2/20/25, 10:06 PM 2021 Y L R 1641

2021 Y L R 1641
[Islamabad]
Before Mohsin Akhtar Kayani and Lubna Saleem Pervez, JJ
Ch. AAMIR SHAHZAD---Appellant
Versus
MUHAMMAD MAKKI and 5 others---Respondents
Criminal Appeal No.8 of 2011, decided on 7th July, 2020.
(a) Criminal Procedure Code (V of 1898)---
----Ss.417(2) & 561-A---Anti-Terrorism Act (XXVII of 1997), 25 (4-B)---Appeal against
acquittal---Maintainability---Special leave to appeal, non-seeking of---Conversion of
proceedings---Inherent powers of High Court---Maxim actus curiae neminem gravabit---
Applicability---Mistake of advocate---Act of Court---Complainant-appellant instead of
seeking special leave to appeal against acquittal of all accused persons, preferred direct
appeal, which was admitted by High Court for regular hearing and accused persons were
summoned---Validity---Complainant-appellant could be rescued under S.561-A, Cr.P.C.,
in order to meet ends of justice---Complainant-appellant could not be burdened due to
mistake of his counsel as well as office of High Court, who did not consider law in true
perspective at initial stage---Appeal was filed within time but no special leave to appeal
was obtained nor any such order was passed---No bar existed to consider such appeal as
an application for special appeal and allow the same while giving effect from date of
admission---High Court could not sit as silent spectator and watch that who committed the
mistake---Every Court inherited powers to ensure justice was done and if foul play was
visible, Judge had to rectify the same---High Court committed a mistake while
entertaining the appeal directly at its initial stage and the same could not be considered
against complainant-appellant who also did not apply law in a proper manner---High
Court invoking inherent powers in terms of S.561-A, Cr.P.C. and relying upon principle
actus curiae neminem gravabit, that no one should be prejudiced by the act of Court,
condoned application for special leave---Objection was set aside in circumstances.
Muhammad Akram v. DCO Rahim Yar Khan 2017 SCMR 56; Mian Asghar Ali v.
Government of Punjab through Secretary 2017 SCMR 118; Sher Alam Khan v. Abdul
Munim PLD 2018 SC 449; Mst. Gul Jan v. Naik Muhammad PLD 2012 SC 421;
Commissioner of Income Tax (Legal) RTO v. ED-Zublin AG Germany 2020 SCMR 500;
Abdur Rahim v. The State 1981 SCMR 294; Muhammad Ijaz v. Muhammad Shafi 2016
SCMR 834; Lanvin Traders, Karachi v. Presiding Officer 2013 SCMR 1419 and Khushi
Muhammad v. Mst. Fazal Bibi PLD 2016 SC 872 rel.
(b) Penal Code (XLV of 1860)---
----S. 365-A---Kidnapping for ransom---Necessary ingredients---Necessary to prove that
extortion has been made from any person who has been kidnapped or abducted---At least
some person has to comply with the demand whether in cash or otherwise in order to
obtain release of abductee.
Muhammad Riaz v. Bilqiaz Khan 2012 SCMR 721 rel.
(c) Anti-Terrorism Act (XXVII of 1997)---

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----S.7---Penal Code (XLV of 1860), S.365-A---Qanun-e-Shahadat (10 of 1984), Arts. 40

& 122---Kidnapping for ransom--- Appreciation of evidence---Appeal against acquittal---
Disclosure by accused---Newspaper cuttings---Trial proceeded in private complaint filed
by complainant-appellant, in which all accused persons were acquitted of the charge---
Validity---Exclusive knowledge of accused regarding place of captivity of abductee fell
within the concept of Art. 122 of Qanun-e-Shahadat, 1984, as on his pointation abductee
was recovered from a residential flat---Such aspect was confirmed during trial by police
officials who appeared as Court witnesses---Exclusivity of knowledge of accused
regarding different aspects of occurrence was a piece of evidence inexorably pointing
upon his culpability---Information supplied under Art. 40 of Qanun-e-Shahadat 1984, by
accused in police custody was admissible only to the extent of that it related to disclosure
of a new fact---Newspaper cutting in criminal case could not be used either in favour of
prosecution or in favour of defence unless author of the same was examined in Court as
witness---Such was a blatant illegality by Trial Court which resulted into judgment of
acquittal of accused persons---High Court converted acquittal of accused persons into
conviction and sentenced them to imprisonment for seven years---Appeal against acquittal
was allowed, in circumstances.
Hayat Bakhsh v. The State PLD 1981 SC 265; M. Saleem Akhtar v. S.H.O. Police
Station Chotiana 2005 PCr.LJ 1789; Asif Ali v. The State PLD 1971 SC 223; Hafiz and
another v. The State PLD 1961 Dhakka 78; Muhammad and others v. The State PLD 1961
Kar. 709; Muhammad Anwar alias Lalu v. The State 2003 YLR 300 and Zeeshan v. State
2017 YLR 278 ref.
Waqar A. Shamsi v. The State 2019 SCMR 2039; Sher Dil v. The State 2003 YLR 110;
Muhammad Azad v. The State 2019 SCMR 1330; Muhammad Ashraf Tareen v. The State
and others 1996 SCMR 1747; Shah Sim Khan v. The State 2017 PCr.LJ 505; Shahbaz
Khan alias Tippu v. Special Judge Anti Terrorism Court 3 Lahore PLD 2016 SC 1;
Ghulam Hussain v. The State PLD 2020 SC 61; Shahid alias Kaloo v. The State 2009
SCMR 558; Ansar Ali v. State 2017 MLD 1981 and Khadija Siddiqui v. Shah Hussain
PLD 2019 SC 261 rel.
Muhtarma Benazir Bhutto v. Farooq Ahmad Khan Leghari and others PLD 1998 SC
388; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; Mian
Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 and Umair Ashraf v.
The State 2008 MLD 1442 distinguished.
(d) Criminal Procedure Code (V of 1898)---
----Chap. XXXI---Anti-Terrorism Act (XXVII of 1997), S.25---Qanun-e-Shahadat (10 of
1984), Arts.117 to 122---Burden to prove---Appellate Court, duty of---If defence version
fails, even then prosecution has to stand on its own legs---Duty of High Court to thrash out
each and every aspect while considering principle of law in terms of Arts. 117 to 122 of
Qanun-e-Shahadat, 1984, in matter of appeal.
Mudassar Hussain Malik for Appellant.
Ch. Gulfam Ashraf Goraya for Respondents Nos.1 to 5.
Muhammad Atif Khokhar, State Counsel.
Date of hearing: 5th May, 2020.
JUDGMENT

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MOHSIN AKHTAR KAYANI, J.---Through the instant criminal appeal, the appellant
has called in question judgment of the learned Special Court (Anti-Terrorism Court-I),
Rawalpindi, dated 18.01.2011, whereby Respondents Nos.1 to 5 have been acquitted in
private complaint under sections 365-A/34, 149, 109, P.P.C. read with section 7 of the
Anti-Terrorism Act, 1997.
2. Brief facts referred in the instant criminal appeal are that on 15.09.2009, at about
09:00/09:15 p.m., when Ch. Aamir Shahzad/appellant was going towards his vehicle after
offering Isha prayer in F-11 Markaz, he was abducted by two already known accused
persons to appellant namely Abdul Ghafoor and Muhammad Makki along with three
unknown accused persons to appellant namely Alam Sher, Amir Rehman and Adnan. The
appellant was then taken in his own vehicle and after travelling for a while; he was shifted
to another vehicle and taken blindfolded to some unknown place for the purpose of
demand of ransom. Accordingly, appellant's sister namely Shabana Kausar got registered
FIR No.455/2009 at Police Station Shalimar, Islamabad and during investigation of the
matter on 03.10.2009, Aamir Rehman/accused was arrested while in possession of the
ransom amount handed over to him by PW-3 Ch. Muhammad Afzal. On the pointation of
said accused person, a raid was conducted at Flat No.5, Al-Safa Heights, Sector F-11,
Islamabad, wherefrom the appellant was recovered from the illegal confinement of
Muhammad Makki and Alam Sher/accused persons (Respondents Nos.1 and 2). However,
after the recovery of appellant, his statement was not recorded by the police and the
appellant having apprehension that police is not properly investigating the matter filed an
application to Assistant Commissioner, Islamabad for recording of his statement under
section 164, Cr.P.C., whereafter his statement was recorded along with statements of four
others and consequently respondents/ accused persons were summoned, though
Respondent No.5 for being absconder was proceeded under section 19(10) of the Anti-
Terrorism Act, 1997, while the four accused persons were formally charged under section
7(e) of the Anti-Terrorism Act, 1997 read with sections 365-A/149, P.P.C., who pleaded
not guilty and claimed trial. After recording of pro and contra evidence/statements of the
parties, the learned trial Court vide impugned judgment dated 18.01.2011 acquitted
respondents/accused persons. Hence, the instant criminal appeal.
3. Learned counsel for appellant contends that the learned trial Court while taking into
account minor discrepancies had ignored material facts of the case that the
respondents/accused persons themselves admitted during the course of trial that they
abducted the appellant; that the learned trial Court had also ignored to appreciate the
factum of raid and ransom money recovered from the accused person; that the learned trial
Court has not appreciated the evidence brought on record by the appellant side and
acquitted the respondents/accused persons of the charge in whimsical manner; that the
learned trial Court has relied upon defective material produced by the defence while
passing the impugned judgment, which is illegal, arbitrary and against the settled
principles of law.
4. Conversely, learned counsel for respondents Nos.1 to 5 contended that the appellant
has miserably failed to prove the charges against the said respondents/ accused persons
and the learned trial Court has rightly appreciated all these facts while passing the
impugned judgment; that no fact regarding any enmity on the part of respondents/ accused
persons has been shown or proved by the appellant; that the case as established by the
appellant suffers from doubts and the evidence produced by the appellant side is not
consistent, which has rightly been declared inadmissible by the learned trial Court while
passing the impugned judgment; that a direct appeal against judgment of acquittal in
complaint case is not maintainable in terms of section 25(4) of the ATA, 1997 read with
section 417(a)(ii), Cr.P.C.; that Ch. Amir Shahzad/appellant i.e. alleged abductee is

