IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Criminal Jail Appeal No.D-41 of 2014

 

Present:

Mr. Justice Muhammad IqbalMahar.

Mr. Justice Amjad Ali Sahito

 

Appellant             :         Niaz Ali Rajper (under custody) through

                                      Mr. Shamsuddin Rajper Advocate.

 

 

State                    :         Through Mr. Abdul Rehman Kolachi, Deputy

Prosecutor General.

 

Date of hearing   :         26-09-2018

Date of decision  :         26-09-2018

 

 

J U D G M E N T

 

 

Amjad Ali Sahito, J.–Appellant Niaz Ali Rajper was tried by learned Judge, ATC, Khairpur in two special cases bearing No. 40 of 2012 (crime No. 80 of 2012 registered with P.S, Setharja-Khairpur for offences under sections 365-A, 324, 353 PPC & 7 ATA, 1997) and special case No. 81 of 2012 (crime No.81 of 2012 registered with the same P.S for offence under section 13(d) A.O), and by common judgment dated 31.05.2014, he was convicted and sentenced as under:-

i).       For an offence,under section 365-A r/w section 34 PPC, appellant was sentenced toR.I for life. His movable andimmovable property was also ordered to be forfeited to the State.

ii).      For an offence under section353 r/w section 34 PPC, appellant was sentenced to suffer R.I for 02-years with fine of Rs. 5000/- and in case of default thereof, to suffer R.I for 01-month more.

iv).     For an offence under section 13(d) A.O, appellant was sentenced to suffer R.I for 05-years with fine of Rs. 10,000/- and in case of default thereof, to suffer R.I for 03-months more.

v).      For an offence under section 7 ATA, 1997, appellant was sentenced to suffer R.I for life.

vi).     All the sentences were ordered to run concurrently with the benefit of section 382-B CrPC.

 

2.      Briefly, the facts of the prosecution case are that on 21.06.2012 at 1800 hours, complainant Mehboob Ali lodged FIR alleging therein that his son namely Muhammad Farooq, aged about 10-years studying in class-03 in Noor Muhammad Primary School, situated in his village. On an eventful day, the son of the complainant went to school and at about 1.00 p.m, the children of school came to the complainant and informed that two persons took away his son towards thenorthern side of Gabar Shakh.On receipt of such information, complainant along with his brother Muhammad Yakoob and uncle Ghulam Sarwar and other co-villagers made the search of the body and in the meantime, the complainant also informed the facts of the incident to ASI Akbar Shar through the phone. It is further alleged that during search, complainant party reached at right bank of Ali Bahar Wah near the banana garden of Manzoor Hussain, where police party headed by ASI Ali Akbar Shar also arrived at 1700 hours, when complainant party saw two accused persons, duly armed with TT pistols, who were forcibly taking away the son of complainant and as soon as both accused saw the police party, started firing upon police directly with intention to kill them. In retaliation, police party also started firing and such encounter remained continued for about 05-minutes and during which police party recovered boy and also arrested one accused, namely Niaz Ali Rajper along with a pistol, whereas, other culprit succeeded to escape away by taking the benefit of the banana garden. Thereafter, police party prepared Mashirnama of recovery of the abductee, the arrested accused along with a pistolwas brought at P.S, where above-mentioned two FIRs were lodged.

3.      After an investigation, both cases were challanedand after amalgamation joint trial of both cases was conducted and the combined charge was framed against the appellant, to which he pleaded not guilty and claimed trial. At trial, prosecution led evidenceof following prosecution witnesses:

PW-1 Mehboob Ali Mughal (complainant) at Exh.6. He produced FIR No.80/2012 at Ex.6/A.

PW-2 Muhammad Farooq Mughal (abductee) at Exh.7.

PW-3 Muhammad YakoobMughal at Exh.10.

PW-4 ASI Ghulam Akbar Shar at Exh.11. He produced Mashirnama of the arrest of accused, recovery of abductee & unlicensed pistol, Roznamcha Entry & FIR No.81/2012 at Exh.11/A to 11/C.

PW-5 Abdul Razaque Chohan (Mashir) at Exh.12. He produced Mashirnama of the place of incident and Mashirnama of recovery of boy/abductee at Exh.12/A & 12/B.

PW-6 Inspector Altaf Hussain Burdi (I.O) at Exh.13. He produced order of JIT, letter dated 27.6.2012 addressed to incharge Forensic Division, Larkana along with road certificate and forensic laboratory report dated 5.7.2012 at Exh.13/A to 13/D.

             

4.      After conclusion of the prosecution evidence,statement of the appellant was recorded at Exh.15 as required under section342 Cr. P.C, wherein he denied the prosecution case and claimed his innocence, he further claimed that he has been falsely implicated by the complainant party at the instance of Wadero Mangnejo with whom he has dispute over business of banana. The appellant neitherexamined himself on oath to disprove the prosecution allegations nor led any evidence in his defence.

