1. WAHID BUX BROHI, J.--- Appellants Abdul Zahir alias Zahir Shah, Bahadur Ali and Noorullah have assailed the judgment, dated 21-3-1995 passed by Special Court III for Karachi constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 whereby each of them has been convicted under sections 365-A/109 and 34, P.P.C. And sentenced to death and to pay fine of Rs,20,000 or in default of payment of fine to undergo R.I. For two years.
2. The incident relates to abduction of Syed Tajuddin son of Syed Qutbuddin on 1-2-1994 in the morning at 9-50 a.m. From his Motorcar Show Room known as Taj Motors situated near Chandni Cinema, Opposite Sabzi Mandi, Karachi. The F.I.R. Of the occurrence was lodged by abductee's brother Syed Nizamuddin at Police Station New Town, Karachi on the same day at 10-20 hours.
3. According to F.I.R. The complainant Nizamuddin and his brother Tajuddin run business of selling and purchasing cars at the aforesaid Show Room. On the day of incident both of them were present in their Show Room when at about 9-30 a.m. Three boys showed up, who apparently looked like Pathans by face but talked to complainant party in Urdu language regarding purchase of car. At about 9-50 a.m. All the three persons took out pistols and made the complainant and his brother lie down and then they tied the hands of Tajuddin with cloth from backside while one of the culprits put his foot on the back of complainant Nizamuddin asking them to disclose where the money was kept. Tajuddin told the culprits that the keys were lying in the drawers, they may take it and unlock the upper drawer and take out money but the culprits instead of taking out the money took away Tajuddin with his hands tied on the back. While leaving, the culprits threatened the complainant not to lodge report of the incident and one of them also took away their mobile phone. Investigation commenced on the basis of this F.I.R. Meanwhile accused Bahadur Ali was arrested in a dacoity case of Napier Police Station, vide Crime No,15 of 1994 for offence under section 17(3) of the Offences Against Property (E.O.H.) Ordinance, 1979 who disclosed about presence of accused Noorullah, Ashraf and Zahir Shah in a bungalow "Gul House" at Safoora Goth, Karachi. Upon this information a big contingency of police most of them belonging to Napier Police Station raided Bungalow No,A/526, Gul House, Block 7, within the area of Airport Police Station on 13- 2-1994 at 4-00 a.m. And captured Noorullah and one Muhammad Ashraf and secured arms and ammunition and cash from their possession. Ashraf, who was injured during encounter, expired later on. The abductee Tajuddin was also recovered from there. On the same day at 9-00 a.m. The police apprehended accused Abdul Zahir who came to Gul House for getting information about his companions. An unlicensed pistol and cash was secured from his possession. Accused Allah Noor alias Toor Jan was arrested on 20-2-1994 in Crime No,15 of 1994 of Police Station Napier and on 21- 2-1994 an identification test parade was conducted in presence of A.C.M.XVI, Karachi, for identification of accused Abdul Zahir alias Zahir Shah, Bahadur Ali and Noorullah through witnesses Syed Nizamuddin, Tajuddin, Noor Muhammad and Yar Muhammad, wherein Tajuddin identified all the three accused while the remaining witnesses identified only Bahadur Ali and Abdul Zahir. The statements of witnesses were also recorded under section 164, Cr.P.C. And on completion of investigation the accused persons were challaned in Court. Accused Allah Noor alias Toor Jan who was on bail absconded away before commencement of trial. On 30-5-1994 the trial Court passed an order that the trial against absconding accused Allah Noor, Muhammad Khan and Adam Khan shall proceed under section 512, Cr.P.C.
4. ' At the trial, appellants Abdul Zahir, Noorullah and Bahadur Ali were charged with offence punishable under sections 365-A and 109/34, P.P.C. To which they pleaded not guilty and claimed trial. The prosecution, in support of their case, examined 13 witnesses namely, P.W.1 Syed Tajuddin, P.W.2 Nizamuddin, P.W.3 Qutbuddin, P.W.4 Noor Muhammad, P.W.5 Fazal Razik, P.W.6 Hanif Khan.
