' TARIQ PARVEZ, J.---By this common judgment, we intend to dispose of above titled criminal appeals as common questions of facts and law are involved therein.
2. Appellants-Saleemuddin and Samiullah Khan (in Criminal Appeal No 559 of 2006); Dr. Khalid Moin and Muhammad Saleem Khan Tanoli (in Criminal Appeal No 560 of 2006), are accused in case F.I.R. No,50 dated 22-2-2000, registered under sections 365-A/386/ 387/34, P.P.C. At Police Station North Nazimabad, Karachi. The crime was reported by the complainant-Shahid Ali Siddiqui in the form of written complaint.
3. Facts unfolded in the F.I.R. Are to the effect that on 3.1-1-2000 at about 9-15 p.m., complainant Shahid Ali Siddiqui and his son Musib Siddiqui were returning to their house; while they were on the road, a light grey coloured car blocked their way and three armed men brandishing a Kalashnikov and pistols came out of the car and dashed towards them; one of them pulled out his son and occupied the driving seat and then forced them on gun point to sit on the rear seat of their own car with threat to shoot them in case of resistance; the accused blindfolded the abductees; after about 15/20 minutes, the car stopped, they were pulled out, taken to a room of a bungalow on the ground floor and were made to the on the floor; their hands were fastened on their back; later on, the chief of the abductors came there and demanded ransom amount of Rs,2 crores from the complainant; the son of the complainant suspected the voice as if he had heard that voice before; he raised his head up and peeped through the loose bandage on his eyes and identified the culprit as Saleem Khan Tanoli and even saw the others; he recalled that said Saleem Khan Tanoli met them in Allied Bank Ltd., Hadi Market Branch several times; he was introduced to them by the Bank Manager Mr. Hassan as his friend, who claims to be a protocol officer at Tughlaq House of the Government of Sindh; the abductees were subjected to intensive torture for the whole night and ultimately after negotiation, the ransom amount for their release was fixed at Rs,55 lacs; the accused brought cheque books-from the complainant's car; the complainant signed, the cheque of Rs,40 lacs whereas his son signed a cheque of Rs,15 lacs; the accused forced the complainant to call the Manager of the Bank to arrange encashment of the cheques, which he did; where-after the accused Dr. Muhammad Khalid Moin and Samiullah took the cheques to the bank, where they encashed them; consequently, the abductees were released by the accused-appellants. After reaching their house, the complainant made a telephone call to his daughter; in the meantime lie also received several, calls from the accused-appellants, threatening them not to go to police station or disclose these facts to any body, otherwise they will be killed and so also their other family members; therefore, due to fear the complainant did not lodge the report; however, on arrival of his son-in-law from abroad, they contacted Ashraf Sultan of Citizen Police Liaison Committee, which ultimately resulted in lodging of the complaint.
4. After registration of the case, the appellants other than Saliinuddin were arrested while sitting in a car, as the police party during patrolling suspected the same and apprehended the accused- appellants while sitting therein; on personal search, appellant-Dr. Khalid Moin was found in possession of Kalashnikov, whereas appellant-Muhammad Salim Khan Tanoli was holding a .30 bore pistol; likewise a .30 bore pistol was recovered from the fold of shalwar of appellant-Samiullah Khan; the named appellants failed to produce any licence of the weapons, which they were carrying with them; accordingly, in this regard, three different F.I.Rs, Nos.15, 16, and 17 were registered under section 13(d) of the Pakistan Arms Ordinance, 1965.
5. Since appellant Salim Khan Tanoli was named in the F.I.R. No,50 of 2000, therefore, he was formally arrested in that case as well.
6. After completion of usual investigation, the appellants-accused were sent up to face the charge, to which they pleaded not guilty and claimed trial. In order to prove accusation against the appellants, the prosecution examined as many as sixteen witnesses. Thereafter, the statements of the appellants were recorded under section 342, Cr.P.C. Wherein they denied the allegations.
However, they did not opt to appear as their own witness in terms of section 340(2), Cr.P.C. But produced defence evidence.
7. Upon conclusion of the trial, the learned Trial Judge, vide judgment dated 12-10-2002, convicted the appellants under section 365-A/34, P.P.C. And sentenced them to death with direction to pay tine of Rs,10,00,000 (ten lac) each or in default to undergo R.I. For three years each; they were also convicted under section 6(2)(e) of the Anti-Terrorism Act, 1997 and awarded sentence of death with forfeiture of their properties; for the offence under section 13(d) of the Arms Ordinance, 1965, all the accused-appellants were awarded R.I. For seven years each and to pay fine of Rs,10,000 each or in default whereof to further suffer R.I. For one year; all the accused-appellants were further directed to pay Rs,10,00,000 (ten lacs) each, as compensation to the abductees in terms of section 544-A, Cr.P.C. For causing mental anguish to them or in default whereof to suffer R.I. For one year.
