2016 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Muhammad Arshad alias Nanha son of Muhammad Shafi, caste Kamboh, resident of Basti Muslim Town, Saddar Diwon Road, Kasur (Crl. Appeal No.1597/2009), Ziad Shah alias Joggi son of Muhammad Ishaq, caste Syed resident of Zulfiqar Town, Saddar Diwan Road, Kasur (Crl Appeal No.1598/2009), Niamat Ali son of Liaqat Ali, caste Ansari, resident of Basti Khadim Abad, Zulfiqar Town, Saddar No.1598/2009), Niamat All son of Liaqat Ali, caste Ansari, resident of Basti Khadim Abad, Zulfiqar Town, Saddar Dewan Road, Kasur (Crl. Appeal No.1621/2009), Adnan Nazir son of Nazir Ahmed, caste Rajpoot, resident of Zulfiqar Town, Saddar Diwan Road, Kasur (Crl. Appeal No.1622/2009) and Muhammad Ashfaq son of Muhammad Boota, caste Machi, resident of Kot Murad Khan, Kasur (Crl. Appeal No.1623/2009), appellants along with Nazir Ahmad, Imran Nazir alias Kali, Mst. Khurshid and Mst. Shamshad (since acquitted) were involved in case FIR No.196, dated 27.02.2007, offence under section 365-A, P.P.C., read with section 7/21(L) of the Anti-Terrorism Act, 1997, registered at Police Station Nawan Kot, Lahore and were tried by Rana Muhammad Yousaf, learned Judge, Anti-Terrorism Court No.III, Lahore. The learned trial court seized with the matter in terms of judgment dated 28.09.2009 convicted the appellants under section 365-A, P.P.C., and sentenced each of them to death with forfeiture of moveable and immovable property. Under section 7 of the Anti-Terrorism Act, 1997, the appellants were sentenced to death with forfeiture of their moveable and immovable property.

2. Feeling aggrieved by the judgment of the learned trial court, Muhammad Arshad alias Nanha appellant has assailed his conviction through filing Crl. Appeal No.1597/2009, Ziad Shah alias Joggi appellant preferred Crl. Appeal No.1598/2009, Niamat Ali appellant filed Crl. Appeal No.1621/2009, Adnan Nazir filed Crl. Appeal No.1622/2009 while Muhammad Ashfaq appellant assailed his conviction through filing Crl. Appeal No.1623/2009. The learned trial court forwarded Capital Sentence Reference No.30-T/2009 for confirmation of death sentence inflicted upon the convicts. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.

3. Prosecution story as contained in the FIR (Exh PA/1) lodged on the complaint (Exh.PA) of Muhammad Yahya son of Abdul Rasheed, caste Sheikh (PW-5)/complainant is that he is resident of House No.165, Block-B, Sabza Zar Scheme, Lahore, and was serving as Audit Officer Grade-I, in National Bank, Moon Market Allama Iqbal Town, Lahore. On 26.02.2007 at 3:00 p.m. Farzan Yahya son of the complainant left his house to take lessons at tuition centre, however, he did not return. At 2:00 a.m. (night) the complainant received a telephonic call at his cell No.0333-443056 from mobile phone No.0334-9799461 whereby firstly son of the complainant namely Farzan Yahya established contact and subsequently an unknown person in a threatening manner directed the complainant to arrange one million rupees as son of the complainant was in their custody and thereafter the call was disconnected. On next day at 12:15 p.m. and thereafter at 2:33 p.m. the complainant received further phone calls from the number stated above; whereby unknown person inquired from him whether he had arranged the ransom amount. The complainant averred in the complaint that his son was kidnapped by unknown persons for ransom.

