HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No.3/2011

Special Criminal Anti-Terrorism Appeal No.4/2011

Special Criminal Anti-Terrorism Appeal No.5/2011

Confirmation Case No.02 of 2011

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Aftab Ahmed Gorar

JUDGMENT

Date of Hearing: 03^rd March 2016

Date of Announcement: 28^th March 2016

Appellants Arz Muhammad S/o Muhammad Ramzan and Moar Burriro S/o Abdul Sattar through M/s. Mushtaq Ahmed & Raja Hassan Nawaz, advocates

Irshad Ahmed son of Mohabat Khan through Mr. Abdul Razzak, Advocate

Muhammad Hassan son of Taj Muhammad through M/s. Mehmood A. Qureshi & Jamshed Iqbal, advocates

Respondent State through Mr. Muhammad Iqbal Awan APG.

Complainant: Kamran Qadir through Mr. Lal Hussain Shah, Advocate

Naimatullah Phulpoto, J.-- Appellants Arz Muhammad alias Jalal son of Muhammad Ramzan Balouch, Moar son of Abdul Sattar Burriro, Irshad Ahmed son of Mohabat Khan and Muhammad Hassan son of Taj Muhammad were tried by learned Judge, Anti-Terrorism Court-III, Karachi in Special Case No.20/2010, arising out of F.I.R. No.53/2010, registered at police station Defence (AVCC) for offences under sections 365-A, 34 PPC read with section 7(e) of the Anti-Terrorism Act, 1997. Appellant Arz Muhammad alias Jalal Gorchani Baloch was also tried in Special Case No.21/2010, arising out of F.I.R. No.11/2010, registered at P.S. Defence (AVCC), Karachi for offence under sections 324, 353, 34, PPC. Appellants Arz Muhammad alias Jalal Gorchani Baloch son of Muhammad Ramzan, Moar Burriro son of Abdul Sattar, Irshad Ahmed son of Mohabat Khan and Muhammad Hassan son of Taj Muhammad were also tried in Special Cases Nos.22, 23, 24 and 25 of 2010, arising out of F.I.Rs. Nos.12, 13, 14 and 15 of 2010, respectively, registered at P.S. Defence (AVCC) for offence under section 13(d) of the Arms Ordinance, 1965 by learned Judge, Anti-Terrorism Court-III, Karachi. After full dressed trial, appellants were found guilty by the learned trial Court and were convicted and sentenced as under:-

(i) Accused Arz Muhammad alias Jalal Gorchani Baloch son of Muhammad Ramzan, Moar Buriro son of Abdul Sattar, Muhammad Hassan son of Taj Muhammad and Irshad Ahmed son of Mohbat Khan are convicted under section 7(e) of Anti-Terrorism Act, 1997 read with Section 365-A, PPC to the punishment of death and they shall be hanged by Neck till death. Their movables and immovable properties shall be forfeited to the Government.

(ii) I also convict all the four accused Arz Muhammad alias Jalal Gorchani Baloch, Moar Buriro, Muhammad Hassan and Irshad Ahmed under section 324, 353, 34 PPC to suffer imprisonment for 7 years and liable to pay fine of Rs.1,00,000 each in case of non-payment they shall suffer R.I. for 03 years more.

(iii) I also convict each accused Arz Muhammad alias Jalal Gorchani Baloch, Moar Buriro, Muhammad Hassan and Irshad Ahmed under section 13(d), Arms Ordinance, 1965 to suffer R.I. for 5 years and pay fine of Rs.50,000 each in case of non-payment they shall suffer R.I. for one year more.

Trial Court made reference for confirmation of death sentences as required under section 374, Cr.PC. Benefit of section 382-B, Cr.PC was extended to appellants in the case.

2. Through aforesaid appeals, appellants have challenged their conviction and sentence recorded against them. We intend to dispose of aforesaid appeals and death reference by this single judgment.

