2003 PLP 762 (MLD)

"We all the four accused purchase scrap clothes from garment factory. We had managed rupees sixty thousand jointly and had delivered it to Mr. Altaf Nazim, who is the business partner of Pervez Mansoori. The payment was made about ten days prior, when we were told to approach him for delivery of the material on 9‑4‑2001. We all the four went to the factory of the said Altaf Nazim. To out of us, i.e. Iqbal Masih and Muhammad Kamal was made to stand outside the factory while land Azhar Iqbal went to the factory where we found Pervez Iqbal sitting with Altaf Nazim and were discussing about the payment and delivery of the scrap clothes. We demanded from them the material which they could not deliver hence we became harsh with Altaf Nazim upon which Pervez Iqbal intervened and told us to accompany him so that he could either arrange for the delivery of the scrap clothes or payment of the amount. Accordingly he took two of us from the factory and two from outside the factory in his car and remained driving the car and took us to various places without any fruit, hence we were annoyed with him and we exchanged harsh words with him upon which he stopped his car at a place and told us to wait for him so that he could arrange for and pay us the amount. He left in his‑ car and returned alongwith a police mobile at about 4‑50 p.m. He got us arrested. He told us that it was the result of being harsh to the big man. We were put in the mobile and were made to duck down and were taken to a police station which we do not know as to which was that police station. The inmates of the mobile were in plain clothes. In the night hours they took us from there and confined us in a dark room. Our photographs were taken and we were sent to some other Police Stations. Thereafter we were challaned.".

11. The other appellants adopted the statement of the appellant Danish Masih. They did not examine them on oath or led any evidence in their defence.

12. After considering the material available on the record the learned trial Judge convicted the appellants as mentioned above under the impugned judgment. The appellants were dissatisfied with the said judgment, therefore, they have preferred the present appeals. 12‑A. On 17‑1‑2002 the learned A.A.‑G. pointed out that the sentences awarded under section 365‑A read with section 34, P.P.C. and 13‑D of the Ordinance, 1965, under the impugned judgment are not correct. The grounds taken by him, firstly in respect of sentence of 14 years under section 365‑A, P. P. C. V re that the said sentence is not provided by the said section but the section 365‑A, P.P.C., provides sentence of either death or imprisonment of life and forfeiture of the property. Secondly, in respect of sentence of 10 years under section 13‑D of .the Ordinance, 1965, that the said sentence is also not provided under the said section but the section 13‑D of the Ordinance, 1965, provides sentence which may extend to seven years or fine or both. Therefore, he had been prayed for modification of the sentences by increasing the sentence from 14 years under section 365‑A, read with section 34, P.P.C. to the sentence as provided under the Law and reduction of sentence under section 13‑D of Ordinance,. 1965 to seven years. Such notice was given to the appellants.

13. We have heard the Advocate for the appellants, A.A.‑G. for the State and perused the evidence with their assistance. The learned Advocate for the appellants has argued that the trial Court had no jurisdiction to try the case as the ingredients of terrorism as defined under section 6 of Act; 1997, were not attracted; the place of offence was not mentioned and there was no firing from the weapons of the appellants; that no private persons were associated with the recoveries and the properties were not sealed at the Vardat, therefore, the same are doubtful. He has further argued that no ransom amount was demanded or any money was received or recovered from the possession of the appellants; that the F.I.R. was lodged after recovery and completing all the formalities, therefore, it has no evidentiary value; that the mobile telephone was not recovered and that there are contradictions in the evidence. He has further argued that punishment of 10 years awarded for the offence punishable under section 13‑D of Ordinance, 1965, is illegal as the maximum punishment provided for the said section is seven years; that the case of the prosecution is highly doubtful. In support of his contentions he has relied upon Tayyab Hussain Shah v. The State (2000 SCMR 683) and Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445).

14. On the other hand, the learned A.A.‑G. has stated that the ingredients of section 365‑A, P. P. C., which is a scheduled offence are attracted which have nexus to section 6 of Act, 1997, therefore, it is triable by the Anti‑Terrorism Court; that on the point of abduction and demand of ransom amount there is evidence of P.W.3 abductee and his son P. W .4 and his friend P.W.5. which have not been challenged; that the appellants have admitted their presence from the stage of abduction till the abductee was recovered and the appellants were arrested by the police; that the plea taken by the appellants that there was monetary dispute between them and Altaf Nazim alleged partner of the abductee has not been proved as they have not led any evidence; that there are no material contradictions in the evidence except minor contradictions which can be overlooked in the present circumstances of the case. He has further argued that the punishment of 14 years for the offence punishable under section 365‑A, P.P.C. is illegal as according to section 365‑A, P.P.C. the punishment provided thereunder is either death or life imprisonment and forfeiture of property; that the sentence of 10 years for the offence punishable under section 13‑D of Ordinance, 1965, is also illegal because the maximum sentence provided for the said offence is 7 years. He has relied upon the case of State v. Nazir Ahmad (1999 SCMR 160) and State v. Farman Hussain (PLD 1995 SC 1).

