HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-Terrorism
Appeal No.13 of 2009
Present: Muhammad Ali Mazhar, J.
Naimatullah Phulpoto, J.
Appellants: Waseem
Ahmad through Mr. Mushtaq Ahmed, Advocate
Muhammad
Ali
through Mr. Khawaja Naveed
Ahmad, Advocate.
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Respondent: The State through Mr. Abdullah Rajput, Assistant Prosecutor
General Sindh.
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Date of
hearing: 29.10.2014
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Date
of announcement: 10.11.2014
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JUDGMENT
Naimatullah Phulpoto, J.-- Appellants
Waseem Ahmad and Muhammad Ali were tried by learned
Judge, Anti-Terrorism Court-II, Karachi under sections 365-A PPC read with section 7(e) of the Anti-Terrorism Act, 1997
of P.S. Ferozabad. After full dressed trial, learned
trial Court vide judgment dated 06.03.2009 convicted the appellants under
section 7(e) of the Anti-Terrorism Act, 1997 and sentenced to imprisonment for
life and ordered for forfeiture of their property. However, appellants were
extended benefit of section 382-B Cr.PC.
2. The
succinct facts of the prosecution case are that complainant Zain-ul-Abideen
lodged report on 08.04.2008 at 1120 hours at police station Ferozabad,
alleging therein that on 08.04.2008 he was sleeping at his house, his driver
came back from school and informed the complainant that his son Muhammad Baqar, aged about 7 years, on the way to the school has
been abducted by four culprits on gunpoint. On the inquiry, driver further told
to the complainant that as usual after taking his son Muhammad Baqar in a car he was proceeding
to the Head Star Junior School, when they reached near the gate of the school
it was 07:45 a.m. All of sudden a car No.ANV-039
Liana, white coloured appeared there in which four persons were sitting. Out of
them, two culprits were wearing pant shirts and two were wearing shalwar qameez. The culprits looked like Sindhi Balouchs.
It is alleged that one of them was former driver of the complainant, namely,
Muhammad Ali, who was sitting on the rear seat. The two culprits, who were
armed with T.T. pistols, aimed their pistols on the
forehead of the driver and forcibly kidnapped the son of the complainant in the
car and drove away. After receipt of such information, complainant telephoned
to his friends and narrated them the incident. At 1055 hours, complainant
received a mobile call from Cell No.03232356610.
Complainant was informed by the culprits on mobile that his son has been
kidnapped, in case he reported such matter to any agency, his son would be
murdered. Ransom of Rs.1 Crore
was demanded from the complainant for release of his son. Thereafter,
complainant went to the police station and lodged F.I.R.
against unknown culprits, including his ex-driver Muhammad Ali Soomar regarding abduction of his son for ransom. F.I.R. was recorded vide Crime No.295/2008
for offence under sections 365A/34 PPC. After registration of F.I.R.,
investigation was entrusted to SIP Tahir Naseer.
3. During
investigation, investigation officer received spy information on 08.04.2008 that
car Liana No.ANV-039 white coloured used in crime has
been parked outside a house in Mawach Goth. On such
information, raid was conducted. Aforesaid car was recovered and accused Waseem Ahmad and Muhammad Ali were arrested and boy
Muhammad Baqar, aged about 7 years, was recovered
from house. Such mashirnama was prepared in presence of mashirs. During
interrogation accused Waseem Ahmad and Muhammad Ali
disclosed the names of their companions as Iqbal Balouch
and Saleem Balouch. Investigation officer recorded
161 Cr.PC statements of the PWs, made efforts for
arrest of remaining accused but without success. I.O.
collected data of mobile Phone No.032323556610. On
the conclusion of the investigation, I.O. submitted
challan against the accused under the above referred sections. Accused Iqbal Baloch and Saleem Balouch were
declared as proclaimed offenders. Proceedings under sections 87 and 88 Cr.PC
were concluded against them.
4. A
formal charge against accused Waseem Ahmad and
Muhammad Ali was framed by learned Judge, Anti-Terrorism Court-II, Karachi at Exhibit-7 under the above referred sections.
Accused pleaded not guilty and claimed to be tried.
