Full Judgment Text & Judicial Ruling

2026 M L D 758 [Sindh] Before Omar Sial and Dr. Syed Fiaz-ul-Hassan Shah, JJ Nawazish Akbar and others---Applicants Versus The State---Respondent Special Criminal Anti-Terrorism Appeals Nos. 04 and 06 of 2025, decided on 25th August, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 365-A, 392, 506(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for ransom, robbery, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Contradictions in the statements of witnesses---Accused were charged for kidnapping the brother of complainant and extending threats to kill the complainant and his brother---Business dispute was the motive behind the alleged occurrence---Victim deposed that on two different occasions, his wife had paid Rs.35,00,000/- in cash and jewelry having worth of Rs.90,00,000/- on account of ransom amount for the release of the victim---Testimony of brother-in-law of abductee introduced a materially divergent account regarding the alleged payment of ransom---Said witness deposed that he along with his sister went to one of the accused and paid cash amount Rs.3500000/- twice--Due to shortage of money sister of said witness also gave her jewelry to said accused in that regard---Said statement not only presented a different figure of the alleged ransom amount but also failed to corroborate the version of victim, thereby creating inconsistency in the prosecution's narrative---Moreover, brother-in-law of victim had offered no explanation as to why he did not inform the police or any law enforcement authority while proceeding to pay the purported ransom particularly when, according to his own account, the payment was made on two separate occasions---Said omission raised serious doubts about the credibility and reliability of his testimony---Testimony of brother of abductee lacked consistency and clarity regarding the alleged ransom amount and jewelry---During examination-in-chief, said witness did not categorically disclose the exact amount of ransom or mention any payment by selling jewelry thereof---However, in cross-examination, said witness introduced a substantially different version, stating that an amount ranging from Rs.70 to 80 lacs along with family jewelry was received by the accused from his bhabhi and her brother---Said witness further admitted that his statement under S.161, Cr.P.C., recorded on 27.12.2007, did not contain any reference to the return of his brother or the payment of ransom---Witness added that the ransom demand was made to his bhabhi and her brother, but clarified that no ransom amount was paid in his presence---Such contradiction in his statement coupled with the absence of such details in his earlier recorded statement, casted doubt on the credibility and reliability of his deposition---Upon meticulous examination of the evidence adduced by the prosecution, particularly the depositions of victim, brother-in-law and brother of victim, it was evident that the quantum of ransom amount alleged to have been demanded and paid was inconsistent and at variance across the testimonies---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 365-A, 392, 506(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Kidnapping or abducting for ransom, robbery, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Withholding material witness---Effect---Adverse presumption---Accused were charged for kidnapping the brother of complainant and extending threats to kill the complainant and his brother---Significant deficiency in the prosecution's case was the consistent claim by its witnesses that the ransom amount was paid by the wife of the victim---Yet, the prosecution failed to produce wife of victim as a witness before the Trial Court to substantiate that claim or to establish the essential ingredients required under S.365-A, P.P.C---In case of non-production of witness by the prosecution during the trial gave rise to an adverse inference that had she been entered the witness-box he would have deposed against the prosecution---Said omission left no room for the Court but to draw an adverse inference under Art. 129(g) of the Qanun-e-Shahadat, 1984, that in case wife of the victim appeared, she would not confirm the case of prosecution---Appeal against conviction was allowed, in circumstances. Nadeem alias Kala v. The State 2018 SCMR 153; Haroon Shafique v. The State and others 2018 SCMR 2118; Lal Khan v. The State 2006 SCMR 1846; Riaz Ahmed v. The State 2010 SCMR 846; Abdul Qadeer v. The State 2024 SCMR 1146 and Riasat AU v. The State 2024 SCMR 1224 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 365-A, 392, 506(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for ransom, robbery, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Kidnapping for ransom, proof of---Accused were charged for kidnapping the brother of complainant and extending threats to kill the complainant and