IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Anti-Terrorism Appeal No.20 of 2013

       Present:

                    Mr. Justice Naimatullah Phulpoto

                        Mr. Justice Shaukat Ali Memon

 

Date of hearing               :         08.05.2015

Date of Announcement  :         20.05.2015

Appellant                        :         Muhammad Ayoub S/o Habibullah                                                     through Mr. Muhammad Akbar Awan,                                                         Advocate

 

Respondent                              :         The State through Mr. Abrar Ali Khichi,                                             Assistant Prosecutor General Sindh.

 

J U D G M E N T

 

NAIMATULLAH PHULPOTO, J.--- Appellant Muhammad Ayoub was tried by learned Judge, Anti-Terrorism Court/Additional Sessions Judge-III (South), Karachi for offences under sections 365-A/34 PPC read with Section 7(e) of the Anti-Terrorism Act, 1997. After full dressed trial, appellant Muhammad Ayoub vide judgment dated 31st May, 2013, was convicted and sentenced to imprisonment for life and to pay the fine of Rs.100,000/- for offence under section 7(e) of Anti-Terrorism Act, 1997 read with section 365-A/34 PPC. In case of default in payment of fine he was ordered to suffer S.I. for 6 months more. Benefit of section 382-B Cr.PC was extended to the appellant/accused.

 

2.       Brief facts of prosecution case leading to the filing of the appeal are that complainant Rasool resides at Waliji compound, old Haji Camp, Karachi with his family. On 25.09.2012 complainant had gone to Hyderabad in connection with his business. At 0800 p.m. he received a call from his family that his son Muhammad Ayoub Khan, aged about 7 years was missing since 04:00 p.m. It is alleged that master Muhammad Ahoub Khan had gone out of the flat for playing purpose. Complainant after receipt of such information without loss of time returned back to Karachi and started search for his son. Announcements were made in the Masjids regarding missing of Master Muhammad Ayoub Khan but there was no clue. It is alleged that on 26.09.2012 complainant received a mobile call from Cell No. 03056579344. Complainant’s mobile number was 03002626251. Caller told to the complainant that his son was with him and demanded ransom of Rs300,000/-, in case of nonpayment of ransom threat of dire consequences was issued to him. Thereafter, it is alleged that complainant received a number of calls for ransom. He was warned in case ransom was not paid to them till 27.09.2012, dead body of his son would be thrown at his door. Complainant has stated in the F.I.R. that his son has been kidnapped for ransom. Such F.I.R. was recorded vide Crime No.150/2012 at P.S. Kalakot on 27.09.2012 under sections 365-A PPC.

 

3.       During investigation 161 Cr.PC statements of the PWs were recorded. SIP Malik Muhammad Riaz arrested appellant/accused on spy information and recovered boy from his possession. Co-accused made escape good, personal search of the accused was conducted, SIM was recovered from him. Investigation Officer collected call data of SIMs No.03056579344 and 03002626251. After usual investigation challan was submitted against the accused/appellant under Section 365-A PPC. Learned Judge Anti-Terrorism Court declared absconding accused Khan Muhammad alias Khanoo as proclaimed offender. Proceedings under sections 87 and 88 PPC were concluded against him.

 

4.       A formal charge against accused Muhammad Ayoub was framed at Ex.21. To the charge, accused pleaded not guilty and claimed to be tried.

 

5.       At the trial, prosecution examined the following witnesses:

1.      PW-1 Rasool was examined as complainant of the case as Ex-22. He produced carbon copy of F.I.R. as Ex.22/A, newspapers as Ex.22/B and 22/C, mashirnama of place of incident as Ex.22/D.

2.      PW-2 Saleh Muhammad was examined as Mashir of arrest and recovery of abductee as well as mashir of place of incident as Ex-23  He produced mashirnama of arrest and recovery of abductee as Ex-23/A.

 

3.      PW-3 abductee Muhammad Ayoub Khan was examined as Ex-24.

 

4.      PW-4 Malik Mohammad Riaz was examined as Ex-25. He produced Roznamcha entries as Ex.25/A to 25/C.

 

5.      PW-5, PC Amanullah was examined as Mashir of p lace of incident as Ex-27. He produced mashirnama of pointation of place as Ex-27/A.

