SALAMAT ALI Versus State
MUSARRAT HILALI, J.--- Through this criminal appeal, with the leave of the Court, the appellant Salamat Ali has called in question the judgment dated 03.02.2015 passed by the Lahore High Court, Lahore, whereby his jail appeal was dismissed and his conviction under section 365-A, P.P.C. and section 7(e) of the Anti-Terrorism Act, 1997 was maintained, while the sentence of death awarded by the Trial Court was converted into that of life imprisonment.
2. Briefly stated facts are that the prosecution case originates from FIR No.248 dated 23.04.2008 registered at Police Station Defence-B, Lahore, upon the complaint of Farooq Nabi, alleging that his nephew Haris Bin Khalid was abducted on 22.04.2008 by unknown persons for ransom demand of Rs. 2 crores. It was further alleged that ransom of Rs.1 crore was paid at Darra Adam Khel and thereafter the abductee was released. The complainant has also alleged that their guards (chowkidar) Nasarullah and Raashid Mehmood had informed him of the occurrence. During investigation, the appellant was nominated, arrested and subsequently tried and convicted by the Trial Court. The High Court maintained the conviction while converting the death sentence to life imprisonment.
3. We have heard learned counsel for the parties and have gone through the record with their assistance. The entire prosecution case rests primarily upon identification evidence, alleged recoveries and the narration of ransom payment, followed by alleged release of the abductee Haris Bin Khalid. Upon careful appraisal of the record, the prosecution case requires close scrutiny to assess the reliability of evidence against the appellant.
4. The FIR was registered against unknown persons. Neither the appellant nor any other co-accused were nominated therein. Most importantly, the appellant was not nominated in the initial statements under section 161, Cr.P.C by the complainant Farooq Nabi, nor by Nasarullah and Raashid Mehmood, the two guards/chowkidar stated to be eye-witnesses, nor even by the abductee Haris Bin Khalid himself. The abductee, despite having recorded his statement under section 161, Cr.P.C. on 13.06.2008 after his release, did not nominate the appellant. Thus, at no stage in the early phase of investigation did any of the material witnesses directly nominate the appellant. According to the prosecution, his name surfaced subsequently on 18.09.2008 during interrogation of co-accused Ayesha Kanwal.
5. Subsequent to nomination of the appellant solely based upon disclosure of the co-accused during interrogation, the identification parade of the appellant constitutes the cornerstone of the prosecution case. The appellant was arrested on 12.12.2008 and his identification parade was conducted on 20.12.2008. The record is silent as to why they waited for eight days to conduct identification parade. No explanation for this delay is forthcoming. It is further evident from the record that after his arrest the appellant had been produced before the court prior to the identification parade and was seen by the complainant party. In such circumstances, the very purpose of an identification parade stands defeated, as prior exposure renders the exercise futile and incapable of any corroborative value. Moreover, the physical features, build or any distinctive description of the appellant or any other co-accused had neither been mentioned in the FIR nor in statements of the prosecution witnesses before the police, which could have further provided an independent basis for identification and corroboration. The identification parade was conducted only through Nasrullah (PW-01), a guard/chowkidar stated to be an eye-witness. Identification evidence, being merely corroborative in nature, must be conducted promptly and free from material inconsistencies; the circumstances in the present case do not inspire such confidence.
6. Furthermore, the abductee Haris Bin Khalid, who allegedly remained in captivity for a considerable period from the date of occurrence on 22.04.2008 till his alleged release on 17.05.2008, did not participate in the identification parade. Instead, the abductee (PW-10) identified the appellant for the first time before the trial court on 20.06.2009 at the time of recording his examination in chief, after the appellant had already been produced on several dates of hearing. Such identification, after prior exposure and in the absence of a valid test identification parade through the star witness, carries little evidentiary and corroborative worth. The omission to conduct identification through the abductee, coupled with the delayed and procedurally deficient parade through a single witness (Nasarullah) having prior exposure to the appellant, renders the identification evidence unreliable. At the time of the identification parade, the appellant recorded his specific objection that prior thereto he had been produced before the court and that his photograph had also been taken at a shop, thereby asserting prior exposure before the identification parade was conducted.
