IN THE HIGH COURT OF SINDH, KARACHI

Sp. Cr. A.T.A. No. 10 of 2007.

PRESENT:

MR. JUSTICE GULZAR AHMED &

MR. JUSTICE IRFAN SAADAT KHAN

J U D G M E N T

Date of hearing : 26 January 2010.

Appellants through : Mr. Raza Hashmi, Advocate.

Respondent through : Mr. Muhammad Iqbal Awan, A.P.G.

GULZAR AHMED, J:- By this appeal Appellants Qazi Hanifullah and Qazi Farhan @ Qazi Farhanullah have challenged the judgment dated 05^th May 2007 passed by the learned Judge, Anti-Terrorism Court No.1, Karachi by which both the appellants were convicted and sentenced to imprisonment for life and forfeiture of properties to the extent of Rs.500,000/- (Rupees five lacs) each for offence under section 7(e) of the Anti-Terrorism Act, 1997 with benefit of section 382-B, Cr.P.C.

The allegations against appellant Qazi Hanifullah is that he alongwith other co-accused had abducted Hamid Umer Sameen from Karachi and took him near Peshawar, who was later-on recovered from the Hujra of co-accused Fazal Rabbi, while the case against the appellant Qazi Farhan is that when the vehicle taking the abductee from Karachi to near Peshawar met with an accident and the abductee sustained injuries, he (Qazi Farhan) withdrew Rs.20,500/- from an ATM machine by using the card of the abductee Hamid Umar Sameen. Except for this allegation there is no other allegation against appellant Qazi Farhan.

Learned counsel for the appellants has read the evidence of nine PWs, including that of the abductee and his father. On reading of such evidence it has transpired that the case against appellant Qazi Hanifullah is at best that of abduction simplicitor and not abduction for ransom as neither the abductee nor his father or any one of the prosecution witnesses has stated in evidence that any demand for ransom was made by the accused involved in the abduction of Hamid Umer Sameen. Learned APG also frankly concedes to such position and states that there is no evidence on the record which may establish the fact that any demand for ransom was made by the accused for the release of the abductee.

In this view of the matter it becomes apparent that the case against appellant Qazi Hanifullah would be that of under Section 365 PPC which is triable by the Sessions Judge and provisions of Anti-Terrorism Act, 1997 will not be attracted. Such legal position is also conceded by the learned APG. Counsel for the appellants states that conviction and sentence of the appellant Qazi Hanifullah be converted to that of 365 PPC and the impugned judgment may be modified accordingly.

As regards the appellant Qazi Farhanullah, the learned counsel for the appellants states that he has no role whatsoever in the abduction of abductee Hamid Umer Sameen and that the only allegation against him is to the effect that he withdrew Rs.20,500/- from ATM machine by using the ATM card of the abductee and it is not established that such withdrawal of amount was made by way of extortion, therefore this appellant is liable to be acquitted and impugned judgment in respect of his be set aside.

Learned APG states that the abductee has stated nothing in his evidence against this appellant about extortion of money from him nor has implicated him in the crime of abduction.

Consequently, we are satisfied that the case of appellant Qazi Hanifullah falls within the ambit of Section 365 PPC of simplicitor abduction and not that of abduction for ransom.

In view of the above observation, we convert the conviction and sentence of Qazi Hanifullah to that of seven years R.I. under section 365 PPC and fine of Rs. 50,000/- and in case of default in payment of fine, further R.I. of one year, with benefit of section 382-B Cr.P.C. and remissions as admissible under law while set aside the impugned judgment in respect of the appellant Qazi Farhan and acquit him and direct that he be released forthwith if not required in any other case. The appeal in the above terms stands disposed off.

J U D G E

Aamir/PS