IN THE HIGH COURT OF SINDH AT KARACHI
MR. JUSTICE SALAHUDDIN PANHWAR
Spl. Cr. A.T. Appeal No.38/2009
Appellant : Muhammad
Rasool ,
Through:
Mr. Umar Farooq Khan, advocate.
Respondent : The State,
Through:
Ms. Rahat Ehsan, DPG.
…………………..
Spl. Cr. A.T. Appeal No.39/2009
Appellant : Gul
Muneer @ Karatay,
Through:
Mr. Tanvir-ul-Islam, advocate
Respondent : The State,
Through:
Ms. Rahat Ehsan, DPG.
…………………..
Spl. Cr. A.T. Jail Appeal No.2/2010
Appellant : Tariq
Hameed & two others
Through:
Mr. Abdul Razzak advocate
Respondent : The State,
Through:
Ms. Rahat Ehsan, DPG.
Date
of hearing : 23.12.2013.
JUDGMENT:
SALAHUDDIN PANHWAR, J:- Through captioned appeals,
appellants have assailed judgment dated
25th November 2009, passed in Spl. Case No.86 of 2008
"Re-S/v Muhammad Rasool & others" whereby the learned trial court
Judge convicted the appellants under section 365-A PPC and Section 7(e) of ATA
and sentenced them to suffer Rigorous imprisonment for life with fine of Rs.50,000/-.
2. Succinctly,
relevant facts of the prosecution case are that complainant lodged F.I.R
wherein stating that “he resides with his family in Flat No. A-103, Spring
Apartments, Frere Town Karachi; and is working as Assistant Vice President in
ABN Amro Bank Marriot Hotel Branch. On 01.03.2008 he was present in his office
when he received a telephone call of his wife that their son Lester Lobo, aged
about 17 years, has been kidnapped by three culprits. Upon this, he immediately
rushed to his house where he was informed by his son Lorenzo lobo, (aged about
13 years) that he himself, his Brother
Lester Lobo were going to the tuition center in car, with their driver Umar
Kamal. When they reached at 7th Commercial Street, they were waylaid
by three culprits, seemed to be Pathan, who put their weapons on them. They
left him there, while abducted his brother and driver”. In the meantime
complainant's wife received a call on her cell number regarding demand of Rs.1 Crore
(Ten millions) as ransom money for the release of their son. They also
threatened that otherwise they shall receive the dead body of their son, however, no ransom was demanded for the release of
their driver. Thereafter on payment of ransom amount, abductees returned their
home. Police arrested above appellants, they were put in identification parade,
where abductees identified them; after investigation they were sent-up for
their trial.
3. After
compliance of provision of Section 265(c ) Cr.PC, the
charge against all five accused persons was framed to which they pleaded not
guilty and claimed their trial. To substantiate its case, prosecution examined
PW -1 Mr. Asif Ahmed, Civil Judge & JM-X, South Karachi. PW-2 SIP Saleem
Jatoi (Ex.14). PW-3 Complainant Lindsay Ambrose Lobo (Ex.15). PW-4 Umer Kamal (Ex.16). PW-5 Lester Lobo (Ex.17). PW-6
(Ex.18), ASI Muhammad Tanveer. PW-7 Lorenzo Lobo (Ex.19). PW-8 Amir Hameed
(Ex.20). PW-9. Mehboob Khan (Ex.21). PW-10 PC Hassan Raza
(Ex.22). PW-11 SIP Tahir Naseer (Ex.23). Thereafter, the learned SPP
closed the side of prosecution vide statement as Ex.24.
4. The
statements of all five appellants / convicts were recorded under section 342
Cr.P.C as Ex.25 to 29 respectively, wherein they claimed the prosecution case to
be false and that they are innocents. The appellants also came with pleas of
having been in custody with law enforcing agencies; they were falsely involved
in the case. However, none of the accused persons came forward to examine
himself on Oath or to lead evidence in his defence, as provided under section
340(2), Cr.P.C.
