SHC dismisses appeal of two convicts in child kidnapping and murder case

KARACHI: The Sindh High Court has dismissed the appeal of two convicts against their conviction in kidnapping an 11-year-boy for extorting money from his uncle and later burning his body when he died during their captivity.

Danish Maqbool and Moula Bux, alias Mouli, were sentenced to life imprisonment by an anti-terrorism court (ATC) for kidnapping the boy for extorting money from his uncle in December 2020 and later burning his body when he died during captivity in the Lyari area.

According to the prosecution, Bux disclosed during interrogation that he kidnapped the boy along with his accomplices Sarban, Saud, Danish Maqbool and two or three other friends of Saud for claiming money of Rs150,000 or Rs200,000 from the boy’s uncle.

The prosecution said the appellants and their accomplices kept the boy at the abandoned house of an aunt of Danish’s wife situated in Gulshan-e-Mazdoor where he died due to fear. The prosecution alleged that the appellants later burnt the body of the boy which was found near a slaughter house in the Baghdadi area on December 20, 2020.

Later, co-accused Sarban was killed in a police encounter while the case against Saud was kept on dormant file.

A counsel submitted that one of the appellants, Danish, was not present in Karachi at the time of the incident and his name was inserted at a later stage on alleged statement of Bux, which was not permissible under the law.

The counsel said there was no eyewitness of the alleged incident and the prosecution failed to prove its case against the appellants as Bux retracted from his confessional statement and the case of prosecution suffered from reasonable doubts and it was based on surmises and conjectures.

An assistant prosecutor general supported the impugned judgment and argued that the chain of evidence duly connected the appellants with the offence. He submitted that Bux recorded confessional statement before a judicial magistrate which itself connected the appellants with the offence and requested the court to dismiss the appeal.

A division bench of the SHC comprising Justice Adnan Iqbal Chaudhry and Justice Tasneem Sultana after hearing the arguments and perusal of the evidence observed that the material brought on record showed that it was undeniably an unwitnessed incident but the prosecution case was based on circumstanial evidence, judicial confession of Bux, recovery of incriminating articles and scientific evidence, which had to be reckoned with.

The bench observed that a maternal uncle of the deceased boy had confirmed a prior money dispute of Bux and Sarban with Arshad, the other maternal uncle of the boy.

The SHC observed that the confessional statement of Bux was voluntary and true, and conviction could be based on his confession. The high court observed that the judicial confession of the appellant found robust corroboration in the scientific evidence produced by the prosecution.

The SHC observed that the confessional statement of Bux reflected that he enticed the boy on the score of getting clothes, then both the appellants took the deceased on a motorcycle to Lea Market where the child was handed over to other co-accused.

The SHC observed that the confessional statement reflected that on account of a money dispute with maternal uncle of deceased Abdul Rehman, he was abducted and kept in captivity at the house of a relative of Danish and subsequently the boy died during captivity.

The high court observed that no call note, demand or intention to extort money was ever demonstrated by the prosecution, therefore, the evidence available on record did not constitute the offence under the section 365-A of the Pakistan Penal Code (PPC), which was kidnapping for ransom.

The bench observed that the case did not fall within the purview of the Anti-Terrorism Act (ATA) since, according to the evidence, there was no design, object or intent to cause terror and thus the provisions of ATA did not apply to the offence.

The bench observed that it appeared from the overall appraisal of evidence that the ingredients attracting the Section 6 of the ATA were not made out.

The SHC observed that once the trial had already been conducted by the ATC and the impugned judgment had been placed before the court in appeal, the proceedings could not be rendered void, as the high court, under the Section 423 of the Code of Criminal Procedure, was fully competent to examine the legality, propriety and correctness of the impugned judgment and to pass any order which ought to have been passed by a court of competent jurisdiction.

The bench observed that the prosecution had proved its case against the appellants beyond a reasonable doubt in respect of the section 302, 364-A and 34 of the PPC.

The court modified the conviction and sentence of the appellants under the sections 302 and 364-A read with the section 34 of the PPC, and sentenced them to undergo rigorous imprisonment for life on two counts along with payment of fine of Rs200,000 each for each count as compensation to be paid to the legal heirs of the deceased.