-Conviction u/S. 365-A, PPC was converted into S. 365, PPC by High Court--Evidence led proved beyond reasonable doubt that appellants had abducted two abductees for purpose of extorting ransom and had compelled complainant to comply with demand for ransom for releasing abductee--

 PLJ 2012 SC 446

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 365-A, 148 & 149--Anti-Terrorism Act, S. 7--Conviction and sentence recorded against accused by trial Court--Conviction u/S. 365-A, PPC was converted into S. 365, PPC by High Court--Challenge to--Abduction for ransom having been proved--Identification of accused was not beyond doubt was not tenable because two of accused were already known to abductees--Validity--Abductees had neither any enmity with convicts nor was so alleged with specific proof to warrant an inference that they had falsely implicated them--Concurrent findings with regard to their abduction were in accord with evidence led and no exception can be taken to it--Prosecution was not obliged to make as an approver or to explain from where ransom amount was drawn or to produce Bank Manager--Evidence led proved beyond reasonable doubt that appellants had abducted two abductees for purpose of extorting ransom and had compelled complainant to comply with demand for ransom for releasing abductee--Impugned judgment passed by High Court was set aside.     [Pp. 451 & 452] A, B & C

Mr. Ghulam Mohi-ud-Din, ASC for Appellant (in Crl.A. No. 79/P/10).

Mr. Taufiq Asif, ASC a/w Appellant (in Crl. A. No. 80-P/10).

Mr. Taufiq Asif, ASC for Respondents (in Crl. A. No. 79-P/10).

Mr. Ghulam Mohi-ud-Din, ASC for Respondent (in Crl. A. No. 80-P/10).

Mr. M. Siddique Khan Baloch, ASC for AG KPK for State.

Date of hearing: 17.2.2012.

 PLJ 2012 SC 446

[Appellate Jurisdiction]

Present: Tassaduq Hussain Jillani, Anwar Zaheer Jamali & Mian Saqib Nisar, JJ.

MUHAMMAD RIAZ and others--Appellants

versus

BILQIAZ KHAN and others--Respondents

Crl. Appeals Nos. 79-P & 80-P of 2010, decided on 17.2.2012.

(On appeal from the judgment dated 8.7.2010 passed by Peshawar High Court, Peshawar passed in Criminal Appeal No. 572 of 2009).

Order

Tassaduq Hussain Jillani, J.--Appellants-convicts were tried in the case registered vide FIR No. 53 dated 25.2.2008 under Sections 365-A/148/149 PPC read with Section 7-ATA at Police Station Takht-e-Nasrati, Karak, on the allegation that they abducted Farooq Ahmed (aged 18/20 years) and Nisar Ahmed (aged 20/22 years) for purposes of ransom and having received the amount, they released them. The learned Trial Court vide its judgment dated 19.11.2009, convicted (under Section 365-A PPC) and sentenced them to life imprisonment. They were further convicted under Section 148 PPC to suffer 1 year RI. Benefit of Section 382-B Cr.P.C was also extended. The learned High Court, however, partly allowed their appeal, their conviction under Section 365-A PPC was set aside and, instead they were convicted under Section 365 PPC and their sentence of life imprisonment was reduced to 7 years RI with a fine of Rs, 100,000/- each in default whereof to undergo 1 year RI each. Benefit of Section 382-B Cr.P.C was however, not extended.

2.  The prosecution story as given in the FIR briefly stated is that on 2.1.2008, complainant's nephews Nisar Ahmed and Farooq Ahmed went to Kanda Siraj Khel after the evening meal on their motorbike Bearing No. 2788-KTF. On return at about 9.50 p.m. they were chased by a white coloured car and within his view, the car intercepted the motorcycle and thereafter both the nephews disappeared leaving behind the motorcycle. The matter was reported to police through a daily diary report, efforts were made to search the abductees and eventually a formal case was registered vide FIR No. 53 dated 25.2.2008 under Sections 365-A, 148/149 PPC read with Section 7 ATA at Police Station Takht-e-Nasrati, Karak. The case of the prosecution is that after 2 days of the occurrence, abductee Nisar Ahmed contacted the complainant through mobile phone of Farooq Ahmed abductee. He informed that they had been abducted by `Taliban'; that they had demanded a sum of Rs. 50,00,000/- for release and that he should not inform the police. Thereafter the accused started calling the complainant on cell phone repeating the said demand. Gul Abbas Khattak, a resident of Jani Khel Wazir District Bannu offered his services for the release of the abductee and then one day, the said Gul Abbas called the complainant and invited to Jani Khel where Hazrat Luqman, Imam Hussain and Rehmat Ullah accused also came, they demanded Rs. 1500,000/- for release of the abductees but finally the bargain was struck at Rs. 10,00,000/-. The said amount was arranged, handed over to Gul Abbas and after the said money had been paid to the accused by said Gul Abbas, the abductees were released. The abductees were kept in confinement for about 46/47 days.

