2009 PLP 1486 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts giving rise to the present appeal are that on 25-10-2004 at 2-00 p.m. P.W. complainant Naimatullah returned from his duty where his wife informed him that their minor son Faizan was missing from the house, therefore, the complainant started searching for the boy and such announcement was got made from mosque. At about 11-00 p.m. he went to the Police Station and lodged report of missing of his son. On 27-10-2004 he received a telephone call from a person, who demanded Rs.200,000 for the return of the boy. The complainant informed him that he was a poor person and could not arrange the same. On 28-10-2004 the appellant Jamil called the complainant to his house. He along with his wife went to him who showed him some burn marks on his body and told him that he had seen their boy and the kidnappers were demanding money for the release of the boy, therefore, the money should be paid to him so that the boy could be recovered. The complainant informed the said facts to the police. Under the direction of the police he arranged the amount on 3-11-2004 he went to the house of appellant Jamil along with Rs.5000 a pair of ear-rings and delivered the same to him. The matter was reported to the police. The surveillance was made on the appellant Jamil who left the house. The police, complainant, Mazhar and Muzaffar also followed them. The appellant Jamil went to different areas then went to a house in Shaibabad Goth. The Police surrounded the house: After half an hour the appellant Jamil brought the child from there. The police arrested him and recovered the ransom amount of Rs.5000 and ear-rings. Thereafter the police raided the house and arrested the appellant Shamshad Ali and his wife Mst. Khairunnisa. They were relatives of the appellant Jamil. Thereafter the police brought them at the Police Station. After usual investigation the appellants were challaned in the Court whereas Mst. Khairunnisa was released by the police.

2. After the trial the learned Judge convicted the appellants for offence punish-able under section 7(e) of Anti Terrorism Act, 1997 read with section 365-A, P.P.C., sentenced each of them to suffer imprisonment for life and forfeiture of properties to the extent of Rs.100,000 under the impugned judgment, dated 4-6-2005.

3. We have heard Advocate for the appellants, A.A.-G. for the State and perused the record of this case very carefully.

4. The learned advocate for the appellants has stated that the prosecution has led no evidence to connect the appellant Shamshad Ali; that his case is similar to that of his wife Mst. Khairunnisa; that the child was not secured from the possession of the appellant Shamshad Ali; and that the appellant had no knowledge about the abduction of the child. As regards the appellant Jamil Sharif, he has stated that there is a defect in the charge as role of the appellant was not given in it, therefore, the case may be remanded to the trial Court. As regards the merits of the case he did not seriously challenge the evidence.

5. The learned A.A.-G. has stated that there is no evidence to connect the appellant Shamshad Ali with the commission of crime except the child was brought out from the house; that his case is similar to that of Mst. Khairunnisa, who has been released by the police; and that there is no evidence to show that the appellant Shamshad had knowledge about the abduction, as such, he has not supported the case against him. As regards the appellant Jamil Sharif, he has stated that the prosecution has led the ocular testimony of P.Ws. 2, 3 and 4; that the child was recovered from his possession; and that the ransom money and ornaments were also secured from his possession, as such, his involvement has been proved in the case.

6. We have given due consideration to the arguments, gone through the evidence with the assistance of the learned advocate for appellants and found that the case rests upon the above mentioned three pieces of evidence. The allegation against Jamil is of receipt of ransom amount, ear rings and then recovery of the child from his possession. As regards the abduction is concerned, the said fact has been established from the evidence of complainant. His evidence further reveals that the appellant Jamil contacted the complainant and demanded the ranson amount for the recovery of the child which was to be paid to the culprits. The complainant narrated the said facts to the police. Under their direction he gave Rs.5000 and ear-rings to the appellant Jamil who left the house and went to some places. Ultimately he reached the house in Saro Baba Goth. After about half an hour he brought the child. The police raided him and secured the child, ransom amount and ear-rings from his possession. The statement of complainant is fully supported and corroborated by P.W. Muhammad Muzaffar Shaikh who was with the complainant when the accused left his house to the house from where the child was brought. The evidence of complainant is further supported by P.W.3 A.S.-I. Tariq Mahmood who categorically stated that they followed the appellant Jamil who first went to some places and then went to the house from where he brought the child and he was apprehended. The child was secured from his possession. Ransom amount and ear-rings were also secured from him. His statement is corroborated by PC Muhammad Ashfaq who was in the raiding party. The learned advocate for the appellant has not challenged the oral evidence seriously. From the evidence the prosecution has proved the case against the appellant Jamil. From the evidence it has been established that the appellant Jamil had accepted the ransom amount and ear-rings. The child was secured from his possession and the ransom amount and ear-rings were also secured from him. This evidence is sufficient to connect the appellant Jamil with the commission of crime. Thus, the prosecution has proved the case against him.

7. As regards the defect in the charge, it is not necessary that each and every detail should be mentioned in the charge. The case proceeded in which the entire evidence and all the material pieces of evidence including the role played by the appellant Jamil was mentioned. The appellant heard the evidence and cross-examined the witnesses thoroughly. The statement under section 342, Cr.P.C. was also recorded where he explained his position, as such; during trial the appellant not prejudiced in his defence. As such, the error, if any, in the charge has not prejudiced the appellant in his defence. Furthermore, the errors can be cured under sections 225, 535 and 537, Cr.P.C. As such, the arguments of the learned advocate for the appellant are not sound.

8. As regards the case of Shamshad Ali, the allegation against him is of mere presence in the house from where the appellant Jarnil brought the child. In the house his wife Mst. Khairunnsia was also present who was also arrested along with the appellant Shamshad Ali. She was released by the police. The case of appellant Shamshad Ali is similar to that of his wife. Apart from the above evidence no other piece of evidence was collected by the Investigating Officer, as such, the rule of consistency demands that he should be given same treatment as that of his wife Mst. Khairunnisa. The learned A.A.-G. has also not supported the case against him. Thus, the case of the prosecution against the appellant Shamshad Ali has not been proved beyond any reasonable doubt.

9. Above are the reasons of our short order, dated 16-4-2007 by which we had dismissed the appeal in respect of appellant Jamil Sharif whereas allowed the appeal in respect of appellant Shamshad Ali. H.B.T./M-89/K Order accordingly.