IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Jail Appeal No. D- 139 of 2010.

Present:

Mr. Justice Abdul Rasool Memon.

Mr. Justice Abdul Maalik Gaddi.

Bahadur Jalbani. ………….Appellant.

Versus

The State. ...…..…Respondent.

Crime No. 80 of 2010,

Police Station Hyderi, Larkana,

Under Sections: 365-A, 148, 149, P.P.C,

Read with Sections 6/7 of Anti Terrorism

Act, 1997.

Messrs Faiz Mohammad M. Larik and Habibullah G. Ghouri, Advocates for appellant.

Mr. Abdul Rasheed Soomro, State counsel.

Date of hearing: 02.10.2013.

Date of Judgment: 10.10.2013.

J U D G M E N T

Abdul Maalik Gaddi, J-. The appellant was tried by the learned Special Judge, Anti-Terrorism Court, Larkana, for the offence punishable under Sections 365-A, 148, 149, P.P.C, read with Sections 6/7 of Anti Terrorism Act, 1997, who found him guilty, thereby convicted and sentenced him to undergo R.I for life and to pay fine of Rs.100,000/- (One hundred thousand); in case of default of payment of fine he was ordered to further undergo R.I for one year more, vide impugned judgment dated 27.09.2010.

2. Against this judgment and conviction, the appellant has filed the present appeal.

3. Brief facts of the prosecution case arising out of F.I.R No.80/2010 of P.S Hyderi, Larkana, are that, on 11.6.2010, complainant Sadaruddin Junejo has lodged his F.I.R with P.S Hyderi, stating therein that baby Samreen aged about 4/5 years is his daughter. On the fateful day the complainant alongwith his cousin Abdul Rasheed son of Abdul Sattar Junejo resident of Hussaini Muhalla Larkana and relative Mohammad Ali son of Ghulam Abbas Junejo, resident of Murtaza colony, Larkana, was sitting in the street outside the house and baby Samreen was also standing near the outer door of house. It was about 4.00 p.m. they saw that five persons came there, out of whom they identified one, to be Bahadur son of Roshan by caste Jalbani, resident of Wazir Khan Jalbani, taluka Sijawal and four unidentified persons whose faces were open and they were not known to complainant party previously. While reaching there all the accused took out pistols from their folds and pointed towards the complainant party and threatened them to remain mum, due to fear they remained calm, while accused Bahadur took away baby Samreen by issuing threats to complainant party for arranging Rs.10,00,000/- (Ten lacs) as ransom amount for the release of baby Samreen and if they raised huge and cry or followed the accused, then they will be handed over the corpse of baby Samreen. The complainant party being empty handed due to fear remained silent. Then all the accused by kidnapping baby Samreen ran away towards Luhur colony, Larkana. Then the complainant informed at PS Hyderi on phone about the above incident and appeared at Police station, where complained that accused Bahadur Jalbani alongwith four unidentified accused armed with weapons with their pre-concert have kidnapped his daughter, namely, baby Samreen for receiving the ransom amount. It was further stated that complainant and his witnesses have clearly seen the accused whose faces were open and can be identified, if brought before them.

4. A formal charge under Sections 365-A, 148, 149 P.P.C read with Sections 6/7 of Anti-Terrorism Act, 1997, was framed against the appellant at Ex.4, to which he pleaded not guilty and claimed his trial.

5. To substantiate its assertion, the prosecution has examined PW-1 complainant Sadaruddin as Ex.5, who has produced the copy of F.I.R as Ex.5-A. P.W-2 Abdul Rasheed as Ex.6, PW-3 Ghulam Nabi as Ex.7, PW-4 ASI Muhammad Tagial as Ex.8, who has produced the carbon copy of mashirnama of arrest of accused, recovery of pistol and recovery of kidnapee baby Samreen aged about 4/5 years at Ex.8-A. PW-5 H.C Bashir Ahmed at Ex.9. The prosecution given up PW Muhammad Ali and baby Samreen, vide statement as Ex.10. Prosecution has also examined PW-6, namely, Mumtaz Ali as Ex.11. This witness has produced the mashirnama of inspection of place of incident as Ex.11-A. In the last prosecution has examined PW-7 SIO Abdul Ghafoor as Ex.12, and then prosecution has closed its side vide statement as Ex.13.

6. The appellant/accused in his statement at Ex.14, recorded under Section 342 Cr.P.C. denied the allegations of the prosecution by claiming himself as innocent and prayed for justice with plea that prosecution witnesses are interested and implicated him due to previous enmity over the house. However he did not examine himself on oath nor led any evidence in his defence.

7. The learned trial Court believed the evidence of prosecution witnesses holding that the evidence of the said witnesses cannot be rejected merely on the ground that either they are related to each other or that they are police officials. Learned trial Court has also observed that present appellant was got arrested with un-licensed T.T pistol of 30-bore with magazine after an encounter with police party, when he was abducting away baby Samreen on his shoulders for getting ransom and baby Samreen was got recovered in presence of mashirs H.C Bashir Ahmed and PC Zulfiqar Ali who have no animious terms with the appellant.