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absconder in another case FIR No.74, dated 27.02.2014, under sections 420, 468, 471,
406/34, P.P.C., Police Station Shalimar, Islamabad and as such, he loses his normal right
of audience and instant appeal is not maintainable. Similarly, learned State Counsel
contended that instant appeal is not maintainable as there is no direct appeal provided
under the law and special leave to appeal was not obtained by the appellant at the first
instance, whereas this defect is not clarified.
5. Arguments heard, record perused.
6. Perusal of record reveals that on 15.09.2009, appellant was allegedly abducted from
F-11 Markaz when he dropped his family members including his sister Mst. Shabana
Kausar/PW-1, Mst. Rukhsar Kausar and his wife Mst. Tayyaba at Irfan Dental Clinic
situated in F-11 Markaz for medical treatment, when he never returned back, his sister
Shabana Kausar lodged the FIR No. 455/2009 at Police Station Shalimar, Islamabad for
his abduction. However, Mst. Shabana Kausar/PW-1 received a call on her mobile
No.0322-5509009 from mobile number of her brother Aamir Shahzad/appellant i.e.
No.0333-5777794, whereby the caller told her that her brother is in safe custody and his
car No.PG-237 has been parked near greenbelt Filtration Plant, F-11, the said caller
demanded Rs.25 crore as ransom for release of appellant. The said caller also extended
threats not to inform the police and granted two days time for arranging the ransom.
Complainant Mst. Shabana Kausar got submitted the complaint Ex.PA, which was
converted into FIR No.455, dated 16.09.2009, under sections 365-A/34, P.P.C. Police
Station Shalimar, Islamabad. After initial investigation the alleged abductee has been
recovered and three accused persons were arrested, however, appellant being dissatisfied
with the investigation conducted by police filed private complaint under sections 365-
A/149/ 109/34, P.P.C. read with section 7 ATA, 1997, which was admitted for regular
hearing by the Anti-Terrorism Court, Islamabad. Whereafter, the respondents were
acquitted by the learned Trial Court vide judgment dated 18.01.2011. Hence,. the instant
criminal appeal.
7. Learned counsel for respondents has raised two objections regarding maintainability
of instant criminal appeal, which are as under:
a) Ch. Aarnir Shahzad/Appellant i.e. complainant/abductee filed the instant criminal
appeal against judgment of acquittal, who himself is an absconder in case FIR
No.74, dated 27.02.2014, under sections 420, 468, 471, 406/34, P.P.C., Police
Station Shalimar, Islamabad and as per the respondent's objection, the instant
appeal is not competent as the absconder loses his normal right of audience as held
in cases reported as PLD 1981 SC 265 (Hayat Bakhsh v. The State) and 2005
PCr.LJ 1789 Lahore (M. Saleem Akhtar v. S.H.O. Police Station Chotiana).
b) A direct appeal has been filed by the appellant against judgment of acquittal, which
is a violation of section 417(a)(ii), Cr.P.C. and section 25(4) of the ATA, 1997.
Before going into merits of the case, we have to decide the above referred two objections
raised by the respondent side at first instance.
8. To controvert the aforementioned objections, the learned counsel for appellant
contends that the objections of the respondent side are related to those accused persons
who absconded in any criminal case, whereas in this case, the appellant having been
declared fugitive offender in criminal case FIR No.74/2014, which has no nexus with the
instant case, even otherwise, the appellant was not declared absconder at the time of filing
of instant appeal on 25.01.2011, while the appellant was declared absconder on 12.01.016
i.e. after five years of filing of the instant appeal, therefore, judgments relied upon by the

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respondent side are not applicable to the present case. There is no cavil to proposition that
a person fugitive from law has no right of audience and even the case law cited by
respondent side confers this aspect, but the proposition in hand is different, whereby the
fugitive offender loses his concession of bail as well as joining of court proceedings, but
the respondent side has failed to justify the right of representation earlier available to the
appellant under the law, which could not be curtailed due to subsequent event in another
FIR after six years of filing of appeal. The Constitution of the Islamic Republic of
Pakistan, 1973 ensures and provides guarantee for equal protection of law to every
individual and as such, the case in which the appellant is an accused has no nexus with
this case, even the presence of appellant is not required in this case. The legal questions
and arguments could only be addressed by his counsel whose power of attorney is still
intact, the Court can decide the appeal even without appellant in terms of section 423,
Cr.P.C. Reliance is placed upon PLD 1971 SC 223 (Asif Ali v. The State), PLD 1961
Dhakka 78 (Hafiz and another v. The State) and PLD 1961 Karachi 709 (Muhammad and
others v. The State), therefore, the objection raised by respondent side regarding
maintainability of instant criminal appeal on abscondance of appellant is misconceived
and same is hereby rejected.
9. Similarly, regarding the second objection raised by the respondent side, learned
counsel for respondent contends that when an accused person is acquitted pursuant to
dismissal of criminal complaint, the complainant has to seek a special leave to appeal in
terms of general law i.e. section 417(2), Cr.P.C. and this aspect was specifically provided
in section 25(4-B) of the ATA, 1997, which is as under:
25. Appeal. (1) An appeal against final judgment of an Anti Terrorism Court shall lie to
a High Court.
(2)
(3)
(4)
(4-A)
(4-B) If an order of acquittal is passed by an Anti-Terrorism Court in any case
instituted upon complaint and the High Court, on an Application made to it by the
complainant in this behalf, grant Special leave to appeal from the order of
acquittal, the complainant may within thirty days present such an appeal to the
High Court.
Learned counsel for respondent while arguing his case contended that the appellant has
not filed any application for special leave before this Court, rather directly filed an appeal,
which is not maintainable and as such, leave could not be granted at this belated stage.
10. Conversely, learned counsel for appellant contended that instant appeal was directly
filed on the wrong advice of the counsel, the office of this Court had not raised any
objection at the time of filing of instant appeal, even this Court has issued notices to the
respondents vide order dated 04.04.2011 while considering the law and the facts in the
judgment of the acquittal and as such, at this stage the appellant should not be burdened
for the mistake and act of the Court. He further contended that criminal appeal has been
filed within prescribed period and this Court in the interest of justice can convert one kind
of proceedings into another while exercising inherent powers in terms of section 561-A,
Cr.P.C. which are meant to cater such exceptional circumstances in which the Court shall
not look into the technicalities at the time of admission of instant appeal.

