MUHAMMAD AYOUB S/O GAMBO KHAN & ANOTHER (Appellant) VS THE STATE (Respondent)

03"l.,*r.. .71 .^ -c.l- [t,]."i;'i-1 (A*t 3,31

INTH E HIGH COURT OF SIND H ATKA RACHI

Mohafimai! Kafim Khan Agha Mr. Iustice Khadifi HussaifiTunio' -Mr,Instite

T AL .68

Appellants: 1. Mohammad AYoub son Gambo Khan

2.Bakhat Ali @ Chaukidar @ Kango @ Benele laktuani son of Ghulam Rasool"though Mr. lftikhar Ahmed Shah, Advocate

Respondent: The State ttuough Mr Abrar Ali Khichi, Additional General, Sindh.

Date of Hearing:

Date of Announcement:

IU D GMENI

Ayoub son of Mohammad Karim Khan Atha, J' APPeIants Moharnmad @ Bengle Jakhrani son of cambo Khan and Bakhat Ali @ Chaukidar @ Kango trial in two Special Cases No' Ghulam Rasool werc charge sheeted to face their section 365-A/34 Prc rA' A-52 of 2014 arising out of FIR No 28 of 2014 under Karachi and SPecial Case No' section 7 of ATA 1997 registered at PS Al-Failah' section 23(1)(A) of sindh A-54 of 2014 atising out oI FIR No41 oI2014 under the apPellants' vide Arms Act, 2013 registered at I'S S S H'l A, Kamchi Both the learned Judge' Anti- impugned judgment dated.2gO2m2O Passed by in cdme No 28/ 201411/ s 265' Terronsm Cout No.III, Karachi were convicted H(2) CI.P.C. and sentenced to undergo R I for Iife and their ploPerties were Mohammad Ayoub son ordered to be fo eited to the Government APPellaflt oI Ghambo Khan was also convicted 265-H(2) Ci'P'C in crime No'41/2014 to five years and to Pay a fine of undergo Rigorous ImPdsonment for a Period of Rs.500O/- and in delault thereof to underSo SI for six months more' Appellants were also oxtended t€nefit oI section 382-B Ci'PC Al1 the sentences were ordered to run conculrently

2.The bliel facts of the prosecution case are that on 02.02.2014 complainant Tehseen ul Huq lodged FIR o( this case at Police station A1- Fallah, wherein he stated that on 28.01.2014 at about 10:30 p.m. his brother Takreem ul Huq along with his two ftiends namely Mohammad Faizan and Mohammad Shariq went outside to have flleal in Honda Civic Car bearing registlatlon No.Z-5327 and since then they have not retumed back. It is Iurther submifted that complainant made every eflot to search his brother but could not succeed, hence this FIR.

3.After registration of the FIR, investigation of the case was enEusted to Sub. Inspector Akhtiar Ali Euto who visited the place oI incident and PrePared mashirnama as well as recorded the statement of complainant under Sectron 161 CI.P.C who further disclosed that unlno\.n accused Persons made Phone calls lrom the cell phone number 0301{265923 of abductee Takreem ul Haq and cell phone number 0315-2555357 of abductee Mohammad Shariq and has demanded lansom of Rs.70,00,000ii - and 40 Tola Gold for release of abductees The LO. then recorded statements of P\ rs Mohammad Faisal, Moharfinad Mubeen and Tasleem ul Haq u/s.161 Cr.P.C. who also corrotorated the version of the complainant. Du ng investigation I.O. secured a car of abductee Tehseen-ul-Huq under memo from Abbass Town Chowki oI police station Sachal which was seized by ASI Ameer Bux Chandio u/s.550 Cr.P.C. from Katcha road, Super Highway on 28.01.2014 at about 2345 hours. The LO. then applied section 365-A Prc in the case and the investiSation was tansfered to SIP Ali Mohammad of AVCC who then obtained CDR of the Cell phone numbe$ of the abductees undei the memo from computer section of AVCC on 13.02.2014. During investigation on 13.02.2014 Rangers conducted raid at various places/houses and eventually found the Place where the abductees were ccnfined. The Rangers oflicials got released the abductees and on the pointation of abductee Takreem ul Haq conducted raid on some other houses as well as conducted laid on some houses on the pointation of Muhalla people and arrested the accused Muhanunad Rafiq and Muhammad Ameen later on 15.02.2014 LO. visited place of abduction i.e. notthem byPass Super Highway on the poirtation of abductees Takreem ul Haq and Muhammad Faizan and prepared such mashirnama. I.O. also visited Place of confincment of abductees i.e. the house situated in Khadim Solangi Goth on the poination of abductees Takreem ul Haq, Muhammad Faizan and prepared such mashimama. I.O. tlen recorded slaiement of aHuctees lakreem ul Haq u/s.,