5. Learned
counsel for the appellants have, inter-alia,
argued that accused were identified in joint identification parade, such course
was not permissible under the law; place where abductees were detained was not
shown by the abductees; disclosure of offence by one accused before police
official was not admissible under Qanun-e-Shadat Order 1984; abductee Umar
Kamal exonerated accused Abdul Rasool, such aspect was not considered by trial
Court; prosecution failed to substantiate the charge. In support of contentions,
they relied upon case of (Shafqat Mehmood Versus the State) 2011 SCMR 537, (Ghulam
Qadir Versus the State) 2008 SCMR 1221, (Muhammad Akram Versus the State) 2009 SCMR 230, (Dr. Khalid Moin versus the
State)
2006 PCRLJ 639.
6. Learned
APG while refuting the contentions raised by rival side, argued that there has
been evidence of the victim / abductee against the appellants; according to
witnesses their eyes were veiled with cloths, thus place of captivity is not
material in this case; impugned judgment is in accordance with law; above
appeals are devoid of merits. he relied upon (Muhammad Afzal
Versus the State) 1982 SCMR 129, PLD 2004 SC 123.
7. Perusal
of record reveals that instant matter was lodged by the complainant namely
Lindsay Imbroz Lobo on 01.3.2008 against three unknown persons for abduction of
his son and driver for ransom; incident was reported with reference to narration
of his 13 years old son namely Lorenzo Lobo.
8. Let’s
examine what the prosecution has brought on record to prove the abduction of
the victims / abductees. The record shows that the PW-Lorenzo Lobo, though was released by the culprits at some distance
but he had been witness of the incident to such an extent. Therefore, the
relevant portion of the evidence of this witness (PW Lorenzo Lobo), being
material is reproduced hereunder:
PW-7 Lorenzo Lobo (Ex.19):
“On 1st March,
2008 I was going with my brother Lester Lobo and my driver Kamal in my car
bearing Registration No.AJM- (HONDA CIVIC) to leave my brother Lester Lobo for
tuition at DHA Phase-4 Karachi. While going when we reached street 7th
Commercial Phase-6 DHA at about 11.00 a.m in the morning. Three persons came on
a motorcycle HONDA 125 they hit our car and pointed the gun at my brother they
put the driver on the rear seat of the car and 2 of the culprits also sat
inside the car while 3rd culprit followed our car. I was also
sitting on the rear seat of the car. My brother was sitting on the front seat
when they took us and reached Dehli Colony the culprits dropped me at Dehli
Colony while took away my brother Lester Lobo and driver Kamal with them.”
At this juncture it would be germane to refer the evidence of the
abductees Lester Lobo and Umer Kamal, the relevant part is as under:-
PW-5 (Ex.17) Lester Lobo:
On 01.3.2008 I was going
for the Tuition alongwith my younger brother Lorenzo Lobo in my Car which was
being driven by driver Umar Kamal. As soon as I reached in defence Phase-4 VII Commercial
street near Bungalow No.21/1 when 3 persons on a motorcycle HONDA 125 but I do
not remember the registration of the bike they intercepted our car 2 of those
persons came and took me and driver Kamal and put us in the back seat of our
car and they pointed gun at me. The car was being driven by one of the culprit
while the 3rd culprit was following us on his motorcycle. We hardly
covered 10-15 minutes time and hen we reached near Dehli Colony the culprits
took out my younger brother and gave some money to him and asked him to go.
PW-4 Umar Kamal (Ex.16):
“I was in service of the
complainant Lindsay Ambrose Lobo at the time of incident. I was in his service
for about 4 months prior to this incident. On 1.3.2008 I left for tuition
centre with the sons of Lindsay namely Lister Lobo and Lorenzo Lobo to leave
Lister Lobo at the tuition centre. I was driving the car Civic Honda
registration No.230. When our car reached near VIIth Street Commercial phase IV
DHA Karachi 3 persons on a motorcycle intercepted our car. Two of them stepped
down from their motorcycle. One of them slapped me and forcibly put on the rear
seat of the car alongwith Lister Lobo and Lorenzo Lobo and one of the culprit
set with us on the rear seat who had pointed arm at us while the other sat on
the driving seat and they drove the car towards Dehli Colony from where they
drove towards some unknown place. Ranzo Lobo was left at Dehli Colony while…”
The evidence(s), of all three witnesses, are steadfast with each
other in respect of all material aspects i.e. place of interception, arrival of
three persons on 125 HONDA motorcycle; taking possession by two persons while
third followed the car and place of dropping Lorenzo Lobo. The evidence
(s) of said witnesses, being natural and confidence inspiring make it quite
patent that there had been abduction.
