P L D 2003 Supreme Court 389 (PLP)

Ch. Muhammad Akram, Advocate Supreme Court for the State. Date of hearing: 7th January. 2003. HAMID ALI MIRZA, J.‑‑This criminal appeal with leave ,of this Court is directed against the judgment of conviction dated 20‑10‑1997 in Criminal Appeal No. 178 of 1994 (Saeed Ahmed v. The State) and Criminal Appeal No.184 of 1994 (Ejaz Ahmad v. The State) passed by learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No.178 of 1994 filed by appellant Saeed Ahmed was dismissed, thereby conviction and sentence passed by learned trial Court were maintained whereas Criminal Appeal No.184 of 1994 filed by co‑accused Ejaz Ahmed was allowed thereby he was acquitted of the charged offence.

2. Brief facts of the case are that Muhammad Akram P.W.8, complainant, made application for disappearance of his son on 4‑10‑1992 which was registered in daily diary at Police Post City. Jarranwala stating therein that‑ his son Imran, aged eleven years a student of Class VI, left his house at about 11‑00 a.m. to play Luddo in a shop near his house did not return. therefore, he made search for his son but could not find him. The complainant, thereafter made an application before S.‑I. Saleem Mahmood, Incharge Police Post City, Jarranwala on 7‑10‑1992 wherein he stated that he had suspicion that Amin and Muhammad Ali had kidnapped his son or got him kidnapped for the reason that the said persons were employed in his carpet factory and the complainant had deducted some amount from their wages who had threatened him to teach him a lesson for which latter would repent for his whole life. On the basis of said application a case was registered under section 365, P.P.C., vide F.I.R. No.563 of 1992 at Police Station, Jarranwala. P.W.18 Saleem Mehmood partly investigated the case and during the said investigation complainant produced some threatening letters which latter had received and the former had recovered under such memos wherein ransom was demanded from the complainant, therefore P.W.18 added section 365‑A, P.P.C. against the kidnappers. However, the complainant received last threatening letter on 1‑11‑1992 wherein ransom was demanded to be kept in the mosque which he produced before P.W.19 Farooq Ahmad who recovered under such memo. when the latter brought it to the notice of the Senior Superintendent of Police who constituted a team of police officials to supervise a raid at the said mosque, a place suggested in the above letter, when an amount of Rs. Fifty thousand in a bag over water tank was kept in the mosque by P.W.8 complainant Muhammad Akram at the stipulated time in company of Muhammad Siddique P.W.20 who thereafter hid themselves in the Sirkandas. After fifteen minutes Saeed Ahmed appellant emerged from Sarkandas and picked up the bag containing aforesaid amount. The complainant, Police Party and Muhammad Siddique P.W.20 surrounded the appellant who started firing. P.W.19 Farooq Ahmed Inspector and Police Party tired at the appellant Saeed Ahmed who became injured and fell down and was arrested. Police secured one pistol and two live cartridges as per memo. and also secured an amount of ransom of Rs.Fifty thousand alongwith one 'Ruqqa' written by complainant and such memo. was prepared. The appellant was removed to hospital in an injured condition. P.W.19 Farooq Ahmed, Inspector enquired from Dr.Khalid Mehmood P.W.2 as to whether appellant Saeed Ahmed was in a fit state of condition to make statement who replied in affirmative, accordingly the said appellant/accused Saeed Ahmed was interrogated in the hospital. On such interrogation a written statement was recorded in presence of doctor wherein the appellant Saeed Ahmed being in police custody gave an information that the deceased Imran was got buried in the ' Baithak' of his house at Jaranwala. In consequence of said information, a dead body of Imran was recovered after digging the floor of 'Bhaitak', which house was obtained on rent by the appellant from Faryad Ali P.W.7 when the dead body of Imran was identified by the complainant. The police prepared memo. of site plan and recovery of dead body and sent the dead body of the deceased minor boy Imran for post‑mortem examination after preparing memo. of injuries and holding inquest upon the dead body of the deceased. Police also added offence of section 302, P.P.C., in the charge‑sheet. After completion of usual investigation, the police submitted charge‑sheet against the appellant/accused and other co‑accused in the Court. After framing of charge by the trial Court to which appellant and co‑accused pleaded not guilty, the prosecution examined as many as twenty witnesses and the appellant and acquitted co‑accused were also examined under section 342, Cr.P.C. who denied the commission of said offence and stated that they were innocent and were falsely implicated in the case. The appellant in reply to Question No.8 with regard to his return from mosque with bag, cash, ' Ruqqa' and having tired at the police party and in return police also had fired at him as a result of which he tell injures at the spot, stated that it was correct that he had only received injuries. After recording the above evidence and hearing the counsel for the parties. the trial Court acquitted accused Muhammad Ali and Muhammad Amin while held the appellant and co‑accused Ejaz Ahmed guilty and convicted both accused under sections 302, 365‑A, P.P.C., when appellant Saeed Ahmed was sentenced to death while co‑accused was sentenced to life imprisonment on both counts. The convicted accused viz. appellant, Saeed Ahmad and Ejaz Ahmed preferred Appeals Nos. 178 and 184 of 1994 before the Lahore High Court, Lahore which were heard by learned Division Bench and as per impugned judgment, Appeal No. 178 of 1994 of the appellant Saeed Ahmed was dismissed, while Criminal Appeal No. 184 of 1994 of Ejaz Ahmed was allowed, thereby acquitted. The present appellant preferred petition for leave to appeal against his conviction and sentence passed by learned Division Bench of the Lahore High Court. wherein leave to appeal was granted by this Court on 16‑6‑1999 to consider whether there was evidence connecting the petitioner/appellant with the A commission of offences and whether sentence of death maintained by the High Court was justifiable in the circumstances of the case.

