' SH. AHMAD FAROOQ, J.---The appellants/Zeeshan, Usman and Ayub Khan were tried in a case arising out of F.I.R. No,129 of 2009, dated 14-3-2009, registered in Police Station Cantt., Sialkot, for offence under section 365-A, P.P.C. Read with section 7(e) of the Anti-Terrorism Act, 1997, by the learned Judge, Anti-Terrorism Court-I, Gujranwala, who, by virtue of his judgment, dated 30-10- 2009, after having found them guilty for the abduction of Nohail Nisar and for the receipt of ransom amount for his release, convicted them under section 365-A, PPC read with section 7(e) of the Anti- Terrorism Act, 1997 and sentenced them to death, with fine of Rs,2,00,000, each, and in default thereof to undergo further simple imprisonment for one year. Their property was also directed to be confiscated in favour of the State.
2. The appellants, by filing this appeal, have called in question the conviction and sentence awarded to them vide the impugned judgment, whereas the learned trial Court has sent Capital Sentence Reference No,38-T of 2009 for confirmation of death sentence. We propose to decide both the above matters through this single judgment.
3. Succinctly, the prosecution story as narrated by the complainant/Dr. Nisar Ali Khan, in his complaint (Ex.PA), is that on 4-2-2009 at about 5-30 p.m., he was present in his house, the bell of his house rang and his son, namely, Nahail aged about 18 years, went towards the gate, inquired about the caller, who told him that they had come to repair the cable. The complainant submitted that his son opened the door, whereupon three unknown persons, carrying firearm, entered the house and on gunpoint, made his son to sit in a white colour Cultus car. The complainant contended that one unknown person was also present at the gate, whereas an unknown accused was sitting on the driving seat. The complainant also contended that the accused asked him that if he wanted to save the life of his son, then he should remain quiet and should not inform the police.
The complainant further submitted that the accused thereafter contacted him and demanded Rs,5 crore from him as "Tawan" and finally, a deal was struck with the accused at Rs,25,00,000. The complainant alleged that he gave Rs,25,00,000 to the accused at the settled place and after few hours, his son was released. The complainant after his own probe came to know that the accused/ Zeeshan Mahmood and Muhammad Usman sons of Khalid Mahmood and Ayub Ali along with two unknown persons had committed the occurrence. The complainant maintained that as the life of his son was in danger and the accused had given threat that if the matter is reported to the police, they would kill his son, the information was not reported to the police in time.
4. After the registration of the formal F.I.R. (Exh.PA/1), the investigation of the case was entrusted to Munawar Khan, S.-I. (P.W.8), who joined the complainant, Rizwan and Amjad in the investigation and arrested the accused. He also prepared the site plan of the place of occurrence (Exh.PK). On 17-3-2009, he interrogated the accused Ayub and on his pointation, Car LEJ/3029 was taken into possession vide recovery memo Exh.PD and site plan of the place of recovery of Car (Exh.PL) was prepared. He also recovered the Spectacles of the abductee on pointing of accused Usman vide recovery memo Exh.PE from the saw of Faqir Hussain and prepared the site plan Exh.PM.
Subsequently, P.W.8 recorded the statements of the P.Ws. On 19-3-2009, the Investigating Officer also recovered Rs,3,85,000, from a cupboard, on the disclosure of the accused/Ayub, took the same into possession vide recovery memo Exh.PJ and the site plan is Exh.PN. On 20-3-2009, P.W.8.
Investigating Officer got recovered Rs,8,00,000 (Exh.PG) from the accused/Zeeshan and Rs,3,15,000 (Exh.PH) from the accused/ Usman, separately, from different rooms of the house, the site plan of which was prepared as Exh.P.O. On 21-3-2009, P.W.8 also prepared the site plan (Exh.PP) of the place, where the abductee was detained and site plan (Exh.PQ) of the place, where the ransom money was received by the accused. On 23-3-2009, the accused/Ayub got recovered the Pistol with four live bullets from a residential house, which was taken into possession by the Investigating Officer vide recovery memo Exh.PF and site plan of the place of recovery is Exh. PR. On 25-3-2009, the P. W.8/Investigating Officer interrogated accused/Zeeshan and on his pointation recovered a Pistol from underneath a tree, which was taken into possession vide recovery memo Exh.PB and site plan is Exh. PS. On the same day, Usman/accused also got recovered from the bank of drain a Pistol, which was taken into possession by the Investigating Officer vide recovery memo Exh.PC and the site plan is Exh.PT. Investigating Officer also got registered cases under section 13 of the Arms Ordinance, 1965, against the accused. He also recorded the statement of the abductee Nohail Nasir on 19-3-2009. After completion of investigation, the Investigating Officer sent report under section 173 Cr.P.C. Against the accused to the court of competent jurisdiction.
