2018 PLP 391 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Orangzaib appellant and some others had allegedly abducted one Mehboob Ali on 25.08.2005 for the purpose of extracting ransom but had killed him despite receiving ransom from the complainant party. With the said allegations the appellant and his co-accused were booked in case FIR No. 106 registered at Police Station Soldier Bazaar, District Jamsheed Town, Karachi on 25.08.2005 and after a regular trial the appellant was convicted by the trial court for an offence under section 302(b), P.P.C. and was sentenced to death and to pay fine besides having been convicted and sentenced for an offence under section 7(e) of the Anti-Terrorism Act, 1997 read with section 365-A, P.P.C. and even for the said offence of abduction for ransom the appellant was sentenced to death. The appellant challenged his convictions and sentences before the High Court through an appeal and the said appeal was ultimately decided by the High Court on the basis of an opinion recorded by a learned Referee Judge because earlier on two Hon'ble Members of the Bench had disagreed in their final opinions. According to the ultimate decision rendered by the High Court the appellant was acquitted of the charge for the offence under section 302(b), P.P.C. but on the charge pertaining to abduction for ransom the appellant's conviction was upheld but his sentence of death was reduced to imprisonment for life. Hence, the present appeal by leave to this Court granted on 12.03.2012.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

3. As regards the offence under section 302(b), P.P.C. the appellant had been acquitted by the High Court. As far as the offence under section 365-A, P.P.C. is concerned it is admitted at all hands that there was no evidence led by the prosecution showing that the appellant was involved in the act of abduction of the alleged abductee. It is also not disputed that no evidence had been brought by the prosecution on the record establishing that the appellant had demanded ransom for release of the alleged abductee. Some evidence brought by the prosecution on the record regarding making of telephone calls about ransom had been discarded by the High Court after recording cogent reasons in that regard. It is also not denied that the alleged abductee or his deadbody had not been recovered at the instance of the present appellant. The only evidence brought on the record of the case against the present appellant was that when the accused party had received the amount of ransom on that occasion the appellant was driving the motorcar wherein the alleged abductee was kept in confinement on the rear seat by the appellant's co-accused. The prosecution had produced two witnesses in support of such allegation and they were Asghar Ali (PW6) and Muhammad Akram (PW8). Even if the said allegation were to be accepted in its entirety the same would have attracted the provisions of section 383, P.P.C. pertaining to extortion entailing punishment for the said offence provided in section 384, P.P.C. The case in hand, particularly the allegation leveled against the appellant as mentioned above, appears to be fully covered by illustration (b) mentioned in section 383, P.P.C. and such offence carries a maximum sentence of three years' imprisonment. We have been informed that Organzaib appellant had been taken into custody in connection with this case in the year 2005 and he is still behind the bars. This shows that the appellant has already suffered incarceration for a period of about 12 years whereas the maximum sentence which could have been awarded to him for an offence under section 383, P.P.C. read with section 384, P.P.C. was three years' imprisonment. A sentence from Shakespeare's King Leare appears to be appropriate as far as the predicament of the appellant is concerned according to which the appellant appears to be a man "more sinned against than sinning".

4. For what has been discussed above this appeal is partly allowed, the conviction and sentence of the appellant recorded by the High Court are set aside and instead the appellant is convicted for an offence under section 383, P.P.C. read with section 384, P.P.C. and he is sentenced for the said offence to rigorous imprisonment for three years which sentence he has already passed. As the appellant has spent more period of imprisonment than was due, therefore, he is not burdened with any fine. He shall be released from the jail forthwith if not required to be detained in connection with any other case. MWA/O-2/SC Order accordingly.