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Petitioner: MUHAMMAD AKBAR VS Respondent: StateHonorable Justice SARMAD JALAL OSMANYA.Q. Halepota,Habib Ahmed
2005 P Cr
2005 P Cr. L J 1842
[Karachi]
Before Sarmad Jalal Osmany and Azizullah M. Memon, JJ
MUHAMMAD AKBAR and another---Appellants
Versus
THE STATE---Respondent
Special A.T.As. Nos.56 and 57 of 2003, decided on 3rd June, 2005.
(a) Penal Code (XLV of 1860)---
----S. 365-A---Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(e)/7(e)---Appreciation of evidence ---Abductee, the most important eye-witness, had identified both the accused in the Court and also picked them out in the identification test, giving the graphic details of his ordeal---All the three eye-witnesses who were natural witnesses of occurrence and whose presence at the scene of crime could not be doubted, had given the identical sequence of events and had fully corroborated each other as to the date, time of occurrence and their respective locations at the scene---One accused being already known to the family of the complainant, had been identified by the eye-witnesses in the Court and on his pointation the abductee was recovered---Delay of about 36 hours in lodging the F.I.R. had been explained and was of no significance---Eye-witnesses had also correctly identified the other accused in the identification test though without ascribing any role to him, but it would not negate the positive evidence against him furnished by the eye-witnesses during which they had described his role in great detail---Minor discrepancies could be ignored in view of the overwhelming evidence on the record regarding abduction of the abductee with no other purpose than to forcibly recover the outstanduig amount which the complainant allegedly owed to the absconding accused---Convictions and sentences of accused were upheld in circumstances.
Mehmood Ahmed v. The State 1995 SCMR 127 distinguished.
Ishaq v. The State PLD 1985 Kar. 595; Abdul Sattar v. The State 1981 SCMR 678; Lal Pasand v. The State PLD 1981 SC 142; Ismail v. The State 1983 PCr.LJ 823; State v. Farman Hussain PLD 1995 SC 1; Asghar Ali v. Saba 1992 SCMR 2088; Abdul Sattar v. The State 1988 SCMR 557; Ramzan and others v. Emperor AIR 1929 Sindh 149; Ayub Masih v. The State PLD 2002 SC 1048; Muhanunad Akbar v. The State 1998 SCMR 2538; Khawaja Hasanullah v. The State 1999 MLD 514; The State v. Haider Zaidi 2001 SCMR 1919; Ali Muhammad v. The State 1985 SCMR 1834; Yaqoob Khan v. State PLD 1996 SC 97 and Solat Ali Khan v. The State 2002 SCMR 820 ref.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 9---Identification parade---Holding of identification parade is not a requirement of law.
Muhammad Akbar v. The State 1998 SCMR 2538 ref.
(c) Penal Code (XLV of 1860)---
----S. 365-A---Kidnapping or abduction for extorting property etc.---Determining factor in a case of kidnapping for ransom etc. is the object behind the same; hence the fact that no ransom demand was ever received by the victim's family cannot be given any weight.
State v. Farman Hussain PLD 1995 SC 1 ref.
A.Q. Halepota for Appellants.
Habib Ahmed, A.A.-G. for the State.
Dates of hearing: 22nd, 23rd, 24th, 25th February, 1st, 4th, 9th, 10th, 15th and 18th March, 2005,
JUDGMENT
SARMAD JALAL OSMANY, J.--- Both these appeals impugn the judgment dated 25-10-2003 passed by the learned A.T.A. Court No.III, Karachi whereby the appellants were convicted under section 6(2)(e) of the Anti-Terrorism Act, 1997 for having committed the offence of hostage taking and sentenced under section 7(e) thereof to undergo life imprisonment and so also their movable and immovable properties to the extent of Rs. 1,00,000 were forfeited to the State. Consequently both these appeals are being disposed of through this judgment.
2. The brief facts of the matter, per the prosecution case, are that on 24-8-2003 at about 10-30 a.m. lour persons came to the residence of the complainant in a white coloured Sunny Nissan Car bearing Registration No.H-7296. Out of them one who was identified by the complainant's younger son Abdul Qadir as appellant Ghulam Hussain Soomro (since he used to visit the house) spoke on the intercom to his elder son Abdul Samad who then went outside. The complainant's wife got suspicious and she sent Abdul Qadir to see what was the matter, whereupon the latter saw these persons forcibly pushing Abdul Samad into the car. Then Abdul Qadir rushed into the house and informed his mother about the incident who immediately informed the police. After about half an hour, appellant Ghulam Hussain Soomro called up from Phone No.2566433 which call was received by the complainant's wife when he demanded ransom of Rs.30,00,000 for the release of Abdul Samad at the peril of his life. Thereafter, the complainant also received a call from appellant Ghulam Hussain ,Soomro to the same effect. Per the complainant, previously also the latter had been giving him such threats although he had no transactions with him.
