HIGH COURT OF SINDH AT KARACHI

 

Special Anti-Terrorism Appeals No.30, 31, 32 & 33 of 2013

 

 

 

Before:   Mr. Justice Khadim Hussain M. Shaikh

    Mr. Justice Amjad Ali Sahito.

 

Appellants:                     Abdul Aziz alias Bail Patra alias Captain, Muhammad Usman & Ghulam Abbas alias Abbas through Mr. Irshad Ali Jatoi,

Advocate.

 

Respondent:                   The State through Ms. Rahat Ahsan, Additional Prosecutor General, Sindh.

 

Date of hearing:              27.02.2018.

 

Date of Judgment:         27.02.2018

 

 

 

 

J U D G M E N T

 

 

 

 

 

AMJAD ALI SAHITO, J.–Appellants namely Abdul Aziz alias Bail Patra alias Captain, Muhammad Usman and Ghulam Abbas alias Abbas were tried by the learned Judge, Anti-Terrorism Court No.II, Karachi in Special Cases No.114 to 117 of 2011, in Crime No.220 of 2011 for offence under Section 365-A/34 PPC read with Section 7 of Anti-Terrorism Act, 1997 registered at police station Steel Town CIA/AVCC, Crime No.91/2011 for offence under Section 13-D of Arms Ordinance registered at police station AVCC, Crime No.92/2011 for offence under Section 13-D of Arms Ordinance, registered at police station AVCC and Crime No.93/2011 for offence under Section 13-D of Arms Ordinance, registered at police station AVCC, Karachi, whereby the learned trial Court after full dressed trial, convicted the appellants under Section 7(e) of Anti-Terrorism Act, 1997 for life imprisonment and under Section 13-D Arms Ordinance, 2013 for 07 years with fine of Rs.25,000/- each appellant and in default of payment of fine, the appellants shall suffer S.I. for six months more. However, the benefit of Section 382-B, Cr.P.C. was extended to them.

 

2.       Brief facts of the prosecution case are that on 31.07.2011 at about 2300 hours, Complainant Dr. Madhodas lodged FIR being Crime No.220/2011 under Section 365-A/34 PPC at Police Station Steel Town, Karachi, alleging therein that on 30.07.2011, Dr. Wasdev had boarded in bus No.JA-2727 from Thatha and got down at the Gulshan-e-Hadid Mour (turn) Karachi at about 10:30 p.m and while he was going to home, on the way, he was kidnapped and on the same day from the mobile number        0321-2257047 of abductee Dr. Wasdev a call came to the wife of the abductee Mohni that her husband has been kidnapped and that she should arrange money for his release.

 

3.       On 03.08.2011 Investigating Officer Inspector Muhammad Babar, posted in AVCC who received the investigation of the case, started investigation and collected mobile phone calls data of mobile No.0321-22599047 and 0321-8918766 from CPLC Governor House. On 15.09.2011, I.O. had received the information from the high-ups that in a house of Moula Esa Goth and Jam Goth near the graveyard some accused persons had kept the abductees. On such information I.O. alongwith other police officer reached at the pointed place wherefrom arrested one person, who was standing near the gate of house and by making aerial firing, entered in the house, and its courtyard three persons were apprehended, who disclosed their names as 1.Abdul Aziz alias Bell Patra alias Captain 2. Ghulam Abbas alias Abbas and 3.Usman while fourth accused, apprehended outside the house, disclosed his name as Abdul Aziz. On their personal search in which the police recovered one 9 MM pistol alongwith five bullets and mobile phone, 1208 sim of Warid company from Abdul Aziz alias Bell Patra alias Captain, 9MM pistol of silver colour with 4 bullets from Usman and 30 bore pistol alongwith 03 bullets from Ghulam Abbas on inquiry about the abductee Dr. Wasdev accused Abdul Aziz alias Bell Patra alias Captain disclosed that the abductee is inside the room. The door of the pointed room was opened, where one person who introduced himself as Dr. Wasdev Lohana was found and he stated that on 30.07.2011 when he was coming from his duty and after alighting from a bus at the bus Stop at Gulshan-e-Hadid Karachi which was on his way to home, at about 10:30 p.m, four persons had kidnapped him. First the kidnappers kept him at some other place but lastly they detained him in that house. When abductee came in the courtyard he saw four accused persons and identified accused Abdul Aziz alias Bell Patra alias Captain and said that he used to be guard and is the master mind. Such mashirnama of arrest of the accused recovered weapons and other ammunition and recovery of the abuductee was prepared. Then the abductee, arrested accused and the property were brought at AVCC Center where three separate FIR No.91 of 2011 against accused Usman, FIR No.92 of 2011 against accused Ghulam Abbas and FIR No.93 of 2011 against accused Abdul Aziz alias Bell Patra alias Captain all three under section 13 (D) of Arms Ordinance, 1965 were lodged. The investigation of these FIRs was given to Inspector Ishrat Rana. On 17.09.2011 on the pointation of abductee Dr. Wasdev the place of abduction was inspected and such memo was prepared in the presence of HC Asif Ali and Shamsul Arfin. Then abductee Dr.Wasdev produced a letter which he had written to his wife for fulfilling demand of the abductors with envelop of TCS which was secured under a mashirnama was prepared. After completion of the investigation police submitted final report under Section 173, Cr.P.C. before the competent Court of law against the appellants showing co-accused namely Asif son of Imam Bux, Dildar, Ali Irani and Sohail Dada as absconders and also submitted three separate charge sheets against the appellants under Section 13-D Arms Ordinance.