5.      The learned trial Court after hearing the learned counsel for parties and on assessment of the evidence, convicted and sentenced the appellant as stated above vide judgment dated 31.05.2014, which is impugned by the appellant by way of filing instant Crl. Jail Appeal.

6.      Learned counsel for the appellant argued that the impugned judgment is against the law and facts of the case; that the appellant is innocent and has been falsely implicated in the case by the complainant at the instance of Wadero Mangnejo with whom he is on inimical terms over the business of banana; that all the prosecution witnesses are closely related to each other, therefore, their evidence cannot be relied upon safely; thatthe incident is alleged to have taken place on 21.06.2012, when the boy was kidnapped from Government Primary School, Noor Muhammad, but in the month of June, the school remain closed due to summer vacation, therefore, doubt has been created for acquittal of the appellant; that the case of abduction has not been proved as ransom amount has not been paid to the appellant;  that the recovery of pistol has been foisted upon the appellant; that there are material contradictions in the evidence of prosecution witnesses, which demolished the whole case of prosecution. Lastly, he prayed for acquittal of the appellant.

7.      While rebutting the above contentions, learned Deputy Prosecutor General argued that the appellant is named in the FIR with specific role that he along with his accomplice forcibly abducted child Muhammad Farooq from Government Primary School, Noor Muhammad for the purpose of extorting ransom amount, boy was recovered by the police during encounter; that in the year2012 Sindh Government  had announced summer vacations from 1st July  to 31stAugust,2012. He further contended that the complainant, abductee boy and witnesses including officials have fully implicated the present appellant in their evidence;that the appellant was apprehended by the police at the spot along with crime weapon and empty bullets were also secured from the place of occurrence; that the ocular evidence is supported by the circumstantial evidence in shape of recovery of pistol and empties;that appellant has failed to point out any enmity or mala fide on the part of complainant party so also official witnesses for his false implication in this case. He supported the impugned judgment and opposed the acquittal of the appellant.

8.      We have heard learned counsel for the parties and perused the record.The case of the prosecution is that in the month of June i-e 21.06.2012, the appellant had abducted Muhammad Farooq, a school going boy for ransom when he was attending his school, usually in province of Sindh in the month of June and July, Sindh Government announces summer vacations, as such in order to resolve such controversy,  query was made from learned DPG for the State, who has submitted news clipping of The Express Tribune, which indicates that Educational Institutions in Sindh will have summer vacations from 1st July till 31stAugust 2012 and such Notification was issued by the Government of Sindh,hence contention raised by learned counsel for the appellant that in the month of June school remained closed having no force.On careful perusal of material brought on the record, it appears that the prosecution case depends upon the ocular testimony of Mehboob Ali (complainant), Muhammad Farooq Mughal (abductee),  Muhammad Yakoob Mughal (eyewitness),ASI- Ghulam Akbar Shar and Abdul Razaque (Mashir) supported by I.O Inspector Altaf Hussain. It has come on record that the present appellant is nominated in the FIR with specific role that on 21.06.2012, he along with his unidentified accomplice forcibly abducted child Muhammad Farooq aged about 10 years from Government, Primary School, Noor Muhammad with intention to extort ransom amount. However, said abductee boy was recovered by the police during the encounter and present appellant was also apprehended at the spot along with a pistol, used in the commission of offence. The evidence of complainant and eyewitnesses is supported by PW-4 ASI Ghulam Akbar, who have clearly deposed to have seen and identified the present appellant Niaz Ali at the spot while he along with his accomplice was forcibly taking away the abductee so also at the time of his apprehension at the spot along with unlicensed pistol, which is also supported by the evidence of PW-6 I.O/Inspector Altaf Hussain Burdi, who conducted investigation of the case and prepared Mahsirnama of inspection of place of incident and recovery of abductee. All the witnesses were cross-examined by the defence counsel at length, wherein multiple questions were asked to shatter their confidence and also presence at the scene of offence but could not extract anything from their mouth in favour of the appellant and they remained consistent on material points.

9.          It is evident that abductee Muhammad Farooq narrated complete story, manner of his abduction, demand of ransom of Rs.500,000/- and recovery by police which is apparently natural and confidence inspiring. The abductee has identified appellant Niaz Ali Rajper who remained involved in the commission of this offence. The appellant has not claimed any direct or indirect enmity against the abductee for his false involvement in such serious charge nor any suggestion was made during evidence to show the justification of the appellant is that result of any motivation. Reliance can be placed on case of Muhammad Riaz and others v. Bilqiaz Khan and others(2012 SCMR 721) wherein the Hon'bleSupreme Court of Pakistan has held that:-

“9.   ….these prosecution witness particularly the abductee had neither any enmity with the appellants-convicts nor was so alleged with specific proof to warrant asinference that they had falsely implicated them….”

