2018 PLP 2512 (YLR)

AFTAB AHMED GORAR, J.

Appellant Juma Khan son of Abdul Khalique assailed impugned judgment dated on 05-11-2016 delivered by the learned Judge Anti-Terrorism Court No.III, Karachi in Special Case No. 162 of 2011, bearing FIR No. 235 of 2011, Police Station Bin Qasim Town Karachi, registered under Sections 365-A and 34 Pakistan Penal Code; whereby appellant was found committing an offence fallen under Section 7(i) (e) Anti-Terrorism Act. 1997 read with Section 365-A Pakistan Penal Code, and convicted appellant under Section 365-H(2), Cr.P.C. and sentenced appellant to undergo life imprisonment with rigorous imprisonment; benefit of Section 382-b, Cr.P.C. was also extended in favour of the appellant.

2. Summarized facts as stated are that appellant together with co-accused on the eventful day hired Car maker Toyota Corolla Model 2011, XLI AVZ-661 kidnapped complainant along with Car thereby after receiving ransom amount of Rs.800,000/- released complainant along with his Car at main road Osta Mohammad Balochistan.

3. A formal charge was framed, thereafter trial Court examined in all six witnesses and has recorded statement of accused as is envisaged under Section 342(1), Cr.P.C.; after report of accused Muhammad Ali thereafter fresh charge framed.

4. Prosecution examined PW-1 Abdullah [complainant] at Ex.36, PW-2 Rahim Bux at Ex.37, PW-3 SIP Wazir Ali at Ex.38, PW-4 PC Syed Tariq Shah at Ex.39, PW-5 SIP Zakir Hussain at Ex.40 and PW-6 Inspector Muhammad Babar at Ex.45.

5. Statement of accused was recorded as is provided under Section 342, Cr.P.C. to which accused pleaded his innocent and denied the allegations with certain pleas and choice to examined himself on oath as provided under Section 340(2), Cr.P.C., but accused did not choice to examined defence witnesses in disprove of the charge.

6. Learned counsel for the appellant contended that learned Court below did not appreciated the facts and law, involved in the case; per learned counsel confession was not recorded in accordance with law; per learned counsel there is eleven days delay in recording confessional statement; per learned counsel incident as alleged had taken place on 19-09-2011 whereas FIR was lodged on 23-10-2011 there is thirty four days delay in lodgment of the FIR which is not plausibly explained; per learned counsel there are series of contradictions in the statement of prosecution witnesses; per learned counsel there is no evidence on record regarding release of complainant at Osta Muhammad Balochistan; per learned counsel there is no evidence of any ransom as alleged received by appellant; per learned counsel there are no independent eye-witnesses of the incident as alleged; per learned counsel, the instant Special Criminal Anti-Terrorism Appeal may be allowed and appellant may be acquitted.

7. Learned Additional Prosecutor General supported the impugned judgment; per learned Addl.P.G learned trial Court has rightly convicted and sentence the appellant; per learned Addl.P.G there is sufficient evidence against the appellant which prima facie connect the appellant with the commission of offence; per learned Addl.P.G the sentence and conviction as is awarded to the appellant do not warrant any interference by this Court and same may be up held.