3. Brief facts of the prosecution case as disclosed in the F.I.R. are that on 14.01.2010 Kamran Qadir lodged F.I.R., alleging therein that on 14.01.2010 in the morning at 07:15 a.m. he along with his driver Moar dropped his two children at their school. Thereafter, his driver Moar went to drop his wife at Agha Khan Hospital. After returning from hospital , it is alleged driver Moar went to drop the minor son of the complainant, namely, Arsh Nabi Kamran, aged three years at 08:45 a.m. in the car of the complainant bearing No.AKM-775, Honda City to school. Complainant has stated that driver failed to return back home by 02:00 p.m. Complainant was worried because of his son. Then complainant went in search of his son but there was no clue for his son Arsh Nabi Kamran. Complainant went to the police station and lodged his report. It was recorded on 14.01.2010 vide Crime No.53/2010 at police station Defence (AVCC) for offences under sections 364-A/365, PPC. Investigation of the aforesaid crime was entrusted to Zakaullah Sangi. Investigation officer contacted the complainant and he informed investigation officer that ransom has been demanded from him. Thereafter, investigation officer added section 365-A, PPC. Complainant had shown the place of incident to the investigation officer, from where minor boy was kidnapped. Such mashirnama was prepared in presence of mashirs. Investigation Officer recorded 161, Cr.PC statements of PWs. Investigation officer came to know on spy information that car belonging to the complainant, used in the commission of offence, has been parked near Hab River Road, opposite Quetta Al-Noor Hotel, Yousuf Goth, Karachi bearing No.AKM-775 Honda City. Police secured the same in presence of mashirs and prepared such mashirnama and brought the car to the Police Station Defence (AVCC), Karachi. On 20.01.2010 complainant informed the investigation officer that on 19.01.2010 he along with his friend Abid Hussain had gone to Dera Allahyar and paid ransom of Rs.1,000,000/-. Thereafter, investigation officer recorded statements of PW Abid Hussain under section 161, Cr.PC. Investigation officer handed over car to complainant on 20.01.2010 on superdari and started search of the culprits involved in the offence. On 24.01.2010 investigation officer received spy information that culprits would shift the boy to Interior Sindh through Northern Bypass. On such information, investigation officer conveyed this message to the high officials and proceeded along with his staff to the Northern Bypass by making such entry. Investigation officer started checking of the vehicles at 04:45 a.m. A car bearing registration No.ALS-983 Suzuki Alto, silver coloured, appeared from HAB and reached at Northern Bypass. It was stopped by the police in which four persons were sitting. While seeing the police accused alighted and started firing on the police, police also fired in self defence. After exchange of fires police succeeded to arrest the accused and recovered a boy, namely Arsh Nabi Kamran, sitting on the back seat of the car. Complainant was also accompanied with the police party at that time. He identified his son. During interrogation, accused disclosed their names, as Arz Muhammad alias Jalal Gorchani Baloch son of Muhammad Ramzan, Moar Burriro son of Abdul Sattar, Irshad Ahmed son of Mohabat Khan and Muhammad Hassan son of Taj Muhammad. Their personal search was conducted in presence of mashirs. On the personal search of accused Arz Muhammad alias Jalal Gorchani Baloch one Kalashnikov, containing 7 live bullets and one bullet in the chamber, one mobile phone Nokia-1208 with one SIM, three separate SIMs wrapped in a paper and cash Rs.300/- were recovered from his possession. From personal search of accused Moar one 30 bore pistol, without number, containing two bullets in the magazine and one in chamber, one Nokia mobile phone 1200 with SIM and one separate SIM and cash Rs.200/- were recovered. Personal search of accused Muhammad Hassan was conducted, a 30 bore pistol without number with three live bullets in the magazine and one in chamber and cash Rs.400/- were recovered. From person search of accused Irshad Ahmed, one 30 bore pistol, containing one bullet in chamber and one in magazine and cash Rs.200/- were recovered. Investigation Officer inquired from all the accused persons about the licenses of the weapons carried by them, to which they replied in negative. Thereafter, mashirnama of arrest and recovery was prepared in presence of mashirs, case property was sealed at spot; accused, case property and boy were brought to police station. Investigation Officer recorded statement of complainant under section 161, Cr.PC, thereafter, Investigation Officer lodged F.I.R. against four accused on behalf of the State being FIR Nos.11/2010, under sections 324, 353, 34, PPC and F.I.Rs. Nos.12, 13, 14 and 15 of 2010, were registered at P.S. Defence (AVCC) against accused Arz Muhammad alias Jalal Gorchani Baloch, Moar Burriro, Irshad Ahmed and Muhammad Hassan for offence under section 13(d) of the Arms Ordinance, 1965. Thereafter, F.I.Rs. Nos.12, 13, 14 and 15 of 2010 were entrusted to Investigation Officer Bashir Ahmed of P.S. Defence (AVCC) for investigation and arms and ammunitions recovered from accused persons and Car ALS-983, Suzuki Alto, silvered colour were handed to the Head Muharar of police station Defence (AVCC). Investigation Officer recorded 161, Cr.PC statements of PWs, Investigation Officer of the aforesaid crimes visited place of encounter/vardat and in presence of mashirs prepared such mashirnama. Thereafter, it appears that on 27.01.2010 Investigation Officer submitted an application to the Principal, Rohi Montessori School, Clifton, Karachi for obtaining the attendance certificate of kidnapped boy Arsh Nabi Kamran with effect from 14.01.2010 to 24.01.2010. Investigation Officer on 27.01.2010 went to the Incharge, CPLC for collecting the call data of Cell Nos.03003600889, 03002310484 and 03008298870. On the completion of usual investigation, Investigation Officer submitted challan against the accused under the above referred sections.

4. On the application of learned Special Prosecutor cases under sections 324, 353, 34, PPC and under section 13(d) of the Arms Ordinance, 1965, were amalgamated by learned Judge, Anti-Terrorism Court-III, Karachi for joint trial by order dated 04.09.2010. Thereafter, charge was framed against the accused in the aforesaid Crimes at Ex-6. All the four accused pleaded not guilty and claimed to be tried.