4. On the basis of the complaint submitted by the complainant, formal FIR (Exh.PA/1) was chalked out by Asghar Ali, S.I. (PW-1). After registration of case, the investigation was entrusted to Muhammad Shabbir, however, he could not trace out the whereabouts of the appellants. Subsequently the investigation came up before Ghulam Abid Inspector (PW-10) on 28.03.2007, who associated the complainant and the abductee and also recorded his statement under section 161, Cr.P.C.; wherein the abductee nominated Niamat Ali, Adnan Nazir, Ziad Shah, Muhammad Arshad alias Nanha and Muhammad Ashfaq. The Investigating Officer arrested the accused and after test identification parade obtained their physical remand. During the course of investigation on 04.04.2007, Muhammad Ashfaq appellant after making disclosure led to the recovery of Rs.25,000/- from Dera situated at Saddar Dewan Road, Kasur, which was taken into possession vide recovery memo Exh.PJ. The Investigating Officer also prepared rough site plan of the place of recovery (Exh.PJ/1). On 11.04.2007, during the course of investigation, Adnan Nazir, Ziad Shah, Muhammad Arshad alias Nanha and Muhammad Ashfaq appellants, individually (one by one) pointed out the place of occurrence in the presence of complainant and the abductee regarding which the Investigating Officer also prepared Fard Nishan Dahi (Exh.PN). On 15.04.2007, the Investigating Officer arrested Niamat Ali appellant and lodged him at judicial lock up for holding identification parade. After test identification parade, the Investigating Officer obtained his physical remand and during the course of investigation on 17.04.2007 after making disclosure Adnan Nazir appellant got recovered Rs.4,25,000/- out of the extorted amount, which was already with the police in case FIR No.43/2007, Police Station Muslim Town, Lahore. From the recovered money the Investigating Officer separated Rs.65,000/- as ransom amount in the instant case and took into possession vide recovery memo Exh.PK regarding the identification of mobile phone recovered from the complainant, the Investigating Officer prepared Fard Nishan Dahi (Exh.PB). On reaching the Police Station, the Investigating Officer deposited the case property with Moharrar Malkhana for safe custody and onward transmission to the quarter concerned.

5. Having found the appellants guilty, the Investigating Officer prepared report under section 173, Cr.P.C. and sent the same to the court of competent jurisdiction. On 26.02.2008, the learned trial court formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. Prosecution in support of its version produced as many as ten (10) prosecution witnesses.

6. Muhammad Yahya (PW-5) is the complainant of the case, whereas, Farzan Yahya (PW-6) is the alleged abductee. On presentation of complaint Asghar Ali, S.I. (PW-1.) had chalked out formal FIR. Primarily investigation in this case was conducted by Muhammad Shabbir, S.I. (PW-7) and the same was finalized by Ghulam Abid Inspector (PW 10). Test Identification Parade in this case was conducted under the supervision of Mst. Ayesha Mumtaz, Special Judicial Magistrate (PW-2). Statements of rest of the prosecution witnesses are formal in nature.

7. On 09.09.2008, learned Public Prosecutor gave up Musawar Hussain C/13632 being unnecessary while Ameen-ud-Din PW was given up on 21.10.2008 again being unnecessary. Vide his statement recorded on 15.04.2009, learned Public Prosecutor closed the prosecuition evidence.