10.        As for as the contention of learned counsel for the appellant that payment/demand for ransom has not been proved,hence,the case is not made out, is misconceived and having no force. For the sake of convenience relevant provision i.e. section 365-A PPC is reproduced here, which reads as under:-                                                                                                              

“Kidnapping or abducting for extorting property, valuable security, etc. Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, shall be punished with death or imprisonment for life and shall also be liable to forfeiture of property”.

Section 2(n) of Anti-Terrorism Act, 1997 provides as under:-

“2(n) “kidnapping for ransum” means the action of conveying any person from any place, without his consent, or by force compelling or by any deceitful means inducing him, to go from any place, and unlawfully detaining him and demanding or attempting to demand, money, pecuniary or other benefit from him or from another person, as a condition of his release”.

From the bare perusal of section 365-A PPC and section 2(n) ATA, 1997, it is obvious that in order to constitute an offence of kidnapping for ransom, the proof of payment of money or even demand thereof is not sine qua non and said offence also stand constituted if there is an abduction for the purpose of extortion of money or ransom is demanded. PW-2 Muhammad Farooq abductee has deposed that“Both the said accused persons asked me to come with them on the show of weapons otherwise I will be killed and thereafter both the accused persons said me that I am being abducted for the purpose of payment of ransom amount of Rs.500,000/-”.The abductee has assigned the roleof his abduction to appellant Niaz Ali Rajper, detention,and demand of Rs.500,000/-. In our humble view, the ingredients of the offence of kidnapping for ransom are fully satisfied and proved in this case. In this regard, reliance can be placed on the case of Muhammad Riaz and others (supra), wherein the Hon’ble Supreme Court of Pakistan has held that:

“11. A close reading of afore-referred provision would show that essential ingredients to prove the offence are twofold: (i) the act of abduction, (ii) “for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, …. 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”. In Muhammad Amjad v. State (PLD 2003 SC 704), ambit of thisprovision came up for consideration and the Court held as follows:-

“38.Section 365-A P.P.C deals with kidnapping or abduction for extorting property, valuable securities etc. while committing above crime various acts are done i.e. capturing the victim and then detaining him under captivity. Normally thereafter, demand is made for ransom. More often than not these acts are done by more than one person, but in this case everything was done by the appellant himself.  To constitute an offence under this section it is not necessary that the money must have passed on to the culprit, nor it is necessary that the victim must have been released. Abduction/kidnapping may be by force or by deceitful means”.

12. The evidence led proved beyond reasonable doubt that the appellants had abducted the two abductees for the purpose of extorting ransom and had compelled the complainant to comply with the demand for cash/ransom for releasing the abductees”.

11.    There can be no denial of the legally established principles of law that it is always the direct evidence, which is the material to decide a fact (Charge). The failure of direct evidence is always sufficient to hold a criminal charge as not proved but when the direct evidence remains in the field with a test of its being natural and confidence inspiring then requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule be applied inversely in each case. In the instant matter,thecomplainant, abductee,and eyewitnesses have sufficiently explained each and every event of the occurrence in a clear-cut manner including date, time and place of occurrence.

12.    So fardefence plea taken by the appellant that he has falsely been involved in this case by the complainant at the behest of Wadero Mangnejo is concerned, it suffices to say that the appellant has failed to point out any ill-will or animosity with the complainant party and/or police for his false implication in this case and even otherwise, the appellant has declined to examine any person in his defence, therefore, mere assertion of appellant that he has falsely been implicated at the behest of Wader Mangnejo without corroboration of any independent piece of evidence, has no force. Moreover, the mere relationship of the complainant and eyewitnesses would not be enough to discard their testimony. In the matter of capital punishment, the accused would not stand absolved by making a mere allegation of dispute/enmitybut would require bringing on record that there had been such a dispute/enmity which could be believed to have motivated them to involve the innocent person at the cost of the escape of real culprits.

13.    The upshot of the above discussion is that the prosecution has successfully established its case against appellant Niaz Ali Rajper through ocular account furnished by eyewitnesses, which is corroborated by the circumstantial evidence. Learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by the learned trial court while passing the impugned judgment, which in our humble view is based on an appreciation of the evidence and the same does not call for any interference by this court. Thus, the conviction awarded to the appellant by the trial court was maintained and the instant Crl. Jail Appeal filed by the appellant Niaz Ali Rajper being meritless was dismissed by short order dated 26.09.2018 and these are the reasons for our short order.

                                                                                JUDGE

JUDGE-