3. We have heard learned counsel for the parties and perused the record.

4. First submission of learned counsel for the appellant is that the, appellant has compromised the matter with L.Rs. of the deceased vide Criminal Miscellaneous Application No. 186 of 2001 filed in this Court which was sent to the Sessions Judge, Faisalabad for his report who as per his report dated 30‑10‑2001 has intimated that the L.Rs. of deceased viz. father and mother have voluntarily compromised the offence with regard to commission of murder under section 302, P.P.C., therefore, the appellant be acquitted considering that the said offence being compoundable under the law. So far the conviction and sentence under section 365‑A, P.P.C., he submitted that no case under said provision of law was made out by the prosecution, therefore, the appellant be acquitted of the said offence considering that the said offence being not compoundable cannot be allowed to be compounded by this Court.

5. The first submission of learned counsel for the appellant is that the appellant be acquitted of his conviction and sentence under section

302. P.P.C.. as the said offence has been compounded with the L.Rs. of deceased. We find that Sessions Judge, Faisalabad has stared that the compromise between the appellant and L.Rs. of deceased was genuine and voluntary wherein the said father and mother of the deceased have compounded and compromised with the appellant waiving their right of 8 Qisas and Diyat on the ground that they have pardoned the accused/appellant in the name of Almighty Allah. Accordingly permission to compound an offence under section 302, P.P.C., with the L.Rs. of the deceased is accorded and Criminal Miscellaneous Application No. 196 of 2001 is accepted, thereby the appellant is acquitted of the charged offence under section 302, P.P.C.

6. The next submission of learned counsel for the appellant is that no case under section 365‑A, P.P.C., was made out, therefore, the appellant be acquitted. He in the said respect has taken us through the entire record specifically the charge, contending that as minor Imran (deceased) after he was kidnapped, was murdered within two hours on the same day, therefore, there could not be any demand after his murder for ransom, consequently no offence under section 365‑A, P.P.C., could be said to have been committed by the appellant in absence of any demand having been made. Charge‑sheet dated 27‑7‑1993 reads as follows: "Firstly, that you, Saeed Ahmed, Ijaz Ahmed, Amin and Muhammad Ali, on 4‑10‑1992, at about noon time in the area of Mohallah Rashid Park, Police Station Jaranwala, District Faisalabad, abducted Imran aged 10/11 years son of Muhammad Akram, complainant for ransom, and demanded Rs.4,00,

