HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No.13 of 2009

 

            Present:          Muhammad Ali Mazhar, J.

                                    Naimatullah   Phulpoto,  J.

 

Appellants:                      Waseem Ahmad through Mr. Mushtaq Ahmed, Advocate

                                      Muhammad Ali through Mr. Khawaja Naveed Ahmad, Advocate.

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Respondent:                   The State through Mr. Abdullah Rajput, Assistant Prosecutor General Sindh.

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Date of hearing:              29.10.2014

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Date of announcement:   10.11.2014   

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JUDGMENT

 

Naimatullah Phulpoto, J.-- Appellants Waseem Ahmad and Muhammad Ali were tried by learned Judge, Anti-Terrorism Court-II, Karachi under sections 365-A PPC read with section 7(e) of the Anti-Terrorism Act, 1997 of P.S. Ferozabad. After full dressed trial, learned trial Court vide judgment dated 06.03.2009 convicted the appellants under section 7(e) of the Anti-Terrorism Act, 1997 and sentenced to imprisonment for life and ordered for forfeiture of their property. However, appellants were extended benefit of section 382-B Cr.PC.

2.       The succinct facts of the prosecution case are that complainant Zain-ul-Abideen lodged report on 08.04.2008 at 1120 hours at police station Ferozabad, alleging therein that on 08.04.2008 he was sleeping at his house, his driver came back from school and informed the complainant that his son Muhammad Baqar, aged about 7 years, on the way to the school has been abducted by four culprits on gunpoint. On the inquiry, driver further told to the complainant that as usual after taking his son Muhammad Baqar in a car he was proceeding to the Head Star Junior School, when they reached near the gate of the school it was 07:45 a.m. All of sudden a car No.ANV-039 Liana, white coloured appeared there in which four persons were sitting. Out of them, two culprits were wearing pant shirts and two were wearing shalwar qameez. The culprits looked like Sindhi Balouchs. It is alleged that one of them was former driver of the complainant, namely, Muhammad Ali, who was sitting on the rear seat. The two culprits, who were armed with T.T. pistols, aimed their pistols on the forehead of the driver and forcibly kidnapped the son of the complainant in the car and drove away. After receipt of such information, complainant telephoned to his friends and narrated them the incident. At 1055 hours, complainant received a mobile call from Cell No.03232356610. Complainant was informed by the culprits on mobile that his son has been kidnapped, in case he reported such matter to any agency, his son would be murdered. Ransom of Rs.1 Crore was demanded from the complainant for release of his son. Thereafter, complainant went to the police station and lodged F.I.R. against unknown culprits, including his ex-driver Muhammad Ali Soomar regarding abduction of his son for ransom. F.I.R. was recorded vide Crime No.295/2008 for offence under sections 365A/34 PPC. After registration of F.I.R., investigation was entrusted to SIP Tahir Naseer.

3.       During investigation, investigation officer received spy information on 08.04.2008 that car Liana No.ANV-039 white coloured used in crime has been parked outside a house in Mawach Goth. On such information, raid was conducted. Aforesaid car was recovered and accused Waseem Ahmad and Muhammad Ali were arrested and boy Muhammad Baqar, aged about 7 years, was recovered from house. Such mashirnama was prepared in presence of mashirs. During interrogation accused Waseem Ahmad and Muhammad Ali disclosed the names of their companions as Iqbal Balouch and Saleem Balouch. Investigation officer recorded 161 Cr.PC statements of the PWs, made efforts for arrest of remaining accused but without success. I.O. collected data of mobile Phone No.032323556610. On the conclusion of the investigation, I.O. submitted challan against the accused under the above referred sections. Accused Iqbal Baloch and Saleem Balouch were declared as proclaimed offenders. Proceedings under sections 87 and 88 Cr.PC were concluded against them.

4.       A formal charge against accused Waseem Ahmad and Muhammad Ali was framed by learned Judge, Anti-Terrorism Court-II, Karachi at Exhibit-7 under the above referred sections. Accused pleaded not guilty and claimed to be tried.

