1994 P Cr (PLP)

MUHAMMAD ASLAM ARAIN, J.

Appellants Muhammad Ismail Jamali, Zakir Khan, Mureed Abbas, Fazalur Rehman, Pervez Akhtar Zaidi, Muhammad Arif, Ghazanfar Abbas and absconding accused Muhammad Sabir were tried by the Special Court (S.T.A.), Karachi on charge under section 365-A/34 of P.P.C. for having abducted Muhammad Afaq son of Muhammad Mustafa on 30-10-1990 for ransom. On conclusion of trial, appellants were found guilty of the said offence and each of them is convicted and sentenced to imprisonment for life and fine of Rs.50,000 each and in default of payment of fine, to further undergo R.I. for 3 years each. Separate appeals have been filed by the appellants but as they arise out of the same judgment, we propose to decide all appeals by a single judgment.

2. Briefly stated the facts of the case are that on 30-10-1990 at 15-15 hours, Muhammad Mustafa lodged F.I.R. No.488/90 at Gulberg Police Station Karachi which was registered under section 364/34 of P.P.C. He stated that he was previously dealing in foam business, which business he closed in 1987. On 30-10-1990, he alongwith his adopted son Muhammad Afaq aged about 16 years, returned to his house in Block-5, Federal "B". Area, Karachi, from Usmanabad in a car after meeting his relatives. The time of arrival is shown as 3-00 p.m. Complainant further stated that after parking his car in the porch he went to his room while his son Muhammad Afaq went on the roof of the bungalow. In the meanwhile, the call bell rang and in response Afaq went and opened the gate of the bungalow. Complainant saw from his bedroom a gray colour car parked near outer gate and three boys standing outside near the car while the fourth one kept sitting in the car. One of-the three boys standing near the gate armed with revolver or a pistol, shook hands with Afaq. Complainant also saw that the boy who shooked hand with Afaq dragged him inside the car and the other two standing near the gate also sat in the car and drove away. It was also stated that Muhammad Afaq was lame by left leg because of polio. As would be obvious, the F.I.R. regarding kidnapping of Muhammad Afaq, was against four unknown accused persons. Complainant rushed outside the bungalow where Nauroze Khan, Chowkidar of nearby bungalow also confirmed to have seen the incident. After unsuccessful search by complainant and his relations for some time, above F.I.R. was registered. The investigation of the case was taken up immediately and Wardat was inspected by police. Between 5 and 6 p.m. on the same day, complainant received a call on his Telephone No.684447 from someone calling himself as Haji Jumma Khan and telling complainant that abductee Afaq was safe with him and demanded Rs.5 crores as ransom for his release and further telling complainant that he would again telephone after 4 days: Complainant passed on this information to S.H.O. Gulberg personally at 10-00 p.m. Appellant Muhammad Arif, a distant nephew of complainant came to complainant's house to little while after the telephone from the caller Haji Jumma Khan, and complainant narrated all facts to him. Arif suggested to complainant to accompany him to appellant Perwez Akhtar Zaidi who had contacts with Sindhis, Mohajirs, Punjabis and Pathans and he could help in securing the abductee. Complainant alongwith Arif and his nephew P.W. Yaqoob went to house of Perwaz Akhtar Zaidi in Block-4, Gulshan-e-Iqbal, Arif gave the call bell on which Perwez Zaidi came out. Arif and Perwez Akhtar talked amongst themselves and then took complainant and P.W. Yaqoob to the drawing room where complainant narrated the facts about the abduction of his son. Perwez Akhtar Zaidi was sympathetic and offered full help and further asked complainant to contact him next day as he would do something in between. While returning from the house of Perwez Zaidi, complainant and P.W. Yaqoob went to police station to inform about their meeting with Perwez Zaidi while Arif remained sitting in the car outside. At that time further statement of complainant was recorded.