 

4.       After completing all formalities the trial court framed a joint charge on 4.5.2012 against the appellants named above to which they pleaded not guilty and claimed to be tried. 

 

5.       At the trial, in order to establish the accusation against the appellants the prosecution has examined the following witnesses:-

 

(i)       PW-01 complainant Madhodas at Exh.P/1, who produced the FIR No.220 of 2011 as Exh.P/2;

 

(ii)      PW-02 Abductee Dr. Wasdev at Exh.P/3, who produced memo of arrest and recovery as Exh.P/4, memo of place of incident as Exh.P/5, the letter which he wrote to his wife as Exh.P/6 and the memo through which I.O. had taken the letter as Exh. P/8 envelope by which letter was sent by TCS as Exh.P/7.

 

(iii)     PW-03 Mohni wife of Abductee Dr. Wasdev at Exh.P/9, who produced the letter written to Chief of CPLC as Exh.P/10;

 

(iv)     PW-04 Sub Inspector Rafaquat Mughal at Exh.P/11;

 

(v)      PW-05 SIP Ali Muhammad at Exh-P/12, who produced memo by which the call data was taken from CPLC as Exh.P/13 and call data Exh-14;

 

(vi)     PW-06 ASI Arbab Ali at Exh.P/15;

 

(vii)    PW-07 PC Asif Ilyas at Exh.P/16;

 

(viii)   PW-08 Inspector Ishrat Rana at Exh.P/17, who produced three FIRs registered under Section 13-D of Arms Ordinance, 2013, FIR No.91/2011 registered against Muhammad Usman as Ex.P/18. FIR No.92/2011 registered against Ghulam Abbas alias Abbas as Ex.P/19 & FIR No.93/2011 registered against Abdul Aziz as Ex.P/19.

 

(ix)     PW-09 Inspector Babar at Ex.P/21, who produced entry No.26 of P.S. Steel Town as Ex.P/22, entry No.19 by which he left AVCC at Ex.P/23. He further produced entry No.26 by which he had arrived at AVCC as Ex.P/24, Entry No.26, 27 and 28 at Ex.P/25.

 

          Thereafter, the side of prosecution was closed vide statement as Exh.P/26.

 

 

6.       Statements of the above named accused were recorded under Section 342, Cr.P.C. at Ex.P/27 to Ex.P/29 respectively, in which they have denied the allegations levelled by the prosecution. Accused Abdul Aziz alias Bell Patra and Muhammad Usman have further claimed that police has enmity with them and whereas, the  accused Ghulam Abbas claims that he was arrested from his house and that he does not know why witnesses have deposed against them. However, none of the appellants examined themselves on Oath nor produced any witness in their defence.

 

7.       The learned trial Court after hearing the parties counsel and on the assessment of evidence, convicted and sentenced the appellants as stated above which has given rise to the instant appeals.