5. At trial prosecution examined the following witnesses:-

1. PW-1/Complainant Kamran Qadir at Ex-11

2. PW-2 Tajuddin at Ex-12

3. PW-3 Abid Hussain at Ex-15

4. PW-4 PC Wasim Abbas at Ex-16

5. PW-5 Ashraf Ali at Ex-17

6. PW-6 Zakaullah Sangi at Ex-18

7. PW-7 Bashir Ahmed, Investigation Officer at Ex-19

8. PW-8 Tahir Naseer, Investigation Officer at Ex-20

Thereafter, prosecution side was closed at Ex.21.

6. The statements of accused were recorded u/s 342 Cr.P.C at Ex.22 to 25, in which they have denied the prosecution allegations. Accused Moar has denied that he was driving the car of the complainant and raised plea that he is not driver. He has also denied that calls were made from his SIM/number. He has further stated that PWs have deposed against him at the instance of Investigation Officer Tahir Naseer, who wanted to show his efficiency before DIG Akhtar Memon. Accused Arz Muhammad alias Jalal Gorchani Baloch has also denied that he had received ransom from the complainant. He has also raised plea that he has falsely been implicated in this case at the instance of DIG Akhtar Memon and MNA Aijaz Jakhrani and claimed that he was arrested on 17.01.2010 from his native place. Appellant/accused Muhammad Hasan and Irshad Ahmed have also denied the allegations and stated that abductee was not recovered from their possession in police encounter and denied about police encounter. They have raised plea that Investigation Officer in order to show his efficiency has involved them falsely in this case at the instance of DIG Akhtar Memon, who is brother-in-law of the complainant. Appellant/accused Irshad Ahmed has examined in defence his mother Mst. Samul Khatoon and wife Mst. Haseena. DWs have been examined at Ex-27 and 28. He has also examined himself on oath.

7. We have carefully heard the learned counsel for the appellant, learned A.P.G. for the State and perused the evidence minutely.

8. The facts of this case as well as evidence produced before the trial Court find an elaborate mention in the impugned judgment passed by learned Judge, Anti-Terrorism Court-III, Karachi and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Mr. Mushtaq Ahmed, learned counsel for the appellants Arz Muhammad and Moar Buriro argued that accused Moar had never remained driver of complainant Kamran Qadir, no one had seen Moar while kidnapping the boy for ransom. He has argued that no cell numbers were in the name of appellant Moar and same have been managed by the police. As regards to appellant Arz Muhammad alias Jalal Gorchani Baloch, it is argued that no ransom was received by Arz Muhammad and no call data of contact between the complainant and Arz Muhammad has been proved by the prosecution at trial. He has argued that no ransom was recovered from Arz Muhammad. Regarding police encounter, it is argued that it was fake encounter. Despite use of sophisticated weapons, not a single scratch was caused to anybody. He has argued that prosecution case against appellants Moar and Arz Muhammad is highly doubtful.

10. Mr. Mehmood A. Qureshi, learned counsel for accused Muhammad Hassan argued that only piece of evidence collected against accused was participation in police encounter and recovery of abductee boy. It is argued that prosecution has failed to establish the contact of these appellants with accused Moar and Arz Muhammad in the commission of offence. It is argued that despite exchange of fires with sophisticated weapons not a single injury was caused to anybody or damage to police mobile. It is further argued that after encounter Investigation Officer inspected the place of wardat but not a single empty used from the official weapons was collected. Lastly argued that no encounter at all had been taken place and weapons have been foisted upon the accused.

11. Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General Sindh, assisted by Mr. Lal Hussain Shah, learned counsel for the complainant, argued that appellant Moar was driver of the complainant appellant Moar took the boy/abductee from the house for school in Car NoAKM-775 but did not return back on 14.01.2010. Learned A.P.G. has also argued that complainant on the next day of incident had received calls from the mobile numbers of accused Moar in which demand of ransom was made. Learned A.P.G. has further argued that complainant and his friend PW Abid Hussain paid ransom to accused Arz Muhammad at Dera Allahyar. Regarding other appellants, namely, Muhammad Hassan and Irshad Ahmed, learned A.P.G. argued that while shifting the abductee to interior Sindh boy was recovered in police encounter at Northern Bypass. A.P.G. argued that police officials recovered boy from all the four accused after encounter and recovered unlicensed weapons from them. It is also argued that prosecution has proved main case as well as cases under section 13(d) of the Arms Ordinance, 1965 against the accused.

12. We have carefully heard the learned counsel for the parties and scanned the prosecution and defence evidence. As the cost of repetition, we discuss the prosecution evidence, keeping in view the peculiar facts and circumstances of the case.

