2018 PLP 267 (YLRN)

KHADIM HUSSAIN TUNIO, J.

Through captioned appeals, appellants challenged the judgment dated 11.10.2008 passed by learned Judge Anti-Terrorism Court-III, Karachi in Special Case No. 16/2007 whereby learned Judge has convicted the appellants under section 7(e) of Anti-Terrorism Act, 1997 for offence under section 365-A, P.P.C. and sentenced to suffer imprisonment for life and for life and forfeiture of property to the extent of one lac each and under section 7-A of Anti-Terrorism Act for committing Qatl and sentenced to suffer imprisonment for life for offence punishable under sections 302, 34, P.P.C. and fine of Rs.100,000 each in case of default imprisonment for one year. Both the sentences were ordered to. run concurrently. Appellants were extended benefit of section 382-B, Cr.P.C.

2. Brief facts of the prosecution case as unfolded by the complainant Rizwan in FIR are that he runs business of internet caf at Block-7, Federal B Area, Karachi. On 11.03.2007 Sikandar came to his internet cafe at about 6.45 p.m. in a car Alto VXR silver color, number of the same not known in which three persons were present with whom Sikandar talked and went away in the car and did not return. Sikandar was searched for, but due to failure report was lodged with police of Police Station, Jauharabad regarding missing of Sikandar. He has also stated that on the same night a phone call was received at house of his in-laws on PTCL No. 6338552 from mobile Nos.0345 2621524 and 0307 2311043 of some unknown persons disclosing that Sikandar is in their custody, who demanded Rs.10,00,000/= as ransom for release of Sikandar, threatened and asked that they will contact on phone on next morning but he did not receive any phone call. He further disclosed that he had contacted CPLC and Agha Khan Council and lodged report against unknown persons vide Entry No. 29 dated 11.03.2017. On the basis of such report of FIR was registered by the police at Police Station Jauharabad.

3. During investigation 161, Cr.P.C. statements of PWs were recorded. I.O. collected report calls made from the mobile phones. He was informed that ransom amount was settled to Rs.145,000/- between the parties. Appellants were arrested on 15.03.2007. During investigation appellants Faiq Ahmed and Muhammad Waqas alias Wiki were arrested. After usual investigation challan was submitted against accused before learned Administrative Judge of this Court, which was sent to the learned trial Court for disposal according to law.

4. In order to substantiate to its case, prosecution has examined PW-1 Dr. Jugdesh Kumar MLO, JPMC at Ex. 7, who produced letter for conducting postmortem of deceased Sikandar as Ex. 7/A, Memorandum of Postmortem examination dated 16.3.2007 as 7/B, Medical Certificate of cause of death as Ex. 7/C, Supplementary Postmortem Report and final cause of death of deceased Sikandar as Ex. 7/D, Report from Chemical Examiner as Ex. 7/E, PW-2 Rizwan Complainant at Ex. 8, who produced Roznamcha Entry No. 29, dated 11.03.2017 as Ex. 8/A, Copy of FIR No. 36/2017 of Police Station Jauharabad as Ex. 8/B, Memo. of Inspection of place from where Sikandar was abducted as Ex. 8/C. Memo. of Identification of recovered vehicle and one audio cassette as Ex. 8/D; PW-3 Mst. Sahrish Rizwan at Ex. 9; PW-4 Abdul at Ex. 10, who produced Memo of Arrest of accused and recovery as Ex. 10/A, Authority Letter of KKF Car Deal and Rent-a-Car at Ex. 10/B, Memo of Recovery of dead-body from ganda nala on the pointation of accused as Ex. 10/C, Inquest Report at Ex.10/D; PW-5 Muhammad Hanif at Ex. 11, who produced Memo of Place of Captivity of abductee and murder at Ex. 11/A, copy of CNIC of Muhammad Hanif as Ex. 11/B, Tenancy Agreement between Muhammad Hanif and accused Faiq Ahmed as Ex. 11/C Copy of CNIC of Muhammad Ali Chauhan as Ex. 11/D and copy of CNIC of Faiq Ahmed as Ex. 11/E; PW-6 Muhammad Irfan at Ex. 12; PW-7 Kashif Meraj at Ex. 13, who produced duplicate copy of Ex. 10/B, Receipt of Rent a car as Ex. 13/A; PW-8 SIP Bashir Ahmed of AVCC at Ex. 14, who produced Memo. of Production of receipt book as Ex. 14/A, Memo of securing of mobile phone call prints from AVCC as Ex. 14/B, Call print of mobile No. 0345 2621524 at Ex. 14/C; Call print of mobile No. 0307 2311043 at Ex. 14/D; PW-9 SHO Naimat Khan at Ex. 15; PW-10 Ahmed Chinoy (Assistant Chief of CPLC) at Ex. 16; PW-11 SIP Chaudhry Manzoor Ahmed at Ex.

17. Thereafter prosecution side was closed at Ex. 19.

5. The statements of accused were recorded under section 342, Cr.P.C. at Exs. 20 and 21 respectively. Appellants/ accused Faiq Ahmed and Muhammad Waqas alias Wiki have denied prosecution allegations and stated that they are innocent. They have not committed the alleged offence. The police has manipulated false case against them.

