RAHMAT HUSSAIN JAFFARI, J.-This judgment will dispose of Special AT Jail Appeal No, 81 of 2002 and Confirmation Case No,13 of 2002, as they arise out of a common judgment.
2. The present Appeal is directed against the judgment, dated 12-10-2002, passed by the Anti- Terrorism Court No, II, Karachi Division, in Special Case No,47 of 2000 (State v. Syed Muhammad Khalid Moin and others), under sections 365-A, 386, 387, 34, P.P.C. Read with section 7 of Anti- Terrorism Act, 1997 (hereinafter referred to as the "Act, 1997"). Special Case No, 48 of 2000 (State v.
Dr. Syed Muhammad Khalid Moin) under section 13(d) of the Pakistan Arms Ordinance, 1965 (hereinafter referred to as the "Ordinance, 1965"). Special Case No,49 of 2000 (State v. Muhammad Salim Khan Tanoli), under section 13(d) of Ordinance, 1965 and Special Case No,50 of 2000 (State v.
Samiullah) under section 13(d) of Ordinance, 1965, under the impugned judgment, the appellants were convicted and sentenced for various offences. The operative part of the judgment concerning conviction and sentences reads as under:--
(i) For the offence under section 365-A, P.P.C. Read with section 34, P.P.C., accused Dr. Syed Muhammad Khalid Moin, Muhammad Salim Khan Tanoli, Samiullah and Salimuddin are awarded sentences of death by hanging by neck till they are dead and to pay fine of Rs,10,00,000 (ten Lac) each, in default in payment of the fine they shall have to undergo R.I. For three years each;
(ii) For the offence under section 6(2)(e) Anti-Terrorism Act, 1997, also they are awarded sentence of death by hanging by neck till they are dead, and forfeiture of their properties, as provided under section 7(e) of the Anti-Terrorism Act, 1997;
(iii) For the offence under section 13(d) of the Pakistan Arms Ordinance, 1965, accused Dr. Syed Muhammad Khalid Moin, Muhammad Salim Khan Tanoli and Samiullah are awarded rigorous imprisonment of 7 (seven) years each and to pay fine of Rs, 10,000 (ten thousand) each or in default of payment of fine, they shall have to undergo R.I. For a further period of 1 (one) year, each:
(iv) All the accused are further directed to pay Rs,10,00,000 (ten Lac). Each as compensation to the abductees for the mental anguish caused to them due to callous act committed by the accused in default thereof each of them shall suffer R.I. For a further term of R.I. For 1 (one) year, under section 544-A, Cr.P.C."
3. The brief facts of the prosecution case are that on 31-1-2000 at 9-15 p.m. The appellants Dr. Mohammad Khalid Moin, Salimuddin and Samiullah abducted the complainant Shahid Alt Siddiqui and his son Musib Ali from near Larosh catering North Nazimababad on gun-point. At that time, the abductees were on their car bearing registration number A B M-518. The appellants blindfolded the abductees. They took them and confined them in a bunglow bearing No, 414 Block 1 Gulshene-lqbal Karachi. The appellant Salim Khan Tanoli the chief of the co-appellants came there. He demanded ransom amount of rupees two crores from the complainant. After negotiation, the ransom amount for the release of the abductees was fixed at rupees 55 lacs. The appellants brought cheque books from the Complainant's car. The complainant signed a cheque of rupees 40 lacs whereas his son signed a cheque of rupees 15 lacs. The appellants forced the complainant to talk to the Manager of the bank to encash the cheques, which he did. The appellant Dr. Muhammad Khalid Moin and Samiullah took the cheques to banks where they encashed them. Thereafter the appellants released the abductees.
4. After reaching their house the complainant made a telephone call to his daughter in the meantime the complainant received several calls from the appellants threatening them not to go to police station or disclose the facts to anybody, otherwise they will be killed and so also their other family members. Therefore, due to fear the complainant did not lodge the report.
5. It was further alleged that son-in-law of the complainant, who was abroad, came to know about the incident. They contacted Ashraf Sultan of Citizen Police Liaison Committee. The CPLC people contacted the complainant and then he was taken to CPLC office where he met Jamil Yousuf, Chief of CPLC and others. On their assurances he prepared an application for lodging the report.
Thereafter the complainant took the application to the SSP Central, Karachi, office, where he narrated the incident to him. The SSP received the application and sent it to D.S.P., Haidery Police Station. The complainant was directed to go to Haidery Police Station. Thereafter the complainant went to Haidery Police Station where DSP called another. Officer, who took him to police station, where the facts of his application were incorporated in 154, Cr.P.C. Book and was treated as F.I.R.