13. Complainant Kamran Qadir has deposed that on 14.01.2010 he left his house along with his two children for leaving them at school and he returned home at 07:15 a.m. His driver Moar took his wife, who is doctor by profession, to Agha Khan Hospital. When driver Moar returned after leaving his wife at her job driver Moar took his son Arsh Nabi Kamran, aged about three years for leaving him at School Rohi Montessori in Clifton. He further stated that usually children return back at 02:00 p.m. but on 14.01.2010 his son Arsh Nabi Kamran did not return back. He made search for his son but without any result and reported the matter to police station Defence. Complainant has stated that on the next day at about 10:30 to 10:00 a.m. he received a call from the cell number of his driver Moar 03002310484 on his cell number 03008298870. The caller from the said cell number told to the complainant that his son has been kidnapped for ransom and demanded Rs.2 crores. Thereafter, number of driver was switched off. After five to ten minutes complainant again received a call from the same number and he was asked to make arrangement of the ransom and threats were issued to him. Complainant replied to the caller that he was unable to make arrangement of Rs.2 crores. After 3/4 days from another cell number 03003600889 complainant received a call. It was also the number of driver Moar. Complainant has stated that ransom of Rs.1,000,000/- was settled with the caller for return of his boy but complainant was asked to deliver the amount in Dera Allahyar. Complainant has stated that on 19.01.2010 he along with his friend Abid Hussain left for Dera Allahyar via Sukkur, Jacobabad Road in his car and reached at Dera Allahyar at 04:00 p.m. Complainant contacted kidnappers, who asked the complainant to wait at Jacobabad Highway. Complainant had deposed that at 04:45 p.m. two persons appeared on motorcycle. They were aged about 40 to 45 years. They demanded ransom from the complainant. He inquired from them about his son, they told that complainant would receive his son at Karachi. Complainant gave them ransom of Rs.1,000,000/- and they promised that his son would reach at Karachi. Thereafter, complainant along with his friend PW Abid Hussain returned to Karachi. Complainant has further stated that on the same night culprits demanded from him Rs.1 Crore more as ransom. On 20.01.2010 Tahir Naseer, investigation officer of the case came at his home and handed over car No.AKM-775 Honda City in which his son was kidnapped. Complainant has stated that on 24.01.2010 at 02:00 a.m. he along with police party of CPLC left Lucky Stop NLC Chowrangi on Northern Bypass where police party started checking of the vehicles. At 04:00 a.m complainant had deposed that one Alto Car of Silver Colour, bearing Registration No.ALS-983 appeared. While seeking the police party, firing was started upon the police party. Police party also retaliated and apprehended the accused persons after encounter. Complainant had deposed that police found his son sitting in the car at its back seat and boy was handed over to the complainant. On the inquiry, accused disclosed their names to the police. Personal search of accused was conducted in presence of mashirs. From possession of accused Arz Muhammad one Kalashnikov, one mobile set and some SIMs were recovered. From accused Moar complainant stated that he was driver and police secured one revolver, one mobile set and cash from his possession. Third accused on inquiry disclosed his name as Muhammad Hassan, one revolver was recovered from his possession. From accused Irshad Ahmed, a revolver was also recovered. All the accused had no licenses for the weapons carried by them. S.H.O. prepared mashirnama of their arrest and recovery of weapons and boy in presence of mashirs and weapons were sealed at the spot. Thereafter, accused and case property were brought to the police station where case of encounter with the police and case under section 13(d) of the Arms Ordinance, 1965 were separately registered against all the four accused on behalf of State. Complainant has categorically stated that accused Moar present in Court was same so also accused Arz Muhammad, to whom he had given ransom of Rs.1,000,000/-. Complainant has stated that other three accused were also arrested in his presence and police recovered his son from them at the time of encounter.

14. PW-3 Abid Hussain, friend of the complainant, has stated that on 14.01.2010 he came to know that son of the complainant Kamran Qadir has been kidnapped. On 19.01.2010 at 08:00 a.m. he along with complainant Kamran Qadir had gone to Dera Allahyar, Balochistan in car via Sukkur. The accused contacted complainant Kamran Qadir in his presence on mobile and asked him to stop at Jacobabad road and wait for them. At 05:00 or 05:30 p.m. two persons appeared on a motorcycle and demanded ransom from the complainant. Complainant asked them about his son, to which they replied that he would get his son at Karachi. Complainant paid them ransom of Rs.1,000,000/-, thereafter, he along with complainant returned back to Karachi but son of complainant was not released. He has stated that complainant informed him that accused have demanded more ransom. This witness has categorically stated that accused Arz Muhammad present in Court was same who had received Rs.1,000,000/- as ransom from complainant in his presence.

