PLJ 2023 Cr.C. (Note) 3
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 365-A, 302(b) & 34--Conviction and sentence--Challenge to--Quantum of sentence--What he unsuspectingly omitted to mention in is borrowing of his motorcycle by appellant--This motorcycle was used in kidnapping and murder of none other than his own son--The overall analysis of prosecution evidence which is from sources that cannot be blamed as being inimical or interested spell out a scenario in which one can safely visualize appellant deceptively taking away a motorcycle which was owned by no other than father and then joining hands with appellant to collect ransom from his father--As appellant was known to child, he simply could not afford to let him return safely--This scenario is neither conjectural nor hypothetical rather rooted into evidence furnished by PW-7--Prosecution has exaggerated its case in so far as joint arrival of appellants at designated place is concerned--While sifting grain from chaff, this anomaly of partial exaggeration on part of prosecution is indemnified by other pieces of evidence which fully framed both appellants with charge, even if this, piece of evidence is ignored to extent of appellant in so far as alleged joint arrival of both appellants to collect ransom is concerned--Crl. Appeal was dismissed filed by appellants and maintain convictions there
under--Insofar as quantum of sentence to be inflicted upon appellants is concerned, that they have been awarded life imprisonment under Section 365-A, PPC which is identically punishable with alternate penalty of death on charge of homicide--If, it was found by trial Court that imprisonment for life on charge of Section 365-A, PPC was an appropriate sentence in circumstances of case, charge against them under Section 302(b), PPC merited identical treatment, as Court have declined to believe prosecution on arrival of appellant in company of appellant to collect ransom amount, provides yet another justification to visit appellants with lesser penalty of imprisonment for life--Court convert penalty of death on both appellants to imprisonment for life--Appeal dismissed. [Para 9 & 10] A, B, C & D
M/s. Tahir Shabbir Chaudhry & Badar Raza Gillani, Advocates for Appellants.
Mr. Shahid Iqbal, Advocate for Complainant.
Malik Riaz Ahmad Saghla, Deputy Prosecutor General for State.
Date of hearing: 26.1.2015.
PLJ 2023 Cr.C. (Note) 3
[Lahore High Court, Lahore]
Present: Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ.
versus
STATE and another--Respondents
Crl. A. No. 5-ATA & CSR No. 4 of 2010, heard on 26.1.2015.
Judgment
Qazi Muhammad Amin Ahmed, J.--Criminal Appeal No.05-ATA of 2010 is clubbed with Capital Sentence Reference No.04 of 2010 that arise out of an incident which occurred on 19.08.2009 at 3.00 p.m. within the area of ‘Sirki Bazar’ situated at a distance of two furlong from Police Station, Ghallah Mandi, Sahiwal. According to statement (Ex.PA) recorded by Rashid Ahmad, Inspector/SHO (PW-10) on the statement of Tariq Javed (PW-7) converted into formal FIR (Ex. PA/1) by Aamir Farooq, ASI. Case of the prosecution is that on 19.08.2009, at about 3.00 p.m Arslan Tariq aged about 9 years, a student of 2nd class went to nearby grocery shop and did not return home whereupon the complainant and his cousin Muhammad Irshad went out for a search but remain clueless. Same day at about 5.22 p.m the petitioner received a call which originated from a cell phone bearing No.0305-7973745 wherein the caller informed the complainant that Arslan Tariq was with him and that he would call in again. Second call was made at 9.00 p.m wherein a sum of Rs. 25,00,000/- was demanded and the complainant was also warned not to lay information with the police. The third call was made from the same number after about two hours. Information was conveyed to the Police at 9.20 a.m on 20.08.2009 at Pakpattan Chowk and a case under Section 365-A read with Section 34 PPC was registered.
2. According to the prosecution, the deal was finally settled for Rs. 2,00,000/- to be paid in lieu of release of Arslan Tariq at a designated place and time. Ransom amount comprising of 200 currency notes of Rs.1000/- denomination each were signed by PW-12. On 20.08.2009 at 7.30 p.m the complainant, Irshad and Abdul Hameed PWs came across the appellants at a place known as Anjam Farm Road and handed over the amount to Muhammad Hafeez appellant when the police party surprised and overpowered them at the spot. On their arrest, pursuant to disclosure separately made by them they independently lead the police party to the place where dead body of Arslan Tariq was lying which was dispatched to the mortuary and the Medical Officer Dr. Muhammad Yousaf Saleemi (PW-11) noted that scalp was putrefied, Lambdoid and sagittal sutures of scalp were opened underline brain and meninges were oedematous, vertebras were intact. The Medical Officer opined that probable time between death and postmortem was about 36 hours. The final report was referred till receipt of results of Chemical Examiner and Histopathologist. Final opinion was formulated on 02.11.2009 which is as follows:
“Histological examination of the heart sections reveals patent coronaries and unremarkable myocardium. The lung sections reveal vascular congestion and presence of RBSs inside alveoli. The renal sections reveal vascular congestion and presence of abundant haemorrhages inside renal tissue. Histological examination of the hyoid bone sections reveals bone. No ante mortem haemorrhages are seen”
I.O. at the time of their arrest took into possession Rs. 200,000/- (Ex.P5/1-200) currency notes of Rs.1000/- denomination each vide recovery memo (Ex.PF) from Muhammad Hafeez. Pistol 30-Caliber, 4-live bullets and mobile phone Samsung were recovered from Ali Hassan which were took into possession vide recovery memo Ex.PG. Ali Hassan accused got recovered motorcycle (P-3) secured vide memo (Ex.PD) on 27.08.2009 and Muhammad Hafeez-accused mobile phone (P-4) secured vide memo (Ex.PE).
