' SARMAD JALAL OSMANY, J.--- Briefly stated the facts of the matter are that on 11-11-2000 at about 10-45 a.m. When the complainant/abductee Abdul Rahseed Rehmani, was parking his car near the main gate of his garment factory in an empty plot, two culprits came there armed with a pistol and revolver. They forced the complainant to sit in the car with them and drove him away towards Godhra Chowk. One of them (appellant) told him to pay Rupees one crore as ransom for his release. However, upon reaching Godhra Chowk a kilometer away from the factory, a police party which was checking the cars, signalled them to stop. On this the two culprits became panicky, came out of the car and opened fire at the police party. As a result of retaliatory fire by the police, one of the culprits who is the appellant before us was injured whereas the, other made good his escape. The appellant was taken into custody along with a revolver loaded with five bullets. The pistol left behind by the other accused whose name was disclosed by the appellant as Asif alias Shakeel, was also recovered along with two live bullets in its magazine. The police charge-sheeted both the accused (Asif alias Shakeel by that time having being arrested) along with acquitted accused Aftab. The learned Anti-Terrorism Court found the appellant and Asif guilty of offences under section 7(b) of the Anti-Terrorism Act, read with sections 365-A, 392, 353, 324, 34, P.P.C. And accordingly sentenced them to undergo 14 years' R.I. Along with fine of Rs,10,000 each in default thereof they were to suffer R.I. For 6 months more. Additionally appellant was sentenced to suffer R.I.
For 7 years for an offence punishable under section 13-D, Arms Ordinance. The benefit of section 382-B, Cr.P.C. Was accorded to both of them. Accused Aftab was acquitted due to lack of evidence against him on the charge of abetting the crimes.
2. Upon appeal before the learned High Court, the sentence of the appellant and co-convict Asif alias Shakil was enhanced to life imprisonment plus forfeiture of their properties under section 365- A, P.P.C. Read with section 7(ii) of the Anti-Terrorism Act. They were also sentenced to R.I. For five years under section 324, 34, P.P.C. Plus fine of Rs,50,000 and in default thereof to undergo further R.I.
For 6 months. So also both of them were also sentenced to R.I. For two years under section 353/34, P.P.C. However, the sentence awarded to the appellant under section 13-D, Arms Ordinance was reduced to 5 years. The benefit of section 382-B, Cr.P.C. Was maintained.
3. Mr. Khawaja Naveed Ahmed, learned Advocate Supreme Court appearing for the appellant has firstly urged that the ingredients of section 365-A, P.P.C. Viz. Kidnapping for ransom are not attracted in the facts and circumstances of the case and hence at the most the offence would fall under section 365, P.P.C., viz. Kidnapping or abducting any person with the intent to wrongly and secretly confine him/her for which the maximum punishment is seven years. According to learned Advocate Supreme Court, the only evidence that ransom had been demanded is the statement of the complainant himself which cannot be believed in the facts and circumstances of the case as normally the course of events is that after the crime had been completed the demand for ransom is conveyed to the family of the victim and not during the course of the crime itself.
4. Conversely learned Advocate Supreme Court has argued that, if at all, the facts of the case denote only an attempt of kidnapping for ransom and hence under section 511, P.P.C., the sentence should be halved. In this regard learned Advocate Supreme Court has stated that the crime was foiled by the police party since due to exchange of fire the appellant was injured and was taken into custody. Consequently, the same could not be completed and hence was accordingly an attempt.
5. On the other hand, Mr. Shahadat Awan, learned Prosecutor-General, has firstly pointed out that the appeal is time-barred, since the judgment of the learned Sindh High Court was delivered on 19- 9-2003 whereas the jail appeal was received in this Court on 26-7-2004. Insofar as the nature of the crime is concerned, learned Prosecutor-General has submitted that the statement of the complainant before the learned Anti-Terrorism Court would clearly establish the demand for ransom and there is no reason to disbelieve him. Consequently, section 365 could hardly be attracted in the facts and circumstances of the case. Furthermore, per learned Prosecutor-General not a single question has been asked from the complainant in cross-examination regarding the demand for ransom and hence this has gone unchallenged. As to the relevancy of section 511, P.P.C., learned Prosecutor-General, submitted that the crime was completed when the complainant was abducted and demand for ransom was made. It is due to sheer good luck that the convicts were apprehended by the police due to checking etc. Had not this been the case, most certainly the complainant/abductee would have won his freedom after payment of ransom or some other untoward incident would have occurred.
6. We have heard both the learned Advocate Supreme Court as well as Prosecutor-General, and have gone through the available record with their assistance. We find that the appellant was apprehended at the scene of the crime along with the complainant/abductee. The crime weapon was also recovered from the appellant. At the trial not only complainant but other P. Ws. i,e, guards at the factory gate as well as the police personnel have identified the appellant. Consequently, there is no doubt in our mind that the appellant was guilty of the abduction of the complainant.
7. However, having observed as much it would also be seen that the only witness regarding the demand of ransom i,e, Rs,one crore is the complainant himself. As opposed to this the appellant in his confession before the Magistrate has stated that his intention was to rob the complainant of Rs,two lakh which he possessed as per information received from minor accused Zeeshan who used to work in the factory. So also in the F.I.R., the complainant has stated that the appellant and co-convict Shakeel had demanded Rupees one crore from him whereas in his statement before the trial Court he has only nominated the appellant regarding such demand. Finally it may also be observed that the demand of ransom was allegedly made in the space of a few minute during the time it took to travel one kilometer which is unlikely as normally such demands are made when the abductees has been secured in a safe place and the hue and cry has died down. In these circumstances there is some doubt as to whether or not any demand of ransom was made from the complainant the benefit of which must be given to him. Consequently, the offence committed by the appellant as well as co-convict Asif would be covered under section 365, P.P.C. Viz. Abduction simplicities for which the maximum punishment is seven years.
8. Insofar as the question of limitation is concerned we would condone the delay in filing the appeal since it is preferred from jail.
9. In view of the foregoing observations we would convert the sentence of the appellant to 7 years'
R.I. Under section 365, P.P.C. While maintaining the other sentences as per the impugned judgment i,e, five years under section 324/34, P.P.C. Plus fine of Rs,50,000 and two years under section 353/34, P.P.C. As well as five years' R.I. Under the Arms Ordinance. Similarly the benefit under section 382-B, Cr.P.C. Is also maintained. We would also direct that all the sentences shall run concurrently. As per the jail record the appellant has been confined since the year 2000 and hence he has undergone all the sentences. Consequently, he shall be released forthwith if not required in any other case. A copy of this order shall be sent to Jail Superintendent by the Assistant Registrar of this Court, for compliance immediately.
10. As the case of co-convict Shakeel is on the same footing, we would require the Jail Superintendent, Central Jail, Karachi to produce him on the next date of hearing. Learned Prosecutor-General shall also be available to assist us. Adjourned to 9th January, 2009.