SHAHZADO SHAIKH, J.---Wali Muhammad son of Sahibzada, Kaman son of Mukamil Shah and Mukamil Shah son of Muzaffar Shah being aggrieved by the judgment dated 18-1-2010 passed by Mr. Muhammad Hussain, Izafi Zilla Qazi/Additional Sessions Judge, Malakand in Hudood Case No, 23/3-2003 of this court, have come in appeal against the same under which all of them have been convicted as follows:--
(i) Under section 17(3) Harraba of 7 years' R.I. each, one lac fine the Offences Against Property or in default of payment of (enforcementofHudood) fine, to further undergo six Ordinance, 1979 months each.
(ii)Under sections 365-A/149/109 Life imprisonment.
Pakistan Penal Code (iii)Undersections344/149/109 3 years' R.I. each, fine of one Pakistan Penal Code lac rupees or in default of payment of fine to suffer three months' further R.I. each (iv)Under sections 337-A(i)/ To pay Rs, 10,000 to Muhammad Iqbal.
149/109 Pakistan Penal Code (v)Under sections 33717(i)/149/109 To pay Rs, 10,000 to Basharat Ali.
Pakistan Penal Code (vi)Under sections 148/149/109 One year'ssimple imprisonment.
Pakistan Penal Code
2. On 25-6-2008 at 10.15 hours Muhammad Iqbal son of Muhammad Sharif lodged a report under section 17(3) Harraba of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, sections 109/149/148/343, 365-A of Pakistan Penal Code at Police Station Sukha Kot District Malakand; in which he alleged that lie had friendly terms with Mukamil Shah and his son Kamran.
One month back they visited him in District Shaikhupura. They had a deal for purchase of arms. He paid them Rs, two lac for the said purchase and after staying a night with them, they left for their village Sukha Kot. On 10-6-2008, Mukamil Shah and his son Kamran contacted him to reach Sukha Kot. Consequently, he along with his companion Basharat Ali went to Sukha Kot on 12-6-2008 and at about 1600 hours, Kamran .brought a white colour motor car wherein they went to Dargai.
Kamran drank liquor; and they went to the place of occurrence at evening time in a taxi car.
Kalman contacted one Wali Muhammad through his mobile set and also contacted one Bacha Zada. After a lapse of 10/15 Minutes six persons having muffled their faces armed with Kalashnikov and on aiming the Kalashnikov at them snatched Rs,32,000 from his pocket, two mobile sets Nokia- 1100 and also snatched Rs,3,000 and one mobile set from his companion Basharat Ali . They blind folded their eyes and took them on foot while Kamran disappeared. After going on foot for 3 hours they were locked in a room and on opening their eyes, they were tied with chains. During their confinement, they were also given beating by sticks and blows and were demanding Rs,50 lac as ransom. They were provided bread and tea and were supervised by them. One day prior to the report, once again their eyes were blind folded stating that the matter had been settled. After going for four hours their eyes were untied and after giving them Rs,150 they were left in the fields and the culprits decamped. He charged Wall Muhammad and Bacha Zada along with four unknown culprits for commission of offence while Kamran and his father Mukamil Shah were charged for abetment.
3. The investigation was then taken up and appellants were sent up for trial before learned Izafi Zilla Qazi/ASJ, Dargai District Malakand, thereafter the charge was framed against the appellants on 23-10-2009. The learned Izafi Zilta Qazi/ASJ, Dargai District Malakand, on the basis of evidence adduced before him by the prosecution, convicted, and sentenced them as described in para-1 of the judgment.
4. In support of its case the prosecution examined the following witnesses:-- ' P.W.1 Dr. Saadat Anwar had examined the victim Muhammad Iqbal on 25-6-2008 at 12 hours and issued following report:-- (i)Injury on lower lip skin cut about 1/2 cm, (ii)Blackness around right eye due to blunt injury, (iii)Swelling on right shoulder joint due to trauma. Skin muscle intact. Complaining of pain of whole body but no visible scare or injury on the body.
' He also examined Basharat Ali on that date and time, and issued following report:- ' Injury on left toe with skin injury. Bone and muscle intact. Injuries on both buttocks with blood stagnation on both buttocks. Muscle, bone and skin intact also. Complaining of pain of whole body due to trauma but no visible injury seen. Trauma by blunt on whole body.
' P.W.2. Naib-Subedar Zair Shah is the Investigating Officer of this case. He got transferred accused Wali Muhammad from Mardan Jail and took his judicial custody for two days. After recording his statement under section 161, Cr.P.C. he sent him to judicial lock up and submitted supplementary challan against him in the Court of competent jurisdiction. In his cross-examination, this witness admitted that neither any statement was recorded against the accused nor he confessed his guilt, nor any recovery was effected against him. He further stated that identification parade of this accused had not been conducted.