8. The appellants were also examined in terms of section 342, Cr.P.C.; wherein all of them opted not to appear as their own witnesses in disproof of the allegations levelled against them in the prosecution version. Muhammad Arshad alias Nanha and Niamat Ali appellants also opted not to adduce defence evidence, however, Ziad Shah alias Joggi, Muhammad Ashfaq and Adnan Nazir appellants opted to lead evidence in their defence. In response to the question why this case against him and why the PWs deposed against him, Muhammad Arshad alias Nanha appellant made the following deposition:- "One Atta Mustafa S.I. was posted at Police Post Lari Ada, Kasur. He arrested Kashif alias Kashi but after taking illegal gratification in my presence he released him. However, he again arrested after few days and demanded more money which he refused. Kashif made an application to the Anti-Corruption Department citing me as a witness. I was examined by the Anti-Corruption Department where I stated against Atta Mustafa S.I. This Atta Mustafa S.I. was also examined in my presence and I made the statement against him on his face. This S.I. afterward threw a challenge to me "Main is Se ko paisay day kar bach jaoo ga magar tm ko qobar ki deewaroo tak lay jaoo ga". That Atta Mustafa S.I. escaped from Anti Corruption Depertment and got me falsely involved in all these case; through Ittiaz Bhalli DSP because that Mustafa SI was special person (Karay Khas) of Imtiaz Bhalli DSP. During this time that Atta Mustafa was posted as Karay Khas of Imtiaz Bhalli DSP with whom he had very intimate and special relations of all kinds. I have been falsely involved in this case by Mr. Imtiaz Bhalli DSP on the behest of above mentioned Atta Mustafa SI. Deceased accused Kashif alias Kashi (since murderred in police encounter) who was running rent a motorcycle shop was known to me because I was working at a petrol pump from where above mentioned accused Kashif @ Kashi used to get petrol with concession as he was known to the owner of the petrol pump." While replying to a similar question Ziad Shah alias Joggi appellant deposed as under:- "I was arrested by police on 27.02.2007 due to suspicion. Ghulam Abid Inspector Organize Crime had shown my arrest and of other co-accused in case FIR No.137/2007 dated 01.03.2007 under sections 324, 353, 186, P.P.C., of P.S. Kahna. He was investigating the cases under the supervision of Imtiaz Bhalli DSP Organize Crime. Nauman alias Kashi alias Boss and Muhammad Saleem Bagga as well as two other accused were arrested with me. Ghulam Abid Inspector and Imtiaz Bhalli DSP Organize Crime etc had killed Nauman alias Kashi alias Boss and Muhammad Saleem Bagga in a fake police encounter. I was the eye-witness of the fake encounter. Ghulam Abid Inspector roped me in this case falsely so that I may not open my mouth against him and Imtiaz Bhalli DSP. I neither abducted anyone nor demanded any ransom amount. No ransom amount was recovered from me. I have no connection with the commission of offence of this case. At the time of occurrence of this case I was not present at Lahore; rather I present at Mianwali. I am innocent in this case. P.Ws had deposed against me falsely on the asking of police." Muhammad Ashfaq appellant while replying to this particular question stated as under:- "The brother of my co-accused Adnan Nazir namely Nauman Kashi alias Boss was murdered in fake police encounter. Due to this reason I was involved in this false case. An inquiry was held in this regard and I am the witness of the said inquiry. The witnesses have deposed against me on the saying of police." Adnan Nazir appellant replied this particular question in the following terms:- "My brother namely Nauman alias Kashi alias Boss was murdered in a fake police encounter and police in order to save their skins involved me and my entire family in this case. An inquiry was held in this regard and I am the witness of the said inquiry. The witnesses have deposed against me on the saying of police." While replying to similar question Niamat Ali appellant deposed as under:- "One Atta Mustafa S.I. was posted at Police Post Lari Ada, Kasur. He arrested Kashif alias Kashi but after taking illegal gratification in my presence he released him. However, he again arrested after few days and demanded more money which he refused. Kashif made an application to the Anti Corruption Department citing me as a witness. I was examined by the Anti Corruption Department where I stated against Atta Mustafa S.I. This Atta Mustafa SI was also examined in my presence and I made the statement against him on his face. This SI afterward threw a challenge to me "Main is Se ko paisay day kar bach jaoo ga magar tum ko qabar ki deewaroo tak lay jaoo ga". That Atta Mustafa SI escaped from Anti-Corruption Department and got me falsely involved in all these cases through Imtiaz Bhalli DSP because that Mustafa SI was special person (Karay Khas) of Imtiaz Bhalli DSP. During this time that Atta Mustafa was posted as Karay Khas of Imtiaz Bhalli DSP with whom he had very intimate and special relations of all kinds. I have been falsely involved in this case by Mr. Imtiaz Bhalli DSP on the behest of above mentioned Atta Mustafa "My brother namely Nauman alias Kashi alias Boss was murdered in a fake police encounter and police in order to save their skins involved me and my entire family in this case. An inquiry was held in this regard and I am the witness of the said inquiry. The witnesses have deposed against me on the saying of police." In defence Abdul Ghafoor, Syed Muhammad Ahmad Shah and Tauqeer Abbas appeared as DW-1, DW-2 and DW-3.

9. Learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellants in the afore stated terms.

10. Learned counsel for the appellants, at the very outset, did not challenge the conviction recorded by the learned trial court, however, prayed for reduction in sentence from death to life imprisonment mainly on the ground that the abductee was released spot-free after two days and no bodily injury was inflicted upon his person. Learned counsel further submitted that on the same set of evidence, four co-accused were also extended the premium of innocence by the learned trial court.

11. Learned DDPP, on the other hand, vehemently controverted the assertions made by learned counsel for the appellants with the submissions that the appellants had abducted minor son of the complainant when he was on way. Moreover, the victim while recording his statement under section 161, Cr.P.C. fully involved the appellants in the instant case. It was further argued that during the course of test identification parade, the victim had identified all the abductors and assigned them specific role. Learned DDPP agitated that after their arrest, ransom amount was also recovered from the respective possession of the appellants, which further strengthens the prosecution case. It was further argued that there was no previous ill-will at the part of the complainant or the abductee to falsely involve the appellants in the instant case. Further submitted that during the course of investigation, the appellants were found guilty as such their names were placed in column No.3 of the report prepared under section 173, Cr.P.C. In this backdrop, it was finally argued that the learned trial court while attending each and every aspect of the case in light of prosecution evidence available on the record rightly recorded conviction/sentence against the appellants; therefore, no exception can be made to the same.

12. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants, as well as, learned DDPP.

13. As learned counsel for the appellants did not challenge conviction recorded by the learned trial court, therefore, we are not inclined to discuss in detail the prosecution version advanced during the course of trial. However, it is an admitted fact that after abduction of Farzan Yahya (PW-6), by making telephone calls from mobile No.0334-9799461, the accused had demanded ransom amount to the tune of one million rupees and they succeeded in extorting Rs.3,00,000/-. It is also an admitted fact that after arrest of the appellants test identification parade was held under the supervision of Mst. Ayesha Mumtaz, Special Judicial Magistrate (PW-2) in which all the appellants were duly identified by the victim/abductee, which strengthens the prosecution case. Moreover, during the course of investigation, the ransom amount was also recovered on the respective pointation of the appellants, which further establishes link of the appellants with the commission of offence. The mobile phone from which the calls demanding ransom amount were made, was also recovered from the appellants regarding which the Investigating Officer had prepared Fard Nishan Bandi. Fact also remains that the Investigating Officer while concluding the investigation had found the appellants guilty as such their names were placed in column No.3 of the report prepared under section 173, Cr.P.C. This Court is conscious of the fact that from Ziad Shah, Muhammad Ashfaq and Arshad alias Nanha appellants no amount out of the extorted ransom was recovered, however, it is settled principle of law that in a case of kidnapping every member of gang involved in abducting any person is equally and vicariously liable and in such like cases specific role of accused is not the prime consideration, if it is established that the accused was a member of an abduction gang. As far as defence plea advanced through the statements of Abdul Ghafoor (DW-1), Syed Muhammad Ahmad Shah (DW-2) and Tauqeer Abbas (DW-3) is concerned admittedly none of them had joined the investigation before the Investigating Officer, therefore, the same could only be termed as an afterthought story at a belated stage, which does not find any legal sanctity. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Muhammad Iqbal and others v. Muhammad Akram and another (1996 SCMR 908). We also find much weight in the contention of learned DDPP that the complainant and the victim had no previous ill-will to falsely involve the appellants in the instant case.

