2017 PLP 278 (YLRN)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Zeeshan son of Asmat Khan, caste Mehmand, resident of near Lohay Wali Puli, Katchi Abadi, Badami Bagh, Lahore (Crl. Appeal No.1435/2012), Abdul Waheed son of Ishaq, caste Zakha Khail, resident of Landi Kotal, Khyber Agency and House No.834, Street No.12, Phase-VI, Hayat Abad, Peshawar (Crl. Appeal No.1425/2012), Sajid Ali son of Muhammad Ishaq, caste Zakha Khail, resident of Landi Kotal, Khyber Agency and House No.834, Street No.12, Phase-VI, Hayat Abad, Peshawar (Crl. Appeal No.1427/2012), Abdul Basit son of Muhammad Ishaq, caste Zakha Khail, resident of Landi Kotal, Khyber Agency and House No.834, Street No.12, Phase-VI, Hayat Abad, Peshawar (Crl. Appeal No.1437/2012) and Abdullah son of Muhammad Ishaq, caste Zakha Khail, resident of Landi Kotal, Khyber Agency and House No.834, Street No.12, Phase-VI, Hayat Abad, Peshawar (Crl. Appeal No.1438/2012)/appellants were involved in case FIR No.434/2011, dated 14.05.2011, offence under section 365A, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997, Police Station Shad Bagh, Lahore, and were tried by learned Judge, Anti-Terrorism Court No.III, Lahore. The learned trial court seized with the matter in terms of judgment dated 16.07.2012 convicted and sentenced the appellants as under:- Sr. Name of appellant Conviction/sentence

1. Zeshan > Under Section 365-A/149, P.P.C., sentenced to death with forfeiture of property. > Under Section 7(e) of the Anti-Terrorism Act, 1997, read with section 149, P.P.C., sentenced to death with forfeiture of property.

2. Abdul Waheed > Under Section 365-A/149, P.P.C., sentenced to imprisonment for life. > Under Section 7(e) of the Anti-Terrorism Act, 1997, read with Section 149, P.P.C., sentenced to imprisonment for life. > Both the sentences were directed to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant.

3. Sajid Ali > Under Section 365-A/149, P.P.C., sentenced to imprisonment for life. > Under Section 7(e) of the AntiTerrorism Act, 1997, read with Section 149, P.P.C., sentenced to imprisonment for life. > Both the sentences were directed to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant.

4. Abdul Basit > Under Section 365-A/149, P.P.C., sentenced to imprisonment for life., > Under Section 7(e) of the Anti-Terrorism Act, 1997, read with Section 149, P.P.C., sentenced to imprisonment for life. > Both the sentences were directed to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant.

5. Abdullah > Under Section 365-A/149, P.P.C, sentenced to imprisonment for life. > Under Section 7(e) of the Anti-Terrorism Act, 1997, read with Section 149, P.P.C., sentenced to imprisonment for life. > Both the sentences were directed to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant.

2. Zeshan, appellant has assailed his conviction and sentence through filing Crl. Appeal No.1435/2012, Abdul Waheed, appellant filed Crl. Appeal No.1425/2012, Sajid Ali, appellant preferred Crl. Appeal No.1427/2012, Abdul Basit, appellant filed Crl. Appeal No.1437/2012 while Abdullah, appellant, challenged his conviction and sentence through filing Crl. Appeal No.1438/2012. The learned trial court forwarded Capital Sentence Reference No.31-T/2012 for confirmation of death sentence inflicted upon Zeeshan/convict. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.

3. Prosecution story as portrayed in the FIR (Exh.PH/1) lodged on the written application (Exh.PH) of Sher Afzal son of Fazal Hannan (PW-10) is that he is resident of House No.17, Muhammad Din Park near Bilal Masjid, Shad Bagh. On 13.05.2011 at 4:00 p.m. son of the complainant namely Umair Khan aged 17 years went for household work while riding on motorcycle HONDA-125 bearing registration No.LEK/7559, however he didn't turn up. At 11:00/12:00 a.m. (midnight) the complainant received a telephonic call from phone No.042-38713896 that Umair Khan was with them, who will return home in the morning and thereafter the call was disconnected. The complainant dialed the same number and he came to know that it was allotted to a P.C.O. According to complainant his son had three mobile phones: 0333-4919715, 0323-8441872 and 0308-4609409, however, his whereabouts could not be traced out. The complainant raised suspicion that some unknown persons had kidnapped his son.