8. We have heard the learned Advocates for the appellant, learned State Counsel and have perused the evidence, documents on record and impugned judgment.

9. Learned counsel for the appellant has contended that there are contradictions in between the evidence of complainant and eyewitnesses. P.W Mohammad Ali though eyewitness of the incident and baby Samreen (abductee) have not been examined in this case, therefore, adverse inference could be drawn. He further submitted that both mashirs of place of vardat are related to complainant; thus they are interested; that appellant has been falsely implicated in this case by the complainant due to dispute over the residential house which was sold by the complainant to accused, therefore, complainant in order to usurp the amount registered this false case.

10. Learned State Counsel defended the conviction recorded by the trial Court by submitting that the case stood proved beyond reasonable doubt, as the evidence of prosecution witnesses is consistent, trustworthy, of unimpeachable character and inspiring confidence. The minor contradictions in between their evidence of inconsequential in nature are not enough to discredit the evidence of natural witnesses of occurrence who have no animous against the accused, they have not only supported the alleged kidnapping of baby Samreen in broad day light but also recovery of the said baby from the possession of appellant who had demanded ransom of ten lacs. Per learned State counsel such culprit does not deserve any leniency and be punished in accordance with law.

11. We have given careful consideration to the submissions of learned counsel for the parties and consulted with the evidence brought on record. It appears that this unfortunate incident of kidnapping of baby Samreen aged about 4/5 years had taken place on 11.06.2010, at 4.00 p.m. in presence of her father (complainant Sadaruddin), PWs: Mohammad Ali and Abdul Rasheed; the report was made by complainant to police without any loss of time. The complainant Sadaruddin has fully supported the contents of F.I.R by deposing that on 11.6.2010, he alongwith his cousin Abdul Rasheed and relative Muhammad Ali were sitting in the street, it was 4.00 p.m. while his daughter baby Samreen aged about 4/5 years was standing outside the door of his house, all of sudden accused Bahadur alongwith four unidentified persons armed with pistols who were with open faces came there and over-powered upon them and forcibly kidnapped his minor daughter baby Samreen within their sight and went away towards Murtaza Colony; the accused Bahadur while taking away his daughter demanded Rs.10,00,000/- (Ten lacs) as ransom amount and further disclosed that, if he (complainant) will not pay the same amount, then his daughter will be murdered, thus due to fear of weapons they remained silent. After that he immediately informed the Hyderi Police station about kidnapping of his daughter on his cell phone. On the same day Police informed him that his daughter baby Samreen has been recovered from the possession of accused Bahadur Jalbani. Thereafter he alongwith his witnesses/relatives and neighbors went to Police station, where SHO handed over his daughter to him. Eyewitness, Abdul Rasheed has fully supported the version of complainant.

12. The appellant was apprehended after encounter in between police and the appellant in presence of Mashirs H.C Bashir Ahmed and P.C Zulfiqar Ali and baby Samreen was got recovered from possession of present appellant; such fact is evident from mashirnama of arrest and recovery available on record at Ex.8-A. Mashir H.C Bashir Ahmed in his evidence at Ex.9, has also supported contents of said mashirnama and recovery of baby Samreen from the possession of appellant, while remaining culprits succeeded to run away.

13. PW ASI Ghulam Nabi has supported the complainant, stating that on the day of incident, complainant Sadaruddin Junejo came at P.S and narrated the facts of a cognizable offence, which he incorporated in 154 Cr.P.C book. He during course of evidence supported the contents of F.I.R.

14. PW/ASI Muhammad Tagial has deposed that on 11.6.2010, he alongwith H.C Bashir Ahmed, PC Zulfiqar Ali, PC Riaz Ali and PC driver Imamuddin were on general patrolling, when they reached at Naudero Chowk Larkana, where ASI Ghulam Nabi passed a message to him that daughter of complainant baby Samreen aged about 4/5 years has been kidnapped by five culprits on show of weapons, after that they hold “Nakabandi”, and moved to Luhur colony near graveyard, where they found five culprits coming towards road side fastly, on seeing them in police uniform they opened straight firing upon police with intention to commit their Qatl-e-Amd. According to him, police also made aerial firing upon them, then while encircling accused apprehended the appellant having baby Samreen on his shoulders; and on his search pistol was also recovered from his possession. This encounter continued for about ten minutes. The appellant disclosed that the pistol in possession was un-licensed and it was found in working condition. On further inquiry he did not disclose identity of co-accused. This witness prepared mashirnama of arrest, recovery of pistol and recovery of baby Samreen in presence of mashirs and identified pistol alongwith magazine in Court. He also identified baby Samreen available in Court and so also the appellant.

15. The evidence of PW-6, namely, Mumtaz Ali is formal in nature, to the extent of visiting place of vardat with Investigating Officer Abdul Ghafoor Chandio; and he produced mashirnama of place of vardat at Ex.11-A.