6. The police arrested the appellants. From their possession, the ransom amount was secured which they had distributed amongst themselves . According to their shares. At the time of arrest of the appellants Dr. Syed Mohammad Khalid Moin, Salimuddin and Samiullah the police secured unlicensed arms and. Ammunition from their possession. From the possession of appellant Muhammad Salim Khan Tanoli, a cellular telephone set of abductee Musib Ali Siddiqui was secured. From the possession of appellants Samiullah, a golden Locket of the abductee Musib Ali Siddiqui- was secured. The appellants were put in identification test held before a Magistrate. The abductees, manager, cashier and accountant of the banks identified the appellants. After completing the investigation, the appellants were challaned in the Court.
7. On 4-9-2000, a charge under sections 365-A, 385-386, 34, P.P.C. And section 7 of Act, 1997, was framed against'the appellants. A charge under section 13(d) of Ordinance, 1965, was framed against appellants Dr. Syed Muhammad Khalid Moin, Muhammad Salim Khan Tanoli and Samiullah the appellants pleaded not guilty to the charge. In support of the case, the prosecution examined sixteen following witnesses.
8. P.W.1 and P.Wd.15 are the abductees. They gave the same details of the incident as mentioned above. They fully supported the prosecution case, identified the accused/appellants in the Court and picked them out in the identification test. The evidence reveals that in the first instance, they identified the appellants Muhammad Saleem Khan Tanoli through voice and then seeing him on the next day. They also saw all the appellants through the side of glasses.
9. P.W.2 Saqlain Zaidi was Cashier in Allied Bank Limited, Hadi Market Branch, Nazimabad, Karachi.
His evidence reveals that appellant Samiullah brought the cheque of Rs,4,000,000, issued by the abducteecomplainant Shahid Ali Siddiqui. The said cheque was encashed after obtaining the signature of Samiullah on the back of the cheque. In the identification test, he identified the appellant Samiullah, to be the same person who encashed the cheque.
10. P.W.3 Ghulam Shabbir was property agent. His evidence reveals that on 5-2-2000 at about 7-30 p.m. The appellant Dr. Syed Muhammad Khalid Moin, deposited the key of the Bunglow bearing No,414, owned by one Mst. Naseema Rais on the ground that they had vacated the house. He had identified the appellant Dr. Syed Muhammad Khalid Moin in the Court to be the same person.
11. P.W.4 Mirza Khurram Baig was Cashier in Allied Bank Limited, Haideri Branch, Karachi. His evidence reveals that on 1-2-2000 the appellant Dr. Syed Muhammad Khalid Moin brought a cheque for Rs,1,500,000, issued by the abductee Musib Ali Siddiqui. The said cheque was encashed after obtaining his signature on the back of the cheque. In the identification test he identified the appellant Dr. Syed Muhammad Khalid Moin to be We same person, who brought the cheque for encashing the same.
12. P.W.5 Syed Hassan Saghir Abidi was Manager, Allied Bank Limited, Hadi Market Branch, Nazimabad, Karachi. His evidence reveals that the abductee-complainant Shahid. Ali Siddiqui contacted him on telephone for encashing a cheque of Rs,4,000,000, as he required the amount urgently but in the beginning he was not agreeing to it because of some internal problem. Then the abductee talked to him 2/3 times and thereafter he agreed to encash the cheque after calling the money from the Head Office. His evidence further, reveals that the appellant Samiullah had brought the cheque of Rs,4,000,000, which was encashed and he put the signature on the back of the cheque because it was of huge amount. In the identification test he identified the appellant Samiullah to be the same person, who had brought the cheque for encashment.
13. P.W.6 Ghulam Hussain Gondal, was Inspector Complaint Cell, Liaquatabad, Karachi. He had incorporated the facts of the application of the abductee-complainant Shahid Ali Siddiqui in 154, Cr.P.C. Book and then the investigation was transferred to ACLC, therefore, he sent the papers to Inspector Abdul Hafeez Junejo.
14. P.W.7 Muhainmad Pervaiz was ASI, Anti-Car Lifting Cell. His evidence reveals that on 23-2-2000, he was with Inspector Abdul Hafeez Junejo on patrolling duty when they found a car parked in a suspicious condition. From it the appellants Dr. Syed Muhammad Khalid Moin, Muhammad Saleem Khan Tanoli and Samiullah were arrested and from them the arms, ammunition and wallets were secured.
