1. ' ABDUL HAMEED BOGAR, J.---By this common judgment, we propose to dispose of Criminal Appeal No,2 of 1993, 7 of 1993 and Criminal Acquittal Appeal No,180 of 1993 filed on behalf of appellants Sikandar Ali Abdul Hakeem, and State respectively, and they arise from the same judgment.
2. ' Briefly stated the facts of the prosecution case are that P.W. Abdul Rahman was the President of Cattle Owners Association at Landhi. Both complainant Abdul Majeed and his brother Abdul Rahman did business of buffaloes and milk. On 6-2-1992 at about 8-15 p.m. The complainant and P.W. Asghar Ali were sitting at the shop, known as "Raidy Farm", and the complainant's nephew Mahboob-ur-Rahman, aged about 20 years, was selling milk. One white colour Charade No,F-1476 came there. Four persons were sitting in it. Of them two had T.T. Pistols, third one a klashnikov. They got down while the fourth continued sitting at the driving seat. The persons having pistols and klashnikov came inside the shop, and at the point of weapons abducted Mehboob-ur-Rehman in said car. P.W. Abdul Rehman had a dispute over said buffaloes pen. The complainant suspected that because of said dispute Mahboobur Rehman was abducted and that abductors looked like Sindhi and Balochi.
3. ' Appellants Sikandar Ali alias Sukku, Abdul Hakeem alias Mahajir, and Amir Bux Chandio were arrested and after usual investigation they were challaned under section 365-A/34, P.P.C.
4. Alongwith absconding accused Qadir alias Kadoo, Nazeer Kulhoro, Niaz Abro and Faiz Muhammad alias Fazoo to face trial before Special Court No,III Suppression of Terrorists Activities. Karachi.
5. ' Charge was framed under section 365/A/34, P.P.C. And the appellants did not plead guilty.
6. ' At trial, prosecution examined complainant Abdul Majeed P.W. 1, abductee Mahboob-ur-Rahman, P.W. 2 father of abductee Abdul Rahman P.W.3, Asghar Ali P.W. 4, Haji Muhammad Ibrahim P.W.5, Faqir Muhammad P.W.6, Mazhar Hussain P.W. 7, Mirza Kamran P.W. 8, Iftekhar Ahmed P.W.9, Muhammad Mumtaz P.W. 10, Muhammad Rafiq P.W. 11, Muhammad Shakir P.W. 12 and Faiz Muhammad P.W.
7. 13.
8. ' The statements of appellants Sikandar Ali, Abdul Hakeem and acquitted accused Amir Bux Chandio were recorded under section 342, Cr.P.C. They denied prosecution allegation. Appellant Sikandar Ali did not offer any explanation about his involvement in the crime and claimed to be innocent. Appellant Abdul Hakeem had taken the plea that he was arrested by police in between the night of 19/20th February, 1992, while he was passing from Korangi Police Station as the police wanted a man of his size and height. He stated that he was suffering from epilepsy and produced such certificate.
9. ' Acquitted accused Amir Bux Chandio, the respondent in Criminal acquittal appeal, stated that he had business terms with the complainant and P.W. Abdul Rehman, had purchased buffaloes from him on credit and had paid Rs,100,000 and Rs,80,000 remained outstanding, and despite repeated demand - said amount was not paid. He, therefore, had strained relation with him and for that reason was involved in this crime. The appellants and said acquitted accused neither examined themselves on oath, as required under section 340(2), Cr.P.C., nor led any evidence in defence.
10. ' The trial Court framed the following points for determination:- ' "Whether on 6-2-1992 at about 8-15 p.m. The present accused alongwith absconding accused came to the shop of abductee armed with automatic weapons and abducted Mahboobur Rehman abductee for ransom in Charade Car No,F-1476 in furtherance of their common intention and the accused after receiving the ransom of Rs,250,000 and 50 yards Boski cloth, released him in the way and manner as alleged by the prosecution.
11. ' On the assessm ent of evidence, appellants Sikandar and Abdul Hakeem and absconding accused were found guilty of the charge and were convicted and sentenced to death, while accused Amir Bukhsh Chandio was acquitted. The movable and immovable properties of all the convicts were ordered to be forfeited to the Government.