8. Heard and record perused.

9. It is now by settled provisions of criminal law that this Court has to reappraise the entire evidence for safe administration of justice. The prime witness of the prosecution Abdullah [Complainant] who admitted in the cross-examination as follows:-- "It is correct to suggest that owners of the said Cars / Taxi were not known to me. It is correct to suggest that Juma Khan was not with the said culprits at that time. It is correct to suggest that I had not reported the incident to nearby police station of Osta Mohammad. Instantly after release from the captivity of the culprits I went to my native village Warah, District Qamber-Shahdadkot. My nephew Kahim Bux informed me that at by pass road of Osta Mohammad he had paid ransom amount to Wali Mohammad alias Waloo on the night between 9th and 10th October, 2011: It is correct to suggest that neither my family members nor my nephew reported the incident of my kidnapping or missing at Police Station. My further statement was not recorded at Police Station by the duty officer. Voluntarily says my statement was subsequently recorded by Inspector Babar of AVCC" PW-4 Rahim Bux at Ex.27 deposed in the examination-in-chief as follows:-- "After four days I received cell phone call from a person the cell phone number of my uncle Abdullah, who informed me that since my uncle Abdullah has been abducted by him and he demanded ransom amount Rs.40,00,000/=, however after negotiation the amount of ransom was settled Rs.8,00,000/= I took cash of Rs.8,00,000/= from my village and proceeded to Osta Mohammad, Balochistan. Accused Juma Khan present in the Court is same, so also case property. The accused Muhammad Nawaz since was hot identified by my uncle, therefore he was released by police, whereas, present accused was identified by my uncle. In the FIR complainant did not nominated present appellant, PW-4 has identified appellant Juma Khan in Court. PW-6 Inspector Muhammad Babar at Ex.29 deposed in the examinationin-chief as follows:-- "During interrogation accused Juma Khan disclosed the names of his accomplices as Wali Mohammad alias Walu Jamali, Haji Ahmed Ali Gopang, Ali Ahmed, Rasheed, Azeem, Gulab, Muhammad Ali and Sultan. Accused Juma Khan also disclosed during interrogation that accused Muhammad Nawaz is not involved in the commission of offence. Complainant Abdullah in his further statement exonerated accused Nawaz from the commission of offence. On, 05.11.2011 I submitted report under section 497(II), Cr.P.C., of accused Mohammad Nawaz before Administrative Judge, Anti Terrorism Courts, Hon'ble High Court of Sindh, Karachi which was accepted accordingly and accused Mohammad Nawaz was released. In the cross-examination, this witness admitted as follows:-- "It is correct to suggest that no entry regarding registration of FIR was delivered to me by PS Bin Qasim prior to 23.10.2011"

10. We have scrutinized the entire evidence on record, it has been surfaced that accused Muhammad Nawaz have been let off by the police being exonerated and not implicated by the present appellant in the confessional statement. Thereafter on the second day, the further statement of complainant was got recorded by the Investigation Officer on the basis of confessional statement of co-accused let off by the Investigation Officer and his name was kept in column No.II of the charge sheet. There is no eye-witness/star witness of the alleged kidnapping except complainant therefore the testimony of complainant itself requires independent corroboration as is required under the Law. With regard to the alleged demand of ransom from brother in law of the complainant even no eye-witness has been cited for the alleged paid of ransom amount to the accused persons. It has also come on evidence that appellant is neither present nor involved in the abduction / kidnapping of the complainant nor receiving of ransom amount even appellant was also not present at the time of abduction/receiving ransom amount. In this perspective, Investigation Officer had deposed that [PW-6] Inspector Muhammad Babar at Ex.29, deposed that "On 05.11.2011 I submitted report under section 497(II), Cr.P.C. of accused Mohammad Nawaz before Administrative Judge, Anti Terrorism Courts, Hon'ble High Court of Sindh, Karachi which was accepted accordingly and accused Mohammad Nawaz was released. With regard to the evidence of complainant PW-Abdullah [Complainant] who deposed in the cross-examination "It is correct to suggest that owners of the said Cars / Taxi were not known to me. It is correct to suggest that Juma Khan was not with the said culprits at that time. Thus when Taxi was hired on fare as alleged by the present appellant although present appellant was no available at the scenario. The ransom as alleged had been demanded and paid via cellular but there is nothing on record with regard to the Cell Data Record available with the prosecution which would suffice totality of things, in absentia of such kind of evidence creates reasonable doubts while applying judicious mind. We have been fortified with the case law reported in 2016 SCMR 274 in the case of Azeem Khan and another v. Mujahid Khan and others it has been held as follows:-- "

Ss.365-A & 302(b)

Anti-Terrorism Act (XXVII of 1997), S.7(e)

Kidnapping for ransom, qatl-i-amd

Reappraisal of evidence

Benefit of doubt

Un-witnessed crime--Lack of corroborative evidence

Voice data of phone calls not presented-- Recovery memo witnesses 'interested witnesses'

