2006 PLP 1257 (SCMR)

ABDUL HAMEED DOGAR, J.

This appeal by leave of this Court is directed against the judgment, dated 1-2-1994 passed by learned Single Judge of High Court of Sindh, Karachi, whereby Criminal Appeal No.236 of 1993 filed by respondent was allowed and he was acquitted.

2. Briefly, stated the case of prosecution is that on 21-6-1993 complainant Hakim Ali lodged F.I.R. No.17 under sections 365-A, 148, 149, 336, 506, P.P.C. and section 13(d) of Arms Ordinance at Police Station Tharoo Shah alleging therein that on 20-5-1992 he along with Munawar Din, Barkat Ali, Khalid Hussain, Mumtaz, Ghulam Shabbir and Muhammad Qasim were working at the "Dora" of wheat crop in land of Muhammad Acharin Deli, Darbello Taluka Kandiaro, District Nausharhro Feroze when dacoits namely, appellant Mooso, accused Wahid Bux, Noor Ahmed, Jaro Suleman, Mohabat, Mutalib, Shabir Ghulam Sarwar, Ali Hassan, Mukhtiar Ahmed, Niaz Hussain, Nabun, Paroo, Mohikum and Budho came there along with 8/10 unidentified persons, duly armed with deadly weapons like kalashnikovs, rifles and guns. They while firing in the air threatened the P.Ws. to sit there and abducted Khalid Hussain, Munawar Din and Barkat Ali. While leaving that place, they told the remaining persons that each of the three abductees would be released on payment of Rs.2,00,000 as ransom. Thereafter, two abductees, namely, Barkat Ali and Munawar Din were got released whereas third abductee, namely, Khalid Hussain was killed by the dacoits as he was trying to escape from the clutches of the dacoits.

3. After usual investigation respondent Moosa was arrested on 29-10-1992 and sent up to face trial before Judge Special Court (Suppression of Terrorist Activities), Sukkur Division Hyderabad Division and Nawabshah.

4. Prosecution in order to prove its case, examined (P.W.1) Hakim Ali, (P.W.2) Muhammad Saddik, (P.W.3) Mumtaz, (P.W.4) Munawaruddin, (P.W.5) Barkat Ali, (P.W.6) Anwar Ali and (P.W.7) Ahmad Din, S.-I. 5.? In his statement recorded under section 342, Cr.P.C. respondent denied the case of prosecution and claimed false implication. He neither examined himself on oath as required under section 340(2), Cr.P.C. nor led any evidence in his defence.

6. On the conclusion of trial, respondent Mooso was convicted and sentenced under section 365-A, P.P.C. to imprisonment for life. However, benefit of section 382-B, P.P.C. was extended to him.

7. Feeling aggrieved, respondent filed Criminal Appeal No.236 of 1993 before learned High Court which was allowed and he was acquitted vide impugned judgment.

8. Leave. to appeal was granted by this Court on 27-6-1994 to reappraise the evidence brought on the record. To secure the attendance of respondent bailable warrant in the sum of Rs.50,000 with one surety. was issued against him.

9. We have heard Dr. Kazi Khalid Ali, Additional A.-G., Sindh for State and Mr. Ghulam Nabi Soomro, learned counsel for respondent and have gone through the record and proceedings of the case in minute particulars.

10. Learned counsel appearing on behalf of appellant vehemently contended that learned High Court erred in acquitting the respondent on the ground that there was nothing on record to show that ransom was either demanded or paid. According to him, though there Was no evidence about payment of ransom but there was sufficient evidence on record that ransom was demanded by the respondent. It was also contended two kidnappees namely Munawaruddin and Barkat Ali who were got released in the encounter between law-enforcing agencies and dacoits have supported the prosecution version and the ingredients of section 365-A, P.P.C. are fully attracted in the instant case. He further contended that impugned judgment of the learned High Court being erroneous, perverse and capricious on facts and law is liable to be set aside and that of the trial Court be restored.

11. On the other hand learned counsel on behalf of the respondent controverted the above contentions and supported the impugned judgment and contended that learned High Court has acquitted respondent after reappraisal of the evidence.