15. P.W.8 Syed Asad Ali Rizivi was SIP Police Headquarters Garden, Karachi. He had registered the F.I.R. Under section 13(d) of Ordinance, 1965 against the appellants Dr. Syed Muhammad Khalid Moin, Salim Khan Tanoli and Samiullah.
16. P.W.9 Zakaullah was SIP Ferozabad Police Station. He had registered the reports of Crimes Nos.
15, 16, 17 of 2000, under section 13(d) of Ordinance, 1965.
17. P.W.10 Saifur Rehman, S.I.P., ACLC, Karachi. He was also with Inspector Abdul Hafeez Junejo on patrolling duty when they found the car in a suspicious condition. From it the appellants Dr. Syed Muhammad Khalid Moin, Salim Khan Tanoli and Samiullah were arrested and secured arms and ammunition from them.
18. P.W. 11 Shakeel Ahmed was SIP, Crime Investigation Department, Karachi. His evidence reveals that on 23-2-2000 at about 1-15 p.m. Syed Hassan Saghir Abidi, Bank Manager of ABL, identified the appellant Muhammad Saleem Taloni at the police station to be the said person. Thereafter the appellant was arrested in his presence.
19. P.W.12 Farooq Ahmed, J.M. IX Central, Karachi. He had conducted the identification test of the appellants where the P. Ws. Correctly picked out the appellants, as mentioned above. His evidence further reveals that on 23-3-2000, he held the identification test of golden chain and cellular phone through P.W.15 Musib Ali Siddiqui, who identified the golden chain and mobile phone to be owned by him.
20. P.W.13 Sharif Ahmed was mashir of all the recoveries of articles, cash and certificates, etc. From the houses of the appellants on their pointation.
21. P.W.14 Muhammad Shakir was also mashir. Before this witness the appellants had shown the Bunglow No,414 where they had kept the abductees in captivity. Thereafter they also showed the plot at Dalmia near Drive-in Cinema, where they had released the abductees.
22. P.W.16 Abdul Hafeez Junejo, Investigation Officer. He gave the details of investigation. He also produced the various documents secured by him from appellants, Handwriting Fxpert report, specimen signatures of the appellants. Thereafter, the prosecution closed their side.
23. The appellants Dr. Syed Muhammad Khalid Moin in his statement recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. He further stated that he was arrested from his house. The Klashnikov was secured from police constable Sher Afgan, who was provided to him as Gunman by SSP, being Deputy Medical Superintendent, Abbasi Shaheed Hospital, Karachi. He denied the encashment of cheque and recovery of certificates from his house. As regards the identification test, he disclosed that the witnesses had seen him at the police station and the witnesses identified him due to pressure of the police. As regards his specimen signatures, he disclosed that police had forced him to put the signatures on cheque before a Magistrate, which he did. He took the plea that during his appointment as Deputy Medical Superintendent. Abbasi Shaheed Hospital, Karachi, he had unearthed corruption of some contractors, therefore, they were annoyed with him. The said contractors extended threats to implicate him in false' cases as prior to his appointment his predecessor Dr. Zafar Abbas was killed by those contractors.
24. Appellant Samiullah, in his statement recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. He took the plea that the money has been foisted upon him. The P.Ws. Saw him before the identification test and the golden chain was foisted upon him. He further disclosed that alleged recoveries were planted. The witness deposed against him and identified him at the pressure of Inspector Abdul Hafeez Junejo. His signatures were obtained forcibly. He took the defence that he was carpenter and prepared one Allmirah for Mst. Naseema Rais, who was introduced to him through one Gulloo son of Yousuf Jamil of CPLC. There were differences between him and Mst. Naseema Rais over the money for preparing the said Almirah, therefore, he had been involved in this case at the instance of Yousuf. Jamil.
25. The appellant Salim Khan Tanoli in his statement recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. He stated that he knew both the abdcutees before this incident.
The arms and ammunitions have been foisted upon him; that Manager of ABL already knew him as he was account holder in the bank; that the police had collected Rs, 2,300,000 from his friend, bank account and then foisted the said cash upon him. As regards identification test, he stated that it was based on mala fides because he was previously known to the abductees and the Bank Manager; that the F.I.R. Was lodged under the influence of CPLC, who had fabricated evidence against him; that his personal money has been shown as amount of ransom and that he is innocent.
26. The appellant Saleemuddin in his statement, recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution and stated that he had saved the money and purchased the certificates for the marriage of his sister, which the police had foisted upon him. He took the plea that he had been falsely involved in the case due to old enmity..