5. P.W.7 Haq Nawaz, P.W.8 Ghulam Mehmood, P.W.9 Abdul Hassan, P.W.10 Abdul Rasheed, P.W.11 Habibur Rehman, P. W.12 Riaz Hyder and P.W.13 Abdul Karim Shehwani. The statements of appellants were recorded under section 342, Cr.P.C. Wherein they denied the case of prosecution and pleaded innocence. Abdul Zahir took the plea that he has been implicated due to previous enmity with complainant is the complainant had enmity with his friend Toor Jan in connection with his business affairs at Quetta. Regarding identification test parade it was commonly stated by them that they were shown to the witnesses before the test as police brought them together with witnesses for the purpose of identification. They examined themselves under section 340(2), Cr.P.C. And also produced two defence witnesses namely Muhammad Hashim and Kamal Shah. At the conclusion of trial the appellants were convicted as mentioned above.
6. We have heard arguments of the learned counsel for the appellants and learned Assistant Advocate-General for the State.
7. Learned counsel for the appellants emphatically contended that at the outset the case of prosecution as reflected in the F.I.R. And statements under section 161, Cr.P.C. Was of an offence under section 365/34, P.P.C., but subsequently, it was improved and converted to an offence punishable under section 365-A, P.P.C. He pointed out that the F.I.R. Was lodged within a half an hour of the occurrence but it was not mentioned therein that the culprits, while taking away abductee Tajuddin, demanded any amount as ransom for his release and even during investigation the complainant, who happens to be brother of abductee, admittedly did not receive any call for ransom amount, while P.W. Qutbuddin, father of the abductee, did not state before the Investigating Officer in his statement under section 161, Cr.P.C. That a demand of ransom was placed with him, and above all the abductee himself did not mention in his statement recorded under section 161, Cr.P.C. That through him demand of ransom was made. He further contended that the Investigating Officer has admitted that, according to him, it was a case of abduction under section 365, P.P.C. But under the instructions of S.S.P. The challan was put up for offence under section 365-A, P.P.C. In consequence of these drawbacks, learned counsel argued, the inevitable conclusion that could be drawn was that this was purely a case of abduction punishable under section 365, P.P.C. And not of abduction for ransom, therefore, conviction under section 365-A, P.P.C.
8. Cannot be sustained.
9. Learned Assistant Advocate-General supported the conviction and submitted that it is not necessary that a culprit should at once demand ransom at the time of abduction but it is always presumed that abduction of a prosperous businessman was for extortion of money. He contended that no doubt the fact of demand of ransom amount is neither mentioned in the F.I.R. Nor in the statements under section 161, Cr.P.C. But the material witnesses, including the abductee, have given this fact in their statements under section 164, Cr.P.C. Clearly stating that demand was made of ransom amount to the tune of Rs,50,00,000 by Allah Noor alias Toor Jan who contacted Qutbuddin, the father of abductee very often on telephone and accused Zahir Shah using the mobile of abductee in his presence, had also demanded ransom amount of Rs,50,00,000 from father of the abductee. He placed reliance on the case State v. Farman Hussain PLD 1995 SC 1 wherein it was observed that the factum that none of the accused contacted the parents of the kidnapped person for payment of ransom was of no consequence since the determining factor was the object of kidnapping.
10. We have carefully examined these contentions in the light of evidence on record prima facie, there is sufficient material to establish the guilt of the present appellants as regards abduction of Tajuddin from his Show Room and on this point the learned counsel for the appellants did not seriously assail the finding of the trial Court. However, it would be relevant to give a brief resume of the evidence on this point.