5. The learned trial Court framed the formal charge under section 365-A, P.P.C. Read with section 7(e) of the Anti-Terrorism Act, 1997, against the accused, to which they pleaded not guilty and claimed to be tried.
6. Thereafter, prosecution was called upon to adduce evidence in order to substantiate the allegations and to prove the charges. Prosecution produced eight (8) witnesses in all. Shabbir Ahmad, Head Constable was examined as C.W.1. However, the learned Public Prosecutor gave up the witnesses Muhammad Ashraf, Muhammad Hussain 457/C, Tasneem Akhtar 394/C, Abdul Razzaq, S.-I., Muhammad Nazir 794/C and Maqbool Ahmad, A.S.-I., as being unnecessary.
7. P.W.1., Irshad Ali, A.S.-I., deposed that on 14-3-2009, Dr. Nisar Ali Khan, complainant, presented before him written application Exh. PA for registration of a case, whereupon he chalked out formal F.I.R. Exh.PA/1, without making any addition or omission. He also deposed that after registration of the case, he sent the original application along with copy of F.I.R. To the Incharge Investigation through Zafar Iqbal, Constable.
8. The complainant/Dr. Nisar Ali Khan appeared as P.W.7 and made the following statement:- ".... I identify all the under-trial accused who are present in the court. They are Zeeshan, Muhammad Usman and Muhammad Ayub. Nohail Nisar the abductee of this case is my only son. On 4-2-2008, my son and I were present at home. At 5-30 p.m, a bell was received at the house. I asked my son to go out and see that who is at the door. He went out, but he did not return for some time.
Suddenly, I saw and heard the noise of opening of the door and saw that Ayub and Usman the undertrial accused armed with pistols dragged my son forcibly inside the house. I was stunned. I asked Usman what he was doing and he directed me to remain calm. In the meanwhile, Ayub contacted on telephone and after some times, they went outside the house taking my son with them at gun-point. I rushed against them. I directed them to release my son. I saw Zeeshan accused driving the car LEJ/3029. The aforesaid car was Cultus of white colour. One unknown accused was also sitting on the front seat of the car with Zeeshan. They forcibly got my son seated on the back seat at gun-point. I requested them to release my son. Ayub directed me to arrange five crore rupees and they will contact me, otherwise, I will get dead body of my son. Then they went away with my son. Ayub threatened me that in case, I informed the police or anybody else, about the occurrence, then my son will be killed and my hospital will be blasted with bomb. The accused bargained me on 4-2-2009 and 5-2-2009 and 6-2-2009 and ultimately the bargain was settled at rupees twenty five lac. The bargain was finalized on 6-2-2009. I asked them I will pay rupees twenty lac to the accused provided my son is shown to me. All the conversation was made with me by Ayub accused. The accused asked me to reach at Godh Pur Chowk at about 4-30/4-45 p.m. Ayub and Zeeshan accused took me from Godh Pur Chowk to a house at Marala Road where two persons were present in the corridor who were guarding the abductee. They took me in the rear room which was dark one, where my son was kept. My son wept and requested me to fulfil the demand of the accused. He also asked me not to inform the police. In case I inform the police, he will be killed by the accused. Then the accused told me that they will inform the place, where I will hand over the ransom to them. The accused summoned me at Pull Aik and then asked me to follow the instructions given on telephone and reached Mehar Town on Eminabad Road. The road was closed and wall was broken and there was no further path on the road and the accused directed me to place the money rupees twenty five lac below the third tree of garden of Lokat. I placed the money in the shopper bag there. I have placed the money in the shape of Rs.5000 on the advice of the accused. Thereafter, the accused directed me to go back straight in the car and also advised me not to see back. When I on. The headlights of the car, I saw shopper in the hand of Ayub and both the remaining accused Usman and Zeeshan were standing on both sides armed with pistols. I went to home and at 9-00 p.m. I was informed by the accused that my son is present in the corner of street in front of Alkhdmit Hospital on Khadim Ali Road. I reached the said place within ten minutes, where my son was sitting opposite to the aforesaid hospital. I dropped him home. Then I reached home the accused again contacted me on telephone and told me that my son had reached home but I am still under threat and I will remain under their surveillance and if I informed the police, then they will kill my son and blast my hospital. They also threatened me that my wife will alto be kidnapped. Zeeshan had been continuously watching me at my hospital and he also used to threaten me seeing me alone that in case I inform the police his earlier threats were intact. Slowly their surveillance was decreased. Till 14-3-2009, I saw that their interference has vanished, therefore, on 14-3-2009, I made the complaint Exh.PA before the police of Police Station Cantt. On 19-3-2009, at 9-00 a.m. I and my son were taken to the police station, where we identified the accused person."
