' MUHAMMAD AMIR MALIK, J.---Muhammad Asif and Muhammad Shafiq appellants, on conviction for an offence under section 365-A/34, P.P.C. By Judge Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, for Lahore Division vide judgment dated 31-5-1990, were sentenced to 14 years' R.I. Each and a fine of Rs,50,000 each or in default thereof further R.I. For five years each. The fine, if recovered, was ordered to be paid to Muhammad Arshad P.W. As compensation. The convicts have appealed.
2. The occurrence took place at 7-15 p.m. On 25-4-1990 and Fateh Muhammad complainant (P.W.1) lodged the F.I.R. (Ex.PA) the same day at 7.40 p.m. With Azmat Barri Inspector S.H.O. (P.W.4) of Police Station A-Division Okara.
3. According to the version given in the F.I.R. Fateh Muhammad complainant was the resident of Okara while his son Muhammad Arshad (PW.2) had been working, as a goldsmith in Saudi Arabia.
He returned from Saudi Arabia about 4 months back with sufficient money. This fact was known to the general public. After Aftari the complainant alongwith his son-in--law Muhammad Hussain (given up) and Muhammad Ismail (PW.3) was sitting in the chowk outside his house when Muhammad Arshad went towards Shimla Bakery to fetch a bottle of soft drink. In the meanwhile white colour car LHJ-778 driven by Hamid reached Shimla Bakery and stopped near Arshad. From it Muhammad Shafiq and Muhammad Asif appellants respectively armed with .7 mm rifle and a dagger alongwith Amir Qayyum Butt armed with a pistol came out, caught hold of Arshad forcibly, placed him in the car and left the spot firing. It is also in the F.I.R. That lights were on in the street and the 4 accused were previously known as they were the acquaintance of Arshad and used to visit them off and on.
4. Azmat Barri Inspector S.H.O. After recording the F.I.R. Reached the spot and prepared rough site plan (Ex.PF). At 11-00 p.m. He was present near Vinus Cinema where Fateh Muhammad complainant brought a letter (Exs-PB and P.B/1 and he took it into possession vide memo (Ex-PC).
On the same night at 12-30 a.m. When he was present at Railway crossing, Amir and Hamid co- accused were seen in car No, LHJ-778 and were signalled to stop. They did not, and so were chased. Near Karamanwala Chowk both left the car and fled away. The car was taken into possession vide memo (Ex.PG). At 10.30 a.m. On the next day he alongwith police party surrounded a poultry farm on a secret information where Asif and Shafiq appellants were present alongwith Arshad, the abductee. On announcement, the appellants surrended to the police and Arshad was recovered. Shafiq was carrying a sten gun with .25 live bullets (P1 and P3/1 to 25) and Asif was having a dagger (PS). These were recovered vide memos. (Exs.PD & PE).
5. The prosecution produced Fateh Muhammad complainant, his son Muhammad Arshad, the abductee, Muhammad Ismail and Azmat Barri, the Investigator (P.Ws. 1 to 4) to prove the charge.
Muhammad Ismail did not support the prosecution case, was declared hostile and was allowed to be cross-examined by the learned prosecutor.
6. Fateh Muhammad and Muhammad Arshad supported the version given in the F.I.R. Fateh Muhammad also told that on the night of occurrence, he received Rukka (Exs.PB and PB/1) from his son requesting for payment of Rs,50,000 to the accused which he produced before the police and was taken into possession vide memo (Ex.PC). In cross-examination he told that Amir and Hamid accused used to visit his house to see his son Arshad and he had seen them with his son near his house 3/4 times before the occurrence. It was suggested to him that his son had obtained Rs,25,000 from Amir through Hamid accused for obtaining a visa for Saudi Arabia or that on the day of occurrence Arshad had himself called them to receive back the amount of Rs,25,000. He denied the suggestion in this respect. He also denied that in order to receive the amount from Arshad, Amir and Hamid had taken Asif and Shafiq appellant with them or that quarrel took place on the question of return of money whereafter Asif and Shafiq appellants were handed over to the police and Amir and Hamid succeeded in making good their escape. Muhammad Arshad has corroborated his father. He only named Amir and Hamid accused who had come alongwith two other persons in his examination-in-chief. But in cross-examination he told that he had remained in Saudi Arabia for about 4/5 years, had come to Pakistan during this time 2/3 times. He also replied that Rukka (Exs.PB & PB/1) was handed over to his father by Amir and Hamid accused. He also explained in cross-examination ihat the appellants present in Court namely Shafiq and Asif were the persons who had abducted him and kept him in poultry farm. He also deposed in cross- examination that he was kept confined in a room of poultry farm for about 13 hours wherefrom he was got released by the police. He denied that he fabricated the story to avoid payment of the money. He is corroborated by the Inspector that he was recovered from the confinement in the poultry farm when the two appellants surrendered to the police.
7. The appellants at the close of the trial, in their statements under section 342, Cr.P.C. Pleaded that Arshad had obtained Rs,25,000 from Amir through Hamid accused for a visa for Saudi Arabia. This visa was not sent to Amir nor the money was returned. Arshad himself called Amir to receive the money and they (the appellants) had accompanied him to Okara where altercation took place between Arshad and Amir whereupon Amir and Hamid ran away but they (the appellants) were apprehended and with the connivance of the police were involved in the case.
8. It appears from the statement of Fateh Muhammad complainant that Amir and Hamid are since dead. From the statements of the witnesses produced, it is clear that Fateh Muhammad and Arshad are totally independent and disinterested witnesses against the appellants. They have fully supported the version given in the F.I.R. Which was promptly lodged. Their version is further corroborated by the Inspector who recovered Arshad from the poultry farm and the two appellants surrendered to him alongwith their arms. Even Amir and Hamid were seen by the police but they ran away and left the car on the roadside which was also recovered by the police. The charge was correctly held to be proved against the appellants by the learned trial Judge.
9. Fateh Muhammad and Arshad PWs have been produced in Court today and they have owned their affidavits already filed on the record that they have compromised with the appellants. In view of this compromise the learned counsel for the appellants contended that lenient view may be taken and they may be exonerated or lesser sentence imposed. Of course, the parties have compromised but this compromise cannot be accepted. The offence admittedly is not compoundable even with the permission of the Court. Section 365-A was inserted in the Code vide Ordinance No,XVIII of 1988 w.e.f, 13-10-1988. It provides the sentence of death or imprisonment of either description for a term which may extend to 14 years but not less than 3 years and also fine. It seems that it was in view of this Ordinance that the sentence was imposed by the learned trial Judge. However, learned counsel for the appellants very candidly and forthrightly brought to our notice Ordinance No, IX of 1989 which came into effect on 3-9-1989, and repealed Ordinance No, XVIII of 1988. It provides, "Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted or from any person interested in the person kidnapped or abducted shall be punished with imprisonment for life and shall also be liable to forfeiture of property." This is to be noted that this was the prescribed sentence when the present offence was committed on 25-4-1990. However, there being no appeal from the State for the imposition of proper sentence and also there being compromise we are refraining from issuing notice for the enhancement of the sentence. The appeal therefore fails and stands dismissed.
10. Before parting with the judgment we may however like to observe that it seems to be a case for sympathetic consideration. We have been told at the Bar that Amir and Hamid accused, the main culprits, were done to death by the villagers in an encounter. The appellants had no direct motive to commit the crime. They have even been forgiven by the complainant family, as observed at ove.
Serious offences like murder (relating to person) have been made compoundable and in the Islamic spirit of forgiveness the Government may consider granting them appropriate relief.