 

8.       Mr. Irshad Ali Jatoi, learned counsel for the appellants has argued that the case of abduction has not been proved; that ransom amount has also not been paid to the appellants; that no identification parade was conducted; that the pistols allegedly  recovered from the appellants, were not sent to the ballistic expert for his report; that the pistols have been foisted upon the appellants. Lastly, it was argued that prosecution has failed to prove its case against the appellants beyond reasonable doubt and according to him, under the above mentioned facts and circumstances, the appellants are entitled for their acquittal.

 

9.       Ms. Rahat Ahsan, learned Additional P.G. has argued that evidence of the abductee namely Dr. Wasdev is sufficient for maintaining the conviction in this case as it is reliable and trustworthy for the reason that said abductee has remained in captivity of the appellants for about forty five (45) days; that all appellants were arrested from the house where from the abductee Dr. Wasdev with pistols and bullets also recovered; that the appellants have demanded ransom amount of Rs.1 Crore for release of the abductee through Mobile call to Mohni, the wife of abductee who has also supported the prosecution in this regard and that the prosecution has successfully proved its case against the appellants and the trial Court after appreciating the evidence has convicted and sentenced the appellants in accordance with law. Lastly, she has prayed for dismissal of the appeals.

 

10.     We have heard the learned counsel for the parties and have gone through the evidence with their assistance.

 

11.     From the evidence, we find that the prosecution case rests upon two pieces of evidence viz. ocular testimony and recoveries. The ocular testimony consists upon evidence of four witnesses i.e. PW-2 Dr. Wasdev, the abductee, PW-3 Mohni, wife of Dr. Wasdev, PW-8 Inspector Ishrat Rana of AVCC and PW-9/I.O. Inspector Muhammad Babar of AVCC.

 

12.     We would add that in cases of abduction / kidnapping normally the case would depend upon the evidence of the abductee. In such like cases the abductee shall always be regarded as star-witness while the other evidence would be that of corroborative piece of evidence. In the instant case, the star witness of the case is Dr. Wasdev/Abductee. Let’s examine what the prosecution has brought on record to prove the case of abduction for ransom, therefore, it would be appropriate to reproduce relevant parts of the evidence of the prosecution witnesses:-

 

(i)           PW-2 Dr. Wasdev in his evidence at Ex.P/3 deposed that: it was 30th July, 2011 as routine I finish my clinic from 08.00 p.m. and boarded the bus at 8.25 p.m. The bus takes about 1 ˝ hours to 1.35 hours to reach the bus stop of Gulshan-e-Hadeed of about 5 to 10 minutes walk. I saw one car parked close to the footpath facing me from that car one person came down and forcibly put me in the car. I resisted, thereupon the 2nd person came down from the car and then by force they put me on my face down on the laps of three accused persons sitting at the rear seat. They blind folded me and made me sit in a room. Thereafter half an hour they unfolded the blind. There were about 3 to 4 persons in the room. The person who were guarding at night were aggressive they used to pin point pistol at my temple. After 3 to 4 days, 4 to 5 people had come and demanded Rs. One Crore as ransom for my release. They kept me at that place for about 30 to 32 days. I told them that I cannot arrange Rs.One Crore and if I had that kind of money I would have got a car for my conveyance. I was made to talk with my wife whom I told that I have been kidnapped that one person had snatched the mobile from me and demanded Rs.One Crore ransom amount from my wife. One man after 30 to 32 days they told me that I should dress-up and go with them. They blind folded me and then put a chadar over me and made me sit in the car and drove in galies for half an hour. And taking me to another house. I was kept in that house about 12 days with no contact with my family. One day at about 11.00 a.m. I heard a sound of firing. Police opened the door. The police brought me out of the room. When I was got released from that house on 15.09.2011 it was about 12 at 12.30 p.m. The police had arrested three accused persons and recovered weapons from them. The police had shown me 3 accused persons whom they arrested them. I had pointed out the place from where I was kidnapped on 17.09.2011. The I.O. had recorded my statement under 161 Cr.P.C. I was made to write letter to my wife, they demand of Rs.one Crore, which was sent by TCS. Letter and TCS envelope produced at Ex.P/6 and Ex.P/7 respectively. I can identify accused Abdul Aziz to be the person who used to be there and was master mind. The rest of the 2 accused I cannot identify.