'l {?a

161 C!.P.C. on 15.02.2014 who disclosed that on 28.01.2014 he alongwith his friends Muhammad Shariq, Muhammad Faizan were going to Al-Habib restaurant Super Highway on his Honda Civic Cai bearing registration No' 2-6327,lot dilnei,. As they were going in slow sPeed. at about 1130 pm three arned peasons emerged ftom the bushes and stoPPed their vehicles, the culprits atighted from the vehicle, conducted search of all three abductees and snatched cash and mobile phones from them, thereafter the culPrits made them sit in the car and after 30 minutes' drive they took them to a house where they blind folded thei! eyes and chained their legs. The culPrits used to talk Balochi, they had kept the abductees in a room whele a lame Person used to provide them Iood and sometimes two boys aged about 77/73 yeats provided them food in absence oI the lame Pelson. Meanwhile ftngers conducted raid on the Place where the abductees wele conlined and recovered them. LO. then also reaorded statements of other abductees u/s' 161 Cr'P C' TlrereaJter on 77,02.2014 ASI Muhammad Wakeel arrested the accused Muhammad Ayoub Ircm State Bank Society Road near Khadim Solangi Goth, Scheme 33 Karachi and recovered an unlicensed 30 bore pistol bea ng No.4662 loaded with lour live bullets from his possession and rcEstercd case against him being c me No.41l2014 lor offer.ce u/s. 23(1)(A) Sindh Arms Act' Accused Muhafimad Ameen and Muhammad Ra-fiq who were under arrest u/s. 54 CI.P.C. at Police station SSHIA. disclosed their comPlicity in commission of this case, therefore, ASI Qadir Bux vide rePort No.50 at about 1930 hours inJormed Police station AVCC about the aEest and disclosurc oI the accused. The I.O. then interrogated the accused Muhammad Ameen, Muharffnad Rafiq and Muhammad Ayoub who disclosed their comPlicity in commission of this case, therefore, I.O. re-arrested the culPits under memo' The case being triable by AntlTerrorism Court, I.O. SIP Ali Muhammad was not competent to investigate the case, therefore, the investiSation vyas entrusted to Inspector Muhammad Yameen Gujjar under the orders of SSP' The LO. Muharnmad Yameen Gujjar obtained remand of the accused from Arlti-Terrorism Court No.I, Karachi and produced them before the Judicial Ma6strate No.XVII for identification parade whele the accused Mohammad Rafiq Mohammad Ameen and Mohammad Ayoub were identified by the abductees in presence of witness under the memo o{ identification Parade. During investigahon accused disclosed the name of their cor,lPanions to be Ameer Bux Jarnali s/o Sobo and Murad Shah s/o Unknown TheIOt ed to1

3to

search the absconding accused on th€ Pointation of arrested accused but could not succeed. During investigation it was furthq lound tlut absconding accused Ameer Bux Jamali was the father of aEested accused Mohammad Ameen and Mohrmmad Rajiq. AJter comPleting the inve\tigation LO submitted report u/s 173 Cr.P.C. before the Anti-Terro sm Court No1 Karachi.