6. Learned Judge, Anti-Terrorism Court-III, Karachi, after hearing learned counsel for the parties and assessment of the evidence, convicted the appellants/ accused and sentenced them as above.

7. The appellants/accused being dissatisfied with the impugned judgment of the learned trial Court filed the aforesaid criminal appeals before this Court.

8. Learned counsel for the appellants has contended that names of the appellants did not transpire in the FIR; that the description marks of identification of the appellants are not disclosed in the FIR; that there is no ocular evidence against the appellant regarding kidnapping of deceased Sikandar; that the place wherefrom dead-body of deceased Sikandar was recovered, which was not in exclusive possession of the appellants; that the recovered mobile SIM numbers are not in the name of appellants; that the complainant has disclosed in the FIR that three persons came in blue color ALTO VXR car at his cafe, called his brother in law Sikandar, who went to their side and sit in the car and went away along with them; that the complainant and PW Mst. Sahrish disclosed color of car as Golden in their depositions; that the owner of the car has not been examined by the investigating officer during investigation; that there are material contradictions in the evidence of prosecution witnesses; that the police did not call any person from that vicinity at the time of inspection of place where deceased Sikandar has been detained by the appellants after kidnapping him from the internet caf of complainant, that the key of the house of appellant Faiq Ahmed was brought by landlord of the premises PW-Muhammad Hanif; that PW-10 Chaudhry Muhammad Ashraf has admitted the suggestion put forth by the learned defence counsel during his cross-examination. That the learned trial court did not consider material discrepancies appear in the evidence; that this is case of misreading and non-reading of evidence.

9. Conversely, learned D.P.G. has argued that there is sufficient material come on the record to connect the appellants with the offence with which they were charged; that the prosecution has proved its case against the appellants beyond shadow of doubt. That the prosecution evidence is inspire confidence and sufficient for maintaining the conviction awarded by the trial Court to the appellants; that there are some minor contradictions in evidence of P.Ws. which may be ignored while deciding appeals. However, learned counsel for complainant has also argued in the same line as argued by the learned D.P.G. and supported the impugned judgment.

10. Learned counsel for the appellants did not dispute unnatural death of deceased Sikandar. We, therefore, hold that the deceased Sikandar died in unnatural death as described by the Medical Officer.

11. We have carefully heard the learned counsel for the appellant learned D.P.G and learned counsel for complainant and have perused the evidence minutely.

12. The charge against the appellants is strengthened from the arrest of appellants while receiving the ransom amount for release of deceased Sikandar recovery of dead body from Ganda Nala on their pointation, recovery of mobile SIM numbers on which appellants called the PTCL number of house of deceased Sikandar for ransom amount, CDR report of cell numbers and PTCL number, documents regarding Rent-A-Car in the name of appellant Faiq Ahmed and inspection of house possessed by appellant Faiq Ahmed where deceased Sikandar was confined after being kidnapped. Thus it is quite safe to say that such pieces of evidence, i.e. medical and circumstantial evidence are the links of a broken chain therefore we are of the view that the learned trial Court has not committed any illegality in the impugned judgment.

13. The complainant is the real brother-in-law of deceased, while other witnesses are close relatives to deceased hence this takes away chances of substitution of murderer of deceased with any innocent person, more particularly, when defence brought nothing reasonable on record which could justify that these witnesses had such a motive on account of enmity or any other consideration which made them to substitute an innocent person as the murderer of their blood relation. It is settled principle of law that there is no rule having universal applicability that evidence of a related witness or an interested witness must be corroborated by ignoring the surrounding circumstances by means of some independent evidence and statements of such witness can be relied if found worthy of credence and confidence inspiring. Reference can be made from the case of Khizar Hayat v. The State (2011 SCMR 429) and case of Hasil Khan v. The State (2012 SCMR 1937). Furthermore, in the instant case the defence could not bring on record anything which could justify that these witnesses of enmity or other consideration. All the witnesses of ocular account have also during course of their examination in trial Court, thus, defence counsel is not legally justified to claim any benefits from status of witnesses being related.

14. We are not convinced with the submissions of learned counsel for the appellants that the witnesses do not support each other in respect of the color of the car hence their version should not be believed. It is also pertinent to mention that such contradictions cannot be said to be fatal to the prosecution case; it is worth to add here that term "contradiction" used in criminal administration of justice, means "those conflicts in the evidence of the witnesses which touching and distributing the root of the charge"; because minor contradictions are bound to creep by lapse of time. Further the appellants accused neither alleged nor proved any enmity or ill-will with the complainant party or with police. They have not taken any specific plea in their defence but stated in their statements that they have falsely been implicated in instant crime and pleaded their innocence.

15. For what has been discussed above, we are of the considered view that impugned judgment is based upon valid and sound reasons and neither is there misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, Criminal ATAs. Nos. 25 and 26 of 2008 are without merits and same are dismissed. JK/F-12/Sindh Appeals dismisse