27. The appellant Dr. Syed Muhammad Khalid. Moin, examined one D.W. Muhammad Shoaib. His evidence reveals that the appellant through Dr. Aijaz Memon asked him to give him Rs,1,200,000 as he was in need, therefore, he had sent the money to him through his servant.
28. The appellant Samiullah examined defence witness Mehmood Khan and his son Imran Khan.
Their evidence reveals that they were residing in the building where the appellant Samiullah was residing. From 20-2-2000 to 24-2-2000, they did not see any police officer coming to the building but in the cross-examination, they stated that in the months of January and February they were in Larkana. The appellants did not examine themselves on oath.
29. After considering the evidence available on the record and hearing parties' counsel, the learned trial Judge convicted the appellants, as mentioned above, under the impugned judgment. Hence the present appeal.
30. We have heard the Advocates for the appellants, A.A.G. For the State and perused the record of this case very carefully. Mr. Azizullah K. Sheikh, Advocate for appellant Dr. Syed Muhammad Khalid Moin and Mr. Muhammad Ilya; Khan, Advocate for appellants Salimuddin and Samiullah have not challenged the findings of the trial Court on merits but straightaway requested that the sentences of the appellants may be reduced.
31. Mr. Abdul Qadir Halepota, Advocate for appellant Muhammad Salim Khan Tanoli, has stated that the role of the appellant is minor as it is alleged that he had demanded only ransom amount; that the evidence against the said appellant is identification through voice, which is a very weak type of evidence and is not sufficient to convict the appellant on the said evidence. In support of his above submission,' he has relied upon Sher Muhammad v. State 1972 PCr.LJ 537. He has further stated that the offence, if any would fall under sections 385 and 386, P.P.C. But when he was pointed out that charge under section 385 and 386, P.P.C. Was framed against the appellants but the trial Court did not convict them under those sections, then he stated as an alternative argument that the sentence of the appellant may be reduced.
32. On the other hand, Mr. Habib Ahmed, learned A.A.-G., has stated that both the abductees have fully supported the prosecution case and implicated all the appellants; that the evidence against the appellant Muhammad Salim Khan Tanoli is of identification through voice and by seeing him by both the abductees through the side of spectacle and they saw him on the next day; that- the cellular phone of one of the abductees Musib Ali Siddiqui was recovered from the possession of the appellant Muhammad Salim Khan Tanoli, which was identified by the abductee Musib Ali' Siddiqui in an identification test; that the said pieces of evidence are also connecting the appellant Muhammad Saleem Khan Tanoli in this case. He has further stated that the ransom amount was secured from each appellant being their share; that the appellants Dr. Syed Muhammad Khalid Moin and Salimullah were identified by the bank employees where they had gone to encash the cheques and were successful in obtaining the cash from the banks; that the evidence is sufficient to prove the guilt of all the appellants; that there are no mitigating circumstances for warranting lesser sentence as the normal sentence provided under section 365-A, P.P.C., is death and for awarding lesser sentence there should be some mitigating circumstances but the same have not been pointed out by any of the Advocates for the appellants. Therefore, he has requested that the sentences awarded by the trial Court may be maintained.
33. We have given due consideration to the arguments, gone through the evidence available on the record very minutely and found that both the abductees in their statements have fully supported the prosecution case by giving the details of the incident from the time of their abduction till their release. Both the abductees had seen the appellants during their abduction and during their captivity. They had also seen them on the day when they signed the cheques from the side of spectacle. Subsequently all the appellants were identified in the identification test held before the Magistrate. The bank employees also identified the appellants Dr. Syed Muhammad Khalid Moin and Samiullah being the persons who had encashed the cheques. A lengthy cross- examination was conducted but nothing came on record to discredit the evidence of the P.Ws.
There is no enmity whatsoever between the witnesses and the appellants nor any enmity was suggested during the cross-examination or proved. There is no reason with the P.Ws. To falsely implicate the appellants with the commission of this crime. Their evidence is confidence inspiring.
We do not find any reason to disbelieve their evidence.
34. Apart from the above ocular testimony there is circumstantial evidence against the appellant Muhammad Salim Khan Tanoli as cellular phone of abductee Musib Ali Siddiqui was secured from his possession in presence of witnesses, who had also supported the prosecution version. The said cellular phone was put in the identification test before the Magistrate where the abductee Musib Ali Siddiqui had correctly picked out his cellular phone. As such the involvement of appellant Muhammad Salim Khan Tanoli is also proved through this piece of evidence.