000. Thus you have committed an offence punishable under section 365‑A of the P.P.C., which is within the cognizance and jurisdiction of this Court. Secondly, that on the same date in the afternoon all of you have committed murder of Imran in the house of Faryad Ali, in Mohallah Bilal Ganj, Jaranwala, by pressing his throat, and thus you have committed an offence punishable under section 302 of the Pakistan Penal Code of 1860, which is within the cognizance and jurisdiction of this Court." Mere fact that in the charge framed against the appellant and acquitted co accused it mentioned that on 4‑10‑1992 at about noon time the appellant with co‑accused abducted Imran aged 10/ 11 years for ransom thereby committed an offence under section 365‑A, P.P.C., and that on the same day in the afternoon they committed his murder thereby committed an offence under section 302, P.P.C., would not nullify the prosecution evidence which proved beyond doubt kidnapping of minor boy Imran, made for the purpose of extorting cash amount from the father of kidnapped minor boy, for the release of the former. The charge framed did make mention of the required ingredients constituting an offence under section 365‑A, P.P.C., in the first part and in its second part, did state the required ingredients constituting an offence under section 302, P.P.C. Non‑mention of correct date and time of murder from the actual date of kidnapping for the purposes as mentioned in section 365‑A, P.P.C., would not be fatal to the prosecution case made out for an offence under section 365‑A, P.P.C. It may be stated that in the circumstances of the instant case, direct proof with regard date and time of causing of murder of minor Imran was not known to the P.Ws. as the kidnapped boy was in the custody of the appellant, who could have only known as to when he killed him, however, from the other circumstantial and medical evidence, probable period of time between death (murder) and the post‑mortem examination could be arrived at. Besides it may be stated that the said omission and commission in the charge was beyond prosecution resources because of non‑availability of direct proof of actual date and time of commission of murder which has neither misled the appellant/accused nor has caused him any prejudice nor any failure of justice has occasioned, considering also the fact that such plea was neither raised before the trial Court nor before the learned Division Bench of the High Court, therefore, it was of no consequence affecting merits of the prosecution case.

7. It is admitted position that Imran was kidnapped on 4‑10‑1992 while his dead body was discovered on 1‑11‑1992 as per memo. Exh.PT from the 'Baithak' of house of the appellant at his information while he was in the police custody in the hospital. It would mean that minor Imran was murdered in between 4‑10‑1992 to 1‑11‑1992. The dead body of deceased Imran was recovered on 28th day of his kidnapping. The extent of decomposition of dead body of minor Imran as mentioned in the post‑mortem examination report and photographs of dead body (P.12 to P.15) vide memo. Exh.PX would show that the said extent of semi‑decomposition would take place within five to ten days prior to the date of post‑mortem examination, which was conducted on 2‑11‑1992. We find that the opinion of Doctor with regard to the period between death and the post‑mortem examination does not fit in with the extent of semi‑decomposition narrated by him in the post‑mortem examination report in view of observations made by Modi in his Text Book on Medical Jurisprudence and Texicology, 2001 Edition at page 232 under title "Putrefaction .of Decomposition and Autolysis", considering also that doctor has also not given the reasons for arriving at the said opinion. In case minor Imran was murdered about ten days prior to the date of post‑mortem examination, then in that case, said minor boy was murdered around the 20th of October. 1992, when threatening letters for the demand of ransom amount were sent through post in envelops which have postal seals of dates i.e. Exh.Q/I/A is dated 6‑10‑1992, (ii) Exh.Q/3/A is dated 19‑10‑1992 and (iii) Exh.Q/2/A is dated 20‑10‑1992 when fourth letter which was dropped in the factory is dated 29‑10‑1992 which was perhaps without envelop.