4. Abdul Majeed, ASI along with other police officials was present at Tokay Wala Chowk on patrol duty where the complainant presented his application and after endorsing police karvai the same was transmitted to police station for registration of formal FIR. Thereafter the investigation was entrusted to Mujahid Hussain, Inspector (PW-14), who visited house of the complainant and prepared rough site plan (Exh.PV). On 26.05.2011, the complainant appeared before the Investigating Officer and informed him regarding payment of ransom amount of Rs.5,00,000/- to the accused, who recorded his statement under section 161, Cr.P.C. in this regard. On 30.05.2011 the Investigating Officer procured call data of the cell phone numbers vide recovery memo Exh.PK and Exh.PK/1-8, attested by the prosecution witnesses. On 31.05.2011 Ameer Muhammad (PW-3) and Abdul Harneed (PW-4) after tracing out the location of mobile phone number of the accused, went to Hayat Abad, Peshawar where they met with DSP, City Circle and on their information, Akhtar Gull, S.I. (PW-5 ) along with other police officials conducted raid at House No.834, Street No.12 from where Umair/abductee was recovered. From the house Zeshan, Abdul Waheed, Sajid Ali, Abdul Basit and Abdullah/accused were arrested and they were taken to police station where PW-5 incorporated rupt No.19 in this regard (Exh.PA). Thereafter, the investigation was entrusted to Iftikhar Rasool Bajwa, Inspector (PW-16), who on 01.06.2011 recorded statements of the complainant and Umair Khan/complainant under Section 161, Cr.P.C. After adopting all codal/legal formalities, the Investigating Officer went to Hayat Abad and formally arrested the appellants in this case and brought them at Lahore. He obtained their physical remand from the court of competent jurisdiction. During the course of interrogation, in pursuance of disclosure made by Zeeshan, appellant on 23.06.2011, the Investigating Officer conducted raid at Rana Town Scheme No. 1, and recovered motorcycle bearing registration No.LEK-09-7559 (P-15) belonging to the abductee and two strings (P-16/1-2), which were taken into possession vide recovery memo Exh.PU. In pursuance of disclosure made by Abdul Waheed, Sajid Ali, Abdul Basit and Abdullah appellants regarding recovery, the Investigating Officer brought them at Hayat Abad, Peshawar. Firstly, Abdullah appellant led to the recovery of part of ransom amount of Rs.95,000/-, nineteen notes each denomination of Rs. 5,000/- (P-8/119) along with Ati-van medicine (P-9/1-4), two pieces of string (P11/1-2), one JAZZ SIM Card (0302-8351551)/P-10, which the Investigating Officer took into possession vide recovery memo Exh.PQ. Thereafter, Sajid Ali, appellant, led to the recovery of part of ransom amount of Rs.85,000/- consisting 17 notes denomination of Rs.5,000/-, (P-12/1-17), which were taken into possession vide recovery memo Exh.PR. Abdul Waheed appellant led to the recovery of part of ransom amount of Rs.50,000/- 10 notes each denomination of Rs. 5,000/- (P-13/1-10), which the Investigating Officer secured vide recovery memo Exh.PS. Then Abdul Basit, appellant, led to the recovery of part of ransom amount of Rs.60,000/- viz. 12 notes each denomination of Rs.5,000/- (P-14/1-12), which were secured vide recovery memo Exh.PT. The Investigating Officer prepared rough site plan of the place of recovery (Exh.PZ). On reaching the police station the Investigating Officer, handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned. On 29.06.2011, the complainant presented CD(P-1) regarding call data and registration book of motorcycle bearing registration No.LEK/7559, which the Investigating Officer secured vide recovery Exh.PL. On 03.07.2011 Zeeshan appellant, after making disclosure led to the recovery of part of ransom amount of Rs.20,000/- (P-5/1-4) and a pistol .30-bore (P-3) along with six live bullets (P-4/1-6), which the Investigating Officer took into possession vide recovery memo Exh.PM. Zulfiqar Ali, Property Dealer (PW-13 ) appeared before the Investigating Officer and produced rent deed (P-6) regarding the house taken on rent by Muhammad Ishaq accused (since P.O.), and the Investigating Officer took the same along photocopy of page of register of stamp vendor (P-7) into possession vide recovery memo Exh.PP.

5. Having found the appellants guilty, the Investigating Officer prepared report under section 173, Cr.P.C. and sent the same to the court of competent jurisdiction. On 16.09.2011, the learned trial court formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. Prosecution in support of its version produced as many as sixteen (16) prosecution witnesses while two (2) court witnesses also made their statements.

