IN THE HIGH COURT OF SINDH AT KARACHI

Present:

Mr. Justice Shahid Anwar Bajwa and

Mr. Justice Irfan Saadat Khan.

Special Crl. Anti-Terrorism Appeal No.34/2009: Muhammad Zubair Vs. State.

Mr. M. Shafi Muhammadi, advocate for the appellant.

Mr. Saleem Akhtar, A.P.G. for the respondent.

Special Crl. Anti-Terrorism Appeal No.35/2009: Muhammad Imran Vs. State.

Mr. Agha Zafir Ali, advocate for the appellant.

Mr. Saleem Akhtar, A.P.G. for the respondent.

Special Crl. Anti-Terrorism Appeal No.42/2009: Saeed Alam Vs. State.

Mr. Muharram G. Baloch, advocate for the appellant.

Mr. Saleem Akhtar, A.P.G. for the respondent.

Dates of hearing:  12.07.2010 & 20.07.2010.

J U D G M E N T

IRFAN SAADAT KHAN, J:  These Special Criminal Anti-Terrorism Appeals have been filed against the consolidated judgment passed by the Anti Terrorism Court No.III, Karachi, dated 28.10.2009.

2.         Briefly stated the facts of the case are that the accused namely Muhammad Zubair, Muhammad Imran and Saeed Alam were booked to face trial under Section 365-A/34 PPC and Section 7(e) of Anti-Terrorism Act, 1997 (A.T. Act) that on 13.02.2008 complainant Muhammad Irshad received a phone call from his wife that their daughter baby Mahnoor has been kidnapped by some unknown persons and the caller demanded Rs.50,00,000/- as ransom for the release of their daughter. The complainant started contacting at the given number from which the demand of ransom was made, but the number was switched off. Subsequently however the complainant contacted the caller and requested for the release of his daughter and further requested that as he is a poor person, he could not afford to pay such a heavy amount. The kidnapper however extended threats to him that in case the ransom amount was not arranged his daughter would either be sent to Afghanistan or would be killed. The complainant thereafter contacted SSP of North Nazimabad who advised him to contact again on the number of the kidnappers and also advised him to bargain with them. The kidnappers thereafter after negotiation with the complainant firstly reduced the ransom amount to Rs.30,00,000/- and thereafter to Rs.10,00,000/-. The SSP instructed the complainant to go to P.S. Taimooria where he met with SIP Aziz Ahmed who also advised him to remain in touch with the culprits. The complainant then on the instructions of the kidnappers went to Saifee College, North Nazimabad to pay the ransom amount at about 03:00 a.m. on 14.02.2008 when two persons came on motorcycle and demanded the ransom amount from the complainant. The complainant however enquired about his daughter and asked them to firstly handover the baby to him and only then he would give the said amount to them. While the complainant was busy in making conversation with the culprits the police party raided the site and apprehended both the kidnappers and secured one mobile phone and one motorcycle from their possession. The kidnappers disclosed their names as Saeed Alam and Muhammad Imran and on their pointation the police then raided a quarter in Kausar Niazi Colony from where they found baby Mahnoor lying unconscious and arrested the accused Muhammad Zubair.

3.         A FIR bearing No.87/2008 was lodged against the accused persons. The case then was sent to AVCC for investigation, who after completing the investigation challaned the accused before Administrative Judge, Anti-Terrorism Court, High Court of Sindh, who transferred the case to the trial Court to be decided in accordance with law. The trial Court however after going through the entire evidence and going through the case made out by the prosecution found the three accused persons guilty of charge and awarded them punishment under Section 7(e) of A.T. Act for offence under Section 365-A/34 PPC for imprisonment of life and forfeiture of their property to the extent of Rs.50,000/- each. However, benefit of Section 382-(B) Cr.P.C. was extended to all the three accused. Against the said order the present appeals have been filed under Section 25 of Anti-Terrorism Act, 1997.

4.         Mr. M. Shafi Muhammadi Advocate, who was representing accused Muhammad Zubair, led the penal of the counsel and submitted that his arguments would be common for the two other accused namely Muhammad Imran and Saeed Alam also. The arguments of Mr. M. Shafi Muhammadi Advocate are summarized below:

• That the order has been passed in violation of Section 19(7) of A.T. Act as apparently the charge has been framed on 07.03.2009 whereas it was signed on 23.02.2009.