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11. We have gone through the arguments advanced by both the parties and in order to
resolve the controversy we are fortified with the view taken by the apex Court in cases
reported as 2017 SCMR 56 (Muhammad Akram v. DCO Rahim Yar Khan), 2017 SCMR
118 (Mian Asghar Ali v. Government of Punjab through Secretary), PLD 2018 SC 449
(Sher Alam Khan v. Abdul Munim) and PLD 2012 SC 421 (Mst. Gul Jan v. Naik
Muhammad), whereby the apex Court, while relying upon. the principle of Ex Debito
Justitiae (from what is due to justice), has converted one type of proceedings into another
by holding that an appeal has to be converted into revision and vice versa and constitution
petition could be converted into an appeal and vice versa. The Courts not only can
exercise the powers to advance the cause of justice but also to prevent injustice, no fetters
or bars could be placed on the High Court or on the Supreme Court to convert and treat
one type of proceedings into another and proceed to decide the same. Reliance is placed
upon 2020 SCMR 500 (Commissioner of Income Tax (Legal) RTO v. ED-Zublin AG
Germany).
12. In view of above principles, laid down by the apex Court, the provisions of section
561-A, Cr.P.C. rescue the appellant in order to meet the ends of justice and this Court is of
the view that appellant should not be burdened due to mistake of his counsel as well as of
the office of this Court, who have not considered the law in its true perspective at the
initial stage, although the appeal was filed within time, but no special leave was obtained,
nor any such order was passed. However, there is no bar to consider the instant appeal as
an application for special leave at this stage and allow the same while giving effect from
the date of admission of instant appeal i.e. 04.04.2011, as the Court shall not sit as a silent
spectator and to watch that who has committed the mistake. Reliance is placed upon 1981
SCMR 294 (Abdur Rahim v. The State). Every Court has inherited powers to ensure
justice is done and if foul play is visible, the Judge has to rectify the same, whereas this
Court committed a mistake while entertaining the instant appeal directly at its initial
stage, which could not be considered against the appellant although he has also not
applied the law in a proper manner, therefore, relying upon the principle of "Actus Curiae
Neminem Gravabit" that no one should be prejudiced by the act of Court. Reliance is
placed upon 2016 SCMR 834 (Muhammad Ijaz v. Muhammad Shafi), 2013 SCMR 1419
(Lanvin Traders, Karachi v. Presiding Officer) and PLD 2016 SC 872 (Khushi Muhammad
v. Mst. Fazal Bibi). The objection of respondent side regarding non-filing of application for
special leave stand condoned, the appeal is maintainable while invoking the inherited
powers in terms of section 561-A, Cr.P.C. in order to meet the ends of justice.
13. In order to decide the case on evidence available on record, it has been observed
that the appellant has nominated Muhammad Makki, Alam Sher, Aamir Rehman, Abdul
Ghafoor and Adnan Khan as accused persons in a private complaint, however, accused
Adnan Khan did not appear and absconded during the trial, who has been tried in absentia.
14. The initial statement was recorded by PW-1 Mst. Shabana Kausar/ complainant of
case FIR No.455/2009 (Ex.PA/1), wherein no accused was nominated by name. She did
not identify the caller who made call for the purpose of ransom, however, she
acknowledged that she knew accused Muhammad Makki and Abdul Ghafoor prior to the
said occurrence as she and her brother purchased several properties from them valuing
about Rs.15 crore. She also acknowledged that her brother/alleged abductee was also
known to accused persons prior to said occurrence and she recorded supplementary
statement regarding nomination of accused persons.
15. The appellant has produced his other sister i.e. Mst. Rukhsar Kausar as PW-2, who
narrated the entire story of the alleged occurrence, however, she further stated that she
along with her sister went to airport to receive her other brother namely Afzal Cheema,

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who was in USA at the time of alleged incident and was informed by Mst. Shabana
Kausar. She also acknowledged that she was informed by her sister that caller demanded
Rs.25 crore for release of her brother and she also did not nominate any accused person in
her statement before the police.
16. The appellant has produced his brother i.e. Ch. Muhammad Afzal as PW-3, who
stated that he was in USA on 15.09.2009 when he was informed by her sister regarding
kidnapping of Aamir Shahzad/appellant, where-after he came to Pakistan on 16.9.2009.
He further stated that he has also received a call from the abductor who demanded Rs.25
crore for the release of his brother and in default, abductor threatened to kill his brother.
Ghafoor and Makki accused present in the Court used to meet him and told him that they
would help him tracing out his brother as both the said accused persons called him in their
office and told him that they would settle the issue with alleged abductor for release of his
brother for the sum of Rs.10 crore, whereupon he replied that he needs some time for
arranging the ransom amount, they also assured him that they will arrange ransom amount
of Rs.5/7 crore for him. PW-3 told all these facts to the police and on the instructions of
police, he confirm the accused persons for delivery of ransom amount, upon which he was
informed that amount would be received at Jungle Hotel Kashmir Highway by the
abductor. After receiving this information, the police has arranged a bag containing notes
Ex.P1, which were photocopies of the original currency notes. PW-3 reached at Jungle
Hotel at about 04/4:30 p.m. along with police party headed by DIG and when he saw a
white colour Corolla car, from which accused Aamir alighted, came towards him and
received the bag Ex.P1, he was arrested by the police, who during interrogation at spot
disclosed about the place of confinement of Aamir Shahzad (alleged abductee) as Flat
No.5, Al-Safa Heights, F-11, Islamabad. Police party on pointation of Aamir Rehman
raided the said flat and arrested the accused Makki and Alam Sher while in possession of
pistol Ex.P-2 (black colour) while Aamir Shahzad/appellant was tied up with ropes
Ex.P3/1-2.
17. During the course of cross-examination, PW-3 Ch. Muhammad Afzal
acknowledged that police did not record his statement during entire investigation despite
the fact that police party visited him at his house and he also joined investigation 5/6
times, while he visited the police station for 8 times. He did not recognize the voice of
caller who called for ransom amount, nor he remember exact number on which he
received the call, but he handed over the SIM to police. PW-3 did not give the original
currency notes of Rs.10 crore, rather police told him that they have arranged the photostat
currency nots, however, he did not remember the name of said police officer who arranged
the same. He also acknowledged that his brother/appellant filed a private complaint after
four months of recovery. He purchased flats from accused persons and he came to know
about the names of Aamir Rehman and Alain Sher in the police station, he handed over
the bag to accused Aamir Rehman.
18. Appellant/Ch. Aamir Shahzad Cheema (abductee) appeared as PW-4 and recorded
his statement in the following manner:-
On 15.09.2009, I took my sister Rukhsar Kausar and my wife Tayyba Aamir to dental
clinic in F-11 Markaz Islamabad. The time was 7/7:30 P.M. I dropped them at the
clinic when they asked me to go to say prayer as they will take some time for their
check up. I did not go to say prayer and remained sitting in my car there.
Meanwhile I received a telephone call of my friend Rashid for seeing the flats. I
went to see the flats at the place where he called me. After visiting the flats, I came
back to the above said clinic but I did not see my family outside the clinic and then
I went to mosque to offer prayer. Meanwhile a heavy rain and storm started, when

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I came outside the mosque, there was heavy rain outside and nobody was present.
When I was going to open the door of my car through key, five persons including
accused Makki and Abdul Ghafoor, now present in Court, came there and tried to
snatch key of car from me on gunpoint. At my resistance, accused forcibly got me
seated in the rear seat of my car and one of the accused namely Maki sat with me
on one side while the other accused namely Abdul Ghafoor sat with me on other
side. Two accused sat on front seats. The accused drove the car and after passing
some distance accused boarded me in another vehicle like Hiace. They covered my
eyes with a piece of cloth and got me laid on the back seat of above said vehicle.
After travelling for about 1-1/2 hours, accused confined me in a room and removed
the cloth from my eyes. After some time, both accused Makki and Abdul Ghafoor
came to me and told that they have abducted me for ransom and if my family pays
ransom to them, they would release me otherwise, they would kill me. They were
demanding ransom after every 2/3 days and were also telling me that my family
was not fulfilling their demand. After 5/6 days, the accused shifted me during night
to some other place. They again shifted me to previous place on 01.10.2009 On
03.10.2009, police recovered me. My brother Afzal was also accompanying the
police at that time. At the time of recovery, my hands and feet were tied with
ropes, P3/1-2. At the time of my recovery, accused Maki and Alam Sher were
arrested from place of my recovery. I do not know whether police was
accompanied by any accused. Again said accused Aamir Rehman was also present
at the time of recovery but I do not know whether accused Aamir Rehman came
along with police or he was already there.
19. After recording of above referred statement, the appellant further stated that he was
not satisfied with the investigation and he filed private complaint Ex.PB and verified his
signature as Ex.PB/1.
20. Basharat Hussain/ASI of Police Station Shalimar appeared as CW-1, who stated
that on 03.10.2009, he was posted at P.S. Shalimar, Islamabad and at about 03:30 p.m., he
along with Ghulam Muhammad Shah, S.I, Javid Awan, S.I, Habibullah, ASI, and other
HCs/ constables together with Muhammad Afzal Cheema went to Jungle Hotel situated at
Kashmir Highway, Islamabad, where at about 04:20 p.m. whereby PW-3 Ch. Muhammad
Afzal Cheema was holding a black colour bag containing the ransom money and Ghulam
Muhammad Shah, S.I. assigned them different positions, PW-3 Ch. Muhammad Afzal
Cheema went behind Jungle Hotel, where a Corolla car was parked at some distance, in
which accused Aamir Rehman, now present in the Court, was sitting and when PW-3 Ch.
Muhammad Afzal Cheema proceeded towards said accused Aamir Rehman, he alighted
from his car and proceeded towards PW-3 Ch. Muhammad Afzal Cheema, who handed
over the black colour bag containing ransom amount to the said accused Aamir Rehman,
whereafter Aamir Rehman was apprehended by the raiding party and the amount of Rs.10
crore was recovered, which consisted of 200 bundles in the denomination of Rs.5000/-
having two colour copies of 5000 currency notes in which there are 98 blank papers. The
bundles are referred as Ex.P5/1-200. The amount was taken into possession vide recovery
memo Ex.PC, signed by him and Javid Awan S.I./I.O. also took into possession car
bearing registration No.RLD-369, vide recovery memo Ex.PD. On the personal search of
accused Aamir Rehman two mobile phones (Exh.P6/1-2), NIC (Exh.P7) and cash of
Rs.5010/- (Exh.P8) were recovered, taken into possession vide recovery memo Ex.PE. On
spot investigation, accused Aamir Rehmand disclosed that abductee has been detained in
Al-Safa Heights, Sector F-11/1, Islamabad, whereupon raiding party reached at the said
place on pointation of accused Aamir Rehman, door of Flat No.5 was knocked, whereby
accused Alam Sher was arrested on opening the door. Muhammad Makki present in the