4.NBws were issued against absconding accused but the same were returned un-executed. The Proclamation was issued for attachrnent of property oI absconding accused u/s 87/86 Cr'P.C, thereaJter Publication was also made in tkee natioral newspaPers, the accused were declaled as proclaimed offenders and th€ case was ordered to be kept on dormant file aSainsl lhe absconding accused \ ide order dated 21.05 2015.

5.On 11.06.2014 accused Bakhat Ali s/o Ghulam Rasool was anested in c me No.145/2014 Ior offence u/s 23(1XA) Sindh Arms Act of Police station SIU/CIA and during interrcgation he disclosed his comPlicity in commission of the offence. The I.O, tJrerefore, re-arested the accused in this case. The I.O produced the accused before ieamed Judicial Magishate No.XUII, Karachi East for identilication test. The PWs Mohaomad Shariq and Mohammad Faizan identiJied the accused in identiJication test under the memo of identiJication test.After compleEng the formatities LO subrnitted supplementary challan again6t the accused-

6.The cases were tried by Anti-Terorism Court No IV from where the cases were received by Eansfer by this courl Belore the cases were received by trarsler the minor accused had iumPed the bail Charge against the minor and adult accused was iointly harned and evidence of some of the witnesses was also recorded, however the case of the minor accused by order dated 13.09.2018 was bifurcated as ioint trial of adult and minor accused was illegal and fresh charge against the present accused was framed in this case on 04.10.2018. The accused did not Plead guilty and cla:med to be tried

7.The prosecution in order to Prove its case examined 13 PWs and exhibited various documents. The statement of accused Pe$ons were recorded under Section 342 CI.P.C in which they denied all the allegations leveled against them. Accused peBons neither exarnined themselves on oath nor produced any DW in their defence. After aPpreciating lhe evidence on, t

3c\ out record the trial court convicted the apPellants and sentenced them as set earlie! in this judgment. Hence, the aPPellants have filed this aPpeal against +heir conviction.

The facts of the case as well as evideflce Produced before the trial court

find an elaborate mention in the imPugned iudS4ent dated 12 02'2019 Passed as to by the trial court and, thercfore. the same may not be repioduced here so avoid duPlication and unnecessary rePetition

9.Leamed counsel for aPPellaflt Ayoub contended that the aPPellant was completely innocent in this case and had been falsely imPlicated in this case

by the police in order to 6how their efficienry; tl at only one PW abductee identified him and that PW's identification could not be salely relied uPon as it was belore a joint identiJication Parade; that aPat from this misidentjJication there is very little other evidence against this apPellant' a major contradiction is also Plesent in his case as according to the one of the

PW abductees he was ar:ested on the sPot by rangers howevei it has come in evidence that he was anested later by the Police with an illegal lirearm in his possession which has treen clearly foisted on him With regard to aPpellant Barkat Ali leamed counsel contended that although this apPellant had been identiJied by two abductee eye witnesses the evidence o{ these eye witnesses could not be safely relied uPon as they did not have a chance to see any of the appellants as they were blind folded throughout and as such both the appellants should be acquitted by being extended the benefit of the doubt in support of his contentions, he Placed reliarce on the cases oI Mian Sohail Ahmed v The State (2019 SCMR 956), Gulfan v The State (2017 SCMR 1189)' (amala Ziaullah alias JAJ, v the State (2008 SCI\4R 1210), Kamal Din alias (2018 SCMR 52)and Khadim H$sainv The State (1985 SCMR 721)

10.On the otheI hand learned Additional Prosecutor General Sindh has tully supported the imPugned judgment ln Patticular he has contended that the abductee eye witnesses have correctly identified the aPPellants as the persons who had hetd them caPtive alter theit abduction; tlat a mnsom demand had been made for the sale retum of the abducteesi that although there are some rdnor conEadictlons in the Prosecution case these arc not so material as to ellect the Prosecution casej that every one who Plays a Part in a kidnap for ransom case is equally iesfonsible for the crime even if the accused were not the acLual atlductors and as such the ProJecution had Proved its case/

i \),

against the appellants beyond a reasonabie doubt and the apPeal should be dismissed. In support of his contentions, he placed reliance on the cases of Muhammad zanan v The stat€ (2007 SCMR 813), Khawaja Hasanullah v The State (1999 MLD 514), Rafaqat Ali v The State (2016 SCMR 1766), Dr. Javaid Akhtar v The State (PLD 2007 SC 249) and Muneer Ahmad v The state (1998 SCMR 752).

