NAIMATULLAH PHULPOTO, J. Appellant Ramz Ali Gopang was tried by learned Judge, Anti-Terrorism Court, Naushahro Feroze, in Special Case Nos. 49/2015 and 09/2016, arisen out of case/FIR bearing No. 43/2015, registered at P.S. Seeta Road Dadu, for offences under Section 365-A, P.P.C read with Section 7 ATA, 1997 and FIR No. 408 of 2015, registered at P.S. Ferozeabad Karachi, for offence punishable under Section 23(1)(a) Sindh Arms Act, 2013, respectively. On the conclusion of trial, vide judgment dated 30.07.2016, learned Judge Anti-Terrorism Court, Naushahro Feroze, convicted the appellant for offence under Section 365-A P.P.C read with Section 7(1)(e) of ATA, 1997 and sentenced him to imprisonment for life; besides for offence under Section 23(1)(a) read with Section 25 of Sindh Arms Act, 2013 to suffer ten years R.I.
2. Brief facts of prosecution case as recorded by the trial Court in the impugned judgment read as under:- "The brief facts of the prosecution case as per FIR lodged by complainat Dhani Bux. Chandio on 15.06.2015 are that he is farmer and his son Ahsan Ali aged about 10/11 years is studying in fourth Class in Government Middle School Memon Mohalla. On 26.05.2015, he went to school and complainant was available at village. On the same date relative of complainant Bakhshal son of Aandal Khan Chandio informed that he and Ali Hassan Chandio were available at Seeta Road City where son of complainant met with them. They went at the Dargah of Rahmani Nagar for Ziyarat.
After Ziyarat they were standing on link Road leading towards Khair Muhammad Baladi. At about 09.00 A.M time four persons and one women whom they identified to be Ramz Ali son of Ghulam Rasool Gopang, Zulfiqar Ali son of Ali Muhammad Lolai, Manthar Ali son of Haji Paryal Kolachi, fourth Mst. Begiyal wife of Haji Paryal Kolachi and one unknown person who will be identified if seen again. Male accused persons took out pistols from fold of Shalwar, accused Manthar Ali took Ahsan Ali and all accused persons went towards village of Khair Muhammad Baladi. Due to fear of weapons relative of complainant did not follow them. Thereafter on such information of Bakhsal Chandio, complainant searched his son Ahsan Ali and did not find any clue. On 03.06.2015 accused Ramz Ali Gopang called and demanded ransom amount of Rs. 2,00,000/- (Two lacs) for release of Ahsan. Complainant party tried to manage ransom amount, but could not manage.
Thereafter complainant appeared at Police Station and lodged FIR.
3. grief facts of the prosecution case Crime No. 408/2015 PS Ferozabad East Karachi lodged by ASI Israr Khan Afridi on behalf of the State are that on the day of incident he alongwith his SHO, subordinate staff, arrested accused Ramz Ali from Tipoo Sultan Road near KESC building in presence of mashirs Ali Hassan and Mohammad Saleem recovered abductee Ahsan Ali from his custody as well as recovered one unlicensed pistol of .30 bore loaded with 5 bullets in magazine.
Such memo of arrest and recovery was prepared on spot. Thereafter accused, case property and "abductee were brought at Police Station, where he lodged FIR under Sindh Arms Act against the accused on behalf of the State. After usual investigation he submitted challan of the case."
3. On the conclusion of investigation, challan was submitted against the appellant under above referred sections. Trial Court amalgamated main case under Section 365-A P.P.C and 7 ATA, 1997 with connected/offshoot under Section 23(1)(a) of Sindh Arms Act, 2013 in terms of Section 21(m) of ATA, 1997. Trial Court framed charge against the appellant, he pleaded not guilty and claimed to be tried. At the trial, prosecution examined 08 PWs. Trial Court recorded statement of the appellant under Section 342 Cr.P.C in which he claimed false implication and denied the prosecution allegations. Appellant did not lead evidence in his defence and declined to give statement on oath in disproof of prosecution allegations. Trial Court after hearing learned Counsel for the parties, convicted and sentenced the appellant as stated above, hence this appeal has been preferred.
4. Facts of this case as well as the evidence produced before the trial Court find an elaborate mention in the impugned judgment passed by the trial Court and therefore same may not be reproduced here so as to avoid duplication and unnecessary repetition.
5. Mr. Mehfooz Ahmed Awan, learned Counsel for the appellant argued that prosecution story is unbelievable as complainant did not implicate remaining accused named by him in the FIR but implicated appellant only in the commission of offence for mala fide reasons; that prosecution has failed to prove the allegation of abduction for ransom. Lastly, it is submitted that ingredients of Section 365-A P.P.C are not attracted in this case and conviction under Section 7 ATA, 1997 was also unwarranted in law. In support of his contentions, reliance is placed upon the case of Shah Zaib and others v. The State (2022 SCMR 1225).
6. Syed Sardar Ali Shah, Addl. PG argued that abductee was school going boy; prosecution has proved the case of abduction against the appellant by producing cogent evidence. It is further argued that Complainant had not motive to falsely implicate the appellant in the commission of the offence. Lastly, submitted that offence under Section 365 P.P.C has been established at trial but frankly stated that kidnapping for ransom is not proved from the evidence available on record; however, learned Additional PG prayed for dismissal of the appeal.
