MUHAMMAD TOOR KHAN @ ABDUL REHMAN (Appellant) VS THE STATE (Respondent)

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(a)Judgment apProvcd for reporting.

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CEIf{TIFICATI]

Cerlilictl thal thc jrrdgnrent ti Orrler is bascd upon or cttuuciatc-s a.princip{e nL rni-;ia".i,]"i'" qrliil8,i rr r^,r-oiti.rl'ii of fiist inrprcssion / distiugttishcs /' ovci*ulcsi rirverses/;xplains a prr:vicus decision' *Slrikc out whichcvct is not applicable

NO'I'II:-(i) This slip is only to he t,sed when some actjon is to be takeu' (ii) It tltc slip is usecl, ttre l{carlcr mus( Itttacll it to thc top of the first paSc of the judgment.

(iiil Rerdcr tnust ask the Judie writing lhc Juclgrncnt whctber tbo Judgnreot is approv,:d :ior reporting' (ivi ]'hosc clircclions wlrich arc not to be used should bc delctcd' SGP., I(ar -*L (iii) 1459*5,000'- 6'93--T S'S'

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IN THE HIGH COURT OF SINDH AT KARACHI

I,tT )2- Cr/ Ap'peal No.' ,,' / 2ors lr')-"'ii '"'' ? 5- C?_ ?o \r.> I.IUHAMMAD TOOR KHAN @ ABDUL REI]MAN r-\ S/o. Abdul Ghaffar, t- n ,, l.luslim, Adult, Presently I \ lz'l t t Conflned in ludicial Custody, I c-.,-$r'd 9-"v" I I li:--rl KaTachi .-- APPELLANT / ACCUSED \ \

VERSUS

ThE State RESPONDENT

FIR No. 4t / 2OOg U/s. 364/365-Ai34 PPC Y R/w. 7(e) ATA 1997 P,S, Bahdurabad,

APPEAL AGAINST (-ONVI CTION U/S. 410 CR.P.C.

R/W. ;,5(I) OF ATA 1997

Being aggrieved and dissatisfied with the impugned joint ludciment of above crimes passed by the learned Anti 'lerrorism Court No. III Karachi dated L9-02-2015, whereby the Learned judge convicted the accused above named and convicted him in Crime N0. 4t/2009 for an offence punishable U/s.364/365-A134 PPC R/w.7(e) ArA 1997 and sentencr,lcj him for life imprisonment, therefore the appeilant / accused abovenamed i

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prefers this appeal with the prayer that this i l Hon'ble Court may re pleased to setaside the order il t

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IN THE HIGH COURT oF SINDH AT KARACHI

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/(r Cl. Appeal NO 2015 t1- I r--

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1.Aamir Farooque S/O Muhammad Farooq Muslim Adult i \ Resident of C.P Barear Society p lot No-150 bloc l nl 2:1k P> (ch

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Dhorajee colony Karactri Easlt htt ^uT 1,Nt

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I Appellant / Convicted

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VERSUS

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l The State Respondent

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F.l. R No, 4L/2009 u/s 364 / 36s-A/34 PPC R/w Section 7 (e) of ATA 1997 P.S. Bahadura bad

cRTMTNAL APEE/\|-UNpER SECTTON 41o C R/W SECTTON 2s (1) !F ANTI TERRORTSM AC

Eldng aggrieved & dissatisfied with the judgment dated 19.02.2015 I pa.sed by Anti Terrorism Court NO. lll; at Karachi in Special Case No $ 25 af 2009 where by the appellant above named has been convicted ..r.i! :entence under section 7 (E) of ATA 1997 senteirced thern for I ;,r'rpnSoorn€nt for life, with benefit of 382-B Cr,P.C so the appellarrts

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I riwo.rgh prefer the crinrinal appeal upon annexing the true certified

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IN THTI HIGH COURT OF SINDH AT KARACHI

Present:

Mr. Iustice Mohammad Karim Khtn Aghs Mt-.J-vpliesZ4fis,tlAJiS,t!ry].