9. P.W.2, Zafar Uilah (580/C), P.W.3, Zafar Iqbal (1377/LHC), P.W.4, Abdul Ghani (1022/C) and P.W.5, Muhammad Azam (240/C) appeared to testify the factum of recovery of ransom amount as well as Pistols at the instance of the appellants.
10. Nohail Nisar, the abductee appeared as P.W.6 and fully supported the prosecution version.
11. Munawar Khan, S.-I. (P.W.8) deposed about the duties performed and acts done by him during the course of investigation, as discussed in preceding paragraph No 4.
12. Thereafter, the trial proceeded to next important phase pertaining to the examination of the accused under section 342 Cr.P.C. All the material evidence was put to them to seek their explanation with regard to accusations brought against them and also to know their standpoint.
They claimed their absolute innocence in the matter and stated about their earlier dispute with the complainant and his manager, namely, Rizwan Butt, as they could not complete the work of "Poshish" of the hospital of the complainant. Whereupon, the complainant in connivance with the police officials of Police Station Civil Lines, Sialkot, made this fake occurrence and got them arrested. They produced their defence evidence but did not opt to make statements on oath under section 340(2), Cr.P.C. In disproof of the allegations levelled against them. The accused/Muhammad Ayub tendered in evidence Letter-paid in the name of Ayub Brothers as Mark-A, Visiting Card of Ayub Brothers. As Mark-B and copy of the National Tax Number Certificate as Mark-C, while accused Zeshan Mehmood produced attested copy of the application under sections 22-A/22-B Cr.P.C., along with orders of the learned Additional Sessions Judge, Sialkot, as Exh.DG, whereas the accused/Usman tendered in his defence, photocopy of Roll Number Slip of Secondary School Examination, 2005, as Mark-D and copy of Provisional Result Card as Mark-E and closed their defence.
13. Upon conclusion of the trial, the learned trial Court holding the present appellants guilty for the abduction of Nohail Nisar and receiving ransom amount for his release, convicted them under section 365-A, P.P.C. Read with section 7(e) of the Anti-Terrorism Act, 1997, and sentenced them as aforementioned. Hence, the instant appeal has been filed by the appellants against their conviction and sentence and also Capital Sentence Reference No 38-T of 2009 has been sent by the learned trial Court for confirmation or otherwise of the sentence of death imposed upon the appellants before this Court.
14. The learned counsel for the appellants submitted that there is an inordinate delay of one month and nine days in lodging of the F.I.R. They further submitted that after the recovery of abductee and payment of the ransom amount, there was no plausible explanation for not registering the case for such a long time. They claimed that as a matter of fact, the accused/appellants have been falsely implicated due to an earlier dispute regarding the work done by them at the hospital of the complainant and non-payment of the full labour charges. The learned counsel for the appellants alleged that there are material contradictions and improvements in the statements of the complainant (P.W.7) and the abductee/Nohail Nisar (P.W.6). They maintained that despite the fact, the complainant was well aware of the accused/Zeeshan, who had been working as a carpenter in his hospital and the accused/Osman, who is his real brother and the accused accused/Ayub, who used to visit them quite frequently, the complainant could not identify them when they abducted his son and it is nowhere mentioned in the F.I.R. That the accused had muffled their faces. They further maintained that there is no eye-witness of the occurrence except the complainant who had a motive for false implication of the present appellants. They pointed out that District Police Officer, Sialkot, addressed a press conference on 14-3-2009 wherein he mentioned about the arrest of the accused and the recovery of the ransom amount. On the other hand, the Investigating Officer/P.W.8 stated that the amount of the ransom was recovered from the accused on 19-3-2009 and 20-3-2009. They argued that the alleged recovered amount of ransom was in fact given by the complainant to the police and the same was planted upon the accused. They asserted that the alleged recovered amount of ransom was, never made a case property. They further claimed that the amount of ransom, alleged to have been recovered, from the appellants, was taken on superdari by the complainant without the orders of the competent Court. Concluding their arguments, they maintained that the prosecution could not establish the guilt of the accused/appellants beyond reasonable doubt and the learned trial Court failed to take notice of the material contradictions in the evidence of the prosecution as well as the dishonest improvements made by P.W.6 and P.W.7. They pleaded for the acquittal of convicts/ appellants.
15. Conversely, the learned DDPP vehemently opposed the instant appeal on the plea that the delay in the registration of the case was sufficiently explained in the F.I.R. Itself as the complainant remained for a sufficient long time under a constant threat from the convicts/present appellants and did not lodge the F.I.R. Immediately for the sake of their lives and property. He submitted that there was no reason for the complainant to have falsely implicated the present appellants in this case. He maintained that the complainant and his wife are running a hospital and being respectable members of the society could not afford to indulge in such-like longstanding agony of making a false story of the abduction for ransom of their only son. He asserted that a huge amount of Rs.15,00,000, in addition to three pistols, which were recovered from the present appellants, could not have been falsely planted. He pointed out that minor discrepancies in the statements of P.W.6.