15. PW-8 Tahir Naseer has stated that he was entrusted investigation of F.I.R. No.53/2010, registered at P.S. Defence under section 364-A, 365, PPC. He met the complainant, on his pointation prepared mashirnama of the place from where son of the complainant was kidnapped. IO secured car of the complainant bearing NoAKM-775 Honda City. Investigation Officer was informed by the complainant on 20.01.2010 that on 19.01.2010 he along with his friend Abid Hussain had gone to Dera Allahyar where they had paid ransom to two persons at Jacobabad Road. Investigation Officer has deposed that on 24.01.2010 he received spy information that accused would shift the abductee/boy to interior Sindh through Northern Bypass. IO and staff started Nakabandi at 04:45 a.m. A car bearing registration No.ALS-983, Suzuki Alto, silver colour appeared from Hab side to the Northern Bypass. Police party gave signal for stopping it and four persons alighted from the car. While seeing the police party they started firing with intention to kill. IO has stated that police party also retaliated and apprehended four accused persons and recovered abductee Arsh Nabi Kamran, sitting on the back seat of the car. Boy was identified by the complainant. On inquiry, one accused disclosed his name as Arz Muhammad, he was carrying Kalashnikov, it was secured by the police, it’s magazine contained 7 live bullets and one bullet in its chamber, one mobile phone Nokia 1208, having one SIM, three more SIMs wrapped in a paper and cash Rs.300/-. On the personal search of accused Moar one 30 bore pistol, without number, containing two bullets in the magazine and one in chamber, one Nokia mobile phone 1200 with SIM and one separate SIM and cash Rs.200/- were secured. From accused Muhammad Hassan, one 30 bore pistol without number with three live bullets in the magazine and one in chamber and cash Rs.400/- were secured. From personal search of accused Irshad Ahmed, one 30 bore pistol, containing one bullet in chamber and one in magazine and cash Rs.200/- were secured. All the accused had no licenses for the weapons carried by them. ASI prepared mashirnama of arrest and recovery and sealed the case property at the spot and brought accused and case property to the police station where Investigation Officer registered F.I.R. No.11/2010 under sections 324, 353, 34, PPC on behalf of the State against the accused. Separate F.I.Rs. Nos.12, 13, 14 and 15 of 2010 were registered at P.S. Defence against the accused on behalf of the State. Investigation Officer collected 5 empties of Kalashnikov and 3 empties of pistols from place of encounter. Investigation Officer received certificate of child regarding his absence from the school from Rohi Montessori, Clifton, Karachi w.e.f. 14.01.2010 to 24.01.2010. Investigation Officer collected call data of Cell Phones 03003600889, 03002310484 and 03008298870 and call data of Cell numbers 03003600889, 03002310484 and 03008298870. Prosecution has also examined mashirs of arrest and recovery.

15. P.W-7 Bashir Ahmed has conducted investigation of cases bearing F.I.R. No. 11/2010 u/s 324/353/34 PPC and F.I.R. Nos. 12/2010, 13/2010, 14/2010 and 15/2010 u/s 13 (d) Arms Ordinance of PS AVCC. He has stated that he had visited place of encounter which was shown to him by IO Tahir Naseer situated at Northern Bypass Chowrangi Lucky stop and he prepared mashirnama in presence of the mashirs ASI Faiz Ahmed and PC Ashraf Ali. IO recorded 161 statements of P.Ws/police officials and of complainant Kamran Qadir and sent Arms to FSL and produced report Forensic Division at Ex.19-H. In the cross examination, he has admitted that none had received injuries in the incident and police mobile was also not hit. He has also admitted that arms/weapons were dispatched to ballistic expert on 30.01.2010 but the same were received by Ballistic Division on 17.03.2010.

16. Appellant Irshad Ahmed in his evidence on oath has stated that on 22.01.2010, he left Jacobabad at 10:00 pm for Karachi by coach along with his mother Samul Khatoon and wife Mst. Haseena. On the next day reached at Sohrab Goth Karachi at 6:00 am and police arrested him from the coach. Mst. Haseena DW-2 wife of accused Irshad Ahmed and his mother DW-3 Mst. Samul have also narrated the same facts. Accused Irshad Ahmed, his wife and mother in cross-examination to learned SPP have denied the suggestion of SPP for deposing falsely.