6. Sher Afzal (PW-10) is the complainant of the case while Umair Sher Afzal (PW-1) is the victim/abductee. Rehmat Ali (PW-2) had lastly seen the abductee in the company of accused while Ameer Muhammad (PW-3) and Abdul Hameed (PW-4) are the witnesses of recovery of abductee. Ghulam Abbas, S.I. (PW-6) had chalked out formal FIR. Akhtar Gull, S.I. (PW-5) had recovered the abductee and arrested the appellants. Investigation in this case was conducted by Mujahid Hussain Inspector (PW-15) and Iftikhar Rasool Bajwa, Inspector (PW-16). Statements of rest of the prosecution witnesses are formal in nature.

7. On 24.01.2011, learned Public Prosecutor gave up Mushtaq Ahmed 12046/HC, PW, being unnecessary. Vide his statement recorded on 01.03.2012, learned Public Prosecutor further gave up Riasat Ali, PW while Muhammad Asif and Imran Hashmi, PWs, were given up on 16.04.2012. On 28.05.2012, learned Public Prosecutor closed the prosecution evidence.

8. The appellants were also examined in terms of Section 342, Cr.P.C; wherein they opted not to appear as their own witnesses in terms of Section 340(2), Cr. P. C in disproof of allegations levelled against them in the prosecution evidence. They also opted not to adduce evidence in their defence. While replying to the question why this case against him and why the PWs deposed against him, Zeeshan appellant made the following deposition:-- "I was falsely implicated in this case because the complainant (Haji Sher Afzal) was unhappy with my friendship with his son (abductee) namely Umair Sher Afzal Khan and father I was involved in this case due to my relationship with accused Jamil (since P.O.) because he is my cousin." In response to this question, Abdullah appellant deposed as under:-- "I am innocent. Being real sons of Ishaq (since PO) the complainant Sher Afzal P.W. along with Iftikhar Rasool Bajwa Inspector/I.O. maliciously involved Ishaq (since P.O.) the father of the accused and his sons with the connivance of each other." While replying to this specific question Abdul Waheed, Abdul Basit and Sajid Ali, appellants, deposed in line with the statement of Abdullah, appellant.

9. Learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellants in the afore-stated terms.

10. Learned counsel for the appellants while advancing his arguments submitted that the impugned judgment has been recorded by the learned trial court in a slipshod manner without adverting to real facts of the case. Learned counsel forcefully argued that the FIR was lodged with a delay of one day for which no plausible explanation has been rendered by the prosecution. Further contended that the story narrated by Rehmat Ali (PW-2) qua lastly seen the abductee in the company of the appellants does not seem plausible. Learned counsel forcefully argued that there is no witness, who had seen the process of handing over ransom amount to the appellants, therefore, the alleged recovery of ransom amount from the appellants is fake and fictitious, which has been planted by the prosecution in order to strengthen its case. It was argued that as a matter of fact Zeeshan appellant was having friendship with Umair Khan abductee, which was disliked by the complainant and he by cooking a false/frivolous story, by joining hands with the police lodged the instant case. Learned counsel representing Abdul Waheed, Sajid Ali, Abdul Basit and Abdullah stated that they were not instrumental in kidnapping the abductee. Next argued that the JAZZ Phone SIM recovered by the Investigating Officer was not in the ownership of any of the appellants. It was finally argued that as per prosecution own version the abductee was rescued safe and sound and during detention period, he was not inflicted any bodily injury coupled with the fact that the complainant has forgiven the appellants in the name of Allah (almighty), therefore, to the extent of Zeeshan appellant at the most it is not a case of capital punishment and prayed for reduction in his sentence.

11. Contrarily, learned Deputy Prosecutor General vehemently opposed the contentions raised by learned counsel for the appellants with the submissions that though the appellants were not named in the crime report, however, subsequently they were rightly brought in. It was vehemently argued that through call data, location of the appellants was traced out and thereafter the police of Province of Khyber Pakhtun Khawa conducted raid and not only recovered the abductee rather also arrested all the appellants from the spot. Learned Law Officer vigorously argued that in their statements the prosecution witnesses including the abductee fully involved the appellants in the instant occurrence by giving minute details and despite lengthy cross-examination nothing adverse to the prosecution version could be brought on record. It was further argued that the appellants had received ransom amount of Rs.5,00,000/- and after their arrest, ransom amount, pistol, as well as, motorcycle of the abductee were recovered on their pointation, which squarely establishes their link with the occurrence. It was vehemently argued that the complainant, abductee and other prosecution witnesses had no ill-will to falsely involve the appellants in the instant case. Moreover, during the course of investigation, the appellants were found guilty as such their names were placed in column No.3 of the report prepared under Section 173, Cr.P.C. It was lastly argued that the learned trial court while attending each and every aspect of the case; thereby advancing very cogent reasons, has convicted the appellants and inflicted sentence upon them which is in exact proportionate to their respective role, as such they do not deserve any leniency.

12. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants, as well as, learned Deputy Prosecutor General.

13. There is no second cavil to this proposition that the instant occurrence had taken place within the heart of City, whereas father of Umair Khan/abductee had lodged the crime report with all the details mentioned with exactitude. As far as the time of abduction and lodging of report is concerned, it is an admitted fact that it had taken place on 13.05.2011 at 4:00 p.m. while the FIR was lodged on the following day at 11:45 a.m. Delay in lodging the crime report in normal circumstances is considered to be fatal but in such like cases of kidnapping for ransom, it always depends upon the prevailing circumstances and whenever there is apparent danger to the life of the abductee or threatening instructions extended by the accused persons, it seems reasonable not to report the matter to the police to avoid any mis-happening. Therefore, the delay in lodging the crime report in this particular case seems to be quite natural and straightway appeals to a prudent mind.

14. As per prosecution version in the instant case, on 13.05.2011 at 4:00 p.m. Umair Khan son of the complainant young boy aged about 17 years, went outside for some work while riding on motorcycle HONDA-125 bearing registration No.LEK/7559 and he did not turn up. Thereafter, the complainant received call at his mobile phone and subsequently demand of ransom amount was made as a consequence whereof the complainant made payment of Rs.5,00,000/- to the accused, however, his son was not released. The accused persons remained calling the complainant and after tracing the location from call data, Ameer Muhammad (PW-3) and Abdul Hameed (PW-4) close relatives of the complainant reached Peshawar and contacted the local police of province of Khyber Pakhtunkhawa. Subsequently, a police party of Police Station Tatara, Peshawar, under the supervision of Akhtar Gull (PW-5) conducted raid and in the presence of Ameer Muhammad (PW-3) and Abdul Hameed (PW-4) arrested the appellants, as well as, recovered Umair Khan abductee. While appearing in the witness box both PW-3 and PW-4, as well as, Akhtar Gull, S.I. (PW-5) fully corroborated each other with regard to raid at House No.834, Street No.12, Hayat Abad, Peshawar, recovery of the abductee from the appellants and their arrest. Moreover, Umair Khan abductee (PW-1) while appearing in the witness box gave detailed pen picture of the prosecution version with regard to his abduction, detention at Sheikhupura, transportation towards Peshawar, as well as, his recovery from there on 31.05.2011 by the Police of Khyber Pakhtunkhawa. Perusal of his statement reveals that he had narrated the whole story in a very natural style by describing role of each and every appellant with minute details and even it cannot be assumed by any stretch of imagination that he had made any sort of effect to exaggerate the prosecution story in any manner whatsoever. He was cross-examination at length by the defence yet he remained consistent with the prosecution version and the defence absolutely failed to shatter his testimony.

15. Iftikhar Rasool Bajwa, Inspector (PW-16)/Investigating Officer had formally arrested the appellants in the instant case and obtained their physical remand. During the course of interrogation, all the appellants, on their respective disclosure led to the recovery of their part out of ransom amount received by them, which was taken into possession by the Investigating Officer. Moreover, Zeeshan appellant had led to the recovery of motorcycle HONDA-125 bearing registration No.LEK/7559 belonging to the abductee, as well as, pistol .30-bore (P-3), which establish their link with the occurrence.

16. During the period of abduction/ detention of Umair Khan (PW-1), the appellants remained in contact with the complainant through mobile number and call data, as well as, translation of calls by Bakht Munir, Lecturer in Pashto, Institute of Languages Oriental College, University of the Punjab, Lahore, who appeared as PW-7, describes the whole conversation between the complainant and the appellants.

17. As far as defence plea taken by Zeeshan appellant while recording his statement under section 342, Cr.P.C. qua his false implication in the instant case is concerned, the same is not substantiated from the material available on record. Even neither any defence evidence was adduced in this regard nor the appellant had himself opted to appear as his own witness in terms of section 340(2), Cr.P.C. to substantiate that due to his friendship with the abductee, the complainant had involved him in the instant case. Hence, the same could only be termed as an afterthought story.

