' KHURSHID ANWAR BHINDER, J.---Abdul Shakoor appellant was convicted under section 365-A, P.P.C. Read with section 7 clause (e) of the Anti-Terrorism Act, 1997, by the learned Judge, Anti- Terrorism Court, Faisalabad vide judgment dated 24-12-2005, in case F.I.R. No,589 dated 11-8-2003, registered under sections 365-A/109/34, P.P.C, at Police Station Sadar Jhang and sentenced to death with forfeiture of his property. By the same judgment Muhammad Fayyaz, co-accused of the appellant was acquitted of the charge. Abdul Shakoor appellant has filed Criminal Appeal No, 2082/2005 whereas the learned trial Court has sent Capital Sentence Reference No,32-T/2005 for confirmation of death sentence. Both these matters are being disposed of through this single judgment.
2. Briefly the prosecution case as narrated by the complainant Rana Abdul Ghaffar in Exh.PA is that he used to deliver `Dars-e-Quraan' in a Madrissa after his retirement from Government service and also recite "Dam Drood". On 10-3-2003 Abdul Shakoor, appellant came to him after Maghrab prayer and asked to go with him to Basti Ghazi Shah as one of his relatives was suffering from "Dard-e- Shaqiqa". He carried him to that place in a house. Shehzad son of Rana Sarwar was already there.
Both the accused persons made him lie down with force on a cot and taped his mouth. Rana Abdul Shakoor took out his pistol and told him that he would do what they command him to do. They forcibly undressed him. Shehzad caught hold of him with lapha' from back side and Abdul Shakoor started taking pictures of his naked body. Then his both hands were tied with cot. They brought a girl there. They were calling her Khalida. They compelled her to sit with him on the bed and to take their photographs. After this the accused persons got his signature and thumb impression forcibly on a promissory note and told that they would let him go only if he paid them Rs,35,00,000. He tendered pardon from the accused persons but they threatened that if the amount was not paid then he and his children would be murdered. It was about 3-00 a.m. That he was mentally exhausted, at this the accused persons asked him to pay Rs,10,000 forthwith and Rs,5 lacs on the next day then his photographs and negatives would be returned. On this promise Rana Abdul Shakoor carried him to his house on a bicycle who was paid Rs,10,000 and it was agreed that Rs,5 lacs would be paid to them in the mosque in return of photographs and negatives. They extended threats to cause harm to him, if he disclosed to any body about the incident. He, therefore, keeping in view his reputation and for the return of documents placed the amount of Rs,5 lacs on the Holy Qur'an which was picked up by Abdul Shakoor and both the accused escaped with returning the documents. After few days Shehzad accused again came to him with close relatives of the complainant Rana Nasir and demanded Rs,2 lacs, in lieu of the return of photographs, negatives and promissory note and the same was also paid by him. He was terribly upset and did not know what to do. The accused persons started extending threats and black-mailing him that if further amount of Rs,3 lacs was not paid, his photographs would be published in the newspaper and he would also be done to death. While being in the bewildered and startled state of mind, he narrated the incident to his brother Rana Abdul Sattar and one of his relatives Rana Naseem and accordingly complaint Exh.PA. Was made to the police.
3. After completion of the investigation, Abdul Shakoor appellant and Muhammad Fayyaz (acquitted accused) were sent up before the learned trial Court to face the trial whereas their co- accused Shehzad was declared as proclaimed offender and both were charge-sheeted to which they did not plead guilty upon which the prosecution in order to prove its case examined as many as six witnesses. Abdul Ghaffar complainant appeared as P.W.1 and reiterated the contents of the complaint Exh.PA. Rana Nasir before whom Shehzad made confession appeared as P.W.2. Ghulam Sarwar appeared as P.W.3 who stated that in the year 2003 Rana Shakoor accused came and knocked at the door of the house of Abdul Ghaffar complainant. When the complainant came out he saw both of them. Shakoor accused was on a bicycle. He asked Abdul Ghaffar complainant to accompany him to Basti Ghazi Shah where a female relation of him was suffering from headache to offer Dam to her. Rana Shakoor accused took the complainant on his bicycle within his sight.
After a few days it came to his knowledge that Shakoor accused and his accomplices had subjected the complainant to black-mail and had also received some ransom from him.