9. It is
settled principle of law that passing of money / ransom is not necessary
ingredient to constitute the offence under section 365-A PPC but only demand
thereof is sufficient as held by honourable Supreme Court of Pakistan in
the case of ‘Muhammad Riaz Vs Bilqiaz Khan (2012 SCMR 721) which is reproduced hereunder with reference
to Section 365-A PPC:
“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”
10. A close
reading of the afore-referred provision would show that the essential
ingredients to prove the offence are twofold: (1) 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 case of Muhammad Amjad vs.
State (PLD 2003 SC 704), ambit of this provision came up for consideration and
the apex 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’. (Underlining
and bold is provided for emphasis)
In the instant case, both the abductee (s) have stated in their
examination-in-chief about demand of ransom in following words:-
PW-5 (Ex.17) Lester Lobo:
“After few minutes the culprits asked me
about my residential telephone No., I gave mobile of my mother on which the
culprits called and told my mother that I had kidnapped and until and unless
they pay Rs.10 Crore as ransom they would not see me alive”
PW-4 Umar Kamal (Ex.16):
“On the way mobile set was snatched of
Lister Lobo and he was asked to talk to his father. The culprits talked to the
father of Lister Lobo and mobile and he was directed to arrange Rs.10 Crore as
ransom for the release of his son”
From above, it is quite clear that there was a demand of ransom
from the culprits for release of the son of the complainant. The above finds
conformation from the complainant who not only stated so in his FIR but also in
his evidence recorded before the court. Such position makes it quite clear that
not only there was abduction of the abductees but same was followed with demand
of ransom.
11. Having
discussed above, now it would be just and proper to examine whether these
witnesses have supported each other regarding rest of the events. For that the
remaining portion of the evidence (s) of these witnesses is reproduced
hereunder:-
|
PW-5 (Ex.17) Lester Lobo “On
01.3.2008 I was going ……. They took our head down in the car and asked us to
remain quiet. After about 20 minuets they took us from our car and upto an other car of white colour ALTO make, which was being
driven by another person. Few minutes the culprits asked me about my
residential telephone No., I gave mobile of my mother on which the culprits
called and told my mother that I had kidnapped and until and unless they pay
Rs.10 carore as ransom they would not see me alive. After about 2-2 an half hours driver we reached near a house where I was
put in a corner of a room and my driver Umer Kamal was detained in another
room. I and my driver Umer Kamal were not allowed to communicate with each
other. Every time I was being threatened for my life. 2 of the culprits used
to guard for the day and 2 in the night and during that time 2 other culprits
also used to come while I was in their captivity my grand father (father’s
driver) Muhammad Rasool used to come and talked with the culprits. I talked
to my father twice but I do not remember the date and time. The last talk
with my father was only one day prior to my release. At the time of my
release I was put glasses on my eyes and tape behind the glasses so that I
may not see any thing. My driver was released separately. The culprits left
me near |
PW-4 Umar Kamal (Ex.16) “I….. while I and Lester Lobo were given glasses to ear upon our
eyes and they threatened us not to cry else we shall be killed. After about
15 minuets they changed the car which was ALTO of white colour and the culprits
directed us if any body asked about us we may tell them that we are going to
airport. On the way mobile set was snatched of Lister Lobo and he was asked
to talk to his father. The culprits talked to the father of Lister Lobo and
mobile and he was directed to arrange Rs.10 Crore as ransom for the release
of his son. After about 1-1.5 hours they stopped the car near a house and I
was detained in a storeroom while Lister Lobo was kept in a room. The door of
the store where I was kept was closed. Two culprits used to be on the duty in the morning and
two in the night. My hands were tied with Zangir. They used to give us Wine
for the purpose of intoxication and also used to give us sleeping pills.
Culprits used to come in the store room where I was kept and they used to ask
about the father of Lister Lobo as to what was his
profession and all the time they used to threaten me. After about 2 months
and 7 days viz. 07.5.2008 I was left at Lalo Khet in their car, I was wearing
glasses and with white patti on my eyes. The culprits gave me Rs.200/- and
asked me as to where I wanted to go and I asked him I will go to my house in |
Bare perusal of the above evidence (s) it is evident that both
these witnesses have corroborated each other in respect of all material
aspects. These witnesses remained under captivity for a considerable period in
separate rooms therefore, their claims to have seen the culprits during such
period is quite logical and reasonable one.
