' AMIR HANI MUSLIM, J.---This appeal has been preferred by the appellants against judgment of the Lahore High Court, by which it has dismissed their appeals maintaining the conviction recorded by the trial Court by confirming the death sentence to both the appellants.
2. Briefly stated, the facts of the case as given in the impugned judgment, are that on 3-1-1999 at about 1-00 p.m. While the complainant was present in his house his door was knocked and his son aged about 9/10 years opened the door. The complainant heard voice of unknown persons saying that some guests of the complainant had come to railway station and were to be brought by.
Muhammad Saleem, deceased. Muhammad Saleem accompanied them but did not come back home. The complainant reached railway station chowk where he met with Muhammad Shoaib, who told him that at about 1-15 p.m. Two unknown persons were taking Muhammad Saleem (deceased) away towards west on a motorcycle. The complainant received a telephonic call that if he needs back his son Muhammad Saleem, he should pay $ 1500 dollars which amount be placed on 5-2-1999 near letter box at Railway Station. On the said date, the complainant along with Muhammad Shoaib, Muhammad Shabbir, Wali Muhammad and Muhammad Ibrahim reached railway station, put Rs,30,000 and prize bonds, each for a denomination of Rs,10,000 in a bag and placed it at the given spot. At about 4-00 p.m. Two persons came on a motorcycle, who were later on recognized as Javed Iqbal and Usman Haider, took away the said bag. Even after receiving the bag of cash and prize bonds, the accused did not return Muhammad Saleem and made a telephonic call that amount was less than the demand. Thereafter, they also sent an audio cassette through post in which they demanded more money. The complainant showed his suspicion that his son had been murdered even after receiving the amount of ransom.
3. The occurrence took place at 1 p.m. On 3-1-1999 and the matter was reported to police at 4-40 p.m. On 13-2-1999, Police Station Sillanwali, District Sargodha, upon which formal F.I.R. (Exh.PA) was recorded.
4. Investigation was conducted by Suqlain Shah, Inspector/SHO (P.W.12), who, on 13-2-1999, inspected the spot of abduction of the deceased, prepared rough site plan (Exh.PL), took into possession video cassette (Exh.PF) and arrested appellant Javed Iqbal and Usman Haider while travelling in a Suzuki car which was also taken into possession along with registration book vide (Exh.PC). Both the appellants got recovered three bones which were secured vide (Exh.PG), three pieces-of last worn clothes of the deceased secured vide (Exh.PH), and blood stained earth. Javed Iqbal appellant led to the recovery of motorcycle which was taken into possession vide (Exh.PH). He also got recovered cash amounting to Rs, 30,000 and prize bonds of Rs, 70,000. Pistol was also recovered on the pointation of Javed Iqbal appellant vide (Exh.PD). After completion of investigation, the appellant were sent up for trial.
5. The prosecution produced 12 witnesses and tendered in evidence reports of Chemical Examiner, report of Bacteriologist and report of Anatomy. Thereafter, the statements of the appellants under section 342, Cr.P.C. Were also recorded in which they pleaded not guilty. The trial Court vide its judgment dated 23-8-1999, convicted the appellants under section 302/334, P.P.C. To death with a fine of Rs,1,00,000 each or in default of payment of fine to further undergo 10 years' R.I. Each. They were further convicted under section 365-A, P.P.C. To 14 years' R.I. With fine of Rs,10,000 each or in default to suffer six months' R.I. Each and under section 201/34, P.P.C. To 7 years' R.I. And fine of Rs,5,000 each and in default to undergo 3 months' R.I.
6. The trial Court sent murder reference to the High Court for confirmation of death sentence of the appellants while the appellants preferred Criminal Appeal No,792 of 2000 against their convictions and sentence. The learned High Court, vide its judgment dated 6-3-2002, upheld the convictions and sentences of the appellants as awarded by the trial Court and answered the murder reference in affirmative.
7. This Court, by order dated 6-6-2011, issued notice to the appellants for enhancement of sentence, as offence under section 365-A, P.P.C. For which the appellants are charged is not compoundable.
8. It is contended by the learned counsel for the appellant Javed Iqbal that during the pendency of the proceedings, the complainant has compromised and application to this effect being C.M.A.
No,221 of 2011, has also been made in this Court. This Court, by its order dated 17-5-2011, called for the report from the Special Judge, Anti-Terrorism Court/District and Sessions Judge, Sargodha, who after inquiry has sent the report with record containing the statements of the legal heirs of deceased Muhammad Saleem, according to which, they have forgiven the appellant Javed Iqbal in the name of Allah Almighty and have relinquished their rights including Qisas and Diyat endorsing their no objection if the appellant Javed Iqbal is acquitted and released. In view of the aforesaid report, we accept the compromise application and acquit the appellant Javed Iqbal of the charge under section 302, P.P.C.