7. We have carefully pursued the evidence available on record. Complainant had deposed that his son Ahsan Ali student of 4th class, aged about 10/11 years, left home on 26.05.2015 for attending the school. PWs Bukhshal and Ali Hassan came at his house at 10:30 a.m. and informed him that they were available in Seeta Town where his son met them and they went to visit Rehmani Nagar when they were returning back from Dargah and were standing at link road, it was 09:00 a.m., three accused Ramz Ali (present appellant), Zulfiqar Ali and one unidentified armed with pistol appeared and forcibly abducted by Ahsan Ali. Complainant started search. On 03.06.2015, appellant Ramz Ali demanded ransom of Rs. 200,000/- on mobile phone from complainant then complainant sent Rs.
23000/- to appellant Ramz through easy money on cellular number given by appellant.
Complainant could not make arrangement of remaining ransom then he went to police station and lodged FIR on 15.06.2015. Complainant, after registration of FIR, collected information from mobile company and came to know that he has received call for ransom from Karachi then he went to Karachi along with nephew Ali Hassan and Muhammad Saleem Arain. Location of the appellant was traced by the police and he was arrested and his son was recovered on 18.02.2015.
Abudctee boy Ahsan Ali had deposed that he was returning back from Dargah with Ali Hassan and Bukhshal and when they reached at link road Khair Muhammad Baladi, he was kidnapped by appellant Ramz, Zulfiqar Ali and unknown persons and confined at different places. He has further deposed that appellant Ramz Ali was arrested by the police and pistol was recovered from him. ASI Israr Afridi had deposed that on 18.06.2015, appellant was arrested and a boy namely Ahsan Ali was recovered from his possession. Personal search of the appellant was conducted, a pistol was recovered from his possession and it was without license. Thereafter, accused and case property were brought to the police station and FIR under Section 23(1)(a) read with Section 25 of Sindh Arms Act, 2013 was lodged. PW Ali Hassan was also examined before the trial Court. He has also narrated the same story and implicated the appellant Ramz Ali. ASI Afzal Baig conducted the investigation of the case. Complainant, abductee and PW Ali Hassan were cross-examined at length by defence, testimony of the witness could not be shaken on material points. We have no reason to reject their testimony. Trial Court had rightly appreciated the evidence of the prosecution witnesses regarding abduction of a boy. However, re-examination of the evidence shows that offence under Section 365 P.P.C is proved by the prosecution but conviction under Section 365-A P.P.C is not sustainable under the law for the reasons that Complainant had deposed that appellant had telephoned him for payment of the ransom of Rs. 200,000/-, and he paid Rs.
23,000/- to the appellant through easy paisa but record of telephone used by the appellant and Complainant have not been produced before the trial Court, to satisfy the Court that appellant had actually made demand for ransom. Prosecution had failed to prove that Complainant paid Rs.
23,000/- to the appellant as ransom; no documentary evidence/call data has been produced before the trial Court. Unfortunately, investigation officer failed to collect the call data regarding conversation/contact between the appellant and complainant; besides record of easy money.
Learned advocate for the appellant in support of his submissions that offence under Section 365-A P.P.C has not been proved against the appellant, has rightly relied upon the case of Shah Zaib Supra. It shall be advantageous to reproduce relevant paragraph as under:- "Appellants' red-handed arrest, notwithstanding, a female with a female with a child in their company with handcuffed abductee on board the vehicle, overtaken by the police contingent shortly after registration of a case straight at a police station, compounded by violent death of one of the captors, nonetheless, does not allow a space to throw out the prosecution case on the basis of grounds agitated at bar. However, argument that the prosecution does not possess enough evidence to conclusively hypothesize the story of abduction for ransom, is not entirely beside the mark in as much as mere reliance upon a hand-written note in the abandoned vehicle, that too, in an encounter, seemingly unanticipated and events subsequent thereto are the factors more vividly spelling out abduction rather simpliciter than the one calculated to fetch ransom."
8. For the above stated reasons while respectfully relying upon the judgment of Shahzaib, we hold that prosecution has proved its case of abduction of boy against appellant, but failed to prove kidnapping for ransom. Purpose of administration of criminal justice is to ensure that majesty of law reigns supreme with peace and equilibrium in the society, it is not designed to wreak vengeance; it must provide opportunity to the errant to possible reform himself so as to rejoin mainstream life as a useful member thereof, we are inclined to partly allow the appeal, by converting appellant's conviction from Section 365-A P.P.C to 365 P.P.C and sentence the appellant for 07 years R.I and to pay fine of Rs. 50,000/- (Fifty Thousand) in case of default to suffer SI for three months. Sentence for offence under Section 23(1)(a) of Sindh Arms Act, 2013 is reduced to already undergone by him. In the view of dictum laid down in the case of Shah Zaib and others supra, conviction under Section 7 ATA, 1997 is set-aside. Appellant shall be entitled to benefit of Section 382-B Cr.P.C. The appeal is partly allowed in the above terms.