3. The present accused were arrested on 27-8-2003 and on 28-8-2003 the abductee Abdul Samad was also recovered at the pointation of Ghulam Hussain. The police after usual investigation challaned the appellants and acquitted accused Imran Yousuf before the learned trial Court whereupon N.B.Ws. were issued for the absconding accused Arshad alias Pappoo son of Haji Lal Muhammad, Rahim alias Haider son of Ghulam Rasool and Muhammad Ilyas son of Abdul Razzaque which could not be executed and hence the case of the absconding accused was bifurcated from that of the arrested accused. The charge was framed against the accused to which they pleaded not guilty and claimed their trial.
4. In support of its case, the prosecution examined P.W.1 complainant Muhammad Haneef, P.W.2 Abdul Samad, P.W.3 Abdul Qadir who produced the site inspection memo. as Exh.24, P.W.4 Baazmir Khan who produced the seizure memo. of the Sunny Nisan Car as Exh.26. P.W.S Syed Nadeern Haider who produced the copy of the F.I.R. as Exh.28. P.W.6 Bakht Muneer, P.W.7 Sadruddin, P.W.8 S.I.P. Tassawur Amir who produced the Mushirnama of arrest and recovery as Exhs.32 and 33 and so also recovery memo. of abductee was Exh.34, P.W.9 Mrs. Naseem Akhtar, Judicial Magistrate, who produced the application, identification memo. and statement of P.W. Abdul Samad under section 164,Cr.P.C. as Exhs.36 to 39. P.W.10 Al, Muhammad, Investigating Officer who produced Mushirnama of arrest of accused Imran as Exh.41 and application addressed to D.E. Telephones along with the record of the complainant's telephone as Exh.43. So also the learned S.S.P. filed copies of entries in the daily diary as well as the record of the incoming calls of the mobile phone of the complainant vide Exh.P.45.
5. Appellant Ghulam Hussain Soomro in his statement under section 342(1), Cr.P.C. has totally denied the charges against him. According to him there was a dispute between the complainant and absconding accused Ilyas over a transaction of Rs.29,00,000 in connection with prize bond slips and he had been trying to recover the money from the complainant on behalf of Ilyas. In this regard, he had visited the complainant's house only once on 3-8-2003 where the latter had given him cash of Rs.45,000 and a cheque of Rs.2,00,000 in the presence of co-accused Imran and one Aslam Qureshi, A.S.I.P. of C.I.A. The cheque was dishonoured. He had admitted obtaining the car in question on rent from P.W. Baazmir for the purposes of visiting the shrine of Baba Shah Murad at Thatta. Further, while he was available at his sister-in-law's house on 28-8-2003 he was called out by one Anwar who was dealing in prize bonds slips to talk to A.S.I.P. Aslam Qureshi at Adil P.C.O. with regard to the transaction of Rs.29,00,000 when he was arrested by the police. He did not examine himself on oath nor led any evidence in his defence.
6. Similarly, appellant Muhammad Akbar in his 342(1), Cr.P.C. statement has also denied the prosecution case against him in toto. According to him, he was arrested from his flat on 24-8-2003 by the police and not on 28-8-2003 as claimed by the police authorities. He did not examine himself on oath nor led any evidence in his defence.
7. Accused Imran Yousuf iii his statement under section 342(1), Cr.P.C. has denied the prosecution case against him as well. According to him, he was arrested on 24-8-2003 along with accused Zulfiqar and his friend Farooq from Abdullah Hotel which is situated near the house of complainant. Further that he has been involved in the present crime as he was employed with accused Ilyas on a part time basis and used to visit the complainant's house frequently in connection with the business transaction between him and Ilyas. He did not examine himself on oath nor led any evidence in his defence.
8. After hearing the learned S.S.P. for the State and learned counsel for the accused, the A.T.C. Court convicted and sentenced appellant/accused Muhammad Akbar and Ghulam Hussain Soomro as above stated while acquitting accused Imran Yousuf.