 

In his cross examination, he deposed that: I had boarded from the Thatta to Gulshan-e-Hadeed. The letter which I produced today was got it written after 4 days of my kidnapping. It is correct to suggest that I was made to write for the demand of Rs. One Crore. When I said accused Abdul Aziz was master mind because I used to see giving instructions to the rest of his accomplices. It is incorrect to suggest that accused Abdul Aziz had nothing to do in my kidnapping. It is incorrect to suggest that on 21.07.2012 I.O. had shown me accused Abdul Aziz. Police told me at the time of recovery three accused persons have been arrested. It is incorrect to suggest that the three accused persons present in the Court were not arrested before me.

 

(ii)          PW-3 Mohni wife of PW-2 Dr. Wasdev deposed at Ex.P/9 that: my husband had routine used to go by bus and at about 10.30 p.m. on 30th July 2011 when her husband did not come up till 11.15 p.m. I tried to contact him on his mobile, but I could not reach him. At about 11.30 p.m. a call from the mobile of my husband told me that he has been kidnapped. My husband thereafter handed over the mobile to somebody who told me that I should arrange the ransom amount for the release of my husband. On 4th August, 2011 I received a letter by TCS asking me to arrange for the money. On 06th August, 2011 I had given an application to CPLC and met with Inspector Babar who recorded my statement. On 15.09.2011, Inspector Babar call me saying that my husband has been recovered and that I should come to the office at AVCC at garden.

 

In cross examination, she deposed that I had informed the cousin of my husband about the missing of my husband after 12 in the night. I had also informed the demand of Rs.One crore had been made for his release. It is correct to suggest that I had written a letter at Ex.P/10 about the letter written by my husband for arranging the money.

 

(iii)        PW-8 Inspector Rana Ishrat deposed at Ex.P/17 that: on 15.09.2011, I was posted as Inspector at AVCC. I have received FIRs No.91/2011, 92 and 93/2011 u/s 13-D A.O. for investigation. I had also received custody of accused from whom weapons were recovered. I had received custody of Muhammad Usman s/o Raza Muhammad, Ghulam Abbas s/o Ghulam Hyder and Abdul Aziz alias Captain s/o Ghulam Hyder. I have also received property recovered from 3 accused persons. I see 3 weapons produced in the court and say they were already de-sealed by this court and say they were received by me as sealed. These 3 accused persons were arrested in FIR No.220/2011 u/s 365/A PS Steel Town and these 3 pistols were recovered from them.

 

In his cross examination he deposed that it is correct to suggest that I am seeing the case property for the first time after de-sealing it. It is correct to suggest that I have not taken any ballistic opinion regarding these weapons. It is incorrect to suggest that all these articles A, B, C and D are not in working condition. Vol. says one can check it. It is correct to suggest that I had not checked it myself.

 

(iv)         PW-9 Inspector Muhammad Babar deposed at Ex.P/21 that: on 15.09.2011, I had received information from my high-ups and from the informer that in a house of Mula Essa goth and Jam goth near the graveyard where some accused person had kept the abductees. On this information, I had arranged 4 mobile and people from CPLC who were in their own car had left AVCC at 10.00 a.m. by entry No.19. I had given position to my police party when persons were standing near the gate of a house I apprehended him and to control the situation, I got firing done in air through my police officials. I warned and entered through the gate in the house where I found 3 persons in the courtyard. I made them hands up and enquired their names. They disclosed their names as Abdul Aziz alias Bell Patra alias Captos, the other as Ghulam Abbas and the 3 as Usman and the 4th accused whom I had apprehended from outside the house, his name was also Abdul Aziz. I took their personal search before two mashirs namely SI Rafaqat Mughul and ASI Rizwan Akram. From the accused Abdul Aziz alias Capton was recovered one pistol 9MM star company 5 cartridges which was tucked in his trouser. From accused Usman was recovered 9MM pistol of Silver colour was tucked in trouser with 4 bullets. From 3rd accused Ghulam Abbas was recovered 30 bore pistol without number along with 3 Cartridges. From the accused Abdul Aziz who was apprehended outside the gate from him was recovered Rs.200/- only. From all the accused person were enquired about the abductee of Dr. Wasdev Lohana. The accused Abdul Aziz alias Capton answered that the abductee is in the room. There was only one latch on the door which was opened and after opening the door abductee who had white beard and was short in height was found, after seeing the police he introduced himself as Doctor Wasdev Lohana. When he came in the courtyard, he say the four accused persons and had identified accused Abdul Aziz alias Capton that he used to come as guard at the Ist place of captivity and is master mind. On 17.09.2011 abductee Dr. Wasdev Lohana had pointed out the place where from he was abducted.

