2004 PLP 1088 (YLR)

AMANULLAH KHAN, J.-- Through this appeal, appellants Muhammad Nabi, Hameed Gul, Taweez Khan, Bakhat Muhammad and Ghamai, have challenged the validity of judgment dated 6-9-2001, passed by Special Judge, S.T.A., Zhob, whereby the appellants have been convicted under section 365-A, P.P.C. to suffer life imprisonment and under section 337-F(ii) to suffer R.I. for three years and to pay Rs.10,000. each to injured/abducted persons, as Daman and in default in payment of. Daman, appellants shall be dealt with in terms of section 337-Y, P.P.C. and under section 342, P.P.C. to suffer R.I. for five years. The prosecution case is that, P.W.2 Malik Haji Muhammad Rahim was coming towards Zhob from Qamar Din Karez and on the way near Shaghaloo, he saw an abandoned vehicle on the road side. He recognized the same to be that of Executive Engineer, Zhob, on checking the vehicle, there were blood-stains on the seats and also bullet marks on the body of vehicle. He informed the Levies Authorities regarding the said vehicle. Thereafter a Levies Party was constituted, who raided the Mountains of Araik and after exchange of firing with the culprits, recovered the victims P.W.7 Obedullah Shah, XEN, Zhob, P.W.8 Akbar Khan, Driver and P.W.9 Muhammad Ibrahim, who were abducted and on the Fard-e-Biyan (Exh.P.N.) of P.W.7 Obaidullah Shah, report was lodged. It was alleged in the Fard-e-Bayan that on 24-3-1998, the complainant Syed Obedullah Shah was going from Muslim Bagh to Zhob in his vehicle and at Killa Saifullah, Muhammad Ibrahim, S.-I. also accompanied him. At about 1-30 p.m. when they reached near Musafir Bridge on Quetta Zhob Road, a person standing armed on the road side, signalled them to stop. The driver did not stop the vehicle, firing was made at the vehicle from both the sides of the road. Thus the vehicle was stopped and he also received a bullet injury. In the meanwhile, armed person came and grappled with them and made them sit on the rear seat and- they were blind-folded, and drove the vehicle to an unknown place where they alighted and three accused persons stood there and two of them took away the vehicle to some unknown place. Thereafter they asked him to write a letter to his brother for payment of rupees fifty lac as ransom. Then they spent the night there at the unknown place and in the morning, they were taken to mountains. As he was injured, he asked one of the appellants to serve Them with tea, thus one armed person left to bring tea, but when he did not come back, soon the other two persons went towards the mountains and thereafter they came and took away cash of rupees ten thousand from them and in the meanwhile firing started and Assistant Commissioner, Zhob raided the said place. He arrested the dacoits and recovered them. On basis of such statement, report was lodged, as stated above. After recovery of the abductees, the investigation of the case was entrusted to P.W.11. He prepared site-plan Exh.P.O took into possession the vehicle of XEN vide memo. (Exh.P.F.) prepared recovery memo. of abductees (Exh.P.G.), took into possession blood-stained clothes of injured Obedullah Shah vide memo. (Exh.P.H.). He also took into possession blood-stained clothes of one of the appellants Taweez Khan, who got injured during counter firing. Besides, he also recovered the cash amount from appellants Muhammad Nabi and Bakhat Muhammad. vide memo. Exh.P.N. Later on he recorded statements of witnesses and produced the appellants before the Magistrate, who recorded their confessional statements and ultimately on completion of investigation submitted challan before the Special Judge, STA, Zhob. Charge was framed which was refuted by appellants. Thus to prove its case, prosecution produced the following witnesses:-- (1) P.W.1, Sultan Shah, Assistant Commissioner/Magistrate. He recorded the confessional statements of all the appellants which are Exh.P.A. to P.E. (2) P.W.2, Malik Haji Muhammad Rahim. He informed the Levies Authorities about the abandoned vehicle belonging to XEN, Zhob. (3) P.W.3, Abdul Ghaffar, Jamadar Special Levies Zhob. He accompanied the Assistant Commissioner, when the abudctees were recovered. He is also witness _ to the recovery memo. Exh.P.F., whereby appellants were recovered, Recovery memo. Exh.P.G., whereby the blood stained clothes of abductee Obeduallah Shah and appellant Taweez Khan were taken into possession in his presence. He acknowledges his signatures on the said memos. (4) P.W.4, Dr. Arif Khan. He examined abductees Syed Obedullah Shah, XEN, Akbar Khan, Driver and appellant Taweez Khan, and issued Medical Certificates Exh.P.1 to P.K. (5) P.W.5, Yar Muhammad. He is marginal witness to recovery memo. Exh.P.L., whereby the vehicle of XEN was taken into possession. (6) P.W.6, Muhammad Shah. He also accompanied the raiding party. In his presence the recovery memo. Exh.P.M. was prepared, whereby after arrest of appellants on their personal search cash amount was recovered from them. (7) P.W.7, Syed Obedullah Shah. He is the abductee and complainant. He reiterated the contents of the Fard-e-Biyan. (8) P.Ws.8 and 9, Akbar