' ABDUL HAMEED DOGAR, J.---By a common judgment we propose to dispose of Criminal Appeal No,148 of 1994 and Criminal Jail Appeal No,151 of 1994 filed by appellants Taus Khan and Jahanzeb respectively as they arise out of one and the same judgment.
2. The appellants in the above appeals have challenged the judgment, dated 27-9-1994, passed by the learned. Special Judge (Suppression of Terrorist Activities) at Karachi, whereby they were convicted under sections 365-A and 34, P.P.C. And sentenced to death and also their movable and immovable properties were ordered to be confiscated in favour of the State.
3. Precisely the facts of the prosecution case are that complainant Aftab Din Baqai had one son, namely, Asad, aged about 7 years, who used to get education in Madressatul-Falah, behind Golden Gate Restaurant, Nazimabad and used to go at 7-00 a.m. In the van and returned at 4-30 p.m. As usual on 11-5-1994, the complainant had gone to his shop at about 10-00 a.m. At Jodia Bazar, whereas his son Asad had already gone to Madressah. It was about 4-45 p.m., the complainant received telephone call from his wife that at about 4-30 p.m. She heard call bell, upon which she went at the main gate and found the school bag of her son Asad lying and saw at a few distance one man having a beard, taking away her son on bicycle forcibly. On such information the complainant immediately rushed to his house where he was further disclosed that a telephone call had come and caller had said that he will make another call at 9 o'clock and also disclosed that they should arrange for ransom amount if they want the release of the boy. The complainant thereafter proceeded to police station and lodged case against the unknown culprit. Police registered a case under section 365-A, P.P.C. And during investigation police arrested appellant Taus Khan, who confessed his guilt and on his pointation the abductee Asad was recovered from the possession of appellant Jahanzeb, who was also arrested by the police. On 15-5-1994, 164, Cr.P.C. Statement of Mst. Nuzhat Aftab, wife of the complainant, was recorded and also an identification test of appellant Jahanzeb was arranged through this witness and confession of appellant Jahanzeb was also recorded by Muhammad Ibrahim Qureshi, A.C.M. And First Class Magistrate, Karachi. On completion of investigation, the appellants were sent up before the abovementioned Court.
4. A formal charge was framed against the appellants, to which they pleaded not guilty and claimed trial.
5. The prosecution in support , of its case examined complainant Aftabuddin, P.W. Mst. Nuzhat Aftab, the mother of the abductee, P.W. Shahzad, P.W. Muhammad Yousuf, P.W. S.I. Muhammad Akram, P.W. A.S.I. Muhammad Akram, P.W. S.I. Muhammad Akram, 1.0., P.W. Muhammad Ibrahim Qureshi, A.C.M. HI, Karachi (Central) and thereafter, the prosecution closed its side.
6. In their respective statements under section 342, Cr.P.C. The appellants denied the case of prosecution and claimed to be innocent. Appellant Tans Khan further pleaded that he was employed with the complainant on monthly salary of Rs,1.000, who always used to avoid the payment of monthly salary in time, as such there happened a dues of about Rs,100,000 against the complainant, who, despite many demands, refused to pay and settle the same., In order to usurp the above amount, he got him implicated in this false case. Appellant Jahanzeb had stated that he was arrested on 12-5-1994 at 9.00 a.m. When he got down from the bus while going for job and was challaned in the case falsely at the instance of the complainant as he was related to appellant Taus Khan and usually visited the house of the complainant which was seriously objected by the complainant but was not objected by his wife. Both of them examined themselves on oath as required under section 340(2), Cr.P.C. And examined Samandar Khan and Jan Muhammad in their defence. They have taken the same pleas in their respective statements on oath.
7 The learned trial Court framed' the following points for determination:--
(1) Whether the accused Jehanzeb had abducted boy Asad son of Aftabuddin with common intention in connivance of co-accused Taus Khan?
(2) Whether the accused had demanded ransom from the parents of the boy Asad for his release?
(3) Whether the boy victim was recovered from the custody of accused Jehanzeb on the pointation of the Tausa Khan from New M ianwali Colony?
