' KH. MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Referencd No,5 of 1998 and Criminal Appeal No,23 of 1998 filed by Abdul Basit and Abdul Ghaffar appellants and also Criminal Revision No,24 of 1998 filed by the State for the enhancement of sentence. Both the appellants were convicted and sentenced for the murder of Maqsood Ahmad by Judge Special Court-II, Ai- Terrorism, Bahawalpur as follows: ' Both of them were sentenced to death under section 365-A, P.P.C. They were further directed to pay Rs,50,000 each as fme, in default of payment of fme to undergo two years' R.I.
' They were also convicted under section 311, P.P.C. To undergo 10 years' R.I. With a fine of Rs,20,000 each, in default of payment of fine they were ordered to undergo one year R.I. Benefit of section 382-B, Cr.P.C. Was also granted to them,
2. The occurrence according to the complaint Exh.PA took place on 2-8-1992 at 4-15 a.m. While the matter was reported to the police by Waris Ali, complainant examined as P.W.6 at 5-15 a.m. At bus- stand while formal F.I.R. Exh.PA/1 was recorded in the Police Station at 5-40 a.m.
3. Briefly stated the facts of the prosecution case as stated in complaint Exh.PA are that Waris Ali used to go for exercise daily in the morning on the overhead bridge Sadiqabad, Ha& Maqsood Ahmad s/o Ghulam Qadir, caste Arain his neighbourer accompanied him on 2-8-1992 at 4-15 a.m.
In the morning. He alongwith Hafiz Maqsood Ahmad reached the overhead bridge. They started a race and went down to the clinic of Abdul Saleem. When they were going back, a car came from Sadiqabad city and they crossed the car and started exercise at the distance of 15 yards from that car. Three persons were sitting in that car. They stopped the car near them and two of them came out of the car. They put pistol on the head of complainant and Maqsood Ahmad and directed them to sit in the car so the complainant and Maqsood Ahmad Were made to sit in the said car. The accused put dirty towels on their faces, which were removed by them after some time. Then they saw that they had reached near Ashraf Petrol Pump. The complainant asked his companion Maqsood Ahmad to have a courage and they will overpower the accused. The accused loaded pistol at their this talk. Near the bus-stand, Maqsood Ahmad caught hold of steering and the complainant caught hold of hands of the accused. Noise was raised. During this scuffle, the person standing near the driver seat said "Munir you fire". The car stopped for the little time and the complainant hit his feet on the door and left side back door of the car was opened. The accused sitting on the back side caught hold of Maqsood Ahmad and complainant got opportunity and came near the door. The accused started the car and complainant jumped out from the car.
Accused sitting on the front side was tall, had a stout body was having a little beard, he was white in colour. He was wearing white Shalwar and Qameez. The second accused was of smaller height and Sanvla in colour. He was wearing dark clothes Shalwar, Qameez. The accused abducted them.
Complainant further stated that he was lucky to have saved himself, but the accused had abducted Maqsood Ahmad his companion. The number of the car was KW-8977. He would identify the accused if they were brought before him. The case was registered, investigated and present accused were challaned along with their co-accused Nazir Ahmad s/o Fazal Din, caste Arain, resident of Chak No,102/15-L, Tehsil Khanewal under section 512, Cr.P.C. All the accused could not be arrested and they were proclaimed as absconder accused. Later on Abdul Basit and Abdul Ghaffar present appellants were arrested in another dacoity case vide F.I.R. No,242 of 1994 under section 395/412, P.P.C., Police Station Qaimpur and so the appellants were arrested and challaned in this case on 1-2-1995.
4. The Investigating Officer 15 minutes after the registration of the case alsei recorded the supplementary statement of the complainant. He found the dead body of the deceased near Pattan Menara Khandar and the same was identified by Mushtaq and Shafi P.Ws.
5. The prosecution in order to prove its case produced 17 witnesses in all.
6. Learned counsel for the appellants has read before us the prosecution evidence, statement of the appellants and submitted that appellants were not named in the F.I.R. They have been falsely implicated in this case by the police only in order to show their efficiency. He further submitted that nothing was recovered from them. He submitted that the identification parade held by Mian Muhammad Maqbool Abbasi, Extra-Assistant Commissioner, Lodhran, examined as P.W.9, is not according to law and up to the mark. He submitted that police had already killed two of the co- accused of the appellants namely, Abdul Sattar and Tauqeer Ahmad in a fake police encounter. He submitted that no case under section 365-A, Cr.P.C. Is made out. He also submitted that father of the appellants namely Ghulam Qadir had pardoned and waived his right of 'Qisas and Diyat' against both the appellants and he was the only legal heir of the deceased. He submitted that in fact it was an unwitnessed occurrence and took place in the early hours of the morning when the sun had not yet risen. He also submitted that the complainant Warts Ali had even changed his earlier version given in the F.I.R. Lastly he submitted that this is a case of clean acquittal and the appellants be acquitted.