5. In
order to prove its case,
the prosecution examined the following witnesses:
(i) PW-1, complainant Zain-ul-Abideen
at Ex-10, who produced F.I.R. at Exhibit-10/A, memo
of arrest of accused and recovery of abductee Muhammad Baqar
at Ex-10/B, so also supurdiginama At Ex-10/C.
(ii) PW-2 driver Ali Muhammad was examined at
Ex-11, who produced memo of place of wardat at Exh-11/A.
(iii) PW-3, abductee Muhammad Baqar
at Ex-12.
(iv) PW-4 Naeem Ejazi
at Ex-13.
(v) PW-5 PC Fareed
Ahmad at Ex-14, who produced the data of mobile Phone No.03232356610
at Ex-14/A.
(vi) PW-6 Rashid Zafar
at Ex-15, who produced memo of securing receipt of rent a car and computer slip
at Exh-15/A.
(vii) PW-07, Tahir Naseer I.O. at Ex-16, who
produced order of the SSP, AVCCP,
entrusting investigation of this case to him at Ex-16/A; Roznamcha entry No.43 dated 08.04.2008 at Exhibit 16/B; Roznamcha Entry No.46 dated 08.04.2008 at Exhibit 16/C.
Thereafter, Special Public Prosecutor
closed the prosecution side vide his statement at Exhibit-17.
6. Statements
of accused were recorded under section 342 Cr.PC at Exhibits 19 and 20. Both
accused claimed false implication in this case and denied the prosecution
allegations. Accused Waseem Ahmed raised plea that he
was not aware about the mobile number of the complainant nor he had used the
mobile number mentioned in the F.I.R. Both the
accused denied the contact with complainant Zain-ul-Abideen
on his mobile for demanding ransom for the release of his son. They have denied
that neither they had abducted the son of the complainant nor demanded ransom
of Rs.1 Crore. Recovery of
abductee from House No.1, Street No.2,
Mawach Goth has also been
denied. Recovery of the car used in the crime has also been denied by them.
Accused Waseem has also denied the recovery of the
mobile Nokia phone from his possession. Accused Muhammad Ali has raised the
plea that his national identity card was in the possession of the complainant
and PW driver Ali Muhammad had enmity with him. Accused Muhammad Ali has claimed
that PWs have deposed against him at the instance of
police and driver Ali Muhammad. Both the accused declined to give evidence on
oath in disproof of prosecution allegations. No evidence was led in defence by
accused.
7. Learned
trial Court after hearing the learned counsel for the parties and after
assessment of the entire evidence convicted and sentenced the appellants as
stated above.
8. M/s.
Khawaja Naveed Ahmed and Mushtaque Ahmad, learned counsel for the appellants have
not questioned the conviction awarded to appellants by the trial Court but argued
that from the evidence, ingredients of section 365A PPC are not attracted and at the most the offence would
fall within the ambit of section 365 PPC. Therefore, it
is argued that sentence awarded to the appellants was against the law and
harsh. In support of contentions, reliance is placed upon the case of SHAHID alias KALOO versus THE
STATE (2009 SCMR 558).
9. Mr.
Abdullah Rajput, A.P.G., argued that there is huge
evidence against the appellants to prove that the child was abducted for ransom
and was recovered from the accused. He has argued that trial Court has rightly
appreciated the evidence and convicted the appellants on the charge of
abduction for ransom.
10. We
have carefully heard the learned counsel for the parties and scanned the
evidence available on record.
Evidence
of complainant Zainul Abideen
11. Complainant
Zainul Abideen has deposed
that present incident occurred on 08.04.2008. On that day as usual he was
sleeping in his house, it was morning time. His driver Ali Muhammad came back
to the home and informed the complainant that his son Muhammad Baqar had been kidnapped near school by four accused
persons in Liana car. Complainant has further deposed that he contacted his
friends and narrated them the incident. At 10:55 a.m. he received a mobile call
on his Cell No.03218228014 from mobile No.03232356610 and caller informed the complainant that his
son has been abducted, he should make arrangement of Rs.1
Crore else he would loose his
son. At about 11:20 a.m. complainant went to the police station Ferozabad where he lodged F.I.R.,
which he has produced as Exhibit-10/A. Complainant was informed by the duty
officer that his case would be dealt with by AVCC.