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Court was also present inside the flat, who was also arrested and Aamir Shahzad/alleged
abudctee was recovered from the said flat, who was tied up with ropes referred Ex.P3/1-2.
From personal search of accused Alam Sher and Makki pistols .30 bore were recovered.
From accused Makki his I.D card, driving license, two bank cards, one metro card, a
cheque valuing Rs. One Lac, Nokia mobile phone and cash Rs.12,000/- were also
recovered and taken into possession vide Ex.PF, whereas pistol was separately taken into
possession as Ex.PG. Pistol recovered from accused Alam Sher was taken into possession
vide recovery memo Ex.PH, Honda car PG-237 was also taken into possession by I.O.
through Ex.PJ and car has been presented as P-10.
21. CW-1 Basharat Hussain/ASI acknowledged that PW-3 Ch. Muhammad Afzal
Cheema brought the dummy notes to Police Station. At the time of arrest of accused
Aamir Rehman, 15/20 persons were present at Jungle Hotel and except PW-3 Ch.
Muhammad Afzal Cheema, no private person was with police at Jungle Hotel. He also
stated that no pistol was recovered from accused Aamir Rehman at the time of his arrest.
The flat from where abductee was recovered is situated in the basement of Al Safa
Heights. He acknowledged that there is no mention of number of flat/room in the recovery
memo, which was prepared on spot and the raiding party was consisted upon Ghulam
Muhammad Shah, S.I., Javid Awan, S.I, Habib Ullah, ASI, Ghulam Shabbir, HC, Akhtar
Munir Constable. He further stated that he heard a news regarding recovery of abductee
from Peshawar by DIG Binyamin. He did not know who is owner of Al Safa Heights, but
the key was recovered from personal search of accused Makki and the door was opened
by accused Alam Sher on knocking of police. He also Stated that pistol was recovered
from accused Makki upon his personal search and pistol of accused Aamir Rehman was
recovered on his pointation from Almirah in flat.
22. Habib Ullah, ASI appeared as CW-2, who was posted in Police Station Shalimar on
03.10.2009 and was member of raiding party along with Ghulam Muhammad Shah, S.I,
Javid Awan, S.I. and others, who went to Jungle Hotel from where they arrested accused
Aamir Rehman and on his pointation, he got recovered pistol Ex.P11 vide recovery memo
Ex. PK from Al-Safa Heights and separate FIR was lodged under sections 13/20/65 of the
Arms Ordinance, 1965.
23. Ghulam Shabbir HC appeared as CW-3, who was also member of raiding party on
03.10.2009 and went to Jungle Hotel and arrested accused Aamir Rehman, who led the
police party to Al-Safa Height, F-11 Markaz, Islamabad and on the knocking of door of
Flat No.5, accused Alam Sher opened the door and accused Makki was also present there,
who was apprehended and upon his personal search a black colour pistol along with four
live bullets were recovered from his right dub, which were taken into possession vide
recovery memo Ex.PM. The pistol has been produced as Ex.P2 and live bullets have been
produced as Ex.P2/1-4. Recovery memo was also signed by him and Munir Akhtar
Constable. Accused Aamir Rehman also disclosed and led to recovery of pistol from
Almirah of the said flat, which was separately taken into possession vide recovery memo
Ex.PK, six live bullets were also recovered from that pistol and at the same time pistol
was also recovered from accused Alam Sher.
24. The appellant side has produced CW-4 Ghulam Muhammad Shah, S.I who lodged
the FIR Ex.PA/1 on 16.09.2009 on the complaint of Mst. Shabana Kausar Ex.PA and
prepared rough site plan Ex.PN, recorded statement of PWs under section 161, Cr.P.C. and
on pointation of Mst. Shabana Kausar took into possession car (PG-237) from greenbelt
filtration plant between F-10/1 and F-11 and also prepared the site plan, submitted
application for constitution of JIT and also applied for CDR of mobile phone number of
abductee and recorded statement of PW-2 brother of abductee. Supplementary statements

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of Mst. Shabana Kausar were recorded on 02.10.2009 and 03.10.2009, he along with Javid
Awan, S.I, Habib Ullah ASI, Basharat Mehmood ASI and six constables conducted raid in
the Jungle Hotel area and stationed different police parties at different places and when
accused Aamir Rehman received ransom amount, he apprehended him and on spot
investigation got recovered the dummy notes amounting to Rs.10 crore vide recovery
memo Exh.PC, cash of Rs.5010/-, USB, two mobile sets, visiting cards, etc. vide recovery
memo Ex.PE. Accused Aamir Rehman disclosed the presence of alleged abudctee in the
Al Safa Heights upon which raid was conducted and on knocking of door accused Alam
Sher opened the door, who was apprehended and accused Makki was also present in the
flat and pistol .30 bore was recovered from accused Alam Sher along with three live
bullets. A pistol along with four live bullets was recovered from accused Makki from his
right dub. On pointation of accused Aamir Rehman, pistol along with six live bullets were
recovered from Almirah and taken into possession together with the rope, plate, glass,
bottle and a mask, regarding which separate FIRs under section 13/20/65 of Arms
Ordinance were registered after recovery of three pistols. On personal search of accused
Alam Sher, cash of Rs.22,000/- was recovered, site plan Ex.PR was prepared and on
supplementary statement of Mst. Shabana Kausar he arrested accused Abdul Ghafoor in
this case on 13.10.2009. He also obtained non-bailable warrants of arrest of accused
Adnan, which was not executed, hence submitted the challan.
25. During the course of cross-examination, CW-4 Ghulam Muhammad Shah/S.I.
acknowledged that PW-3 Ch. Muhammad Afzal Cheema possessed all the dummy notes
and he did not record his statement at Jungle Hotel or at Al-Safa Heights at the time of
recovery. He acknowledged that 15/20 private persons were present at Jungle Hotel at the
time of raid, but none of those private persons were ready to become witness of
proceedings. He apprehended the accused Aamir Rehman with the help of police officials.
CW-4 Ghulam Muhammad Shah further acknowledged that he had not taken into
possession cot recovered from flat No.5 and accused Abdul Ghafoor was implicated in
this case in terms of section 109, P.P.C. and except the statement of Mst. Shabana Kausar
no incriminating material was available against accused Abdul Ghafoor. CW-4 denied the
factum of recovery of alleged abductee Aamir Shahzad from area of Police Station Pahari
Pura, Peshawar as per the news item published in newspaper Jang, dated 03.10.2009. He
also denied that police of Islamabad headed by DIG Binyamin took the abductee from
there. He also acknowledged that he did not take into possession the mobile set of Mst.
Shabana Kausar, nor the SIM and the Flat No.5 containing 03 bedrooms and a kitchen
separately referred in the Ex.PR and all the bedrooms of flat No.5 were open and key of
flat No.5 was with accused Makki, who was present inside the flat at the time of raid.
26. While considering the entire evidence discussed above, following facts came on
record:-
i. The appellant Ch. Aamir Shahzad Cheema was abducted on 15.09.2009, from
Islamabad in the territorial jurisdiction of Police Station Shalimar and complaint
Ex.PA was filed by her sister Mst. Shabana Kausar, which was converted into FIR
No.455/2009 Ex.PA/1.
ii. No accused person was nominated by the complainant (sister of abductee).
iii) Supplementary statement of Mst. Shabana Kausar was recorded alleging therein
that ransom call was received from, unknown caller who claimed the amount of
Rs.25 crore on her mobile No.0322-5509009 from the mobile number of her
abducted brother/Ch. Aamir Shahzad Cheema i.e. 0333-5777794.