• That the FIR has been lodged after the investigation which is a fatal legal defect.

• That the child Mahnoor, when produced in the Court, has candidly accepted that she has been tutored by the state counsel.

• That appellant Muhammad Zubair has not been named in the examination in chief, which also is a fatal legal defect.

• That in the deposition of PW-1 it was mentioned that “several persons have been arrested from the quarter where raid was made to recover the baby Mahnoor” hence as per learned counsel the name of accused Muhammad Zubair has not been specifically mentioned therefore a serious doubt is created with regard to the presence of Muhammad Zubair at the alleged place.

• That there are two important witnesses namely Muhammad Nasir and Habibur Rehman who were neither examined nor produced before the Court.

• That there are a number of contradictions and vague statements recorded in the deposition of PWs and the accused Muhammad Zubair has not been specifically identified by the kidnapee baby Mahnoor.

• That it has been alleged that the child was intoxicated but neither any item through which the said child was intoxicated was brought on record nor the child was medically examined to prove such intoxication.

• That though it is alleged that accused Saeed Alam was driving the motorcycle, which was stolen by him, but no attempt was made to enquire about the actual owner of the motorcycle in whose name the motorcycle had been registered. Moreover according to the learned counsel the alleged motorcycle was handed over to Arshad Ghani PW-3 without the permission of the Magistrate.

• That nothing of any dubious nature has been recovered from the accused Muhammad Zubair and the said accused has falsely been involved in the present case by the prosecution.

• That no effort in enquiring from the people of the locality, who gathered at the spot, whatsoever has been made either from the place from where accused Saeed Alam and Imran were arrested nor any effort was made to enquire from the persons of the locality from where accused Muhammad Zubair was allegedly arrested though it has been admitted that public gathered when either accused Saeed Alam and Imran or Muhammad Zubair were apprehended.

• That there is an improvement in the prosecution story by falsely implicating Muhammad Zubair, whose name has been introduced at a later stage.

• That as no ransom was recovered the prosecution case at best could be that of kidnapping simplicitor and not that of kidnapping for ransom.

• That the trial Court has convicted the accused on presumption only and in support thereof relied upon 2008 SCMR 336.

• In the end the learned counsel submitted that as the accused Muhammad Zubair has been illegally and incorrectly involved in the present case he may be acquitted by setting aside the judgment passed by the trial Court.

5.         Mr. Muharram G. Baloch Advocate, who was representing accused Saeed Alam, adopted the arguments of Mr. M. Shafi Muhammadi Advocate, however added that why hue and cry was not raised by the baby girl while she was being kidnapped by the accused namely Saeed Alam and Muhammad Imran? According to the learned counsel there are number of contradictions with regard to the raid made at the quarter of Kausar Niazi Colony. As per the learned counsel the case is full of doubts and benefit of which has to be given to the accused and in this regard relied upon 2009 SCMR 230.

6.         Mr. Agha Zafir Ali Advocate, who was representing the accused Muhammad Imran, adopted the arguments of the two counsel and further submitted that as per the complainant he had received the call of the kidnappers at about 1900 hours whereas according to the telephone call report the calls were received at about 21:14 and 21:23 hours, respectively. The learned counsel further submitted that as per the deposition of PWs the accused persons were beaten by the public however no medical evidence in this regard has been filed to substantiate this assertion. Lastly the learned counsel submitted that the accused may be released as prosecution has failed to prove its case beyond any reasonable doubt.