SPL. CRL. ANTI-TERI{ORISM APPEAL NO,23 OF 2015

Appellant Muhammarl Toor Khan @ Abtlul llehman son of Abdul Ghaffar through Abelul Rashcetl Nizamani, Aclvocate.

Respondent: The State through Mr. Saleem Akhtar Buriro, Atlditional Prosccutor General

SPL. CRL. ANTI-TERRORISM APPEAL NO.3O OF 2015.

Appellant: Aamir Farooque srrn of lvluhammacl Ir.rroorl, through Chauclhrv Faisal Ic1bal, Arlvocale Respondent The State through Mr. Salec.m Akhtrrr Buliro, Additional Prosecutor General.

Date of hearing: 07.04.2020

Date of Juclgment: "t6.04.2020.

IUDCMENT

MOHAMMAD KARIM KHAN AGHA, |:- Accust'ci N4 tth.r nr trt.r,.l Toor Khan @ Abdul Rehman son of Abtiul Ghaffar ancl Aamir Faroorlu,-' son of Muhammad Farooq n'ere tried bv learned Judge, Ar.tti. l-erlolisrrr Court No.lII, Karachi in Special Case No.25 of 2009 arising out of Crimc No.41l2009 tt/ s. 364/365-A/34 PPC read with Section 7 (e) of Anti- Terrorism Act,7997 registered at P.S. Bahadurabad, Karachi. After lrial vide judgment dated 19.02.2015 the appellants/ accuserl Muhammarl I txrr Khan @ Abdul Rehman and Aamir Farooque were convictetl atrel sentenced for life imprisonment for the oflence punishable uncler Sectiotr 365-4 PPC read with Section 7(e) of Anti-Terrorism Act,1997 n'ith lx'nefit of Section 382-8 Cr.P.C. The moveable and immovable proPert) ot [x)th the accused persons was forfeited to the C()\,ernment.

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2.Being aggrieved ancl dissatisfiecl by the iuclgment passer'l bl Iearned Judge, Anti-Terrorism Court No.lll Karachi, these appeals havt' been preferred by the appellants against their convictions.

3.The brief facts of the prosecution case are that complainatlt Mohammad Sohail registered FIR on 07.03.2009, at about 1110 hours stating therein that on 06.03.2009, at about 8:10 pm he receivetl tt telephone call from his residence that his son Osama agecl about ti vt'ars, who was playing outside the house had been forcibly taken an'at'. Ou receipt of such information he reacherl his house where he came to knou' that one white colour CULTUS car appearetl in which 4/5 persons n'crt' sitting out of which one Person wearing jeans ancl shirt u'ith cagr alighteti from the said car and forcibly put his son in the said car ancl kiclnappcd him. He further contended in his FIR that such facts were infortnecl to tl.te police on ""15" and one of his neighbours had witnessecl the incieie'nt. I It' searched for his son but could not be fincl him ancl on 07.03.2009, ire registered FIR against 4/5 unknown persons who had kiclnapped his sorr.

4.AIter registration of the FIR, usual investigations were carried ()ut which lead to the submission of the challan before the comPetent court of law. The charge was also framed against the accused perst,rrs to which they both pleaded not guilty and claimer-l to be tried.

5.To prove its case the prosecution examinecl 15 prosecutitrtr witnesses and exhibited numerous documents antl other itenrs antl thereafter the side of the prosecution was closed, The statements of the accused were recordetl u/s 342 Cr.P.C wherein they clenied all the allegations and claimed their false implicatiorr. They ciicl ntrt exarnitre themselves on oath or call any witnesses in suPPort of their defense case.

6.Learned Judge, AntiTerrorism Court No.lll, Karachi, after hearing the learned counsel for the parties and assessment of er"iclence availablt' on record, vide the impugned judgment dateci 19.02 2015, convicte(l and sentenced the appellants as stated above, hence these appeals havc beetr filed by the appellants against their convictions.