 

6.       Thereafter, an application under section 540 Cr.PC was submitted on behalf of accused Muhammad Ayub for recalling abductee master Muhammad Ayoub Khan, for further cross-examination, on the ground that child speaks in Pashto, said application was allowed by the trial Court vide order dated 20.04.2011, process was issued, it was returned unserved by Inspector Wahid Bukhsh with the endorsement that the family of master Muhammad Ayoub Khan has shifted to unknown place at Waziristan and his whereabouts are not known. There was no likelihood of appearance of master Muhammad Ayoub Khan in near future, such statement was recorded at Ex-30. Evidence of PW-6 Investigation Officer Wahid Bukhsh was recorded at Ex-31. Thereafter, prosecution side was closed at Ex-32.

 

7.       The statement of accused under section 342 Cr.PC was recorded at Ex-33, in which accused Muhammad Ayoub claimed his false implication and denied the prosecution allegations. He has stated that he was not arrested by the police on 27.09.2012 but he was arrested by the police on 25.09.2012 in presence of his brother Muhammad Yousuf and Saleh Muhammad from his house. Accused has stated that PWs have deposed against him at the instance of the police. Accused has examined in his defence DWs Arshad Mahmood and Saleh Hussain. Accused declined to give statement on oath in disproof of prosecution allegations. He has pleaded innocence.

 

8.       DW Arshad Mahmood has been examined at Ex-34 and DW Saleh Hussain at Ex-35. Thereafter side on behalf of accused was closed.

 

9.       Learned trial Court after hearing the learned counsel for the parties and assessment of evidence found appellant Muhammad Ayoub guilty, convicted and sentenced him as stated above. Thereafter, he has preferred appeal.

 

10.     The sole point for determination in this case is, whether trial Court has rightly appreciated evidence and convicted the appellant for the offence with which he is charged?

 

11.     Mr. Muhammad Akbar Awan, learned counsel for the appellant, contended that no one had seen appellant Muhammad Ayoub while kidnapping boy Muhammad Ayoub Khan. He has argued that no ransom was paid to the appellant for return of the abductee. He has further contended that trial Court failed to put the questions to master Muhammad Ayoub Khan to satisfy itself that abductee boy understood the proceedings of the Court. He has argued that boy was kidnapped by his maternal uncle and appellant has been falsely implicated in this case. It is also argued that defence theory/defence evidence has not been considered by the trial Court. He further argued that application submitted by the appellant for recalling master Muhammad Ayoub Khan was allowed by the trial Court but victim boy could not be produced by prosecution as he shifted with his family to Waziristan. Lastly, argued that the prosecution has failed to prove its case.

 

12.     Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh, argued that F.I.R. was lodged against unknown persons. Complainant had no enmity/motive to falsely implicate the appellant and his brother-in-law, who is absconding in this case. He has argued that evidence of the abductee is confidence inspiring. It is corroborated by other pieces of evidence. He has also argued that prosecution has produced call data, it has connected the appellant with the commission of offence. Regarding application of the appellant before the trial Court for recalling master Muhammad Ayoub Khan for cross-examination, learned A.P.G. submitted that evidence of the victim boy was recorded in presence of the defence counsel and accused. Trial Court was not justified to provide another opportunity to the appellant to fill up lacunas. He has submitted that due to fear and insecurity, parents with boy have shifted to Waziristan and their whereabouts are not known to anybody. He has argued that prosecution has proved its case and the trial Court has rightly convicted and sentenced the appellant in this case.

 

13.     Heard arguments of the learned counsel for the parties and perused the evidence minutely.

 

14.     It is evident from the present case that complainant Rasool in his evidence has stated that on the date of incident he had gone to Hyderabad for business where he received telephonic call from house in the evening time and he was informed that his son master Muhammad Ayoub Khan was missing and his whereabouts were not known. Complainant returned back to Karachi, announcements were made in the Masjids regarding missing of the minor son of the complainant. On the next day complainant received a call on his cell number from accused. Caller demanded ransom of Rs.300,000/- for the release of his son else threat of dire consequence was issued to him. Thereafter, complainant reported the matter to the police against unknown persons. Complainant has deposed that his brother-in-law Khan Muhammad and present accused Ayub are involved in kidnapping of his son for ransom.

 

15.     PW master Muhammad Ayoub Khan, aged about 7 years, has deposed that on the day of incident he was playing with other children in the evening, his maternal uncle Khan Muhammad came to him and asked him to come with him for purchasing sweets for him. Thereafter, Khan Muhammad along with present accused made him to sit in a bus and took him to a room, where sweets and food were supplied to him. Boy further stated that his maternal uncle and present accused took him to the bus stop where police came, his maternal uncle made his escape good and present accused was arrested. Child witness has categorically stated that accused present in Court is same.