11.we have heard the arguments of the learned counsel for the aPPellants and leamed Additional Prosecutor General Sindh and have Sone tlEough the entire evidence wluch has been read out by the leamed counsel for the appellants, and the impugned judgment with their able assistance and have considered the relevant law including the case ]aw cited at the bar'

72.At the outset we emphasize that that we must be alive to the fact that kidnapping for ransom these days is very often not a simPle affair. For example, A does not simply kidnap B, tale him to his home and calls B's Iatller demanding a ransom on B's Iandline. Now a days kidnapping lor ransom is very often canied out in a highly sophisticated and plann€d manner by highly organized 8angs. Ior example, A may kidnaP B, B is then handed to C, C then hands B to D at a new locatiory E makes the rarl.som call, I eollects the ransom money, G llands over the ransom money to the leader of the gan8. Disposable phones may be used, diIIereflt vehicles and locations rnay be used to shift and detain the aHuctee and some or none of the gang memberc may not even know each other by face. One gang may even sell on the abductee to another gang in a diflemt part of the country.

13.The facts and circumstances oI this case as narrated by the abductees in their evidence fit in with such modus operandi. Each membet of the gang may play a different role in the kidnappin& to a Sreater or lessel extenL but a successful kidnapping for ransom could not be carried out without the active participation of all members of the 8a.9. As such in our view they are all liable in this joint criminal enterpdse oI ladnaPPing for ransom whether thev actually snatched the abductee, drove him, guarded him, collected the ransom etc. As such through their respective rcles oI driver, guard, cook, accepting the ransom etc the appellants ale a part oI the kidnapping gang who all participated in the kidnapping. This aspect of kidnapping for tansom was recognized in the case of Khawaia Hasanullah (Supra) and Ahmed Hussain v^The State (PLD 2008 SC I I0) which held as under at P.l13 .rt para 5,

" the abil ctee in his statenlent i11 the exanination in chieJ has categoically staled thttt Shohzad Ali and Abdul lobbir, petitioners abduct d hiftl in a r lrom Boat Basin ohereas Ahrned Hussain alias At i, petitioner seil lo lrisil lhe ploce of his dete tion to pradde hin lood and tley all were actiae nembe$ of the Sang of culpnb. bafted coufi\el for Ahmed Hussaifi, petitioner, uhen cofilaonted that the abooe pottion of the staletefll of abductee uls hol challenged fu the det'ence dnd so much so, fio stggestion uas put lo him ifi tJE cross4xani alion that peLitioner r]as nol afi actite parlnet of the nccused. The law is that if a person subseque tly associates hitfiself uith the accuseil ifl the cirrle, he ,nav harre safie liability atil learneil colorsel has fiot beefl able to satisfy lts that Ahfieil Hussain petitioner .oas ,rot prioy to the cifie, Ifi the liSht oI the circumstarrces leadifig to the o.dtftence aftil the subsequent eoehts, an irrJercflce cotld safeu be druwn that the petitiofiers haoitlg panicipated in the critfie, hane incutreil equal respotlsibility of con nission of the olfence, (bold added) .

14.[n this case it appears that the appe]Iants Played no role in actually abducting the appellants ftom their car which was later found abandoned on the Super Highway in Karachi and produced at trial but their role was to guard the abductees and assist in the demanding of the mnsom for their saJe retum after tfueatening them when they were dropped off to them by the other membe$ oI the gang who actually caEied out the abduction and are

15.The fiIst elefient of the case is whether the abductees v/ere actually kidnapped. Irt this case there werc tkee abductees. Pw 3 Takreem-Ul Haql Pw 4 Muhammed Fiazan and Pw 5 Muhanrmed Shariq. There evidence is at one in so far as their abduction is concemed. Namely that they werc all travelling for dinner when they were stopped by another vehicle where upon three armed men alighted whose faces were covered and who robb€d them oI their wallets and phones before bundling thern blind folded into another car and took them away. All three abductees coEoborat€ each other in all mate al rcspects in respect of their abduction and their abduction was not particularly challenged at trial and as such the kidnapping oI the abductees has been proven beyond a reasonable doubt.