3. At about 1-00 or 2-00 a.m. complainant alongwith P.Ws. Abdul Raheem and Hamid went to police station again to enquire about the progress, when they were told that spy information was received that abductee Afaq was confined in House No.L-194, Block 2, P.E.C.H.S., Karachi, alongwith the abductors. Complainant, his brother Abdul Rasheed and Hamid went with police to the above house when police knocked the door and appellant Muhammad Ismail Jamali came out. He was caught hold of by police when in the meanwhile appellant Mureed Abbas also came out and he too was secured. Ismail Jamali and Mureed Abbas were not known to complainant before the incident. Their search was taken which yielded recovery of a TT pistol loaded with five cartridges from appellant Ismail Jamali, and a TT pistol with four live cartridges from Mureed Abbas, which were concealed in the folds of their Shalwars. Mashirnama of arrest and recovery Exh.18 was prepared. On interrogation, appellant Ismail Jamali disclosed that Perwez Akhtar Zaidi had abducted Afaq and the abductee is with him. He also disclosed that Perwez Akhtar had telephoned from his (Muhammad Ismail Jamali's) house, had demanded Rs.5 crore as ransom and given his phoney name as Haji Jumma Khan. On the pointing of accused Ismail Jamali, the police reached the house of Perwez Akhtar when complainant noticed that it was the same house where he and Yaqoob were earlier taken by appellant Arif. It was 4-00 a.m. when the police reached at the house of Pervez Akhtar Zaidi and rang the call bell. Perwez Akhtar Zaidi came out of the house when Ismail Jamali pointed out that he was the same person. The police interrogated Pervez Akhtar Zaidi who admitted that abductee Afaq was with him and was confined in a Murghi Khana situated near Jafar Tayar Colony, Malir, Karachi. Pervez Akhtar Zaidi was arrested in presence of complainant and his brother Abdul Raheem under Mashirnama Exh.9. The police alongwith the complainant, his brother and arrested accused Ismail Jamali, Mureed Abbas and Perwez Akhtar went to the Murghikhana at the pointing of Perwez Akhtar Zaidi. While going towards the said place, police associated P.W. Muhammad Murtaza, an inhabitant of the locality, to act as Mashir. The door of Murghikhana was knocked when someone .from inside asked as to who was knocking the door. Appellant Perwez Akhtar Zaidi disclosed his name and asked the person inside, namely, Ghazanfar Abbas to open the door. On the door being opened, the police entered the room and overpowered Ghazanfar and asked where the abductee Afaq was. Ghazanfar pointed out to the room which was chained from outside and Perwez Akhtar Zaidi opened the door. When the police entered in the said room, the abductee Afaq was found lying on the cot and was covered with a Chaadar and appellant Zakir was found sitting by his side. On the search of Gazanfar Abbas, one mouzer loaded with 10 bullets was recovered from him, while a TT pistol loaded with 5 cartridges was recovered from appellant Zakir. A Chowkidar by name Idrees was also there and he told the police that appellant Pervez Akhtar had brought Afaq to Murghikhana and had asked to take care of Afaq who was their guest. Chowkidar Idrees further disclosed that the abductee Afaq was brought by Pervez Akhtar Zaidi, Zakir Khan, Sabir and two others at 3-30 p.m. on the preceding day. While police party alongwith the arrested accused were returning appellant Perwez Akhtar also disclosed that Fazalur Rehman who resided near Jail Road in Government Quarters, was also involved in the abduction of Afaq, and agreed to point out the house of Fazalur Rehman. Muhammad Yousuf and Muhammad Shari were associated as Mashirs, and at the pointing of Pervez Akhtar, the police went to the house of Fazalur Rehman who was standing outside. Seeing Fazalur Rehman, abductee Afaq disclosed to police that he was the same person who had snatched his locket. After Fazalur Rehman's arrest, his search was taken and the locket of complainant's son which had inscription of word "A" on it was secured from him and so also a purse from the pocket of his pant. The photograph of Afaq, some visiting cards and cash amount of Rs.13 was recovered from the purse. Perwez Akhtar Zaidi disclosed to police. that the photo of abductee was given by accused Arif with instructions that he was to be abducted and also that the house of abductee was pointed out by accused Arif. The police party then reached complainant's house where appellant. Arif also came out from the house alongwith other inmates, when Perwez Akhtar Zaidi pointed out to Arif saying that he was the same person who had provided photograph of Afaq to them and had also said that because Afaq's father was going to America, the ransom for release ofAfaq could be obtained from him. Arif was also arrested.

