PLJ 2022 Cr.C. 1411 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 365-B--Kidnapping abducting--It is not case of prosecution that assailants demand some money and upon their failure, put them in illegal confinement and committ Zina bil-jabr--If interpretation made by Judge, Anti-Terrorism Court is allowed, that in every Zina bil-jabr case Section 365-A, PPC might be added--Forcing a woman to illicit intercourse has already been made an offence under Pakistan Penal Code, 1860 for life imprisonment.
[Pp. 1413 & 1414] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 365-A--Kidnapping or abducting--Under Section 365-A, PPC, element of extortion from person or kidnapping or abducting for purpose of any property movable or immovable, valuable security or other demand whether cash or otherwise for obtaining release of any kidnapped or abducted person was made punishable with death or imprisonment for life--The elements referred above are not available in FIR, therefore, Section 365-A, PPC would not be attracted. [P. 1415] B
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 365-A--Kidnapping and abduction--Whether facts narrated in FIR does constitute abduction for extorting property, valuable security etc. as defined under Section 365-A, PPC, purpose must be to compel either abductee or any other individual person to give property, either movable or immovable or even valuable security, cash or otherwise as demand for his/her release--Such demand may be illegal act, commission of a crime etc. either from abductee or anyone interested in free mobility of abductee. [P. 1415] C
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 362--Abduction--A bduction is constituted if a person is forcibly compelled or induced through deceitful means just to go from any place--Section 362, PPC is reproduced as under:
“362--Abduction--Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.” [P. 1415] D
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 365-A--Anti-Terrorism Act, (XXVII of 1997), S. 2(n)--Kidnapping and abduction--Abduction for ransom--What constitute an abduction for ransom is actual payment of ransom and its proof are essential--The offence under Section 365-A, PPC is constituted if there is an abduction for extortion of ransom or ransom is demanded for release as defined under Section 2(n) of Anti-Terrorism Act, 1997. [P. 1415] E
PLD 2011 SC 1135.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 365-A--Criminal Procedure Code, 1898 (V of 1898), Ss. 435 & 439--Kidnapping and abduction for purpose of committing zina-bil-jabr--Criminal revision--Convicted and sentence--Offence under Section 365-A, PPC is constituted when abductee is recovered from accused and ransom has passed on to him as held in--Sometime mere demand of ransom for release of abductee constituted offence under Section 365-A, PPC--The statement of abductee is given value if it is made after his release against payment of ransom--Abduction, demand of ransom for release; of either property, cash or otherwise was ingredients which must be present to attract provisions of Section 365-A, PPC--However, in instant case, there was no demand of ransom of cash either from complainant or her relative--The irrational interpretation of word “any other demand” by extending it to compel a woman for a sexual intercourse cannot be adopted by this Court particularly when offence under Section 365-B, PPC and Section 376, PPC exclusively deal with offence of rape; sexual intercourse with a woman against her will by putting her under fear of death, etc.--Revision allowed.
[Pp. 1416, 1417 & 1418] F, G, H & I
2008 SCMR 1572, 2006 SCMR 1230, 2006 SCMR 1257,
1999 SCMR 610 and PLD 1995 SC 1.
Ch. Waseem Ahmed Gujjar, Advocate for Petitioner.
Rai Akhtar Hussain, DPG for Respondents.
Date of hearing: 25.4.2022.
PLJ 2022 Cr.C. 1411 (DB)
[Lahore High Court, Lahore]
Present: Ali Baqar Najafi and Farooq Haider, JJ.
MANSAB ALI--Petitioner
versus
STATE etc.--Respondents
Crl. Rev. No. 17417 of 2022, decided on 25.4.2022.
Order
Through this criminal revision under Section 435 read with Section 439, Cr.P.C. order dated 07.03.2022 passed by the Judge, Anti-Terrorism Court No. III, Lahore has been challenged whereby application under Section 23 of the Anti-Terrorism Act, 1997 filed by the petitioner for the transfer of trial of case FIR No. 2685 dated 23.08.2021 registered under Sections 365-A, 392, 376(ii), 376(iii), PPC & 7 of the Anti-Terrorism Act, 1997 at Police Station Chung, Lahore to ordinary Court was dismissed.