5.       In order to prove it’s case, the prosecution examined the following witnesses:

(i)      PW-1, complainant Zain-ul-Abideen at Ex-10, who produced F.I.R. at Exhibit-10/A, memo of arrest of accused and recovery of abductee Muhammad Baqar at Ex-10/B, so also supurdiginama At Ex-10/C.

(ii)      PW-2 driver Ali Muhammad was examined at Ex-11, who produced memo of place of wardat at Exh-11/A.

(iii)     PW-3, abductee Muhammad Baqar at Ex-12.

(iv)     PW-4 Naeem Ejazi at Ex-13.

(v)     PW-5 PC Fareed Ahmad at Ex-14, who produced the data of mobile Phone No.03232356610 at Ex-14/A.

(vi)     PW-6 Rashid Zafar at Ex-15, who produced memo of securing receipt of rent a car and computer slip at Exh-15/A.

(vii)    PW-07, Tahir Naseer I.O. at Ex-16, who produced order of the SSP, AVCCP, entrusting investigation of this case to him at Ex-16/A; Roznamcha entry No.43 dated 08.04.2008 at Exhibit 16/B; Roznamcha Entry No.46 dated 08.04.2008 at Exhibit 16/C.

Thereafter, Special Public Prosecutor closed the prosecution side vide his statement at Exhibit-17.

6.       Statements of accused were recorded under section 342 Cr.PC at Exhibits 19 and 20. Both accused claimed false implication in this case and denied the prosecution allegations. Accused Waseem Ahmed raised plea that he was not aware about the mobile number of the complainant nor he had used the mobile number mentioned in the F.I.R. Both the accused denied the contact with complainant Zain-ul-Abideen on his mobile for demanding ransom for the release of his son. They have denied that neither they had abducted the son of the complainant nor demanded ransom of Rs.1 Crore. Recovery of abductee from House No.1, Street No.2, Mawach Goth has also been denied. Recovery of the car used in the crime has also been denied by them. Accused Waseem has also denied the recovery of the mobile Nokia phone from his possession. Accused Muhammad Ali has raised the plea that his national identity card was in the possession of the complainant and PW driver Ali Muhammad had enmity with him. Accused Muhammad Ali has claimed that PWs have deposed against him at the instance of police and driver Ali Muhammad. Both the accused declined to give evidence on oath in disproof of prosecution allegations. No evidence was led in defence by accused.

7.       Learned trial Court after hearing the learned counsel for the parties and after assessment of the entire evidence convicted and sentenced the appellants as stated above.

8.       M/s. Khawaja Naveed Ahmed and Mushtaque Ahmad, learned counsel for the appellants have not questioned the conviction awarded to appellants by the trial Court but argued that from the evidence, ingredients of section 365A PPC are not attracted and at the most the offence would fall within the ambit of section 365 PPC. Therefore, it is argued that sentence awarded to the appellants was against the law and harsh. In support of contentions, reliance is placed upon the case of SHAHID alias KALOO versus THE STATE (2009 SCMR 558).

9.       Mr. Abdullah Rajput, A.P.G., argued that there is huge evidence against the appellants to prove that the child was abducted for ransom and was recovered from the accused. He has argued that trial Court has rightly appreciated the evidence and convicted the appellants on the charge of abduction for ransom.

10.     We have carefully heard the learned counsel for the parties and scanned the evidence available on record.

Evidence of complainant Zainul Abideen

11.     Complainant Zainul Abideen has deposed that present incident occurred on 08.04.2008. On that day as usual he was sleeping in his house, it was morning time. His driver Ali Muhammad came back to the home and informed the complainant that his son Muhammad Baqar had been kidnapped near school by four accused persons in Liana car. Complainant has further deposed that he contacted his friends and narrated them the incident. At 10:55 a.m. he received a mobile call on his Cell No.03218228014 from mobile No.03232356610 and caller informed the complainant that his son has been abducted, he should make arrangement of Rs.1 Crore else he would loose his son. At about 11:20 a.m. complainant went to the police station Ferozabad where he lodged F.I.R., which he has produced as Exhibit-10/A. Complainant was informed by the duty officer that his case would be dealt with by AVCC. Thereafter, complainant has deposed that he received a call from AVCC Garden and he sent his driver to the place of incident at about 05:00 p.m. or 5:30 p.m. Complainant in his car along with two mobiles of the police went towards Sher Shah for search of his son on the same day. On the way, police received information that Liana car used in the commission of crime has been parked at Mawach Goth. Thereafter, complainant had deposed that raid was conducted at House No.144, Brohi Mohallah, Mawach Goth on 08.04.2008 where       former driver of the complainant, namely, Muhammad Ali and another accused Waseem Ahmed were arrested by the police in his presence and his son was recovered. On the personal search of accused Waseem Ahmed, Nokia mobile phone and SIM No.034589923000 were recovered. Complainant had further deposed that a key of the car was also recovered from accused Muhammad Ali.