4. On 3-11-1990 appellant Perwez Akhtar Zaidi voluntarily agreed to produce the clothes of abductee Afaq which he was wearing at the time of abduction. Appellant Perwez Akhtar led the police party to his house in a room and from the washable clothes lying, took out grey pant and a Dharidar shirt of Afaq. The shoes which Afaq was wearing when he was abducted were also secured. A Mashirnama Exh.20 under which these articles were secured was prepared. Appellant Ismail Jamali volunteered and led the- police to his house and produced a watch and a handkerchief from his house which he had snatched from abductee. These articles were lying in the drawer of a table and were secured under Mashirnama Exh.21. Abductee Afaq also told his father that Fazalur Rehman was visiting Murghikhana at different times and had removed the locket. After usual investigation challan was submitted in the Court of Special Judge (S.T.A.) Karachi where charge Exh.4 was read out to appellants who pleaded not guilty to it, and claimed to be tried.

5. At the trial, prosecution examined P.W.1 Muhammad Murtaza Exh.5 who produced Mashirnama Exh.6. P.W.2 Muhammad Shafi Exh.7, and he produced Mashirnama Exh.8, P.W.3 Muhammad Yaqoob Exh.10 who produced Mashirnama Exh.11, P.W.4 Muhammad Jamil A.S.I. Exh.12, P.W.5 Ahmad Shah, A.S.I./Duty Officer who had registered. F.I.R., Exh.15, P.W.6 Muhammad Mustafa (complainant) Exh.17 who produced Mashirnamas Exhs. Nos.18, 19, 20, 21, P.W.7 Muhammad Afaq (abductee) Exh.22, P.W.8 Nauroz Khan (Chowkidar of the adjoining bungalow wherefrom Afaq was abducted) Exh.23, P.W.9 Ashfaq Ahmed Khan, Inspector/S.H.O. of Police Station Gulberg, Karachi Exh.25 who investigated the case and he produced copy of the F.I.R. No.146/90 under section 13-D of Arms Ordinance Exh.26, remand report Exh.27, Roznamcha entry No.73 dated 13-11-1990 Exh.28. Prosecution closed its side under statement Exh.29.

6. In their statements under section 342 of Cr.P.C. appellants denied allegations against them. In his statement appellant Muhammad Ismail Jamali denied to have pointed out the house of Perwez Akhtar Zaidi or that his telephone was used by Perwez Akhtar under the fake name of Haji Jumma Khan or had demanded ransom of Rs.5 crore. He also denied to have produced a "Zeenat" Watch and handkerchief of the abductee. He further stated that he was falsely implicated in the case and that he was merely a Chowkidar. He filed a detailed statement Exh.30/A showing his innocence. Appellant Mureed Abbas in his statement Exh.31 denied all allegations against him and pleaded innocence. He denied recovery of a TT pistol loaded with 4 live bullets from the folds of his Shalwar. Appellant Perwez Akhtar Zaidi in his statement Exh.32 denied all allegations against him. Appellant Ghazanfar Abbas in his statement Exh.34 having denied all allegations against him pleaded innocence and offered to examine defence witnesses Jafar Mehdi and Muhammad Islam. Appellant Zakir Khan in his statement Exh.36 denied allegations against him and filed further statement Exh36/A. Appellant Fazalur Rehman in his statement Exh.37 also denied all allegations. He stated that he would examine defence witnesses whose names were given by him in Exh.38. He also filed written statement Exh.39. He stated in his written statement that his brother Shoaib had invested a sum of Rs.30,000 with appellant Perwez Akhtar Zaidi who had later on returned Rs.20,000 but for the recovery of balance amount of Rs.10,000 when Perwez Akhtar Zaidi was put under pressure he was arrested from the house of Perwez Akhtar Zaidi by Gulberg Police. He produced a copy of agreement dated 23-4-1989, a newspaper cutting showing D.I.-G. Karachi Aftab Nabi addressing a Press conference regarding the abduction and recovery of Afaq. Appellant Muhammad Arif in his statement Exh.40 denied all allegations against him and further stated that because his mother was an outsider in the family, complainant has implicated him due to jealousy.

