ALI DOST Versus THE STATE

1. NAZIM HUSSAIN SIDDIQUI, J. --- This appeal is directed against the judgment dated 13-7-1992 passed by learned Judge of Special Court 11 (Suppression of Terrorist Activities) Karachi, whereby he convicted the appellant under section 365-A, P.P.C., sentenced him to suffer imprisonment for life, and forfeited his entire property to the State, The facts relevant for decision of this appeal are as follows:--

2. Complainant Lai Chand on 12-6-1991 at about 9-30 p.m. lodged F.I.R. at Police Station Orangi Town, Karachi, stating therein that P.Ws. Ghulam Hassan and Haji Yar Muhammad came to his house and informed him that 3 unknown culprits, having muffled faces and duly armed with weapons, at about 8-45 p.m. abducted his son Heman Das, aged about 22 years, from his shop. He immediately came to the shop and thereafter at said police station lodged the F.I.R. saying that his son was abducted for realising ransom from him.

3. The investigation was conducted by Yousuf Ali, S.H.O., Police Station Orangi Town and Abdul Rub, S.H.O., Police Station Hub, District Lasbela. On 12th June, 1991, Yousuf Ali, S.H.O. visited the scene of offence i.e. shop of complainant, situated near Baloch Manzil, Baloch Goth, Manghopir Road, Karachi, which was shown to him by the complainant. On 15-6-1991, he learnt that accused persons of this case were in custody of Hub Police. Abductee Heman Das arrived at the police station on 16-6-1991 and his statement was recorded. On 15-6-1991, Abdul Rub, S.H.O., Hub received an information on wireless that the abductee was brought in Sakran, which is within jurisdiction of Police Station Hub. He received spy information that appellant Ali Dost and co-accused Punoo had abducted him (Heman Das) and taken him in the Jungle near Sakran. On a hint of spy, he arrested both of them in Sakran Bazar. On same day, he interrogated them. During the investigation, appellant disclosed that Shahnawaz and Zaman had abducted said Hindu boy and kept him in the Jungle. On 16-6-1991 at 6-00 and 7-00 a.m. said abductee met him in the Jungle and informed him that he was released by the dacoits. He brought him at the police station and apprised Orangi Town Police accordingly. On completion of investigation, the charge sheet was submitted against appellant Ali Dost, acquitted accused Punoo, and absconding accused Nazar Muhammad, Shahnawaz alias Shaho, Zaman, and Gul Khan.

4. Necessary charge under section 365-A, P.P.C. was framed against the appellant and Punoo. Both pleaded not guilty and claimed to be tried.

5. At the trial, the prosecution examined P.W.1 Heman Das, P.W.2 Lai Chand, P.W.3 Haji Yar Muhammad, P.W.4 Yousuf Ali, S.H.O., Orangi Town and P.W.5 Abdul Rub S.H.O. District Lasbela.

6. Appellant Ali Dost in his statement recorded under section 342, Cr.P.C., has denied the prosecution's allegations and claimed to be innocent. He examined himself on oath under section 340(2), Cr.P.C. and produced one Mooso as defence witness. Panoo in his statement recorded under section 342, Cr.P.C., denied the prosecution allegations and claimed to be innocent. He neither examined himself on oath and nor p6rpduced any witness in defence.

7. On assessment of the evidence learned trial Judge observed that there was nothing on record to suggest that Punoo was in any way involved in this crime. He, therefore, acquitted him.

8. It is contended on behalf of the appellant that learned trial Judge has failed to appreciate the evidence, and as such reached wrong conclusion. Learned counsel argued that charge of abduction was not proved yet, on the basis of inadmissible evidence, the appellant was convicted. From the evidence of complainant Lai Chand, Haji Yar Muhammad and abductee Heman Das it stands proved without any shadow of doubt that the incident took place as is alleged by the prosecution. Complainant Lai Chand on this point reiterated the facts which he mentioned in the F.I.R. No suggestion was given to him in cross?examination that the incident, as slated by him, did not occur. P.W. Haji Yar Muhammad is the eye-witness and was at the shop, when Heman Das was abducted. He stated that some persons entered into the shop, but he could not give their exact number as he was short sighted. In cross, he deposed that he was near the door of the shop at the time of occurrence. In cross-examination, no suggestion was given to him that the incident as alleged by him did not occur. Besides the evidence as above, the abductee has also provided necessary details about his abduction. In fact, the factum of abduction is not seriously challenged and the main point for consideration is if the appellant was amongst those abductors or not.