 

In his cross examination, he deposed that it is incorrect to suggest that accused were not arrested from Jam goth, but it is correct that they were not arrested from Essa Goth. The accused were arrested from a house behind which a graveyard and FT school close by. It is correct to suggest that only accused Abdul Aziz was wanted in some other case of encounter of PS Memon Goth.

 

          It is evident that the abductee narrated complete manner of his abduction, demand of ransom and recovery by police which is apparently natural and confidence inspiring. The abductee has identified appellant Abdul Aziz alias Bell Patra alias Captain who remained involved in the commission of this offence. This witness did not claim involvement of other two appellants. It is worth to remember that per prosecution case all the three appellants were claimed to be arrested from one place wherefrom abductee was recovered yet the abductee during trial sticks only against appellant Abdul Aziz alias Bell Patra alias Captain . None of the said appellants did claim any direct or indirect enmity against the abductee for his false involvement in such a serious charge nor any suggestion was made during evidence to show the justification of the appellant is that result of any motivation. In absence of enmity, the identification of the appellant Abdul Aziz alias Bell Patra alias Captain leaving other two appellants by the abductees would attach weight to the evidence of the said star witness to be worth reliance. Reliance can be placed on the case Muhammad Riaz and others v. Bilqiaz Khan and others(2012 SCMR 721) wherein it is held as:-

“9.     …These prosecution witnesses particularly the abductees had neither any enmity with the appellants-convicts nor was so alleged with specific proof to warrant as inference that they had falsely implicated them….”

 

13.     Further, the version of abductee Dr. Wasdev for abduction and demand of ransom has been corroborated confirmed by the PW-3 Mohni wife of Dr. Wasdev as it is evident from her evidence that on 30.07.2011 when her husband did not come up till 11:00 p.m. she tried to contact her husband through mobile, but could not contact him and at about 11:30 p.m. a call from the mobile of her husband was received by which her husband Dr. Wasdev told her that he has been kidnapped and then somebody else had taken his mobile from his hands who told her to arrange the ransom amount for the release of her husband and such information was given by her to the complainant. Madhudas, who lodged the FIR at P.S. Steel Town. On 04.08.2011, PW-3 Mohni wife of abductee received a letter through TCS in which she was directed to arrange the money. After releasing of the abductee, he has handed over the letter along with TCS envelope to the investigating officer, which he has written to his wife Mohni. Further, it is evident from the evidence that on receiving information investigating officer Inspector Muhammad Babar alongwith his staff raided the pointed house located in Moula Essa Goth and Jam Goth, and arrested the appellants along with their respective weapons and ammunitions and on the pointation of appellant Abdul Aziz alias Bell Patra alias Captain, the abductee, Dr. Wasdev was recovered from the room of the said house. At the time of recovery, the abductee identified Abdul Aziz alias Bell Patra alias Captain and says that appellant Abdul Aziz alias Bell Patra alias Captain used to guard him at the places his captivity and he is the master mind of this incident. In our humble view the prosecution has produced ocular evidence through the eye witness/abductee       Dr. Wasdev, whose evidence being natural and confidence inspiring, makes it quite patent that he had been abducted for ransom.

 

14.     As far as the contention of learned counsel for the appellants that payment/demand for ransom has not been proved, hence, case is not made out, is misconceived and has no force. For the sake of convenience relevant provision i.e. Section 365-A PPC is reproduced here, which reads as under:-

 

“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 Anti-Terrorism Act, 1997 provides as under:-

 

“2(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;

 

From the bare perusal of Section 365-A, PPC and Section 2(n) of Anti-Terrorism Act, 1997, it is obvious that in order to constitute an offence of kidnapping for ransom, the proof of payment of money or even demand thereof is not sine qua non and said offence also stands constituted if there is an abduction for the purposes of extortion of money or the ransom is demanded. PW-2 Dr. Wasdev has deposed that he was abducted for ransom and a demand of rupees One Crore for his release was made by the abductors. It is pertinent to mention here that Dr. Wasdev was abducted on 30.07.2011 and was recovered from the custody of appellant Abdul Aziz alias Bell Patra alias Captain on 15.09.2011 i.e. after his remaining in captivity of the abductors for about forty five (45) days. In our humble view the ingredients of offence of kidnapping for ransom are fully satisfied and proved in this case. In this regard, reliance can be placed on the case of Muhammad Riaz and others supra, wherein the Hon’ble Supreme Court of Pakistan has held that:

 

“11.   A close reading of the afore-referred provision would show that essential ingredients to prove the offence are twofold: (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 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 everything 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.”