 

16.     PW Saleh Muhammad has stated that wife of complainant Rasool told him that master Muhammad Ayoub Khan was missing since the evening of 25.09.2012. Complainant came from Karachi to Hyderabad on 26.09.2012 at midnight time. Announcements were made in the Masjids regarding missing of master Muhammad Ayoub Khan. On 27.09.2012 he along with complainant went to police station where complainant lodged F.I.R. against unknown persons. On 29.09.2012 in the morning Inspector Malik Riaz informed PW Saleh Muhammad on telephone that he has received spy information that abductee boy and accused persons were standing at bus stop Gadani. He went with police to the pointed place where present accused Muhammad Ayub was standing with the boy at the bus stop. Police arrested present accused and recovered master Muhammad Ayoub Khan, another accused, namely, Khan Muhammad made escape good from the scene of occurrence, such mashirnama was prepared. He has stated that accused present in the Court is same, who was arrested by the police in his presence.

 

17.     SI Malik Riaz has deposed that on 27.09.2012 complainant narrated the fact of missing of his son. Complainant further told him that he had received call for ransom from cell number, last digits of the cell number were 44. We lodged F.I.R. and started search of the abductee. On the night of 28/29th September, 2012, SIP Malik Riaz was on patrolling along with ASI Rahim Zaib and others, he received spy information that two persons were present at Hab Chowki bus stop with abductee boy. He contacted PW Saleh Muhammad and called him and proceeded to the pointed place where present accused was arrested and recovered from his possession a mobile phone. Co-accused, namely, Khan Muhammad succeeded in running away.

 

18.     Inspector Wahid Bukhsh has deposed that he visited the place of wardat on the pointation of the complainant in presence of the mashirs and collected mobile call data in respect of Cell Nos.03056579344 and 03002626251 and after usual investigation submitted challan against the accused. He has stated that Muhammad Ayub present in Court if the same.  

 

19.     From perusal of evidence we have come to the conclusion that prosecution has proved its case against the appellant for the reasons that complainant had lodged F.I.R. against unknown persons, he had no enmity or motive to falsely implicate the accused in this heinous offence. Complainant has categorically stated that he had received a numbers of calls from Cell No.03056579344 on his Cell No.03002626251. Call data produced by the I.O. fully corroborates the version of the complainant. PW Saleh Muhammad has also supported the version of the complainant and stated that police had recovered abductee child and SIM No.03056579344 from possession of the appellant/accused. SIP Malik Riaz has also implicated the appellant while deposing that during patrolling he received spy information, he called PW Saleh Muhammad and arrested the appellant from the bus stop on 29.09.2012 and recovered child, co-accused Khan Muhammad made escape good. IO Wahid Bukhsh has collected call data and produced it at Ex.31/E, which established contact of appellant with complainant for ransom. We have no reason to disbelieve such strong evidence.

 

20.     Apart from that, evidence of child witness, who was kidnapped, is also sufficient for conviction against the appellant/accused in this case for the reasons that child witness, without any hesitation deposed before the trial Court as under:-

 

“That on the day of incident I was playing with other children and in the evening my maternal uncle Khan Muhammad came to me and asked me to come with him for purchasing sweets to me. Thereafter he took me towards the road and made me sit in a bus and took me to very far place, where another man was present and made me sit in a room, gave me some sweets and also give me food. Later on my maternal uncle and that man took me to another Bus Stop and in the meantime police came there. On seeing the police party my maternal uncle escaped away and his companion was arrested by the police and I was handed over to my relatives. At there my father was also present there. Thereafter we came to our house. The accused who was accompanied with my maternal uncle and arrested by the police is present in Court.”   

 

          In the cross-examination to learned advocate for accused, child witness replied as under:

 

“It is correct that I was playing game with other boys of mohalla at that time my maternal uncle Khan Muhammad came to me and offered for purchasing toffees. It is correct when police recovered from the accused Ayub at that time my maternal uncle ran away from the spot. Police have arrested the accused Ayub from Lea Market bus stop. Two persons namely Ayub and Khan Muhammad have kidnapped me. The accused present in court is Ayub. It is correct that on 25.9.2012 Khan Muhammad maternal uncle had taken me with him.”