35. The appellant Samiullah is also connected through the recovery of golden chain, which belonged to the abductee Musib Ali Siddiqui. The same was snatched from him during his captivity.
The said recovery was also supported by mashirs. The golden locket was put in the identification test before the Magistrate, where the abductee Musib Ali Siddiqui correctly picked out this said locket.
36. The evidence against appellants Dr. Syed Muhammad Khalid Moin and Samiullah is their signatures on the cheques, which they put while encashing the cheques. Their specimen signatures were obtained, which were sent to Handwriting Expert along with the cheques. The report is in positive. All the pieces of evidence clearly show that all the appellants are involved in the case.
37. Furthermore, the learned Advocates for the appellants Dr. Syed Muhammad Khalid Moin, Samiullah and Saleemuddin have not challenged the findings of the trial Court on merits but they have requested for reduction in their sentences.
38. As regards the arguments of the learned Advocate for the appellant Muhammad Salim Khan Tanoli; that the evidence against the appellant is of only identification through voice. The evidence reveals that both the abductees have categorically siated that they had seen the appellant Muhammad Salim Khan Tanoli. On the said piece of evidence, the appellant Muhammad Salim Khan Tanoli did not cross-examine the witnesses and their evidence went unchallenged. As such the prosecution have proved their case against all the appellants beyond any shadow of doubt, therefore, the learned trial Judge rightly convicted all the E appellants under section 365-A, P.P.C.
Read with section 34, P.P.C.
39. As regards the conviction of the appellants under section 6(2)(e) of Act, 1997. Suffice it to say that when the incident took place at that time the said provision was not available, therefore, the appellants could F not have been convicted for the said offence. In this case the incident took place on 31-1-2000. The section 6(2)(e) of Act, 1997, was included by Ordinance XXXIX of 2001 from 14-8-2001. It is well-settled principle of law that the appellants would be liable for conviction for an offence, which was available at the time of commission of the- said offence. Perusal of the evidence reveals that all the ingredients of offence punishable under section 6(b) of the Act, 1997, as stood, on the date of incident were attracted. The said offence was punishable under section 7(ii) of Act, 1997. Thus, the appellants were required to be convicted and sentenced under section 7(ii) of the Act, 1997. At the relevant time section 365-A, P.P.C. Was a scheduled offence, therefore, the appellants, are required to be convicted under section 365-A, P.P.C. Read with section 7(ii) of Act, 1997. Hence the conviction and sentence awarded under section 6(2)(e) of the Act, 1997, are set aside.
40. As regards the conviction under section 13(d) of Ordinance, 1965 of appellants Dr. Syed Muhammad Khalid Moin, Muhammad Salim Khan Tanoli and Samiullah. It is pointed out that at the relevant time, according to Item 5 of Schedule attached to the Act, 1997, the offence punishable under Ordinance, 1965, if committed conjointly with any other schedule offence, then only the Anti- Terrorism Act had jurisdiction to try the said offence. In the present case, there is no evidence showing that the arms and ammunition secured from the possession of the above named three appellants were used in the commission of schedule offence. The learned A.A.-G. Has frankly conceded that the offence punishable under section 13(d) of Ordinance, 1965, was not committed conjointly with the schedule offence, therefore, the trial Court had no jurisdiction to try the said offence. Hence the convictions and sentences awarded to the above named three appellants under section 13(d) of Ordinance, 1965,. Are set aside. The cases were required to be transferred to the concerned Court having jurisdiction in the matter under section 23 of Act, 1997.
41. As regards the sentences, the learned trial Court awarded the sentences of fine while convicting the appellants under section 365-A, P.P.C. The sentence of fine is not provided under section 365-A, P.P.C., therefore, the law does not warrant the said sentence. The trial Court should have forfeited the movable and immovable properties of the appellants instead of awarding sentence of fine.
Therefore, the sentence of fine awarded under section 365-A, P.P.C. Is set aside.
42. As regards the sentence of one year in default in payment of compensation amount under section 544-A, Cr.P.C. It is pointed out that the maximum sentence provided thereunder is only six months, therefore, the sentence of one year in default in payment of compensation was not proper, which is reduced to six months.
43. As regards the award of compensation of Rs,1,000,000 to each appellant to be paid to the abductees under section 544-A, Cr.P.C. The same is on higher side, therefore, it requires to be reduced. We find that the compensation of Rs,100,000, to be paid by each appellant, would meet the ends of justice, therefore, the compensation of Rs,1,000,000 is reduced to Rs,100,000.
