ABDUL WAHEED S/O MUHAMMAD BACHAL & ANOTHER (Appellant) VS THE STATE (Respondent)

INTHEHIG H COURT OF SINDH I(ARACHI

Present:

M/, ]ustice Mohamnad Kaim Khort Agha M/,I stice Khddinl Hussaifi Tunio,

SPL. CR. .T. APPEAL NO. 15 0F 2027

CR. A .T. NO. 1s2

SPL. CR. A T. APPEAL NO. 153 0F 2021

Appellant: Abdul Waheed son of Muhammad Bachal ttuough Mr- Ghulam Rasool Rind, Advocate.

Respondent The State through Mr Khichi, Additional Prosecutor General, Sindh.

SPL. CR. A .T. APPEA L NO. 154 ()F 2021

Appellant: Mushtaq Ahmed son of Muhammad Ismail through Mr. Ghulam Rasool Rind, Advocate.

Respondent: The Siate through Mr Abrar Ali Khichi, Additional Prosecutor Ceneral, Sindh.

Date of Hearing: 21.04.2022

Date of Announcement: 29.04.2022

T UDGMENT

Mohammad Karim Khan Agha, J. APPellants Abdul Waheed and Mushtaq Ahmed were chaige sheeted to face their trial in four Special Cases No'28 of 2019 arising out of FIR No.178 oI 2019 undet section 356-A/392/34 PPC r/w section 7 of ATA 1997 registered at PS Gulshan-e-Maymar, Karachi, SPecial Cases No.28-A of 2019 a sing out oI FIR No 195 oI 2019 under section 4/5 Explosive Substance Act r^v section 7 of ATA 1997 registered at PS Gulshan-e- Maymar Karachi, SPecial Cases No.28-B of 2019 a sing out of FIR No 196 of 2019 under section 23(i)(a) Sindh Arms Act registered at PS Gulshan-e- Maymar Karachi and SPecial Cases No.28-C of 2019 arising out of FIR No'197 of 2019 under section 23(i)(a)Sindh Arms regi'tered at PS Culshan'e-Mavmdr

Karachi. The appellants vide impugned judgment dated 31.08.2021 passed by the leamed Judge, Anti-Terorism Court No.III, Karachi were convicted and sentenced as underi-

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i)Both the appellants/accused persons were convicted D/s.265 H CI.P.C. and sentenced in crime No.178/2019 oI PS Gulsl,an-e- Maymar for offence u/s. 365-.4 PPC to undergo R.L for lile and their properties shall stand forfeited to the Govemment. The offence of abduction for ransom within the meaning of Section 6(2) ATA is not established therefore, no conviction is awarded u,rs. 7(e) oI ATA.

ii)Appellants/accused persons Abdul Waheed and Mushtaq Ahmed were also convicted u/ s.265-H(2) CI.P.C. for offence u/s.392 PPC and sentenced in c me No.178/2019 of f€ Gulshan- e-Maymar to undergo R.I. for ten years.

iii)Appellant/accused Abdul Waheed also convicted r/ s.265-H(2) Cr.P.C. in crime No.195/2019 of IIS Gulshan-e-Maymar for offence u/s.7(1)(I1) ot A-lA 1997, r/w section 4/5 Explosive Substance Act and sentenced to undergo R.I. for pe od of 14 years, and to pay fine of Rs.10000/- and in delault thereof to undergo 5l for si\ months more.

i") Appellant/accused Abdul Waheed also convicted u/s.265-H(2) Cr.P.C. in crime No.-196/2079 of PS Gulshan-e-Maymar for olfence u/s.23(1xa) Sindh Arms Act, 2013 and sentenced to undergo R.l. for period of 07 years, and to pay fine of Rs.5000/- and in default thereof to undergo SI for six months more.

v)Appeltant/accused Mushtaq Ahmed also convicted u/s.265- H(2) CI.P.C. in crime No.797 /2079 ot PS C\11shan-e-Maymar for of{ence u/s.23(1)(a) Sindh Arrns Act 2013 and sentenced to undergo R.I. for period of 07 years, and to pay fine oI Rs.5000/- and in default thereof to undergo SI Ior six months more.