18. Fact remains that the prosecution witnesses including abductee and police officials had no ill-will to falsely involve the appellants in the instant case without any rhyme or reason. Fact also remains that the Investigating Officer while concluding the investigation had found the appellants guilty as such their names were placed in column No.3 of the report prepared under section 173, Cr.P.C. This Court is conscious of the fact that no role qua abduction was assigned to Abdul Waheed, Sajid Ali, Abdul Basit and Abdullah, appellants, however, fact remains that the abductee was recovered from them. Moreover, it is settled principle of law that in a case of kidnapping every member of gang involved in abducting any person is equally and vicariously liable and in such like cases specific role of accused is not the prime consideration, if it is established that the accused was a member of an organized gang involved in such like activities.

19. Nutshell of the above discussion is that the prosecution through leading cogent and confidence inspiring evidence, which is coming from the mouth of most natural witnesses, the recovery of the abductee from the appellants, as well as, recovery of part of ransom amount, strings used for tying hands of the abductee, motorcycle belonging to the abductee and pistol, proved its case against the appellants to the hilt, therefore, the learned trial court was rightly justified in recording conviction against the appellants under section 365-A, P.P.C., as well as, under section 7 (e) of the Anti-Terrorism Act, 1997, and sentencing Abdul Waheed, Sajid Ali, Abdul Basit and Abdullah, appellants to imprisonment for life.

20. As far as the quantum of sentence to the extent of Zeeshan appellant in this case is concerned, the same is of pivotal importance, which requires re-evaluation. While scrutinizing the prosecution evidence on the touchstone of the arguments advanced by learned counsel for both sides, we have observed certain aspects, which if discussed would help in determination of the quantum of sentence. The same are given in the ensuing paragraphs. > There is no denial to this fact that nevertheless after abduction Umair Khan/abductee (PW-1) remained with the accused for eighteen days, however, it is not the prosecution case that he was inflicted any bodily injury and as per record available on file, he was released scot-free. > During the course of hearing, the complainant appeared before this Court and stated that he had forgiven the appellants in the name of Allah (almighty). All these facts when put side by side persuade this Court to believe that the case of Zeeshan appellant falls within the ambit of mitigation. Moreover, bare perusal of the statute with reference to Section 365-A, P.P.C., as well as, Section 7(e) of the Anti-Terrorism Act, 1997, nevertheless provide normal sentence of death, however, the life imprisonment is also mentioned as alternative sentence and the matter has been left with the courts to determine that which penalty to be inflicted keeping in view the peculiar facts of the case. Analogy is drawn from the ratio decidendi of august Supreme Court of Pakistan in the case of Muhammad Sharif v. The State (PLD 2009 Supreme Court 709) wherein it was held as under:-- "Life as we know in common parlance is the blessing of God. It is considered to be "the immediate gift of God and a right inherited by nature in every individual"

1. It means the period which life lasts or the period from birth to death. Our Constitution bestows a fundamental right under Article 9 that "No person shall be deprived of life or liberty save in accordance with law." It starts with "no" which means "not any, not at all."

2. It clearly signifies a prohibition and forbids the deprivation of life of any person." In the case of Javed Iqbal and another v. The State (2012 SCMR 140) august Supreme Court of Pakistan while dealing this question had held as under:-- "

S. 365-A

Abduction for ransom

Sentence-- Principle

If prosecution proves its case, the court is bound to award death penalty and in case of extenuating circumstances, life imprisonment..."

21. When facts of the case are scrutinized on the touchstone of dictum of law referred to above, we have arrived at the irresistable conclusion that to meet the ends of justice, for safe administration of criminal justice, it would be justified if the sentence of death inflicted upon Zeeshan appellant is converted into imprisonment for life.

22. In sequel to above discussion, Crl. Appeal No.1435/2012 filed by Zeeshan appellant, Crl. Appeal No.1425/2012 filed by Abdul Waheed, appellant, Crl. Appeal No.1427/2012 filed by Sajid Ali, appellant, Crl. Appeal No.1437/2012 filed by Abdul Basit, appellant and Crl. Appeal No.1438/2012 filed by Abdullah, appellant, are dismissed while modifying the sentence of death inflicted upon Zeeshan appellant into imprisonment for life under section 365-A, P.P.C., as well as, under section 7(e) of the Anti-Terrorism Act, 1997. Both the sentences are directed to run concurrently and benefit of section 382-B, Cr.P.C. is also extended in favour of Zeeshan appellant. However, the order of confiscation/forfeiture of property of Zeeshan, appellant, shall remain intact as ordained in the judgment of the learned trial court.

23. Capital Sentence Reference No.31-T/2012 fails, which is answered in the NEGATIVE. Death sentence inflicted upon Zeeshan, convict is NOT CONFIRMED. HBT/Z-11/L Sentence reduced.