7.The facts of the case as well as evidence produced before tht' trial court find an elaborate mention in the judgment dated 19.02.2015 nassctl

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by the trial court and, therefore, the same may not be reproducecl here srr as to avoid duplication anel unnccessary repetition

8.Learned counsel for the appellant Muhammad foor Khar.t r contended that he has been falsely implicated in this case, that he macle ntr judicial confession which in any event was retracted ancl maclc ut.ttict' coercion, that the identification parade was not carrietl out irr accorclatrct' with the law, that his case was on the same looting as co-accusctl Utllair' Sami who was acquitted on the same el'idence bv the trial court a tlr.l as such he should be treated equally and should also be acquitted antl ior any of the above reasons by extencling him the benefit of the tloubt he should be acquitted of the charge.

9.Learned counsel for the aPPellant Aamir Farooque has cotrtenclt'rl that he has been falsely implicatecl in this case, that he made no iudicial conlession which in any event was retracted and macle under coerciott and that there was no other eviclence to connect him to the kitlnapping for ransom and as such for any of the above reasons by extent{ing him tlrt: benefit of the doubt he should be acquitted of the charge.

10.On the other hand learned Additional Prosecutor Cencral has fullv supported the impugned judgment and has contended that basecl on the judicial con{essions of the accused, the identification paratlc rvhcre appellant Muhammad Toor was picked out by his abductee, the el'iclenct' of the tracking device which corroboratecl the complainant and tl.ttr recovery of some of the ransom demand at the time tlf the arrest of tlrt' accused the prosecution hacl proved its case against the appellants be'r'onci a reasonable doubt and that the appeals should be clismissecl, [n suPPOrt of his contentions he placecl reliance on Sikandar Ali v. The State (19c)9 MLD 1513), Joygun Bibi v. The State (PLD 1960 Supreme Court (l'ak.)

313)and Raz Muhammad v. The State (PLD 2002 Supremc'Court 56).

11,. We have heard the arguments of the learnecl counsel fot'tlre partits, gone through the entire evidence which has been reacl out Lrv th(' appellants, the impugned judgment with their able assistance atltl have considered the relevant Iaw.,

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1,2. After our reassessment of the evidence we fincl tlrat thc'prosecutiotr has proved its case beyonci a reasonable doubt against the appellants for v- the following reasons:-

(a)Despite this being a kidnapping for ransotl casL' tho FIR was lodged with promptitude being within ont: day of the inciclent which gave no time for thc complainant to cook up a lalse case' against tlrt' appellants. The FIR h,as against unnamecl l.rersons and as such there was no attempt to falself inrpli6.11., auyone and even otherwise there was n() r'nr.nit\ between the complainant ancl tl.re appellants so thr.r(' was no reason for him to false implicate tlrenr.

(b)ln our view the foundation of the prosc.cu tion r.:ast' against the appellants rests on two key pit:ces ot evidence (i) Whether we can safely rely on the retracted judicial confessions of both the appellants and (ii) the eye witness er.itlence in terms o[ whether the eye witness has been able to correctly iclerrtift' the appellant Toor Khan as one of tlrt' kidnal.rpers. We will deal with each aspect inclivielually ir.r turrr.

(c)Turning firstly to the retracted iudicial confessions:

(i)the two Iater r!'tracted jur.licial conlcssions tttarlc l,r appellants (Amir and Toor Kl.ran) for ease oi rt'f('rt'nt c are set out below:

S.164 Statement of Amir.

" I reside tt C.P. Bnrnr Society ond I do cnhlL'tpork. I tt'as required money as to rcturn tl* loan amowrt. I said to my friends namelq Abubaksr €t Umair that zoe dtt such zuork to kidnap the chikl of sorue rich nun.fronr area and after getting moneq uill release ltitrr. Abubaknr becnme nfraid tnd re.fused tlrc sttnrc but I snd Umair made a plan to kidnap Osama, u,ho is residitt,t h the back lane and son of a rich man. As Osantt knou'r to us, therefore I snid to rnq frirntl lslrrttr. rclto resides nt Prtcl-Pnrn. I nsked lslnnt, ,itlto b& ltttt' rtgtt't lrtr { this u,ork. He sad tlmt this rs rnt t uork o.f-ttlo ptrsotts, ,o I u,tll hring 3"t person. I asked mq /riend Farhtn to arrange a white Cultus Car for picnic, utho did tlrr same. I rcked nty friend Unnir ns soon ns yott ser'()srtltrt in tlrc lane, inJorn me tltrouglt plnne, I tlongtillt tltt ltoys present in tlrc nr in otlrcr lrttrt', I utas dritting tlrc csr and mr1 face was muffled, Unutir rnng trc llnl llr LhiLl is stnnding out stde tlrc houst. I inmrctlintely rlrou' lltt uehicle nenr the clikl, lslam arul his other utrktrott,tt friends immediatelv picked up the chikl, pul into,