17. We have given anxious consideration to the submissions made by the learned counsel for the parties and re-appraised the prosecution evidence to satisfy ourselves about the truthfulness of the prosecution story. We find that victim boy aged about three years was not examined before the trial Court on account of his tender age on the application of complainant. However, complainant/father of the victim boy has been examined by the prosecution. He has deposed that his son, namely, Arsh Nabi Kamran was picked up by his driver Moar to the school in his car but boy was not returned home by the driver. Driver Moar had also disappeared along with car. On the next day, the complainant received a call from a number of Moar driver but caller was some unknown person and he demanded ransom from the complainant. Complainant narrated this fact to the police and proceeded along with his friend Abid Hussain to Dera Allahyar for payment of ransom of Rs.1,000,000/- for release of his son, as demanded by accused. Complainant has categorically stated that he paid Rs.1,000,000/- to two persons who appeared on motorcycle at Jacobabad Road and complainant identified accused Arz Muhammad in the Court and stated that he was same person, who got ransom from him. Complainant was subjected to cross-examination at length but defence could not shake his evidence with regard to the above narrated facts and payment of ransom to accused Arz Muhammad. Evidence of complainant is fully corroborated by his friend PW-3 Abid Hussain. He has deposed that he came to know about the incident and complainant took him to Dera Allahyar for payment of ransom of Rs.1,000,000/-. He has stated that complainant paid Rs.1,000,000/- to two persons who appeared on motorcycle on Jacobabad Road. PW Abid Hussain clearly deposed that accused Arz Muhammad present in the Court was the same, to whom the ransom of Rs.1,000,000/- was paid for release of son of the complainant. Evidence of the complainant and PW-3 Abid Hussain fully establish the factum of abduction and payment of ransom. The evidence of complainant fully corroborated by other evidence established the abduction of minor boy by accused Moar and payment of ransom to appellant Arz Muhammad. Complainant and PW-3 had no motive to falsely implicate the accused/appellant Moar and Arz Muhammad in this crime. Defence plea of these accused appears to be afterthought and unbelievable. As regards to the second episode of the incident regarding recovery of the boy in the police encounter and recovery of the arms/crime weapons from the accused persons after registration of the F.I.R. Nos. 12, 13, 14 and 15 of 2010 were handed to Bashir Ahmed IO of P.S. Defence (AVCC) for investigation and recovered arms and ammunitions recovered from the accused persons and Car ALS-983, Suzuki Alto, silvered colour were handed to the Head Muharar of police station Defence (AVCC) on 24.01.2010. Investigation Officer recorded 161, Cr.PC statements of PWs and ASI Tahir Naseer of P.S. AVCC, Investigation Officer of the aforesaid crimes visited the place of encounter and inspected it in presence of mashirs and prepared such mashirnama. Thereafter, it appears that on 27.02.2010 Tahir Naseer Investigation Officer submitted an application to the Principal, Rohi Montessori School, Clifton, Karachi for obtaining the attendance certificate of kidnapped boy Arsh Nabi Kamran with effect from 14.01.2010 to 24.01.2010. Investigation Officer on 27.01.2010 went to the Incharge, CPLC for collecting the data of Cell Nos.03003600889, 03002310484 and 03008298870. On the completion of investigation, Investigation Officer submitted challan against the accused under the above referred sections. Call data collected by the Investigation Officer clearly connects these two accused in the commission of offence. Call data of Cell Nos.03003600889, 03002310484 and 03008298870 reflects that calls were made from Cell Numbers 0300-2390484 and 0300-2600889 in the use of driver from which calls were made to Cell No.03008298870 with effect from 14.01.2010 to 19.01.2010.

18. Kidnapping of minor boy for ransom is proved against accused Mour and Arz Muhammad for the reasons that abduction was for extortion of ransom. In the case of JUNAID REHMAN and others vs. THE STATE and others (PLD 2011 S.C 1135), Honourable Supreme Court of Pakistan has held as follows:-

“6. From a bare reading of the provisions of section 365-A, P.P.C. and section 2(n) of the Anti-Terrorism Act, 1997 it is quite evident that in order to constitute an offence of abduction for ransom actual payment of ransom and proof thereof are not sine qua non and the said offence also stands constituted if there is an abduction and the purpose of abduction is extortion of ransom (section 365-A, P.P.C.) or ransom is demanded for release of the abductee (section 2(n) of the Anti-Terrorism Act, 1997). Section 365-A, P.P.C. 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 abducted, 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."

Section 2(n) of the Anti-Terrorism Act, 1997 provides as under:

"(n) "kidnapping for ransom" means the action of conveying any person from any place, without his consent, or by force compelling or by any deceitful means inducing him, to go from any place, and unlawfully detaining him and demanding or attempting to demand, money, pecuniary or other benefit from him or from another person, as a condition of his release."

19. In the present case Kamran Qadir P.W-1, the father of abductee boy had given the details regarding the incident by involving his driver accused Mour in the abduction of his son namely Arsh Nabi Kamran aged about 03 years. He had also provided elaborate details of demands made by culprits from time to time for payment of ransom for the release of his son. Complainant has given evidence before the trial court and involved accused Mour in the abduction of his son and regarding accused Arz Mohammad, complainant has deposed that he paid ransom to him at Dera Allahyar, Jacoabad road. Evidence of complainant and P.W-3 Abid Hussain who had accompanied with the complainant to Dera Allahyar and payment was made before him. Evidence of both witnesses had remained completely unshaken in cross-examination. They had no motive to falsely implicate the accused in this case. We have no hesitation to hold that prosecution has proved it’s case of kidnapping for ransom against accused Moar and Arz Muhammad.