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iv. The vehicle of the abductee/ appellant i.e. No.PG-237 was recovered from greenbelt
area near filtration plant on the information of unknown caller.
v. Two of the accused persons namely Makki and Abdul Ghafoor met the abductee's
brother namely Ch. Muhammad Afzal/PW-3 and assured him that they will arrange
the release of his brother for the sum of Rs.10 crore and asked him to arrange the
ransom amount.
vi. The time and place for payment of ransom amount has been fixed at Jungle Hotel,
Kashmir Highway by PW-3 Ch. Muhammad Afzal, who arranged Rs.10 crore
ransom amount comprising of 200 packets with white pages in shape of currency
notes with cover of Rs.5000/- note as referred in Ex.PC, recovery memo, dated
03.10.2009.
vii. The ransom amount has been delivered in bag Ex.P-1 at Jungle Hotel, at about
04/4:30 p.m., when accused Aamir Rehman came at spot in white colour Corolla
car and received a bag, who was taken into custody and his car RLD-369 Toyota
Corolla XLI was also taken into possession vide recovery memo Ex.PD, dated
03.10.2009.
viii. Accused Aamir Rehman discloses the whereabouts of alleged abductee on spot to
the police near Jungle Hotel and on his pointation raid was conducted at flat No.5
Al Safa Heights, F-11 Markaz, Islamabad on 03.10.2009.
ix. The abductee Aamir Shahzad was recovered from flat No.5 Al Safa Heights, F-11
Markaz, Islamabad by the police and taken into custody the accused Muhammad
Makki and Alam Sher who was armed with .30 bore pistol, recovered through
recovery memo Ex.PH with three live bullets.
x. Abductee Aamir Shahzad was found in one of the room of the flat tied with white
ropes length four feet approximately lying on cot which was taken into possession
vide recovery memo Ex.PQ.
xi. The raid was conducted by Basharat Hussain, ASI/CW-1, Habib Ullah, ASI/CW-2,
Ghulam Hussain, HC/CW-3 and Ghulam Muhammad Shah, S.I/CW-4.
xii. The accused Aamir Rehman got recovered his pistol along with 06 live bullets vide
recovery memo Ex.PK and separate FIR under section 13/20/65 AO was registered
against him.
xiii. Accused Aamir Rehman was arrested on 03.10.2009 from jungle hotel, while
receiving the ransom amount by police.
xiv. Accused Muhammad Makki was arrested on 03.10.2009 from flat No.5 Al Safa
Heights, F-11 Markaz, Islamabad the place of abduction of alleged abductee Ch.
Aamir Shahzad Cheema and also found in possession of .30 bore pistol along with
live bullets by the police.
xv. The site plan for recovery of vehicle PG-327-ICT referred as Ex.PO shows that
vehicle was recovered from an open place.
xvi. The site plan of place of abduction of Aamir Shahzad Cheema has been referred as
Ex. PN shows it is situated in F-11 Markaz.
xvii. The site plan Exh.PB for payment of ransom amount Rs.10 crore shows that it is
in Jungle Hotel, Kashmir Highway when accused Aamir Rehman was arrested
while receiving ransom amount.

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xviii. The site plan of recovery of the abductee Aamir Shahzad i.e. Flat No.5 Al Safa
Heights, F-11 Markaz, Islamabad.
xix. The site plan for recovery of pistol on the pointation of accused Makki along with
04 live bullets has been referred as Ex.DC.
xx. No CDR has been placed on record by the I.O. of this case.
xxi. The amount of Rs.10 crore recovered from bag Ex.P-1 through recovery memo
Ex.PC containing 200 bundles in denomination of Rs.5000/-. All the bundles
containing two colour copies of Rs.5000/- notes in which 98 blank papers. Bundles
have been placed as Ex.P5/1-200 by CW-1 Basharat Hussain ASI, there was not a
single real currency note used to pay the ransom.
xxii. As per the prosecution evidence of PW-3 Ch. Muhammad Afzal Cheema, the
police had arranged the currency notes.
xxiii. CW-1 Basharat Hussain/ASI stated that PW-3 Ch. Muhammad Afzal Cheema has
arranged the currency notes for payment of ransom. As per site plan of recovery of
alleged abductee, the place of recovery is Flat No.5, 1st Floor, Al-Safa Heights, F-
11, Islamabad, whereas CW-2 Habib Ullah/S.I. contended that abductee was
recovered from Flat No.5, Ground Floor, F-11, Islamabad.
xxiv. The alleged abductee Ch. Amir Shahzad Cheema has never referred the place of
recovery in his complaint or in his statement.
xxv. The unknown caller claiming the ransom amount has not been verified by the I.O.,
nor has any voice test been conducted for the verification of the person amongst
the accused persons in this regard by the I.O.
xxvi. Abductee was recovered on the pointation of accused Aamir Rehman from Flat
No.5 Al-Safa Heights, F-11 Markaz, Islamabad along with accused Makki and
Alam Sher on 03.10.2009.
xxvii. No independent evidence has been brought on record to verify that Abdul
Ghafoor, brother of Muhammad Makki/respondent has been involved in this case
except statement of the alleged abductee.
27. We have attended to the proposition in terms of section 365-A, P.P.C. as to whether
the ingredients of said offence have been justified by the prosecution in this case or
otherwise on the basis of above factual position, therefore, it is necessary to reproduce
section 365-A, P.P.C., which is as under:--
365-A. Kidnapping or abduction for extorting property, valuable security, etc. Whoever
kidnaps or abducts any person for the purpose of extorting from the person any
property, whether movable or immovable, or valuable security, or to compel any
person to comply with any other demand whether in cash or otherwise, for
obtaining release of the person kidnapped or abducted, shall be punished with
(death or) imprisonment for life and shall also be liable to forfeiture of property.
28. While considering the above referred requirements of kidnapping for extorting
property, it is necessary to prove that extortion has been made from any person who has
been kidnapped or abducted and at least some person has to comply with the demand
whether in cash or otherwise in order to obtain the release of the abductee, whereas in this
case Muhammad Afzal Cheema/PW-3 the real brother of alleged abductee came from
USA on 16.09.2009 after receiving information of kidnapping of his brother and he also
met with accused Makki and Abdul Ghafoor who ensured him for release of his brother

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and suggested to make arrangement of ransom amount, although Muhammad Afzal

Cheema informed the police parallel to these meetings and on 03.10.2009 he on the
instructions of unknown caller reached at jungle hotel Kashmir Highway by arranging the
ransom amount of Rs.10 crore in Ex.P1 (photocopy of original currency notes) which
were handed over to accused Aamir Rehman, who was taken into custody by the raiding
party comprising of CW-1 to CW-4 police officials, while receiving the amount. The
handing over of ransom amount as alleged by the prosecution has been proved, although
passing of ransom amount is not pre-requisite to prove the offence of section 365-A,
P.P.C. Reliance is placed upon 2012 SCMR 721 (Muhammad Riaz v. Bilqiaz Khan).
29. Even though the recovered amount has been produced on record in the testimony of
CW-4 Ghulam Muhammad Shah, S.I which was also confirmed by CW-1 Basharat
Hussain, ASI being the witness of recovery memo Ex.PC. It is also settled that non-
recovery of ransom amount has no adverse effect on the case of prosecution. Reliance is
placed upon 2003 YLR 300 (Muhammad Anwar alias Lalu v. The State). The offence of
abduction or kidnapping for the purpose of ransom has to be considered in the light of
evidence recorded by the complainant in this case namely Mst. Shabana Kausar/PW-1
who has lodged the FIR with promptitude vide FIR No.455/2009 Ex.PA/1 and her stance
was corroborated by the alleged abductee Aamir Shahzad Cheema/PW-4, who narrated the
entire story in his statement referred in Para 18 of the instant judgment and confirmed that
he was recovered on 03.10.2009 by the police in presence of his brother Muhammad
Afzal, who accompanied the police. He also confirmed that his hands were tied up with
rope and accused Makki and Alam Sher were arrested from the place of recovery along
with incriminating articles, which fact further substantiated through recovery of .30 bore
pistols. The statement of appellant/abductee remained consistent with the testimony of
complainant/PW-1, his brother PW-3 as well as CW-1/ Basharat Hussain, ASI and CW-
4/Ghulam Muhammad Shah, S.I.
30. The most important aspect of this case is the exclusive knowledge of accused
Aamir Rehman regarding the place of captivity of abductee Aamir Shahzad, which falls
within the concept of Article 122 of Qanun-e-Shahadat Order, 1984 as on his pointation
the abductee was recovered from Flat No.5 Al Safa Heights F-11 Markaz, Islamabad and
this aspect was also confirmed by the police officials/CWs appeared in this case. The
exclusivity of knowledge of accused regarding different aspects of the occurrence was a
piece of evidence inexorably pointing upon his culpability. Reliance is placed upon 2019
SCMR 2039 (Waqar A. Shamsi v. The State), wherein it has been held that "what was to
be essentially seen was whether prosecution was able to come forward with the available
evidence, possible under the circumstances of a case and that whether such volume or
nature of evidence is sufficient to sustain the charge."
31. We have considered the chain of evidence from the point of disclosure by the
accused Aamir Rehman on 03.10.2009 when he received the ransom amount of Rs.10
crore through Ex.P1 from brother of abductee/PW-3 Ch. Muhammad Afzal Cheema and
was arrested by police, who disclosed the location of abductee to police, and the said
disclosure in terms of Article 40 of the Qanun-e-Shahadat Order, 1984 has to be
considered as an information received from accused which has been discovered in
consequence of such information during the course of investigation of the offence and
such information lead to a discovery of a new fact which was not earlier known to the I.O.
i.e. the place of abduction of the alleged abductee/ appellant Aamir Shahzad i.e. Flat No.5
Al Safa Heights, F-11 Markaz, Islamabad. The information supplied by the accused Aamir
Rehman in police custody under Article 40 of the Qanun-e-Shahadat Order, 1984 would
be admissible only to the extent that it relates to the disclosure of a new fact. Reliance is
place upon 2003 YLR 110 (Sher Dil v. The State). This aspect has been considered by the