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uehicle afid coaeled hittt u)ith cloth slrcet' Then took a?oay the chiltt Osana at Sur.iani Torun and honded oaei to Toor Khan. Tlrcn ue cntne bnck to ftn'torv. A.flcr passing ttro days, I uent to Toot Khan, phont'd to tln father of child Osama and demanded Ttt'o Crott Rupees. Tlrc sante tulks rennined cotrtitrue u1t ttt six dtrls and etvntunllv dow Rs.'15 \ru.'s 1lrrm.fler, llrty sittrl llttl Rs.7l-lacs is aaailable in cash and besides sonrc orfiarnertts, We said OK, vott r(rt e to Strriaui f otttt near the factory, He came nedr tlrc factorV bU lo)i' We saii! to hin through phone to lesua thc tttotrcry and go auay. I by taking fionev u)e t totoards Toor Khan. On the next day monring, Toot Khan nnde sit child in a Taxi an.l dropped him at home. I handed oaer the amount of Rs'250,000/- alongu'ith ttoo Sohl bangles and //3 earuings as share to Toor Klwn, Rupees One loc to Llttt r, Rs.250,000/- nlougtillt tlI tltt renmining ornnnlents to lslnnr, u'hik' I k?Pt llk' rrtttttitttttQ noney. I gaue Rs,3 lacs in loan and Rs.50000/- rcas spent by nte zuhile Rs.50000/- retoztered bq the police ! lurrl gircn Rs.2 Incs r ongu'itlt ornruttt'ttts lo Islrrttt ittslutl oJ Rs.250,000y'. The police hacl arrested nre, Unnir t"r Toor Khan at near the factorlt. 'flris tttrrclt ts tttv stltemenl. (bolel acldecl)

S.164 Statement of Toor Khan.

" I knout Aamir through tnq friend Shahid. Aamir said to ne "uould vou do Labour utork fot uhole life, zohrl ilo not work of good eaning", Ort nv etu1uiry, he said to me, zue will get good money by kidnapping some child, Firstly, I re.fitsed but ltler on berng irr gractlv o.f good ntoney I ngreed witlt tlrcl . A-rttlir luul c<ttttr lL' tttt on 4ttt tl e. On 06.0i.2009 at about 9 or "10 p.rtr. Aunrir ancl ttuo other urknorun bogs e ame to me along u'ith a chilil in o uthite Car and said nre to keep hittt tts they haue kidnapped this child. 'Iheq said that tlt(v toill conre back after tu,o days. I asketl tlu' n rttrr' /ron child, utho tiisclosed mt' as Osarnrt. I ktPt tlt( child Osama at mq lrcme for about 5/6 daqs. I ln lnuse mntes nsked rc nbout him, I reltlted tlu rtt lltttl lp ts child of nry.friend, u,tn hns left n aV ltttll tlith nu'. After passirlg t'tlo daqs Aanir came to me, giuen me phote by saying to make phone call to the fatlrcr of child Osama and dennnd ransom amount of lls.2 Crorc From the mobile phone of Aamir, I plroned to thr father of child Osama and demanded tlte ransonr annunL I renain dealing uith Bhai Sohail tlp father of Osama till tttto days ott llltone afid tlk'n lt( agreed on Rs.l-lacs but Attmir utss not ogreeing. At last receitted tlrc ransom anrount of lls.10 /rrc.- alofigrl',ith some ornafients i,e. l bracelet, l eurrings, a .1 orl 72ttt date I took the chiltl at Nipu Chou'rot'ti by bus. Frortt u,hert I senl ltint ttt ltis ltotttt rtl l)lnantrt Colony througlr Tni. I receiued tltt slnrc o.[ ransLtttr amount of Rs.250,000/- Subsequentlrl ott