20. Evidence against other appellants Muhammad Hassan and Irshad Ahmed is that kidnapped boy was recovered from their possession in a car on 24.01.2010 at Northern Bypass by police after encounter. It was the case of the prosecution that on spy information police party proceeded to the pointed place and gave signal to Car No.ALS-983, Suzuki Alto, silvered colour. Accused started firing upon the police party with intention to kill; police also retaliated and succeeded to arrest four accused, namely Arz Muhammad, Moar, Muhammad Hassan and Irshad Ahmed and recovered boy from the car, who was identified by complainant Kamran Qadir, he was with the police, at the relevant time. We are unable to believe the story of police encounter and recovery of unlicensed weapons for the reasons that the second episode of the incident shows that despite firing by the accused with sophisticated weapons including Kalashnikov not a single injury/scratch was caused to the police party or complainant Kamran Qadir, even no damage was caused to the police mobile. Investigation Officer has stated that he has received spy information that culprits would shift the child to interior Sindh, he started checking at the place of incident. It was case of spy information, as to why the Investigation Officer did not associate independent persons as mashir of arrest and recovery. Weapons were dispatched to Forensic Division on 30.01.2010 but the same were received by Forensic Division on 17.03.2010. Delay in sending weapons to forensic division has not been satisfactorily explained, as such no sanctity can be attached to positive report. The standard of the proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was case of police encounter. It was desirable that it should have been investigated by some other agency. Such dictum has been laid down by the Honourable Supreme Court in the case of Zeeshan alias Shani versus the State (2012 SCMR 428). Relevant portion is reproduced as under:-

“11. The standard of proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction in a charge involving capital sentence, that too when it is riddled with many lacunas and loopholes listed above, quite apart from the afterthoughts and improvements. It would not be in accord of safe administration of justice to maintain the conviction and sentence of the appellant in the circumstances of the case. We, therefore, by extending the benefit of doubt allow this appeal, set aside the conviction and sentence awarded and acquit the appellant of the charges. He be set free forthwith if not required in any other case.”

21. From the close scrutiny of the evidence, we have come to the conclusion that there is no cogent evidence against remaining two accused Muhammad Hassan and Irshad Ahmed to connect them in the commission of the offence of kidnapping for ransom. As regards to the conviction and sentence of all appellants/accused in the case of encounter and under section 13(d) of Arms Ordinance, 1965, are concerned, we have already come to the conclusion that prosecution has failed to prove its case against the appellants to maintain their convictions in the police encounter case bearing No.11/2010, registered at P.S. Defence under sections 324, 353, 34, PPC so also in 13(d) Arms Ordinance, 1965 cases bearing crimes Nos.12, 13, 14 and 15 of 2010, registered at P.S. Defence. Charge framed by trial Court at Ex-6 showed that in Crime No.11/2010 under sections 324, 353, 34 PPC it was framed against accused Arz Muhammad, not against all accused but all the accused were convicted and sentenced under sections 324, 353, 34, PPC, contrary to law. Prosecution failed to prove by cogent evidence that accused attempted to commit qatl-i-amad and assaulted or used criminal force to deter police party on 24.01.2010 from discharge of its duty. Rightly reliance has been placed upon the case of MUMTAZ ALI versus THE STATE (2011 SCMR 70), in which it is held as follows:

“5. Having heard the learned counsel for the parties and having reappraised the evidence with their assistance, we find that admittedly the occurrence took place at a public place and according to Muhammad Umar, SIP (P.W.1), he fired 45 shots in the alleged police encounter but surprisingly, neither during occurrence nor after the occurrence any one from public reached the spot. The statement of the other witness namely Akhtar Hussain, HC (P.W.2) does not improve the prosecution case in any manner and a bare reading of the same, would show that neither in his statement nor in that of P.W. 1 there is allegation that appellant fired at the police party. Their statements are to the effect that after the encounter they reached the spot and found a person lying dead, one decamped and appellant was lying injured. Although according to the prosecution, three accused fired at the police party but surprisingly no member of the police party was injured nor any bullet hit police vehicle. The consistent plea of the appellant during the trial was that there was exchange of firing between two parties and he got injured in the cross firing. There is nothing on record to indicate that this plea was ever investigated instead the complainant police officer himself investigated the case. The non-production of medical evidence particularly with regard to injury received by the appellant is a serious infirmity in the prosecution case as in absence of that it would not be free from doubt to hold that the appellant received the injury on account of firing by police party or those were caused by cross firing between the two parties. Even if the prosecution story is admitted to be true that there was firing from the side of the accused the possibility that it was the deceased Shafoo or the absconding accused who fired at the raiding party, could not be ruled out.”