 

12.     The evidence led proved beyond reasonable doubt that the appellants had abducted the two abductees for the purpose of extorting ransom and had compelled the complainant to comply with the demand for cash/ransom for releasing the abductees.”

 

15.     Insofar non holding of identification parade is concerned it may be stated that identification parade becomes necessary only if the suspect is arrested in absence of the witness, claiming to be in a position to identify the culprit however, the identification parade would never be required where the accused is arrested in presence of such a witness. The identification parade is never aimed or meant to know the name, parentage etc of the suspect, but the figure or description of the accused which such a witness had described in support of his capability to identify the unknown accused. In the case in hand abductee Dr. Wasdev was recovered from the captivity of the appellant Abdul Aziz alias Bell Patra alias Captain in consequence of a raid conducted by the police party headed by PW-9 Inspector Muhammad Badar of AVCC on 15.9.2011 within their jurisdiction, which was followed by the arrest of appellant on the spot, where the abductee identified the appellant Abdul Aziz alias Bell Patra alias Captain and stated before the police that he is master mind. He has assigned the role of appellant Abdul Aziz alias Bell Patra alias Captain for his abduction, detention and demand of rupees One Crore, hence, in such a situation, holding of an identification parade was not a mandatory requirement as identification test would be essential only if there is doubt regarding identity of accused otherwise, his involvement in the crime can be inferred from the attendant circumstances. Reference may be made to the case of Abdul Adeel and others v. The State (2009 SCMR 511), wherein it is held as under:-

“9.     We have heard the learned counsel for the parties and have also gone through the relevant record of the case. Saeed Ahmed-abductee P.W.5 is star witness of the case. At the time of abduction, he was a boy of 13 years of age and was student of class 5th. He has given very candid and trustworthy statement. He had no previous ill-will or grievance against the appellants so as to depose falsely against them. As far as identification of the appellants is concerned, he remained in the custody of appellants for two days. It is not the case of the appellants that during the captivity of the abductee the appellants had muffled their faces, so the abductee could easily identify the culprits on seeing them later. During trial, abductee identified each of the appellants and also stated about the specific role played by the appellants, so no doubt is left as far as identification of the appellants is concerned.”

 

16.     Turning now to the recoveries of pistols and bullets allegedly recovered from the appellant is concerned, it is evident from the evidence of PW-8 Ishrat Rana that after registration of the FIRs being Crimes No.91, 92 and 93 of 2011 under Section 13-D A.O, the investigation thereof was entrusted to him, but he did not bother to send all three pistols to the ballistic expert to determine their working order or otherwise and perhaps due to such lapse on the part of investigation officer the learned Additional Prosecutor General did not seriously press such piece of evidence. Even otherwise, it would be suffice to say that recovery of a weapon is nothing more than that of corroborative piece of evidence, which itself alone does not affect the main charge, as possessing unlicensed weapon is an independent offence, but in the case in hand in absence of Ballistic expert report with regard to functioning or otherwise of the alleged weapons, in our humble opinion, it would not be safe to stamp conviction against the appellants for such charge.

 

