Kidnapping for ransom

Action involving kidnapping for ransom, hostage-taking or hijacking is an offence under clause (e) of subsection (2) of section 6 of the Anti-Terrorism Act, 1997 ('ATA of 1997'), if it is established that such action falls within the meaning of subsection (1) of section (6) of the ATA of 1997

If kidnapping for ransom, hostage-taking or hijacking is done with intent, design, purpose, or object of terrorism, the same shall fall within the meaning of subsection (1) of section 6 and is an offence under subsection (2)(e) of section 6 of the ATA of 1997, triable exclusively by the Anti-Terrorism Court (ATC) and punishable under section 7(e) of the ATA of 1997

If there is no intent, object, purpose or design of terrorism in committing an act of abduction or kidnapping for ransom, it shall not be an act of a terrorism within the meaning of subsection (1) of section 6 of the ATA of 1997

Thus, in absence of an element of a terrorism, an act of abduction or kidnapping for ransom for personal vendetta shall constitute an offence under section 365-A, P.P.C.

However, in view of heinousness of such act, it is exclusively triable by the ATC, only for the purpose of its speedy trial, but the accused shall be charged under the relevant provision of law, instead of charging him under any of the provisions of the ATA of 1997.

Admittedly, the incident occurred on account of a raid upon a house which at the relevant time was in possession of the petitioners

Purpose of the raiding party was to recover an abductee from the clutches of the petitioners

Facts and circumstances of the case did not establish the intent, object, design or purpose of the petitioners to do an act of terrorism

Reaction shown by the petitioners was to avoid their arrest, hence, in retaliation, they started firing

Though, such act of firing was illegal, but there was no intention or preparation to commit murder, in order to overawe or intimidate the police officials, who were the members of the raiding party

Besides, the occurrence took place in a house and there was no evidence to prove the presence of general public, therefore, the element of sense of fear or insecurity in the society was also lacking

Thus, the action of the petitioners by committing murder of the police officials, in the given circumstances, did not fall within the ambit of provision of section 6(1) of the Anti-Terrorism Act, 1997 ('ATA of 1997')

In absence of any ingredient of terrorism, the petitioners could not have been convicted and sentenced under the provisions of the ATA of 1997

Since the prosecution had succeeded in proving the commission of qatl-i-amd against the petitioners, therefore, their action fell within the provisions of section 302, P.P.C.

Jail petitions were dismissed with the modification that the convictions and sentences awarded to the three petitioners by the High Court and the Trial Court under sections 7(a), 7(b) & 7(h) of the Anti-Terrorism Act, 1997 were set aside and they were acquitted of the charge to that extent

However convictions and sentences of two of the petitioners under sections 302(b), 34 and 324, P.P.C., awarded by the fora below were maintained.

In the case in hand, the complainant in the FIR and in his statement recorded on oath before the Trial Court, had simply alleged that his son was abducted for ransom

Record reflected that there was merely a demand of a ransom

Neither the complainant nor the prosecution witnesses had taken a stance that the action of the petitioners was with the intent, object, purpose or design of a terrorism

There was nothing on the record, connecting the petitioners in any manner with terrorist activities or having any link or nexus with any terrorist organization in order to bring such act of the petitioners within the ambit of terrorism, as defined in section 6(1) of the Anti-Terrorism Act, 1997 ('ATA of 1997')

Record made it clear that the act of the petitioners was for their personal vendetta, hence, it was an ordinary case of abduction or kidnapping for ransom, which fell within the ambit of section 365-A, P.P.C.

However, because of its heinousness and after its inclusion in the Third Schedule to the ATA of 1997, it was triable by the Anti-Terrorism Court (ATC), to the exclusion of any other court

Fora below were wrong in convicting and sentencing the petitioners under section 7(e) of the ATA of 1997, instead of convicting and sentencing them under section 365-A, P.P.C.

Since, punishment for both the offences was same, therefore, no prejudice would be caused to either of the parties, if the charge was altered

Jail petitions were dismissed with the modification that the charge framed against the petitioners under the provisions of the ATA of 1997 was altered to that of section 365-A, P.P.C.