22. We have given our due consideration to the quantum of sentence awarded to appellants Arz Muhammad and Moar. Allegation against these two accused is that accused Moar kidnapped boy for ransom in car of complainant but ransom was received by accused Arz Muhammad on 19.01.2010 at Jacobabad Road, Dera Allayhar. During captivity no harm or torture was caused to the minor boy and sentence to death to appellants Arz Muhammad and Moar in above circumstances of the case appears to be harsh one. In the case of SHIRAZ-UL-HAQ versus THE STATE (2010 SCMR 646), it is held as under:

“8. We have given due consideration to the question of reduction of sentence and find that the acquitted accused Khawaja Muhammad was released though allegation against him was that he was providing meal to the victim at the place of his detention. Thus it appears that he was involved in the case but the learned trial Court gave benefit of doubt to him. The finding of acquittal was accepted by the prosecution, as they did not prefer any appeal to challenge his acquittal. The prosecution alleged that incident of abduction was witnessed by P.W. Zeeshan Siddiqui he has not been examined as such on this aspect of the case there is evidence of victim only. The ransom amount has not been recovered from the appellants. Furthermore, the prosecution alleged that the culprits had used the Credit and Debited Cards and lacs of rupees were taken out from the account of the victim but no cogent evidence through any Bank official has been produced to prove such allegation. The confinement of the victim is of two days only with no allegation of torture. In the case of Ansar Ahmed Khan Barki v. State 1993 SCMR 1669 this Court observed that the accused who had succeeded in casting some doubt on the version of prosecution case was entitled to its benefit in matter of sentence. This Court in the case of Qasim v. State 1999 SCMR 2841 maintained the sentence of imprisonment for life by not finding any irregularity or legal infirmity in awarding such sentence by Courts below when 5 dacoits abducted 2 persons and released them after seven days of receiving ransom amount. In the case of State v. Nazir Ahmed 1999 SCMR 610 seven accused abducted a boy of 16 years and after receiving ransom amount of Rs.3,00,000, which was secured from one of the accused and the trial Court awarded maximum sentence of life imprisonment (before amendment through Ordinance XIV of 1990). Two accused were acquitted. The learned High Court, in appeal, acquitted the accused. The State preferred appeal before this Court. The Court allowed the appeal in respect of Nazir Ahmed as he was only present before the Court because the other accused were either dead or absconders. The allegation against the accused was of abduction, receiving ransom amount and its recovery as clear from para 21 of the said judgment. The Court observed that the case was of not such where maximum sentence should be awarded.

9. Keeping in view the above decisions, we are of the view that this is not an extreme case of abduction, therefore, in such a case the sentence of death to three persons appears to be harsh one. Hence we reduce the sentence of the appellants from death to imprisonment for life. With the said modification in the sentence, the appeals are dismissed.”

23. While respectfully relying upon the dictum laid down by the Honourable Supreme Court in the aforesaid case, we are of the considered view that this is not an extreme case of abduction for ransom. Learned A.P.G. has also conceded for reduction of death sentence to the imprisonment for life, therefore, we are of the considered view that this is the fit case to reduce the death sentence to imprisonment for life and death sentence awarded by trial Court vide judgment dated 21.01.2011 to the appellants appears to be harsh one.

24. For what has been discussed above, death sentence awarded to appellants Arz Muhammad and Moar is reduced from death sentence to imprisonment for life. Appellants shall be extended benefit of section 382-B, Cr.PC. Appellants Muhammad Hassan and Irshad Ahmed by extending benefit of doubt are acquitted in Crime No.53/2010 of P.S. Defence under section 365-A, PPC read with section 7 of the Anti-Terrorism Act, 1997. Appellants Arz Muhammad, Moar, Muhammad Hassan and Irshad Ahmed for above stated reason by giving benefit of doubt are acquitted in police encounter case bearing No.11/2010, registered at P.S. Defence under section 324, 353, 34, PPC as well as in the cases under Section 13(d) of Arms Ordinance, 1965, bearing Nos.12, 13, 14 and 15 of 2010 registered at P.S. Defence in above mentioned special cases. Appellants Arz Muhammad, Moar, Muhammad Hassan and Irshad Ahmed shall be released forthwith in Crime No.11/2010 under sections 324, 353, 34 PPC of P.S. Defence and Crime Nos.12, 13, 14 and 15 of 2010 under section 13(d) of the Arms Ordinance, 1965, of P.S. Defence.

25. Special Criminal Anti-Terrorism Appeals Nos.3, 4 and 5 of 2011, to the extent of appellants Irshad Ahmed and Muhammad Hassan are allowed. Reference made by Trial Court for confirmation of death sentence to appellants Irshad Ahmed and Muhammad Hassan is answered in negative. Appellants Irshad Ahmed and Muhammad Hassan shall be released forthwith, if no more required in some other case.

26. Death sentence awarded to appellants Moar and Arz Muhammad by trial Court is reduced to imprisonment for life. Appellant Moar and Arz Muhammad shall be entitled to benefit of section 382-B, Cr.PC. Special Criminal Anti-Terrorism Appeal No.03 of 2011 to the extent of appellants Arz Muhammad and Moar is dismissed, with above modification in sentence. Reference for confirmation of death sentence awarded to the appellants Moar and Arz Muhammad is answered in negative.

J U D G E

Gulsher/PS