8. Feeling aggrieved, the appellants preferred Criminal Jail Appeal No,81 of 2002 before the High Court, which has been disposed of along with Confirmation Case No,13 of 2002 by means of common judgment, impugned herein these appeals, whereby the convictions and sentences, awarded by the trial Court were modified in the following terms:--
(a) All the appellants are convicted for the offence punishable under section 365-A, read with section 34, P.P.C. And 7(ii) of Anti Terrorism Act, 1997; each of the appellants is awarded sentence of death hanging by neck till their death and also forfeiture of their immovable and movable properties to the extent of Rs,10,00,000;
(b) All the appellants are directed to pay a sum of Rs,100,000 each as compensation under section 544-A, Cr.P.C. To the abductees for the mental anguish caused to them and in case of default in payment of the amount of compensation they should suffer further RI for six months;
(c) The conviction for the offence punishable under section 13(d) of the Pakistan Arms Ordinance, 1965 of appellants Dr. Sayed Khalid Moin, Saleem Khan Tanoli and Samiullah is set aside, since the offence was not committed conjointly with the scheduled offence hence the case is remanded to the trial Court for forwarding the same under Section 23 of Anti-Terrorism Act, 1997 to the Court of competent jurisdiction for trial in accordance with law;
(d) The sentence awarded by the trial Court under section 6(2)(e) of Anti-Terrorism Act, 1997 is set aside as the said section was not available at the time of commission of offence and in view of the convictions and sentence, as ordered at paragraph (a) above.
(e) The sentences of death awarded to appellants are hereby confirmed.
' Hence these appeals, by leave of the Court.
9. At the stage of hearing of petitions (of the appeals in hand), the then learned counsel, appearing for the appellants did not press the petitions on merits qua the conviction recorded against the appellants but sought indulgence of the Court in respect of the quantum of sentence by reducing the death sentence to life imprisonment and to that extent leave to appeal was granted.
10. While hearing the learned counsel for the appellants, we find that there were certain unexplainable facts and weaknesses in the prosecution's case, which could have been agitated at the time of hearing of the petitions for leave to appeal and a case could have been made out on merits for reappraisal of the entire evidence but it was not done so. Some weaknesses of the case of prosecution are given below.
11. To start with, it is the case of the prosecution that the complainant Shahid Ali Siddiqui and his son Musib Siddiqui had left their office for their house and three armed men on gun point came out of another motorcar, the complainant and his son were pulled out from their car and were made to sit in the rear seat with one of the accused; they were driven to the bungalow where they were kept in the captivity for the night. It is the case of the prosecution that alleged mastermind namely Saleem Khan Tanoli surfaced in the said bungalow and he demanded Rs, 1 Crore for the release of the abductees, which was finally settled for Rs,55 lacs.
' It has not been brought on record as to why two separate cheques i,e, one for an amount of Rs,40 lacs and the other for the amount of Rs,15 lacs, that too from the two different Branches of the Bank, were issued and again as to why one cheque was issued and signed by the father and other by the son? It has also not been brought on record that whether the above was done because of any deficiency of amount in either of the accounts with the Branch of the Bank.
12. There is yet another amazing factor of the case i,e, according to the statement of the complainant and his son, after they issued the cheques, the abductors directed them to make telephone call to the Manager of the Bank for arranging the cash, which shall be paid to them at the time of presentation of the cheques. In fact several calls were separately made.
' If we look at the statement of Saglain Zaidi (P.W.2), Cashier in Hadi Branch of Allied Bank Nazimabad, he stated that as sufficient cash was not available in their Branch and telephone calls were made by Shahid Ali Siddiqui to the Manager of the Bank, therefore, cash was arranged from Main Branch of Nazimabad, which according to him took about two hours and during these two hours, the person who brought the cheque (appellant-Samiullah) remained present in the Bank.
' Similarly, it is in the statement of Mirza Khurram Baig (P.W.4), Cashier of Allied Bank Ltd. Hydri Branch, North Nazimabad, Karachi that as the cash was not available in the Branch, therefore it was arranged from the main Branch and the person, who brought the cheque (appellant Dr. Khalid Moin), all along, remained present in the Bank.
' It looks strange that two abductors, presenting two cheques, issued by the abductees would take the risk of staying for hours in the Bank for collecting the cash.
