' MUHAMMAD JEHANGIR ARSHAD, J.---Through this criminal appeal Muhammad Tufail accused/appellant has challenged the judgment dated 30-6-2004 passed by a learned Special Judge, Anti-Terrorism Court, Bahawalpur in case F.I.R. No,5 of 2004 under sections 365-A and 109/34, P.P.C. Read with section 7(e) A.T.A., 1997, whereby the appellant was convicted under sections 365-A, P.P.C. As well as 7(e) of Anti-Terrorism Act, 1997 and sentenced to imprisonment for life with further orders of forfeiture of his entire movable and immovable property. Benefit as provided under section 382-B, Cr.P.C. Was however, extended.
2. The facts briefly stated are that Abdul Rasool son of Nazir Ahmad P.W.1 got lodged the above- mentioned F.I.R. To the effect that he was running a Medical Store and on 18th of October, 2003 was present at his Medical Store when at about 12-30 (Noon) Muhammad Tufail came to him and asked for medicine for his ailing daughter. However, on the asking of the complainant, he brought his daughter to the Medical Store at about 5-00 (afternoon) and Abdul Rasool gave him the medicine. On closure of Medical Store at 5-30 p.m., the complainant while heading towards his house on bike crossed Muhammad Tufail who was taking his daughter on bicycle. Meanwhile, one Muhammad Sadiq met him. After a while when complainant reached the land of Muhammad Tufail, appellant shouted that "He is the Doctor" and two persons with muffled faces one carrying Kalashnikov and the other armed with pistol suddenly appeared from wheat crop. They abducted the complainant under threat of shooting him and tied his eyes. It is further asserted that as he was unable to walk with tied eyes therefore, bandage was opened and was taken along. According to the complainant, he saw Muhammad Tufail was also standing along with said two persons one of whom was of small height, black colour and fat body and the other one was slim with wheatish colour. They both took out Rs,5,030 from his pocket and took him to Son Miani where he was kept tied with an iron chain. On the next night after crossing the river, the accused took him to some unknown place. According to the F.I.R. The father of the complainant and one Zahoor Ahmad paid Rs,3,80,000 as ransom through Chooto and Bagga Mero and got him released. The complainant had identified Muhammad Tufail appellant as one of the accused.
3. On registration of formal F.I.R. Maqbool Ahmad S.-I./S.H.O. P.W.3 went to the place of occurrence, prepared site-plan Exh.PC with marginal notes, recorded the statements of P.Ws. Under section 161, Cr.P.C. And got the three accused namely Meer Muhammad, Ghulam Rasool alias Chooto and Mitha as Proclaimed Offenders. Whereafter, the investigation was taken over by Muhammad Asif, A.S.-I. P.W.4 before whom the cycle Exh.PC belonging to the abductee was produced and after arresting the accused Muhammad Tufail on 27-1-2004 submitted challan against him alone, whereas his three co-accused were declared as Proclaimed Offenders.
4. On submission of challan, the trial commenced with framing of charge, to which accused Muhammad Tufail pleaded not guilty and claimed to be tried. During trial apart from Investigating Officers P.W.3 and P.W.4, the prosecution produced the complainant as P.W.1 who reiterated the same version as detailed in the F.I.R. And P.W.2 Zahoor Ahmad who deposed about search of abductee, recovery of his bicycle from wheat crop and telephone call about demand of ransom.
This witness further stated that they paid Rs,3,80,000 as ransom to Bagga and Chooto and thereafter the abductee was handed over to him.
5. On conclusion of prosecution evidence, the statement of accused Muhammad Tufail was recorded under section 342, Cr.P.C. Wherein he denied the prosecution evidence and attributed false implication to some previous dispute over agricultural land. However, he did not opt either to produce any defence in his support or to appear as his own witness under section 340(2), Cr.P.C.
On conclusion of the trial, the accused/appellant was convicted and sentenced as noted above.
Hence, this appeal.