44. All the Advocates have requested that sentence of death awarded under section 365-A, P.P.C.
Be reduced. The sentence provided under section 365-A, P.P.C. Is death, imprisonment for life and forfeiture of movable and immovable properties. In the cases where sentence of death and imprisonment for life is provided then normal sentence is death and if a lesser sentence is awarded then some mitigating circumstances are to be shown by the appellants. Even otherwise, under section 367(5) of Cr.P.C., it is provided that if an accused is convicted for an offence punishable with death and the Court sentenced him to any punishment other than death then the Court shall in its judgment state the reason why sentence of death was not passed. Thus, the provision of section 367(5), Cr.P.C., is mandatory provision. Therefore, for awarding lesser sentence reasons are to be mentioned in the judgment.
45. The question concerning appropriate quantum of sentence to meet the ends of justice, is primarily the function of the trial Court or appellate or revisional Court. The trial Court keeping in view the provision of section 20 of Act, 1997, awarded the maximum punishment. Section 20 of Act, 1997, has been repealed by the Ordinance XXXIX of 2001 with effect from 14-8-2001. Therefore, the trial Court was not justified in taking into consideration the repealed provision of law. The trial Court should ha.Ve considered the provisions of section 367(5), Cr.P.C. Under which the normal sentence in such a case is death and if lesser punishment is awarded, then reasons are to be recorded. As the trial Court was legally bound to award the sentence, of death, therefore, by relying upon repealed section would not affect the quantum of sentence, passed by, the trial Court.
46. However, we have also given due consideration to the said aspect of the case. We have seen that the two persons were abducted by two highly educated persons along with one police constable and one another person. Not only they abducted two businessmen but also they were made captive in a room where torture articles were lying. The abductees were threatened to death and in doing so both the abductees were blind-folded. The abductees are father and son. A threat was issued to the father that his son would be killed in his presence and not only that they tortured the son, who was raising cries, therefore, in such a situation one can understand the feelings of a father when in his presence his son is being tortured and threats were issued to kill his son. The situation became so grave that the father had to surrender to the demand of the appellants. The abductees were forced to sign the cheques. They were forced to talk to manager of the bank to encash the cheques and then the ransom amount was received by encashing the cheques. The acts of the appellants were such, which must had created terror in the business community. It is not out of place to mention that in the city of Karachi the offences of abduction for ransom have increased tremendously. Nobody is feeling safe. If a person leaves his house, there is no guarantee that he will return safe. For their safety purpose, people have started hiring gunmen, who they carry with them in their cars. For this purpose several private security agencies have emerged. Their business is flourishing day by day, because Government agencies cannot provide personal guards to every citizen. Keeping in view this scenario and law and order situation of the city, same stringent steps are required to be taken. Therefore, while remaining with the four corners of law adequate sentence is required to be awarded to curb this alarming situation.
47. Moreover, it will be noticed that section 365-A, P.P.C. Was not available in the Penal Code. This type of offence was not in vogue but only offence of simple abduction and kidnapping were being committed, which were adequately punished up to ten years' imprisonment under various sections of P.P.C. Including section 365, P.P.C. During the period before 1988 the cases of abduction for ransom amount started being committed by decoits and various culprits to such an extent that the Legislature was compelled to enact a law in the shape of section 365-A, P.P.C. In the year 1988 by inserting the section 365-A, P.P.C. In the Pakistan Penal Code through Ordinance XVIII of 1988. At that time the sentence provided thereunder was death or imprisonment up to fourteen years but not less than three years and fine. Subsequently, the Legislature thought it fit to reduce the sentence, therefore, it had reduced the sentence by modifying the above sentence to imprisonment of life and forfeiture of property, vide Act HI of 1990. Very shortly thereafter it appears that Legislature thought the reduction of sentence was not proper as such offences increased tremendously, therefore, in the same year on 10-12-1990 an Ordinance XIV of 1990 was promulgated by which the sentence of imprisonment of life was replaced by death. On 28-3-1991 the Act H of 1991 was enacted by which the sentence of imprisonment of life was enhanced to the sentence of death. As such from 10-12-1990 the punishment provided under section 365-A, P.P.C., is death or imprisonment of life and forfeiture of movable and immovable properties.