As the prosecution had succeeded in proving its case against the petitioners for committing an ordinary offence of kidnapping for ransom, therefore, their convictions under section 7(e) of the ATA of 1997 were converted into section 365-A, P.P.C., and they were sentenced to suffer imprisonment for life each with the benefit of section 382-B, Cr.P.C.

Held, that it was evident from the record of present case that the accusation of kidnapping for ransom involved five individuals allegedly motivated solely by financial gain

Present incident was alleged to be a short term kidnapping for ransom that lasted only for 5 to 6 hours and the abductee was released allegedly upon receipt of the demanded ransom amount

Petitioners (accused persons) lacked a prior criminal history, therefore, this did not meet the criteria for terrorism as the two fold requirement of mens rea was missing

Moreover, the statement of one of the petitioners under Section 342, Cr.P.C., revealed that an enmity existed between the parties on account of agricultural lands and he also produced defence evidence in this regard, however, the Trial Court failed to appreciate the same

Hence, it had no connection with the act of terrorism

As the intention of the petitioners was not at all to create sense of insecurity or to destabilize the public at large or to advance any sectarian cause, the design or purpose of the present offence as contemplated by the provisions of Section 6 ATA was not attracted

Consequently Section 7(e) ATA became inapplicable

Prosecution had failed to prove its case beyond reasonable doubt against the petitioners

Petitions were converted into appeals and were allowed, and the accused persons were acquitted of the charge.

First Information Report was registered after the recovery of abductee who had previous acquaintance with the petitioners (accused persons)

Despite such fact abductee did not disclose the names of accused persons rather he nominated them at a belated stage through a supplementary statement, which spoke volumes about the deliberations and consultations on the part of complainant and victim

Major contradictions were found in the statements of the abductee

Abductee claimed that injections were administered to him by the petitioners, however, no medical examination of the abductee was conducted to verify this fact

Moreover, no traces of said injections were recovered either from car of the abductee or from the possession of petitioners

Abductee in his testimony had admitted that his mobile phone which was used by petitioners for demanding ransom was recovered by the police however no recovery memo was available on record

Complainant deposed that the call for ransom was received by him on his phone number, however, he did not provide any Call detail Record (CDR) to substantiate his statement

Complainant went alone to the agreed location for delivering the demanded ransom amount to the petitioners, hence, the incident of delivery of ransom money was also not witnessed

Furthermore, the complainant did not mention any particulars, colour, model, etc., of the car in which the petitioners came to receive the ransom amount or the car in which he went to handover the ransom money

All the recovery witnesses were either police officials or complainant and his relatives

All prosecution witnesses were interested and no independent witness was associated to recovery proceedings

Recoveries of motorcycle, pistols and part of the ransom money at the instance of petitioners could not be safely relied upon

So far as motorcycle was concerned, no such detail was disclosed in the FIR - Recoveries of weapon was also not of much help to the prosecution as no particulars of said weapons were mentioned in the FIR rather it was only stated that all accused were duly armed with pistols

Giving of Rs.1,000,000/- (ten lacs) to the petitioners' side was not proved by the complainant as no denomination of currency notes was disclosed either in the FIR or before the Trial Court

When the fact of giving Rs.1,000,000/- (ten lacs) by the complainant for the release of abductee was not proved, the alleged recoveries of part of the ransom amount at the instance of the petitioners were inconsequential and could not be relied for maintaining the conviction and sentence of the petitioners

Prosecution had failed to prove its case beyond reasonable doubt against the petitioners

Petitions were converted into appeals and were allowed, and the accused persons were acquitted of the charge.

Identification parade of the petitioner (accused) was held under supervision of Special Judicial Magistrate, wherein the alleged abductee identified the petitioner as the accused

During cross-examination Special Judicial Magistrate admitted that the petitioner had raised objection before the identification parade proceedings that he was shown to the abductee in the office of a police official

Contents of the identification parade memo reveal that during identification parade, the alleged abductee did not specify the role played by the petitioner in the alleged occurrence

Identification of an accused person without reference to the role allegedly played by him during the occurrence is shorn of any evidentiary value

Prosecution had failed to prove the charge against the petitioner beyond reasonable doubt

Petition was converted into appeal and allowed, and the accused was acquitted of the charge.