Crime in question, was an un-witnessed incident and based only on circumstantial evidence and recovery of incriminating articles

Important links in the chain of story set up by the prosecution were missing due to lack of corroborative evidence

No voice record transcript of calls had been brought on record to prove the ransom demand

Area from which the call for proof that the cell phone from which ransom demand was made was missing

Attesting witnesses of recovery memo were related to the deceased and thus were highly interested witnesses

Number of bones, allegedly belonging to deceased, which were recovered on pointation of accused persons did not match with the number of bones sent for analysis to the Forensic Science Laboratory

Trial Court had relied on highly cryptic and infirm evidence to award death sentence to accused persons

Supreme Court set aside convictions and death sentences awarded to accused persons and acquitted them of the charge. [The underline is ours]

11. Apart from above after bare perusal of entire evidences on record it has been surfaced that the alleged hiring of Taxi on fare was Taxi Stand at Malir normally other Taxi drivers and the public would be roaming there but no private person has been cited to act as a witness, thus there is clear violation of mandatory provisions of Section 103, Cr.P.C. which read as follows:-- The pre-requisite of mandatory provisions of Section 103, Cr.P.C. entails as follows:--

103. Search to be made in presence of witness.

(1) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do. (2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such office or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (3) Occupant of place searched may attend. The occupant of the place searched, or some person in his behalf, shall, in every instance be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witness, shall be delivered to such occupant or person at his request. (4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request. (5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code. It has been held in 2000 SCMR 683 in the case of Tayyab Hussain Shah v. The State, as follows:

S.103

Penal Code (XLV of 1860), S. 302/34

Search in presence of witnesses

Mandatory, requirement

Requirement of making two members of the public of the locality as Mashirs to the recovery is mandatory unless was shown by the prosecution that was not possible in the circumstances of the case to have two Mashirs from the public.

12. As regards to the ransom amount / abduction is concerned, same was as allegedly had been paid taken place at Osta Muhammad Balochistan, the FIR must be lodged at Osta Mohammad Balochistan, apart from above, the alleged incident had been taken place on 09-09-2011 and FIR was lodged on 23-10-2011, complainant choice not to report matter to the Police Station and went mum; from above aspect of the case it is clear that there is inordinate delay in lodgment of the FIR which is not plausibly explained. If there was ransom paid, the ATC Court at Osta Mohammad Balochistan is very much competent to try the case over there but there is no such explanation for lodgment of FIR at Osta Mohammad Balochistan. It would be appropriate to reproduce herein below the requisite requirement of Anti-Terrorism Act, 1997, which reads as follows:--

12. Jurisdiction of 12(Anti-Terrorism Court)

(1) Notwith-standing anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province 99[or the Islamabad Capital Territory] shall be triable only by 12(Anti-Terrorism Court) exercising territorial jurisdiction in relation to such area. (2) Notwithstanding anything contained in subsection (1), if, in respect of a case involving a scheduled offence committed in any area, the Government, having regard to the facts and circumstances of the case, is satisfied that in order to ensure a fair trial, or for the protection and safety of witnesses, that such offence should be tried by 12(Anti-Terrorism Court) established in relation to any other area, the Government may make a declaration to that effect.

12. Admittedly, after scrutinizing the cross-examination of complainant and looking to the entire evidence so as brought on record reflects that there are series of contradictions in the statement of prosecution witnesses which too casts reasonable doubts in the prudent. We have been fortified with the case law reported in 1993 SCMR 550 it has also been held as follows:-- "

Benefit of doubt

Accused is presumed to be innocent until prosecution proves case against him beyond shadow of reasonable doubt and if prosecution fails in its duty which never shifts to the defence accused is entitled to the benefit of doubt

[Benefit of doubt]"

13. As discussed supra, the conviction and sentence awarded to the appellant under the impugned judgment is set aside. Appeal is allowed. Appellant is directed to be released forthwith if not required in any other case. Resultantly appeal is allowed. These are the reasons of short order dated 09-4-2018. HBT/J-5/Sindh Appeal allowed.