Muhammad Baqar HC who recorded formal F.I.R. Exh.PA/1 on the basis of complainant Exh.PA appeared as P.W.4. Mst. Khalida Parveen who is an eye witness of the occurrence appeared as P.W.5 and supported the version of the complainant. Muhammad Afzal S.-I. Who conducted the investigation in the case appeared as P.W.6 and submitted challan against the appellant as well as Muhammad Fayyaz co-accused after finding them guilty. He inspected the place of occurrence, prepared the site-plan without scale Exh. PD and recorded statements of the witnesses under section 161, Cr.P.C. He also prepared site-plan Exh.PC where Abdul Ghaffar was present and his naked photographs were taken in the house of Khalida Parveen and prepared site-plan Exh.PF where the accused received ransom amount from Abdul Ghaffar. He recorded supplementary statement of Abdul Ghaffar wherein he nominated Fayyaz accused. He arrested Abdul Shakoor and Fayyaz accused. He incorporated the report Exh. PG/1 on the non-bailable warrants of arrest of Shehzad accused Exh. PG and submitted an application Exh.PH for issuance of proclamation order.
He recovered 11 naked photographs along with negatives of Abdul Ghaffar from Abdul Shakoor vide memo Exh.PB. He also prepared site-plan Exh.PK of the place of recovery of photographs and negatives. He recovered Rs,15000 and a Promissory Note from Abdul Shakoor vide memo. Exh.PC and Exh.PG. He also prepared site-plan of the place of recovery of Rs,15000 which is Exh.PL. He got recorded the statement of Mst. Khalida Parveen under section 164, Cr.P.C. From the Court of Rana Zaheer Ahmad Khan, Magistrate and got challaned Abdul Shakoor and Fayyaz accused. The learned public Prosecutor after tendering in evidence attested copies of F.I.R. No.210 dated 5-4- 1999, Police Station Sadar Jhang as Exh.PM, F.I.R. No,453 dated 12-9-1999 Police Station Sadar Jhang as Exh.PN, F.I.R. No,318 dated 3-4-1996, Police Station Sadar Jhang as Exh. PP, F.I.R. No,516 dated 15-8- 1997 Police Station Sadar Jhang as Exh.PQ, F.I.R. No,646 dated 13-9-1999 Police Station Sadar Jhang as Exh.PR, F.I.R. No,478 dated 27-6-1995 Police Station Sadar Jhang as Exh. PS and F.I.R. No,814 dated 7-11-1995 Police Station Sadar Jhang as Exh.PT closed the case for prosecution.
4. After completion of the prosecution evidence, the accused were examined under section 342, Cr.P.C. Wherein they denied all the allegations and Abdul Shakoor appellant also denied the recoveries from his possession. He also in reply to a question stated as under:-- "It is a false case. I have falsely been implicated in this case. Abdul Ghaffar complainant who was Khateeb of Jamia Masjid Muhammadi Ahle-Hadith, Basti Ghazi Shah, was turned out by the administration of the mosque due to his bad character and misdeeds and I was appointed as Khateeb of the said mosque being `Hafiz-e-Quraan'. The complainant bore grudge against me and the other P.Ws. Are related inter se and had long enmity with me and have deposed falsely."
' He neither opted to appear as his own witness under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
5. Learned counsel for the appellant submits that from the facts and circumstances of the case provisions of section 365-A, P.P.C. Or that of section 7 (e) of the ATA, 1997 are not attracted in this case as the complainant, as per prosecution case, accompanied the appellant without any violence, as such, the element of kidnapping or abduction is missing in the instant case, therefore, the aforesaid offences were not made out against the appellant. The alleged ransom, if any, received by the appellant and his co-accused also belies the prosecution story that a person in such like case would not pay the ransom after his release, as such, the prosecution story is implausible, un-natural and does not appeal to one's mind. He further submits that there are material contradictions in the statements of the prosecution witnesses, therefore, conviction and sentence on a capital charge on the basis of such type of evidence is not sustainable. He also submits that Khalida Parveen P.W.5 admitted in her cross-examination that the police wanted to challan her in this case but she told them the real story, as such, no reliance can be placed on her testimony for sustaining conviction on a capital charge. The F.I.R. Was lodged after a delay of five months of the occurrence after due deliberations and consultations which is fatal to the prosecution case, as such, the learned trial Court has illegally convicted the appellant for an offence which he had not committed. He also submits that the prosecution has also failed to prove the facts of snapping pictures of the complainant in naked condition by not producing the photographer, who prepared the photographs. He also submits that the story narrated by the complainant is totally improbable and unreliable. The prosecution also failed to prove the recovery of Rs,15000, negative, photographs and promissory note through independent evidence.
