P L D 1996 Karachi 159 (PLP)

AGHA SAIIF‑UD‑DIN KHAN, J.‑‑This appeal has been directed against the judgment passed by the learned Judge, Special Court for 'Suppression of Terrorist Activities, Larkana, on 27‑5‑1993, in Special Case No.189 of 1991, where by the present appellant Nadir Hussain Jiskani was convicted under sections 365‑A, 324, 307, 149, P.P.C. and sentenced to suffer imprisonment for life and forfeiture of his entire property and to further suffer R.I. for 7 years and fine of Rs.10,000 or in default to suffer R.I. for 7 years under section 307/324/149, P.P.C. but acquitted the co‑accused Asghar and Imdad in the case. The appellant was given the benefit of provision of section 382‑B, Cr.P.C. The case of the prosecution is that complainant Ghulani Sarwar, S.H.O. Police Station Veehari on 25‑5‑1991 registered the F.I.R. on behalf of the State at 8‑15 a.m. that he alongwith the police staff namely, H.C. Ahmed Khan, H.C. Deedar Ali P.C. Muhammad Khan, and other police personnel in police mobile went on patrol duty and at about 1‑00 a.m. they reached the village Gull Muhammad Hisbani and came to know that one Molvi Muhammad ldris has been abducted from the Otaq of one Darya Khan Hisbani by some decoits. So police party chased the culprits and they exchanged fires with them near the jungle for more than two hours. The complainant also identified nine (9) culprits, on moon light to be Hashim, Nadir, Gulab, Hubdur, Sodhe, Gohar, Mumtaz, Muhammad and Irshad Jiskani and afterwards decoits boarded a tractor and took away abductee towards river side. That complainant parties after chasing the culprits on foot up to thick forest near river bank exchanged fires for 2/3 hours and returned at sunrise time to police station and registered the F.I.R. on behalf of the State. Police after investigation arrested Nadir (appellant), Asghar, and lmdad and challaned them in the Court of Suppression of Terrorist Activities, Larkana. The charge against the present appellant was framed on 3rd May, 1992 under section 365‑A/324/149, P.P.C. to which the appellant pleaded not guilty and claimed trial. The prosecution has examined P.W. H.C. Ahmed Khan Exh.5, P.W. Molvi Muhammad Idris (abductee) Exh.6, P.W. Darya Khan Heesbani Exh.7, P.W. Ghulam Sarwar Mehar S.I. Ekh.8, P.W. Maammad Usman Dahri Exh.10, P.W. Allahdad S.I.P. Exh.12, P.W. H.C. Deedar Ali Exh.13, P.W. P.C. Muhimmad Khan Exh.14. The statement of the accused was receded under section 342, Cr.PC. wherein he denied the allegations against him. The accused did not examine himself on oath but he led the evidence in defence of D.W. Pehalwan Jiskani as Exh.10, that the accused was involved in this case by one A.S.I. Niaz Sargani who had enmity with him over matrimonial affairs. as at the time of arrest of the accused, Niaz Sargani was Reader to. D.S.P. Dokri and that the learned trial Court after hearing the arguments of the learned counsel passed the above judgment and convicted and sentenced the appellant as above but acquitted the co‑accused Asghar and lmdad. Being aggrieved the appellant has preferred the present appeal. We have heard Mr. Nooruddin Sirki; learned counsel appearing for the appellant and Mr. Suleman Habibullah, learned counsel appearing for the State. The learned counsel for the appellant has pointed out that the very contents of the judgment of the trial Court are inconsistent and if the same are read minutely the only conclusion that can be drawn is that no case has been proved against the appellant whereas in the concluding paragraph of his judgment, the trial Judge has stated that‑the prosecution has brought home the charge under section 365/324/307, P.P.C. against the appellant. The learned counsel after referring the evidence of the witnesses and the abductee has referred to the various contents of the judgment of the trial, Court and it will be advantageous to reproduce certain portions from the said judgment. In paragraph 36, the learned Special Judge has held:‑‑ "Before parting with the judgment I have to mention that there is an extenuating circumstance to take a lenient view and award lesser punishment to the accused Nadir as the payment of ransom amount to him by the father of abductee is not proved on record but the same is said to have been obtained by two unknown dacoits. The accused might have received share 6f ransom amount." In paragraph 19 of the judgment, the learned Special Judge has held:‑‑ "The S.H.O. was not required under the law to prepare the Mashirnama of such long distance and to inspect the forest again for distance of about 10/12 k.m. only in order to collect empties, Moreover, it was night time and in forest and Katcha area empties to be collected, therefore, non‑collection of empties would not be sufficient to conclude that no encounter took plaice." The observations of the learned Judge would itself show that the demand of ransom as well as encounter with the police by the culprits has not been proved. It may be observed that in order to convict the present appellant under section 365, P.P.C., the prosecution has to show that kidnapping or abduction was done with the intention to get the ransom. The provisions of section 365‑A very clearly provide:‑‑ "365‑A. 