9. The abductee in his evidence deposed that he was abducted by 4 dacoits on the point of deadly weapons. He stated that all the 4 dacoits made him walk on foot up to Sakran, and reached there at 5-00 a.m. He specifically mentioned that the appellant was one of those dacoits. He mentioned that Punoo was not among them. He stated that at Sakran the Dacoits had demanded ransom and told him that he was abducted for said purpose. On the next day, he was taken to another place by the dacoits. Two nights he was kept by the dacoits under their guard. He also stated that on 3rd night the dacoits set him free, saying that they were apprehending raid by the police. Mr. Aleem Akber M. Sheikh learned counsel for the appellant strenuously argued that the abductee had no chance to identify the culprits, as he himself in the earlier part of examination-in-chief stated that dacoits had muffled faces. The abductee has also very clearly stated that he had identified them when they had removed the muffles. He remained with them in their custody for 3 days and had ample opportunity to see them clearly. It is not the case that he had remained with them for a short time as such could not identify them. On the contrary, the evidence shows that he was with them for 3 days. There is no chance of mistaken identity. We believe the testimony of the abductee and hold that he had identified the appellant as one of the culprits of this case.

10. Learned counsel for the appellant argued that identification parade of appellant was not held and the benefit of this lapse on the part of prosecution must go to the appellant. The identification test as held in the case of Muhammad Yousuf Zai v. The State reported in P L D 1988 Kar. 539 is not a legal requirement. If the eye-witnesses can identify the accused before the trial Court that is enough. We also refer on this point the case of Mumtaz Ahmed and another v. The State reported in P L D 1990 FSC 38, wherein the following was observed:--

11. ?As will be seen from the evidence, the case of the prosecution rested on the identification and recovery. It was a day time robbery. Undoubtedly, the four prosecution witness namely, Sultan Mahmood, Manager P.W.3, Inayatullah, Cashier, P.W.4, Azharul Haq, Second Officer, P.W.5 and Zafar Hayat, Peon, P.W.6 had faced the ordeal. There is also nothing on the record to show that the accused had muffled their faces. This is also clear from the statement of Qadir Bakhsh P.W.7. The P.Ws. had also given their physical description in the F.I.R. The accused remained a few minutes before the witnesses and normally they may not forget, for times to come, the faces of such persons. In fact incidents of the nature carve on the mind of the witnesses such indelible impression which may live with them for the rest of their life. There is also stated no reason why should the witnesses involve the appellants falsely. Had they been so disposed they could have said so in respect of any of the so many others who according to the defence were suspected and shown to them.?

12. Following the rule laid down in the above cases, we hold that the evidence of the abductee recorded in Court is enough on the point of abduction. No enmity is alleged against the abductee and nor he had any motive to falsely implicate the appellant. In fact, his testimony is free from all doubts. ???????????????????????

13. D.W. Mooso deposed that appellant was arrested from a Hotel on first or second June of 1991. According to him, the appellant is a man of good character. The testimony of this witness is of general nature and on this score the veracity of P.Ws. cannot be challenged.

14. Learned counsel for the appellant in the last contended that the sentence awarded to the appellant is excessive. According to him, at the most the imprisonment for 10 years could be awarded to him. By the Criminal Law (Amendment) Ordinance, IX of 1989, the section 365-A was inserted in P.P.C. It provided imprisonment for life and also forfeiture of property. Thereafter, by Criminal Law (Amendment) Act, 1989, section 365-A was inserted in the P.P.C., providing the punishment mentioned just earlier. Thereafter, by Criminal Law (Amendment) Act, 1991 section 365-A was amended and after the words "Punished with" the word "Death or" were inserted. This Act was published in Gazette of Pakistan, Extraordinary, Part I, 28th March, 1991 and came into force at once. So at the time when the offence was committed it was punishable with death or imprisonment for life, and forfeiture of property. Trial Court has already taken a lenient view and has awarded him imprisonment for life. It being so, the question of awarded 10 years' imprisonment does not arise.

15. On 26-10-1993, after hearing the arguments we had dismissed the appeal and these are the reasons for the same.

16. N.H.Q./A-1435/K ?????????????????????????????????????????????????????????????????????????????? Appeal dismissed.