12. Further,
the evidence of the complainant would make it clear that there had been passing
of the ransom amount for which the complainant did travel from Karachi to Peshawar
and complainant produced document (s) on record showing his visit to Peshawar
from Karachi for such purpose. The relevant portion of evidence of the
complainant is reproduced hereunder:-
“On 5th May,
2008 I took the flight from Karachi to Peshawar and contacted the culprits and
then I reached at Peshawar I also contacted them from the Airport of Peshawar
but the culprits advised me that they would not deal with me on that day, I
took a room in Pearl continental Hotel Peshawar. On 7th May, 2008 I
received a call from the culprits who said me that I may walk from hotel
towards Airport and they will remain in touch with me. After about half
Kilometer walk I was intercepted by a person on motorcycle who had covered his
face therefore I could not identify him, he identified me and said that are
hour Lester Lobo’s father and asked me to hand over money to him. The ransom
amount was in brown paper bag I handed over the money, he checked and went away
saying that my child will reach him”
Thus, it becomes clear that ransom was paid by the complainant and
only then the abductees were released which fact also findings confirmation
from the statements of the witnesses as they claim their release after payment
of such amount i.e 7th May. There has not been anything which could
suggest that the complainant could go to such an extent in arranging the
document (s) of his travel from Karachi to Peshawar to falsely involve the
accused particularly when there has been pleaded no enmity against him by any
of the appellants. The accumulative effect of all above discussion made it
clear that there had been an abduction followed by demand of ransom and payment
thereof which resulted in release of the abductee (s) from captivity of the appellants.
13. Now
what remains to be seen is whether there is any evidence against the appellants
/ convicts which could justify that they were the culprits who abducted the
abductees. It is settled principle of law that evidence of the abductees regarding
identification of culprits / abductors is always safe to be believed if same
qualifies the test of being natural and confidence inspiring. Both the
abductees have categorically identified the appellants / convicts not only
during the course of the identification parade but also during their
examination before the trial Court. Since both the abductees have no enmity or
annoyance against the appellants nor the appellants / convicts have alleged or
least suggested any such consideration or motive against these witnesses which
could be taken as motivation to make these abductees to falsely raise their
fingers at the appellants / convicts in a matter where not only the abduction
but also the payment of the ransom stood established. Besides, in the instant
case both the abductees have not been alleged to be known to the appellants /
convicts prior to the incident. Admittedly the abductee Lester Lobo, is
teenager and belongs to the minority community hence the plea of the defence
that their involvement was at the instance of the police is not worth believing
because this is against human behaviour and experience that such a witness
would dare to go to such an extent which even exposes him to direct rage of the
appellants / culprits. The same principle applies regarding the other abductee
Umer Kamal who is a labourer (driver) and had no motivation to depose falsely
against the appellants / convicts. Thus we can safely say that the learned
trial court judge committed no illegality in believing the evidence of these witnesses.
Moreover, Lorenzo Lobo, eye witness of
the abduction has given complete account with regard to the three assailants,
who kidnapped both abductees, and his evidence, has strengthen the version of
both abductees, whereas defence has not brought any material contradiction to
cause any dent in the evidence of these witnesses.
14. Here,
it is worth to explain that evidence against the appellant Muhammad Rasool is
of the words of the abductee Lester Lobo who has stated that “While I was in their captivity my grand
father (fathers driver) Muhammad Rasool used to come and talked with the
culprits”. It has not been denied by the appellant Muhammad Rasool that
he was driver of the grandfather of the abductee;,
therefore, it cannot be believed logically that the abductee could commit any
mistake in identifying him. Since it has come on record that the PW (abductee)
Lester Lobo was kept confined in a room wherefrom he could have seen anybody
coming in such place (a small house) and as the appellant Muhammad Rasool has
not alleged any specific enmity against complainant or PW Lester Lobo to
justify his false involvement therefore, such words of the PW appear to be
true. It is worth to explain that abductee did not claim that said Muhammad
Rasool met him during his captivity but he has claimed that he saw him from the
room else it could have given rise to a presumption that why a known person
(Muhammad Rasool) would come before abductee who was to be released later.