And P.W.7. Are not sufficient to make the prosecution story false or improbable, as with the passage of time some discrepancies are likely to crept in the statements. Lastly, he argued that the prosecution has succeeded in proving the guilt of the appellants to the hilt. He further argued that the conviction and sentence of death awarded to the appellants by the learned trial Court do not warrant any interference.
16. We have heard the learned counsel for the appellants and the learned Deputy Prosecutor- General at length and examined the record of the case carefully.
17. No doubt, there is a delay of one month and nine days in the registration of the case as the occurrence took place on 4-2-2009, whereas the F.I.R. Was lodged on, 14-3-2009 but the complainant has given a plausible explanation in the F.I.R. Itself for the said delay as he was being continuously threatened by the convicts/appellants and he could not put his own life and the life of his son at stake by reporting the matter to police immediately. The said explanation/justification is quite natural and appeals to even a person of ordinary prudence. Furthermore, mere delay in lodging of the F.I.R. Is not always fatal to the case of the prosecution or conclusive proof of false implication or innocence of the accused persons. The complainant is the real father of the abductee and it is unbelievable that he would have concocted a false story of the abduction of his real son implicating the accused persons, with whom he had allegedly a trivial dispute regarding the unsatisfactory performance of repair of "sofas" and its payments thereof.
18. The argument of the learned counsel for the appellants that there is no independent witness of the occurrence except the complainant (P.W.7.) and the abductee (P.W.6.) cannot come to their rescue, as the said witnesses are not only natural witnesses but their evidence is also corroborated by circumstantial evidence and the recoveries effected from the accused. Quality and not the quantity of evidence is to be taken into consideration and conviction can be based even on the testimony of a B sole natural and truthful witness. Moreover, people are generally scared of becoming a witness against the persons involved in heinous crime of abduction for ransom P.W.6/Nohail Nisar, who was abducted for ransom and the complainant/Dr. Nisar Ali Khan (P.W.7.) while appearing as a witness in the trial court have given the minutest details of the occurrence. No doubt, there are certain contradictions and improvements in the statements of P.W.6. And P.W.7 but the same are not material and of much significance so as to cast a doubt on the veracity of evidence, which is otherwise confidence inspiring and prove involvement of the appellants therein.
Similarly, the disclosures made by the District Police Officer, in his press conference on 14-3-2009 as well as the minor irregularities committed by the police during investigation cannot be preferred or given more credence as compared to the statements of the eye-witness (P.W.7.) and the actual victim of the occurrence i.e, P.W.6. Coupled with the recovery of three pistols, a car and a huge amount of ransom recovered from the present appellants. The recovery of a Car bearing No,LEG3029 on the disclosure of accused/Ayub connects the chain of accomplishment of the act of abduction for ransom. We are not prepared to believe that the recoveries of three pistols, a car and an amount of Rs.15,00,000 was planted upon the present appellants by the complainant or the police. The police officials, who witnessed the recoveries, are equally worthy of credence, in the absence of some tangible evidence to the contrary, as a private witness.
19. Above all there is no motive or animosity of the complainant for the false implication of the present appellants and that too, in an occurrence of the abduction of his only son, who was a student of 1st Year at the relevant time and making payment of Rs.25,00,000 as ransom money to get his son released, out of which Rs.15.00,000 has been recovered from the present appellants during the investigation.
20. The ocular account of the occurrence as narrated by the witnesses of the prosecution is fully corroborated by the recoveries of the pistols as well as huge amount of Rs.15,00,000. After evaluating the whole evidence, discussed above, we are of the considered view that the prosecution has proved the case against the appellants beyond reasonable doubt and the learned trial Court has rightly convicted the appellants. As regards the quantum of their sentence, it has been noticed that the accused/Zeeshan and Usman Ali Khan are real brothers and the age of appellant/Usman Ali Khan at the time of the occurrence was only 21 years. Similarly, the appellant/Ayub Khan, who is a carpenter by profession, has no previous criminal history. The appellants, being the first offenders, also deserve to be treated leniently qua the quantum of sentence. Hence, conviction of the appellants under section 365-A read with section 7(e) of Anti- Terrorism Act. 1997, is maintained, but the death sentence awarded to the appellants is converted into life imprisonment. The imposition of fine of Rs.2,00,000, each, and in default thereof to further undergo simple imprisonment for one year, each, shall remain intact. The benefit of section 382-B, Cr.P.C. Would be given to the appellants. With the above modification in the quantum of sentence, the appeal is dismissed.
21. The Capital Sentence Reference No,38-T of 2009 is answered in Negative and the sentence of death, awarded to the appellants by the learned trial Court, Not Confirmed.