Syed Muhammad Kazim Raza Shamsi, J.--Talib Hussain, Najma Bibi, Muhammad Ashraf and Rashid Naseem Rizvi faced trial in case FIR. No, 08 dated 22.11.200 registered under Sections 365-A, 353, 427, 434 P.P.C. with Police Station Rakhi Gaj, District D.G. Khan which was conducted by the learned Judge, Anti-Terrorism Court, D.G. Khan and vide judgment dated 13.5.2006, Mst. Najma Bibi was acquitted from the charge while appellants were convicted under Section 7(e) of Anti- Terrorism Act, 1997 read with Sections 365-A and 34, P.P.C. and were sentenced to imprisonment for life each. They were acquitted under Sections 353, 427, P.P.C. Talib Hussain and Muhammad Ashraf convicts assailed their conviction through Jail Appeals bearing Crl. Appeal No, 26/2006 and Crl.
Appeal No, 9/2008 whereas Rashid Naseem Rizvi filed Crl. Appeal No, 30/2066. The matter of acquittal of Mst. Najma Bibi was not assailed by the State by filing, an appeal. Rashid Naseem Rizvi the appellant was admitted to bail by this Court vide order dated 3.6.2008 recorded in Crl. Misc. No, 01/2007.. Since all the afore-noted appeals have arisen out of single judgment of the learned trial Court as such, are being decided jointly.
2. The criminal machinery was set into motion on the complaint of Muhammad Jamil Sarwar of MBP Rakhi Gaj, Dera Ghazi Khan who lodged the F.I.R. Ex.PA on 22.11.2005 mentioning that at about 3.30 p.m., he along with Muhammad Mussa and M. Nawaz was on traffic duty at the check post, when they noticed a car which was enrouted to Balochistan. The car when stopped did not halt was chased and hauld up where from six persons along with a suckling baby were taken into custody. Talib Hussain and Mst. Najma Bibi having a baby were found sitting on the front seat and three persons were at the, rear seat, out of those sitting in between two persons was clad in a black chaddar. On interrogation, the hard pressed person disclosed his name Malik Muhammad Hanif resident of Sandilianwali, Tehsil Kamalia, District Toba Tek Singh and further informed that his accomplices were Talib Hussain, Najma Bibi, Muhammad Ashraf and Rashid Naseem Rizvi and had abducted him forcibly and he was taken to some unknown place.
3. Investigation in the case were carried out whereafter the challan against all the four persons was sent to the Court for trial. All the four persons were charge sheeted, tried and convicted in the above terms by the learned trial Court.
4. It is contended by the learned counsel for the appellants that the alleged abductee did not make any statement disclosing that he was abducted by the appellants for having ransom from him. He further contended that the appellants have been interrogated by the police about the purpose of abduction Malik Muhammad Hanif, they told to the police that he (Malik Muhammad Hanif) was abducted for ransom. According to the learned counsel for the appellants this single word in the whole prosecution evidence is not sufficient to constitute an offence under Section 365-A, P.P.C. He further submitted that the appellants were known to the victim of the case rather Talib Hussain remained in the employment for six months and owed money towards- the alleged abductee and the abductee in order to avoid that liability concocted the story of his abduction. It is further contended that Rashid Naseem Rizvi runs a rent a car business and in that connection he was accompanying the appellants when he along with other co-appellants were apprehended by the police. Added further that sole statement of PW-1 without any independent corroboration is not sufficient to infer that Malik Muhammad Hanif was abducted for ransom purpose; that if at all any case is made out against the appellants that could be under Section 365, P.P.C. for which the punishment provided by the law is seven years. Adding further in this respect the learned counsel submitted that except Rashid Naseem Rizvi other appellants are in incarceration for more than seven years, thus, in this manner they have served out the sentence.
5. The learned Additional Prosecutor General had supported the judgment of learned trial Court and argued that the braneula fixed at the hand of the abductee through which he was tranquillized is the proof that Malik Muhammad Hanif was being taken away only for the purpose of ransom and for no other reason thus, in this scenario the solitary statement of PW-1 is sufficient to make out a case against the appellants under Section 365-A, P.P.C. He further submitted that the appellants failed to dent the prosecution evidence in this respect as -such, they were rightly convicted and sentenced by the learned trial Court.