8. Even if we assume that the minor was murdered on the same day i.e. after two hours of his kidnapping, the determining factor would be as to what was the purpose/object of kidnapping which in the instant case was evident from the threatening series of letters Exhs.PM/I to PQ/I, wherein demand of ransom money was made from the father of the kidnapped boy. Normally it is not safe to treat expert evidence as to handwriting sufficient basis for conviction. In the instant case the handwriting expert has compared the disputed letters Exhs.PM/I to PQ/I of the appellant/accused with the specimen writings Exhs.P.A, P.B, P.C, P.D and P.F. obtained from the appellant in presence of the Magistrate which he found to have identical characteristics as per his report Exh.P.G. the said opinion of the handwriting expert has found favour with the two Courts below. In addition to above the said threatening letters would indicate that the kidnapped boy Imran was in the custody/control of the author/writer of the said threatening letters Exhs. PM/I to PW/I sent to the complainant the father of kidnapped boy with the purpose of extorting ransom money for the restoration of kidnapped boy wherein it was further mentioned that in failure to fulfil the demand, the said minor boy would be killed. The said threatening letters were written with the object of striking terror in the mind of the father of minor, so that he should pay ransom money for the restoration of minor Imran. It would be immaterial whether, the appellant/accused would be able to restore the kidnapped boy alive or not, but the ingredients of the offence under section 365‑A, P.P.C., viz. (i) removal or kidnapping and (ii) purpose of extorting ransom money, stood proved. It may be observed that the parents of the minor boy who got terrorised by such threatening letters would in the normal circumstances never hesitate or avoid to pay ransom money to the kidnappers, under the bona fide impression that their son would be restored to them. The threatening letters Exhs. PM/I to PQ/I were produced by complainant Muhammad Akram before the police as and when the same were received by him which also were recovered under the recovery memos in presence of witnesses, therefore, the suggestion that those were obtained from the appellant/accused under coercion and by extortion would stand nullified and further by implication it would amount to admission of his handwriting on his part. It may also be observed that the matter would not end there, but the appellant/accused in consequence of letter Exh.PQ/1 came at the place suggested in the said threatening letter to collect the ransom money kept by P.W.8 complainant Muhammad Akram which fact also stood proved through the confidence‑inspiring and unimpeachable testimony of P. W. 8 Muhammad Akram, P. W. 19 Farooq Ahmed and P. W. 20 Muhammad Siddique, from where, appellant/accused collected ransom amount and left the place but was cautioned by the police party to stop when he fired upon police party and in consequence thereof he too was fired upon whereby he was inured and fell down as per confidence‑inspiring and unimpeachable ocular testimony of P.Ws. on record and such memos. of (i) injury sustained by him, (ii) arrest, (iii) recovery of pistol and (iv) cartridges so prepared. This fact also stands proved that he was the author of threatening letters Exhs.PM/I to PQ/I in whose custody and control the kidnapped boy Imran was and he came with the purpose of collecting ransom money when he was injured and arrested and pistol and cartridges and ransom money were recovered from the appellant as per memos. Exhs.PR and PS in presence of Mashirs. The appellant was also taken to the hospital where he remained admitted for sufficient long period due to injuries sustained by him in the firing from police party which fact has been admitted by him in his 342, Cr.P.C. statement. Besides above the appellant/accused during the interrogation in writing when he was not able to speak, gave information in presence of doctor to P.W.19 Farooq Ahmed that minor Imran's dead body was buried in his 'Baithak' of house which he had taken on rent from P.W.7 Faryad Ali who also testified the fact that appellant had taken the said house on rent from him and from the said informed place dead body of minor Imran was discovered and to that effect the testimony of said P. Ws. was confidence‑inspiring which could not also be discredited. It may be appreciated that in consequence of the information given by the appellant/accused who was in police custody, the police recovered dead body of minor boy Imran from the 'Baithak' in presence of Mashirs P.Ws. 9 and 20 as per memo. Exh.PT when complainant the father of Imran deceased identified the dead body of the said deceased.

9. The evidence with regard to the kidnapping for the purpose of extorting ransom money and appellant's series of threatening letters which having been proved to be in his handwriting and further his arrival at the suggested place in the mosque from where he picked up ransom money from the suggested place and time when he was caught at the spot where he sustained fire‑arm injury at the hands of police party thereafter at his information dead body of the kidnapped boy Imran was secured which nobody else could have known, proved the guilt beyond any shadow of doubt against the appellant/accused. Accordingly we maintain the conviction of the appellant under section 365‑A, P.P.C., so also the sentence of death.

10. We do not find any legal or factual infirmity with the impugned judgment of conviction passed against the appellant and also find no mitigating circumstance for reduction in his sentence considering that the said minor boy aged 10‑11 years was murdered and offence of kidnapping for ransom has been rampant in our society, therefore, capital sentence awarded by two Courts below was adequate considering the facts and circumstances of the present case. Accordingly this appeal has no merit and the same is hereby dismissed. N.H.Q./S‑269/S????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.