7. Another important aspect regarding the abductee is the delay in recording his statement under section 161, Cr.P.C. The abductee as per his own statement as PW-10, was allegedly released on 17.05.2008, yet his statement under section 161, Cr.P.C was recorded on 13.06.2008. The explanation that he was under threat is not confidence inspiring as no application was filed by the complainant party in order to seek protection and security for the abductee.
8. Now coming to the crucial aspects of this case regarding the complainant Farooq Nabi. It is to be firstly noted that in his supplementary statement, the complainant did not nominate the appellant and had referred to two unknown persons along with other co-accused. More significantly, neither in his statement under section 161 Cr.P.C. nor during trial did he disclose the source of information on the basis of which the other co-accused were nominated. During cross-examination, when specifically questioned about the source of such information, the complainant (PW-03) declined to disclose it and merely stated that he had sources of his own in this regard. The question posed to him was neither irrelevant nor directed towards injuring his character so as to attract the bar under Articles 143 and 144 of the Qanun-e-Shahadat Order, 1984 . Rather, it pertained directly to the foundation of the prosecution case as to how the accused persons came to be implicated in a case initially registered against unknown persons. In these circumstances, the refusal of the complainant to disclose the source of information holds significance. The withholding of such material information, which goes to the root of the prosecution story, creates a serious dent in its credibility and renders the subsequent implication of the accused doubtful. Such conduct on part of the complainant raises serious concerns about the reliability of the prosecution s case. It is imperative for the courts, investigation agencies, and the prosecution to be careful in relying on the testimonies of complainants who deliberately withhold crucial information and remain adamant about their refusal.
9. The narrative regarding ransom payment remains unproved. According to the complainant, ransom amount of Rs.1 crore was arranged, transferred through banking channel to Peshawar, withdrawn and thereafter paid at Darra Adam Khel. However, no documentary proof of such banking transaction was produced. No record of transfer was brought on file. Likewise, no telephonic data or call detail record was secured to prove the alleged demand of ransom. In cases of abduction for ransom, telephonic communication and proof of banking transactions ordinarily forms a vital link; their complete absence here is obvious. This omission further calls into question the overall credibility of the complainant's claims, highlighting the gaps in the evidence and the subsequent failure to provide proof of substantial elements.
10. Now coming to the evidence qua recoveries attributed to the appellant, according to Raees Ahmad Khan, Inspector, ATS Kidnapping and Ransom City Kotwali, Lahore (PW-13), Rs.20,000 on 04.01.2009 were recovered from the house of appellant upon his pointation. Thereafter, upon further physical remand of seven days, Rs.30,000 were allegedly recovered from the appellant s house on 11.01.2009. However, conducting this recovery exercise in two separate intervals raises serious concerns about the reliability and authenticity of the recoveries. The fact that the alleged amounts were recovered over different timeframes, without any clear explanation, raises the possibility of manipulation or even planting of evidence. Furthermore, the total ransom amount was allegedly Rs.1 crore. The prosecution has failed to establish any clear link between these alleged recovered amounts and the ransom payment. Moreover, no identifying marks, serial numbers, denominations, or distinguishing features of the recovered currency were disclosed by any prosecution witnesses. This absence of crucial details makes it impossible to verify whether the recovered amounts were truly part of the ransom. Additionally, the alleged main recipient of the ransom was never apprehended. In light of these inconsistencies and the failure to prove the connection between the appellant and the ransom, the recoveries cannot be considered as evidence of his involvement in the offence.