48. Previously, the maximum punishment of death for any offence was under section 302, P.P.C.
Which was of a murder of a person. The gravity of section 365-A, P.P.C. Can be very well judged from the fact that the sentence provided under section 365-A, P.P.C. Is higher than the sentence provided under section 302, P.P.C. As under section 302, P.P.C. The sentence is death or imprisonment for life. Whereas sentence under section 365-A, P.P.C. Is death, imprisonment of life and additional sentence of forfeiture of movable and immovable properties. From the above position, the intention of the Legislature clearly shows that while convicting a person, involved in the abduction of a person for ransom amount, his sentence should not only be death or imprisonment of life but his movable and immovable properties should also be forfeited. In such a situation the intention of the Legislature has to be implemented so as to control the offences of this type of nature, for which the Legislature have taken pains to add section 365-A, P.P.C.
49. It is also pointed out that the Courts are awarding sentences while keeping in view the crime of a particular offence at a particular stage or period and if the crime rate is high then the sentence is also high and if the crime rate is reduced then sentence can also be reduced to such an extent.
The purpose of sentencing a person is that it should play a deterrent for the other persons so that they may not commit such type of offences. It is not out of place to mention here that the crime of abduction for ransom is increasing day by day, therefore, the Courts must give and impose a penalty which is permissible under the law, that should be an eye opener for the others so that the crime rate may be controlled.
50. The superior Courts of Pakistan have examined these points in various judgments. Some of the judgment are as under.
51. In the case of Bakhshish Elahi v. State 1977 SCM R 309 at page 312 it has been observed as under:--- "The Legislature has conferred very wide discretion on the Courts in the matter of sentences under the Penal Code, but as the discretion has to be exercised judicially, the Courts would be entitled to take into account the law and order situation, if the object of punishment or one of the objects of punishment be to deter the commission of further crimes. Now, I do not see how there can be any doubt about this question. Salmond observes in his book on jurisprudence (Tenth Edition) at page
111. Punishment is before all things deterrent, and the chief end of the law of crime is to make the evil doer on example and a warning to all that are like minded with him. I would agree with this passage and the learned Single Judge was justified in holding that a severer sentence was necessary on account of the increase of crime, provided of course culpable homicides of the type under consideration have increased, as held by the learned Single Judge."
52. In the case of Muhammad Sharif v. State 1991 SCM R 1622 at pages 1627 and 1628 it has been observed as under:- "We are, however, constrained to remark that despite this Court's repeated observations regarding imposition of the normal penalty of death to those convicted for murders and to discredit the impression of marked tendency of inhibition or hesitation on the part of the trial Courts in awarding the said penalty, in this case both the trial Court and the learned Appellate Court failed to measure the actions of the accused/appellants in proper scales and failed to apply their minds reasonably in inflicting the normal penalty provided for such offences for obviously no reasons ... It is the Divine will that we must be firm and resolute to do justice whether it be detrimental to our own interests or the interest of those who are near and dear to us. Mercy is the attribute of God but we are warned not to allow that which is otherwise unlawful moreover we should not show mercy to those who themselves are proved to have acted mercilessly...."
53. In the case of Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452, at page 460 it has been observed as under:- "It has come to the notice of this Court that in a increasing number of convictions on charge of murder there is a kind of inhibition or hesitancy on the part of the trial Courts in awarding the normal penalty of death. I cannot also avoid an impression that there is often a marked tendency in the High Courts to find a laboured pretext to alter the sentence of death to life imprisonment. No doubt having regard to the sanctity of human life and liberty, the law has taken all conceivable precautions to safeguard it. The Law of Evidence and in particular the rules of admissibility excluding confessions made before a person in authority, the rule of placing the onus on the prosecution, conceding to the accused the liberty of a privileged liar, the Court's responsibility to spell out reasonable existence of an unpleaded defence, if warranted by the facts and circumstances of the case and above all the golden rule of giving the benefit of doubt to the accused are measures aimed at the protection of human life against false implication and undeserved punishment. The matter does not end with the finality of judicial proceedings as the Executive has also been invested with the power to meet the failures of legal justice and undo the mischief found to have been done by it. An equally important aspect of the this sanctity of human life often lost sight of is that once conviction is finally upheld the deliberate extinction of life is visited with the normal penalty of death which is not confined to the actual killer but is also extended to the other co-accused sharing the community of intention as the case may be and found to be constructively liable. The principal object behind this obviously is to avoid repetition of violent loss of life by award of deterrent punishment. The exaggerated and distorted F.I.Rs, the reluctance of eye-witnesses to come forward, the dishonest investigation, the false witnesses and their frequent subornation and above all the lingering trial of appeals all combine to help out the murders of whom only a small fraction is brought to book. Viewed in this background, the marked propensity of the Courts to avoid death penalty at the trial or allow unjustified commutation in appeal followed by frequent remissions of sentences both earned and conferred is bound to take away the sting of deterrence, thus indirectly contributing to the incidence of heinous crime of which the Courts cannot fully escape the share of responsibility."