2. Brief facts giving rise to the filing of this revision petition are that FIR No. 2685/21 under Sections 365-A, 392, 376(ii), 376(iii), PPC & 7 of the Anti-Terrorism Act, 1997 was lodged at Police Station Chung, Lahore on 23.08.2021 on the allegation that on 23.08.2021 at 3:00 p.m. the complainant alongwith her 15 years old daughter namely, Iram, came to Lahore from her house Hassan Shah, Tehsil Mailsi District Vehari on a bus and disembarked at Thokar Niaz Baig bypass at 10:00 p.m. They took green coloured Auto Rickshaw bearing Registration No. LEU-4882/013 to go to the house of her sister namely, Shameem wife of Muhammad Mazhar, situated at Sadar Cantt. Hud Officers Colony. The driver, accompanied by another man, took them to H-Block LDA Avenue-I in the darkness of night. These two persons committed Zina bil-jabr with her as well as her daughter. Meanwhile, a car stopped near them upon which they started making hue and cry whereupon the culprits ran away leaving their Rickshaw and taking her mobile phone and Rs. 5000/-with them. One boy made a call on 15 which was attended by the police. The assailants could be identified, hence the FIR.
3. On the same date, vide case Diary No. 1, dated 23.08.2021 Sections 376(ii), 376(iii), 365-A, 392, 34, PPC were added, therefore, the challan was submitted before Anti-Terrorism Court. Meanwhile, on 17.01.2022 petitioner filed an application before the Anti-Terrorism Court No. III, Lahore for transfer of trial of the said criminal case to the ordinary Court which was dismissed while observing that assailants extended the threats of dire consequences and compelled both ladies on gun point for sexual intercourse with them. It was also observed that complainant and her daughter were threatened that if their demand was not fulfilled and if they raised hue and cry, they will not be spared and will be murdered. According to the learned Judge, the victims were removed from one place to another under threat of loss of life in case of non-fulfilment of demand made by the assailants.
4. We have again looked on the contents of the FIR, but have not noticed any demand of property (movable or immovable) valuable security or to compelling the complainant or her daughter to comply with any other demand in cash or otherwise. It is not the case of the prosecution that the assailants demanded some money and upon their failure, put them in illegal confinement and committed Zina bil-jabr. If the interpretation made by the learned Judge, Anti-Terrorism Court No. III, Lahore is allowed, we are afraid that in every Zina bil-jabr case Section 365-A, PPC might be added. Forcing a woman to illicit intercourse has already been made an offence under Pakistan Penal Code, 1860 for life imprisonment. Section 365-B, PPC is reproduced as under:
“365-B Kidnapping, abducting or inducing woman to compel for marriage etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced, or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in this Code, or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.”
Besides, under Section 376, PPC, such an act is made a separate offence. Section 376, PPC is reproduced as under:--
376. Punishment for rape. (1) Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall not be less than ten years or more than twenty-five years and shall also be liable to fine.
(1A) Whoever commits an offence punishable under sub-section (1) or sub-section (2) or Section 377 or Section 377-B and in the course of such commission causes any hurt punishable as an offence under Section 333, Section 335, Clauses (iv), (v) and (vi) of sub-section (3) of Section 337, Section 337-C, clauses (v) and (vi) of Section 337-F shall be punished with death or imprisonment for life and fine.
(2) When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life.
(3) Whoever commits rape of a minor or a person with mental or physical disability shall be punished with death or imprisonment for life and fine.
(4) Whoever being a public servant including a police officer, medical officer or jailor, taking advantage of his official position, commits rape shall be punished with death or imprisonment for life and fine.
5. Under Section 365-A, PPC, the element of extortion from the person or kidnapping or abducting for the purpose of any property movable or immovable, valuable security or other demand, whether cash or otherwise, for obtaining release of any kidnapped or abducted person was made punishable with death or imprisonment for life. The elements referred above are not available in the FIR, therefore, Section 365-A, PPC would not be attracted.
6. To reach on a conclusion that whether the facts narrated in the FIR does constitute abduction for extorting property, valuable security etc. as defined under Section 365-A, PPC, the purpose must be to compel either the abductee or any other individual person to give the property, either movable or immovable or even valuable security, cash or otherwise as demand for his/her release. Such demand may be illegal act, commission of a crime etc. either from the abductee or anyone interested in the free mobility of the abductee. To understand the tenor of abduction for ransom, Section 365-A, PPC is reproduced as under:
“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 cash 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.”
and the abduction is constituted if a person is forcibly compelled or induced through deceitful means just to go from any place. Section 362, PPC is reproduced as under:
“362. Abduction. Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.”