16.From the evidence of the three abductees they were all handed over to another group of people which included the appellants and two children to. t

31q

guard and to take care of them (including feeding them occasionally in the absence of the co-accused minor children) whilst a ransom demand was made from their relatives in order to secule their release The case of the two children was sepatated ftom that of the aPPellants as they were minols and their role according to the abductees was to Ieed them whilst they remained in captivity Ior the 16 days Prior to their release/rescue.

77.With regard to the ransom it is settled by now that in order to Prove a case of kidnaPPing fol mnsom no lansom amount needs to be Paid or recovered but only ploof that a demand for ransom was made Abductee PW- 3 Takreem states in his evidence that after one or two days they obtained from us cell No's of our famil)' membeE and made conversation $'ith them and after 7 to 8 days the accused recorded our voices with dialogues whereby they were compelling us to convey their demand oI lansom amount to oul family members arld that they understood that by recording their voices for ransom amount such voice recordings were sent to another place to another percon belonging to the accused to convey our voices oI the lansom demand to our Iamily members. The ransom amount was lor initially for one crore and 40 tola gold {or the ielease of each person but was later reduced to 15/20 lacs for each person. AMuctee PW 4 Muhammed Fazian corrobomtes the ransom demands by the accused and that they would face dile consequences if the ransom was not Paid. Abductee PW 5 Shariq also cofioborates such ransom demands and tfueats. The fact that the demands aPPear to have been made from another location is corobotated by the CDR which shows that many calls which wete made during the Period whilst the abductees were in captivity were made to the complainant and tlBt these calls emanated ftom Balochistan where ofle of the absconding kidnaPPers Jamali was from Such ransom demands are also corroborated by PW 10 Tehseen and PW 11 Muhammed Mobeen who were both related to the abductees and received these ransom demands and rePorted the matter to the police Thus, we find that ransom demands were made for the release of the abductees which were passed on through the persons holding the abductees in caPtivity

18.The key aspect to thfu case is whether the abductees have been able to correctly identily the appellants as the P€rcon s who held them in caPtivity

3i(

19.In this case the tfuee abductees were kePt in caPtivity for 16 days According to the evidmce of abductee PW Muhammed Faizan during there \ captivity their (i.e aMuctees) faces were oPen- The abdu€tees were in captivity for 16 days and as such would have had amPle oPPoltunity to see and identify the Persons who were Suarding and feeding them and would have got to know them and recognize them tn th€ 'ase oI Muneer Ahned (supra) which was also a kidnaPping lor ransom .ase it was held that thele I was no need for an identilication Parade in such like cases where the abductees had been in custody of the aPPellants for a long Period as it was not a case oI the aMuctees only getting a fleeting glance of the accused but of getting to see them regularly over a conhnuous Pedod of time esPecially when none of the abductees had any ill will or enmity with the aPPeliants as in this case. Nevertheless, although not stlictly necessarv based on the particular facts and circumstances of this case an idenhfication Parade was caried out in respect of Ayoub and desPjte being a joint identification Parade Ayoub was picked out by one of the abductees by PW 4 Muhammed Faizan with a specific role.

m. In a sepalate and later identilication parade alter his arrest appellant Barkat Ali vsas identified by abductees PW 4 Muhammed Faizan and PW 5 Muhamfted Shariq leith speciJic roles.

