IN THE HIGH COURT OF SINDH AT KARACHI

Special Anti-Terrorism Jail Appeal No.31 of 2006

Present:

Mr. Justice Ghulam Sarwar Korai

Mr. Justice Naimatullah Phulpoto

Appellant : Athar Naeem @ Waqas Choudhary through Mr. Abdul Razzak and Mr. S.Lal Hussain Shah Advocates.

Respondent : The State through Mr. Khadim Hussain

Khuharo DPG.

Date of hearing : 30.09.2013

Date of announcement : 08.10.2013

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Appellant Athar Naeem @ Waqas Choudhary son of Choudhary Abdul Sattar was tried by learned Anti-Terrorism Court No.1, Karachi, for offences under sections 365-A/149 PPC read with Section 7(e) of Anti-Terrorism Act, 1997. After full-dressed trial, Appellant Athar Naeem @ Waqas Choudhary was convicted under Section 365-A PPC read with Section 7(e) of Anti-Terrorism Act, 1997 and sentenced to imprisonment for life and forfeiture of his property. Benefit of Section 382-B Cr.P.C was extended to the appellant. Appellant preferred the appeal No.31/2006. This Court vide judgment dated 13.02.2007 dismissed Appeal while holding that appeal was barred by time. Appellant filed Criminal Appeal No.429/2009 before the Honourable Supreme Court of Pakistan. Appeal was accepted. Judgment passed by this Court dated 13.02.2007 was set aside and case was remanded to this Court by re-deciding this appeal on merits. By this single judgment, we intend to dispose of the same.

2. Brief facts of the prosecution case, as disclosed in the F.I.R. are that on 06.06.2004 complainant Dr. Ajay Kumar lodged F.I.R. at PS Boat Basin Karachi alleging therein that on 06.06.2004 he was present at Flat and on bell he opened the door of his Flat No309, Mehmoodabad Apartments, Bath Island. He saw three persons standing at the door. They enquired from the complainant about Sanjay, on which complainant told them that Sanjay was his brother and they should talk to him whereupon it is alleged that culprits pushed complainant and entered into the Flat and aimed Kalashnikov at the head of the complainant’s uncle Dr. Om-Parkash and abducted Dr. Om-Parkash and left the premises by issuing threats not to chase them else they would face consequences. Complainant has stated in the F.I.R. that out of three culprits two were in white Shalwar Qameez and were wearing police caps on heads, their ages were between 35-40 years. Their colour was not fair, having mustaches on faces while third one claimed to be an officer aged about 30-32 years, clean shaved wearing cream coloured Shalwar Qameez. Culprits were speaking in urdu abducted Om-Parkash. It is alleged that Om-Parkash was abducted for ransom. The statement of complainant was incorporated vide Crime No.163/2004 under Sections 365-A PPC. Copy of the F.I.R. was sent to the Incharge AVCC for investigation. Culprits obtained telephone numbers of the relatives of Om-Parkash during his captivity complainant Ajay Kumar and others family members of Omperkash at Karachi and Daharki District Ghotki were contacted on Telephone No.021-5838953, Mobile Nos.0300-8251795 and 0300-2298147 and PTCL No.0703-42391 and 0703-41096 from 06.06.2004 to 28.06.2004 and demanded ransom of Rs.10 Million for the release of Dr. Om-Parkash by using mobile No.0333-2230788. During investigation in an encounter SIP Mohammad Babar recovered victim Om-Parkash from the clutches of culprits on 30.06.2004 near under construction building in Chishti Nagar, Block-4, Gulshan-e-Johar, Karachi and arrested appellant on 24.12.2004 at 1930 hours from PS Khuwaja Ajmer Nagri Karachi. Appellant during interrogation admitted the commission of offence. Appellant was produced by I.O before Civil Judge and Judicial Magistrate-12 South Karachi for identification parade through complainant and victim Om-Parkash. I.O collected Tenancy Agreement at Ex.10-A of bungalow No. R-44, Sasi Homes, Block-4, Gulistan-e-Johar Karachi, the same was acquired on rent by appellant where Omperkash was detained. I.O collected slip/receipt Ex.12/A in respect of Toyota Corolla Car No.AFS-868 from Danial Rent a Car company, in which victim Om-Parkash was kidnapped from his flat. I.O collected telephone calls data at Ex.9/A in respect of telephone/mobile phones used for demanded ransom along with audio cassette as well as seized car used in the commission of the offence. I.O recorded 161 Cr.P.C statements of P.Ws. On the conclusion of the investigation challan was submitted against appellant Athar Naeem @ Waqas Choudhary, showing co-accused Irfan, Babar, Zaheer, Shahbaz @ Moon, Ghaffar Arain and Guloo Lund as absconders. Trial Court completed required formalities against absconding accused and declared them proclaimed offenders.