7. D.W.1 Muhammad Islam Exh.41 who was examined at the instance of accused Gazanfar Abbas stated that Gazanfar Abbas was his next door neighbour and on 31-10-1990 at 7-15 a.m. when he came out of his house for going to the office, he saw four police vans outside the house of Gazanfar Abbas who was taken away by police. D.W.2 Jafar Mehdi Exh.42 stated that he had seen Gazanfar being taken away by police on 31-10-1990. D.W.3 Aftab Nabi Exh.44 was D.I.-G. of Police Karachi on 31-10-1990 and he stated that on that date he had held a Press conference regarding performance of police and he produced newspaper daily "Jung" dated 1-11-1990 Exh.45. He also produced newspaper Daily "Dawn" dated 1-11-1990.

8. We have heard all the learned Advocates appearing on behalf of the appellants. It is contended by Mr. Azizullah K. Shaikh, learned Advocate for the appellant Perwez Akhtar Zaidi, that the presence of the appellant at the scene of offence when Afaq was allegedly abducted is not proved and, therefore, he could not have been roped in under section 34 of P.P.C., that the entire evidence in the case has come through highly interested witnesses, that all Mashirs in the case were procured by the complainant and thus there is violation of the provisions of section 103 of Cr.P.C., that the prosecution witnesses made improvements during trial, that the testimony of D.W.1 was discarded without cogent reasons, that the inculpatory evidence is accepted and exculpatory evidence is discarded by the trial Court which has rendered the judgment of the lower Court one sided, that the chain of occurrence is so made that one accused was arrested on the pointing of another which was in violation of Articles 38, 39 and 40 of the Oanun-e-Shahadat, 1984, that the D.I.-G. Police examined in Court was not put any question in rebuttal by the prosecution and lastly that the case was not free from doubt and appellant Perwez Akhtar Zaidi should have been given such benefit and acquitted. In support of all these contentions the learned Advocate has referred the following judgments:-- (a) Lal Dinneo and others v. The State 1991 P Cr. L J 2000, (b) Muhammad Sharif v. The State 1991 P Cr. L J 127, (c) Muhammad Mansha v. The State 1992 P Cr. L J 1271.

9. Mr. A.Q. Halepota, learned Advocate for appellants Muhammad Ismail Jamali and Zakir Hussain, has contended that there is no evidence of kidnapping against Muhammad Ismail Jamali, that the only evidence against him is that he allowed co-accused Perwez Akhtar Zaidi to use the telephone of his office, that the recovery evidence is of no avail to prosecution as recovery was made in presence of Mashirs who were not respectable inhabitants of the locality, that circumstantial evidence does not support ocular testimony of complainant, abductee and P.W. Nauroz, that scanty and improbable circumstantial evidence cannot be made basis of conviction and lastly that when Muhammad Ismail Jamali was arrested no recoveries were effected from him. As to the case of appellant Zakir Khan, it has been argued that evidence against him is that he was driving the car in which abductee Afaq was abducted, that he was present at Murghikhana when the raid was conducted by police in the early hours of the morning and a TT pistol loaded with live cartridges was recovered. It is also argued that appellant Zakir could not be convicted for the offence of abduction but he could at the most be said to have abetted the commission of the offence.

10. Mr. S.MA. Mahmood Advocate appearing for appellant Fazalur Rehman has contended that only evidence against this appellant is that he snatched a locket and purse of the abductee which was, subsequently, recovered from him at the pointing of co-accused Perwez Akhtar Zaidi and, therefore, on such evidence he could not have been convicted to the maximum sentence provided for offence under 365-A of P.P.C. He has also contended that the independent Mashirs of locality while the raid was conducted at the Murghikhana were not associated and there was violation of the mandatory provision of section 103 of Cr.P.C. In support of the last contention the learned Advocate has referred to the case of Yamin Kumhar and another v. The State P L D 1990 Kar. 275.