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Apex Court in judgment reported as 2019 SCMR 1330 (Muhammad Azad v. The State) in
the following manner:--
Events, though few, however taking place in quick succession, inexorably, revolve
around the appellant's culpability; most important being disclosure within the
contemplation of Article 40 of the Qanun-e-Shahadat Order, 1984 pursuant
whereto he led to the discovery the corpse on the basis of his exclusive knowledge;
given the briefest timeframe, to the exclusion of any other hypothesis, it can be
safely inferred, without being conjectural, that he alone knew what befell upon the
child and where he was dumped. Cell phone data, generated through automated
system, operating beyond human interference confirmed conversation between the
appellant and the complainant. There was hardly any time or occasion for the
family to concoct or cook up a story on suspicions or consultations. Investigative
conclusions point towards the appellant as well. Complainant and his brother, with
no axe to grind, cross-examined at length, left the witness box unscathed;
recoveries have been proved by the witnesses, equally steadfast. There is no
earthly reason to suspect appellant's identity or entertain theory of substitution.
Appellant's guilt is proved to the hilt on the basis of chain of circumstances though
few in number, nonetheless, well synchronized with one another, intrinsically
confidence inspiring; he has rightly been convicted.
32. While considering the above approach settled by the Apex Court, we are of the
considered view that abductee remained consistent with the prosecution version despite
lengthy cross-examination and as such, the defense absolutely failed to shatter his
testimony, even otherwise, the abductee and police officials/CWs have no ill will to
falsely involve the accused persons in this case, whereas in similar situation the
conviction has been maintained by the superior courts in case reported as 2017 YLR 278
(Zeeshan v. State).
33. We have gone through the statements of respondents/accused person recorded
under section 342, Cr.P.C. whereby accused Aamir Rehman denied his involvement in the
abduction of appellant, who while answering Question No.20 took a specific stance and
has also taken a similar stance in answer to Question No.23, which is as under:-
I was involved in this case falsely by the police in connivance with the complainant
party on account of enmity and PWs have also deposed against me through falsely
concocted, cooked up, baseless, self contradictory story. My co-accused Abdul
Ghafoor and his brother Abdul Shakoor have business dispute as complainant party
had purchased 17 Flats from them valuing Rs.15 Crore and complainant party
wanted that they should take those Flats back and pay the money to complainant
party in form of Dollars. Because at the time of purchasing, the value of Dollar
was lower, Abdul Ghafoor and his brother Abdul Shakoor refused and complainant
party bore grudge and in connivance with police concocted, false and baseless
story relating to recovery of abductee (PW-4) from afore mentioned flat just to
defame us.
34. Similarly, principal accused Muhammad Makki has also denied his involvement
and given a similar stance recorded by accused persons namely Alam Sher and Aamir
Rehman in questions Nos.20, 22 and 23. For ready reference, the answer to of Question
No.20 given by Muhammad Makki/accused is reproduced as under:-
"It is incorrect. The alleged abductee (PW-4) was not recovered from Flat No.5, Al
Safa Heights. In fact the abductee (PW-4) was reportedly abducted by some
Pathans and was recovered from Peshawar by Binyamin D.I.G. Operation Police
Islamabad who brought him to Islamabad. This fact has been published/reported in

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various news papers and as well as electronic media such as Nawa-e-waqat

Islamabad, Subah News Peshawar, Daily Jang, Geo News, etc. The photo stat
copies of news published in afore mentioned news papers are produced as Mark
"A" to Mark "D". After the alleged recovery of abductee (PW-4) from Peshawar,
police in connivance with complainant party, who are very influential persons and
with whom I and my brother Abdul Ghafoor and Abdul Shakoor have business
dispute as complainant party had purchase 17 flats from us valuing Rs.15/- Crore
and they wanted that we should take those flats back and pay them money
according to Dollar. Because at the time of purchasing the value of Dollar was
lower, we refused due to which they bore grudge concocted, a false and baseless
story relating to recovery of abductee (PW-4) from aforementioned flat just to
defame us and lower down the value of Al-Safa Heights. I along with my brother
Abdul Ghafoor, my driver Alam Sher and my Manager Aamir Rehman was
arrested by C.I.D. Police Party in the night between 2/3 October, 2009 at about
02:30 AM from Al Safa Heights F-11/1 Islamabad. The police party headed by
Khalid Masood D.S.P. C.I.D. took us to C.I.D. Centre Baharakahu, Islamabad,
where police searched me and from my personal search Rs.12,000/- cash, Driving
Licence, ID Card, Metro Card, ATM Card, Cheque valuing Rs.1,00,000/- and
Mobile phone Nokia were recovered. The police planted on me Pistol P-2, just to
strengthen the complainant/ prosecution case and recovery memo Exh.PF is forged
and false. Khalid Masoud D.S.P. CID Centre Bahara Kahu Islamabad, demanded
from me illegal gratification for our release from illegal detention and compelled
me to pay bribe amounting to Rs.5/- lac to him and as a consequence of his
compellation and for our him to pay the afore mentioned bribe amount to him,
resultantly I have paid him a sum of Rs.5/- Lac as bribe and then my brother Abdul
Shakoor reported the matter to I.G. Police Islamabad and enquiry was ordered by
I.G. Police Islamabad. During the course of enquiry the complaint was found true
and as a result of that D.S.P. Khalid Masuod was dismissed from service by the
order of I.G. Islamabad. Copy of his dismissal order dated 23.10.2009 is produced
as Mark "E". However, I don't know about the personal search of Alam Sher. The
police as mentioned above in connivance with complainant party prepared false
recovery memos of dummy notes, recovery of alleged detenu from Al-Safa Heights
and prepared all other memos of recovery of pistols from myself, my manager and
my driver and conducted illegal investigations and involved me, my brother Abdul
Ghafoor and driver Alam Sher and manager Aamir Rehman falsely through
concocted and baseless story of complainant and the versions of the complainant
and the police are false, concocted and self-contradictory and mutually destructive
and all the versions are absolutely untrue and false."
35. We have gone through the defense version highlighted in the statements of
accused/respondents under section 342, Cr.P.C. in which it was referred that Abdul
Ghafoor and Abdul Shakoor have some business dispute with complainant's party
regarding purchase of flats worth of Rs.15 crore but no such evidence has been brought on
record, even another aspect was broadly highlighted that accused Alam Sher driver of
Abdul Ghafoor and Muhammad Makki along with manager Aamir Rehman were arrested
by CID police in the night between 2/3 October, 2009, at about 02:30 a.m. from Al-Safa
Heights, F-11/1, Islamabad and they have been taken by Khalid Masood DSP CID who
planted pistols upon them and has received an amount of Rs.5,00,000/- as illegal
gratification and in consequence of this illegal action Khalid Masood, DSP was dismissed
from service vide order dated 23.10.2009. They have also taken another plea that the
alleged abductee Ch. Amir Shahzad was recovered from Peshawar by Islamabad Police
and this news was published in different newspapers, and in this regard, they have
produced copy of Daily Subah Peshawar edition, dated 04.10.2009, Mark 'A' to Mark 'D',
Daily Nawa-i-Waqt Rawalpindi/Islamabad, dated 04.10.2009, in which DIG Operations,
ICT Muhammad Binyamin has recovered the abductee who was abducted for ransom of
Rs.25 crore.

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36. The above referred stance was confronted to CW-1 Basharat Hussain, ASI, CW-2
Habib Ullah, ASI and CW-4 Ghulam Muhammad Shah, S.I but all police officials have
categorically denied this fact and despite their denial the defense has not opted to call DIG
Binyamin, whose press conference has been referred in this case.
37. We have meticulously gone through the judgment of learned trial Court and
observed that the learned trial Court has passed order of acquittal on the following
grounds:--
(a) Complainant has not alleged in his private complaint that he was confined in or
recovered from Flat No.5, Al-Safa Heights, Islamabad and even this fact was not
referred in his application Ex.DA and affidavit Ex.DB filed before Assistant
Commissioner/ Magistrate.
(b) No statement under section 161, Cr.P.C. of the alleged abductee was recorded by
the police at the time of alleged recovery from Al-Safa Heights, Islamabad, rather
his statement of affidavit was received later on as Exh.DB.
(c) CW-1 acknowledged that Afzal Cheema was not present at the time of recovery of
abductee and recovery memo of the abductee was prepared inside flat.
(d) CW-2 and CW-3 were present at the time of alleged recovery of abductee, have not
stated in their examination-in-chief that abductee was recovered from Al-Safa
Heights, Islamabad.
(e) No private person of locality was associated in the recovery proceedings despite
availability of private persons.
(f) The documents, news items/press clipping, Mark A to Mark D, (Daily Subah,
Peshawar, Nawa-e-Waqt and Jang) disclose that abductee Aamir Shahzad was
recovered from Peshawar by the DIG Operations Islamabad namely Binyamin.
(g) The learned Trial Court has heavily relied upon judgments reported as PLD 1998
SC 388 (Muhtarma Benazir Bhutto v. Farooq Ahmad Khan Leghari and others),
PLD 1976 SC 57 (Islamic Republic of Pakistan v. Abdul Wali Khan), PLD 1993
SC 473 (Mian Muhammad Nawaz Sharif v. President of Pakistan) and 2008 MLD
1442 Karachi (Umair Ashraf v. The State).
38. The above referred factors have heavily been relied by the trial Court by
considering them as dent in the prosecution case, whereas all these factors are just defence
pleas taken by the respondents/accused side which have not been substantiated through
any mode or manner. However, if the defense version fails, even then the prosecution has
to stand on its own legs. The trial court has relied upon the above pleas, therefore, it is the
duty of this court while considering the matter in appeal to thrash out each and every
aspect while considering the principle of law in terms of Articles 117 to 122 of Qanun-e-
Shahadat Order, 1984, whereby concept of burden of proof has been explained in the
manner that, "where any person desires any court to give judgment as to any of legal right
or a liability dependent on the existence of fact which he assert must prove that those facts
exists" and in this regard the initial burden lies upon the prosecution, but the respondent/
defense side is also under obligation to bring evidence on record qua their pleas,
therefore, it was necessary to call Binyamin, DIG Operations, ICT as a witness or
reporters of Daily Jang newspaper, Nawa-i-Waqt newspaper or Daily Subah newspaper,
but no such effort has been made by the defense side for the reasons best known to them.
It has usually been observed from general conduct of the senior police officers that they
do not participate in the investigation, but subsequently take credit and same has been