54. In the case of Ameer Umar v. State 1976 SCM R 338, at page 340 it has been observed as under:- -- "As regards the sentence, it is not the normal practice or province of this Court to interfere with a legal sentence. It is primarily for the trial Court, or the appellate and the revisional Courts to assess the appropriate quantum of sentence which would meet the ends of justice."
55. It is well-settled principle of law that legal sentence awarded by the trial Court is not required to be interfered with unless some question of the principle is involved. Reliance is placed on Rehmuddin v. State 1973 SCM R 327 and at page 332 it has been observed as under:- "This Court does not interfere with a legal sentence unless some question of principle is involved.
Since no question of principle is involved in this case, no interference is called for."
56. Similar view was taken in the case of Muhammad Rafiq v. State 1979 SCMR 378.
57. In the light of what has been stated above the appellants are not entitled to reduction of their sentences.
58. As regards the defence taken by the appellants, they have not led any convincing evidence to support their cases. In the presence of overwhelming evidence of the prosecution the defence pleas taken by the appellants without any support or corroboration cannot be safely relied upon.
The appellants claimed the cash and Certificates secured from their possession. In support of that claim appellant Khalid Moin examined D.W. Muhammad Shoib. His evidence reveals that on 22-2- 2000, he received message from Dr. Khalid Moin on mobile phone that he should provide Rs,12,00,000 to him. He arranged the said amount and sent it to the appellant through a servant Shakir on 23-2-2000. To support the above contention the appellant did not examine the said servant Shakir. It is not appealing to the common sense that a huge amount of Rs,12,00,000 would be sent through a servant. However, as the statement of D.W. Muhammad Shoib is not supported or corroborated by any other piece of evidence, therefore, the solitary statement of D.W. Muhammad Shoib cannot be safely relied upon, Moreover, the trial Court under question No,20 of 342, Cr.P.C.
Statement of appellant asked the question about the recovery of cash and certificates from the possession of appellant to which he replied that no certificates were recovered from him and the cash was arranged by the police through coercive means while he was in police custody. In the said statement he did not take any specific plea that Rs,12,00,000 were sent to him by D.W.
Muhammad Shoib. As such the defence taken by the appellant through D.W. Muhammad Shoib has not been proved. The other appellants did not examine themselves on oath or lead any evidence to prove that the amount belonged to them. As such the appellants have failed to prove that the cash, Defence Saving Certificates and Monthly Income Certificates secured by the police are owned by them. Thus the property order passed by the trial Court is maintained with addition that profit on the cash invested in profit bearing Scheme by the Nazir of this Court may also be returned to the abductees after expiry of appeal period, if no appeal is preferred.
59. Above are the reasons of our short order dated 18-5-2004 by which we had disposed of Special A.T. Jail Appeal No,81 of 2002 and the Confirmation Case No,13 of 2002 by modifying the convictions and sentences, awarded by the trial Court, in the following manner:---
(a) All the appellants are convicted for the offence punishable under section 365-A, read with section 34, P.P.C. And 7(ii) of Anti-Terrorism Act, 1997. Each of the appellants is awarded sentence of death hanging by neck till their death and also forfeiture of their immovable and movable properties to the extent of Rs,10,00,000;
(b) All the appellants are directed to pay a sum of Rs,100,000 each as compensation under section 544-A, Cr.P.C. To the abductees for the mental anguish caused to them and in case of default in payment of the amount of compensation they should suffer further R.I. For six months;
(c) The conviction for the offence punishable under section 13(d) of the Pakistan Arms Ordinance, 1965 of appellants Dr. Sayed Khalid Moin, Saleem Khan Tanoli and Samiullah is set aside, since the offence was not committed conjointly with the scheduled offence hence the case is remanded to the trial Court for forwarding the same under section 23 of Anti-Terrorism Act, 1997 to the Court of competent jurisdiction for trial in accordance with law;
(d) The sentence awarded by the trial Court under section 6(2)(e) of Anti-Terrorism Act, 1997, is set aside as the said section was not available at the time of commission of offence and in view of the convictions and sentence, as ordered at paragraph (a) above;
(e) The sentences of death awarded to appellants are hereby confirmed.