his brother---Prosecution had failed to bring on record any memorandum of captivity place or illegal confinement or its identification by any of the prosecution witness or even exact duration of such captivity when as per claim of prosecution, the victim was kept in confinement for six to seven months---Undoubtedly, both the essentials of S.365-A, P.P.C, i.e. demand or ransom and illegal confinement or captivity had no reference nor any justification for its non-disclosure was given by prosecution---For an offence under S.365-A, P.P.C, kidnapping for ransom, the essential ingredients were: i) the act of kidnapping or illegal confinement, and (ii) a demand or extortionate purpose for ransom, property, or compliance---Absent a ransom demand or failure to prove, the offence under S.365-A, P.P.C could not be established---Prosecution had conspicuously failed to provide any cogent explanation or lawful justification for the omission of any reference to the demand or payment of ransom in the FIR or in the statements recorded during the investigation or before Court by the complainant---Appeal against conviction was allowed, in circumstances. Muhammad Nabi and others v. The State 2006 SCMR 1230; Sh. Muhammad Amjad v. The State PLD 2003 SC 704 and Junaid Rehman and others v. The State PLD 2011 SC 1135 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 365-A, 392, 506(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for ransom, robbery, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Delay of 18-months in lodging the FIR---Consequential---Accused were charged for kidnapping the brother of complainant and extending threats to kill the complainant and his brother---As per contents of the FIR, the victim was abducted on 19.06.2006 at about 1200 hours and the FIR was registered on 08.12.2007 after considerably delay of 18 months---Prosecution had failed to give any plausible explanation or valid justification about such delay and possibility of due deliberation and improvement could not be ruled out and such delayed FIR on the part of the complainant showed dishonesty and that it was lodged with deliberation and consultation---Appeal against conviction was allowed, in circumstances. Amir Muhammad Khan v. The State 2023 SCMR 566 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 365-A, 392, 506(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting any person with the intent to secretly and wrongfully confine, robbery, criminal intimidation, common intention, act of terrorism---Appreciation of evidence--- Delay of 14 years in recording the statements of material witnesses by police---Accused were charged for kidnapping the brother of complainant and extending threats to kill the complainant and his brother---In the present case, the statement of material prosecution witnesses recorded with a delay as much as of 14 years was fatal to the prosecution case---Appeal against conviction was allowed, in circumstances. Muhammad Asif v. The State 2017 SCMR 486 rel. (f) Criminal trial--- ----Benefit of doubt---Principle---If there is a circumstance which creats reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. Tajamal Hussain v. The State 2022 SCMR 1567; Sajjad Hussain v. The State 2022 SCMR 1540; Abdul Ghafoor v. The State 2022 SCMR 1527; Kashif Ali v. The State 2022 SCMR 1515; Muhammad Ashraf v. The State 2022 SCMR 1328; Khalid Mehmood v. The State 2022 SCMR 1148; Muhammad Sami Ullah v. The State 2022 SCMR 998; Bashir Muhammad Khan v. The State 2022 SCMR 986; The State v. Ahmed Omer Sheikh 2021 SCMR 873; Najaf Ali Shah v. The State 2021 SCMR 736; Muhammad Imran v. The State 2020 SCMR 857; Abdul Jabbar v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State PLD 2019 64 SC; Muhammad Mansha v. The State 2018 SCMR 772; Hashim Qasim v. The State 2017 SCMR 986; Muhammad Zaman v. The State 2014 SCMR 749; Khalid Mehmood v. The State 2011 SCMR 664; Muhammad Akram v. The State 2009 SCMR 230; Faheem Ahmed Farooqui v. The State 2008 SCMR 1572; Ghulam Qadir v. The State 2008 SCMR 1221; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel. Raj Ali Wahid Kunwar along with Ms. Sana Saad and Kashif Khan Tanoli for Appellants (in Appeal No. 04 of 2025). Abdul Baqi Lone along with Ms. Sania Khalique for Appellant (in Appeal No. 06 of 2025). Muhammad Fahad along with Abdul Samee for the Complainant. Muhammad Iqbal Awan Addl. Prosecutor General, Sindh for the State. Date of hearing: 12th August, 2025. Judgment Dr. Syed Fiaz-ul-Hassan Shah, J.