Despite allegation of repeated contacts by the petitioner (accused) with the complainant and his son on cell phones as well as through a Public Call Office (PCO) number, no Call Data Record ('CDR') with regard to the alleged phone calls had been produced at the trial

Complainant had not furnished any explanation for inordinate delay of two days in registering the FIR

Alleged abductee as well as the complainant had fabricated/made improvements during investigation regarding items allegedly snatched from the alleged abductee

Possibility of foisting the above articles upon the petitioner to create incriminating circumstantial evidence could not be ruled out of consideration

Alleged abductee had not mentioned as to who was driving the car when he was put on the rear seat of the car after his hands were tied

Prosecution had failed to prove the charge against the petitioner beyond reasonable doubt

Petition was converted into appeal and allowed, and the accused was acquitted of the charge.

Version of said witness about narration of the occurrence by the alleged abductee to his father was lacking independent corroboration

Another witness, in whose presence the alleged abductee had narrated the details of the occurrence to the complainant, had not been produced by the prosecution at the trial

Son of the complainant who had allegedly received calls of the accused to arrange for the ransom at the earliest was neither associated during investigation nor produced at the trial as a prosecution witness

Under Article 129 (g) of the Qanun-e-Shahadat, 1984 the Court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it

Hence, adverse inference was drawn to the effect that had the above witnesses been produced at the trial, they would not have supported the prosecution case

Prosecution had failed to prove the charge against the petitioner beyond reasonable doubt

Petition was converted into appeal and allowed, and the accused was acquitted of the charge.

No bank record had been produced by the complainant at the trial to prove encashment of ransom amount i.e. rupees three million

Recovery of rupees two hundred and forty thousand from the house of the petitioner (accused) on his pointation in pursuance of his disclosure after more than twenty days of his arrest was lacking independent corroboration as no notable or inhabitant of the area was associated during the alleged recoveries

Allegedly recovered cash was identified by the complainant in the police station in absence of Special Judicial Magistrate

Complainant had failed to explain as to how he identified the currency notes

Prosecution had failed to prove the charge against the petitioner beyond reasonable doubt

Petition was converted into appeal and allowed, and the accused was acquitted of the charge.

To be guilty of the offence under S. 365-A, P.P.C., it was not to be proved that a ransom was actually paid but only that a ransom demand was made.

Prompt registration of FIR, gave no time for concoction and evidence of eye-witnesses and other prosecution witnesses corroborated one another in all material aspects as to robbery and kidnapping

Prosecution witnesses were reliable, trust worthy and confidence inspiring who were not damaged during lengthy cross-examination

Short interval between release of abductee and identification of accused, when he was arrested on the spot and the abductee had no reason to falsely implicate him

Prosecution through its witnesses, especially the abductee was able to correctly identify accused as one of the persons involved in his kidnapping for ransom

Lack of Hulia and identification parade did not preclude correct identification of accused as was one of those persons involved in kidnapping for ransom

High Court declined to interfere in conviction and sentence awarded to accused by Trial Court

Appeal was dismissed, in circumstances.

No ransom even has to be paid in order to commit such offence.

High Court declined to rely upon identification parade as one of the conditions was that all dummies must be similarly dressed up, was missing in the proceedings

Call Data Reports were taken into possession during investigation pertaining to all accused persons but were not proved by prosecution in accordance with law as the same were computer generated papers secured from system available with police department

Principle to prove evidence through modern device was not followed

Prosecution in all circumstances was under obligation to prove its case at all stages of criminal trial

No license could be given to prosecution to take advantage of weakness of defence as it had to stand on its own legs

Heinousness of offence alone could not be considered to record conviction

Before an accused was sent to gallows, Court required evidence and that too of qualitative nature

Benefit of doubt in all situations was to be extended to accused not as a matter of right but as a privilege

High Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge

Appeal was allowed in circumstances.