Khan, Driver and Muhammad Ibrahim are the abductees, who gave an ocular account of the incident, regarding their abduction and recovery. (9) P.W.10, Abdul Ahmad, Naib Tehsildar is the I.O. (10) P.W.11, Saifulah, Naib Tehsildar. He submitted challan Exh.P.Q. (11) P.W.12, Noorullah Naib-Tehsildar. He was also amongst the Raiding party, who recovered the abductees. (12) P.W.13, Abdul Naffey. He brought the vehicle of the XEN from Shaghaloo to Zhob and informed Deputy Commissioner, Zhob, about the said incident. Thereafter he also accompanied the Assistant Commissioner to recover the abductees. Appellants were examined under section 342, Cr.P.C. wherein they denied the prosecution case and in defence, appellant Ghamai examined D.W.1 Sher Jan, appellant Bakhat Muhammad examined D.W.2 Shah Muhammad, appellant Tawiz Khan examined D.W.3 Haji Abdul Qadeer, appellant Muhammad Nabi examined D. W .4 Muhammad Umer and appellant Hameed Gul examined D.W.5 Sher Khan. On the conclusion of trial, learned Special Judge, S.T.A., convicted and sentenced the appellants, as specified hereinabove. Hence this appeal. Mr. Muhammad Aslam Chishti, learned counsel, contended as under:-- (A) The confessional statements were recorded with unexplained delay, besides P.W.1 who recorded the statements was associated with the investigation of case, thus the confessional statements are not worthy of credence. (B) The abductees have only nominated three of the appellants and have exonerated appellants Muhammad Nabi and Ghamai, therefore, they are entitled for acquittal. (C) The offence does not fall under section 365-A, P.P.C. and at the most same falls within the ambit of section 365, P.P.C., therefore, the sentence awarded to appellants is liable to be altered. Mr. Jaffer Raza, learned State counsel, emphatically opposed the appeal. Adverting to the first limb of argument advanced by Mr. Muhammad Aslam Chishti, regarding delay in recording confessional statement. Learned counsel vehemently argued that since the confessional statements were recorded after delay of about 8/9 days, therefore, the same are liable to be ruled out of consideration, possibility cannot be ruled out, that the confessional statements were recorded under duress and pressure. We are not inclined to agree with the learned counsel. It may be observed here that it has been consistently held by the superior Courts that mere delay in recording the confessional statement would not render the same inadmissible. The Courts have to see; whether the confessional statements of accused are voluntarily and ring true and if the confessional statements of different accused persons are consistent and in consonance with the prosecution case and are corroborated by other pieces of evidence, the same cannot be discarded) merely on the ground, that those were recorded with some delay. In the case in hand, the confessional statements of appellants were recorded on 3-4-1998. A perusal of the confessional statements reveals that, same corroborate each other, except for a minor contradictions, which do not adversely affect the prosecution case. In the confessional statements the appellants have given a detailed account of the incident. Besides the confessional statement is also corroborated by the statements of abductees P.W.7 Obedullah Shah, and P.W.8 Akbar Khan. It may be pointed out that in his statement P.W.7 Obedullah Shah, deposed that they were over powered by five persons, who tool: the vehicle to some unknown place and thereafter they were guarded by three people and their vehicle was taken by two other persons and further stated that, on the next day when firing started, two other appellants present, while three others were present who were over powered and arrested by this Levies. Similarly the confessional statement of appellant Muhammad Nabi and appellant Ghamai are similar. They were the ones who after abducting the abductees, left the other appellants to guard the abductees and took away the vehicle of the complainant and left it at an unknown place near Shaghaloo, whereas the other there appellants have stated the facts that, the were guarding the abductees. On comparing the statement of complainant P.W. Obeduallah Shah, it materially corroborate the confessional statements of all the five appellants. Hence on minute scrutiny of the said statements in our considered opinion the confessional statements appear to be voluntarily and true and are consistent with the facts. It is well-settled principle of law that even if the confessional statement is retracted, the same can be relied upon, if the Court is satisfied that the same was made voluntarily, without any inducement, duress or coercion and rings true, and gets corroboration from the other evidence on record. Thus in such circumstances, the confessional statements cannot be brushed aside merely that the same was recorded with some delay. We have no doubt about the voluntariness and truth of the confessional statements. In this regard, reference may be made to Mst. Naseem Akhtar v. The State 1999 SCMR 1744. Accordingly the contention of learned counsel is repelled. Mr. Muhammad