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the police apprehended me, Tltis tttttlt is ttry sl!1lt'ttlt'ttl (bold added)

(ii)lt is settled law that a rekactecl juclicial confessit,rr can be legally admissible and used against its make'r in certain circumstances. In the case of Muhammad Amin v. The State (PLD 2006 Suprenre Court 219), it was helel atP.224 Para 9 as under;

"9. There is no caoil to the proposition that corruictiotl could lruae been atuarded on tlrc basis ,f retracted con/ession u,hiclt proposition tuas etamined in case o.f Nlst. loygun Bibi t. The State PLD 1960 6C (Pak) i73 as under:-

"lNe ue urufule to support the proposiliott ol' lnu lnid doun hy the lennud ludgcs itt lltis regnrd. The retractiol of r confessiort is rr circunrctnnce rulich lns no benring u,lurtsoct'tr upon tlrc questiorr rolrtlwr in the.first instanrc it rcas tolunlaily ntnde, nnd on llu' fttrllu'r question rlhether it is true. Tlv fnct tlnt tlte mnker of the confession hter does not dlpre to it cnnnot by itsel.f hne nnv effert ttyon thc findings reaclud ns to rL'hether tlte conJessittrt u'ns uohtntnry, and if so, trlrclher it u,ns frtk', for to Toithdratu lront n self-ncctrsitg stntfltvnl in direct fnce of the conserytencts of llu' ncrrtsntiort, is explicnhlc .lrrlhl hy llta proritttily of tlnse consequettces nnd nt'ed lnt,c rto connection wlmtsort'er ruith eitlvr its 1\1lufilnrv 'l'ltt noture, or llrc lrutlt of tlrc ficts sltled. learned Judges u,ere perfectly right in frsl deciding these two quesliorts, tnd tlrc nnstlers being in the affinnatiue, tn declaring tlnt tlu' confession by itself ruas suffcient, tnken tltllt tlrc other frcts and circltmstnnces to sttpporl Abdul Majid's contiction. Tlrc retraction of the confession uas wholly itnmaterial once it was founil that it was aoluntary as u,ell as true."

10.Siruilnrly in tle cnse of tlrc Slnlt't,. Minlurtt sliss Cul Hrcsnn PLD 1964 SC 813 tltis Court lns obsen'ed as under:

"As t'or the cont'essiorts tlw tltglr Court, tl nppears, tuns duhl conscious of llrc fnct thnt retracted con.fession 7 Etlrcr judictnl or ettrn jttdicial, could legally be tnketr t to considerntion ngninst tfu nnker of those confessiotts limself, nnd if tlte confessiotts tere .found to be true nnd poluntnry, then tltere u,ns no need at tll to look .for .fir rther cotohorrtlion. It is u;ell-settled that as against the maker himself his con/ession, judicial or extra

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jnrlicial, uhether retracted or ot retracte.l, can in latt, aalidhl fonn the sole basis of his conaiction, if the Court is satisfied and belieoes that it uas true afld uoluntarq and u'as not obtaincd by torture or cocrciotr ttr intlucement." (bold adtled)

(iii)Thus, the court laicl tlown a two prorrg!'d tL'st.s under (a) whether the retractecl juclicial confossiorr appears to have been made voluntarily, lvitltout irrv inducement, duress or coercion and (b) n,as rnatlt with the object to state the truth.

(iv)Notably it was also heltl that if both (a) anei (b) were satisfied that even if there were s()rlro irregularities in recording o[ a conlession it woulc] not warrant disregarding of the same.