7. On the other hand learned counsel for the State has supported the judgment of the learned trial Court and has also submitted that sentence of the appellants be enhanced under section 311, P.P.C.
8. We have heard the learned counsel for the parties and have also gone through the evidence recorded by the trial Court. Although the appellants were not named in the F.I.R. But their descriptions were given in the F.I.R. They were identified by the complainant before the trial Court but he had not taken part in the identification parade and for that he had stated before the trial Court on oath that he did not join the identification parade due to fear of the accused. He also submitted that he was the only son of his parents and his mother had many expectations from him so he could not give true version. He also stated that Maqsood deceased was abducted and was taken in a car. Then there is evidence of Niaz Ahmad, H.C., examined as P.W.7. He stated before the Court that he saw two persons giving beating to Maqsood Ahmad deceased near the mango garden of Ch. Obaid Ullah and he had also heard the noise of 'Dhar', 'Dhar' and 'Bachayo', 'Bachayo'.
He interfered but he was caught by three persons. He told them to accompany with him to the Police Station but when he reached outside the garden on the road a car came there and stopped, one driver and two other persons were sitting therein. They put Maqsood Ahmad deceased in the car. Abdul Basit appellant puf pistol on the head of Niaz Ahmad, H.C. And tied his arms, then all the accused took him towards Khanpur. He also stated that Abdul Ghaffar appellant put his Kalashnikov on the left side of his head. He was thrown out from the car within the area of Mauza Jampur. He was also injured and was medically examined also. He had also joined the identification parade of Abdul Basit and Abdul Ghaffar appellants on 23-1-1995. He identified both of them. Then there i5 evidence of Mian Muhammad Maqbool Abbasi, Extra-Assistant Commissioner, examined as P.W.9. He held, the identification parade in which Ghulam Hussain, Muhammad Usman, Maqbool and Niaz Ahmad, H.C. Took part. Niaz Ahmad H.C. P.W. Correctly identified Abdul Basit and Abdul Ghaffar appellants. Then Ghulam Hussain P.W. Was asked to identify the appellants. He also identified both the appellants correctly. Then Muhammad Usman son of Wali Muhammad was called to identify the appellants. He also identified both the appellants correctly. Lastly, Maqbool Ahmad son of Sodha P.W. Was called to identify the appellants. He also identified both he appellants. Muhammad Usman was examined as P. W.10. He stated before the trial Court on oath that Abdul Basit and Abdul Ghaffar appellants were the persons who were sitting along with their other co-accused sitting in the car. He also stated that the 3rd accused who was accompanying Abdul Basit and Abdul Ghaffar had fired at his nephew Pannun who died at the spot. The said accused named as Tauqeer and was killed in the police encounter. He also submitted that he joined the identification parade and identified both the appellants. Then comes the statement of P.W.11 Ghulam Hussain. He submitted that a car passed by him when he was present along with Haji Maqbool Ahmad and Muhammad Usman near Pattan Minara. He stated that Abdul Basit and Abdul Ghaffar were the persons who were sitting in the car in which Hafiz Maqsood Ahmad deceased was also present. Both of them along with other co-accused took out the dead body of the deceased from the car and threw the same. On the noise many persons reached there. Police also reached there. Tauqeer co-accused of the appellant was killed in police encounter. He had also identified both the appellants in identification parade. Two P.Ws. Namely Muhammad Sharif P.W.12 and Shafique Ahmad P.W.14 were declared hostile. From the evidence of the above said P.Ws. It is proved that it were the appellants along with their companion, who was later on killed in police encounter, had abducted Maqsood Ahmad deceased and killed him. We may mention here, that there is no evidence on record which proves the case against the appellants under section 365-A, P.P.C. Because there is no such evidence that Maqsood Ahmad deceased was abducted for ransom. While section 365-A, P.P.C. Deals murder for ransom only which is reproduced below:-- ' Section 365-A. Kidnapping or abducting for extorting property valuable security. Etc.-- "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, any property whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, shall be punished with (death or) imprisonment for life and shall also be liable to forfeiture of property."
9. A bare perusal of this section would show that the conviction in this section can only be awarded if a person is kidnapped or abducted for extorting property or valuable security etc. Which is not present in the instant case. There is nothing on record to show that appellants kidnapped and abducted Hafiz Maqsood Ahmad deceased in order to obtain ransom so the death sentence awarded to the appellants is not confirmed and the Murder Reference is replied in the negative.
However, we convert their conviction from section 365-A, P.P.C. To section 364, P.P.C. A and award both of them 10 years' R.I., with a fame of Rs,25,000 (twenty-five thousand) each in default six months' S.I. Fine if recovered is ordered to be given to the legal heirs of Hafiz Maqsood Ahmad deceased. The other sentence awarded to the appellants under section 311, P.P.C. Is maintained as ordered by the learned trial Court. Sentence of fine under section 365-A, P.P.C, is also set aside.
Both the sentences are ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Is also granted.
With this modification in the conviction and sentence this appeal is disposed of.
Death sentence awarded to the appellants is not confirmed.