7.         Mr. Saleem Akhtar, APG for the state, vehemently opposed the acquittal of the accused persons and submitted that as per Section 154, Cr.P.C. firstly an entry is made in the roznamcha then the investigation is started and thereafter the FIR is lodged. Hence, according to the learned APG the said procedure has been adopted in the present case and there is no delay in lodging of the FIR. According to the learned APG the basic legal question raised by the learned counsel for the accused is devoid of any merit and needs to be ignored. In support of his contention the learned APG invited our attention to Sections 4, 54 & 156 of Cr.P.C. The learned counsel further submitted that firstly there is no delay in the investigation and the minor mistake/irregularity, if any, would not be considered to be fatal to dislodge the case made out by the prosecution. As per the learned counsel there is no denial on the part of the accused persons that no kidnapping took place and the baby Mahnoor was not recovered from the place pointed out by themselves. The learned counsel admits that though child was tutored but the said procedure has been adopted in accordance with law. The learned counsel further submitted that the deposition of the witnesses had remained unchallenged, the defence has failed to shatter the case made out by the prosecution and it is also the discretion of the prosecution either to produce or not to produce the PWs. To support his contentions he relied upon 2001 SCMR 1700, 2001 MLD 1169, 2001 MLD 907, 2001 MLD 1125, 2000 P.Cr.L.J. 1386, 2001 SCMR 290 and 2001 P.Cr.L.J. 503.

8.         We have heard all the learned counsel at length and have also perused the record and our findings are as under:-

9.         Perusal of the deposition of PW-1 reveals that when accused Saeed Alam and Muhammad Imran were apprehended by the police they pointed out that baby Mahnoor is kept by their third accomplice at a house situated in Kausar Niazi Colony, however when a raid was made on the said house few other persons whose names are not known were arrested by the police. Whereas on the cross the said witness submitted that police arrested two persons from the said quarter. It is also submitted in the cross that the persons who were arrested were not among the accused persons. The prosecution case is totally silent about "those few other persons arrested by the police from the said quarter”.

10.       The said PW-1 has also stated that he went to SSP office at about 8 or 8:30 p.m. and from there contacted the culprits in the presence of the SSP and the speaker of his telephone was on. It is quite strange that the prosecution has failed to examine the said SSP to check the veracity of the statement made by the PW-1.

11.       The PW-1 further submitted that he did not lodge any FIR with the police rather kept on contacting with the culprits either from the SSP Office or from the police station and his no call was ever recorded in this regard. We have also seen the call record of the mobile phone alleged to be in use of the culprits and it is strange to note that this call record, which is available at page-83 of the paper book, shows the receiving of the call from PW-1 at about 2:14 & 2:20 on 14.02.2008. It is further noted from the call record of the culprits that the calls made/received from the house of PW-1 is showing the time at 21:21 & 21:23 dated 13.02.2008 hence it is again strange to note that how the PW-1 has stated that at about 7:30 p.m. he received a call from his house whereby he was informed by his wife that baby Mahnoor had been kidnapped and the caller had demanded Rs.50,00,000/- as ransom.

12.       It is further admitted by the PW-1 that FIR was lodged after the arrest of accused Saeed Alam and Muhammad Imran. The complainant had stated that he had informed the said P.S. about receiving of the calls from time to time from the culprits but no record of the mobile number in use of the complainant was ever obtained or demanded.

13.       There is also a contradiction with regard to the name of the third culprit i.e. Muhammad Zubair as at one place it is stated that he was arrested from the quarter where baby Mahnoor was kept under illegal detention and his name is not known whereas in a subsequent statement it is submitted that the name of the third culprit is Muhammad Zubair.

14.       There is also a contradiction with regard to the time of kidnapping as according to PW-3 Abdul Ghani, Saeed Alam came to his shop at about 5 p.m. with his friend Vicky to purchase the motorcycle and in this regard gave him a sum of Rs.5,000/- in advance and promised to pay balance amount after showing the motorcycle to a mechanic. However baby Mahnoor has also submitted that she was kidnapped at about 5/6 p.m., which also creates doubt that how it is possible that on the one hand Saeed Alam is busy in purchasing the motorcycle as well as simultaneously busy in kidnapping the said baby Mahnoor.

15        We have further noted that PW-2 i.e. baby Mahnoor in her deposition has admitted that a third person was present in the quarter who kept guard on her and gave her tea also, however she did not identify him during the deposition.

16.       There is also a contradiction with regard to the statement made by PW-4 as it has been stated by PW-1 at page-43 that FIR was lodged when the said two accused namely Saeed Alam and Muhammad Imran were arrested and brought to police station and thereafter police party proceeded to Kausar Niazi Colony for recovery of the kidnapee baby Mahnoor. However at page-62 it has been submitted that “it is incorrect to suggest that FIR was lodged prior to going to Kausar Niazi Colony”.