(v)In our view therefore we are not in anv doubt that a retracted confession before a maBistrate carr be tht: basis of convicting in a capital case how!.\.1'r it rltust be;

(a)Volur-rtary i.e. without threat or inducerncnt and

(b)Its object must be to state the truth; assistance for which can be ascertainocl from (i) 'n,hether the confession ap.rpears truth,ful within the context of the prosecution case and (ii) whether there is any other evicience on record which tencls to corroborate the truthfulness of the confession and

(c)Onlv minor irregularities regartling tl.rt: rules concerning the recording of juclicial confessions can be permitted as dc'terminccl on a case to case basis the main criteria being that such irregularities have ncrt adverselv effected the voluntariness or truthfulness of the confession.

(vi)In our view based on the eviclenco of PW 2 Shabbir Ahmed who was the judicial magisrra rr rr,lr() recorded the confessions of the appellants the jurlicial confessions have been made voluntarill' withoul threat or inducement and the confessions arc h'uthful when based in the contert of the prosecution casc'.rnrl other corroborative material w,hich r,vc rvill tlistuss later. The voluntariness of the confessions in ou r v it,u is given more weight by the fact that when co-accuserl Umair Sami (who was later acquitted) rvas broughl before the magistrate after reflection time he refusetl

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to confess and was sent to juclicial custotlr". ll tht' other appellants had refusc'd to give a conldssiorl it is only logical that the) lvould have been lrc.rtccl lht sarne wav. If the confessions were coerced or made up then confessions of all the three accused worrlcl have been forced out of them rather than iust two of the accused.

(vii)When confronted b),the court to point out .u.rl illegalities in recordir.rg the judicial confessiorrs learnecl counsel for the appc.llants ',r,t ru ur.rahlr trr r.lo so. Even otherwise, in our view if there" art anv irregularities in recorr.ling the conlessit,ns tlrcsr.' art' only minor in nature anc.l cJo not (,ff(,ct lh(, voluntariness and truthfulness of the confessiorrs arrtl carr be ignored and thus we rely on both of thc retracted judicial confessions in respect of the appellants kidnapping the abductee (PW 4 Usma Suhail) for ransom. In the case of Raz Muhammad v. The State (PLD 2002 Supreme Court 56) it was helti that a clelay in recorcling a juciicial confession n,oulcl not be fatal. In tlris case the jur.licial confessit:rrs ,,r,crc made within 5 to 6 days of the arrest of the apprllants which was a relatively short period.

(d)Turning to the identification of the appellants.

(i)Eye witness PW 4 Usma Suhail (the abductee) is the star prosecution witness. Accortling to his evidence he was abcluctecl on 06.03.2009 outsir-lt' his l.rouse when tlvo persons in a n.hite cultus c.u grabbecl him and abducted him. Initially he was taken to an abandoned place which was like a big hall wltere another person took him to a houst, rvhere ht' remained for 6 c{ays where he was tolcl thaf he woultl not be released unless his father paid monev t() th€'m. After this tirne he was taken t() Nippa Chowrarrgi Lrrrs stop and then put in a taxi which took him lronrc. IIis evidence corroborates the judicial confessions o[ the appellants.

(ii)At an identification parade he picked out appellant Toor Khan as one of his abductees. ln iact the magistrate ciue to the young agc of thc alrcluctct' took him two times before the iderrtification paracle to ensure tl.re reliabilitl, and correctness oi his identification of Toor Khan rvhom he pickecl out orr both occasions. Amir Khan n'as not plact'rl belore hinr for identiiication. It was logical tl.rat he n,oulcl Lt able to pick out appellant 'foor Khan at the identiticatiorr parade as he was the person \^,ho had kept hinr at his house Ior 6 days and then taken him to Nippa Chowrangi and put hirn in a taxi for lrorrt,. T Irus. h,., would have got a good look at appellarrt Irx)r Klr.rl

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over this 6 day period which would not evctt h.rvt' made the identilication parade necessar)'. ln this respect reliance is placed on Ghazanfar Ali v' State (2012 SCMR 2015).Even otherwise when confrontetl by the court to Point out any illegalitres in the I identification parade learnetl r-ounsel [or appt'llant Toor Khan was unable to do so. Er,'on if thcrt' vvt'rt' some slight irregularities in tl.re' iclentification paratlt' in our view these will not affect the correcttress of tlrt' identification. In this resPect reliance is placetl otr Muhammed Siddique V State (2020 SCMIT 342).'fhe case which we are currently deciding attracts thc above case as it is a case of abcluctior.r.