Thereafter, complainant has deposed that he received a call from AVCC Garden and he sent his driver to the place of incident
at about 05:00 p.m. or 5:30 p.m. Complainant in his car along with two mobiles
of the police went towards Sher Shah for search of his
son on the same day. On the way, police received information that Liana car
used in the commission of crime has been parked at Mawach
Goth. Thereafter, complainant had deposed that raid was conducted at House No.144, Brohi Mohallah,
Mawach Goth on 08.04.2008
where former driver of the
complainant, namely, Muhammad Ali and another accused Waseem
Ahmed were arrested by the police in his presence and his son was recovered. On
the personal search of accused Waseem Ahmed, Nokia
mobile phone and SIM No.034589923000
were recovered. Complainant had further deposed that a key of the car was also
recovered from accused Muhammad Ali.
Evidence of
PW Muhammad Ali
12. PW
driver Ali Muhammad has given the entire episode of the incident and stated
that on 08.04.2008 in the car of the complainant he was taking his son Muhammad
Baqar to the school, when they reached near the
school, a Liana car appeared in which four persons were sitting, two of them
alighted from the car, they were armed with T.T.
pistols, by show of force they kidnapped child Muhammad Baqar
and drove away in their car. He noted down the registration number of the car ANV-039. Driver Ali Muhammad came to the house of the
complainant Zainul Abideen,
the father of the abductee, narrated him the incident. F.I.R.
was lodged by the complainant. He identified accused Waseem
Ahmed and Muhammad Ali in the Court and stated that these accused along with
two other culprits had abducted the boy Muhammad Baqar.
Evidence of
Muhammad Baqar (child)
13. Trial
Court took due steps to judge the level of intelligence of the child before
recording his evidence. He has categorically deposed that present accused had
abducted him.
14. PW
Naeem Ejazi ASI P.S. Feroz Abad has deposed
that on 08.04.2008 Zainul Abideen
appeared at police station and stated that his son has been kidnapped for
ransom, he recorded his statement vide Crime No.295/2008
under section 365A PPC and
supplied copy of F.I.R. to the investigating agency.
15. PW
PC Fareed Ahmad has deposed that on 12.04.2008 he has
collected mobile phone data of Cell No.0323-2356610
in this case and produced in trial Court.
16. PW
Rashid Zafar has deposed that he had rented out Liana
Car No.ANV-039 to accused Muhammad Ali on 07.04.2008.
17. I.O. Tahir Naseer
deposed that on 08.04.2008 investigation of this case was entrusted to him.
During investigation, he visited the place of wardat, situated near School in
presence of mashirs and prepared such mashirnama at Exhibit-11/A. During
investigation he received spy information on 08.04.2008 that car used in the
crime has been parked out the House No.114 at Mawach Goth. He conducted raid at the house from which two
persons, who were guarding over the abductee/child, were arrested and he recovered
the abductee Muhammad Baqar in presence of
complainant. They disclosed their names as Waseem
Ahmad son of Abdul Majeed and Muhammad Ali son of
Muhammad Soomar. I.O.
handed over the abductee to his father at the spot and conducted personal
search of the accused. One SIM was recovered from the
possession of the accused Waseem Ahmad
on which word Dejuice was mentioned, having number A9923000. From the possession of accused Muhamad Ali one Nokia 1100 mobile phone and SIM No.03232356610 were
recovered. A copy of CNIC of Muhammad Ali and a key of the car were also
recovered from accused Muhammad Ali. Such mashirnama was prepared by the I.O. in presence of mashirs. I.O.
recorded statements of the PWs under sections 161
Cr.PC. Accused disclosed the names of their companions and further disclosed
that they had obtained the car on rent from Rashid Zafar.
I.O. recorded statement of Rashid Zafar.
I.O. collected telephone data of mobile phone No.03232356610. On the conclusion of the investigation I.O. submitted challan against the accused in the
Anti-Terrorism Court.
18. The
careful perusal of the evidence available on record leads us to the same
conclusion as was reached by the trial Court. The testimony of PW driver Ali Muhammad
is confidence inspiring as to the events and occurrence that took place before
his eyes as mentioned above. Child was recovered from accused on 08.04.2008 in
presence of the complainant, who is the father of the child. Ransom of Rs.1 Crore was also demanded from
complainant for the release of his son. Evidence of complainant is trustworthy
and reliable, who has highlighted each and every aspect of tragic incident
including demand for ransom. No enmity whatsoever has been brought on record.