A1l the sentences shall run concu ently. The appellants/accused were also extended the benefit of Section 382-8 Cr.P.C.

2.The brief Iacts oI the prosecution case are that on 08.07.2019, compldindnt Muhammad libran in his car bearing No.BH-2745 'l oyola Mo.reJ- 2019 along with his son Muhammad Talal aged about 10 years, went to Noo stan Super Store for purchase oI grocery. At about 2230 hourc the complainant stopped his car outside Noo stan Super Store and hc alighted from the car. In the meanhme, two young persons in shalwar kameez who were looking to be Sindhi and on the show of weapon the accused snatched the key of the ca! fiom the complainant, out of them one accused sat with his son in the car while other accused pointed his pistol towards the complainant and he also sat in the car. The complainant due to fear remained silent and the

si culpdts took away his car along with his son. The complainant therefore, lodged the report against unknown pedons in respect of abduction of his son and robbing his car.

3.After registiation of the FIR investigation of the case was entrusted to SIP ZaIar Iqbal who visited the place of mcuffence and prepared sketch as well as recorded statement u/s.161 CI.P.C. of PWs. On 14.07.2019 ASI Muhammad Saleem Abbasi oI I'S Gulshan-e-Maymar along with suboidinate staff was on paholling duty when the complainant contacted the ASI and inlormed him that he has received a call on his cell phone No.0300-9210270 from cell phone No.0300-2883636 who demanded lansom of Rs-s0-lacs for the release of his son and his car No.BH-2745. The comPlainant also inlormed the ASI that the culprits are in contact with him and they have called him on 74.07.2019 ar about 0030 hours to reach at Afghan Cut near Sawan Village, MDA double Road Gulshan-e-Mayrnar. The comPlainant went to the Pointed place along with the police party where the Police surounded the area and took positions. The comPlainant contacted the culPiits and asked them that he has reached outside the door. As soon as the door oPened, the Police Party entered and apprehended one accused who disclosed his name as Mushtaq Ahmed s/o Muhammad Isrnail. His sealch was conducted and a 30 bole pistol without number along with 04 rounds, one wallet containing his CNIC & cash Rs.300/- and Q- mobile were recovered fiom his Possession wlich was secured by the police and inquired from the accused about abductee Muhammad Talal and the vehicle uPon which accused disclosed that his accomplicc Abdul Waheed is Prescnt in thc room with thc abduclee wlrile th, vehicle is available at the backside of the room. The Police also aPPrehended accused Abdul Waheed who was Present in the room and asked his parlicLrlars. The police conducted hi5 search and recovered J hand_grcna.le and a 30 bore pistol without number aiong with 05 rounds, mobile Phone Vigo-Tel and one wallet containing his CNIC, some visiting cards, 02 blank cheques of Bank AI-Habib in his name, one online comPlaint and cash Rs.500 from his possession which were secured by police. Abductee Muhammad Talal was released by the police. The accused could not Produce the license for the weapons. The police inquired about the car of comPlainant. The car was parked behind the room having Iake number Plate AMC-273 which was searched and found that the o ginal number Plate of the car was lying in the diAgi RH-2745, which was secured by the police. The abductee child was

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identified by complainant as his son Muhammad Talal. The accused were arested in c me No.178 oI 2019 and so also in resPect of aims and ammunition unde! memo oI aIrest.

4.After completion of usual investigation report u/s.173 was submitted before the Administrative Judge, ATC Karachi. Thereafte. t al was commenced, oath in terms of section 16 of ATA, 7997 was took. The cases were amalgamated for joint hial of the accused. A consolidated charge against the accused percons was lramed to which they Pleaded not guilty and claimed trial.

5.The prosecution in order to Prove its case examined 8 PWs and exhibited various documents and othel items The statements of the ac.used were recorded under Section 342 Cr.P.C in which they denied all the allegations leveled against them and claimed false imPlication The accused however neither examined thernselves on oath nor Produced any DW in their defence.