Since the manner of abduction also shows that it was having nexus of somebody
from inside and while within presence of Muhammad Rasool the abductee had not
seen him therefore, he did not disappear rather remained in contact with
culprits till receipt of ransom amount. With regard to the plea of appellant Muhammad Rasool that abductee Umar
Kamal has exonerated him in his deposition before Court; suffice to say that it
has surfaced on record that accused Muhammad Rasool was the person who helped
accused Umar Kamal while getting job of driving with the father of abductee
Lorenzo Lobo, according to PW Umar Kamal in cross “I was employed with Mr. Lobo through accused
Muhammad Rasool”, hence such obliging statement in favour of this
appellant, in juxtaposition of evidence furnished by the other abductee( Lorenzo
Lobo) has no worth for reliance and thus it is not helpful for him in any
manner.
15. It is well
settled principle of criminal administration of justice that the matter of
abduction mainly revolves around the evidence of the abductees hence where the
evidence of the abductees appear to be direct, natural and confidence inspiring
then the conviction could well be awarded without seeking any further
corroboration, particularly where factum of abduction is established and
abductees appear to be having no enmity or consideration to falsely involve the
innocent at the cost of real culprit of their abduction. There may have come
some contradictions from the evidence of the PW-Umar Kamal but since it is now
well settled principle of law that minor contradictions, inconsistencies,
omissions or improvements on trivial matters without affecting the case of the
prosecution not to be made the basis by the court to reject the evidence in its
entirety.
16. Here,
it would be conducive to refer the principles (ratio decidendi), so laid down by honourable Supreme Court of
Pakistan in cases of abduction:-
Abdul Adeel & Others
vs State(2009 SCMR 511):
“We
have heard the learned counsel for the parties and have gone through the
relevant record of the case. Saeed Ahmed-abductee P.W.5 is start 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 candid and trustworthy statement. He had
no previous ill-will or grievance against the appellants so as to depose
falsely against them As for as identification of the appellant is concerned, he
remained in the
custody of the appellants for two days. It is not the case of the appellant
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 for as
identification of the appellants is concerned.”
Zulfiquar Vs State (2007
SCMR 138):
“In
this case prosecution has been able to bring on record testimony of abductee
Imdad Hussain who in unequivocal terms had stated that he was abducted /
kidnapped by the petitioner and others and was kept in captivity for 11 days
where-after was released after payment of ransom amounting to Rs.7,0,000/- . In
evidence the chit written by abductee to his son demanding ransom was also
brought on record and got exhibited. Irrespective of above statement of
abductee, complainant Muhammad ali Qureshi Aijaz
Hussaina and Iqbal Ahmed have corroborated commission of the offence both on
the point of abduction as well as demand of ransom amount. From the evidence
adduced on record ingredients of seciton365-A PPC are fully attracted in this
case, as such, we do not find any lacuna in the impugned judgment which is
accordingly maintained.”
“Muhammad Riaz Vs Bilqiaz
Khan (2012 SCMR 721):
“The
afore-referred statement was corroborated by other abductee namely Farooque
Ahmed PW 3 . Both of them were subjected to lengthy
cross-examination but their credibility could not be shaken. The argument of
appellant-convicts’ learned counsel that the identification of appellants was
not beyond reasonable doubt is not tenable, first, because two of the accused
namely Awal Zaman and Muhammad Riaz were already known to the abductees; Hazrat
Luqman was not only seen by the abductees during their5 days of captivity but
also one of them identified him in the test identification parade got conducted
by P.W Gul Ghazi, tehsildar, Takht-e-Nasrati. Hazrat Luqman was identified by
the complainant PW 1 and two other witnesses, PW-5 Jehan Baksh and PW-6 Mir
Saleem Khan who had accompanied the complainant for striking bargain with the
abductors. These prosecution witnesses particularly the abductee had neither
any enmity with the appellants-convicts nor was so alleged with specific proof
to warrant an interference that they had falsely
implicated them.”
17. Accordingly,
there is no cavil in proposition of law that in existence of direct, natural
and confidence inspiring evidence of the abductee the other corroboration is
not needed nor any dent in other corroborative pieces of evidence such as
arrest etc would help the defense, therefore, we are of firm view that the
learned trial Court Judge has not committed any illegality in believing the
evidence. Thus, impugned judgment of conviction is well reasoned and is
maintained; consequently, the above appeals are hereby dismissed.
J U D G
E
J
U D G E
Imran/PA