12. Prosecution has fully established its case by bringing on record testimony of complainant Hakim Ali (P.W.1), Mumtaz (P.W.3) and abductees Munawardin (P.W.4) and Barkat Ali (P.W.5) coupled with other circumstantial evidence. Learned High Court has acquitted respondent Mooso on wrong presumption and has not appreciated the evidence properly. Even from the perusal of impugned judgment it is clear that learned Judges of the High Court while discussing the evidence of witnesses have categorically stated that all the above-mentioned witnesses have implicated respondent Mooso in the commission of offence. Learned High Court while discussing the evidence of complainant Hakim Ali (P.W.1) in the impugned judgment has mentioned that respondent Mooso along with Nabu Sahto and others came at the place of occurrence and abducted Khalid Hussain, Barkat Ali and Munawardin and demanded Rs.2,00,000 as ransom to be paid in the "KETI" of Kalhoras. It has been wrongly mentioned that complainant was declared hostile whereas it was not so as per record whereby he was never declared hostile but has fully implicated respondent Mooso and others namely, Wahid Bux, Nooruddin, Jano, Suleman, Muhabat, Mutalib, Shabir, Ghulam Sarwar, Ali Hussain, Mukhtiar, Niyaz Hussain, Naban Bhoro, Paro and 8/10 unidentified persons on the factum of abduction and demand of ransom of Rs.2,00,

000. About P.W.3 Mumtaz and others eye-witnesses it has been mentioned therein that out of dacoits they identified respondent Mooso. Even on the role of abduction learned Division Bench pf High Court has mentioned that complainant Hakim Ali and P.W. Mumtaz have supported the factum of B abduction and also the encounter which took place in between law-enforcing agencies and dacoits during which abductee Khalid Hussain was killed whereas other two namely Munawaruddin and Barkat Ali were got released by police. It is worth-mentioning that complainant, and P.W. Mumtaz and abductees in their respective statements at trial have fully supported the case of prosecution both on the factum of abduction and demand of ransom. At trial even all the P.Ws. have identified respondent Mooso to be one of the culprits for kidnapping and demand of ransom. Since in our opinion the impugned judgment is not sustainable in law as such its concluding paragraph is reproduced below: "Even if the prosecution evidence, is accepted as correct, there is nothing on record to show if ransom money was paid to the appellant. There is nothing on record to show that demand of ransom money was made by the appellant. In the circumstances there was no evidence for conviction of the appellant under section 365-A of P.P.C. It will not be out of context to point out that appreciation of evidence by the trial Court is to be given full weight by an appellate Court for the reasons that the trial Court had the advantage of observing the demeanor of the witness. If the appellate Court is to take a different view then it should give cogent reasons for doing so which fact is lacking in the instant case. The moment the learned Division Bench came to the conclusion that there was sufficient prosecution evidence brought on record then there was no justification of recording his acquittal merely on the ground that neither ransom money was paid nor said demand was made by respondent. This to is it contradiction with the evidence of P.Ws. discussed above. From which it is clear that at the time of abduction a clear demand of ransom of Rs.2,00,000 for release of each abductee was made, which attracted the ingredients of section 365-A, P.P.C. Section 365-A, P.P.C. expressly prescribes that even demand of ransom amount is sufficient to bring the case in its ambit. Learned Division Bench of High Court Sindh while dealing with a case reported as Dhani Bux alias Dhanoo and 2 others v. The State 2000 PCr.LJ 239 convicted and sentenced the accused under section 365-A, P.P.C.; though demand of ransom was made by accused at the time of abduction but ransom amount was not paid as abductee was got released during encounter in between police and kidnappers.

14. One of the ingredients of section 365-A, P.P.C. is simple demand of ransom amount for the release of abductee which is fully attracted in the instant case.

15. Accordingly, we are of the opinion that impugned judgment is not only perverse, arbitrary but is based on misreading, non-appreciation of evidence and is contrary to record. Resultantly, the appeal is allowed and impugned judgment is set aside; the conviction and sentence recorded by the trial Court is restored.

16. In pursuance of Non-bailable warrants issued by this Court respondent Mooso was arrested and remanded to custody. Jail authorities are directed to keep him in confinement till he serves out the sentence. M.B.A./S-35/SC????????????????????????????????????????????????????????????????????????????????? Appeal allowed.