17.     Looking to the peculiar circumstances and keeping in view the object of law for which it has been acted and existence of direct, natural and confidence inspiring evidence of abductee Dr.Wasdev which has corroboration of other prosecution witnesses, we are of the considered opinion that offence of kidnapping of Dr. Wasdev for ransom has been committed by the appellant Abdul Aziz alias Bell Patra alias Captain son of Ghulam Haider and the prosecution has successfully proved its case against the appellant Abdul Aziz alias Bell Patra alias Captain,  therefore, the conviction and sentence for life imprisonment awarded to appellant Abdul Aziz alias Bell Patra alias Captain for an offence under Section 7(e) of Anti-Terrorism Act, 1997, vide impugned judgment dated 06.08.2013, passed by the Anti-Terrorism Court No.II, Karachi, is maintained and Special Appeal No.30/2013 to the extent of appellant Abdul Aziz alias Bell Patra alias Captain is dismissed. However, the benefit of Section         382-B Cr.P.C. is extended to the said Appellant.  The abductee             Dr. Wasdev has neither identified the appellants namely Muhammad Usman and Ghulam Abbas alias Abbas before the trial Court, nor has implicated the said appellants/ accused in the commission of crime. We also do not find any evidence worth consideration for their involvement in commission of offence, therefore, acquit them of the charge by extending the benefit of doubt to them in Special Anti-Terrorism Appeal No.30 of 2013 and appeal to the extent of appellant Muhammad Usman and Ghulam Abbas alias Abbas are allowed. The said appellants Muhammad Usman and Ghulam Abbas alias Abbas in Special Case No.115 of 2011 (Re: State v. Muhammad Usman) emanating from FIR No.91 of 2011 under Section 13-D of Arms Ordinance of police station AVCC and Special case No.116 of 2011 (Re: State v. Ghulam Abbas alias Abbas) emanating from FIR No.92/2011 under Section 13-D of Arms Ordinance of police station AVCC, are acquitted of the charges by extending the benefit of doubt and their Special Anti-Terrorism Appeals No.31 and 32 of 2013 are allowed. The Special Anti-Terrorism Appeal No.33 of 2013 filed by the appellant Abdul Aziz alias Bell Patra alias Captain against the conviction and sentence awarded to him for offence under Section 13-D of Arms Ordinance in Special Case No.117 of 2011 (Re: State v. Abdul Aziz), emanating from FIR No.93 of 2011 registered at police station AVCC is allowed and the said appellant is acquitted of the charge for offence under Section 13-D of the Arms Ordinance, by extending benefit of doubt to him.

 

18.     These are the detailed reasons of the short order announced by us vide order dated 27.02.2018, which reads as follows:-

 

“Heard the learned counsel for the appellants and learned Addl: P.G.

 

 

2.       For the reasons to follow, the conviction and sentence for life imprisonment awarded to appellant Abdul Aziz alias Bail Patra alias Captain son of Ghulam Haider for offence under section 7 (E) of ATA 1997, vide impugned judgment dated 06.08.2013, passed by the Anti-Terrorism Court No.II, Karachi, in Special Case No.114 of 2011, emanating from FIR No.220 of 2011, registered at police station Steel Town CIA/AVCC, for offence under section 365-A/34 PPC read with section 7 of ATA 1997, is maintained and Special Anti-Terrorism Appeal No.30 of 2013 to the extent of said appellant Abdul Aziz alias Bail Patra alias Captain, is dismissed. However, Special Anti-Terrorism Appeal No.33 of 2013 filed by the said appellant Abdul Aziz alias Bail Patra alias Captain against the conviction and sentence awarded to him for offence under section 13-D of Arms Ordinance, in Special Case No.117 of 2011 re-State Vs. Abdul Aziz, emanating from FIR No.93 of 2011, registered at Police Station AVCC, is allowed and the said appellant is acquitted of the said charge for offence under section 13-D of Arms Ordinance.

 

 

3.       The Special Anti-Terrorism Appeal No.30 of 2013 to the extent of appellants Muhammad Usman son of Raza Muhammad and Ghulam Abbas alias Abbas son of Ghulam Haider and Special Anti-Terrorism Appeal No.31 and 32 of 2013, filed against the impugned judgment dated 06.08.2013, whereby the said appellants have been convicted and sentenced for life imprisonment, for offence under section 7(E) of ATA, 1997 in Special Case No.114 of 2011 re-State Vs. Abdul Aziz and others, emanating from FIR No.220 of 2011, registered at Police Station Steel Town CIA/AVCC, for seven years and with fine of Rs.25000/- each, for offence under section 13-D of Arms Ordinance, in Special Case No.115 of 2011 re-State Vs. Muhammad Usman and in Special Case No.116 of 2011 re-State Vs.Ghulam Abbas alias Abbas, emanating from Crime Nos.91 of 2011 and 92 of 2011 respectively, registered at Police Station AVCC are allowed and the said appellants Muhammad Usman and Ghulam Abbas alias Abbas, are acquitted of the said charges. The appellant namely Muhammad Usman and Ghulam Abbas alias Abbas are directed to be released forthwith if they are not required in any other custody case.”

 

 

JUDGE

                                                                         JUDGE

 

 

Faizan.PA/-