15. We have given due consideration to the arguments and have perused the evidence very minutely. As regards the jurisdiction of the trial Court is concerned the offence punishable under section 365‑A, P. P. C. is a scheduled offence as provided under Item No.2(b) of the Schedule appended to the Act, 1997. The scheduled offence would become terrorist act if it comes within the definition of section 6(b) of Act, 1997, which reads as under:‑‑ "

6. Terrorist act. "A person is said to commit a terrorist act if he‑‑ (a) ............................... (b) commits a scheduled offence the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people, or to adversely affect harmony among different sections of the people;"

16. A perusal of the above provision of law clearly reveals that if a scheduled offence is committed and the affect of which "will be" or "be likely to be" to strike terror or to create a sense of fear and insecurity in the people or any section of the people or to adversely affect harmony amongst different sections of people would come within the definition of terrorist act. The case of the prosecution is that the complainant was abducted by four persons. During the process of abduction they were travelling in the car. From the car on mobile phone of the abductee, the culprits contacted the family members of the abductee, friend and in the office by which they were informed that the abductee was abducted and a demand of ransom amount of Rs.5 million was made. It was also told to the family members and Office Manager of the abductee that in case they did not pay the amount of ransom then the abductee would be killed. The offence of abduction by itself is a heinous offence and coupled with ransom amount with a threat of killing of abductee if the amount was not paid then not only the effect of the offence would have been likely to stroke terror and created a sense of fear and insecurity but had actually created the said affect to the family members of the abductee and the employees in the office, after receipt of telephone calls. Therefore, a section of the people was affected in the above manner. Thus, the acts of the appellants are coming within the definition of terrorist act as defined in section 6(b) of Act, 1997, therefore, argument of the appellants' counsel has no force at all.

17. Now, we will come to the factual aspect of the case. As regards the abduction and demand of ransom amount is concerned the prosecution have relied upon the evidence of abductee P. W.3, his son P. W .4 Nabeel Mansoori and P. W.5 Saeed‑ur‑Rehman. The evidence of abductee shows that he narrated the same facts as disclosed by him in his complaint (Exh.P.14) which facts are already mentioned above. It will be repetition of the said facts if they are reproduced here. His evidence is supported and corroborated by P.W.4 and P.W.5, who had received mobile telephone calls from the appellants in which they demanded Rs.5 million, with a threat of killing the abductee if the amount was not paid. The statement of both these witnesses went unchallenged. Thus the statement of complainant is fully supported and corroborated by these witnesses. Furthermore, the statement of abductee is supported and corroborated by P.W.2 S.I.P. Muhammad Aslam, P. W.7 S. I. P. Muhammad Abdullah and P. W. 8, S. I. P. Balaghat Hussain. The statement of P.W.8 S.I.P. Balaghat Hussain reveals that he received message from Rescue 15 about the abduction and presence of vehicle at the place of recovery therefore, he took P.W.2 and P.W.7 and went to the pointed place where they apprehended the appellants and recovered the abductee: From the search of appellant Danish Masih one unlicensed pistol was secured whereas from the possession of appellant Iqbal Masih a plastic toy pistol was secured. A mobile phone was also secured from there, which fact has been incorporated in the Mashirnama of arrest and recovery. The statement of P.W.8 is fully supported and corroborated on all the above mentioned points by the P. W.2 and P. W.7.

18. From the evidence available on the record it has been established beyond any shadow of doubt that on 9-4-2001 abductee was abducted by the appellants in the car and during the said process the appellants made telephone calls to the family members of the abductee and office employee in which they demanded ransom amount of Rs.5 million with a threat of killing the abductee in case of non-payment of said amount. Subsequently and apparently with the indulgence and timely action/movement of a boy, who received the information from the abductee in the mosque, the message was conveyed to the police which was to S.I.P. Balaghat Hussain. Then he alongwith police party reached the place of Vardat, recovered the abductee from the possession of the appellants.

19. From the statements of the appellants recorded under section 342, Cr.P.C. it is clear that the entire incident has been omitted by them except the abduction and demand of ransom amount. The difference between the prosecution story and the defence version is that the appellants alleged that it was the abductee who took them in, the car and was moving from one place to another for giving them the scrap clothes from garment factory or the amount but there was exchange of hot words and then the abductee went and brought the police and involved them in this case. In support of their plea they have not examined them on oath or led any evidence to establish their defence. Even the appellants have not produced any receipt or document-showing that they were also dealing in, business of: garments or they had any financial or business transaction with Altaf Nazim. Without such proof the defence taken by the appellants cannot be safely relied upon particularly in view of the overwhelming evidence led by the prosecution as discussed above. As such the appellants have failed to explain their presence at the said place and recovery of abductee from their possession.