6. Mr. Muhammad Aslam Khan Dakar, Advocate appearing on behalf of the appellant has argued that prosecution has failed to prove the case against appellant beyond any shadow of doubt; that P.W.2 Zahoor Ahmad is a close relative of abductee P.W.1, as such being interested his statement could not be made basis for convicting the appellant and that prosecution has not been able to prove payment of alleged ransom. Reliance has been placed on the case of "State through Advocate-General, Sindh v. Muhammad Asghar and 2 others" (2002 M LD 1853). It is further argued that there is no evidence on record that appellant was also beneficiary of the alleged ransom amount, which is mandatory for punishing an accused in terms of section 365-A, P.P.C. Learned counsel continued his arguments by contending that alleged recovery of bicycle P.1 is not supported by any independent evidence and that evidence of P.W.1, the abductee and P.W.2 Zahoor Ahmad is full of contradictions and padding. It is argued that in fact Abdul Rasool wanted to purchase agricultural land from one Rao Liaqat Ali situated in Mouza Ali Mardan, Tehsil Sadiqabad but since that land was purchased by the appellant which annoyed Abdul Rasool and in order to satisfy his anger the complainant got the said F.I.R. Registered against the appellant. It is contended that neither the ransom was paid to the appellant nor any evidence involving the appellant with regard to the receipt or disbursement of ransom amount has been produced, hence, the learned trial Court was not justified in convicting the appellant under section 365-A, P.P.C., rather it was a case of simple abduction punishable under section 365, P.P.C. Concluding his arguments learned counsel has prayed for reduction of sentence, as according to him the sentence awarded to the appellant is not only harsh but also not in consonance with the severity of the act allegedly committed by the appellant.
7. On the other hand, Mr. Kamran Ahmad Sumra, Advocate appearing on behalf of the Complainant, assisted by Mr. Ghazanfar Ali Khan, Advocate for the State, has vehemently opposed the appeal by arguing that P.W.1 Abdul Rasool abductee and P.W.2 Zahoor Ahmad have supported each other on material points regarding abduction and payment of ransom within the meanings of section 365-A, P.P.C. Learned counsel argued that the evidence produced by the prosecution neither suffers from any glaring defect, material irregularity or legal infirmity and that the abductee or P.W.2 Zahoor Ahmad had no enmity or motive to falsely implicate the appellant. In support of his contentions reliance has been placed on the case "Qasim and 3 others v. The State" (1999 SCM R 2841), "Ali Dost v. The State" (1994 PCr.LJ 950 Karachi-DB) and "Sikandar Ali v. The State" (1999 M LD 1513) Karachi-DB. While rebutting the argument of appellant's learned counsel that prosecution has not been able to prove the appellant to be beneficiary of ransom or that he was also party to the payment or disbursement of ransom amount, learned counsel for the complainant by placing reliance on the case "Khawaja Hasanullah v. The State" (1999 M LD 514) has submitted that in cases of abduction for ransom it is not necessary that all culprits must have collectively done all criminal acts together from the stage of abduction till extortion of money. In such cases mostly the work is divided. Abduction is done by a few of accused, place of confinement is guarded by others and ransom is extorted by one or two of them. Such act is done under a planning with the object to extort money, therefore, punishment under section 365-A, P.P.C. Would be the same irrespective of the role played by each of them. It is argued that prosecution fully discharged its onus and the trial Court rightly convicted and sentenced the appellant. As regards prayer on behalf of the appellant with regard to reduction of sentence, it is strenuously argued that as provided by section 365-A, P.P.C. The Court could only pass a sentence either of death or imprisonment for life and also forfeiture of property and there is no other option with the Court with regard to imposition of sentence under section 365-A, P.P. C .
8. We have considered the arguments of learned counsel for the parties; have gone through the record and also perused the abovementioned case-law.