Accused was convicted under S.365-A, P.P.C. & Ss.7(e)/7(2) of Anti-Terrorism Act, 1997, for having abducted the grandson of complainant for ransom

No ransom was paid

Prosecution stance was that the ransom was claimed through telephone, but no data or conversation of the demand was recorded

Demand of ransom was not proved which made the applicability of the above-mentioned sections doubtful

Conviction of accused for the said charges could not be termed as justified, however, not only abduction was proved and established but the victim was also recovered from the possession of accused

Such fact made the accused liable to treatment under S.365, P.P.C.

Conviction of accused was altered to S.365, P.P.C. and he was sentenced to rigorous imprisonment for 07 years

Appeal against conviction was dismissed accordingly.

If all the accused played their designated role the kidnapping for ransom could not have been achieved and would have failed then each accused involved in the kidnapping for ransom bore equal responsibility and liability for the offence.

Any person who played a role in a kidnapping for ransom case, however minor, was equally as liable as the other co-accused.

Once a demand for ransom was made then that would fulfil the legal ingredients under S.365-A, P.P.C. of kidnapping for ransom whether any ransom was paid or not.

At least some person has to comply with the demand whether in cash or otherwise in order to obtain release of abductee.

Trial proceeded in private complaint filed by complainant-appellant, in which all accused persons were acquitted of the charge

Validity

Exclusive knowledge of accused regarding place of captivity of abductee fell within the concept of Art. 122 of Qanun-e-Shahadat, 1984, as on his pointation abductee was recovered from a residential flat

Such aspect was confirmed during trial by police officials who appeared as Court witnesses

Exclusivity of knowledge of accused regarding different aspects of occurrence was a piece of evidence inexorably pointing upon his culpability

Information supplied under Art. 40 of Qanun-e-Shahadat 1984, by accused in police custody was admissible only to the extent of that it related to disclosure of a new fact

Newspaper cutting in criminal case could not be used either in favour of prosecution or in favour of defence unless author of the same was examined in Court as witness

Such was a blatant illegality by Trial Court which resulted into judgment of acquittal of accused persons

High Court converted acquittal of accused persons into conviction and sentenced them to imprisonment for seven years

Appeal against acquittal was allowed, in circumstances.

Record showed that since the principal offence whereby the accused had been convicted, was S.365-A, P.P.C., death penalty had been awarded, rest of the offences were ancillary thereto

According to S.17 read with S.21-H of the Anti-Terrorism Act, 1997 any other offence committed in the same series of the act falling within any other law was also triable by the Anti-Terrorism Court

Conviction recorded and sentence awarded under S.395, P.P.C., on that analogy might be treated ancillary to the principal offence and the appeal would lie before the forum provided by Anti-Terrorism Act, 1997

Federal Shariat Court, in circumstances, transferred the appeal to the High Court of Sindh, accordingly.

In order to constitute an offence of kidnapping for ransom, the proof of payment of money or even demand thereof was not sine qua non

Said offence also stands constituted if there was an abduction for the purpose of extortion of money or ransom was demanded.

When demand for ransom was made, legal ingredients under S.365-A, P.P.C. were fulfilled, whether any ransom was paid or not.

Authorities assailed order passed by Trial Court under S. 265-K, Cr.P.C. where accused were acquitted of charge of murder of abductee after kidnapping

Authorities contested that extra-judicial confession of accused as well as recovery of dead body of abductee upon pointing of accused were sufficient grounds for conviction

Validity

Extra-judicial confession as well as confession of accused persons revealed discovery of new facts as well as discovery of remains of abductee

Forensic Science Laboratory report received in negative had diminished evidentiary value of both extra-judicial confession and confessional statement of accused

Such statements were not recorded voluntarily, otherwise accused could have pointed out exact grave of deceased and discovered remains which could have matched with blood relations

Case of prosecution was doubtful and Trial Court while delivering order of acquittal had rightly extended benefits of such doubts in favour of accused and rightly they were acquitted of the charge

Accused, after acquittal earned presumption of double innocence and acquittal orders were not interfered with until and unless it was proved on record that same was perverse, contrary to record, fanciful and not sustainable

High Court declined to interfere in judgment passed by Trial Court as same was neither perverse, fanciful nor ridiculous or contrary to record rather same was based on proper appraisal of material available on record

Appeal was dismissed in circumstances.