' P.W.3. DFC Ayaz is witness regarding warrants under section 204, Code of Criminal Procedure against the accused Wali Muhammad, Bacha Zada and Kamran. He also signed on the above warrant.
' P.W.4. Retd. Post Commander Muhammad Kareem Khan was another Investigating Officer in this case, who gave some details regarding investigation of this case.
' P.W.5. Moharrar Muhammad Pervaz had recorded the F.I.R. on the report (Exh.P/A) of Muhammad Iqbal complainant and handed over the same to Investigating Officer for investigation of this case.
' P.W.6 Complainant Muhammad Iqbal had reiterated the contents of his application Exh.P/A which he had moved to the police station and on the basis of which F.I.R. was recorded.
' P.W.7 Basharat Ali stated more or less the same facts as narrated by the complainant in his application Exh.P/A.
P.W.8. Mukhtar Ahmad paid the ransom to the culprits for releasing to Muhammad Iqbal and his companion Basharat Ali and brother of complainant. He also narrated the facts on the same lines as narrated by his brother complainant Muhammad Iqbal in his application Exh.P/A
5. All the appellants have adopted same stance in their 342 Code of Criminal Procedure statements. They denied that they had committed any such crime and claimed to be innocent. All the appellants declined to be examined under section 340(2), Cr.P.C. nor they produced any defence. evidence.
6. We have heard the learned counsel for the appellants and learned State Counsel and have gone through the evidence on the record with their help.
7. Learned counsel for the appellants mainly contended that the amount of Rs,200,000 alleged to have been paid by Basharat All P.W.7 for the purchase of ammunition has not been proved; all the witnesses admitted that they had not seen Wall Muhammad and Bacha Zada accused before reporting the case and the four persons had muffled their faces while committing the alleged offence; no identification parade was conducted to identify the accused Wali Muhammad and Bacha Zada by the prosecution witnesses; that the factum of the sale of the tractor for paying money as ransom has not been proved. There are many contradictions in the statements of prosecution witnesses as the P.W.6 says that they reached the police station on foot whereas P.W.7 states that they went to the police station in a wagon; that there is no shit or any record regarding telephonic talk available to prove the factum of conversation between the accused and the complainant; the conduct of P.W.8 is not believable for the reasons that it is unnatural that he returned home on the same day after paying the ransom amount and did not wait for the release of the victims, although they had stated in one of their statements that they had acquaintances, for example one Mt. Gul, with whom they had earlier stayed there, also. That the alleged occurrence had not taken place at all in the circumstances of the case.
8. On a Court question as to why have the witnesses deposed against the appellants, the learned counsel argued that according to the statements of Muhammad Kareem (Rtd.) Post Commander P.W.4, there was acrimony between Kamran and the complainant, over their business deal. Lastly the learned counsel for the appellants stated that the parties have compromised and lenient view should be taken against the appellants. In support of his view the learned counsel relied on the following judgments:-- (i)(Mursal Kazmi alias Qamar Shah and another v.The State) 2009 SCMR 1410 (ii)(Abdul Jabbar and another v. The State) 1977 SCMR 50 (iii)(Muhammad Asghar alias Nannah and another v. The State) 2010 SCMR 1706 (iv)(Ibrar Husain and others v. The State) 2007 SCMR 605 (v)(Abdul Razzaq v. The State) 1983 SCMR 408.
(vi)(Yousaf Ali and others v. The State) 2002 SCMR 1885
(vii) (Ghulam Shabbir and 2 others v. The State) 2003 SCMR 663
(viii) (Siraj-ul-Haq and another v. The State) 2008 SCMR 302
9. On the other hand learned counsel for the State stated that the contents of the F.I.R. have been duly corroborated by the prosecution witnesses; P.W.8 had stated that he paid Rs,200,000 to accused Mukamil Shah and Kamran; P.W.8 also stated in his cross-examination that the amount of ransom was paid by him to the Culprits P.W.6 also stated in his cross-examination that he had informed the police about the payment of ransom. The learned counsel lastly asserted that the case against the appellants is fully proved and the conviction should be maintained.
10. We have given our anxious consideration to the respective contentions of learned counsel for the parties and also gone through the available record with their assistance, minutely.
11.On careful analysis it become quite clear that their existed business deal between the parties which created acrimony leading to use of force, coercion and wrongful confinement of the complainant and his companion by the appellants.
12.So far allegation of Harraba and kidnapping for ransom is concerned, the conduct -of the complainant party does create many doubts: In one statement P.W.7 stated that Kamran was left by the kidnappers on the way after some distance, whereas P.W.6 stated that they all were brought to a room where they were confined, and after that Kamran was allowed to go. All along there is no mention of any effort or any contact with Police or any other responsible person or notable for the release of the victims, by the complainant party. Even after alleged payment of the ransom money, P.W.8 neither contacted any acquaintance nor stayed in Sakha Kot, and there is complete silence till release of the victims after 4/5 days. Even buried description of cash is not given. The P.W.8 did not take anyone from his family or friends upto Sakha Kot, if not to the place of payment of the ransom money. In subsequent investigation, this place has neither been sketched, nor mentioned, nor identified. All persons allegedly involved in Harraba, in keeping in wrongful confinement, playing role in extorting and finally receiving money, have neither been arrested or identified.