9. A careful perusal of statement of Zahoor Ahmad P.W.2 shows that it is in line with the evidence of Abdul Rasool P. W.1 abductee and despite lengthy cross-examination on P.W.2 neither the defence could create any dent in his statement nor anything else favourable to the appellant could be elicited from this witness. He has fully supported the version of complainant Abdul Rasool, being privy to the payment of ransom for the release of abductee. Mere fact that he is related to the complainant is no ground to straightaway discard his stgement unless any enmity or is proved against him for falsely implicating the appellant.
10. There is no dispute with regard to the identity of the appellant by the complainant or Zahoor Ahmad P.W.2, as admittedly all are residents of the same locality. Running of Medical Store by the abductee in the same vicinity is also not disputed. The defence has not been able to establish that during the period of absence of the complainant allegedly under abduction, he was ever seen in the area or had been running his medical store in regular manner. This fact rather supports the contention of the appellant viz. His abduction. There is yet another surprising aspect of the case Le.
Motive tried to be attributed by the appellant to the complainant/abductee as well as to Zahoor Ahmad P.W.2, for deposing against him. During cross-examination of the complainant, he has been virtually suggested destructive motives. Firstly he was suggested that as he had illicit relations with the sister of Akbar Mohana, hence he was abducted by said Akbar but right in the next line it was suggested that since he (the complainant) wanted to purchase agricultural land owned by one Rao Liaqat Ali which land was purchased by appellant, hence due to this grudge the appellant was falsely involved in this case. Similarly, while putting motive to P.W.2 Zahoor Ahmad he has been suggested that he and Nazir wanted to purchase agricultural land from Rao Liaqat Ali which land was purchased by the brother of the appellant through Tufail accused/appellant which fact enraged P.W.1 and thus instant case was got registered. These contradictory stands taken by the defence indicate the falsehood of the motive tried to be attributed to the P.Ws. We also note that suggestion/ allegation against the complainant with regard to his illicit relations with the sister of Akbar Mohana, is extremely deplorable on the part of the appellant, for which he could be prosecuted under Offence of Qazf (Enforcement of Hadd) Ordinance, 1979. Such type of cross- examination levelling allegations against women in their absence should not have been allowed by the trial Court, rather to discourage a tendency among the learned counsel for making such bald and reckless suggestions just at the cost of accused, it is high time that Court should take serious note of the matter and while recording findings should also pass appropriate orders to initiate criminal prosecution in such-like matters.
11.. As regards the contention of the appellant that prosecution has not been able to prove the participation of the appellant in receipt or disbursement of ransom, we are convinced that the law laid down in "Khawaja Hasanullah v. The State" (1999 M LD 514) is fully applicable to the facts and circumstances of the instant case and while relying on the said judgment, we reject the above contention.
12. For what has been discussed above, we are satisfied that the prosecution has fully established its case against the appellant beyond any shadow of doubt and keeping in view the facts and circumstances of the accused appellant has rightly been convicted vide the impugned judgment.
The case-law "State through Advocate-General, Sindh v. Muhammad Asghar and 2 others" (2000 MLD 1853) referred to by the learned counsel is of no benefit to him at all being distinguishable, whereas the case-law cited by the complainant's counsel i.e, "Qasim and 3 others v. The State"
(1999 SCM R 2841), "Ali Dost v. The State" (1994 PCr.LJ 950 Karachi-DB) and "Sikandar Ali v The State"
(1999 M LD 1513 Karachi-DB) is fully applicable being nearer to the facts and circumstances of the present case.
13. As regards quantum of sentence, we have given our due consideration to the submission of the learned counsel for the appellant but are unable to come to his rescue in view of clear language of section 365-A, P.P.C., according to which the minimum sentence is life imprisonment with forfeiture of property and the learned trial Court while taking a lenient view has already imposed this minimum sentence provided under section 365-A, P.P.C. This Court has no jurisdiction to further reduce the sentence. The net result of above discussion is that this appeal fails being devoid of merits and is accordingly dismissed.