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 imprisonment for life and shall also be liable to forfeiture of property." In case it is held that there was no demand for ransom or exchange of fire between the police party and the culprits was proved, the charge under sections 365‑A, 307, 324, 149, P.P.C. cannot be sustained. The Schedule of Suppression of Terrorist Activities (Special Courts) Act shows that section 365‑A, P.P.C. is a scheduled offence. Again we will refer to paragraph 17 of the judgment whereby the learned Judge has observed as under ‑‑‑ "There is also evidence of one Muhammad Usman at Exh.10, who deposes that he is cast‑fellow of abductee Molvi Muhammad Idris and he came to know on 25‑5‑1991 about the abduction of Molvi 'Muhammad ldris, therefore, he alongwith other relatives and father of the abductee made inquiries at their private level to locate and search the abductee and came to know that culprits had detained the Molvi in a Jungle. He further deposes that on next day father of abductee received a chit regarding payment of ransom, otherwise they would murder the abductee. He further deposes that he donated Rs.15,000 while one Muhammad Yasin paid Rs.10,000, Mubin Rs.10,000 and the other members of their family and relatives arranged and pooled for payment of ransom of Rs.5 lacs to them on their demand. He further deposes that those persons were with muffled faces and they told that abductee would be released by tomorrow. He further deposes that Molvi Muhammad ldris was released on next day on payment of ransom and he arrived at his house 'in the evening. He has also stated that the father of abductee has expired after this incident." P.W. Darya Khan Exh.7 has also corroborated the version of the abductee Molvi Muhammad Idris on points of his abduction. This witness is aged about 90 years and too old to see and to walk properly. The above facts as observed by the learned trial Court would show that P.W. Darya Khan from whose Otaq abductee Muhammad Idris was abducted was an old person of 90 years who could hardly see and walk properly, could not identify the real culprits who actually entered into his Otaq and abducted Molvi Muhammad Idris coupled with the evidence of P.W. Muhammad Usman that two persons who obtained the ransom of Rs.5,00,000 in his presence from the father of‑ the abductee late Haji Rab Rakhio came with muffled faces would not prove that appellant‑was a person who abducted or obtained ransom. It is pertinent to note that abductee was released by the culprits on or about 29‑5‑1991 but it was examined by the police on 30‑7‑1991 after a lapse of about two months and the present appellant Nadir was alleged to be arrested by police on 31‑7‑1991 from the police lock‑up P.S. Veehar of same police station as he was already arrested in another Crime No.14/91. The abductee Molvi Muhammad Idris has said in deposition that after his release from the dacoits he wrote to Chief Secretary, Government of Sindh, and afterwards police came and recorded the statement under section 161, Cr. PC. The abductee Molvi Muhammad Idris has also said in his deposition that during the confinement he was not allowed to see there faces (culprits), "they directed me to put my eyes down during the entire period of my detention". This observation of 'the learned trial Judge, in impugned judgment "that there is extenuation circumstance to take a lenient view and to award lesser punishment to accused Nadir as payment of ransom amount to him by father of the abductee is not proved on record but the same has been said to have been obtained by two unknown dacoits. The accused might have received share of ransom amount. Therefore, I do not find it fit to award capital punishment to the accused", prove that the learned trial Court was not satisfied with the prosecution evidence for the conviction. ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? In view of the above discussion, we are clear in our mind that the prosecution has failed to prove the charge against the appellant. At this stage, we cannot restrain ourselves from making observations that the conduct of the trial Judge, who having observed in the judgment that no charge of ransom amount has been proved against the appellant has still, convicted him and awarded him such a severe sentence.?????????????????????????????????????????????????? In consequence, we accept this appeal, set aside the judgment and the sentence and‑conviction awarded to the appellant. We, by our short order dated 27‑4‑1995 had acquitted the appellant and these are the reasons from the same. N.H.Q./N‑566/K??????????????? appeal accepted.