6. Learned counsel for the complainant, while supporting the impugned judgment, submits that the case falls within the definition of section 7(e) of the Anti-Terrorism Act, 1997 read with section 365- A, P.P.C. As the offence of abduction for ransom or hostage-taking has been committed as the complainant was released after preparing the documents. The learned counsel has stressed much on the words "hostage-taking" in section. 7(e) of the Anti-Terrorism Act, 1997 and "valuable security" as per section 365-A, P.P.C. He further submits that the complainant in order to safeguard his honour and dignity did not report the matter to the police as he was to be black-mailed by the appellant on the basis of his naked photographs which the appellant and his co-accused prepared by threatening him. He also submits that the appellant and his co-accused Shehzad were fully aware of the fact that the complainant has a lot of money which he had received after his retirement from Government service, therefore, the appellant and his co-accused committed the offence to grab money from the complainant. The learned counsel for the complainant has also referred F.I.R. No,210 (Exh.PM) which shows the conduct of the appellant as in the aforesaid case the appellant also committed such an offence prior to the present occurrence. He also submits that photographs, negatives and promissory note were recovered from the possession of the appellant which fully corroborates the ocular accounts and strengthen the prosecution case.
He further submits that statement of Khalida Parveen P.W.5 remained unrebutted despite the lengthy cross-examination and her statement is of much significance as the occurrence took place in her house, as such, the learned trial Court has rightly convicted and sentenced the appellant.
7. Learned Deputy Prosecutor-General for the State while supporting the impugned judgment submits that the appellant has committed a heinous offence and does not deserve any leniency.
8. We have heard the learned counsel for the appellant, learned counsel for the complainant as well as the State and have also perused the record. Delay in lodging the F.I.R. Is justifiable in this particular case as the complainant did not report -the matter to police as he was under the threat of being black-mailed by the accused persons. Complainant was under the impression that the accused persons would return the photographs and the negatives on the payment of ransom money but when the complainant paid the demanded money on different occasions and even then photographs and the negatives were not returned, he reached the saturation point, having no other option except reporting the matter to police. In the intervening period of occurrence and the final handing over the ransom amount to accused person, complainant had been arranging and making payment to accused persons at different occasions. Hence, the reason on the part of the complainant of not lodging F.I.R. Instantly is very much understandable and logical because he was under constant threat of the accused persons. He had the predicament of being exposed and dis-reputed by the accused persons if he lodged the F.I.R. Without handing over the ransom amount.
9. From the facts and circumstances of the case, the provisions of section 7(e) of the Anti- Terrorism Act, 1997 are very much attracted in the instant case which is reproduced below:-- "7. Punishment for acts of terrorism.--Whoever commits an act of terrorism under section 6, whereby:-- (a)..........................................................
(b)..........................................................
(c)..........................................................
(d)..........................................................
(e) the offence of kidnapping for ransom or hostage-taking has been committed shall be punishable, on conviction, with death or imprisonment for life and shall also be liable to forfeiture of property."
The word "hostage-taking" in section 7(e) of the Anti-Terrorism Act, 1997, as per Black's Law Dictionary with pronunciation, sixth edition, means "An innocent person held captive by one who threatens to kill or harm him if his demands are not met. A person who is given into the possession of the enemy, in time of war, his freedom (or life) to stand as security for the performance of some contract or promise made by the belligerent power giving the hostage with the other, Hostage taking is a federal crime. Term, when used with reference to person and in context in which it is used in kidnapping statute, implies unlawful taking, restraining or confining of person with intent that person, or victim, be held as security for performance, or forbearance, of some act by third person." In the instant case it is established through the evidence that complainant was made hostage by using physical force and kept under the fear and terror by using threat of fire-arm.
During the course of having been kept as a hostage, he was forcibly made to strip off his clothes, took nude photographs and got signed a promissory note from the complainant, therefore, all this was done while being kept as a hostage in the state of terror and fear. All the ingredients of section 7 (e) are fully applicable in the instant case and the appellants were rightly tried and sentenced under the above said provision of law.