13. Another aspect of the case is that the identification parade of the four accused-appellants was conducted on 26-2-2000, through the complainant and his son, followed by another identification parade held on 1-3-2000, wherein, the accused, through the Cashiers of the Banks, to whom they presented the cheques, were said to be identified. Question arises as to why identification parades by two sets of witnesses were made on two different dates.
' Not only that there are procedural defects in holding the test identification parades but sufficient dent has been created in the testimony of the Judicial Magistrate i,e, Farooq Ahmed, Judicial Magistrate, Karachi Central, who conducted the test identification parades.
' Ordinarily test identification parades are to be held in jail premises to ensure that the witnesses had no chance or opportunity to see the accused, intended to be identified before actual identification parade. In this case identification parades were held in the Chamber of Judicial Magistrate.
14. Occurrence in this case took place on 31-1-2000 but it was reported to the police on 22-2-2000 i,e, with the delay of more than three weeks. Reason assigned for delay in lodging the F.I.R. Was that the abductors-appellants, while releasing the abductees, had threatened them not to report the matter to the police and even thereafter they had been issuing threats and that it was only when the son-in-law of .The complainant, who was abroad came to Pakistan, who gained knowledge of the case/incident, the complainant dared to lodge the report.
' We concede that mere delay in lodging the F.I.R. In every case is not fatal to the prosecution, particularly when the accused charged in a belatedly made F.I.R.. Are not the persons with whom the complainant has got previous enmity but still the belated F.I.R. Is taken with caution.
' According to the prosecution's case, three appellants namely Dr. Khalid Moin, Saleemuddin and Samiullah Khan were arrested on 23-2-2000, while they were sitting in a car. This conduct on the part of the appellants is also a sign of interrogation i,e, as to why the three of the accused would be sitting together in a car, awaiting arrival of the police, to be arrested.
15. Some cash amount, said to be the money received as ransom, has been recovered from the accused-appellants, including different articles belonging to the complainant and his son but no regular test identification- was held regarding the cash amount and the articles recovered.
16. All the four appellants have been awarded sentence of death each, which is a irresistible sentence. Section 365-A, P.P.C., under which the appellants have been awarded sentence of death, was not part of the original Penal Code but was inserted through Act-III of 1990, through which in case of a kidnapping or abduction for extorting property, valuable security, etc. The offender has been made to be punished with death or for imprisonment for life, followed by forfeiture of property.
17. An offender found guilty of commission of a crime is awarded sentence of imprisonment, which sentence is always considerably in consonance with the gravity of the offence. There .Are certain offences, which are made punishable with death or imprisonment for life like murder, gang rape, hijacking, etc. Wherever, under the Pakistan Penal Code, sentence of death is provided for a crime, there is always alternate punishment in terms of imprisonment for life.
18. Sentences as a punishment are of two types i,e, fixed sentences and variable sentences; fixed sentences are such where awarding of particular sentence is fixed by the Act itself like for example, in case of - qatl-e-amd liable to Qisas, death is the only punishment provided under section 302(a), P.P.C.; under the same Section, under clause (b), in case" of offence of qathe-amd, two punishments have been provided i,e, death . Or life imprisonment as ta'zir.
The above would demonstrate that in case of application of section 302(a), no discretion is left with the Court while awarding the sentence, whereas in the latter case, the Court is left with the option to. Award either death sentence or imprisonment for life.
19. Fixed sentences are based on the principle of nondiscrimination; means, whoever the offender may be, but if lie found guilty,.-he shall be awarded the punishment as fixed by law, irrespective of his social status; it does not make any difference between the poor and a rich and a common man and any high-up with influence.
20. The gravity of the punishment/sentence is always dependent upon the gravity. Of the offence. If we go back by 2/3 decades from .Today, we would hardly find a case of abduction for ransom; it is the offence of near past, when due to' more economical and commercial destabilization including ,unemployment etc. The crime of abduction for ransom has started and is on increase by day-to- day. It was, therefore; that the Legislature took notice of the growing rate of crimes of such nature and the crime of abduction for ransom and its punishment were inserted into the Pakistan Penal Code-through section 365-A, P.P.C.
21. Sentences on conviction are provided by the Legislature in different modes. In certain cases only one sentence is provided; like in proviso to Section- 9 of the Control of Narcotic Substances Act, 1997 (CNSA) provides that:-- "if quantity exceeds ten kilogram the punishment shall not be less than imprisonment for life."