Object of kidnapping the abductee for ransom could not be achieved without mentioning the role of each accused and that all accused had the same objective i.e. to kidnap the abductee for ransom

All the accused, in such a case, were liable for the same offence of kidnapping for ransom and same punishment.

Confidence inspiring deposition of abductee stood corroborated by other reliable evidence to extent of guilt of convicted accused persons

No reason was available to disbelieve consistent and confidence inspiring, trustworthy deposition of abductee to extent of convicted accused persons

Testimony of abductee to the extent of acquitted accused persons, however could not be disbelieved, for prosecution could not bring sufficient evidence on record for corroboration

High Court declined to interfere in conviction and sentence passed by Trial Court under S. 365-A, Cr.P.C.

Conviction and sentence under S. 7 of Anti-Terrorism Act, 1997 was set aside as prosecution could not establish all the ingredients required to prove the commission of offence

Appeals were dismissed accordingly.

Every member of gang involved in abducting any person, was equally and vicariously liable; and in such like cases, specific role of accused, was not the prime consideration, if it was established that accused was a member of an organized gang.

During extensive physical remand of accused nothing connecting accused with alleged offence could be recovered and there was no disclosure of place of confinement of abductee

Car allegedly used by accused, when he received ransom amount and about his four co-accused persons could be obtained to corroborate prosecution story furnished by prosecution witnesses

Alleged recovery of ransom amount from the possession of accused at the time of his arrest, such amount was not tainted and was of no consequences to prosecution case being not sufficient to connect accused with commission of alleged offence

Place where ransom was paid by prosecution witnesses could not be pointed out by them

Prosecution was to prove its case against accused by standing on its own legs and it could not take any benefit from weaknesses of case of defence

Prosecution failed to discharge its responsibility of proving case against accused

If there was a single circumstance which created reasonable and cogent doubt regarding prosecution case, the same was sufficient to give benefit to accused

High Court set aside conviction and sentence recorded by Trial Court and accused was acquitted of the charge levelled against him by extending him benefit of doubt

Appeal was allowed in circumstances.

Complainant did not utter a word in his testimony that application had been prepared on his dictation or that it was ever read over to him or he signed it or not

Complainant contended in his testimony that he got recorded application which was dictated by an advocate to a computer operator/steno

Statements of prosecution witnesses did not paint an unblemished picture regarding prosecution case as their testimonies were inconsistent, discrepant and contradictory, inter se, besides entailing a touch of countless improbabilities, hence liable to be brushed aside

Prosecution case was more of a cock and bull story so far as involvement of accused was concerned

Conviction and sentence of accused could not be maintained on such quality of evidence

High Court set aside conviction and sentence of accused recorded by Trial Court and acquitted him of the charge

Appeal was allowed in circumstances.

One abductee, was not examined, whereas the other one had negated the version of police with categorical statement that accused was not the same person who abducted them

Best evidence available with the prosecution to insist for conviction of accused was evidence of the abductees, who were star witnesses, for which burden was upon the prosecution

Prosecution, in discharge of such burden, had failed to bring one abductee into witness box, while the other abductee did not implicate co-accused

Case of abduction revolved around the abductee, and it was not safe to convict the accused where the abductees did not point finger on accused claiming him as culprit of abduction

Accused was not arrested from place of recovery of the abductee

Allegation against accused persons, were one and the same

Fate of trial for said accused persons including the present accused was the result of same set of evidence

Out of three accused persons, two had been acquitted and their acquittal had attained finality as same was not challenged

Present accused, in circumstances, was also entitled for the same treatment

Accused having succeeded to make out his case of acquittal, impugned judgment was set aside and accused was acquitted of the charge and was released.

Trial in absentia, was illegal and against the spirit of "fair trial" as provided under Art.10-A of the Constitution; as it would give an opportunity to the aggrieved to come and seek de novo trial

Article 10-A of the Constitution was equally applicable to either side; hence prosecution, could come with such plea

Such right was not meant to prejudice Art.13 of the Constitution or its application, which even barred prosecution for one and the same offence more than once.