11. Tajuddin, the abductee in his deposition gave a detailed account of the incident. He stated that in the morning he and his brother Nizamuddin alongwith his servant, were present in Shown Room when at about 9-15 a.m. Three persons entered the Shown Room and asked him to show them one vehicle. He alongwith his servant showed them a pick up but he noticed that two persons more were sitting in a white colour Honda Car. He came back alongwith the three persons and one of them desired to check up the meter of a car. During his deposition Tajuddin stated that the said person was accused Zahir Shah, who checked the meter and then asked Tajuddin to reduce the price but then all the three culprits took out T.T. Pistols. Two of them pointed their pistols at him and the third at his brother. Out of them, Zahir Shah, pointed his pistol towards his forehead while' accused Bahadur Ali pointed the pistol at his back. The third one pointed his T.T. Pistol at Nizamuddin. According to Tajuddin, third person was. Muhammad Ashraf. They asked him and his brother to lie down facing towards the ground and tied his hands with a piece of cloth. Zahir Shah asked, about the money on which he replied that some cash was in his pocket and there was nothing in the drawer. Zahir Shah asked the co-accused to put a piece of cloth on him and then directed him to stand and accompany them without making hue and cry, else he will be killed.
12. They made him sit in the rear seat of the white colour Honda Car and after a drive of about half an hour they got down near a bungalow but on the way his eyes were blindfolded. He was recovered from there on 13-2-1994 when police raided the bungalow.
13. The complainant Nizamuddin, in his deposition gave almost the same account. According to him one of the culprits was a tall man and in the Court he identified him to be the appellant Zahir Shah.
14. He added that the other two were about 30 years old and of medium structure one of whom was appellant Bahadur Ali and the third was the person who was killed in encounter whose name, he came to know later on to be Ashraf. It may be mentioned here that names of accused had transpired to all the witnesses after the identification test was held, except for Zahir Shah whose name was disclosed to Tajuddin during his captivity. After giving the same facts as appearing in the evidence of Tajuddin he stated that Zahir Shah and Bahadur Ali took away Tajuddin out of the Show Room while Ashraf threatened the complainant not to lodge the report with police else his brother will be killed. However, he lodged F.I.R. At Police Station New Town. He stated that Tajuddin was recovered after about 14 days and subsequently, during, identification test he picked out Zahir Shah and Bahadur Ali. In cross-examination he stated in unequivocal terms that he had not received any telephonic message from anyone demanding, Rs,50,00,000 as ransom for release of his brother Tajuddin.
15. Noor Muhammad deposed that five persons in a white colour Honda Car arrived at the Shown Rom on the day of incident, three of them got down and inquired about the son of Haji Sahib. Later on, he identified two of them as Zahir Shah and Bahadur Ali. They asked about Tajuddin and went inside the Shown Room and alongwith Tajuddin they came out and after checking the pick up they again went inside the shown Room. After few minutes he noticed that accused Zahir Shah had kept pistol on the forehead of P.W. Tajuddin, accused Bahadur Ali had kept pistol on his back and they came out of the Shown Room and took away Tajuddin in the vehicle standing outside: After their departure he went inside and found Nizamuddin lying on the ground. He stated that during the investigation he picked out accused Zahir Shah and Bahadur Ali in the identification test. He is totally silent if the accused persons while taking away Tajuddin demanded any amount for ransom.
16. All these eye-witnesses were subjected to cross-examination and some contradictions were elicited from them as far this part of the incident is concerned but those were minor in nature and, in effect, were not of such significance as to cast doubt on the truth of versions given.