13.There is no mention of specifics of the arms which were supposed to be basis for the deal worth Its. two lac which is by any standard an abnormal amount for any non-prohibited, weapon, and that ' also without any license already arranged for the same or even for that matter for the prohibited weapon. Any shadow cast over the deal as to its illegality definitely reflects adversely not only on the genuineness of the alleged deal but also on the legal conduct of the complainant party. But this aspect has not been looked into neither by police investigation nor' during court trial: All P.Ws. admitted that they had not seen Wali Muhammad and Bacha Zada accused before reporting the case and other persons introduced in the occurrence had muffled their faces while committing the alleged offence; no identification parade was conducted to identify the accused Wali Muhammad and. Bacha Zada by the prosecution witnesses. There are contradiction in the statements of prosecution witnesses as to reaching the police station on foot or otherwise. There is no record of telephonic communications to prove the guilt. The conduct of P-.Ws. is not natural, right from striking deal, details of Occurrence, payment of ransom till release and return of the victims even upto reporting and subsequent course that the investigation should have taken to enlarge the scope to expose and apprehend all offenders and accomplices. Which creates doubts,- as also elaborately argued by the learned counsel for the appellants.
14.In this view of the matter, the prosecution has failed to establish the charge under section 17(3)
Harraba, the Offences Against Property, (Enforcement of Hudood) Ordinance, 1979 and the charge under and 365-A of the Pakistan Penal Code, for kidnapping for ransom in the -alleged manner: Therefore, giving benefit of doubt, sentence, and conviction under sections 365-A/ 149/109 of the Pakistan Penal Code, lc awarded by the learned trial Court is set aside.
15. The factum of business dealings, and acrimony and altercation that cropped up, has not been denied even by the appellants. Instead of following the legal course for settlement of their dispute and for effecting recovery of any amounts due, the illegal and coercive method of violent force and confinement applied by the appellant party is very well proved from the statements of the victims., investigation, circumstances, and evidence brought on record, duly corroborated by Medical Reports.
16. In this view of the matter, rest of the sentence and conviction awarded by the learned trial Court under sections 344/149/ 109, sections 337-F(i)/149/, sections 337-A(i)/149 and 148/149/109 Pakistan Penal Code are maintained.
17. Lastly the learned counsel for the appellants stated that the parties have compromised and lenient view should be taken against the appellants. In support of his view, the learned counsel relied on the following judgments:--
(i) Abdul Razzaq v. The State 1983 SCMR, P. 408
(ii) Yousaf Ali and others v. The State 2002 SCMR, P.1885.
18. So far the cited judgment in Abdul Razzaq v. The State 1983 SCMR, P. 408, is concerned, it is not relevant to the facts and circumstances of the case under discussion in present appeal, as it pertains to the compromise in case under section 325, P.P.C.
19. Similarly judgment in Yousaf Ali and others v. The State 2002 SCMR, P.1885 is also not relevant as it does not squarely relate a precedent to be analogous to the case in present appeal; to briefly quote:-- "Where the complainant had compounded the offence under section 326, Pakistan Penal Code, the case was fit for reduction of sentence of the accused under sections 452/148, Pakistan Penal Code."
20. Furthermore compromise in non-compoundable criminal case, is not only restricted and governed by express provisions of the law, but also should be carefully examined and weighed against circumstances, and compromising capabilities, strengths and weaknesses of parties in order to ward off any attempt to defeat the process of law and criminal administration of justice, particularly after conclusion of the due process of law, award of punishment, etc., although it could have been put forward at any stage when call of clear conscience and morality would be more sounding. In this case it has been advanced after award of sentence and conviction, including imprisonment for life.
21.It will be pertinent to re-emphasize and reproduce that "compounding a non-compoundable offence is against public policy keeping in view the state of facts existing on the date of application to compound. Unless the provisions of section 345, Cr.P.C. are satisfied as to all matters mentioned therein, no offences shall be compounded". [PLD 2005 Lah. 328 (b)].
22.In this regard, one of important aspects of administration of justice is amplified in another judgment that "compromise" in non-compoundable cases is penalty against law. Acceptance of compensation does not cure illegality. Appeal ordered to be disposed of on merits. 11976 PCr.LJ 94].
23.In this view of the matter, the Criminal Miscellaneous Application No, 20/P of 2010 regarding said compromise filed by petitioner/appellant has already been dismissed vide court's order dated 1-12-2010.