9. In support of the appeal Mr. A.Q. Halepota, has submitted that the learned trial Court has totally misread the evidence on record and thus, had reached the wrong conclusion vis-a-vis the guilt of the appellants. In this connection, firstly as regards the case of Ghulam Hussain, per learned counsel there is a delay of 36 hours in lodging the F.I.R. as the incident occurred on 24-8-2003 at 10-30 hours whereas the F.I.R. was lodged on 25-8-2003 at 17-15 hours which acquires great significance in view of the fact that Ghulam Hussain was previously known to the complainant and according to the prosecution case, the latter along with other co-accused had kidnapped Abdul Samad, the complainant's son. Hence, the complainant along with the police authorities cooked up the entire story involving the appellants /accused in other to extricate himself from the money dispute with absconding accused Ilyas which amounts Ghulam Hussain was trying to recover from the complainant on behalf of the latter. Per learned counsel, this fact would find support from the admission made by the complainant in cross-examination as to the money dispute between himself and accused Ilyas. In support of this contention learned counsel has relied upon Mehmood Ahmed v. The State 1995 SCMR 127.
10. Secondly, per learned counsel, the information regarding kidnapping of Abdul Samad was received by the complainant from his wife who also told him that Abdul Samad was called outside the flat by Ghulam Hussain to collect some documents etc. Since the complainant's wife was never examined hence, his testimony is mere hearsay and as such inadmissible as per the provisions of Article 71 of the Qanun-e-Shahadat Order. For this proposition, he has relied upon Ishaq v. The State PLD 1985 Kar. 595. Next, per learned counsel; regarding the ransom calls allegedly received at the complainant's residence from Ghulam Hussain, the connection to the latter is through Adil P.C.O. However, the bill of the complainant's land line (produced by the Investigating Officer) does not contain the number of said P.C.O.
11. Next, learned counsel has submitted that insofar as the testimony of P.W. Abdul Qadir, the brother of the abductee Abdul Samad, is concerned this does not ring true since the incident occurred on a Sunday morning when both boys were asleep. Hence there was no occasion for the complainant's wife to send Abdul Qadir after the abductee. This would only mean that he was a set up witness which fact is supported by the delay in lodging of the F.I.R. of 36 hours and of 6 days in recording of his 161, Cr.P.C. statement which was done on 30-8-2004. Learned counsel also submitted that the testimony of Abdul Qadir is to be considered with great caution since he is the brother of the abductee and the son of the complainant. So also, this witness has not said anything about the demand of ransom. Finally, as regards the recognition of the accused by this witness, per learned counsel no role has been assigned to them and to that extent the same was defective. In support of these submissions learned counsel relied upon Abdul Sattar v. The State 1981 SCMR 678; Lal Pasand v. The State PLD 1981 SC 142 and Ismail v. The State 1983 PCr.LJ 823.
12. Learned counsel has next taken up the deposition of P.W. Bakht Munir who was the Chowkidar and according to whom he had given the intercom to Ghulam Hussain on the day of the incident and heard hint talking to someone. Thereafter, he saw abductee Abdul Qadir coining out of the building and going away with Ghulam Hussain. Per learned counsel this witness has not said anything about the abductee being forced into the car by the accused. Similarly, he did not participate in the identification test of the accused and also did not say anything about handing over the intercom to Ghulam Hussain in his 161, Cr.P.C. statement (which was recorded belatedly on 30-8-2004) and hence his testimony in Court in this connection was an improvement. Consequently, per learned counsel, the same should be ruled out of consideration.
13. As regards the testimony of the abductee Abdul Samad, per learned counsel, he also does not say a word about any demand of ransom. According to him, both the appellants/accused as well as two others had kidnapped him on the day of incident and confined him in a room after putting a blind fold on his eyes and tying him up with ropes. However, no role has been assigned to the appellants during his period of captivity. According to the abductee, he was set free by his captors (other unknown accused) on the day of incident and when he came out side of the room he saw the police party along with appellant Ghulam Hussain. Hence per learned counsel, it has not been established that Ghulam Hussain, led to the recovery of the abductee which is supported by the Mashirnama of recovery in which the name of the former and his role is missing. Again per learned counsel there is no explanation for the delay in recording the statement of this witness which was done on 30-8-2004.
14. Next, as regards the testimony of P.W. Sadruddin who is the owner of Adil P.C.O., learned counsel has submitted that according to this witness two persons came to the P.C.O. on 27-8-2003 and asked his brother Saleem to dial 0300-2293640 (which per the prosecution is the mobile number of the complainant). However, neither Saleem who had dialed the number was examined and nor the bill of the P.C.O. was produced to establish that indeed on the day in question a call was made from the P.C.O. to the complainant's mobile number. Per learned counsel although the bill of this mobile number which has been filed by the A.P.P. does contain the number of the P.C.O., there is nothing on the record to show that this mobile number was owned by the complainant. In this regard learned counsel has also submitted that under cross-examination P.W. Sadruddin Yeas stated he could remember the number of the mobile phone from the rough notes maintained at the P.C.O., however, these were never produced by him. So also P.W. Sadruddin did not participate in the identification test of the accused and also his statement under section 161, Cr.P.C. was recorded on 30-8-2004 which has not been explained by the prosecution. Hence per learned counsel the testimony of this witness is of no consequence at all.