27.Essentially both the aPPellants were Suards oI the abductees who were involved in making ransom demands and occasionally Providing Iood to the abductees in the absence of the two minol co_accused children. As mentioned eailier all tkee of the abductees lrad no enmity with the aPPellants and no reason to falsely imPlicate them in this case. They werc held in caPtivity {or 16 days and as such had a long enough time to both see and recognize the l appellants iJ they saw them again without the need of an identilication pamde although they did identify them at seParate idenfiJication Parades which were held only 2 and 5 months respectively after the incident whefl the apPellants had been arrested in this case so the abductees would easily be able to \ recognize the aPPellants. Even otherwise the id€ntification parades excePt for the joint identification parade in resPect of aPPellant Ayoub were cari€d out in accordance with the Iaw and nearly all Procedural lequirements 'ere followed by each magistrate (PW 1 Mirza Ahmed and PW 2 Abdul Qadir \ Buriro) who cafiied out an identification Pamde oI the aPPellants. The

It( appellant's claim that they wer€ shown to the abductees belore the identilication parade is a stock defense put up by aPPellants in such like cases and we disbelieve the sarle esPecially as the IO and all thiee abductees denied 7 the allegation.

22.It is trre that there are some discrePancies/contradictions in the evidence of the abductees but we do not regard these as mateiial enough to effect the prosecution case esPecially as the aHuctees were having to endure a very kaumatic expedence over a long Pe od of time where discrePancies were bound to slip in. In this resPe.t reliance is Placed on the case of Zakir Khan v State (1995SCMR 1793).

23.It is relevant that it was held in the case of Pahlwan v state (2000 P.CI.LJ P.299) in cases of kidnaPping for ransom the evidence oI an abductee is material and convictlon can be based on his testimony alone if it inspires confidence. In this case there are tfuee abductees all of whose evidence inspire confidence and we believe the same

24.Appellant Ayoub was arrested by the Police a few days after the incident and he had in lxs possession an unlicensed firearm we find that the prosecutron has proved this case him beyond a leasonabie doubt tkough the evidence on record of the Police PW's which we {ind to be reliable keePing in view the fact that the police had no enmity with aPpellant Ayoub and had no reason to involve him in a false case lol by example foistiflg an unlicensed pistol on him.

25.In ca6es concerning kidnap for lansom there is a need to take a dynamic approach. The SuPreme Cout in Noor Muhammad v State (1999 SCMR 2722) has also adverted to this asPect of the matter and has obseFed as under:-

"Houteoer, ue fiay obserue that the people are losing faith in the ilispensatiotl of ciminal iustice by the ordinary fiifiinal courts for the reasofl that thev eithet acquit the accuseil persofls on techfiical grotnils or take n lefiieflt aieu in awqtiling sentefice, It is high tifie that the Courts should reolize that thelt oue il ty to the le84l heirs/telatiofls of the oictims arril also to the society, Sente ces aToaileil shoulil be such u:hirh shoulil ad as a il?terre l lo lhc cofinlission ol)

3t1 offeflces. Ofle of us (Ainal Minn, C-1., os he then Ltas) has highlight?d this ospecl ifller olia i lhe @se oJ State thtough the Ailoocote Gefieral Sifidh, Karachi o. Fanfla Hussain a il others (PLD 1gg5 SC 1), leboaflt pottiorl whereof at page 19 t/ reads as follorusi

O) It is 4 natter ol public knou)ledge that ifl Sindh, on accolt tt ol kidfla\pirtg lot finsom, cofinissiofi oI d,.oilies and other offences, lhe People are JeelinS nsecured The leafied tial Cr,urt hns ditated uPo tlAse aspecLs in detail. 1 am inclined to subscibe to the lie1I Iound fu@ut t'ith il. The aryroach of the Court in ,natters like the case ifi hanil should be dynamic and il the Court is satist'ied that the olfence has been corfifiitteil itt the mafirter irl Lohich it has been alleged by the proseantiofl the techntalities should be olJerlooked t itholtt causing any rrliscariage ol iustice"' (boh1 added)

26.Thus, even iI we find that there may be some technical defects in the prosecution case we do not find that such delects have dented the prosecution case and by adoPting a dynamic approach without causing miscarriage of justice for the reasons mentioned above we hereby dismiss the aPPeal of the 1 appellants.

{,+n

IUDGE ,

'LL

JUDGE