17. Then, there is evidence of Police Officers/officials of Police Station Napier who consistently gave a clear picture of the drop scene of the occurrence. Haq Nawaz, S.H.O., Police Station Napier deposed that accused Bahadur Ali was in his custody in connection with a dacoity case when he disclosed that the abductee of this case alongwith accused were present in a bungalow of Gulshan-e-lqbal within the area of Airport Police Station. He alongwith other police officials conducted a raid at the said Bungalow at 4-00 a.m. On 13-2-1994 where an encounter took place and one of the culprits Ashraf received fire-arm injuries who died later on. He arrested accused Noorullah from there and recovered one repeater gun and Rs,90,000 cash from him. He recovered abductee Tajuddin from the bungalow. A.S.-I. Abdul Hassan, P.W.9, also confirmed that he was in the raiding police party and during the raid on the said bungalow an encounter took place wherein Ashraf Kakar received injuries and died while the abductee Tajuddin was recovered from there, and accused Noorullah was arrested and Rs,90,000 cash and a repeater gun were secured from his possession. He had acted as Mashir of the above recoveries. The other Mashir Abdul Rasheed, P.W.10, also gave the same story. Another witness P.W.11 Habibur Rehman, Sub-Inspector in Detection Cell of South Karachi had also accompanied the police party and he, too, supported the version of the aforementioned Police Officers.
18. All these Police Officers were subjected to lengthy cross-examination and some contradictions on different points were brought on record but on the whole nothing could transpire that they had a motive to implicate accused Noorullah falsely and set up a false story of recovery of Tajuddin from there. It has come in the evidence of S.-I. Abdul Rasheed that the bungalow was pointed out by accused Bahadur Ali. It has also come in the evidence that A.S.-I. Mumtaz, Habibur Rehman and some constables stayed at the bungalow and in the morning accused Zahir Shah came over there whereupon he was immediately encircled and arrested. A T.T. Pistol and eight bullets and cash Rs,6,300 were secured from his possession. Habibur Rehman has also confirmed this version in his examination-in-chief. The abductee Tajuddin has also confirmed these versions. He stated that when the raid was conducted there was exchange of fires and out of fear he concealed himself in a bath room and when police entered the bungalow and shouted that anybody inside should come out, he got out and informed the police that he had been abducted. On the face of it, the evidence on record is sufficient to establish the fact that on pointation of Bahadur Ali the bungalow was raided by Napier Police from where Tajuddin was recovered and accused/appellant Noorullah was arrested alongwith arms and ammunition and accused Ashraf on receiving fire-arm injuries during encounter died later on, while Zahir Shah who came to the bungalow in the morning was also arrested alongwith the arms ammunition. The testimonies were also not challenged by learned counsel for appellants.
19. Then the third piece of evidence is that accused Noorullah, Bahadur Ali and Zahir Shah were put to identification test and they were picked out correctly by abdcutee Tajuddin. The remaining witnesses namely Nizamuddin, Noor Muhammad and Yar Muhammad (not examined) also identified Bahadur Ali and Abdul Zahir. It is obvious from the circumstances of the case that Noorullah was guarding Tajuddin at the bungalow and he was arrested from there and since he was not seen at the time of occurrence by Nizamuddin and the other two, they were fair enough not to implicate him falsely.
20. The Investigating Officer Riaz Hyder, who recorded under section 161, Cr.P.C. Statement of the witnesses and then got the identification test conducted and also got the statements of witnesses recorded under section 164, Cr.P.C. Has given the particulars of investigation and his evidence is on the same lines. The defence of accused Abdul Zahir is that the complainant had enmity with Toor Jan at Quetta and since Toor Jan is his friend he has been falsely implicated, by the complainant, his relatives and servant. Bahadur Ali took the plea that he is a rickshaw driver and the police, due to enmity, implicated him falsely. Noorullah pleaded that he had old enmity with abductee Tajuddin at Quetta, therefore, he has been falsely implicated. Accused Abdul Zahir highlighted his defence in his statement under section 340(2), Cr.P.C. While the other two also, in their statements under section 340(2), Cr.P.C., stated that they were falsely implicated. The defence witnesses Muhammad Hashim stated that Zahir Shah was arrested from his house at Quetta on 9-2-1994 When he had gone there for a dinner as his guest and on his inquiry he came to know that Zahir Shah was involved in a Bank dacoity case. Kamal Shah also gave evidence on the same above lines. In fact, it is the case of prosecution that Zahir Shah was arrested on 13-2-1994. Irrespective of the date and time of his arrest the role attributed to Zahir Shah is that he was among the culprits who abducted Tajuddin from the Show Room and all the eye-witnesses have fully implicated him.