20. Great emphasis, was led by the appellants' counsel that private persons were not associated with, the search and section 103, Cr.P.C. Was violated. He had felted upon the case of Talib Hussain Shah v. The State (2000, SCMR 683), In the said case it has been observed that requirement of making two members of the public of a locality as Mashir to the recovery is mandatory unless it was shown by the prosecution that it was not possible in the circumstances of the case to have two Mashirs from the public. In the present, case there is no evidence that at the time of recovery, private persons were present. On the contrary, it has been brought on the record that a police-party also arrived at the place of recovery in a private car but the said car also left the place after leaving the police party at the said, place and before recovery. No, question was, asked from any of the witnesses about the presence of any other person at the place of recovery. It is pointed out that an information was received by the P.W.8 about the commission of this heinous crime and presence of car at the pointed place, therefore in such situation it was the duty of the police officer to reach the place of incident within shortest possible time so that the abductee could be recovered. Thus, in this type of cases, the- main consideration for the police will be to recover the abductee and arrest of the culprits rather than the ancillary matters such as search of witnesses to make them witnesses of recovery. In this case the action of the police was very swift because as soon as they spotted the required car, it was surrounded and abductee was recovered, appellants were arrested and property was secured, from their possession. If the police after spotting the required car had spent time in arranging the witnesses to witness the entire raid, recovery of abductee, arrest of the appellants and recovery from their possession then the entire efforts of the police would have been frustrated and possibility of running, way of the culprits could not have been ruled out. As such in the better administration of criminal justice and investigation and apprehension of the culprits such lapses can be overlooked keeping in view the betterment of the society so that the real culprits can be punished adequately if found guilty which will ultimately control the law and order situation and controlling the, crime acid activities of the criminals. It is pointed out that when the criminals develop fear of investigation of police rather than weapons, then the crime can be controlled for the simple reason that criminals would feel that after commission of the crime, they can be traced out through the process of investigation. It is advised that the police should improve their performance through investigation on modern lines. In the peculiar circumstances of the present case the non-association of private persons in the recovery is not fatal to the prosecution case, particularly when the abductee himself has stated that he was recovered by the police from the car in which the appellants were sitting.

21. As regards the sentence of fourteen years under section 365-A, P. P. C. the said section reads as under:- "[365-A. Kidnapping of abduction for extorting property, valuable security, etc.

Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, 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]."

22. From the above provision of law it is clear that the punishment provided therein is death or imprisonment of life and forfeiture of property as such the sentence of fourteen years awarded by the trial Court is illegal as it is beyond the scope of section 365-A, P.P.C. It is pointed out that vide Ordinance No. XVIII of 1988 for the first time section 365-A, P.P.C. was inserted and the punishment provided therein was death or imprisonment of either description for a term which may extend to fourteen years and shall not be less than three years and shall also be liable to fine. Subsequently, this section was replaced by Act III of 1990. The punishment provided therein was imprisonment for life and forfeiture of property. Subsequently an amendment was made in the said section vide Ordinance No. XIV of 1990 dated 10-12-1990 acid Act No.II of 1991 dated 28-3-1991 wherein the sentence of death was also included in the aforementioned sentences. Thus, from 10-12-1990 the punishment provided under section 365-A, P.P.C. is death or imprisonment for life and forfeiture of property.

23. As regards the sentence of ten years under section 13-D of Ordinance, 1965, the said provision provides sentence as seven years with fine or with both. It is pointed out that before 1973 the sentence provided under section 13-D of Ordinance, 1965, was three years or with fine or with both but by amendment through Act LII of 1973 the sentence of three years was replaced with seven years. As such after the year 1973 the sentence provided for section 13-D of Ordinance, 1965, is seven years or with fine or with both which is still continuing till this date. As such the trial Court has committed illegality in awarding the sentence of ten years which is also beyond the scope of section 13-D of Ordinance 1965.

24. In the light of what has been stated above the convictions under section 365-A read with section 34, P.P.C. in respect of both the appellants and under section 13-D of Ordinance, 1965, in respect of appellant Danish Masih are maintained. The sentences awarded under the impugned judgment for offence punishable under section 365-A, P.P.C. is enhanced to imprisonment for life and forfeiture of their properties to the extent of Rs.2 lacs each. The sentence of appellant Danish Masih under section 13-D of Ordinance, 1965 is reduced from 10 years to seven years. The sentence of fine awarded under the impugned judgment is maintained. The sentences of appellant Danish Masih are to run concurrently. The benefit of section 382-B, Cr.P.C. extended to them by the trial Court is maintained. The compensation as awarded by the trial Court is also maintained. In case of default in payment of compensation each of the, appellant is directed to undergo R.I. for six months more:

25. With the above modification in the sentences the Appeal No.34 of 2001 is dismissed whereas Appeal No.35 of 2001 is partly allowed. N.H.Q./D-42/K Order accordingly.