10. As far as section 365-A, P.P.C. Is concerned, we are fully persuaded that it is also attracted in the instant case as it clearly explains 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 imprisonment for life and shall also be liable to forfeiture of property."
By bare reading of section 365-A, P.P.C, we understand that compelling any person to comply with any other demand whether in cash or otherwise for obtaining release of the person kidnapped or abducted makes a person liable to be tried under this provision of law. Both the accused persons not only-recovered Rs,15000 from the complainant at the time of occurrence during the course of abduction but had also demanded Rs,5 lacs from him which was to be paid in the due course of time, therefore, section 365-A, P.P.C. Is also fully applicable to the case of appellant. Black's Law Dictionary also explains abduction in the following manner:-- "Restraint of victim become "abduction" when it is done with intent to prevent liberation of victim."
' Complainant's movement was decidedly restrained when he was made hostage. The word "valuable security" in section 365-A, P.P.C. Also constitutes the offence as the appellant and his co- accused obtained a promissory note from the complainant after abducting him including ransom, as such, provisions of section 7 (e) of the Anti-Terrorism Act, 1997 and section 365-A, P.P.C. Are fully attracted in the instant case.
' Reliance is placed on Muhammad Nabi and 4 others v. The State (2006 SCM R 1230) and State through Advocate-General Sindh v. Mooso (2006 SCM R 1257).
11. The statement of the complainant/abductee was corroborated by the natural witnesses of the incident, namely, Khalida Parveen (P.W.5) and Rana Nasir P.W.2 who were not shown to have any animosity or motive to implicate the appellant falsely in the case. The prosecution has produced true and confidence inspiring eye-witness account furnished by the complainant and aforesaid Rana Nasir P.W.2 in whose presence the accused Shahzad (P.O.) and Abdul Shakoor appellant received ransom money of Rs,2,00,000 after extending threats to the complainant to kill him and his children and to publish photographs of his naked body in the newspaper. The most important witness of the occurrence, namely, Khalida Parveen (P.W.5) in whose house the occurrence took place also fully supported the prosecution version and the defence has failed to impeach the credibility of aforesaid witnesses despite the lengthy cross examination. The delay in lodging the F.I.R. Has fully been explained by the complainant as he due to the fear of his honour, life and life of his children did not disclose this fact to any one and kept requesting the appellant and his co- accused for the return of photographs, negatives and promissory note. The recovery of photographs, negatives, promissory note and Rs,15000 effected from the appellant in the presence of Rana Nasir P.W.2 also strengthens the prosecution case.
12. For what has been discussed above, we are of the considered view that the prosecution has been able to prove its case against the appellant beyond any reasonable shadow of doubt, therefore, we uphold the order of conviction passed by the learned trial Court but keeping in view the extenuating circumstances of the case that appellant threatened the complainant not to report the incident of abduction to the police and if he did so, then they would get his photographs published in the newspaper and due to such fear he had paid the entire demanded amount to the accused person. This is very interesting aspect of the case, we wonder how is it possible for somebody to get the nude photographs printed in the newspaper, as it is against the policy of every newspaper to publish blackmailed photographs of somebody. Even a man of ordinary prudence can make out that it is not possible for anyone to blackmail his rival through newspaper.
Complainant being a matured person of advanced age retired from the service and an educated person did not realize that threat extended by the accused person of publishing his nude photographs in the newspaper is not possible but even then he had paid the entire demanded money to the accused persons. Had there been a threat of blackmailing him in the public or in the people of the locality through those photographs, then it is understandable that he did not have any other choice except to accede to the demand of accused person but publishing photographs in the newspaper looks absurd and unbelievable. Hence this part of the prosecution story is not understandable. We, therefore, consider it to be a mitigating circumstance. Since rest of all the allegations and offences under which the appellant was liable to be tried stand fully proved against the appellant, we reduce the sentence from death to imprisonment for life while we also maintain the rest of the sentence of forfeiture of the property of the appellant. After reduction of sentence of the appellant, we award him the benefit under section 382-B, Cr.P.C.
13. Death sentence awarded to the appellant is Not Confirmed and the Murder reference is answered in the negative whereas criminal appeal is disposed of with the above modification in the sentence.