6. We have considered the submissions advanced by the learned counsel for the parties and examined the record.
7. Mere fact that the alleged abductee was having a branulla on his hand is not sin qua non of the fact that he was being taken away for extorting ransom from him. The abductee when recovered from the car although was in semi conscious condition, did not disclose this fact to Muhammad Jamil Sarwar the complainant which was introduced for the first time when he deposed as PW-1 in the Court on 12.4.2006. The investigating officer did not investigate this fact of abduction of Malik Muhammad Hanif for ransom purpose thus, the prosecution evidence lacks an important ingredient constituting an offence under Section 365A P.P.C. In the evidence, it was admitted by PW-1 that Talib Hussain was his employee. A suggestion was made to PW-1 that said Talib Hussain was cultivating his land for the last four years which goes to prove the defence version of Talib Hussain in the sense that denial of the defence was evasive and ambiguous. Thus, presumption of law is that same stood admitted. In the statement recorded under Section 342 Cr.P.C. Talib Hussain stated that his family was brought by the victim' -from Sandilianwala for cultivation purposes and he was cultivating jointly with Malik Muhammad Hanif. He further stated in his defence that Malik Muhammad Hanif had himself accompanied him for giving him the out standing amount which he (victim) was to receive from Dera Ghazi Khan area but instead of fulfilling his promise, he managed a case against him and others in connivance BMP Rakhi Gaj. When this defence plea is kept in juxtaposition with the prosecution case, it appears that the same had Substance, it was put to PW-1 the star witness of the prosecution who although denied these facts but without any cogent reason.
8. The important question involved in the case is the demand of ransom from the victim which if established on the record would bring the case of the prosecution within the jurisdiction of Anti- Terrorism Court. As already observed above, there is no iota of evidence in this respect on the record establishing that the appellants had ever demanded any ransom for the release of PW-1.
When no such evidence is available on the file then it would be justified to say that offence under Section 365-A, P.P.C. is not made out thus, could not be tried by the learned Judge of Anti-Terrorism Court, D.G. Khan. A case of simple abduction/kidnapping is made out from the evidence led on the record which was triable by the Courts of plenary jurisdiction. The learned trial Court did not appreciate this fact of non-demanding of ransom while charging the appellants trying and convicting them. When the offence under Section 365-A, P.P.C: has come out from the jurisdiction of Anti-- Terrorism Court then the application of Section 7(e) of Anti-Terrorism Act, 1997 is also not made out.
9. The upshot of the above discussion is that the prosecution has miserably failed to prove that Malik Muhammad Hanif was abducted by the appellants for extorting ransom from him, however, a case of simple abduction/kidnapping falling under Section 365, P.P.C. stood against the appellants.
The appellants have already been acquitted under offence under Sections 353 and 427, P.P.C. by learned trial Court.
10. For the forgoing reasons, afore-noted appeals are partly allowed, offence under Section 365-A, P.P.C. is converted into an offence under Section 365 P.P.C. and the appellants are convicted accordingly. The appellants Talib Hussain and Muhammad Ashraf are sentenced to imprisonment for seven years with fine of Rs,50,000/- in default whereof they shall serve three months simple imprisonment. Benefit of Section 382-B, Cr.P.C. is also extended to them. Rashid Naseem Rizvi is sentenced to one already undergone by him as he has no knowledge, of the abduction of Malik Muhammad Hanif rather his car was hired by Talib Hussain for traveling to D.G. Khan. He is also burdened to pay fine of Rs,25,000/- in default whereof he shall serve three months simple imprisonment.
11. Rashid Naseem Rizvi is present in the Court on bail who has undertaken to pay the fine of Rs,25,000/- within a week in the Treasury. On the payment of fine within the prescribed time, his bail bonds shall be cancelled and sureties would be relieved of their liability. In case of default in the payment of the above said amount, he shall be taken into custody to serve simple imprisonment of three months.