21. The purpose of narration of the above evidence was to point out that trustworthy versions had come on record to the effect that Tajuddin was abducted by three culprits namely Zahir Shah, Bahadur Ali and Ashraf out of whom Ashraf died in encounter. Noorullah was the culprit who all along guarded abductee Tajuddin and he was also constructively liable for the offence of abduction. No doubt, the learned counsel for the appellants did not seriously assail the appraisal of evidence on the point of abduction, but he contended that offence under section 365-A, P.P.C. Was not made out and at the most, as stated earlier, it could be an offence under section 365, P.P.C.
22. Having, fully considered the evidence we are convinced that undoubtedly the material on record is sufficient to satisfy the requirements of the offence under section 365, P.P.C. However, the main question is whether the ingredients of section 365-A, P.P.C. Are made out or not. Section 365-A, P.P.C. Reads as under:-- "365. Kidnapping or abduction for extroting 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 of either description for a term which may extend tp fourteen years and shall not be less than three years, and shall also be liable to fine."
23. The above definition on a plain reading lays stress on the fact that the purpose of abduction/kidnapping shall be extorting property whatsoever in nature or compelling any person to comply with any other demand whether in cash or otherwise for obtaining release of the victim.
24. The words used in the above section circumscribe a wide field making liable all those persons who actively participate in the commission of the acts mentioned therein but the distinct feature of this offence is that there should be a demand for the above purpose which is commonly known as demand of the ransom for release of the victim, or as held in PLD 1995 SC 1 (supra) or the object of the crime shall be abduction for ransom.
25. As already pointed out the story of demand of ransom was not mentioned in the F.I.R. And the Investigating Officer, in his deposition, expressly stated that in the statements recorded by him under section 161, Cr.P.C. None of the material witnesses including Tajuddin and his father spoke a word about demand of ransom. In fact, the story about demand of ransom was introduced for the first time in the statements recorded under section 164, Cr.P.C. And then the details were given at the trial. However, the Investigating Officer Riaz Hyder made it clear that under the orders of S.S.P., Karachi East the case was sent up under section 365-A, P.P.C., but he did not amend the F.I.R. From section 365, P.P.C. To section 365-A, P.P.C. Despite the opinion of S.S.P. This leads to the conclusion that the Investigating Officer was of the opinion that in the light of material collected by him during investigation no case was made out for an offence under section 365-A, P.P.C.
26. On the other hand Tajuddin's version at the trial was that when he was taken to the bungalow after abduction, accused Zahir Shah demanded Rs,50,00,000 as ransom for his release and asked him to give him the telephone number of his Karachi house whereupon he told them that no useful purpose will be served by calling his mother at. Home, they may contact the Show Room whereafter Zahir Shah talked to his boss at Quetta. After about one hour he (Tajuddin) was asked to connect the phone at his Shown Room and when he established contact at his Shown Room his father, who had come from Dubai, picked up the receiver and to him he disclosed that the culprits, in whose custody he was, were demanding Rs,50,00,000 for his release. Tajuddin has stated that Zahir Shah also spoke to his father. He stated that accused Noorullah told him that he was servant of Allah Noor alias Toor Jan who was the owner of the said bungalow. Tajuddin stated that on 13th February, 1994 the incident of encounter took place where after he was recovered.