15. Finally, learned counsel has submitted that the testimony of P.W. S,-I. Ali Muhammad, the Investigating Officer to the effect that Ghulam Hussain had led to the recovery of the abd.uctee has been falsified by the memo. thereof according to which he was only leading to the general area. Similarly, the audio cassette produced by him allegedly containing the conversation between the complainant and Ghulam Hussain regarding ransom etc. was not played by the learned trial Court and hence no reliance can be placed upon the same. Per learned counsel no explanation has also been furnished by the Investigating Officer as to why the statements of the witnesses under section 161, Cr.P.C. were recorded with a delay of 4 to 5 days. Hence per learned counsel the entire case has been manufactured by, the Investigating Officer in conjunction with the complainant for no other purpose than to avoid the latter's financial obligations towards absconding accused Ilyas.
16. As regards the case of appellant Muhammad Akbar, learned counsel has firstly submitted that his name does not appear in the F.I.R. which is quite strange in the circumstances of the case since admittedly he is known to the complainant who along with the Police Officers went out in search of Ghulam Hussain and Muhanunad Akbar after the incident. They met P.W. Baazamir (car dealer) who informed them that Ghulam Hussain had rented the car in question from him and thereafter, they went to the former's Estate Agency and then to Muhammad Akbar's house. Hence per learned counsel the inclusion of his name in the challan was an afterthought.
17. Secondly, learned counsel has submitted that the identification of Muhammad Akbar by P.W. Abdul Qadir and Abdul Samad is not by role and hence defective. The same is further rendered doubtful in view of the fact that none of these witnesses have named Muhammad Akbar in their 161, Cr.P.C. statements. Similarly, P.W. Bakht Munir the Chowkidar does not involve him at all either in his 161, Cr.P.C. statement or in his deposition before the learned trial Court. Finally, with regard to the deposition of P.W. Sadruddin vis-a-vis Muhammad Akbar, he has recognized the latter in Court but also stated that Muhammad Akbar did not talk to anybody from his P.C.O. Per learned counsel identification in Court after almost two months of the incident was not reliable in view of State v. Farman Hussain PLD 1995 SC 1; Asghar Ali v. Saba 1992 SCMR 2088; Abdul Sattar v. The State 1988 SCMR 557 and Ramzan and others v. Emperor AIR 1929 Sindh 149.
18. For all the foregoing reasons learned counsel has submitted that the prosecution has failed to prove the case against the appellants/ accused beyond reasonable doubt and hence benefit of the same should be given to them and they should be acquitted. He has cited Ayub Masih v. The State PLD 2002 SC 1048 in support of this principle of law. Alternatively learned counsel has submitted that if at all the appellants/accused could only be convicted, of the crime of abduction simpliciter under section 365, P.P.C. (for which the maximum punishment is seven years) since there is nothing on the record to establish that indeed any ransom was demanded from the complainant or his family or for that matter paid. Learned counsel has prayed accordingly.
19. On the other hand, Mr. Habib Ahmed learned A.A.-G. has submitted that sufficient material has been brought on the record by the prosecution through evidence warranting the conviction and punishment of the appellants per the impugned judgment.
20. In this connection learned A.A.-G. has firstly submitted that the eye-witness account as per P.Ws. Abdul Samad, Abdul Qadir, and Bakht Munir is consistent since all of them corroborate each other both as to the date and time of the incident as well as the identity of the accused.