3.  The prosecution during trial examined 15 witnesses including the Investigating Officer. The accused when examined under Section 342 Cr.P.C denied the prosecution story but did not produce any evidence in defense.

4.  Besides the complainant PW-1 Bilqiaz Khan, abductees Nisar Ahmed PW-2 & Farooq Ahmed PW-3 and Samiullah PW-4 also furnished the ocular account. PW-5 Jehan Bakhsh and PW-6 Mir Saleem Khan accompanied the complainant for striking the bargain. PW-8 Gul Ghazi, Tehsildar, Takht-e-Nasrati, conducted the identification parade where one of the abductees namely Farooq Ahmed identified Hazrat Luqman appellant.

5.  Learned counsel for the appellants-convicts submits that it was a case of no evidence; that admittedly the occurrence took place in darkness and complainant was neither in a position to identify as to who allegedly abducted the abductees nor he ever named them in the FIR; that the passage of the ransom amount remained unwitnessed; that there is a background of enmity and the possibility of false implication could not be ruled out.

6.  Learned counsel for the complainant and learned Additional Prosecutor General defended the conviction recorded by the Trial Court by submitting that the case stood proved beyond doubt; that the evidence led was consistent; that there is nothing in evidence to indicate that the abductees or the complainant had any enmity with the appellants - convicts and that the abduction for ransom having been proved, the learned High Court could not have converted their conviction from Section 365-A PPC to Section 365 PPC.

7.  Leave was granted by this Court vide the order dated 24.12.2.010 in terms as follows:--

"Criminal Petition No. 97-P of 2010

Since the High Court has disbelieved most of the evidence of the prosecution and on that score converted the conviction of the petitioners from offence under Section 365-A Cr.P.C to Section 365 PPC, we therefore grant leave to appeal to reappraise the evidence. Since the appeal is to be heard by a three Member Bench and as the sentence of imprisonment imposed on the petitioner is seven (7) years, at the request of the learned counsel, the appeal may be heard at the Principal Seat.

Criminal Petition No. 470/2010

As we have granted leave to appeal in connected Criminal Petition No. 97-P of 2010, leave to appeal is also granted in this petition to consider whether the High Court was justified in converting the petitioners' conviction from offence under Section 365-A Cr.P.C to Section 365 PPC and accordingly reduce their sentences from life to seven years imprisonment."

8.  Having heard learned counsel for the appellants - convicts and the complainant as also the learned Law Officer and having gone through the evidence on record, we find that the occurrence was immediately reported to police by the complainant, which is duly mentioned in daily diary on 2.1.2008 and the bonafide of the complainant is evident from the fact that in the initial report (Report No. 22 dated 22.1.2008), none was named as an accused and it was only on 25.2.2008 that a formal FIR was registered. If the complainant had any malice against the accused, there was nothing to stop him from naming them even in the initial report. Both of the abductees after recovery gave a graphic account of their abduction in their statements recorded under Section 164 Cr.P.C before the Trial Court. A reference may be made to the statement of Nisar Ahmed abductee who appeared as PW-2, who stated as follows:--

"At about 8:00 pm we reached Muhammadi Algada. On our return we were proceeding towards shop of Samiullah. We saw the same white colour Motorcar in start position with dim lights. In the light of motorcycle I saw Muhammad Riaz, Awal Zaman, Tahir, Luqman and other unknown persons duly armed standing near the car. While crossing the car our motorcycle stuck opposite the shop of Samiullah. The six persons mentioned above sat in the Car moved it and stopped in front of our motorcycle. The six persons came out from the car. Awal Zaman called me to come near to him but I tried to start motorcycle. The six persons came towards us. I wanted to shake hand with them but Muhammad Riaz, Awal Zaman and one unknown person attacked me. The remaining three accused attacked my brother. I called Samiullah thrice. In the meanwhile someone threw light upon us from the shop. Two persons ran towards Winki Siraj Khel and the rest put us in the Car. We were blind folded and taken away in the car. We traveled for about one hours in the Car and then we were deboarded and we started on foot. We traveled for 2 to 2-1/2 hours on foot. The abductors forced me to call my another brother Iftikhar Ahmed for the demand of Rs. 50,00,000/- (fifty lacs) as ransom. I was also asked to tell my brother that we had been abducted by Taliban and report should not be made. We traveled for a while and then we stopped. There a Motorcar came and we were put in it. After some time we were deboarded and were locked in a room for 46/47 days. After each 2/3 days the abductors used to ask us to call on cell phone to our relatives for the payment of ransom. My relatives gave Rs. 10,15,000/- to the abductors for our release. At morning time we were released at `Lawagar Algada'. From there we came to Police Station and lodged the report. The police informed our relatives about us who came to the Police Station and took us to the village. My statement u/S. 164 Cr.P.C could not be recorded as the Courts were busy in election duty."