(iii)There was a slight delay in holcling the identification parade holvel'er even a delav iu hol,.lirrg an identification parade of over a year was ttot fatal ttr the iclentifier correctly iclentifying the accuseti. ln this respect reliance is placed on the case of Solat Ali Khan v. The State (2002 SCMR 820) and in atrl' o'ttrt evidence tlowing fronr an idetr ti fica tiorl p.llil(1e is only a corroborative piece of evidence.lnrl c.tlrtr()t supersetle reliable, trustworthy, corrfirlcnce inspirirrli clirect evidence. ln this resPect reliance is prlacc'ci otl Muhammad Ehsan v. The State (2006 SCNIR 1857).lt is correct that at trial eye witness PW 4 Usma Suhail (thc abductee) coulci not pick out eithe.r of tlrc.rpptllants but in our view this is u nclersta ucla ble as he gavt' evidence at trial 3 years after his kidnapping so it \^'.rs quite natural being a yourrg man of onlr' 12 r't'als ol age that he may not remember the appellants after such a long time and hence the benefit o[ the identification parade which was held shortly after the release of the abductee and arrest of appellant Toor Khan.Although he did in his €vidence state that he had identified appellant Toor Khan at tlre identification parade. He also pointed out the factory and house where he was kept for 6 days to the police which house belonged to the father of appellant Toor Khan

(") We also find that the following pieces ol corroborative/ supportive evidence link the appellants to the offense;

(i)The white cultus car used in the abduction was { rented by PW 5 Farhan Ghaffar frtlrn I'W 6 Muhammed lshaque and was hant]ed over t() appellant Amir on 06.03 2009 which was the r'lar" oI the kidnapping and returned b), Artrir th(' tl('\t "r,as day. PW 5 Farhan Ghaffar was an olcl frietlel of r\ntir' and hacl no reason to falsely implicate hirn in this case. This car ties in with Amir's confession and tlle evidence oI abductee PW4 Usama who was abrluctt'tl by persons from that car which was recoveretl bv tlrt' police. u

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(ii)The complainant PW 1 Muhammed Sohail's roult' and dropping off of the ransom money bv tht' factorv is corroboratecl by the trircker in the car of ['W li Muhammecl Haneef Tabani whosc' car the complainant borrowetl be'cause it hati a trackcr in order to drop off the ransom amount at the lactory which tracker was recovereti bv the police arrtl corroboratecl the loute which ht' saiel he look irr evidence whilst making the rzrnsont drop accor,.litrg ttr PW 12 Akhtar Abbass rvho worked for tht' tr.rckt't' compan)'and providecl the tnovenlcnt trf the lrackt'r on the night that the con.rplainant p;ritl the ransot't't.

(iii)That appellant Toor Muhammed is linkecl to tlrc factory where the abductee was clropped off ancl taken to his house and where the ransom molle\.' ,v\/tls delivered as he used to work as Cholvkielar to that factory and his house was opposite tire (.tctorl' according to PW 14 Hamitl Nawaz n'ho was the owner of the factorv and this was the house whert'the abductee was taken and held captive as poit.ttcel out by the abductee. It was also the factory rvhere tht' appellants were arrested. PW 14 Hamicl Nawaz rvas an indepenclent witness who had no enmitv l,iltr tlrt' appellants and hacl no reason to givc false evirit'rtce itr this case. Like wise the police witllesses (PW 1 I Adt'cl Ahmecl ancl PW l5 IO Moinucltlin) wl.rtr arrt'stetl tlte appellants at the factory witl.r the rans<;ttt ttttrttc'!'antl in respect of PW 15 lO Moinuddin who brought thc appellants before the magistrate for re'cotcling thtit' confessions ancl the iclentilication paraL{e of apl,ellant 'foor Khan.

