' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This jail appeal is directed against the judgment dated 26-10-1995 passed by the learned Special Judge for S.T.A. Larkana, whereby he has convicted the appellant for the offence punishable under section 148 read with section 149, P.P.C. And has sentenced him to suffer R.I. For three years and pay fine of Rs,2,000 or in default of payment of fine to suffer R.I. For six months more. The appellant has been further convicted for the offence punishable under section 324, P.P.C. Read with section 149, P.P.C. And has been sentenced to suffer R.I. For ten years and to pay fine of Rs,1,000 and in default of payment of fine to suffer one year imprisonment more. . The appellant has also been convicted for the offence punishable under section 365-A, read with section 149, P.P.C. And has been sentenced to death. His entire movable and immovable properties have been confiscated to the Government. The appellant has been further convicted for the commission of offence under section 395, P.P.C. And has been sentenced to suffer R.I. For seven years and to pay fine of Rs,10,000 and in default of.Payment of fine to suffer further imprisonment for one year. The appellant has been lastly convicted for the offence punishable under section 302, P.P.C. Read with section 149, P.P.C. And has been sentenced to death and to pay fine of Rs,100,000 or in default to suffer R.I. For three years. It has been directed that if the fine is realized, half of the fine shall be paid to legal heirs of the deceased. The death sentences have to be executed after confirmation by this Court. The benefit of section 382-B, Cr.P.C. Has been extended to the appellant.
2. The facts giving rise to this appeal are that on 22-4-1995 additional S.H.O. Ahmed Ali of Police Station Bakrani lodged F.I.R. On behalf of State to the effect that on the said date, he left Police Station along with his subordinate staff H.C. Ali Akbar, P.C. Imdad Ali, P.C. Zulfiqar, P.C. Muhammad Hussain and P.C. Israr Ahmed, vide entry No,15 at 7-00 p.m. For patrolling, duly armed with service weapons in government vehicle which was being driven by H.C. Gulzar Ali. After patrolling at various places they heard firearm reports at about 9-45 p.m. When they were at a distance of about 1/2 Km. From village Areeja. The police party tried to get down from the mobile but the culprits started firing at them. The police also opened fire in their defence and started moving ahead. After about 10 minutes the firing stopped and they saw one Wagon of white colour standing at the road. They also noticed that one person was lying in injured condition who disclosed his name as Karamullah son of Nooruallah Abbasi. He further disclosed that while he was taking 11/12 passengers in the Wagon from Airport toLarkana, 8/9 culprits duly armed with weapons fired at the Wagon which resulted in his injuries and the culprits abducted 11-12 passengers sitting in the Wagon. He further disclosed that after firing, the culprits went towards eastern side, from where two persons returned., who proclaimed as Syeds and they left the scene by boarding another conveyance. He further disclosed that before his arrival at place of incident, another driver of red Car had also sustained injuries and he was taken away to Larkana. The injured Karamullah stated that he has seep all the dacoits clearly in the light of vehicle as all of them had open faces and he would be able to identify them. In the meanwhile SDPO Dokri along with his subordinate .Staff reached there who was apprised of the incident. He directed to take the injured to Larkana for treatment. The injured was then taken to Hospital at Larkana where he went unconscious. The injured had further in formed that the culprits were armed with K.Ks, Rifles and guns.
3. After his returning from Larkana he recorded the F.I.R. SSP Larkana also reached at the place of incident and started tracking foot marks of the culprits and the abductees. The Additional S.H.O.
Informed that red colour car was also brought to Police Station which was secured from Bakrani Bus Stop. The said car was also secured. There were bullet marks and the windscreen and the glasses of both the doors of driver side were broken. Bloodstains were also found on driver's seat.
The investigating officer secured the smashed pieces of glasses and blood stained seat cover. He again went to police station and prepared mashirnama of injuries. He prepared memo. Of inspection of wardat and the Wagon also. The side screen of the driver's side of the wagon was also smashed and there were blood marks on the body. He secured 27 empties of K.K., 151 empties of KK/G-3 Rifle from different placed at Wardat. He also noticed footmarks of the culprits and of abductees on left side of the road, which led towards east. He prepared memo. Of inspection of wardat and seizure of articles. He also secured blood stained earth, blood-stained mats of the vehicle and registration certificate which he brought at the police Station and recorded 161, Cr.P.C.