6.AIter appreciating the evidence on record the trial coult convicted the appellants and sentenced them as set out earlier in this judgment. Hence. the appellants have filed these aPpeals against their conviction

7.The Iacts of the case as well as evidence Produced before the trial court find an elabomte mention in the impugned judgment dated 31.08.2021 passed by the kial court and, therefore, the same may not be reProduced here so as to avoid duplication and unnecessary rePelition

8- Learned counsel for aPPellants contended that the aPpellants were completely innocent in this case and had been falsely imPlicated in this case by the police in order to show their efficiency; that the abductee and the complainant were nol ,n a po<ition to safely identify the aPPellants esPe(idlly as they had not even been put before an identification parade; that there were major contradictions and imProvements in the evidence of the PW's whicll rendered their evidence utueliable and as such both the aPPellants should be acquitted by being extended the bene{it of the doubt.

9.On the other hand leamed Additional Prosecutor General Sindh has futly supported the impugned judgment. In Particular he has contended that ihe rbdLrclee cye wilness and comPlrinant havc .orrectly idenlrfre' lhe, t

appellants as the persons who kidnapped the abductee and held the abductec for ransom; that the abductee was recovered from the appellanfs custody during a police raid where uilicensed pistols, a hand grenade as well as the complainants car were recovered from themi that a ransom demand had been made for the safe ietum of the abductee; that although there are some minor contradictions and improvements in the evidence of some PW's these are not so material as to eIIect the prosecution case and as such the prosecuiion had ploved its case against the appellants beyond a reasonable doubt ard the appeals should be dismissed. In support of his contentions, he placed reliance on the cases of Rajab AIi versus The State (2021 YLR Note 13), The State v Farman Hussain (PLD 1995 SC 1), Muhammad Siddique v The State (2020 SCMR 342), Muhammad Ehsan v The State (2006 SCMR 1854, Niaz-Ud-Din v The State (2011 SCMR 725) and Khawaia Hasanullah v The State (1999 Mt D 5',14).

10.We have heard the arguments of the leamed counsel for the appellants and learned Additional Prosecutor General Sindh and have gone through the

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entire evidence which has been read out by the leamed counsel for the appellants, and the impugned judgment with thei able assistance and have consideied the relevant law including the case law cited at the bar.

11.Aftq our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt that on 08.0/.201q at about 2300 hours at Noo6tan Superstore, Sector X-I Gulshan Maymar Karachi the appellants kidnapped Talal from the custody of his father on the show oI weapons along with vehicle number BH-2745 Toyota corolla whilst extending threats to the complainant. That the appellants then demanded RS 50 lacs from the complainant as ransom for the sale ielease of his son abductee Talal but later on 14.07.201o dL aboul 0300am the dppetldnts were arrested near Afghan ( ul near Sawan Goth MDA where the abductee was recoveted along with aforesaid stolen car and one pistol and hand grenade was recovered from appellant Abdul Waheed and one pistol from appellant Mustaq Ahmed for the reasons set out below keeping in mind that each c minal case must be judged on rts own part,cular tacts and circum<tancer.

(a)The FIR was lodged by the complainant with promptitude which gave no time Ior the complainant to cook up a Jalse case against the appellants. That the FIR was also against unknown persons and as such there was no attempt by the complainant to Ialsely implicate any body, t

and even other wise the complainant had no reason to falsely imPlicate the appellants as there was no enmity or will between them.

