees after getting the ransom. In the said respect prosecution case is based upon the following pieces of evidence:- (i) Ocular evidence of complainant Qamaruddain P. W.1, P. W.2 Meenhon, P.W.5 Hadi Bux, P.W.3 Imamuddin and P.W.4 Gul Sher (the abducted persons) with regard to abduction of P. Ws. Imamuddain, Gul Sher and their release. (ii) Judicial confession of appellant/accused. (iii) Evidence of release of abducted persons on payment of ransom money. We have heard the learned counsel for the appellant and State, perused ~'' the record and proceedings of the case. On the point of abduction of P. Ws. Imamuddin and Gul Sher, complainant P.W.1 Qamaruddin in his deposition (Exh.4) has deposed that he i sent his son Imamuddin, Gul Sher, Meenhon and Hadi Bux for water rotation at 5.00 p.m. when at 11.00 p.m. Hadi Bux and Meenhon came to his house and informed him that dacotis Sikandar Bhatti and other abducted away Gul Sher and Imamuddin and gave them a chit demanding Rupees five lac as ransom for their release. P. Ws.2 and 5 Meenhon and Hadi Bux corroborate the complainant on the point of abduction of the P. Ws. Imamuddin and Gul Sher by the appellant Sikandar Bhatti alongwith others. The abducted persons, namely, Imamuddin and Gul Sher also deposed that they were abducted by the appellant, Ishaque Chandio and others. Both P. Ws. Imamuddain and Gul Sher also deposed that they were left in their village by appellant Sikandar Bhatti at the night time after about one and a half months (1/1-2) of their abduction, so also complainant Qamarudain deposed that both abducted persons returned on the said night, All the said witnesses have been cross-examined at length by the defence counsel before the trial Court but their veracity could not be shaken and their testimony is confidence inspiring. Mere fact that P.W. Imamuddin deposed that faces of all dacoits were open while P.W. Gul Sher stated that two dacoits' faces were muffled while the faces of rest of dacoits were open would not materially effect the prosecution case when the name of present appellant was mentioned even in the F.I.R. and further that the abducted persons viz Gul Sher and Imamuddin remained in the wrongful confinement of the appellant for one and a half months therefore, there could not be mistaken identity of the present appellant with regard to the commission of said offence. There is nothing in the evidence from where one could say that the P. Ws. were inimical towards the appellant or they deposed falsely to implicate the present appellant. The fact that the said Malook Rind came to the complainant either to help him in getting the release of the abducted persons or to carry out the directions of the dacoits though he was stated to have been arrested as contended by the defence counsel by police, would not materially effect the prosecution case as during the said period of time, nobody could have dared to risk one's life in refusing to convey the directions of demand of ransom of dacoits to the complainant and this might be the reason that the said Malook Rind went to the complainant for ransom in getting the release of the abducted persons. So far for the contention of delay in lodging of F.I.R. by the complainant, it has also been satisfactorily explained and the said explanation would appear to be convincing and justifiable in the circumstances of the case at the relevant time because if the F.I.R. would have been lodged at the time of the incident without waiting for the release of abducted persons, there was risk that for all the time to come, the said abducted persons would not have been returned alive and might have been killed by the dacoits. It is only after 1992 when the army took up the operation to check the crime being committed by the dacoits, the persons affected came out to lodge the reports thinking to be safe from the criminal, therefore, in the instant case also' the complainant after release of the abducted persons viz Imamuddin and Gul Sher thinking himself and his family to be safe from any revenge or attack being inflicted upon them, lodged the report after six months of delay of the incident. In the circumstances delay in the instant case could not be said to be fatal to the prosecution case. The ocular testimony of the above witnesses is confidence inspiring and there has been nothing to suggest that there has been any animus on the part of the said P.Ws. so as to falsely implicate the appellant in the commission of crime. Mere assertion without any material on the part of the appellant that he has been falsely implicated in the case at the instance of Malook Rind and the police would have no substance and merits. The discrepancy in the quantum of amount of ransom deposed by P.Ws. would not materially effect the testimony of the said P.Ws. who had fully and completely implicated the appellant in the commission of crime considering that minor contradictions and discrepancies would not effect the merits of the prosecution case which otherwise is consistent and confidence inspiring as such minor contradictions would take place when P.Ws. are examined after such a long delay from the date of incident and their release. The prosecution has proved the abduction of P.Ws. Imamuddin and Gul Sher by the appellant beyond reasonable doubt. So far the release of the said abducted persons, the abducted persons, P.Ws. Imamuddin and Gul Sher who remained in the capacity of the appellant and other co-accused for more than one months, have deposed that the appellant told them that then have received ransom amount for their release, therefore, they were taken to their village in the night time in a car and allowed them to go to their house. This aspect of the evidence is corroborated by the complainant Qamaruddin, the father of the P. W. Imamuddin and uncle of Gul Sher. This version of testimony has gone unchallenged by the appellant and no suggestion was put in the cross examination to the said abducted persons that they were not taken to their village in a car and released by the appellant. Accordingly the prosecution has also proved the release of the abducted persons viz Imamuddin and Gul Sher by the appellant on payment of ransom amount. The next piece of evidence is the judicial confession of appellant (Exh.10/A) which has been produced by P.W.6 Muhammad Bux, Mukhtiarkar and F.C.M., Sakrand, who has deposed that on 22-12-1992 he was posted as Mukhtiarkar and F.C.M. Sakrand, on that day police produced accused Sikandar Ali Bhatti alongwith a letter for recording his confession and