12. ' We have heard Mr. Muhammad Ilyas Khan and Mr. Shaukat Hayat, Advocates for appellants Sikandar Ali, and Abdul Hakeem, Mr. Habib Ahmed A.A.-G., for the State and Mr. Qassim Mirjat, Advocate for respondent Amir Bux Chandio.
13. ' Mr. M. Ilyas Khan argued that learned trial Court had misread and misinterpreted the evidence available on record. He also argued that the same evidence was disbelieved against acquitted accused Amir Bukhsh Chandio, as such on the principles of consistency, the appellants were also entitled to be acquitted. He, next, contended that learned trial Judge had not considered the fact that complainant in F.I.R. Had not disclosed about the demand of ransom and clearly stated that Mahboobur Rehman was abducted for committing his murder. He submitted that falsity of prosecution version was evident from the fact that abductee had remained allegedly with the appellants and co-accused for 11 days, yet he, in his statement under section 161, Cr.P.C. Recorded on 18-2-1992 did not say anything against: the appellants and only disclosed the names of the appellants with their roles after his subsequent statement was recorded on 22-2-1992. He also argued that identification parade was held belatedly and appellants and accused persons were shown to the identifying witnesses prior to holding of such parade. He contended that no reliance could be placed upon the cassette which contained the voice of appellant Sikandar Ali in the absence of the evidence of the expert in this regard.
14. ' Mr. Shaukat Hayat for appellant Abdul Hakeem mainly adopted the arguments of Mr. M. Ilyas Khan, Advocate. In addition, he submitted that the complainant had not implicated appellant Abdul Hakeem regarding the abduction. According to him, appellant could not be convicted alone on the evidence that appellant had received the ransom and his such photographs were taken.
15. ' Mr. Qassim Mirjat, Advocate for acquitted accused/respondent Amir Bakhsh Chandio maintained that learned trial Court had rightly acquitted the respondent and had correctly appreciated the evidence. According to the learned counsel, none of the witnesses had deposed that, he was amongst the accused, who abducted Mahboobur Rehman, or that anything incriminating was recovered from him.
16. ' Mr. Habib Ahmed, learned A.A-G. Vehemently opposed above contention, and argued that complainant Abdul Majeed abductee Mahboob-urRehman, P.W. Haji Abdul Rahman, Muhammad Rafiq and Asghar Ali have fully implicated the appellants Sikandar Ali that he had come to abduct Mahboobur Rehman and that appellant Abdul Hakeem had accepted ransom of Rs,200,000. He also argued that there was sufficient evidence to show that acquitted accused Amir Bakhsh Chandio was equally responsible as far this crime abductee had categorically stated that he (Amir Bux) used to visit the place where he was confined and that after release it was he who had taken him on a motorcycle by getting him seated in between the driver and extreme pillion rider. Said motorcycle was also recovered from his possession.
17. The factum of abduction stands proved. On the point of abduction there is evidence of complainant Abdul Majeed, abductee Mahboob-ur-Rehman, P.W. Asghar Ali and Muhammad Rafiq. According to the complainant Appellant Sikandar Ali Shaikh was one of the three culprits, who went inside the shop and dragged his nephew Mehboob-ur-Rehman. He correctly identified him in Court. Besides he deposed that it was appellant Sikandar Ali Shaikh who started negotiations on telephone by posing him as one Haji and demanded Rs,20,00,000 as ransom. The amount was settled on telephone. All this conversation was taped in a cassette. Appellant Sikandar Ali Shaikh, in his statement under section 342, Cr.P.C. Admitted his voice in said Cassette. Abductee Mahboob-ur-Rehman, in his examination-in-chief, had categorically stated that amongst those three persons who abducted him and put him in a car on gun point, appellant Sikandar Shaikh was one of them and was armed with a klashnikov. He further stated that, while taking him away appellant Sikandar and his three companions asked the persons present in the shop to arrange Rs,20,00,000 for his release. With regard to the other two culprits and one driver he stated that they were not present in the Court when the case proceeded.
18. P.W. Asghar Ali in his deposition has supported the factum of abduction and clearly pointed out appellant Sikandar to be the person, who was armed with a klashnikov at the time of abduction.