Neither accused examined themselves on oath nor
produced any evidence in defence. As regards to the evidence of the child
witness, the trial Court had taken all possible and due steps to judge the
level of his intelligence before proceeding to record his evidence. It may be
observed here that mere fact that abductee/child was of tender age does not ipso facto make his evidence unreliable.
It is true that while relying
upon the evidence of child witness, close and careful scrutiny is required
which in the instant case was duly adopted by the trial Court and a note to that effect was also
recorded by the trial Court in the deposition about the satisfaction of the
Court. Moreover, under Article 3 of the Quanun-e-Shahadat Order 1984, a child if gave statement which
indicated that such witness understood the questions and gave answers intelligently
and rationally, the same could not be ignored due to the tender age of the
witness.
19. Learned
counsel for the appellants have only argued that from the prosecution evidence
ingredients of section 365A PPC
are not proved and offence would fall within the ambit of section 365 PPC. Reliance is placed upon the case of Shahid alias Kaloo versus the
State (2009 SCMR 558) in which it is held as under:-
7. However,
having observed as much it would also be seen that the only witness regarding
the demand of ransom i.e. Rs. one crore
is the complainant himself. As opposed to this the appellant in his confession
before the Magistrate has stated that his intention was to rob the complainant
of Rs. two lakh which he possessed as per information
received from minor accused Zeeshan who used to work
in the factory. So also in the F.I.R., the
complainant has stated that the appellant and co-convict Shakeel had demanded
Rupees one crore from him whereas in his statement
before the trial Court he has only nominated the appellant regarding such
demand. Finally it may also be observed that the demand of ransom was allegedly
made in the space of a few minute during the time it took to travel one
kilometer which is unlikely as normally such demands are made when the abductee
has been secured in a safe place and the hue and cry has died down. In these
circumstances there is some doubt as to whether or not any demand of ransom was
made from the complainant the benefit of which must be given to him.
Consequently, the offence committed by the appellant as well as co-convict Asif would be covered under section 365, P.P.C. viz. abduction simpliciter
for which the maximum punishment is seven years.
20. In
the present case, it is proved by cogent evidence that child Muhammad Baqar was kidnapped for ransom, demand for payment of
ransom was made by the accused on the mobile from complainant, telephone data has also been collected by the I.O. It is proved that accused had made a call on the
mobile of the complainant for ransom on 08.04.2008 at 1055:22 hours as per
data. Child was also recovered from the accused. To constitute an offence under
section 365A PPC it is not
necessary that money must have been passed on to the culprits. Simple demand of
the ransom for the release of the abductee is sufficient to bring the case
within the ambit of section 365A PPC
as held by the Honourable Supreme Court in the cases of Muhammad Nabi and 4 others versus the State (2006 SCMR 1230) and Sh. Muhammad Amjad
versus the State (PLD 2003 Supreme Court 704).
21. The facts and circumstances of the case
reported in 2009 SCMR 558 relied upon by the learned
counsel for the appellants are quite distinguishable from the facts of the
instant case as in the above cited case, demand of ransom was allegedly made in
the span of a few minutes during the time it took to travel one kilometer which
is unlikely as normally such demands are made when the abductee has been
secured in a safe place and the hue and cry has died down, it was held that in
the circumstances it was doubtful whether or not any demand of ransom was made.
Whereas, in the present case child was kidnapped and demand was made from the
complainant on mobile phone for ransom, threat was issued to the complainant
that he should not report the matter to any agency else he would loose his son and son of complainant was recovered from
accused on 08.04.2008.
22. For
the above stated reasons, we have come to the conclusion that trial Court has
rightly believed the prosecution evidence, which is trustworthy and reliable.
Both the appellants have been rightly convicted and sentenced for the offence
with which they were charged. No illegality in the impugned judgment has been
pointed out, warranting interference by this Court. The case being heinous in
nature, as such, appellants do not deserve any leniency in sentence. In
consequence, the conviction and sentence awarded by the trial Court vide
judgment dated 06.03.2009 are maintained. We do not find any merit in the
appeal, which is dismissed.
JUDGE
JUDGE
Gulsher/PA