he got removed his handcuff and kept the accused (appellant) in his office and asked the police to leave his office and then informed the appellant that he was F.C.M. and whatever he (appellant) would state would go against him (appellant/accused) and then he (appellant) was given two hours time for reflection and after expiry of two hours, appellant was again called and informed that whatever he (appellant) would say would go against him but he voluntarily stated that he had actually abducted Imamuddin, Gul Sher, Meenhon and Haji Hadi Bux. He recorded the confession word by word and then sent the appellant/accused to judicial lock-up and that witness also stated that on his enquiry the appellant/accused disclosed that he was not maltreated by the police. P.W.6 also deposed that he was satisfied that confession was true and voluntary and afterwards he got his left thumb impression over the Exh.10/A. From the perusal of the cross-examination of P.W.6 conducted by the defence counsel of the appellant/accused, his veracity could not be shaken with regard to confession being untrue and having not been made voluntarily. Nothing has been shown whereby it could be said that the confession Exh.10/A was obtained/recorded by an inducement or under duress or coercion so as to discard its evidentiary value in the case and further not to use it against the appellant/accused considering also that the same is corroborated by ocular testimony. Prosecution has beyond reasonably doubt been able to prove the confession Exh.10/A to be true and voluntary and the said confession is corroborated by the ocular evidence adduced by the prosecution. Reference may be made to Ch. Muhammad Yaqoob and others v. The State and others (1992 SCMR 1983 at 2015):- "The legal position, which has emerged from the above reports, seems to be that in order to judge the evidentiary value of retracted confession, the Court is to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the object to state the truth. If the Court is satisfied on the above aspect, the mere fact that there were some irregularities in recording of a confession, would not warrant disregarding of the same." Reference may also be made to the State through Advocate-General N.-W.F.P., Peshawar v. Waqar Ahmad (1992 SCMR 950 at 955) which runs:-- "The learned High Court has discarded the confession of tile appellant on the ground that 'though the retracted confession of the appellant remained uncorroborated by any independent evidence as a rule of prudence there should have been some independent evidence in support of the retracted confession which we notice is not available in this case'. When an accused has given an account of incident and its truth is not doubted and such statement is proved to be correct in all its parts, such solitary piece of evidence can be used against the accused without any further corroboration. There is no basic difference between a confession or a retracted confession, if the element of truth is not missing. It is always a question of fact which is to be adjudged by the Courts on the attending circumstances of a particular case. In this case, we have come to the irresistible conclusion that the confessional statement of the accused is true and voluntary and conviction could be recorded on such statement." So far the evidence on the point of release of abducted persons on payment of ransom, the complainant Qamaruddin in his deposition (Exh.4) has deposed that he gave Rs.1,13,000 and one wrist watch for the release of P.Ws. Imamuddin and Gul Sher after a period of fifteen days of demand and after two days of payment of ransom amount P.Ws. Imamuddin and Gul Sher returned to the house. The testimony of P.W. Qamaruddin could not be challenged in the cross about having paid ransom amount for the release of said abducted P.Ws. viz Imamuddin and Gul Sher. P.W.2 Meenhon has also stated about the demand of Rupees five lac through a chit as ransom amount by the appellant and other co-accused. P.W.3 Imamuddin has corroborated the complainant Qamaruddin has informed him that he gave Rupees one lac cash and one Rado watch as ransom amount and then against said cash of Rs.1,20,

000. The discrepancy in the ransom amount would not effect the merits of prosecution case as the abducted persons viz Imamuddin and Gul Sher have deposed that after payment of ransom amount they were released and were left near their village. P.W.4 Gul Sher the abducted person has also corroborated that complainant Qamaruddin had told him that he had paid an amount of Rs.1,20.000 and one Rado watch for their release. The testimony of the above two P.Ws. could not be shaken in the cross-examination by the appellant/accused and their testimony on the point of release of P.Ws. Imamuddin and Gul Sher on payment of ransom amount has been proved beyond reasonable doubt. The prosecution witnesses are independent and have fully supported version given in the F.I.R. and their version is corroborated by confession of the appellant and Investigating Officer as well. The evidence of abducted persons F viz Imamuddin and Gul Sher on the point of abduction and on the point of payment of ransom money is consistent and is free from doubt considering that they have no enmity nor any motive to falsely implicate the appellant/accused. Minor contradictions and discrepancies cannot falsify the entire evidence which otherwise is confidence inspiring. Reference may be made to Muhammad Ismail Jamali v. The State (1994 PCr.LJ 607). Non-examination of P.W. Malook Rind would in the circumstances of the present case would not be fatal to the prosecution case considering that on the said point about the payment of ransom other P. Ws. have been examined who have supported the prosecution case. It will not be out of place to state here that such offences of abduction are committed by organized gangs, the member of public are scared of appearing as witnesses against them, keeping in view the above facts and that there being sufficient reliable evidence on record to prove the prosecution case against the appellant/accused the non-examination of Malook Rind in the case of prosecution would not effect or vitiate the trial. Reference may be made to the State v. Farman Hussain (PLD 1995 SC 1 at p. 26). On assessment of entire evidence we do not find merit and substance in this appeal and no exception could be taken to the finding of conviction and sentence of appellant by the trial Court hence the appeal is dismissed. Announced today in open Court H.B.T./S-151/K Appeal dismissed