Statement of H.C. Gulzar Ali, P.C. Muhammad Haneef and other police constables and injured Karamullah. He then went PIA Booking Office Larkana for recording statement of Marketing Manager Jarwar who gave the names of abductees. Further investigation was conducted by S.H.O.
Ali Nawaz who died in an accident before commencement of trial.
4. The culprits took the abductees on foot towards eastern side and after covering about 1 Km they inquired the antecedents of the abductees from them. Two were Syed by, caste and they were let off. The dacoits then robbed belongings and other articles and made the abductees. Walk for the whole night and at dawn time they asked the abductees to sit in a big forest and served meals to them. On the next night they again made them walk and crossed the River Indus by boat. The abductees came to know that the gang leader was Bashoo Machhi and the other dacoits were Khakhrani, Sarwar Rind, Mustoo Mono, Mothar Kalhoro, Mawali Brohi, Waris Mirbehar the present appellant, Rabban Chandio and Abbas Chano. The dacoits took abductees to different places in forest. The dacoits used to extend threats to the-abductees to write letters to their relatives for ransom. On 31-7-1995 the dacoits released P.W. Gada Hussain and Dr. Shah Muhammad Mugheri.
Earlier P.W. Manzoor Ali one of the abductees was released on 20-5-1995 with direction to convey the message to D.I.-G: Larkana .To release the relatives of the dacoits with other demands. The message was conveyed to the D.I.-G. On 2-8-1995 an encounter took place between the dacoits and the police and other abductees were got released. On 22-4-1995 when injured Karamullah was taken to Chandka Medial College Hoipital, Larkana, another inured namely Aftab Ahmed Khokar was also received in the Hospital. Injured Aftab Ahmad expired on the same day. After his post-mortem his dead body was handed over to his father. On 18-8-1995 Abdul Majeed S.H.O. P.S. Bakrani came 'to know that one of the wanted accused, namely, Waris Mirbehar was arrested by Jhatpat police in the District Jaffarabad, Balochistan. He therefore, proceeded to P.S. Jhatpat and got the custody of accused Waris under mashirnama of arrest. The S.H.O. Jhatpat also handed over the belongings of accused Waris which he had recovered from him at the time of his arrest.
Accused Waris was then brought to Larkana on 23-8-1995. He was produCed before Judicial Magistrate, Larkana for his identification test through abductees Gada Hussian, Ishaque and Manzoor Ali. On the same day 164, Cr.P.C. Statements of the witnesses were recorded in presence of Magistrate. After usual investigation the accused was challaned on 3-9-1995 to face the trial.
5. The appellant pleaded not guilty to the charge. The prosecution in support of its case examined P.W.1 Ahmed Ali, Additional S.H.O. P.S. Bakrani, P.W.2 Ali Akbar H.C. Police Station Bakrani, P.W.3 Abdul Sattar P.W.4 Karamullah injured, P.W.5 Abdul Hameed, P.W.6 Ibrar Ahmed, P.W.7 Gada Hussain (Victim), P.W.8 Manzoor Ali (Victim), P.W.9 Muhammad Ishaque (Victim), P.W.10 Allah Dino, P.W.11 Dr. Ghulam Muhammad, Assistant Police Surgeon, Chandka Medical College, Larkana, P.W.12 Haji Ghulam Hussain, P.W.13 Abdul Majeed S.H.O., P.S. Bakrani, P.W.14 Abdul Lateef, Tapedar and P.W.15 Banaras S.H.O. Civil Lines, Larkana. The remaining victims/witnesses could not be located and therefore, their statements were not recorded at trial.