3. Upon submission of report under Section 173, Cr.P.C. appellants were sent to face trial, they were indicted on 16.09.2009; they pleaded not guilty and claimed trial.
4. Prosecution in order to prove charge against the appellants produced as many as 12 witnesses, besides relying upon forensic reports. Both the appellants took the identical plea which is reproduced below:
“PWs are interested and related inter-se. The case has been planted against me. It was blind murder. There was no evidence incriminating against me, collected by the investigating officer to show the police karwai. Police has falsely involved in this case. The evidence has been fabricated and maneuvered by the I.O”.
5. Upon conclusion of trial, the learned trial Judge convicted the appellants under Section 365-A, PPC read with Section 34, PPC and sentenced them to imprisonment for life alongwith forfeiture of property of both the accused for the ransom of abduction of Arslan Tariq. They were further convicted under Section 302(b) read with Section 34, PPC and sentenced them to death with payment of compensation of Rs.1,00,000/- each to the legal heirs of Arslan Tariq deceased u/S. 544-A of Cr.P.C or in default thereof to further undergo S.I for six months. Benefits of Sections 382-B Cr.P.C were extended to them. However, appellants were acquitted from the charge under Section 7 of Anti-Terrorism Act, 1997.
6. Learned counsel for the appellants contend that there are material contradictions and discrepancies in the prosecution evidence; that the case of the prosecution is highly doubtful; that case being one of circumstantial evidence there must exit a chain of events connecting the appellants with the crime in such a manner that every hypothesis of innocence was excluded that it is inconceivable that Ali Hassan appellant who was admittedly known to the complainant and had used his motorcycle in the occurrence would himself come personally at the designated spot to receive ransom amount in the company of Muhammad Hafeez without risking disclosure of his identity with the consequences of prosecution.
7. Conversely, the learned D.P.G assisted by learned counsel for the complainant argued that prosecution had successfully proved its case beyond a shadow of doubt; that there is sufficient evidence such as last scene evidence red handed arrest of the appellants from the spot, their disclosure and lead to the recovery of dead body which was within their exclusive knowledge. According to the learned Law Officer seizer of tainted money with the signatures of Masood Javed Inspector (PW-12) is itself an ample proof that ransom was demanded by the appellants. Lastly it is argued that considering the heinousness of the charge appellants deserve no leniency.
8. We have heard the learned counsel, learned Deputy Prosecutor General, Punjab and perused the record.
9. Tariq Javed complainant (PW-7), devastated father of the deceased truthfully narrated circumstances leading to the abduction, demand of ransom for release and homicidal death of his minor son. What he unsuspectingly omitted to mention in Ex.PA is borrowing of his motorcycle by Ali Hassan appellant on 19.08.2009, at 2.00 p.m. This motorcycle was used in the kidnapping and murder of none other than his own son Arslan Tariq, who was last scene in the company of the appellants by Irshad Hussain (PW-9). It is a common ground between the prosecution and the defence that Ali Hassan appellant was known to the complainant and so to the abductee. Fact that the abductee left his house, never to return alive is conclusively established by medical evidence furnished by the prosecution. Duration between death and postmortem given by the Medical Officer which is not seriously contested by the defence coincides with the time of disappearance of the child. Putrefied condition of the dead body is understandable as it was thrown near the bank of a Canal. Wet and moist conditions accelerate putrefactive process. Signed two hundred currency notes of Rs.1000 denomination each were recovered from Muhammad Hafeez-appellant when he was arrested in the company of co-appellant. These various pieces of evidence inexorably connect the appellants with the crime. Ali Hassan appellant was known to the child who could easily be induced away by him. Children have a passion and penchant for ride on motorbikes and cars; this makes them vulnerable to disasters, this is what has exactly happened in this case. The overall analysis of the prosecution evidence which is from sources that cannot be blamed as being inimical or interested spell out a scenario in which one can safely visualize Ali Hassan appellant deceptively taking away the child on a motorcycle which was owned by no other than his own father and then joining hands with Muhammad Hafeez to collect ransom from his father. As Ali Hassan appellant was known to the child, he simply could not afford to let him return safely. This scenario is neither conjectural nor hypothetical rather rooted into evidence furnished by PW-7 Tariq Javed, PW-9 Irshad Hussain and PW-12 Masood Javed Inspector. In this backdrop, prosecution has exaggerated its case in so far as joint arrival of Hafeez and Ali Hassan appellants at the designated place is concerned. While sifting grain from chaff, we find that this anomaly of partial exaggeration on part of the prosecution is indemnified by other pieces of evidence which fully framed both the appellants with the charge, even if this piece of evidence is ignored to the extent of Ali Hassan appellant in so far as alleged joint arrival of both the appellants to collect ransom is concerned.
10. For the foregoing reasons, we dismiss Crl. Appeal No. 5-ATA of 2010 filed by the appellants and maintain convictions there under. Insofar as quantum of sentence to be inflicted upon the appellants is concerned, we have noticed that they have been awarded life imprisonment under Section 365-A, PPC which is identically punishable with the alternate penalty of death on the charge of homicide. If, it was found by the learned trial Court that imprisonment for life on the charge of Section 365-A, PPC was an appropriate sentence in the circumstances of the case, charge against them under Section 302(b) PPC merited identical treatment, as we have declined to believe the prosecution on the arrival of Ali Hassan appellant in the company of Abdul Hafeez appellant to collect ransom amount, this in our view, provides yet another justification to visit the appellants with the lesser penalty of imprisonment for life. For the above reasons, we convert penalty of death on both the appellants to imprisonment for life, Sentences shall run concurrently with benefit of 382-B, Cr.P.C. Compensation is kept intact. Capital Sentence Reference No. 04 of 2010 is answered in NEGATIVE and death sentence awarded to appellants is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
0 Comments