21. Regarding P.W. Abdul Samad (abductee) per learned A.A.-G., he is an honest witness as he admitted in his 164, Cr.P.C. statement that he knew Ghulam Hussain but did not involve acquitted accused Imran at all. Similarly, he did not pick out Imran in the identification test. However, he has squarely implicated Ghulam Hussain and Muhammad Akbar as the persons who had kidnapped him. He has also confirmed the deposition of the Investigating Officer regarding the fact that Ghulam Hussain was with them when he was recovered/released by the absconding accused. He has also picked out both Ghulam Hussain and Muhammad Akbar in the identification test. Per learned A.A.-G. this witness has been corroborated by P.W. Abdul Qadir his younger brother who saw the incident and noted the number of the car and also identified both the accused before the Magistrate with their respective roles viz. Ghulam Hussain was driving the car whereas Muhammad Akbar pushed Abdul Qadir inside it. Finally, P.W. Bakht Munir, Chowkidar has corroborated both P.W. Abdul Qadir and P.W. Abdul Samad as he saw both the brothers coming out of the house although he did not see the incident. He only recognized Ghulam Hussain in Court, which is sufficient as he had a good chance to see him plus the fact that he was a frequent visitor to the house of the complainant. Per learned A.A.-G. the eye-witness account has been corroborated by the recovery of the abductee Abdul Qadir as per the deposition of the Investigating Officer according to whom Muhammad Akbar had disclosed that abductee was kept with absconding accused Arshad alias Pappoo at Jehanabad and hence Ghulam Hussain led to the recovery as he knew the place.
22. Regarding the demand for ransom, learned A.A.-G. has firstly submitted that per the complainant the ransom calls were received from different mobile numbers as well as Adil P.C.O. at his mobile number and landline. In this connection he has referred to the copy of the complainant's mobile telephone bill i.e. bearing No.0300-2293640, which shows an incoming call from Adil P.C.O. bearing No.0391-2113212 on 26-8-2003. This has been corroborated by P.W. Sadruddin the owner of the P.C.O. who has also identified both the appellants in Court as the persons who had visited his P.C.O. on 26-8-2003 and further that Ghulam Hussain made two calls to the complainant's mobile number on that date.
23. As to the delay in the filing of the F.I.R., learned A.A.-G. has submitted that in a heinous offence the kidnapping for ransom, the family is usually reluctant to do so and in the first instance tries to settle the matter with the abductors before resorting to the police authorities.
Similarly, per learned A.A.-G. the delay in recording the 161, Cr.P.C. statements of the witnesses. is immaterial as all the details are mentioned in the F.I.R. Regarding the identification of the appellant/accused in Court, per learned A.A.-G., this is sufficient to record the conviction as an identification parade does not have any legal sanction i.e. it is not a must. For this proposition he has relied upon Muhammad Akbar v. The State 1998 SCMR 2538; Khawaja Hasanullah v. The State 1999 MLD 514 and The State v. Haider Zaidi 2001 SCMR 1919. Even otherwise, per learned A.A.-G. identification by role is not essential for which he has cited Ali Muhammad v. The State 1985 SCMR 1834; Yaqoob Khan v. State PLD 1996 SC 97 and Solat Ali Khan v. The State 2002 SCMR 820.
24. We have heard learned counsel as well as the learned A.A.-G. Our conclusions are as follows:--
25. It would be seen that the prosecution case consists of the following pieces of evidence.
(a) The ocular account.
(b) Identification of the appellant/accused in the test as well as before the learned trial Court.
(c) Recovery or the abductee.
(d) Demand for ransom/benefit.
26. Insofar as the ocular account and identification test are concerned, it would be seen that the most important eye-witness is the abductee Abdul Samad himself who has recognized both the appellants in Court and also picked them out in the identification test. He has described his ordeal in graphic detail viz. that on the day of the incident, Ghulam Hussain had lured him outside the apartment building on the pretext that some papers were to be handed over to the complainant for signatures which were lying outside in the car. Thereafter, Ghulam Hussain had occupied the driver seat of the car and Muhammad Akbar had pushed him inside it when he refused to get in. Then both the appellants along with the abductee and two other accused drove away and confined him in some unknown house/room where he was kept for four days. He was also blind folded and his hands and feet tied which were only opened when he was served with food or he wanted to answer a call of nature. On 28-8-2003 at about Fajar time he was released by his captors and asked to run away while they also made their escape good. The abductee thereafter came out of the room and found the police party along with Ghulam Hussain. He has steadfastly stood the test of cross-examination before the learned trial Court.
27. The testimony of Abdul Samad has been corroborated by P.W. Abdul Qadir, his younger brother who has stated that on the day of the incident, when Abdul Samad had gone out of the apartment his mother had also asked him to see as to what was the matter. Thereupon he saw Abdul Qadir along with Ghulam Hussain and three other persons and he heard the latter persuading his brother Abdul Qadir to take a file from him. Then he along with the others came outside the apartment building where he saw a white Sunny Nissan Car. Then Ghulam Hussain asked Abdul Qadir to sit in the car and upon his refusal Muhammad Akbar pushed him into the front seat and also sat along side him. Ghulam Hussain then occupied the driver seat and all the four accused drove away with his…
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