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observed from this case, where Binyamin/ DIG got published some news in the newspaper
referred by the defense side regarding recovery of alleged abductee but not a single news
discloses that the alleged abductee was recovered from Peshawar, even the entire police
record is silent to that extent. The respondents/accused have been confronted with this
aspect to the CWs/police officials who were unanimous that DIG Binyamin has never
investigated this matter nor any JIT conducted raid for recovery of alleged abductee and
they remained consistent to this aspect, hence the view taken by the trial Court regarding
news items on the strength of statements of CW-1 and CW-4 was wrongly conceived as
both these witnesses have denied this factum in the following manner:
"It is not in my knowledge that a news item was published in the newspaper Jang dated
3.10.2009 that the abductee Aamir Shahzad was recovered from Peshawar by a
police party of Islamabad headed by Binyamin DIG Islamabad. It is not in my
knowledge that the abductee Aamir Shahzad Cheema was found roaming in the
area of Police Station Baharipura Peshawar from where he was taken by police of
Police Station Baharipura and shifted him to Police Station Baharipura".
All these aspects clearly establish that CW-1 and CW-4 had no knowledge of news items
or press clipping and it is not the duty of police witness to answer a publication/news
items in any manner.
39. The trial Court has heavily placed its reliance upon press clippings/news items on
the touchstone of PLD 1998 SC 388 (Muhtarma Benazir Bhutto v. Farooq Almad Khan
Leghari and others), which in fact relates to a different proposition, which is as under:
(LXXVII) Press Clippings---
"Press Clippings---Legal Status---Contention that reportings from foreign and local
newspapers, should not be relied upon as their authenticity cannot be vouchsafed
and mostly one side version of incidents is described therein---Supreme Court is
not impressed by his contentions for reason that presently we are in era where
journalism has also taken great strides in the field of investigative reporting and
general impression is that such reports are made after proper verification of facts
and figures from reliable and dependable sources and relevant quarters -
Contention repelled."
(LXXXI) Press Clippings---
"Press Clippings---Legal Status---In the present day media revolution, accessibility and
investigative nature of reporting, unless report is immediately contradicted or is
palpably false and is contradicted by some similar contemporaneous reports,
Courts and Tribunals and persons, who are not required to form an opinion on the
basis of strictly proved evidence as required by law of evidence, can rely upon
such reports."
We have also considered the other judgment relied upon by the learned trial Court i.e.
PLD 1976 SC 57 (Islamic Republic of Pakistan v. Abdul Wali Khan), whereby it has been
settled that:
(a) Evidence Act (I of 1872)
----"S. 3---Newspaper---Reports of contemporaneous events in news papers-Admissible
in evidence, particularly when such events of local interest or of such public nature
as would be generally known throughout community and testimony of eye-witness
not available---Person not availing of opportunity to contradict or question truth-
fulness of statement attributed to him and widely published in news papers-Cannot

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complain of use of such publication against him such user, held, not hit by rule of
hearsay. It cannot be denied that so far as newspaper reports of contemporaneous
events are concerned, they may be admissible, particularly where they happen to
be events of local interest or of such a public nature as would be generally known
throughout the community and testimony of an eye-witness is not readily available.
The contemporary newspaper account may well be admitted in evidence in such
circumstances as has often been done by Courts in the United States of America
not because they are 'business records' or 'ancient documents' but because they
may well be treated as a trustworthy contemporaneous account of events or
happenings which took place a long time ago or in a foreign country which cannot
easily be proved by direct ocular oral testimony. Thus, if a person does not avail of
the opportunity to contradict or question the truthfulness of the statement attributed
to him and widely published in newspapers he cannot complain if that publication
is used against him. Such an user would not be hit by the rule of hearsay."
(v) Evidence Act (I of 1872)
"Ss. 35 & 21---Press Notes and White Paper issued by Government regarding certain
incidents in country---Not such official records as prove themselves or presumed
to be factually true-Such documents bind Government as admissions but could not
be used against a third party."
40. Likewise, the learned trial Court has also relied upon judgment reported as PLD
1993 SC 473 (Mian Muhammad Nawaz Sharif v. President of Pakistan), wherein it has
been held that:
"Evidence--Press reports--Evidentiary value:
It is true that Press reports are not to be accepted as proof of facts stated therein but
where such reports were not contradicted by the concerned authority or person at
the relevant time and are subsequently relied by either side in a case, these may be
taken into consideration for forming an opinion generally as to the prevailing state
of affairs at the relevant time."
It has been observed from the aforementioned judgment that the evidentiary value of press
report has been discussed by the apex Court after the removal of Mian Muhammad Nawaz
Sharif from the office of Prime Minister on the issue related to resignation of MNAs,
which is as under:
"The resignations produced before us are to be considered in the wake of events which
preceded the dissolution of National Assembly on 18-4-1993. Both sides have filed
large number of press cuttings and relied on them to show the prevailing political
climate in the country during pre-dissolution period. It is true that press reports are
not to be accepted as proof of facts stated therein but where such reports were not
contradicted by the concerned authority or person at the relevant time and are
subsequently relied by either side in a case, these may be taken into consideration
for forming an opinion generally as to the prevailing state of affairs at the relevant
time. The press reports for the period immediately preceding the dissolution of
National Assembly do show, that elements hostile to petitioner's Government were
being entertained regularly at the President's House and after their meeting at the
Presidency these elements gave the impression that the petitioner's Government
was going to be dissolved very soon. In this background, receipt of these
resignations, addressed to the Speaker of National Assembly, by the President and
not forwarding them to the Speaker, even after passage of considerable time

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appears not only an unusual course but also lends support to the contentions of the
petitioner that these resignations were not given to the President by the members
of National Assembly but only to provide a leverage for bargaining with the
petitioner and for destabilizing the Government of petitioner."
Perusal of the judgments referred supra reveals that the same are related to press reports,
which were taken into account by the apex Court for the purpose to settle a political
question in the cases of Abdul Wali Khan, Muhtarma Benazir Bhutto and Mian
Muhammad Nawaz Sharif supra, wherein the contents have not been denied by the
Government on certain pretext and there is chain of events noted in these cases, like in the
case of Abdul Wali Khan supra, there are reports from Qabul Times, where his speeches
were referred and in some matters the Government's point of view has been published,
although no record has been produced. Similarly, in the case of Mian Muhammad Nawaz
Sharif supra it was settled that the press reports are not to be accepted as proof of facts
stated therein, but where such reports were not contradicted by concerned authority or
person at the relevant time and are subsequently relied upon by either side, these may be
taken into consideration for forming an opinion generally regarding prevailing state of
affairs at the relevant time.
41. The meticulous study of the aforementioned case laws reveals that the same relates
to entirely a different connotation and principle of law, which have no relevancy in this
case, but the trial Court has wrongly appreciated the point of law, which otherwise renders
the impugned judgment as perverse, illegal and based upon wrong appreciation of law,
benefit of which having been extended by the trial Court to the accused persons is
considered to be illegal and nullity in the eye of law. The conduct of the trial Judge seems
to be that he lacks the basic information and knowhow of the admissibility of any
publication of news and press clipping of the media. The learned Trial Court heavily
relied upon these judgments and made basis of acquittal of respondent as referred at Page-
25 of the impugned judgment, but surprisingly the learned Trial Court has not gone
through the judgment reported as 1996 SCMR 1747 (Muhammad Ashraf Tareen v. The
State, etc.) wherein it was held that, "newspaper cuttings in criminal case, cannot be used
either in favour of prosecution or in favour of defence, unless author of the same is
examined in the court as a witness.
42. In view of the case of Muhammad Ashraf Tareen supra, the findings of the learned
Trial Court based in Para-25 of the impugned judgment are declared to be illegal having
no effect and stand excluded, hence the said findings are discarded as the press clippings
could not be relied in criminal cases, especially when no author, editor or reporter of the
said newspaper was called as a witness by the accused side in their favour.
43. The record further reflects that the respondent/accused side has filed an application
on 21.12.2010 for summoning of four witnesses namely (i) Muhammad Fayyaz Khan, the
then S.H.O. Police Station Pahari Pura, (ii) Fazal Sher Khan, S.I. Police Station Pahari
Pura, (iii) Javed Siddique, Resident Editor, Nawa-e-Waqt Newspaper and (iv) Zafar Iqbal,
Management Director of Al-Safa Heights-I, F-11, Islamabad as defence witnesses, which
was allowed by the learned trial Court vide order dated 22.12.2010, whereby the
respondent/ accused side undertook to pay travelling expenses of those witnesses, but on
06.01.2011, the respondents recorded their stance before the learned Trial Court that;
"Accused submit that except bail order dated 22.10.2009, they do not want to produce
any defence evidence. The statement in this regard has been recorded separately in
which they after producing the above said bail order has closed their defence
evidence. To come for final arguments on 10.01.2011."