Anti-Terrorism Court dismissed the application under S. 265-K, Cr.P.C. on the ground that the points raised therein, being related to factual aspects of the case, required evidence

Accused had simply pleaded that the charge against him was false and in support of his contention had referred to certain contradictions in the complaint and the statements of the witnesses

Accused was not able to show any material discrepancy in the contents of the complaint and the statements of witnesses to establish that the allegations against them were prima facie false and fabricated and that those allegations even if proved would not end in their conviction

Accused could not be acquitted under S. 265-K, Cr.P.C. on basis of any alleged contradictions in the statements of the witnesses

Object of S. 265-K was to satisfy the court about prima facie occurrence of the incident

Benefit of the provision of S. 265-K, Cr.P.C could only be extended to the accused, when once he was able to establish that the charge of the offence against him was groundless and no probability of his conviction on basis of the such charge existed

Delay in filing of the complaint also could not be considered valid ground for acquittal of the accused under S. 265-K, Cr.P.C.

Whether any adverse consequence was to follow or not due to the delay was essentially a factual question, which had to be appreciated only in the light of the evidence

Delay in lodging the complaint, even otherwise, appeared to have been reasonably explained

Accused, in the given circumstances were not entitled to be acquitted under S. 265-K, Cr.P.C.

Revision was dismissed accordingly.

Complainant stated that he was asked to stop the car and bring shopping bag outside the window of car, one person went there and took shopping bag

Complainant stated that his son disclosed names of culprits and he had seen face of that person who had taken shopping bag containing, amount of ransom

Accused persons were convicted by Trial Court and sentenced to imprisonment for life

Validity

For handing over ransom amount to accused, there was only evidence of complainant even driver of his car or anybody else was not examined regarding payment of Rs. 12,00,000 to accused

Complainant had seen accused who had taken money, first time at police station but Investigating Officer did not hold identification parade whereas abductee stated that such person remained employee of complainant

All accused persons were arrested on 20-06-2011 by Anti-Car Lifting Cell and TT pistols were recovered from four accused persons

Two accused produced certified copy of application under S. 491, Cr.P.C., filed by their relatives on 18-06-2011 claiming them to have been illegally detained at Crime Investigating Agency Center but due to leakage of order of raid police officials concealed accused persons and showed their arrest and recovery on 20-06-2011

As such arrest of accused persons and recovery of pistols from them was doubtful

Many contradictions and exaggerations existed in evidence which were not considered by Trial Court while deciding case of appellants

Prosecution failed to prove in case against accused persons beyond shadow of reasonable doubt

High Court set aside conviction and sentence awarded by the Trial Court and acquitted all the accused of the charge

Appeal was allowed in circumstances.

F.I.R., was registered after period of three months from alleged abduction, and no plausible explanation was available for said inordinate delay

Contradiction existed in the statement of the complainant with regard to payment of ransom amount

Complainant in his evidence had deposed that he had paid ransom amount of Rs.34,00,000 to accused persons, whereas he had narrated before the Police at the time of recording F.I.R. that he had paid Rs.5,00,000

No question was put to accused persons, whether they had released the alleged abductee after receipt of ransom amount from the complainant

Since the prosecution had collected the ransom amount, no specific question of said recovery was asked from accused persons in their statements under S.342, Cr.P.C.

Such was an illegality as the provision of S.342, Cr.P.C. was mandatory and non-compliance thereof amounted to illegality not curable under S.537, Cr.P.C.

No doubt deposition of accused remained unchallenged and accused were liable to be convicted, but abductee had given contradictory statement, which had made his deposition doubtful

Alleged abductee had stated that he had not identified one of the accused persons, his deposition was not free from doubt

Evidence of the abductee, was not inspiring-confidence, same did not help the prosecution, but it supported the stand taken by accused

Present case being not free from doubt, benefit of which had always to be given to accused

Prosecution case did not inspire confidence and conviction of accused was founded on tainted evidence, which could not be sustained in law

Allowing appeal, judgment of the Trial Court was set aside, accused was acquitted of the charge and was released, in circumstances.