11. The record further reflects that another employee of the complainant party, namely Muhammad Zafar, was allegedly present at the time of occurrence, alongside the other two guards, Nasarullah and Raashid, as mentioned earlier. Yet, despite his crucial role as an eye-witness, the prosecution failed to produce him. Zaheer ud Din Babar, SI (PW-11), who prepared the site plan on the day of occurrence, admitted during his cross-examination that Muhammad Zafar himself claimed to be an eye-witness to the occurrence. However, the prosecution did not call him for evidence. Even more concerning, the witness PW-11 stated that there was apprehension that Muhammad Zafar might have been involved in the offence. If such suspicions existed, the failure to interrogate or further investigate his involvement raises serious questions about the prosecution s handling of the witnesses and the complainant s role of nominating the accused. If Muhammad Zafar was indeed an eye-witness to the incident, his testimony could have been vital. The prosecution s decision to forgo such an important witness, especially when his testimony could have corroborated the complainant s account, further weakens the case. The unexplained absence of Muhammad Zafar as witness attracts adverse inference under Article 129(g) of the Qanun e Shahadat Order, 1984 to the effect that had he been produced by the prosecution at the trial, he would not have supported the case of the prosecution. This omission adds another layer of doubt to the credibility of the prosecution s case.
12. Another important aspect of this case is the conviction under section 7(e) of the Anti-Terrorism Act, 1997. It is important to note that there is no evidence on record indicating that the alleged act was designed to create fear, insecurity, or terror among the general public, or that it was committed with the intent to disturb public order as defined under the Anti-Terrorism Act. Although kidnapping for ransom is included in the Third Schedule to the ATA for the purpose of expedited trials, it does not automatically qualify as terrorism. In the absence of a clear design or intent to terrorize, as required by section 6(1) of the ATA, this offense does not attract the provisions of the Anti-Terrorism Act. Therefore, the prosecution s case falls squarely within the ambit of ordinary penal law, under section 365-A of the P.P.C., rather than under the ATA.
13. We have no hesitation in saying that this is a classic case of no evidence against the appellant. The prosecution has failed to adduce any incriminating material whatsoever to connect the appellant with the alleged offence. The Trial Court s judgment convicting the appellant and sentencing him to death is perverse and based on a complete misappropriation of the facts, as there is absolutely no legal basis to support the conviction. Furthermore, the High Court acting as the highest appellate forum in the province, erred in law by failing to independently re-appreciate the evidence. By merely converting the death sentence to life imprisonment without addressing the fundamental absence of evidence, it has perpetuated a grave miscarriage of justice. Both the courts below have completely perverted the course of justice. In the present case, the cumulative effect of the nomination of the appellant solely based upon disclosure of the co-accused Ayesha Kanwal during interrogation, defective and delayed identification parade, non-association of the abductee in identification parade, delay in recording abductee s statement, absence of proof regarding banking transaction and telephonic communication, and doubtful recovery of the alleged ransom amount effected from the appellant renders the prosecution story unsafe for sustaining conviction of the appellant.
14. Considering these serious doubts from the nomination of the appellant to the doubtful recovery of the alleged ransom amount in two intervals as stated earlier, the prosecution has miserably failed to prove any case against the appellant. Therefore, as a result of these critical concerns, the amount of Rs. 50,000/- recovered from the appellant must be returned along-with bank interest by the police, as it cannot be definitively linked to the alleged ransom.
15. The High Court, while converting the sentence of death into life imprisonment, did not adequately address these material infirmities affecting the very foundation of conviction. Once the foundational evidence is absent, the question is not of sentence alone but of the sustainability of conviction. Before parting with this judgment, we cannot ignore that the appellant has suffered imprisonment and the agony of criminal proceedings for 16 years on a case which, as discussed above, was devoid of evidence against him from its very inception. Such situations reflect a serious lapse in the investigation and prosecution process, resulting in grave prejudice to individuals. While this Court has extended relief by way of acquittal, it is clarified that if so advised, the appellant shall be at liberty to seek appropriate remedy before a court of competent jurisdiction in accordance with law, if he is able to establish malicious prosecution.
16. For the foregoing reasons, we are persuaded that the prosecution has failed to prove its case against the appellant. Consequently, this appeal is allowed. The impugned judgment dated 03.02.2015 passed by the Lahore High Court, Lahore, as well as the judgment of the Trial Court, are set aside. The appellant Salamat Ali is acquitted of the charge and shall be released forthwith.
17. Above are the reasons for our short order of even date.
MH/S-18/SC Appeal allowed.