' Similarly, section 7(1)(a) of the Surrender of the Illicit Arms Act, 1991 provides that:- "In respect of illicit arms defined in sub-clauses (i) to (iii) of clause (a) of section 2, be punished with imprisonment for life and forfeiture of property, both movable and immovable; "
' There is yet another mode of punishment provided in section 302(b), P.P.C., according to which:- "Whoever commits qatl-e-amd shall, subject to the provisions of this Chapter, be punished with death or imprisonment for life as tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available."
' From the above examples, we conclude that whenever the legislature intended that the offender shall be given a particular sentence, without leaving the sentence to the discretion of the Court, it has provided so, like we have referred to section 7 of the Surrender of the Illicit Arms Act, 1991.
22. Now looking to the converse intent of the legislature, we may refer to section 9(c) of the CNSA, which provides that:- "Whoever contravenes the provisions of section 6, 7 or 8 shall be punishable with death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to the fine which may be upto one million rupees, if the quantity of narcotic drug psychotropic substance or controlled substance exceeds the limits specified in clause (b)."
' Thus three different sentences have been provided, which can be imposed upon the person found guilty of possessing narcotics exceeding one kg. The very object of providing three different sentences is that the Court while awarding sentence shall consider the facts and circumstances of each case, which includes the element of effect of narcotics on the society at large, the antecedents of the person; accused of the offence and the circumstances under which the offence was committed. However, under the same provision, at one end, the Court is left with a discretion while awarding sentence; whereas, such discretion has been taken away through provison to section 9 of the CNSA, reproduced herein above.
' Likewise, in case of offence of qatl-e-amd under section 302(a), P.P.C., no option is left nor any discretion is vested with the Court while awarding death sentence as Qisas; this being the only sentence, if qatl-e-amd is proved in terms of section 304, P.P.C. The explanation to it is that if the evidence is of the nature as required under section 304, P.P.C. And the crime of qatl-e-amd is proved, then the only sentence, which the Court shall award is death as Qisas, but in case of ta'zir, where otherwise offence of qatl-e-amd is proved, the discretion is left with the Court to award either the death sentence or life imprisonment. While awarding any sentence, the Court always keeps in mind all the surrounding circumstances, under which a particular offence is committed.
' There are scores of judgments of this Court, where number of convicts in different cases have been considered for awarding sentence of life imprisonment instead of death in case of ta'zir.
Examples are like accused guilty of the offence, acted under the directed command or influence of the father; committed the offence of murder for taking the revenge of murder of his father; motive for the crime shrouded in mystery; immediate cause of attack not known; occurrence precedes by altercation or abuses; crime committed without premeditation; and even at times insufficiency of motive has been taken into consideration; occurrence taken place because of fault of the deceased i,e, where the deceased caused annoyance to accused; and many more circumstances.
23. Coming to the case in hand. Four persons (appellants) have been awarded sentence of death each by the Trial Court, which has been confirmed by the learned Division Bench of the High Court.
The offence for which the appellants are charged with is abduction of two persons for ransom. No doubt that the two Courts below have held the appellants guilty of the offence they are charged with but there are certain factors which are required to be considered while deciding as to what would be the appropriate sentence on the given facts and circumstances of the case.
24. There is element of alleged beating by the , abductors to the abductees, when they were kept for the night in the captivity but there is no medical evidence that any physical injury was caused to any of the abductees.
25. The period of detention is also very short i,e, one night only. It is also not in evidence that after receiving the ransom amount, how and to what extent each one of the appellants has received his respective share in the ransom money.
26. The prosecution has led no evidence to show that the appellants were previously involved in such like crimes and were ever convicted for any offence.
27. Finally, we press into service the principle as enunciated in the case of Israr Ali v. State (2007 SCM R 525), where a Shariat Appellate Bench of this Court, comprising of five Hon'ble members ruled that "question of sentence demands utmost care on the part of Court dealing with life and liberties of people -- accused persons are also entitled to extenuating benefit of doubt on the question of sentence" and in this reported case, sentence of death awarded under sections 302(b), P.P.C. And 12 of Offence of Zina (EOH) Ordinance, 1979, awarded by the Trial Court and maintained by the Federal Shariat Court, was converted into imprisonment for life.
28. We, in the preceding paragraphs of our judgment, have already highlighted some important facts of the case, which remained unanswered by the High Court and which have not been reasonably explained by the prosecution, therefore, applying the test of benefit of doubt in determining the quantum of sentence, we allow these appeals partially and while maintaining the conviction of the appellants, alter their sentence of death to life imprisonment each under section 365-A, P.P.C. The remaining sentences of fine etc. Are left intact.