3. Learned Trial Court framed Charge against Appellant at Ex. 4, to the charge appellant pleaded not guilty and claimed trial.

4. At the trial prosecution examined P.W-1 Mr. Maqbool Ahmed Memon, Judicial Magistrate, at Ex.5, P.W-2 Complainant Dr. Ajay Kumar at Ex.6, PW-3 Dr. Om-Parkash at Ex.7, PW-4 SIP Ali Mohammad at Ex.9, PW-5 Munawar Hussain at Ex.10, PW-6 Rubina Tahir at Ex.12 and PW-7 SIP Mohammad Babar at Ex.13. Thereafter, learned SPP closed the prosecution side at Ex.15.

5. Trial Court recorded statement of appellant u/s 342 Cr.P.C at Ex.16, in which he denied the prosecution allegations and professed innocence. Appellant denied to obtain Corolla Car and Bungalow on rent, he also denied that he used car in the abduction of Dr. Om-Parkash and his detention in the Bungalow. Specific question was asked from appellant about his name as Waqas Choudhary, he admitted that it was his another name. Appellant has explained in his statement that Dr. Om-Parkash wanted to extract money from his elders on the false pretext of his kidnapping for ransom. Appellant did not lead any defence and declined to give statement on oath in disproof of prosecution allegations.

6. We have carefully heard Mr. Abdul Razzak learned counsel for the Appellant and Mr. Khadim Hussain learned DPG for state and minutely perused the evidence.

7. Mr. Abdul Razzak learned Advocate for appellant has argued that prosecution story is unnatural and unbelievable as Dr. Om-Parkash was released without payment of ransom. It is further argued that there are major contradictions in the evidence of complainant and P.Ws on material points. Investigation was malafide, identification parade was held after 09 days of the arrest of the accused and it is submitted that such identification was not substantive piece of evidence. Lastly, it is argued that case of kidnapping for ransom is not proved by the prosecution against appellant through cogent evidence. In support of his contentions, he has relied upon the following reported cases:

(i) Mst. Anwar Begum and 7 others versus Syed Muhammad Siddique and another (1991 MLD 1182)

(ii) Mst. Zeenat alias Baby alias Madam and others versus The State (2007 YLR 3012)

(iii) Dr. Muhammad Abrar Younus versus The State (2010 YLR 1674)

(iv) Agha Wazir Abbas and others versus The State (2003 PCr.LJ 1353)

(v) Abdul Sattar versus The State (2002 PCr.LJ 51)

8. Mr. Khadim Hussain learned DPG argued that Dr. Om-Parkash was kidnapped from Flat by appellant and others for ransom and he was in the captivity for 24 days. Abductee Omperkash and complainant rightly picked up appellant in the identification parade. He has submitted that identification parade after 09 days of the arrest of the appellant was not fatal to the prosecution case. According to learned DPG appellant was identified by abductee in the Court. He has further argued that complainant party belongs to minority community they had no motive to falsely implicate the appellant in this case. Mr. Khuharo has submitted that payment of ransom to the appellant in such cases is immaterial as demand for ransom was there and it was luck of Omperkash that he was recovered in police encounter. Lastly, he has submitted that all the prosecution witnesses have fully supported the prosecution case and prayed for dismissal of the appeal.