(iv)That the ransom demancl is corroborarted Lrv the complainant PW 1 Muhammecl SLrhail who tlrol.rl.:t'rl off the ransom amount and the release of the abductee who was told that he woulcl be releasecl if hrs father paicl the ransom ancl was in fact releasc'tl when his father paid tlte ransom. On their arrL'st tht' appellants rvere also found ir.r possessiotr oI larlit' sums o{ rnoney lvhich they coulci n()t .lcc()ullI l()r' whicli basetl on the particular iacts ancl circutnstatrccs of the case where both tlre appellants were .rccL)rd ing to their judicial confessions not well olf antl looking to make fast monev a Part of the ransom amoullt <1tr(l wl.rich ties in u'ith their jutlicial confcssiorrs. ltt adclition a CD *'as recovered where the ransot.lr demand is cliscusseel with the complairlant which has not been denied by learned counsel for tht'appellants.

(f)Atl PW's corroborate themselves in all rnaterial respccts. Even if there are any contraclictions in thcir evitletrct' atrtj that of any otlrer prosecution witness rvc cousitlcr thcst'

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Srz I 11 l W contradictions as minor in nature ancl not matcrial arlrl certainly not of such materiality so as to cffcct thc prosecution case and the convictiotl of the appcll;rnts. lrr this respect reliance is placed on Zakir Khan V State (1995 scMR 1793).

(g)None of the private tt,itnesses hatl alrv errmity or ill rvill or any reason to falsely implicate the aPpellatrts aucl thus u't' have no reason to ciisbelieve their evidence.

(h)It is well settled by now that police witnesses arc as gootl as any other witness provicled that no ill will, errmitr', malafide or personal interest is provcn against him vis a vis the appellant. In this respect reliance is placetl orr Riaz Ahmad V State (2004 SCMR 988), Zaf ar Y State (2008 SCMI< 1254) and Abbas V State (2008 SCMR 10tl).ln this carse thett' was none and the police h'itnesses hacl no reason kr ialselt' implicate the appellants.

(i)In kiclnapping for ransom cases courts neecl to take .r dynamic approach in assessing the evidenco. In the c.rst'rrt Advocate General Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1), in a kiclnapping for ransuttr case it was observed as under:-

f "ll is t nnlter of public k'rottlcdge llurl itt Sitttllr, ,,tt nccouttt oJ kidnapping for rrtnsom, cotttrrtisstott ttf rltrLotltts nnd other offences, tlr pcoyle ure .fi'eling rrttsatttrar{. Tltt learned trial court luts dilatt'd ttpott tlrcse lsplt ls ttt rltltil. I nn inclineLl to srtbscribe to tltt pieu'fourtd lhr,olr it,tllt tl The approach of the Court in matters like the cast iu lnnd shoulil be dytamic and if the Court is sr'rtislied that the offeflce has been cornmitted irt the marmer in tohich it lns been alleged by tlrc prosecution tha technicalities should be ooerlooked tpithout .'ausitts any miscarriage of justiee". (bold aclcle'd).

O Although it is for the prosecution to prove its case beyoncl a reasonable doubt we have also consic{erecl the l1efc'nse cast' which in effect is false implication. We disbelit've this defense case as the appellants have not been ablt' t() put n single dent in the prosecution case ancl have not giv('rr evidence on oath or called any witness in thr.ir clefcnse atttl even been able to produce any evidence to suggest their lack of guilt.

I (k) It is also noteti by us that co-accuseei Umair S.tt.tti was acquitted of the charge because his case for acquittal was ott a much stronger footing than that of the appellants as he,.litl not give a judicial confession, was not iderrtifieti bv anv otrt' and there was little, if any, other evidence connectin!{ to hinr to the offense and as such he was acquitted baserl on being extended the benefit of the doubt which is not applicablc tcr the appellants as there is far more compelling evirlencc against them. ,

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13, Thus, for the reasons mentionetl and tliscussecl abovo ancl irr particular the confessions of the appellants, and correct identification of appellant Toor Khan by the abductee and the other corrobttrative supportive evidence we find that the Prosecution has provetl its case beyond a reasonable doubt against both appellants for the offense chargeel and as such both appeals are dismissecl.

74.The appeals are disposed of in the above terms

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