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The above referred order clearly spells out the adverse inference against the
respondent/accused persons, who intentionally withdrew from their defence evidence
despite the fact that the same was called by the learned Trial Court, hence the adverse
inference in terms of Article 129(g) of the Qanun-e-Shahadat Order, 1984 comes on
record against the respondent/accused. This Court assumes that if those witnesses could
have been summoned, they would not support the case of respondent/accused, therefore,
the defence version on the basis of Mark 'A' to Mark 'D' relating to newspaper
clippings/items lost their evidentiary value.
44. We are of the view that the facts and the law have not been appreciated in a manner
required in such type of cases, especially when the abduction is proved from record and
even wrongful confinement is apparent as subsequent to the registration of FIR, the
alleged abductee i.e. PW-4 Ch. Aamir Shahzad Cheema was recovered handcuffed on the
pointation of accused Aamir Rehman from Flat No.5, Al-Safa Heights, F-11 Markaz,
Islamabad in presence of accused Makki and Alam Sher.
45. The offence under section 365-A, P.P.C. abduction or kidnapping for ransom has
been mentioned in section 6(2)(e) of the Anti-Terrorism Act, 1997, whereby in order to
prove this offence, it is necessary for the prosecution to prove that such offence was
committed with design or purpose referred in Section 6 of the ATA, 1997, in which
allegation made in the FIR, material collected, surrounding circumstances, intention and
mens rea has to be considered for the purpose of culminating into intimidation, awe, fear
and insecurity in the public or society. Reliance is placed upon 2017 PCr.LJ 505 (Shah
Sim Khan v. The State), PLD 2016 SC 1 (Shahbaz Khan alias Tippu v. Special Judge Anti
Terrorism Court 3 Lahore), PLD 2020 SC 61 (Ghulam Hussain v. The State). However, in
this case the element of insecurity in a general public or a society has not been reflected
from the evidence collected by the prosecution or brought by the appellant side, even the
evidence does not reflect that the requirements laid down in the case of Ghulam Hussain
supra are met.
46. We have considered all these aspects in detail with the element of fear in society or
public at large with reference to the concept of sections 6 and 7 of the ATA, 1997, which
is missing, even the unknown caller who asked for ransom amount was not identified nor
the ransom demanded was proved independently, but on the other side the simple
abduction in terms of section 365, P.P.C. with intent to cause that person "to be secretly
and wrongfully confined", has been proved on record which has been justified from the
recovery of alleged abductee PW-4 Aamir Shahzad from Flat No.5, Al Safa Heights, F-11
Markaz, Islamabad and in such situation the Apex Court while deciding the matter in case
reported as 2009 SCMR 558 (Shahid alias Kaloo v. The State) has converted the offence
under section 365-A, P.P.C. to section 365, P.P.C. only as doubt emerges to the extent of
ransom in the following manner:
7. ..there is some doubt as to whether or not any demand of ransom was made from the
complainant the benefit of which must be given, to him. Consequently, the offence
committed by the appellant as well as co-convict Asif would be covered under
section 365, P.P.C. viz. abduction simpliciter for which the maximum punishment
is seven years.
47. The view rendered by the Apex Court while appreciating the facts on record
resulted into new situation that the prosecution has successfully proved the charge of
abduction as well as of wrongful confinement or secretly confining the appellant in Flat
No.5 Al-Safa Heights, F-11 Markaz, Islamabad by the respondents/accused Muhammad
Makki, Alam Sher and Aamir Rehman. Hence, they are held guilty of the charge of
offence under section 365, P.P.C. and liable to be convicted.

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48. It is the duty of appellate Court to consider the evidence on the touchstone of
principle of law and where the trial Court has committed serious illegality on the basis of
wrong appreciation of law and facts, the appellate court is empowered to rectify those
mistakes, although in such eventuality cases would have to be remanded to the trial Court
to rectify such discrepancies as highlighted in 2017 MLD 1981 (Ansar Ali v. State),
whereby the Hon'ble High Court held that the case was registered in the year 2009 and it
was not justified to remand the case only to rectify discrepancy, rather the High Court had
taken into account the evidence together with the discrepancies and convicted the accused
person on the charges of offence under Sections 365-A, 392, 411, P.P.C. and Section 7
ATA, 1997. Similarly, we are also fortified with the view and approach adopted by the
apex Court in case reported as PLD 2019 SC 261 (Khadija Siddiqui v. Shah Hussain),
whereby the apex Court has held that:
"18. We have noticed that some downright misreading of the evidence had been
committed by the High Court and for some of the reasons prevailing with it the
High Court had ignored many critical aspects of the case available in the evidence
brought on the record. The exercise of appreciation of evidence in this case by the
High Court has, thus, been found by us to be laconic and misreading and non-
reading of the record by the High Court has been found by us to have led the said
Court into a serious error of judgment occasioning failure of justice and
clamouring for interference in the matter by this Court. A judgment of acquittal
suffering from serious misreading or non-reading of the evidence materially
affecting the final outcome of the case is nothing short of being perverse and,
hence, not immune from interference. Apart from that the High Court ought to
have appreciated that it was only seized of revisions petitions and not an appeal
and in exercise of its revisional jurisdiction the High Court ought to have confined
itself to correctness legality, regularity or propriety of the proceedings of the courts
below rather than embarking upon a full-fledged reappraisal of the evidence, an
exercise fit for appellate jurisdiction."
49. While considering the entire background as well as the evidence in the light of case
laws discussed above, it has been proved that the learned trial Court has committed a
serious error while not relying upon the evidence of CW-1 to CW-4, who are official
witnesses of recovery of ransom amount, arrest of accused Aamir Rehman, who disclosed
the place of recovery of the alleged abductee Ch. Aamir Shahzad and as such all the CWs
are independent witnesses having no grudge or motive to falsely implicate the respondents
in this case. The prosecution witnesses remained consistent upon the recovery of appellant
(abductee), weapons used in the said crime and ropes with which appellant was tied up in
flat No.5, Al Safa Height, F-11 Markaz, Islamabad, whose key was recovered from the
principal accused Muhammad Makki. Similarly the trial Court has relied upon the press
clipping contrary to the provisions of Qanun-e-Shahadat Order, 1984 and even
disregarded the case law settled by the Apex Court in the case of Muhammad Ashraf
Tareen supra, whereby newspaper cutting in criminal case cannot be used either in favour
of prosecution or in favour of defense, unless author of the same is examined in the Court
as witness, such blatant illegality by the trial Court resulted into the judgment of acquittal
of the respondents, hence, this Court is fully competent to reappraise the evidence, to pass
the judgment of conviction while exercising the powers under section 366 read with
section 376, Cr.P.C.
50. In view of above, instant criminal appeal is ALLOWED and judgment dated
18.01.2011, passed by the learned Special Judge, Anti Terrorism Court Rawalpindi/
Islamabad is hereby SET ASIDE and respondents namely Muhammad Makki, Alam Sher
and Amir Rehman are hereby CONVICTED and sentenced to undergo R.I. for 07 years

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with fine of Rs.5,00,000/- each to be paid to the appellant/Aamir Shahzad Cheema. In

default of payment of fine, respondents/ accused shall further undergo simple
imprisonment for 06 months. They be taken into custody and sent to jail to serve their
remaining sentence. All the accused persons are also entitled to benefit of section 382-B,
Cr.P.C., which is extended. However, the acquittal of accused Abdul Ghafoor is
MAINTAINED as no role or participation to his extent has been seen in the entire case
nor any evidence by the prosecution has been brought on record. The status of
Muhammad Adnan, who remained as (P.O.) shall be the same as referred by the Learned
Trial Court.
MH/152/Isl. Appeal allowed.

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;

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