Aslam Chishti, learned counsel for appellants, also challenged the validity of confessional statements on the ground that Magistrate who recorded the same was associated with the investigation of case, the confessional statements are to be ruled out of consideration. It may be pointed out that, when the District Administration of Zhob, which is a far-flung area, came to know about the abduction of Executive Engineer. Thereafter the Law Enforcement Agencies started moving to the place of incident. Incidentally Syed Sultan Shah, Assistant Commissioner, Zhob, at the relevant time happened to be the Tehsildar Qamar Din Karez, also accompanied the raiding party. A perusal of record shows that he was only present at the time of raid, but had not played any role in the recovery of abductees nor in the investigation and inasmuch as, his statement was not recorded as a witness. Further, it may be pointed out that a confessional statement cannot be discarded merely due to some lapses on the part of the Magistrate, who recorded it arid same would riot be fatal by discrediting the evidentiary value of confessional statements. As observed in the preceding paras., the confessional statements were voluntary and true. Thus contention of learned counsel is without any force. In our considered opinion, the confessional statements made by appellants were voluntarily and they have given truthful account of the incident and from the confessional statements, it can be deduced without any hesitation that, all of them have actively participated in the commission of the offence. Mr. Muhammad Aslam Chishti, learned counsel also attempted to argue that, at the time of recovery of abductees, there were only three appellants and besides, appellants Muhammad Nabi and Ghamai were not nominated by the abductees. It may be pointed out that P. W. 7 Obedullah Shah, deposed .that when the vehicle stopped, they were over powered. by five persons and were blind-folded, three persons stayed there to guard them and two persons took away the vehicle. The said portion of his statement is corroborated by the confessional statements of appellants. Thus even if they were not nominated by abductees, but the facts and circumstances show that all of them actively participated and executed their plan in furtherance of their common intention. Thus the said argument being without any substance is repelled. Reverting to the last contention of learned counsel that the offence committed by appellant would fall under section 365, P.P.C. and not under section 365-A, P.P.C., learned counsel stressed that, since no ransom was received by the appellants and abductees were only confined at an unknown place therefore, the provisions of section 365, P.P.C. are only attracted. It may be pointed out that, in the case of abduction, the intention of accused at the time of abduction would be inferred from what they subsequently did. In the case in hand, the intention of the appellants can be inferred from the initial stage, when abductees were abducted. It is worth mentioning that the vehicle was signalled to stop and as the driver did not stop, at once firing was made at the Jeep from both the sides, due to which, complainant also sustained bullet injury:, and after stopping the vehicle, they were over powered and made to sit on the rear seats, they were taken to an unknown place and confined for the whole night and vehicle was left at an unknown place. Besides in the case in hand, the statement of complainant/abductee is very relevant and material, from which, the subsequent intentions and acts of the appellants can be inferred. Knowingly that the complainant had received a bullet injury, he was confined at unknown place for the whole night till his recovery and no efforts were made to give him medical aid. Besides the statement of complainant/ abductee would reveal that they had intended to abduct him and his companion to extract money from them. In his statement, he deposed that appellants compelled him to write .a letter to his brother to make payment of rupees fifty lacs as ransom for their release. It has come on record that, abductees had no ill-will or enmity with the appellants to falsely implicate them in a case of abduction. Thus we are not persuaded to agree with the learned counsel that the provisions of section 365-A are not attracted. As observed hereinabove, appellants came fully armed for the purpose of abducting the abductees to extent money. To execute their plan, they even resorted to firing which resulted in injuries to one of the abductees and still, without caring for injury, they were taken to an unknown place and were confined for the whole night, till they were recovered. Thus from the acts and circumstances of the case, it can be inferred without any hesitation that the appellants had the intention to abduct the XEN for the purpose of extracting money. In view of the above discussion, it is held that the appellants have been rightly convicted under section 365-A, P.P.C. For the foregoing reasons, we see no merits in the appeal, which is accordingly dismissed. N.H.Q./12/Q Appeal dismissed.