What constitute an abduction for ransom is actual payment of ransom and its proof are essential. The offence under Section 365-A, PPC is constituted if there is an abduction for extortion of ransom or the ransom is demanded for the release as defined under Section 2(n) of the Anti-Terrorism Act, 1997. Reliance is placed upon Junaid Rehman and others versus The State and others (PLD 2011 Supreme Court 1135). Relevant Para 6 is reproduced as under:
“6. From a bare reading of the provisions of Section 365-A, P.P.C. and Section 2(n) of the Anti-Terrorism Act, 1997 it is quite evident that in order to constitute an offence of abduction for ransom actual payment of ransom and proof thereof are not sine qua non and the said offence also stands constituted if there is an abduction and the purpose of abduction is extortion of ransom (Section 365-A, P.P.C.) or ransom is demanded for release of the abductee (Section 2(n) of the Anti-Terrorism Act, 1997). Section 365-A, P.P.C. 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 cash 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."
Section 2(n) of the Anti-Terrorism Act, 1997 provides as under:
"(n) "kidnapping for ransom" means the action of conveying any person from any place, without his consent, or by force compelling or by any deceitful means inducing him, to go from any place, and unlawfully detaining him and demanding or attempting to demand, money, pecuniary or other benefit from him or from another person, as a condition of his release."
In the similar manner, the offence under Section 365-A, PPC is constituted when the abductee is recovered from the accused and the ransom has passed on to him as held in Faheema Ahmed Farooqui versus The State (2008 SCMR 1572). Relevant extract of Para 10 is reproduced as under:
“10….. The evidence produced by the prosecution is highly discrepant and suffers from serious infirmities and contradictions and except the bare allegations in the F.I.R., there is nothing incriminating on the file to connect the appellant with the commission of crime. It may be observed that neither Fahad Hamdani, alleged abductee has been recovered from the custody of the appellant nor there is evidence regarding passing of the ransom amount to the appellant. The mere assertion; of the complainant that appellant had a hand in the affair and he is author of the crime, without a positive attempt on his part to substantiate the same, is of no consequence. We find force in the submission of learned Counsel for the appellant that no cause of abduction or kidnapping is made out and ingredients of offences punishable under Section 365-A, P.P.C. and Section 7(e) of the Anti-Terrorism Act, 1997 are not attracted in this case……”
Sometime mere demand of ransom for the release of the abductee constituted the offence under Section 365-A, PPC as held in Muhammad Nabi and 4 others versus The State (2006 SCMR 1230) and State through Advocate-General, Sindh versus Mooso (2006 SCMR 1257). The statement of the abductee is given value if it is made after his release against payment of ransom as held in The State versus Nazir Ahmad and others (1999 SCMR 610). Relevant extract from Para 15 is reproduced as under:-
“…..In case of kidnapping or abduction unless there are strong reasons to discredit testimony of abductee/kidnapee, his statement carries substantial evidentiary value……”
“….. The version of Hassan Mehboob when looked in the entire perspective and recovery of ransom amount which led to his release, appear to be truthful sufficient convincing and confidence inspiring…..”
The object of abductee is of prime importance and a direct demand of ransom to relative of the abductee by particular member of this organized crime was not the requirement to constitute offence. Under Section 365-A, PPC since such criminals operates in a group having different assigned roles. Reliance is placed upon State through Advocate-General, Sindh, Karachi versus Farman Hussain and others (PLD 1995 Supreme Court 1).
7. The above referred judgments strongly suggest that abduction, demand of ransom for release; of either property, cash or otherwise was the ingredients which must be present to attract the provisions of Section 365-A, PPC. However, in the instant case, there was no demand of ransom of cash either from the complainant or her relative. The irrational interpretation of the word “any other demand” by extending it to compel a woman for a sexual intercourse cannot be adopted by this Court particularly when offence under Section 365-B, PPC and Section 376, PPC exclusively deal with the offence of rape;
sexual intercourse with a woman against her will by putting her under fear of death, etc.
8. For the above stated reasons, this criminal revision is allowed, order dated 07.03.2022 passed by the Judge, Anti-Terrorism Court No. III, Lahore is set aside. Resultantly, the trial of case FIR No. No. 2685 dated 23.08.2021 registered under Sections 365-A, 392, 376(ii), 376(iii), PPC & 7 of the Anti-Terrorism Act, 1997 at Police Station Chung, Lahore shall be referred back by the learned Judge, Anti-Terrorism Court No. III, Lahore to learned Sessions Judge, Lahore who shall either himself or will entrust it to any learned Additional Sessions Judge, Lahore for its trial.
(A.K.K.) Revision allowed
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