--- By this common order, we intend to dispose of both the Spl. Crl. Anti-Terrorism Appeals filed by the appellants, who were aggrieved and dissatisfied with the Judgment dated 31.12.2024 passed by learned Judge, Anti-Terrorism Court No.XVI, Karachi [Trial Court] in New Special Case No.10/2022 under FIR No.280/2007 registered under sections 365-A, 392, 506-B, 34, P.P.C read with Section 7 ATA, 1997 of PS Al-Falah, Karachi, whereby the appellants were convicted and sentenced under Section 265-H(2) Cr.P.C, as under:- a) For offence of abduction for ransom, punishable under section 365-A read with 34 P.P.C both the appellants Naveed Hafeez son of Muhammad Hafeez Khan and Nawazish Akbar son of Meer Akbar are sentenced to imprisonment for life and their properties are ordered to be forfeited to the Government. b) For the offence of wrongfully confining the abductee Sher Bahadur for a period of 5 to 6 months for ransom amount and for transfer of shares/property, and committing an offence punishable under section 347 read with 34, P.P.C both the appellants are awarded imprisonment for three years each and to pay fine of Rs.100,000 (Rupees one lac) each. c) For the offence of kidnapping of the abductee Sher Bahadur for ransom, and committing an offence punishable under section 7(e) of the Anti-Terrorism Act, 1997, both the appellants are sentenced to imprisonment for life and their properties are ordered to be forfeited to the Government. d) For the offence of robbery of car AJD-211 Honda of complainant party (at the time of kidnapping) both the accused found guilty for committing an offence punishable under section 397 P.P.C are sentenced to imprisonment for seven years. e) All the property of both the accused persons as defined in section 02(p)(a) of ATA 1997 are also directed to be forfeited as provided under section 7 (2) of ATA 1997. f) Benefit of Section 382-B, Cr.P.C is, however, extended to the appellants and the sentences awarded to them are ordered to run concurrently. 2. Brief facts of the case are that on 08.12.2007 at about 1840 hours, the complainant Dil Nawaz lodged the instant FIR stating that his brothers namely Sher Bahadur the owner of Ocean Construction Company, had admitted accused Nawazish Akbar (Rtd Major) as a 5% partner in his company. Later on, differences arose between them. Eventually, they reached a compromise, in which the accused, Nawazish Akbar, provided a written condonation (Iqrarnama) with an assurance to settle the outstanding amounts. Despite this, he failed to honour the agreement and allegedly began threatening Sher Bahadur with dire consequences. On 19.06.2006, when the complainant and his brothers including Sher Bahadur were returning from Malir Court, Karachi, in their Honda VTI car No.AJD-211; at around 12:00 noon, the accused Nawazish Akbar, Haji Zaman, Amir Khan, Fareed Ahmed, Naveed, and Nadeem came there in jeeps, intercepted them and they pulled them out from their car and took his brother Sher Bahadur along with the above car, stating that they had financial disputes with him and would release him after resolving the issues (Hisab Kitab). They also threatened to kill the complainant and his brother if they attempted to follow them. Subsequently, their mother moved multiple applications to various stakeholders including superior courts regarding the incident of kidnapping. The kidnappers continued to issue threats to them over the phone. Subsequently, on the directions of the court, the FIR was lodged against the accused persons for the above crimes, accordingly. 3. After completing the investigation, charge sheet was submitted against the Appellants. The trial Court framed the Charge against the Appellants as Exh.4 to which they pleaded not guilty and claimed trial vide their pleas as Exs.4/A to Ex.4/B. At the trial, the prosecution has examined complainant PW-1 Sher Bahadur Khan, a businessman at Ex.5, who produced memorandum and relevant certificates at Exs-05/P-01 to P-18, NOC from Gawadar Development Authority at Exs-05/P-19 to P-21, FIR No.489/2005 of PS Ferozabad at Ex-05/P-22, Iqrarnama of accused at Ex-05/P-23, letter and application for FIR No.284/2016 at Ex-05/P-24 to P-27, newspapers cutting at Exs-05/P-28 to P-29, FIR of the instant crime at Ex-05/P-30, bank statement at Exs-05/P-31 to P-39, memo. of Suit No.1605/2007 at Exs-05/P-40 to P-207, notice published in Daily Intakhab at Exs-05/P-208, petition filed in year 2008 at Ex-05/P-209 to P-283, order of High Court dated 17.04.2014 at Exs-05/P-284 to P-285, copy of CP No.2837/2014 at Exs-05/1-286 to P-341, cutting of newspapers for accused at Exs-05/P-342, agreement of partnership of Nawazish (Accused) and his wife at Ex-05/P-343 to P-354, mutation of record for land transfer as Exs-05/P-355 to P-358, bank statement regarding encashment of fake cheque at Ex-05/P-359, civil suit for cancellation of agreement at Exs-05/P-360 to P-568, CP for order for transfer of case to ATC at Ex-05/P-569 to P-719, letter to Incharge Security Exchange, SECP, Karachi for verification of the documents of the company at Exs-05/P-720 to P-727, photographs of place of abduction at Exs-05/P-729 to P-732. PW-02 Dil Nawaz Khattak (brother of abductee) at Ex-07 who produced applications to different stackholders with TCS receipts at Ex-07/P-01 (20 leafs), FIR No.280/2007 