11. Mr. S. Hassan Imam Rizvi, learned Advocate for appellant Mureed Abbas has reiterated the same points which have been raised by the other counsel. Mr. Shahadat Awan, learned Advocate for appellant Muhammad Arif, has contended that only evidence against this appellant is that he had taken complainant to the house of co-accused Perwez Akhtar Zaidi and that he had provided the photograph of the abductee Afaq to co-accused saying that he was to be abducted. Mr. Hatif Khudal Ansari, learned Advocate for appellant Gazanfar Abbas, has contended that this appellant was the owner of Murghikhana and was present inside when the police party raided the said place and under the directions of Perwez Akhtar Zaidi, appellant Gazanfar had opened the door when the police party entered the Murghikhana.

12. Mr. Muhammad Zubair Qureshi, learned Advocate appearing for the State, has supported the conviction of appellants and has argued that in this case police acted most efficiently and within about 15/16 hours rounded up all the culprits and recovered the abductee Afaq for whose release a huge sum of Rs.5 crore was demanded as ransom. He has also argued that in a case like this the association of independent witnesses was not possible and that a departure from the mandatory provision of section 103 of Cr.P.C. was rightly made. He has also argued that some contradictions or omissions in evidence, which are not material, cannot caste doubt on the entire prosecution case. He has referred to the case of Kaleem Ahmed and others v. The State P L D 1993 Kar. 13, Muhammad Ashraf etc. v. The State 1989 P Cr. L J 2211 and Khushi Muhammad and others v. The Crown 1969 S C M R 599.

13. We have gone through the impugned judgment and the evidence on record. We have also perused the case-law referred by the learned counsel in support of their various contentions. The most important evidence in the case on the point of abduction has come through the complainant Muhammad Mustafa P.W.6, the abductee Muhammad Afaq Exh.22 and P.W. Nauroz Khan a Chowkidar of the adjoining bungalow. In spite of the best efforts of the defence, nothing is brought on record to satisfy us, why these witnesses should not be believed. Complainant Muhammad Mustafa who was present in his bedroom and had heard the call-bell, saw his son Afaq going to the gate and approaching the car in which abductors came to abduct him. He also saw that one of the culprits shook hand with Afaq and dragged him into the car which was driven away. He had distinctly seen three culprits standing outside, while the fourth one sitting inside at the driver seat. None of these four culprits were known to him before and he had identified them immediately on their arrest. P.W. Nauroz Khan had also witnessed the occurrence of abduction and he also narrated the same facts to complainant Muhammad Mustafa when he came outside the bungalow after seeing his son abducted. The evidence of these two witnesses is fully corroborated by the evidence of abductee Afaq. The chain of events is so closely connected that neither the complainant nor the police had any occasion for deliberations or concoction. The time between abduction of Afaq and his recovery was also so short that false implication of any accused was out of question. Immediately after F.I.R. was lodged, complainant received a phoney call at his residence telephone and the caller gave his name as Haji Jumma Khan. Not only that but the caller also disclosed that abductee was safe with him and would be released on payment of Rs.5 crore as ransom. This information was conveyed to police immediately. Appellant Arif who happened to be a relation of complainant, suggested him to contact Parwez Akhtar Zaidi who had links with Sindhis, Punjabis, Mohajirs and Pathans. Taking appellant Arif to be a well-wisher, complainant and his brother went with Arif to the house of Perwez Akhtar who on being informed - of the occurrence assured them of his full cooperation. Perwez Akhtar Zaidi further required complainant and his brother to contact him the next day so that in the meanwhile he could make some enquiry and provide information. Meeting of complainant and his brother with Perwez Akhtar at the instance of Arif was also conveyed to the police. Abductee Afaq was adopted son of complainant and being very dear to him, he was under mental strain and again went to police station to know the progress of case if any. By this time police had received some spy information and raided the house of Muhammad Ismail Jamah where Mureed Abbas was also present and recovered TT pistols from them. In pursuance of information provided by Ismail Jamali, police raided the house of Perwez Akhtar Zaidi and arrested him. Perwez Akhtar disclosed that the abductee was kept in a Murghikhana at Jafai Tayar Society. These events happened in such a short time that there was hardly any occasion for the investigation agency to have called respectable inhabitants of the area to act Mashirs either when Ismail Jamali and Mureed Abbas were arrested or when pursuant to information by Ismail Jamali, accused Perwez Akhtar Zaidi was arrested. It was past mid-night time and in our view no strict compliance of the provision of section 103 of Cr.P.C. was required. The witnesses associated by the police during arrest, search and recovery were either the complainant or his brother and relations against whom no malice is shown and we, therefore, find no force in the contentions of learned counsel that there is violation of section 103 of Cr.P.C.