(4) Whether the prosecution has proved this case beyond the reasonable doubt?
8. On assessm ent of the evidence the appellants were convicted and sentenced by the learned trial Court as abovementioned.
9. We have heard Mr. Shaukat H. Zubedi, the learned counsel, for the appellants and Mr. Habib Ahmed, the learned Assistant Advocate-General, Sindh for the State at length and have gone through the judgment as well as record and proceedings of the case.
10. At the very outset the learned counsel for the appellants argued that in this case the prosecution has miserably failed to establish the case under section 365-A, P.P.C., which at the most would be the case under section 365, P.P.C. In support of the above he argued that the most important ingredient of section 365-A, P.P.C., Viz abduction for ransom has not been proved in this case. The only word of the complainant that his wife, namely, P.W. Nuzhat Aftab received a telephone call and caller demanded ransom amount for the release of abductee boy Asad in absence of the evidence of identity of that caller cannot be a valid piece of evidence for the purposes of conviction. Even the complainant in his statement at trial has not implicated the appellants that they demanded ransom of Rs,500,000 for the release of his son. According to the learned counsel even the Investigating Officer has neither collected any evidence with regard to the demand or payment of ransom amount against the appellants nor had stated even a single word in the deposition with regard to them at the trial. He further argued that neither 161, Cr.P.C.
Statement of abductee was ever recorded nor he was produced before the trial Court as such the evidence of demand of ransom amount for the release of the abductee is lacking. He further contended that the 'trial Court has wrongly believed the confessional statement of appellant Jahanzeb and has not properly appreciated the same. According to him appellant Jahanzeb has neither confessed his guilt nor his confessional statement was recorded by the police, which fact is supported from the version that the appellant is an illiterate person and never puts signature. The plea, statements under sections 342 and 349(2), Cr.P.C. As well as Jail Appeal bear the thumb- impression of the appellant, whereas signatures of the appellant in Urdu have been mentioned over the confessional statement. Irrespective of this, the said confessional statement has not been put to the appellant in his statement under section 342, Cr.P.C., as such the same being implicating piece of evidence cannot be taken into consideration against him. In support of his contention he placed reliance on the case law reported in PLD 1952 Federal Court page 1.
11. On the other side, the learned A.A.-G., could not controvert the contentions of appellants' counsel and frankly conceded that the elements of abduction for ransom are lacking in this case, which, at the most, would be punishable under section 365, P.P.C. Thus he has no objection if the conviction and sentence is altered from section 365-A to section 365; P.P.C.
12. For proper appraisal of the evidence on the above aspect, the prosecution evidence is to be examined in detail.
13. Complainant Aftahuddin in F.1.R. With regard to the demand of ransom has simply said that as soon as he arrived in house on telephonic information, it was disclosed by his wife that a telephone call had come and caller had said that he would make another call at 9 in the night and that if they want release of the boy, they should arrange for money. At trial the complainant in the first instance . In examination-in-chief had stated that on 11-5-1994 at about 4.45 p.m. While he was present in his shop, he received a telephonic message from his wife that boy Asad is missing. He immediately rushed to the house and found the bag of the boy lying there and boy Asad was not available. He searched in the Mohallah but could' not find. Thereafter, he went to police station where he lodged the report about the missing of his son. Thereafter he has again stated that before that he had received a telephone at his house from the culprits that his son is in their custody and they demanded ransom of Rs,300,000 for his return. He also stated that they had told him to ring again at 9 p.m. And remained at house up to 9 p.m. But did not receive any call and thereafter, he went to Police Station Nazimabad, where he lodged report at 7.30 p.m. About appellant Tausa Khan he stated that he was serving as servant with him and was called for interrogation, who disclosed and voluntarily led the police to the house of appellant Jahanzeb, his maternal uncle, where from his son was recovered by the police. In cross examination he had stated that his wife had received telephonic message from some unknown persons, demanding ransom for the return of his son Asad and that he on such information remained in the house till 9 p.m. For another call and thereafter went to lodge the report.