14. Nutshell of the above discussion is that the prosecution through leading cogent and confidence inspiring evidence, which is coming from the mouth of most natural witnesses coupled with the fact that during the course of test identification parade the appellants were duly identified as abductors of the victim, as well as, during the course of investigation, extorted amount was also recovered, proved its case against the appellants to the hilt, therefore, the learned trial court was rightly justified in recording conviction against the appellants under section 365-A, P.P.C., and section 7 of the Anti-Terrorism Act, 1997.

15. As far as the quantum of sentence in this particular case is concerned, the same is of pivotal importance, which requires reappraisal evidence. While scrutinizing the prosecution evidence on the touchstone of the arguments advanced by learned counsel for both sides, we have observed certain aspects, which if discussed would help in determination of the quantum of sentence. The same are given in the ensuing paragraphs. > There is no denial to this fact that nevertheless after abduction Faraz Yahya/abductee (PW-6) remained with the accused for two days, however, it is not the prosecution case that either he was inflicted any bodily injury and as per record available on file, he returned his home scot-free. > Moreover, during the course of trial the learned trial court had acquitted four co-accused on the same set of evidence and the prosecution never assailed their acquittal before this Court meaning thereby that it was satisfied with the conclusion arrived at by the learned trial court. > Delayed recording of statements of the prosecution witnesses particularly victims (abductees). All these facts when put side by side create doubt in the authenticity of the prosecution version to some extent persuading this Court to believe that the case of the appellants falls within the ambit of mitigation. Moreover, bare perusal of the statute with reference to section 365 -A, P.P.C. nevertheless provides normal sentence of death, however, the life imprisonment is also mentioned as alternative sentence and the matter has been left with the courts to determine that which penalty to be inflicted keeping in view the peculiar facts of the case. Analogy is drawn from the ratio decidendi of august Supreme Court of Pakistan in the case of Muhammad Sharif v. The State (PLD 2009 Supreme Court 709) wherein it was held as under:- "Life as we know in common parlance is the blessing of God. It is considered to be "the immediate gift of God and a right inherited by nature in every individual"

1. It means the period which life lasts or the period from birth to death. Our Constitution bestows a fundamental right under Article 9 that "No person shall be deprived of life or liberty save in accordance with law." It starts with "no" which means "not any, not at all."

2. It clearly signifies a prohibition and forbids the deprivion of life of any person." In the case of Javed Iqbal and another v. The State (2012 SCMR 140) august Supreme Court of Pakistan while dealing this question had held as under:- "

S. 365-A

Abduction for ransom

Sentence

Principle

If prosecution proves its case, the court is bound to award death penalty and in case of extenuating circumstances, life imprisonment..." Moreover, in its ratio decidendi of august Supreme Court of Pakistan in the case of Israr Ali v. The State (2007 SCMR 525), it was also held that:- "

Sentence, quantum of

Principle

Question of sentence demanded utmost care on the part of court dealing with life and liberties of people

Accused persons are also entitled to extenuating benefit of doubt on the question of sentence."

16. When facts of the case are scrutinized on the touchstone of dictum of law referred to above, we have arrived at the conclusion that to meet the ends of justice for safe administration of criminal justice it would be justified if the sentence of death is converted into imprisonment for life.

17. In sequel to above discussion, Crl. Appeal No.1597/2009 filed by Muhammad Arshad alias Nanha appellant, Crl. Appeal No.1598/2009 filed by Ziad Shah alias Joggi appellant, Crl. Appeal No.1621/2009 preferred by Niamat Ali appellant, Crl. Appeal No.1622 of 2009 filed by Adnan Nazir and Crl. Appeal No.1623 of 2009 filed by Muhammad Ashfaq appellant are dismissed while modifying the sentence of death into imprisonment for life under section 365-A, P.P.C., as well as section 7 of the Anti-Terrorism Act, 1997. Both the sentences are directed to run concurrently and benefit of section 382-B, Cr.P.C. is also extended in favour the appellants. However, the order qua forfeiture of property of the appellants shall remain intact. Capital Sentence Reference No. 30-T/2009 fails, which is answered in NEGATIVE. Death sentence is NOT CONFIRMED. HBT/M-280/L Sentence modified.