6. The appellant/accused Waris was examined under section 342, Cr.P.C. He denied the prosecution allegations and stated that he was arrested from his village Naeem Kharal Taluka Gambat District Khairpur Mirs by Investigating Officer Abdul Majeed S.H.O. He further stated that he was falsely implicated in this case at the instance of Naeem Khan and Faheem Khan Kharal. He did not examine himself in his defence under section 340(2), Cr.P.C. He did not examine any other witness in support of his defence plea that he was not arrested from police lockup Jhatpat (Balochistan) where he was confined after his arrest by S.H.O. Jhatpat but was arrested from his village Naeem Kharal Taluka Gambat District Khairpur Mirs.
7. The learned trial Court framed the following points for determination:--
(1) Whether deceased Aftab Ahmed died in unnatural death as a result of fire-arm injuries?
(2) Whether P.W. Karamullah sustained fire-arm injuries?
(3) Whether the present accused was the member of an unlawful assembly formed along with absconding and dead accused duly armed with deadly weapons?
(4) Whether the present accused along with absconding and dead accused committed the murder of deceased Aftab Ahmed and caused injuries to P. Ws. Karamulah with intention to commit his murder?
(5) Whether the accused abducted Ishaque, Manzoor Ali, Imdadullah, Mehmoodul Hassan, Khan Afsar alias Khan Akhtar, Dr. Shah Muhammad Mugheri, Gada Hussain Bhatti, Mushtaque Hussain, Pir Mujib Shah and Noor Shah Rashdi for the purpose of obtaining ransom and also robbed their belonging and cash?
8. The learned trial Court decided all the above points in affirmative. Consequently the appellant sole accused facing trial was convicted and sentenced as narrated in the earlier part of this judgment.
9. We have heard Mr. Ahsan Ahmed Qureshi, learned counsel for the appellant and Mr. Mushtaque Ahmed Abbasi learned Assistant A.-G.
10. The learned counsel for the appellant has not contested the conviction and sentences awarded under sections 148, 149, 324 and 395, P.P.C. He has submitted that the appellant has already served out the sentences for these convictions. He has submitted that so far the conviction under section 365-A, P.P.C. Is concerned, no ransom was paid and therefore, the conviction and sentence for the commission of offence under section 365-A, P.P.C. Is not sustainable. According to him the offence which the prosecution has been able to establish is under section 365-A, P.P.C., punishment whereunder is seven years which the appellant has already undergone. So far the conviction and sentence under section 302, P.P.C. Is concerned, he has contended that although deceased Aftab died on account of receiving fire-arm injuries but there is no evidence on the point that he sustained injuries in this incident. No witness has stated that Aftab deceased sustained any injury in the present incident. The Additional S.H.O. Bakrani Police Station has ,not stated that he found Aftab Ahmed in injured condition at the place of incident and referred him to hospital. He has merely stated that he referred injured Karamullah to the hospital. The learned counsel has submitted that deceased Aftab was referred to the medical officer by Civil Lines Police Station and therefore, the place where deceased Aftab died is shrouded in the mystery and consequently cannot be saddled with the liability of death of deceased Aftab as there is no evidence on the manner and the place at which deceased Aftab sustained injuries, therefore, the conviction under section 302, P.P.C. And sentence thereunder is not sustainable in law which is liable to be set aside.
11.The learned Assistant A.-G. Has submitted that the prosecution lead overwhelming evidence to establish the offence of dacoity as well as abduction for the purpose of ransom and in the course thereof causing of injuries to injured P.W. Karamullah and that all these offences were committed in prosecution of common object of the unlawful assembly. He has submitted that the learned counsel for the appellant has not contested the convictions awarded under sections 148, 149, 324 and 395, P.P.C. He has maintained that learned counsel for the appellant has assailed the conviction and sentence under section 302, P.P.C. As well as under section 365-A, P.P.C. So far the conviction and sentence under section 302, P.P.C. Is concerned the learned Assistant A.-G. Has frankly conceded that there is no evidence on record connecting the appellant Waris with the commission of murder of deceased Aftab. There is no evidence to establish that deceased Aftab died in the incident in this case. He has therefore, conceded that the conviction and sentence under section 302, P.P.C. Is not sustainable in law.