14. P.W. Mst. Nuzhat Aftab in her deposition had stated that on 11-5-1994 at about 4.30 p.m. She heard a call bell and went outside and saw the bag of her son Asad lying on the entrance door and appellant Jahanzeb was taking away her son on cycle. Thereafter, she followed appellant in car but could not succeed. Thereafter, she returned to the house and informed the facts to her husband, the complainant. At about 6.30 p.m. She received a telephone message about demand of Rs,500,000 as ransom amount for the release of her son and she disclosed that the caller told to make another call at 9 p.m. But no such telephone call was received. Thereafter, her husband went and lodged the report. She had further stated that appellant Taus Khan during interrogation disclosed about appellant Jahanzeb had abducted the boy and led police towards his house from where the boy was recovered. In cross-examination also she had stated nothing with regard to the demand of ransom amount from any of the appellants. She had simply said that appellant Taus.
Khan was serving with them since last 2-1/2 years.
15. P.W. Shatizad, the owner of shop, had stated that on the day of incident his shop was closed and he was informed by the complainant at about 6 p.m. That his son has been abducted. He was made Mashir of Vardat and produced such Mashirnama.
16. According to P.W. Muhammad Yousuf on 13-5-1994 the appellants were arrested in his presence and the boy was also recovered. The place of recovery was katcha house where they found one boy aged about 6/7. Years lying semi-unconscious on the ground. Such Mashirnamas were prepared which were produced. The other Mashir was police official. In cross-examination he had stated that there was only one room in the house and he could not see any other house in the locality as it was dark.
17. Mashir Muhammad Akram AS.-I. Had confirmed the statement of co-Mashir Muhammad Yousuf about the arrest and recovery of the abducted boy and from personal search of appellant Jahanzeb-secured identity card, some keys and cycle.
18. Investigating Officer Muhammad Akram, S.I.P., who investigated the case, stated that he prepared memo. Of Vardat and got recorded 164, Cr.P.C. Statement of Mst. Nuzhat Aftab, arrested the appellants and secured boy Asad, got recorded confessional statement and identification test of appellant Jahanzeb.
19. P.W. Muhammad Ibrahim Qureshi, A.C.M., recorded confessional statement of appellant Jahanzeb, 164, Cr.P.C. Statement of Mst. Nuzhat Aftab and also held identification test of appellant Jahanzeb. He further stated that the identification test was conducted by him on 15-5-1994, thereafter, he recorded 164, Cr.P.C. Statement of Mst. Nuzhat Aftab and thereafter, he called the appellant for recording his confessional statement.
20. From what has been discussed above it is established on record that neither complainant nor his wife Mst. Nuzhat Aftab have implicated appellants that they ever demanded ransom amount for the return of boy Asad. The Investigating Officer, namely, Muhammad Akram, too has neither said anything with regard to the demand or payment of ransom nor he has deposed even a single word against the appellants in this connection. Irrespective of this, it would be highly unsafe to convict the appellants under section 365-A, P.P.C., specially when neither 161, Cr.P.C. Statement of abducted boy Asad was neither recorded by the police nor he was ever produced before the trial Court. In the cases of this nature it is mainly abductee who usually discloses with regard to the demand or payment of ransom amount. Simply saying that Mst. Nuzhat Aftab was asked to arrange for the money on telephone by some unknown person, cannot be considered to be the evidence against the appellants.
21. Admittedly the confessional statement of appellant Jahanzeb would not be taken into consideration against him as an incriminating piece of evidence as the same has not been put to him in his statement under section 342, Cr.P.C. At trial. As such we are of the considered opinion that the prosecution has not been able to prove the evidence of demand or payment of ransom amount for the release of abductee Asad against the appellants. In absence of such piece of evidence and as frankly conceded by the appellants' counsel as well as the learned A.A.-G.,. The only evidence against the appellants would fall under section 365, P.P.C., which is punishable with 7 years and also with fine.
22. Accordingly we hold that the appellants are guilty of the charges under section 365, P.P.C. Alone and their conviction and sentence is modified and is reduced from death to 7 years' R.I. With fine of Rs,20,000 each and in default whereof to suffer further R.I. For one year ' These are the reasons of the short order, dated 4-11-1998.