(b)We find that the prosecution's case Prima ly rests on the eyc , witnesses to the incident and whethe! we believe their evidence especially in terms of correctly identifying the aPPellants as the kidnappers whose evidence we will discuss in detail below;

(i)Eye witness Pw1 Muhammed Jibran who is the comPlainant in the case and is the lather oI the abductee states in his evidence that on 08.07.2019 he and his son Talal diove to suPerstore Nooristan at Gulshan-e-Maymar in his car bearing registration No.BH-2745 at 10.30pm.That when he stoPped his car outside the superstore two young men armed with Pistols snatched his car keys and then whilst Pointing the pistol at him jumPed in his vehicle and drove off the same whilst abducting his 10 year old son Talal- He then went to PS Gulshan-e Mymar and Iodged his FIR which was not improved on in resPect of the incident which had occurred during his evidence and is cofioborated by PW 3 Muharnmed Atif and PW 6 Muhammed Ghori wllo respectively recorded his FIR and were Present at the f€ when he Save his verbal account for recording his FIR. According to his evidence he was receiving ransom cails and a demand of 50 lacs was made lor the safe return oI his son and he remained in contact with the kidnappers in order to affanBe Payment oI the ransom. a He reported the calls to PW 4 Muhammed Saleem who was the contact person who had been aPPointed by PW 6 SHO Muhammed Ghori in order to kace out his son. When the Place for the ransom drop had been finalized the comPlainant co- ordinated with PW 4 Muhammed Saleem so that the Pollce would be present at the place where he went to Pay the ransom in order to recover his son and arest the kidnaPPerc. This is co oborated by the evidence of PW 4 Muhammed Saieem. According to the complainant's evidence when he knocked the door oI the place where he was sent to deliver the ransom PW 4 Muhammed Saleem apprehended appellant Mustaq from whom he recovered a pistol who admitted making the ransom calls and told them that the abductee was in another room with another culprit which appellant Mushtaq lead them to. ln that room appellant Abdul Waheed was arested along with a Pistol and a hand glenade and his son was also rescued by the Police {rom that room. The appellants told him that his vehicle was Present in the compound which he found with fake number Plates with the genuine number plates being hidden in the boot of the vehicle. He was mashir oI memo oI a est and lecovery. He recognized both the accused in the coult as the Persons who abducted his son and who were arested by the Police at the time when his son was recovercd.

The complainant would have got a good look at the aPPellants at the time when they abducted his son along with his car. I-le stated that he would be able to identifiable them again although he gave very littie hulia. He was present only 5 days later when the appellants were arrested in his presence and as such there/

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could not be an identification parade never the Iess we are of the view that he has corectly identified the apPellants as the kidnappers as he saw them from close uP for a reasonable period of time especially when his evidence is read along side that oI V the abductee. He had no reason to falsely imPlicate the accused and no enmity has been suggested against him. He gave his evidencc in a shaight forward manner and was not dented despite a lengthy cross examination and as such we find his evidence to be trust woithy, reliable and confidence insPiring and believe the same especially as it is corroborated by the evidence of so many PW's as mentioned above and we can convict on his sole eye witness evidence alone. In this resPect reliance is placed on Niaz-uu-din's case (Supra)

(ii)Eye witress PW 5 Muhammed Talal is the stiu witness being the abdu(tee. In his evidence he fully corroborates his Iather's/complainant's evidence with regard to his kidnapPing ftom outside the suPerstore. According to his evidence after his kidnapping he was blind folded in his father's car and slaPPed and wained that he would be shot dead if he cried out- According to his evidence he was d ven in his stolen father's car to a compound and tied to a chair in a room where he gave the kidnappers his Iather's/comPlainanfs cell number. He was warned about being shot dead again and he was provided I breakfast by the kidnapPers whilst he was not blind folded. According to his evidence he was kePt caPtive for about 6 days. One day the kidnappers told him that they had contacted his father who was coming with the ransom noney and therealter he would be released. The Police then came in the room and rescued him and he was handed over to his fathei. He identified the appellants in court as the Percon's who had kidnaPPed him and tfueatened to kill him and would release him when his father paid the ransom money. He remalned with the kidnappers for at least 5 to 6 days During this Period he would have had plenty oI oPPortunity to see and recognize the kidnappers as he would have seen them over a long period of time at close quarters and even knew what names they called each other. He identilied the aPPellants in court as his kidnappers. Since the kidnappers were arested on the sPot at the time of his rescue by the Police there was no need for an identilication pamde as he had already seen the aPPellants and in such type oI cases an identification Parade is not ne.essary. Thus, we Iind that this abductee eye witness correctly identified both the appellants as the Persons who kidnaPPed him and demanded ransom for his release. in this resPect his evidence corroborates that oI his father in terms of identification and events sufiounding his initial kidnaPping and Iinal release on being rescued by the Police. In respect of no identification parade being required in such like cases reliance is Placed on ihe case oI Khawaja Hasanullah (SuPra)