27. The abductee, Tajuddin further gave another story in his deposition that he knew absconding accused Toor Jan as in the year 1993 he had come to his Shown Room and bought a car but paid him Rs,30,000 less and subsequently, when he paid the balance he issued threats that he was a notorious criminal of Quetta and he would see him. Tajuddin stated that Toor Jan made an attempt to kidnap his younger brother Syed Ameeruddin but failed. Again he wrote a letter addressed to his father through his uncle Syed Qamaruddin, copy whereof has been produced at the trial. On the basis of said letter F.I.R. Was lodged at City Police Station, Quetta and then he also submitted an application addressed to S.H.O. Gawalmandi, Quetta, copies whereof were produced by him in the Court. He further stated that on 29-3-1994 one Saleh Muhammad told him that he was sent by Toor Jan with a word that in case he deposed against Toor Jan in the Court he will be killed. Again on 17-4-1994 accused Toor Jan came alongwith two others at his Show Room and on seeing them he rushed into the Show Room whereafter they took away the briefcase of three Japanese persons and the revolver of his brother Badruddin. Such report'was lodged at Police Station New Town. He added that he has been receiving threats from absconding accused Allah Noor alias Toor Jan.
28. It is quite strange to note that Tajuddin admitted that during the period of the detention he came to know about the name of accused Zahir Shah, as the culprits used to call them by their names, even then he did not disclose the name of Zahir Shah in his statement under section 161, Cr.P.C. He- disclosed the name of Zahir Shah only after identification test. What was the reason to conceal the name of Zahir Shah does not appear to be reasonably explained. However, it is quite obvious from the documents produced by Tajuddin that this incident took place in February, 1994 but long back in the year 1993 he had made an application to S.H.O. Gawalmandi, Quetta complaining against Allah Noor alias Toor Jan and two others that they had gone to kidnap the child Syed Ashrafuddin but had spared him because of his young age. From the F.I.R. Lodged by Syed Haji Qutbuddin on 2- 7-1993 at City Police Station, Quetta it transpires that on the basis of letter addressed to Qutbuddin F.I.R. Was lodged at the police station and the case was registered on the instructions of P.D.S.P. For offence under section 504/506, P.P.C. It also transpires that complainant party belongs to a village known as Karbala, perhaps near Quetta. This shows that there was previous enmity between the parties namely Toor Jan and the complainant party. The evidence of Qutbuddin, father of Tajuddin shows that on hearing about the incident he had come from Sharja and on the same day at 6-00 p.m. He received telephonic message from Tajuddin about demand of Rs,50,00,000 as ransom. According to him, Zahir Shah took the telephone from his son Tajuddin and repeated the demand of Rs,50,00,000 declaring that otherwise Tajuddin would be cut into pieces and his body will be dispatched. At about 8-30 p.m. He received call from Allah Noor alias Toor Jan demanding Rs,50,00,000 as ransom. He has stated that subsequently, demand was made by accused Noorullah on 6-2-1994 and he tapped his conversation which tape was produced in Court as Article "A" but it was neither played in Court nor such question was put to Noorullah in his statement under section 342, Cr.P.C. Moreover, it was also not an authentic piece of evidence. He further stated that on 7-2-1994 Toor Jan again made a call and inquired about his demand but he showed his inability as it was huge amount and so also demand was repeated on 11-2-1994. The telephone bill was produced showing that such calls were made from the mobile phone of Tajuddin during his captivity. Thus, it is only the version of these two witnesses Tajuddin and his father Qutbuddin that ransom amount was demanded but Tajuddin's brother Nizamuddin has stated otherwise in clear words which are reproduced as under:-- "I had not received any telephone message from anyone demanding Rs,50 lacs as ransom for release of my brother."