16. PW Abdul Ghafoor Chandio, Investigating Officer of the case has deposed that he received F.I.R of this case for investigation; recorded statements under Section 161 Cr.P.C. of witnesses and on the pointation of complainant visited place of vardat, where from kidnapee was kidnapped and prepared such mashirnama in presence of Mumtaz Ali and Muhammad Zaman. According to him, he submitted the challan before the Court of law after investigation.

17. We have considered the evidence available on record. All witnesses were subjected to cross-examination but nothing has come on record to discredit their evidence. The witnesses are natural and independent. They have no enmity whatsoever with the appellant. The appellant though alleged in is statement under Section 342 Cr.P.C. that the case against him is false and has been registered due to enmity over the house with complainant party, but in this regard appellant has neither examined himself on oath nor led any evidence in support of his such claim. Merely claiming enmity with the complainant over a house without bringing any evidence on record in proof of such claim is not sufficient to believe the plea of accused/appellant.

18. It is also argued by the learned counsel for appellant that in this matter, P.W Muhammad Ali was the eyewitness of the incident, but he could not examined by the prosecution, as such adverse inference can be drawn due to non-examination of PW Muhammad Ali. He has also argued that Mashirs of recovery of pistol and baby Samreen are police officials, therefore, their evidence could not be safely relied upon, as such independent corroboration was necessary. In support of his arguments, he has not cited any case law.

19. As regards the non-examination of PW Muhammad Ali in this case is concerned, the prosecution is not required to examine each and every witness in the case, it is the quality and not the quantity of the evidence, which decides the fate of criminal case, as such in our opinion no adverse inference can be taken for non-examination of PW Muhammad Ali in the present circumstances of the case. In this regard, we are supported by case law reported in 2003 P.Cr.L.J 1960, and 2008 SCMR 917, wherein the Hon’ble Supreme Court of Pakistan has held that, conviction could be based on testimony of a single witness, if Court was satisfied that witness was reliable, and emphasis would be on quality of evidence and not on its quantity.

20. Under the circumstances, we are of the opinion that any particular number of witnesses is not required in order to record conviction in a criminal case; rather it can be recorded on the basis of sole eyewitness, if he rings true.

21. If, according to the learned counsel for the appellant the evidence of PW Muhammad Ai was absolutely necessary for just decision of the case, then appellant could have examined him in defence but having failed to avail that option/right he cannot be permitted to raise the said plea. Be that as it may, prosecution has the prerogative to examine their witnesses who are considered necessary for its case.

22. As regards the non association of private witnesses during the time of arrest and recovery, it is suffice to say that police officials are as good witnesses as any other citizen, unless any malafide is established against them. Depositions of police officials cannot be brushed-aside simply on bald allegation that they belonged to police department. Requirement of Section 103 Cr.P.C. is not included in sense that failure to comply it will make the search illegal. In this regard, we are supported by case law reported in 2004 MLD 200.

23. The learned Counsel for the appellant submits that no ransom amount was given to the appellant, therefore, Section 365-A P.P.C is not applicable in the case.

24. We have gone through Section 365-A P.P.C, which would indicate that the passage of money is not pre-requisite. The said penal provision reads as follows:

“365-A. Kidnapping or abduction for extorting property, valuable security, etc.--- Whoever kidnaps or abducts any person for the purpose of extorting from the person Kidnapped or abducted, or from any person interested in the person Kidnapped or adducted, any property, whether movable, or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person Kidnapped or abducted, shall be punished with (death or) imprisonment for life and shall also be liable to forfeiture of property.”

25. A close reading of the afore-referred provision would show that the essential ingredients to prove the offence are two fold: (i) the act of abduction, (ii) “for the purpose of extorting from the person Kidnapped or abducted, or from any person interested in the person Kidnapped or abducted,… or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person Kidnapped or abducted”. In Muhammad Amjad v. State (PLD 2003 SC 704), ambit of this provision came up for consideration and the Hon’ble Supreme Court held as follows:

“38. Section 365-A P.P.C, deals with kidnapping or abduction for extorting property, valuable securities etc. While committing above crime various acts are done i.e. capturing the victim and then detaining him under captivity. Normally thereafter, demand is made for ransom. More often than not these acts are done by more than one person, but in this case every thing was done by the appellant himself. To constitute an offence under this section it is not necessary that the money must have passed on to the culprit, nor it is necessary that the victim must have been released. Abduction/Kidnapping may be by force or by deceitful means.”

26. As observed above, the evidence led proved beyond reasonable doubt that the appellant had kidnapped baby Samreen for the purpose of extorting ransom and had compelled the complainant to comply with the demand for cash ransom for releasing kidnapee, and the testimony of the ocular witnesses and Mashir of the arrest and recovery are found confidence inspiring and unimpeachable; there could not be any reason on their part to falsely implicate the appellant/convict in commission of such heinous crime. The confidence inspiring ocular testimony of prosecution witnesses is also corroborated by the fact that the appellant was caught hold at the spot alongwith pistol and kidnapped baby Samreen.

27. In view of above discussion, we see no error or illegality in the impugned judgment warranting interference by this Court which is maintained. Accordingly, the appeal being devoid of any force is dismissed.

Judge

Ansari/*