17.       We have further observed that it has been admitted that when Muhammad Zubair was arrested from Kausar Niazi Colony a large number of people gathered there, however no one was made witness to the said proceedings.

18.       It has further been admitted by PW-5 that the alleged motorcycle through which the accused Saeed Alam and Muhammad Imran kidnapped the baby girl was handed over to Arshad Ghani without any order of the Court.

19.       The defence witness produced by Muhammad Imran and Muhammad Zubair i.e. Muhammad Yaqoob, the landlord of the quarter where both the above named persons used to reside has categorically stated that the said two persons are living in the said quarter since last 2 ½ - 3 years on rent and their conduct had remained good during the said period.

20.       We have further noted that the learned trial Court has framed the charge on 07.03.2009, however it is strange that how the said charge has been signed on 23.02.2009. Perusal of the diary also reveals that the charge has been framed on 23.02.2009 and the case thereafter was put off to 07.03.2009 on which date order was passed and accused was remanded back to jail. It is however not understandable that if the charge was framed on 23.02.2009 why the same had been given on 07.03.2009 and not on 23.02.2009 when it was framed.

21.       We have also gone through the decisions relied upon by the learned counsel for the appellants as well as the APG for the State. 

22.       In the decision reported as Muhammad Akram v. The State (2009 SCMR 230) it has been observed by the Hon’ble apex Court that “not a single witness was produced from the locality to support the story of abduction. Benefit of doubt must be given to the accused as a matter of right and not as a matter of grace.”  In this regard reference may also be made to the decisions reported as Tariq Pervez v. the State (1995 SCMR 1345) and Yasin v. The State (2008 CMR 336) which are also on the same point.  However, we do not find the decision reported as PLD 1968 Lahore 841 to be relevant with the facts of the case.

23.       The prosecution has relied upon the decision Yousuf v. The State (2000 P.Crl.LJ 1386) to the effect that “the prosecution witnesses were consistent on major aspects of the case, who have seen the occurrence with their own eyes were subjected to lengthy cross-examination but no material contradiction could be brought on record by the accused”. Similar view was taken in the decision Saleem Khan and others v. The State (2001 P.Cr.LJ 503).  The other decisions relied upon by the prosecution is Nazakat Perveen v. The State (2001 MLD 1169) wherein it was held that “when the statement of witness was not challenged in the cross examination it would be legally proved to have been accepted by the opposite side”.  Same principle of law has been laid down in 2001 SCMR 1700.

24.       The next case relied upon by the prosecution is Waseemuddin v. The State (2001 SCMR 290) wherein it was held by the Hon’ble Apex Court that “statement of accused could only be accepted where the prosecution evidence was rejected in its totality.  Prosecution witness was not rejected, therefore, stand taken by the accused was not worthy of acceptance”.  However, the decisions reported as 2001 MLD 906 and 2001 MLD 1125) relied upon by the prosecution are found to be quite distinguishable.

25.       In view of the submissions and facts noted above and in view of the decisions relied upon by the learned counsel for the parties, we are of the view that there are a number of contradictions in the prosecution witnesses which are not even consistent in their depositions.  There have been marked contradictions with regard to the depositions of the PWs as noted above and in view of those contradictions it could not be ruled out that the case of the appellants is free of shadow of doubt.  It is a trite principle of law that in case of doubt benefit should be given to the accused not as a matter of grace but as a matter of right. 

26.       The above are the reasons for our short order dated 20.07.2010 by which all the above special criminal A.T. Appeals were allowed and the appellants were ordered to be released if not required in any other case. The short order dated 20.7.2010 is reproduced hereunder:

“For reasons to be recorded later on this appeal is allowed and the impugned judgment is set aside.  The appellant is ordered to be released forthwith if not required in any other case.”

27.       It may be clarified that the above short order was passed in all the above three appeals separately in respect of the three appellants, namely, Muhammad Zubair, Muhammad Imran and Saeed Alam.        

Karachi:                                                                                               JUDGE

Dated:              .2010.                                                 

JUDGE