Fulthermore, he had no ill will or enmity with the apPellants and had no reason to falsely implicate the aPpellants. He gave his evidence in a straight forward manner and was not undulyl

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damaged duting his cross examination and as such we believe his evidence which we find to be trustworthy, reliable and confidence inspi ng and that he has correctly identified the two appellants as the persons who kidnapped him for ransom' I It is relevant that it was held in the case oI Pahlwan V State (2000 P.Cr.Ll P.299) in cases of kidnapping for ransom the evidence oI an abductee is mate al and conviction can be based on his teshmony alone if it insPires confidence. In this case we find the evidence of abdu(tee PW 5 Talal to inspire confidence and we believe the same

It is true that there are some improvements in his evidence from his 5.161 CI.PC statement but based on the particular facts and circumstances of this case we Iind such improvements not to be of great significance especially as the abductee gave his 5'161 Cr.FC statement in his own words shortly alter his release when he was uniler te sion nfld tefior n d tuas fiot able fo 8i1)e n ProPer stote ent to lhe Potice which is qllite understandable given his tender age and the traumatic exPerience which he had just been through.- Furthermore, being onlv l0 vears old he would nor have inown how detailed his S.lbl Cr.PC 5trtcment had lo bP' Thus, based on our believint the evidence of the PW eyewitnesses I what other supportive/corroborative matedal is there against the appellants? It being noted that corroboration is only a rule of caution a.rd not a r,.rle of liw. In this resPect reliance is Placed on the case of Muhammad Waris v The State (2008 SCMR 784)'

tcl The dbduclee was rccovered on the \Pot in the (ustody of the doDellants at rhe tilne when the appellants were arrestcd when he hrd n; reason to be w,lh them especially as he was tied to a 'hair' rdr The comDlaindnt's car wh,ch hrd been sLolen lrom him and u\ed to abduct his 9on was rccovered from where ttre abductee was being hcld by the appellants and the aPpellants pointed it out in the compound to the oolice an.l the complainant 'Ihe numbcr plrtes on lhe cdr h'rd already been changcd to fake ones with lhe originals in the boot which indicaie that the car was stolen

(cl fhc police witnesscs evidence lully corroborates the evidence of th' comolainant and the abcluctee in all material resPects concerning lhe rceistration of the FlR, lhc plan to free the dbduclPe' the rdid o1 lhc hJ se wherc the abductce w.rs lound in lhe caPtivily of the aPP'llrnl' with unlicensed lire anns and even a glenade and the evidence of such Dolice witnesscs was not at rll damaged durinB their cross eramln'rlion' it is well settled bv now that the evidence of a police wiines' i' d: reliable as any other witness Provided that no enmity exists between them and the accused and in this case no enmity has been suggcsted against any oI the Police PW's and as such the Police had no reason to {aisely implicate the appellants in a false case. Thus we believe the evidence of the police officials which corroborates the Prosecution case In this respect r;liance is Placed on the case of Mustaq Ahmed v The State (2020 SCMR 474)., t

(4 The complainant and the abductee claim that thc abduction took place at gun point. On the arrest of the appellants on the spot two pistols and a grenade was recovered from them which all produced positive FSL reports/clearance certificates. The Bomb disposal expert ) also gave evidence which tied in with the police evidence.

(g)The CDR proves that calls were made from the telephones rccovered from the appcllants at the time of their ariest to the complainant du ng the pedod in question. Logic and commonsense dictate that since the complainant did not know thc appellants and thcy were illegally detaining his son the calls must only have been to demand a ransom for the release oI his son as coroborated by the complainant and the abductec whose evidence we have already believed. It is well settled by now that in kidnapping for ransom cases the offence is proved if a ransom demand is made and it is not necessaiy lor any ransom to be actually paid.