9. After hearing learned counsel for the parties, we have scanned the entire evidence.

10. Complainant has clearly deposed that his brother Omparkash was kidnapped by appellant and others from Flat on 06.06.2004 and demand was made by the culprits for payment of ransom. He identified appellant in the identification parade held before Civil Judge & Judicial Magistrate on 03.01.2005 as well as in Court. Dr. Om-Parkash was kidnapped from his flat for ransom and he was in the captivity of the appellant and others for 24 days. Without any difficulty he identified the appellant in the identification held before Judicial Magistrate and also identified the appellant in Court.

11. Dr. Omparkash has deposed that on 06.06.2004 he was abducted by appellant and others. He remained in their custody for 23-24 days. However, after an encounter, police recovered him. He has stated that he identified appellant before Judicial Magistrate in identification parade and in Court so also the car used in the offence.

12. I.O has stated that in the result of encounter Dr. Om-Parkash was released and appellant was arrested by him on 24.12.2004 in presence of mashirs. He moved an application before Civil Judge & Judicial Magistrate for holding identification parade through complainant and PW Omparkash and both prosecution witnesses identified appellant in the identification parade. I.O has further stated that he recovered the record of Car which was obtained on rent by appellant in which Dr. Om-Parkash was abducted for ransom. Tenancy Agreement of the Bungalow have also been obtained by the I.O in which abductee was detained by the appellant and others for ransom. I.O has also produced telephone/cell data used by appellant for demanding ransom.

13. Owner of the Car Mrs. Rubina Tahir and Estate Agent have also been examined by the prosecution. They have clearly deposed that appellant Waqas obtained car on rent on 05.06.2004 and got house on rent on 01.05.2004.

14. SIP Ali Mohammad acted as mahir of collection of lists of telephone calls, audio cassette, seizure of Toyota Corolla car.

15. Mr. Maqbool Ahmed Memon Judicial Magistrate deposed that on 01.01.2005 I.O moved an application for holding identification parade of appellant through complainant and PW Om-Parkash. On 03.01.2005, he conducted identification parade of appellant through complainant and victim who correctly identified the appellant and assigned the role of present appellant in the commission of offence.

16. From the evidence of complainant, Dr. Om-Parkash, I.O so also other prosecution witnesses, it transpires that no malafide or enmity has been alleged by the appellant for his false implication in this case. No material contradiction has been highlighted by learned defence counsel on any material point. Minor contradictions are bound to occur in every case, the same would not be fatal to the case of prosecution. From very beginning it was demand of the appellant to the complainant party for payment of ransom. Therefore, it is immaterial that ransom was not paid to the appellant. The appellant was released in police encounter and in such circumstances, non-payment of ransom is immaterial and it would not cut the roots of the prosecution case. It is a matter of public knowledge that in Province of Sindh on account of kidnapping for ransom people are feeling insecure, learned Trial Court has properly appreciated the evidence, the approach of the Court in the matter like the case in hand should always be dynamic and if the Court is satisfied that offence has been committed in the manner in which it has been alleged by the prosecution and the same is proved, the technicalities should be overlooked without causing miscarriage of justice. Evidence of the complainant and abductee is also corroborated by some other pieces of evidence. Despite lengthy cross examination nothing has been brought on record which could cast any doubt as to veracity of the evidence of the above named witnesses. It will not be out of contest to point out that appreciation of evidence by the trial Court is to be given full weight by this Court for the reason that trial Court had the advantage of observing demeanor of the witnesses.

17. Evidence of prosecution witnesses is quite straightforward and confidence inspiring, there is no inherent defect in the prosecution evidence, we have no hesitation to hold that prosecution has succeeded to prove its case against appellant and he was rightly found guilty by the trial Court and trial Court rightly appreciated the evidence in accordance with the settled principles of law. Therefore, conviction recorded by the Trial Court against appellant vide judgment dated 05.05.2006 is maintained. Findings recorded by the Trial court are based upon sound reasons as such require no interference. Hence appeal is without merit and the same is dismissed. JUDGE

JUDGE

Gulsher/PA