9.  The afore-referred statement was corroborated by the other abductee namely Farooq Ahmed PW-3. Both of them were subjected to lengthy cross-examination but their credibility could not be shaken. The argument of appellant-convicts' learned counsel that the identification of appellants was not beyond reasonable doubt is not tenable, first, because two of the accused namely Awal Zaman and Muhammad Riaz were already known to the abductees; Hazrat Luqman was not only seen by the abductees during their days of captivity but also one of them identified  him  in  the  test  identification parade got conducted by PW-8 Gul Ghazi, Tehsildar, Takht-e-Nasrati. Hazrat Luqman was also identified by the complainant PW-1 and two other witnesses PW-5 Jehan Bakhsh and PW-6 Mir Saleem Khan who had accompanied the complainant for striking bargain with the abductors. These prosecution witnesses particularly the abductees had neither any enmity with the appellants-convicts nor was so alleged with specific proof to warrant an inference that they had falsely implicated them. The concurrent findings with regard to their abduction, therefore, are in accord with the evidence led and no exception can be taken to it.

10.  This brings us to the question as to whether the learned High Court could have converted the conviction under Section 365-A PPC to one under Section 365 PPC. The reasons which found favour with the learned High Court to reverse the conviction under Section 365-A PPC to one under Section 365 PPC were that the middle man who received the ransom amount for onward transmission to the accused namely Gul Abbas Khattak was neither made an approver nor a witness; nothing was brought in evidence as to where from the ransom amount was obtained or borrowed; the Bank Manager of the Bank from where the money was drawn should have been produced and that the payment of the afore-referred amount was not free from doubt. The afore-referred observations, we may observe with respect, are rather conjectural and fanciful and they reflect non-reading of material evidence. The prosecution was not obliged to make Gul Abbas as an approver or to explain from where the ransom amount was drawn or to produce the Bank Manager. Even otherwise a bare reading of Section 365-A PPC would indicate that the passage of money is not a pre-requisite. The said penal provision reads as follows:--

"365-A. Kidnapping or abduction for extorting property, valuable security, etc.--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 case or otherwise, for obtaining release of the person Kidnapped or abducted, shall be punished with (death or) imprisonment for life and shall also be liable to forfeiture of property."

11.  A close reading of the afore-referred provision would show that the essential ingredients to prove the offence are two fold: (i) the act of abduction, (ii) "for the purpose of extorting from the person Kidnapped or abducted, or from any person interested in the person Kidnapped or abducted,... 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".  In  Muhammad Amjad Vs. State (PLD 2003 SC 704), ambit of this provision came up for consideration and the Court held as follows:--

"38. Section 365-A, P.P.C. deals with kidnapping or abduction for extorting property, valuable securities etc. While committing above crime various acts are done i.e. capturing the victim and then detaining him under captivity. Normally thereafter, demand is made for ransom. More often than not these acts are done by more than one person, but in this case every thing was done by the appellant himself. To constitute an offence under this section it is not necessary that the money must have passed on to the culprit, nor it is necessary that the victim must have been released. Abduction/kidnapping may be by force or by deceitful means."

12.  The evidence led proved beyond reasonable doubt that the appellants had abducted the two abductees for the purpose of extorting ransom and had compelled the complainant to comply with the demand for cash/ransom for releasing the abductees. For what has been discussed above, Criminal Appeal No. 80-P/2010 filed by the complainant is allowed and Criminal Appeal No. 79-P/2010 filed by the appellants - convicts is dismissed, the impugned judgment dated 8.7.2010 passed by the learned High Court is set aside and the judgment of the learned Trial Court dated 19.11.2009 is restored.

(R.A.)  Order accordingly