12. He has however, fully supported the conviction and sentence awarded for the commission of offence under section 365-A, P.P.C. He has contended that so far abduction of witnesses by the appellant and other co-accused persons is concerned, is not disputed. The learned counsel for the appellant has contested the conviction under section 365-A, P.P.C. On the ground that no ransom was actually paid. He has submitted that actual payment of ransom is not one of the ingredients constituting offence under section 365-A, P.P.C. Which provides that whoever kidnaps or abducts any person for the purpose of extorting money 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 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 for forfeiture of property. He has contended that the law has not provided that actual payment of ransom should be established, but has provided that if the person has been abducted for the purpose of extorting money from the person kidnapped or abducted or from any person interested in the person kidnapped or abducted, the offence under this section shall be completed. The accomplishment of the purpose is not the ingredient of the offence so far the purpose of extorting money is concerned.
The P.Ws. Gada Hussain and Manzoor Ali have specifically stated that dacoits used to threat them to write letters to their relatives for ransom. This version has not been disputed in the cross- examination and has gone un-challaned. He has therefore, submitted that the prosecution has fully established not only the act of abduction of several persons which is not contested by the learned counsel for the appellant but the fact that P.Ws Gada Hussain, Manzoor Ali and Muhammad Ishaque and others were abducted for the purpose of receiving ransom. He has submitted that the instances of abduction for ransom are increasing at an alarming rate and consequently the learned trial Court has rightly convicted the appellant under section 365-A, P.P.C.
And has awarded the death sentence to be executed after confirmation of this court and has submitted that the conviction under section 365-A, P.P.C. Be upheld and the death sentence be confirmed.
13. We have carefully considered the contentions raised by the learned advocates for the parties and have minutely examined the entire evidence on record. The learned counsel for the appellant has not contested the conviction and sentence awarded for the commission of offences under sections 148, 149, 324 and 395, P.P.C. Therefore, we need not to dilate in respect of these convictions and sentences which are hereby upheld. The learned counsel, for the appellant has contested the conviction of appellant under section 302, P.P.C. And awarding of death sentence. This conviction and sentence is set aside for the reasons that the learned Assistant A.-G. Has very frankly conceded that there is no evidence on record to establish the murder of Aftab by the appellant or his companions.
14. The sole contested point is the conviction and sentence under section 365-A, P.P.C. In this regard also the commission of abduction is not contested thus the only point left to be considered' is whether prosecution has succeeded in establishing the case for the commission of offence under section 365-A, P.P.C. The prosecution has examined three abductees, namely, Gada Hussain, Manzoor Ali and Muhammad Ishaque. P.W. Gada Hussain has stated that the culprits after intercepting the Wagon retorted to firing causing injuries to Wagon Driver Karamullah and thereafter the culprits including appellant Waris Mirbe,har took them to forest where they were kept at different places and the dacoits used to threat them to write letters to their relatives for ransom but they stated that they were poor persons. P.W. Manzoor Ali has also deposed in the same terms.
These statements have gone unchallenged with the result that the prosecution has fully proved that the appellant and his companions had not merely abducted ten persons but had abducted them for the purpose of obtaining ransom. Their intention 'Is clear from the circumstantial evidence that they kept the abductees in the forest for several months. From the facts and circumstances of the case no other inference can be drawn from abduction of ten persons after waylaying them and making them helpless by resort to extensive firing.
15. We have given our anxious consideration to the question of sentence. In fact such offence is more torturous, gruesome and heinous than causing death. In this case the abductees were subjected to torture, were removed from one place to another in the Jungle. The impact which it must have caused on the abductees and the entire family of ten abductees is not difficult to visualize. In order to save the society from commission of such heinous offences it is imperative that maximum sentences be inflicted. We are, therefore, of the considered opinion that prosecution fully established the commission of offence under section 365-A, P.P.C. And the learned trial Court rightly convicted the appellant and the absconding accused persons for the commission of such offence and correctly awarded the death sentence which requires no interference. The award of death sentence to the appellant Waris Mirbehar is hereby uphled and confirmed. He shall be hanged by his neck till death. The confirmation reference is accepted and the jail appeal stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.