19. P.W. Rafiq in his examination-in-chief also identified appellant Sikandar Ali Shaikh to be one of the abductors.
20. P.W. Abdul Rahman, the father of abductee, too in his examination-in chief implicated appellant Sikandar Ali Shaikh and Abdul Hakeem to be the person, who demanded ransom from him and had conversation with him on telephone. The amount of Rs,2,00,000 (Two lacs) and 50 yards Boski were recovered from the house of the appellant Sikandar at his pointing out. This appellant was identified by the above witnesses in the identification parade properly. In our view, prosecution has fully proved the case against him beyond any shadow of doubt.
21. ' So far appellant Abdul Hakeem is concerned, there is evidence against him that he was the person who received ransom of Rs,2,00,000 for release of the abductee. Abductee, while deposing against him stated that he used to remain as guard over him at the place where he was concealed, and that he also used to provide him meals, and other necessary articles. He had also picked him correctly, in the identification parade held before a Magistrate and his name was disclosed to him after identification.
22. P.W. Abdul Rahman in his statement has fully implicated appellant Abdul Hakeem and deposed that he and P.W. Haji Muhammad Ibrahim had gone together to the place where the ransom of Rs:2,00,000 and 50 yards Boski cloth were delivered. According to him, while his friend Haji Muhammad Ibrahim was handing over ransom to appellant Abdul Hakeem, he had taken their photographs secretly and produced the same in evidence and also identified him in the Court to be the same person. In identification parade, he had correctly picked up appellant to be the same person.
23. ' P.W. Haji Muhammad Ibrahim has categorically stated before the trial Court that appellant Abdul Hakeem had accepted ransom of Rs,200,000 and 50 yards Boski from him and such photographs were taken. He identified the appellant in Court and stated that when his photographs were taken he was having beard.
24. ' P.W. Faqir Muhammad S.P.M.III. Karachi (East) in his statement, confirmed that appellant Sikandar Ali Shaikh and Abdul Hakeem and acquitted accused Amir Bux Chandio were put to identification test through P.Ws., and they were correctly identified to be the accused responsible for the crime.
25. So far acquitted accused Amir Bukhsh Chandio is concerned, in our view convincing evidence has been brought on record against him and the trial Court erred by acquitting him. The abductee clearly stated that he (Amir Bux) used to come at the place where he was confined by the abductors for 11 days. Besides said accused used his motor cycle for carrying abdcutee to Bus stop No,2-1/2 Korangi, Karachi, where he was released. The abductee also identified the motorcycle which was used in this crime.
26. ' Complainant Abdul Majeed deposed that on 22-2-1992 police came alongwith two persons and on their pointing out prepared memo. Of the place of Wardat and also went to cattle pen of acquitted accused Amir Bux Chandio from where one motor-bike was seized.
27. From above discussion, we come to the conclusion that case against appellants Sikandar Ali Shaikh and Abdul Hakeem has been proved beyond any shadow of doubt. Consequently their appeals are dismissed.
28. As regards acquittal appeal against respondent Amir Bux Chandio, it is noted that it is the case of gross misreading and non-appraisal of irreversible evidence of prosecution. Respondent Amir Bux, under the circumstances, was not entitled to acquittal. The prosecution has proved case against him without any shadow of doubt. Accordingly appeal against him is allowed and the order of acquittal is set aside. He is convicted under section 365-A/34, P.P.C .
29. Reverting to the sentence, no doubt an offence under section 365-A, Cr.P.C. Is punishable with death which has been awarded to the above mentioned appellants, but we feel that there are reasons for awarding lesser sentence to them, particularly, the fact that they had faced protracted agony of trial. In our view, the punishment of imprisonment for life would meet the ends of justice, as such we alter the sentence of appellants Sikandar Ali Shaikh and Abdul Hakeem from death to imprisonment for life. Since the case of acquitted accused Amir Bux Chandio is at par with that of abovementioned appellants, therefore, he is also awarded sentence of imprisonment for life. The trial Court would take steps to get him arrested and would remand him to jail custody to serve out said sentence, with such intimation to M.I.T. Of this Court.