29. At the same time the Investigating Officer has given a set back to the case put up by Tajuddin and Qutbuddin through their improved version that ransom was demanded from them. The purpose of recording section 161, Cr.P.C. Is that within close proximity of time the persons who have witnessed the incident or have suffered some loss, damage or trouble in consequence, of the offence shall apprise the Investigating Officer who may, on the basis of their evidence coupled with supporting corroborative evidence put up a case before the Court of law for prosecuting the culprits. The witnesses are bound to state the truth at that time as also at the trial but it is beyond imagination why Tajuddin and Qutbuddin concealed the fact of demand of ransom during the investigation in their statements recorded under section 161, Cr.P.C. There is no allegation of dishonesty on the part of Investigating Officer and it is not alleged that the Investigating Officer had a reason to damage their case and partly exonerate the culprits. No complaint was ever made against the Investigating Officer to allege that incorrect statements were =corded by him It seems, the previous enmity between the parties with Toor Jan could be the reason for improvement of the case from abduction simplicitor to abduction for ransom, since law provides sever punishment for the offence under section 365-A, P.P.C. Learned counsel for the appellants, in this regard, relied on the dictum of Honourable Supreme Court in the case Syed Saeed Muhammad v. The State 1993 SCM R 550. In the cited case improvements were made to strengthen the case by making additions/variations in order to bring the case in line, with the developed story. It was held that the witnesses were not worth reliance and benefit thereof was extended to the accused. In the case reported as Naseer Ahmed v. The State 1994 SCM R 995 material improvements were made by the complainant at the trial. Since the same were not supported by other evidence on record, the benefit was extended to the accused and the conviction and sentence were set aside.
30. We are of the considered opinion that the Investigating Officer had no reason to give false evidence about the statements under section 161, Cr.P.C. Of Tajuddin and Qutbuddin and that improvements made by these two witnesses much against the version given by complainant Nizamuddin, introducing a new case of demand of ransom of amount makes their version on this point open to question. This part of their testimony, we are constrained by the aforesaid circumstances not to believe. We are conscious of the legal position that the maxim "falsus in uno falsus in omnibus" has no universal application and is at least not applicable in Pakistan as held by the Honourable Supreme Court the precedents Ahmed Khan v. Nazir Ahmed 1999 SCM R 803; Zulfiqar Ali v. The State 1993 SCM R 2046 and Ghulam Sikandar v. Mama Raz Khan PLD 1985 SC 11 may be quoted with advantage on this point. Since we are going to disbelieve Tajuddin and Qutbuddin on the point of demand of ransom this shall not render their entire evidence unbelievable for, as discussed earlier, Tajuddin and his brother Nizamuddin and their servant Noor Muhammad have given a satisfactory and inherently reliable account of the earlier part of the story as to abduction of Tajuddin from the Show Room. The previous enmity with Toor Jan, who was arrested in this case on 20-2-1994 and subsequently, jumped his bail and was declared absconder alongwith two others, indicates that probably the abduction could only be for the purpose of security and wrongfully confining the victim in retaliation, because of the aforesaid enmity.
31. Having anxiously considered the contentions of the defence counsel and the arguments of the State Counsel, we are of the view that the principle laid down in the authority PLD 1995 SC 1 is not applicable to this case as in the said case it was obse:ved that there was no enmity between the parents of the kidnapped person and the accused persons and in the circumstances object of kidnapping was considered to be nothing but abduction for ransom. In particular, evidence had come on record through the victim that the culprits whenever found him worried during the captivity consoled him that they had no enmity with his father and they would contact his father and as soon as the money is paid he will be released. In those circumstances, there was enough indication about the object of abduction while in the instant case the previous enmity between absconding accused Toor Jan and the complainant party is admittedly made out but regarding object of abduction testimonies are not found reliable.
32. The upshot of the above discussion is that the prosecution could only succeed to prove the charge to the extent of an offence under section 365, P.P.C. Accordingly, while dismissing the appeal we modify the conviction from 365-A, P.P.C. To 365, P.P.C. And alter the sentence to seven years' R.I.
33. With fine of Rs,1,00,000 each and in case of default each of the appellants shall suffer R.I. For one year more. By a short order, on 9-9-1999, we had decided this case as aforesaid and these are the reasons for the same.