Cr

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Jail Appeal No: D-76/2008

Present:-

Mr. Muhammad Ather Saeed &

Mr. Irfan Saadat Khan, J.J.

Date of hearing: 31-03-2010

Qaim alias Khikhi: Appellant.

Versus

The State: Respondent.

For the Appellant: Mr. Ghulam Murtaza Korai, Advocate.

For the State: Mr. Shyam Lal,

Assistant Prosecutor General.

J U D G M E N T

Muhammad Ather Saeed, J--- This Criminal Jail Appeal has been filed against the Judgment of the Anti-Terrorism Judge, Sukkur, dated 27-11-2008 in Special Cases Nos. 03 and 04 of 2005 in respect of Crimes Nos. 17 and 18 of 2005 registered with P.S: Mirpur Mathelo for offences under Sections 365-A, 395, 324, 353, 342, 148, 149, PPC, Section 7, ATA, 1997 & Section 13 (d) Arms Ordinance, 1965, wherein the Appellant has been sentenced to undergo life imprisonment under Section 365-A, PPC read with Section 7, ATA, 1997 and also to pay fine of Rs. 1,00,000/- and in default of payment, to undergo R.I for three years more. He was also convicted under Section 395, PPC to undergo R.I for ten years and to pay fine of Rs. 50,000/-, and in default of payment, to undergo R.I for one year more. He was also convicted under Section 324, PPC to undergo R.I for ten years and to pay fine of Rs. 50,000/-, and in default of payment, to undergo R.I for one year more. He was also convicted under Section 353, PPC to undergo R.I for two years, and he was also convicted under Section 13 (d), Arms Ordinance, 1965 to undergo R.I for seven years and to pay fine of Rs. 50,000/-, and in default of payment, to undergo R.I for one year more.

2. We have heard Mr. Ghulam Murtaza Korai, the learned Counsel for Appellant and Mr. Shyam Lal, the learned APG.

3. Mr. Ghulam Murtaza Korai, the learned Counsel for Appellant has pointed out to us that in the deposition of the Complainant and in the FIR, the time of incident has been mentioned as 9-00 p.m., on 15-02-2005, whereas in the charge, the time of incident has been mentioned as 9-00 a.m. He further submitted that according to the Police information, the encounter between Police and the Accused took place at 02-00 p.m., on 16-02-2005, and therefore, there is a great discrepancy between the FIR, the Charge and the Police version of the incident as far as the time is concerned. He further submitted that the star witness, i.e. abductee Mohammad Iqbal had failed to recognize the accused person present in Court and read out the part of the deposition of the Abductee where such a statement was made. He further submitted that there are a number of discrepancies between the depositions of the Complainant, the Police Officers and the Abductee as to the details of the incident, and therefore, according to the learned Counsel, the story is a concocted one. He submitted that the only mention of ransom has been made by the Complainant and the Abductee and that was at the time the abduction was allegedly made, when the accused persons had left the Complainant in the Tractor with directions to arrange for the ransom to get the abductee released. He further submitted that neither the Complainant nor the Abductee has mentioned as to what amount of ransom had been demanded by the Accused persons. In this connection, he relied on a Judgment of the Honourable Supreme Court of Pakistan in the Case of Shahid alias Kaloo versus the State, reported in 2009 SCMR 558, wherein under identical circumstances, the Honourable Supreme Court had converted the offence under Section 365-A, PPC into 365, PPC. The learned Counsel has also argued that the oath under Section 16, ATA, 1997, which is necessary to be taken before the initiation of the proceedings under Anti-Terrorism Act, was not taken. However, he could not produce any proof that such oath was not taken except arguing that it should have been mentioned in the Charge if such oath had been taken.

4. On the basis of the above arguments, the learned Counsel for Appellant stated that the Appellant has served more than five years of his sentence and he will be satisfied if the Judgment is modified to the extent that the sentence is reduced to the one already undergone by the Appellant.

5. Mr. Shyam Lal, the learned APG, has drawn our attention to Page 95 of the Paper Book, wherein it has been mentioned in the Judgment that the compliance of Section 16 of the ATA, 1997 has been made. He further submitted that due to wrongly mentioning the time of incident as 9-00 a.m., in the Charge, the Appellant was misled into not properly planning his defence. He, therefore, frankly conceded that the Judgment cannot be sustained and may be remanded back to the Trial Court for proper framing of Charge and for proper trial on the basis of such Charge, so that the Appellant may be given a proper opportunity of planning his defence.

6. We have examined the Case in the light of the above arguments and we find that the Case has been mishandled from the time the Charge has been framed because of wrong by mentioning the time in the Charge, and therefore, the chances are that the Appellant may have been prevented from properly planning his defence. We have also examined the Judgment of the Honourable Supreme Court in the Case of Shahid quoted supra, and we find that the facts of this Case are on better footings than that Case because in that Case, ransom was demanded from the Complainant after taking him about 1 km. away from the scene of incident; whereas in the present Case, ransom was demanded immediately at the time of incident and only the Appellant and the Abductee have deposed that such ransom had been demanded and as held by the Honourable Supreme Court, there is some doubt as to whether or not any demand of ransom was made from the Complainant and in the Case of such doubt, the benefit must go to the Accused/Appellant.

7. However, despite the discrepancies, one fact which apparently remains undisputed is that the Appellant was apprehended from the scene of the encounter from the same building in which the Abductees were being held and from which they escaped after the encounter so the circumstances, prima facie, connect the Appellant with the Crime. However, due to the fallacies of the Prosecution’s Case and the fact that they have not been able to fully prove the various offences. We are of the considered opinion that the Appellant is liable to reduced sentences for all the offences. We are also of the considered opinion that the Appellant’s conviction under Section 365-A, PPC has to be converted to conviction under Section 365, PPC, i.e. abduction simplicitor.

8. In view of the above discussion, we convert the conviction under Section 365-A, PPC to conviction under Section 365, PPC uphold the other convictions but modify the Impugned Judgment to the extent of reducing the sentences for various offences as under: -

a) As stated above, we convert the Charge under Section 365-A, PPC i.e., for kidnapping for ransom to kidnapping simplicitor, i.e., under Section 365, PPC and sentence the Appellant to undergo R.I for six years. We are also reducing the fine to Rs. 10,000/- and in came of non-payment of the fine, he will further undergo R.I for one month more.

b) We are reducing the sentence under Section 395, PPC to R.I for five years and fine of Rs. 10,000/- and in default thereof, to undergo R.I for one month more.

c) We are reducing the sentence under Section 324, PPC to R.I for five years and fine of Rs. 5,000/- and in default of payment, to undergo R.I for 15 days more.

d) We are reducing the sentence under Section 353, PPC to R.I for one year.

e) We are also reducing the sentence under Section 13 (d), Arms Ordinance, 1965 to R.I for three years and fine or Rs. 10,000/- and in default of payment of fine, to undergo R.I for one month more.

9. All the above sentences shall run concurrently with the benefit of Section 382-B, Cr.P.C and the Appellant shall be entitled to all the remissions which are available to him.

10. This Appeal is disposed of in the above manner.

Judge

Rashid