 

21.     Regarding the evidence of child witness, Honourable Supreme Court of Pakistan in the case of MAQSOOD KHAN versus THE STATE (1982 SCMR 757) has laid down following principles:

 

“14. The learned trial Court convicted the accused on the testimony of Muqarrab and believed that he had accompanied the deceased at the crucial time when the accused arrived there and saw him taking the deceased towards a ditch on the pretext of cutting jharu‑reeds for her. His statement was found to be of great importance in the case as the witness had made a very straightforward and truthful deposition. It was observed by the trial Court

 

"We cannot ignore the fact, this witness is a boy of very tender age having his mental faculties not fully matured. So, he is not expected to observe the minutest details of the occurrence and commit them this memory for a long time. However, the fact remains that this witness remembered the face of this accused and few days after the occurrence he correctly picked him out in the identification parade as the same person who strangulated Mst. Hamida to death. I find no reason as to why this witness would not be believed on this point. There is nothing on the record to suggest any previous enmity of serious nature between the complainant party and the accused which might have prompted the former to implicate the latter in this case falsely by availing this opportunity."

 

We agree with this observation. In a case of a child witness it is immaterial whether he can understand and answer in a rational manner the questions put to him. No general rule of universal application can be laid down that in no case should the evidence of a child witness be believed. Each case depends upon its particular facts and circumstances. The evidence of a child witness, before it is acted upon should, however, be subjected to a close and careful scrutiny. The mere fact that the evidence of the only eye witness of a crime is that of a child of 10 years of age is not a ground for no relying upon it especially when the evidence was given without hesitation and without slightest suggestion of tutoring anything of the sort and there is corroboration of the evidence in so far as it narrates the actual facts or the child's subsequent conduct immediately afterwards. The real tests are ; how consistent the story is with itself ; how it stands the test of cross‑examination and how far it fits with the evidence and circumstances of the case.”

 

22.     As regards to contention of the defence counsel that trial Court had allowed application of accused for recalling child witness for                    re-examination but prosecution failed to produce child for his                  re-examination. It may be mentioned here that statement of the process server has been recorded by the trial Court, which shows that after recording evidence of the child witness, his parents along with child/abductee have shifted to unknown place at Waziristan. In the given circumstances, failure of prosecution to produce child for further cross-examination would not be fatal to prosecution case. Evidence of child witness/abductee is reliable, there is nothing on record that child witness gave evidence under the influence of father. In cross-examination nothing favourable to accused came on record. Child witness clearly deposed that present accused is same. Moreover, evidence of the child witness is supported by evidence of PW Saleh Muhammad and ASI Malik Riaz, which connected accused in this case. Call data is corroborative piece of evidence in the case. As regards to the defence plea, it appears that defence theory is afterthought. DW Arshad Mahmood claimed that he was media person but no such proof was produced by him. He also failed to submit any application before higher authorities regarding illegal detention of accused Muhammad Ayub. Evidence of DW-2, namely, Saleh Hussain would also not be beneficial to the appellant as he has made no complaint against the highhandedness of the police officials. Moreover, such defence plea was not raised by appellant/accused during investigation and it was afterthought. No mlalafide or enmity against the prosecution witnesses including the police officials has been brought on record. Even no major contradiction or inherent defect in the prosecution evidence has been pointed out. It appears that trial Court has rightly appreciated the evidence according to the settled principles of law.

 

23.     In the present case, it is proved by cogent evidence that child Muhammad Ayoub Khan was kidnapped for ransom, demand for payment of ransom was made by the accused on the mobile from complainant. Such data has also been collected by the I.O. It is proved from call data that accused had made various calls on the mobile of the complainant for ransom. 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).

 

24.     In the case of Ghulam Hussain Soomro versus the State (PLD 2007 Supreme Court 71), the Honourable Supreme Court has observed that, “the crimes like kidnapping for ransom have become rampant in our society, which is an unfortunate state of affairs and can only be deprecated. Such kind of criminal acts must be dealt with iron hands and event if there are minor discrepancies and deviations in the evidence or shortfalls on the part of investigating agency, the Courts should always be dynamic and pragmatic in approaching the true facts of the case and drawing correct and rational inferences and conclusions arising out of the facts and circumstances of each case.”

25.     For the above stated reasons, we have come to the conclusion that trial Court has rightly believed the prosecution evidence, which is trustworthy and probable. The appellant has been rightly convicted and sentenced for the offence with which he was charged. No illegality in the impugned judgment has been pointed out warranting interference by this Court. In consequence, the conviction and sentence awarded by the trial Court vide judgment dated 31.05.2013 are maintained. We do not find any merit in the appeal, which is dismissed.

                                               

                                                                                           JUDGE

                                                         

                                                                      JUDGE

Gulsher/PA