(h)It is true that there are some discrepancies/contradictions in the evidence of the PW's and abductee but we do not regard these as matedal enough to effect the prosecution case especiaily as the abductee was having to endure a very traumatic experience over a long period of time where discrepancies were bound to slip in. In this respect reliance is placed on the case of Zakfu Khan V State (1995 scMR 1793).

(i)The prosecution evidence provides an unbroken coroborated chain oI events ftom the abduction of the boy outside thc superstore on gun point whilst stealing in his father's cai to the prompt lodgingol the FIR to the mnsom demands to the pre a anged police raid to the alrest oI the appellants with the abductee in their captivity with the recovery of pistols, grenade and even car of the complainant at the time of the arrest of the appellants on the spot.

O We have also considered the defence case which is the old chest nut of being picked up by the police and lalsely implicated in a case on the Iailure to pay a b be. None of the appellants gave evidence on oath to prove this or even produced a DW relative or neighbor to show the appellants had been illegally taken away and not even a single application was made on behalf oI either of the appellants in this respect by thei Iamily or neighbour and as such we disbelieve the delence case as an after thought especially in the face of reliable, trust worthy and conJidence inspiring prosecution evidence.

(k)In cases concerning kidnap for ransom there is a need to take a dynamic approach. The Supreme Court in Noor Muhammad v. State (1999 SCMR 2722) has also adverted to this aspect of the matter and has observed as under:-

"Ho@eoer, we fidy obserue that the people are losifig faith ifl the .lispensatiott of oiminal justice by the oilinary cirrlifiol coutts fot the reaso that they eithel acqdt tlle ttccuscil pclso s ofi techfiiml glounils or take a le ient oieu itl a@arding sentefice, It is high tifire that the Conrts shoulil realize lhal lheq oue dutv to the legal heirshelations of thc

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oictims anil also to the society. Sefitefices @@alileil should be such uhich sho ld act as a detefient to the cofirfiissiofl of offences. One of 1ts (Ajnal Mian, C.1., as he then utas) has highlighted this aspect, inter alia in the case of Stnte through the i Ailoocate Generul Sifldh, Kalachi o, Eaflnfi Hussaifi afiil othe$ (PLD 1995 SC 1), rela)ant portion afiereof at page 19 reails os folLoros:-

(3)lt is o natter of public knouledge that in Si db ofi account of kiilnappirlq for raflsom, comttission of dacoities and olfur offences, the people are feeling unsecurecl. The learned triol Court has dilated upofi Lhese aspects ifi deLail. I afi inclincd to subscibe to the aieu fourul fattour uith it. The aqproach of the Court it natters like the case ht ha d sholtld be dynanic afld if thc Coutt is satisfied that the olfefice has been colfltfiitteil ifi the rfiaflfiet irt tDhich it has been alleged by the prcsecutio the techtticLlities should be ooetlookcil uithout carcilax anq ,fliscariage of iustice". (bold added),

72.We do not however Iind that this case falls within the purview oI the ATA as defined by a larger bench of the Supreme Court in the case of Ghulam Hussain v State (PLD 2020 SC 61) where in essence for there to be an act of te orism there had to be an objecL intent. Purpose and design to create teror on account of the act in question. Whether PeoPle were terrorized as a by product of the act did not convert the act into one of terrorism nor the fact that it may have been of a paticularly brutal nature. Based on the Particular facts and circumstances of this case it aPPears that there was no such design, intent or pulpose to create terror and as such all offences under the ATA are dismissed.

13.Thus, for the reasons mentioned above the convictions and sentences are maintained excePt in resPect oI any ofience under the ATA and the appeliants stand convicted and sentenced only for the offences under the PPC' Subject to this modification the aPPeals are dismissed.

Ez 'f *f ',.

JUDGE