14. The three arrested accused, namely, Muhammad Ismail Jamali, Mureed Abbas and Perwez Akhtar Zaidi were also taken to Murghikhana alongwith the complainant and others in pursuance of information given by Perwez Akhtar Zaidi that the abductee was confined in the Murghikhana. By the time the police party alongwith the accused, complainant and witnesses reached the Murghikhana it was almost Fajar prayer time. P.W. Muhammad Murtaza whom police saw going towards mosque to offer Fajar prayers; was associated to act as a Mashir as a raid was to be conducted. The I.O. was mindful of his legal obligations, to associate independent witness while conducting raid and, therefore, he associated Muhammad Murtaza to act as a Mashir because this witness was easily available at that time and was resident of a house near Murghikhana. .

15. The door of Murghikhana was knocked by Perwez Akhtar Zaidi and when someone from inside asked as to who he was, Perwez Akhtar Zaidi gave his name and directed Gazanfar Abbas to open the door. After the door was opened, Gazanfar Abbas duly armed was over powered and he disclosed that the abductee was inside the other room which was chained and opened by Perwez Akhtar Zaidi. Appellant Zakir Khan duly armed was found sitting by the side of the cot over which abductee Afaq was sleeping. As pointed out earlier, the events are so closely connected that one accused after his arrest disclosed the name of other and so on, till police reached the place where abductee was confined. Because Perwez Akhtar Zaidi found himself in a soup, he disclosed the name of appellant Fazalur Rehman to be one of the associates and Fazalur Rehman was arrested from near his house. The locket of the abductee, his purse, and photograph, N.I.C., some cash and visiting cards were recovered. When the abductee was taken to his house alongwith all arrested accused, appellant Arif also emerged from the house of complainant alongwith other relations. Perwez Akhtar pointed out that Arif was the person who had given information that complainant Muhammad Mustafa was leaving for U.S.A., that he was a moneyed person and that if his son Afaq is abducted, huge sum towards the ransom could be extorted. Appellant Arif was the person who provided photograph of the abductee to the co-accused and had shown complainant's house from where Afaq was to be abducted. In order to show his good faith to the family of complainant, accused Arif suggested that Perwez Akhtar Zaidi be contacted as he had links with people of every community and would help in getting a clue about the abductee. Accused Arif in fact took complainant and others to the house of Perwez Akhtar Zaidi and after some whisper between Perwez Akhtar and Arif they were taken to the drawing room where woeful tale of abduction of Afaq was heard by Perwez Akhtar.

16. It is also in evidence that appellant Ismail Jamali had allowed the telephone of his office, where he was working as a Chowkidar, to be used by Perwez Akhtar. It was within the hearing of Ismail Jamali that Perwez Akhtar Zaidi called a number giving his name as Jumma Khan, assuring the person on the other side that abductee was with him, demanded ransom of Rs.5 crore and promising to contact again after some days. When arrested by police, Perwez Akhtar Zaidi, one of the main culprits gave information to police about the place where Afaq was confined and led the police party to Murghikhana. The clothes of abductee which he was wearing at the time when he was abducted and brought to the house of Perwez Akhtar, were also recovered from the house of Perwez Akhtar Zaidi and so also his shoes. The abductee was provided clothes by Perwez Akhtar which were found on the person of Afaq when he was recovered from Murghikhana. Direct involvement of appellants in the case was fully proved and on the basis of ocular evidence, circumstantial evidence in the nature of recovery of various articles belonging to the abductee from the house of some of the accused at their pouting the recoveries, of fire?arm from the accused and presence of some of them in the Murghikhana was sufficient evidence to conclusively accept the prosecution case and convict the appellants.