9. In regard to his conviction under section 365-A, P.P.C. With fine of Rs,10,000 or in default to suffer 6 months' R.I. Besides his conviction under section 201, P.P.C. Read with section 34, P.P.C. For 7 years'
R.I. With fine of Rs, 5,000 or in default to undergo R.I. For 3 months, it is contended by the learned counsel that the factum of abduction has neither been proved nor the remains of deceased Muhammad Saleem were proved. His submission was that appellant Javed Iqbal was closely related to the deceased and the incident took place on 3-1-1999, whereas the F.I.R was lodged on 13-2-1999. He submits that the close relationship of the complainant with the appellant Javed Iqbal itself was sufficient ground to discard the prosecution story. His next contention was that the human ribs procured were not certified by the doctor as ribs of the deceased. Therefore, the conviction awarded to the appellant under section 365-A, P.P.C. Was not warranted.
10. The learned counsel for the appellant Usman Haider has submitted that the conviction and sentences awarded on three counts to him were not warranted as there was no evidence against him. He submitted that no role was assigned to the appellant Usman Haider and all the recoveries were effected on the pointation of appellant Javed Iqbal. He submits that in the face of the material produced by the prosecution at trial, the appellant ought to have been acquitted. He has relied upon the judgment of this Court in the case of Maulana Nawab-ul-Hassan v. The Statereported in (2003 SCM R 658).
11. Learned counsel for the complainant has supported the compromise. He, however, has opposed the appeal of appellant Usman Haider.
12. The learned Additional Prosecutor General has contended that the prosecution has proved the case against the appellants beyond reasonable doubt. He submitted that two offences under which the appellants have been charged are non-compoundable and the quantum of sentence of the appellants awarded under section 365-A, P.P.C. For 14 years' R.I. Withfine of Rs,10,000 was not legal. In this respect, this Court has already issued notice for enhancement of sentence to both the appellants. He submitted that plain reading of section 365-A, P.P.C. Suggests that a person who is convicted under this section can only be awarded maximum sentence of death or in case there are extenuating circumstance, the court would award sentence of life imprisonment and shall also order forfeiture of the moveable and immovable properties of the accused. According to him, in the case in hand, the factum of abduction for ransom has been fully proved by the evidence of prosecution witnesses namely Muhammad. Shoaib, Wali Muhammad, Muhammad Shabbir, Muhammad Ibrahim besides the complainant Abdul Hameed. Therefore, the trial Court as well as the High Court were in error in awarding lesser sentence of 14 years' R.I. With fine to the appellants under section 365-A, P.P.C.
13. We have heard the learned counsel for the parties and learned Law Officer and have perused the record. The appellants were fully implicated by the prosecution witnesses named hereinabove.
The aforesaid witnesses have deposed that they had seen the appellants taking away the ransom amount which was kept in a bag near the letter box at the railway station. These witnesses have also seen the deceased in the company of the appellants on 3-1-1999 when he was abducted. The ransom amount was collected by the appellants which fact was witnessed by the aforesaid witnesses. The witnesses have fully implicated the appellants with the commission of offence of abduction of deceased Muhammad Saleem for ransom.
14. The argument of learned counsel for the appellant Javed Iqbal that the appellant was closely related with the deceased family is of no significance as the ransom amount was partly recovered from his grandfather who also happens to be the maternal grandfather of deceased Muhammad Saleem. The contention of learned counsel for the appellant Usman Haider that since no recovery has been effected either from him or on his potation is also insignificant as it is not the role but it is the goal of abduction for ransom which matters. Presence of Usman Haider in the company of appellant Javed Iqbal at the time when they picked the ransom money near the letter box at railway station is sufficient to connect him with the offence of abduction. He was also found in the company of appellant Javed Iqbal at the time when the deceased was abducted on motorcycle.
15. The reasoning for award of sentences to the appellants by the trial Court and the High Court were sound and does not warrant interference on that score but the quantum of sentence of 14 years' R.I. With fine under section 365-A, P.P.C. Requires consideration.
16. It is not disputed that the language of section 365-A, P.P.C. Suggests that if the prosecution proves its case, the Court is bound to award death penalty and in case of extenuating circumstance, life imprisonment coupled with forfeiture of property, but it cannot award a sentence lesser than the sentence provided in law. Once an offence is proved, the appellants ought to have been awarded the sentence of death but since the legal heirs of the deceased have entered into a compromise with the appellant Javed Iqbal, which compromise has been accepted by this Court, we, therefore, would not like to enhance the sentence of 14 years' R.I with fine of Rs,10,000 to sentence of death and would enhance it to life imprisonment with forfeiture of all his moveable and immoveable properties. Likewise the appellant Usman Haider, who has been awarded sentence of 14 years' R.I. With fine of Rs,10,000 or in default to undergo 6 months' R.I. Under section 365-A, P.P.C., his sentence of 14 years is also enhanced to life imprisonment with forfeiture of all his moveable and immoveable properties. The sentence of death under section 302 awarded to appellant Usman Haider is also commuted to life imprisonment for the reason that he was arrested in the year 1999 and remained in jail for almost twelve years and in the given circumstances, we believe that ends of justice have been met with. The sentences awarded to the appellants under section 201/34, P.P.C. Are also maintained. All the sentences of the appellants shall run concurrently and they shall also be entitled to the benefit of section 382-B, Cr.P.C.
' These are the reasons for our short order passed on 13-6-2011