Evidence of PW Muhammad Ali

12.     PW driver Ali Muhammad has given the entire episode of the incident and stated that on 08.04.2008 in the car of the complainant he was taking his son Muhammad Baqar to the school, when they reached near the school, a Liana car appeared in which four persons were sitting, two of them alighted from the car, they were armed with T.T. pistols, by show of force they kidnapped child Muhammad Baqar and drove away in their car. He noted down the registration number of the car ANV-039. Driver Ali Muhammad came to the house of the complainant Zainul Abideen, the father of the abductee, narrated him the incident. F.I.R. was lodged by the complainant. He identified accused Waseem Ahmed and Muhammad Ali in the Court and stated that these accused along with two other culprits had abducted the boy Muhammad Baqar.

Evidence of Muhammad Baqar (child)

13.     Trial Court took due steps to judge the level of intelligence of the child before recording his evidence. He has categorically deposed that present accused had abducted him.

14.     PW Naeem Ejazi ASI P.S. Feroz Abad has deposed that on 08.04.2008 Zainul Abideen appeared at police station and stated that his son has been kidnapped for ransom, he recorded his statement vide Crime No.295/2008 under section 365A PPC and supplied copy of F.I.R. to the investigating agency.

15.     PW PC Fareed Ahmad has deposed that on 12.04.2008 he has collected mobile phone data of Cell No.0323-2356610 in this case and produced in trial Court.

16.     PW Rashid Zafar has deposed that he had rented out Liana Car No.ANV-039 to accused Muhammad Ali on 07.04.2008.

17.     I.O. Tahir Naseer deposed that on 08.04.2008 investigation of this case was entrusted to him. During investigation, he visited the place of wardat, situated near School in presence of mashirs and prepared such mashirnama at Exhibit-11/A. During investigation he received spy information on 08.04.2008 that car used in the crime has been parked out the House No.114 at Mawach Goth. He conducted raid at the house from which two persons, who were guarding over the abductee/child, were arrested and he recovered the abductee Muhammad Baqar in presence of complainant. They disclosed their names as Waseem Ahmad son of Abdul Majeed and Muhammad Ali son of Muhammad Soomar. I.O. handed over the abductee to his father at the spot and conducted personal search of the accused. One SIM was recovered from the possession of the accused Waseem Ahmad on which word “Dejuice” was mentioned, having number A9923000. From the possession of accused Muhamad Ali one Nokia 1100 mobile phone and SIM No.03232356610 were recovered. A copy of CNIC of Muhammad Ali and a key of the car were also recovered from accused Muhammad Ali. Such mashirnama was prepared by the I.O. in presence of mashirs. I.O. recorded statements of the PWs under sections 161 Cr.PC. Accused disclosed the names of their companions and further disclosed that they had obtained the car on rent from Rashid Zafar. I.O. recorded statement of Rashid Zafar. I.O. collected telephone data of mobile phone No.03232356610. On the conclusion of the investigation I.O. submitted challan against the accused in the Anti-Terrorism Court.          