17. The case-law referred by appellants' learned Advocates is also not applicable to the facts of the instant case. In the case of Lal Dinneo and others 1991 P Cr. L J 2000 it was held that the offence under sections 216-A, 365 and 411 of P.P.C. which the accused were alleged to have committed were not scheduled offences but Presiding Officer of Special Court under section 4 of Special Courts Act, 1975 was obliged to record such information and try accused only for such offences, if any, which were scheduled offences. It was observed that the Presiding Officer, being unmindful of mandatory requirement of law not only failed to record his opinion but also charged, tried and convicted accused under those offences which were not scheduled offences. Entire proceedings conducted by Presiding Officer, Special Court showing complete ignorance about elementaries of law, were held illegal and without jurisdiction. In the case of Muhammad Sharif 1992 P Cr. L J 127 the conviction by the Special Court under Suppression of Terrorist Activities (Special Courts) Act of 1975 of an accused under section 411 of P.P.C. which was not a scheduled offence were set aside. In the case of Muhammad Mansha 1992 P Cr. L J 1271, the trial by the Special Court of accused from whom a pistol was recovered was held as coram non judice and the conviction was set aside with direction that the accused be tried by an ordinary Court. In the case of Yameen Kumhar P L D 1990 Kar. 275, this Court held that the compliance with the provisions of section 103 of Cr.P.C. was mandatory but not absolute and that departure from the said provision could be made in appropriate cases.

18. We now revert to the case-law referred by the learned Advocate appearing for the State. In the case of Kaleem Ahmed and others P L D 1993 Kar. 13, this Court maintained the conviction in a case where eye-witnesses were natural and independent whose presence at the spot at the time of occurrence was neither disputed nor any enmity was alleged against them and the eye-witnesses had no motive to falsely implicate accused. In the circumstances of the said case the sentence of 14 years' R.I. was reduced to 10 years' R.I. and it was observed that the testimony of natural eye-witness does not require corroboration. In the' case of Muhammad Ashraf etc. 1989 P Cr. L J 2211, it was held that the eye-witnesses whose evidence does not suffer from any major or significant contradiction and is in consonance with probability of case can safely be relied upon without corroboration. In the said judgment it was also held while discussing the application of section 34 of P.P.C., that question of common intention is a question of fact and has to be determined according to the circumstances of each case. In the case of Khushi Muhammad and others 1969 S C M R 499, the Honourable Supreme Court held that common intention is to be gathered from facts and surrounding circumstances of the case and one cannot always expect direct evidence to be forthcoming in a matter of this nature. The sentence of transportation for life awarded to one accused and death sentence to the other was maintained.

19. We may also observe that in the entire cross-examination of the witnesses the main thrust of the defence counsel was to prove certain omissions made by complainant Muhammad Mustafa and abductee Afaq. Because of unique nature of the case, such omissions by the witnesses in their statements before police were natural as there was hardly any time for the witnesses to give facts with utmost precision. One could well imagine the state of mind of a father whose son was abducted, and some omissions here or there would be natural. One could also conceive about the state of mind of a young boy abducted from his house in a planned manner, blind-folded and then taken to a far-off place and in whose presence fire-arms were being waved and he was being threatened not to move. It cannot be expected of such a witness also that he would give each detail about the occurrence. The question that would arise is, whether the omissions that were suggested to the witnesses were so material as to caste doubt in the prosecution case. We are afraid we cannot agree with the learned counsel appearing for the defence that such omissions or minor contradictions would falsify the entire prosecution evidence which otherwise is confidence-inspiring and came through independent and natural witnesses.

20. Evidence on record, ocular as well circumstantial, is not only reliable, trustworthy and independent, but is free from every taint and doubt, and is rightly accepted by the learned trial Court to record conviction and award maximum sentence to the appellant.

21. The upshot of the above discussion is that the conviction and sentence awarded to the appellants needs no interference and the appeals are dismissed. N.H.Q./M-1895/K ???????????????????????????????????????????????????????????????????????????? Appeals dismissed.