18.     The careful perusal of the evidence available on record leads us to the same conclusion as was reached by the trial Court. The testimony of PW driver Ali Muhammad is confidence inspiring as to the events and occurrence that took place before his eyes as mentioned above. Child was recovered from accused on 08.04.2008 in presence of the complainant, who is the father of the child. Ransom of Rs.1 Crore was also demanded from complainant for the release of his son. Evidence of complainant is trustworthy and reliable, who has highlighted each and every aspect of tragic incident including demand for ransom. No enmity whatsoever has been brought on record. Neither accused examined themselves on oath nor produced any evidence in defence. As regards to the evidence of the child witness, the trial Court had taken all possible and due steps to judge the level of his intelligence before proceeding to record his evidence. It may be observed here that mere fact that abductee/child was of tender age does not ipso facto make his evidence unreliable. It is true that while              relying upon the evidence of child witness, close and careful scrutiny is required which in the instant case was duly adopted by the trial Court      and a note to that effect was also recorded by the trial Court in the deposition about the satisfaction of the Court. Moreover, under Article 3 of the Quanun-e-Shahadat Order 1984, a child if gave statement which indicated that such witness understood the questions and gave answers intelligently and rationally, the same could not be ignored due to the tender age of the witness.

19.     Learned counsel for the appellants have only argued that from the prosecution evidence ingredients of section 365A PPC are not proved and offence would fall within the ambit of section 365 PPC. Reliance is placed upon the case of Shahid alias Kaloo versus the State (2009 SCMR 558) in which it is held as under:-

“7.       However, having observed as much it would also be seen that the only witness regarding the demand of ransom i.e. Rs. one crore is the complainant himself. As opposed to this the appellant in his confession before the Magistrate has stated that his intention was to rob the complainant of Rs. two lakh which he possessed as per information received from minor accused Zeeshan who used to work in the factory. So also in the F.I.R., the complainant has stated that the appellant and co-convict Shakeel had demanded Rupees one crore from him whereas in his statement before the trial Court he has only nominated the appellant regarding such demand. Finally it may also be observed that the demand of ransom was allegedly made in the space of a few minute during the time it took to travel one kilometer which is unlikely as normally such demands are made when the abductee has been secured in a safe place and the hue and cry has died down. In these circumstances there is some doubt as to whether or not any demand of ransom was made from the complainant the benefit of which must be given to him. Consequently, the offence committed by the appellant as well as co-convict Asif would be covered under section 365, P.P.C. viz. abduction simpliciter for which the maximum punishment is seven years.”

20.     In the present case, it is proved by cogent evidence that child Muhammad Baqar was kidnapped for ransom, demand for payment of ransom was made by the accused on the mobile from complainant, telephone data has also been collected by the I.O. It is proved that accused had made a call on the mobile of the complainant for ransom on 08.04.2008 at 1055:22 hours as per data. Child was also recovered from the accused. To constitute an offence under section 365A PPC it is not necessary that money must have been passed on to the culprits. Simple demand of the ransom for the release of the abductee is sufficient to bring the case within the ambit of section 365A PPC as held by the Honourable Supreme Court in the cases of Muhammad Nabi and 4 others versus the State (2006 SCMR 1230) and Sh. Muhammad Amjad versus the State (PLD 2003 Supreme Court 704).

21.     The facts and circumstances of the case reported in 2009 SCMR 558 relied upon by the learned counsel for the appellants are quite distinguishable from the facts of the instant case as in the above cited case, demand of ransom was allegedly made in the span of a few minutes during the time it took to travel one kilometer which is unlikely as normally such demands are made when the abductee has been secured in a safe place and the hue and cry has died down, it was held that in the circumstances it was doubtful whether or not any demand of ransom was made. Whereas, in the present case child was kidnapped and demand was made from the complainant on mobile phone for ransom, threat was issued to the complainant that he should not report the matter to any agency else he would loose his son and son of complainant was recovered from accused on 08.04.2008.

22.     For the above stated reasons, we have come to the conclusion that trial Court has rightly believed the prosecution evidence, which is trustworthy and reliable. Both the appellants have been rightly convicted and sentenced for the offence with which they were charged. No illegality in the impugned judgment has been pointed out, warranting interference by this Court. The case being heinous in nature, as such, appellants do not deserve any leniency in sentence. In consequence, the conviction and sentence awarded by the trial Court vide judgment dated 06.03.2009 are maintained. We do not find any merit in the appeal, which is dismissed.

                                                

                                                                                            JUDGE

                                                         

                                                                       JUDGE

Gulsher/PA