at Ex-07/P-02, memo. of inspection of place of abduction/ occurrence at Ex-07/P-03. PW-03 Nadeem Khan (Rickshaw driver/brother in law of abductee) at Ex-08, who produced memo. of place of occurrence (payment of ransom amount) at Ex-08/P-01 and photographs at Ex-08/P-02. PW-04 Inspector Rana Waqeel Ahmed at Ex-09, who produced departure entry of place of occurrence at Ex-09/P-01. PW-05 Shahzad Khan, businessman/brother of abductee at Ex-10. PW-06 Inspector Amjad Yameen at Ex-12, who produced entry of recording statement of abductee at Ex-12/P-01, order of investigation at Ex-12/P-02, entry of adding section of ATA at Ex-12/P-03, entry of departure at Ex-12/P-04, memo. of arrest of accused Naveed Hafeez at Ex-12/P-05 and misc. entries at Ex-12/P-06 to P-09. APG for the State submitted an application to give up PW Umer Zada at Ex.11 and thereafter the prosecution closed its side vide statement at Ex.13. The Appellants have recorded statement being accused persons under Section 342, Cr.P.C. at Exs.14 and 15. Both the Appellants/Accused have denied the allegation levelled against them and stated to be innocent and prayed for justice. However, neither the appellants examined themselves on oath nor led any evidence in their defence. The learned trial Court, after hearing the parties and appraisal of the evidence, convicted and sentenced both the appellants vide Judgment dated 31.12.2024. 4. We have heard the learned counsel for the appellants, learned counsel for the complainant as well as the learned Addl. P.G. and with their assistance meticulously perused the record. 5. The pivotal legal issue for determination in the present appeal revolves around the validity of the conviction awarded under Section 7(e) of the Anti-Terrorism Act, 1997 (ATA) by the learned trial court, and whether such conviction is sustainable in law. It is imperative to examine whether the essential ingredients of Section 365-A of the Pakistan Penal Code, 1860 (P.P.C) have been duly satisfied to warrant a simultaneous conviction under both statutes. Upon careful scrutiny of the evidence and record, it is to be assessed whether the trial court was legally justified in convicting and sentencing the Appellants under two distinct legal provisions of different statutes based on the same set of facts, circumstances and evidence. The determination of this question requires a harmonious interpretation of the legislative intent behind both statutes, the nature of the offence committed, material brought before the trial Court during evidence and the applicability of the ATA in light of the facts established during trial. 6. From the perusal of the record, it transpires that the Appellants, the complainant, and the victim (PW-1) were known to each other and had prior business dealings. The testimony of PW-1 further reveals that the Appellants were engaged as his servants. In adjudicating the present criminal appeals, we confine our consideration strictly to the material on record relevant to the alleged criminal intent, acts, and the commission of the offence. We consciously refrain from making any observations on the inter se affairs of the parties which are the subject matter of independent civil litigation, reportedly pending adjudication before the competent civil forum. 7. We have also noticed that learned Anti-Terrorism Court has passed the sentence against abduction for ransom under Section 365-A, P.P.C, 1860 as well as under Section 7(e) of the ATA, 1997 in absence of ingredients as required by Section 6 of ATA, 1997, which is appropriate to reproduce hereunder: 6. Terrorism. (1) In this Act, -terrorism? means the use or threat of action where: (a) the action falls with the meaning of subsection (2), and (b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect [or a foreign government or population or an international organization] or create a sense of fear or insecurity in society; or (c) the use of threat is made for the purpose of advancing a religious, sectarian or ethnic cause [or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies]. (2) An action shall fall within the meaning of subsection (1), if it: (a) (b) (c) (d) (e) involves kidnapping for ransom, hostage-taking or hijacking 8. Upon a plain and harmonious interpretation of Section 6 of the Anti-Terrorism Act, 1997, it is evident that subsection (2)(e) is not self-executing and must be read in conjunction with the foundational elements set out under Section 6(1). The legislative intent embedded in Section 6(1) ATA is to define the foundational elements or qualify as a "terrorist act," when it is committed with the specific intent or design to terrorize, intimidate, or coerce the public, state institutions, or sections of society and only where those elements are satisfied the provisions of Section 6(2)(e) for kidnapping for ransom can be invoked. Mere commission of a scheduled offence such as Section 365-A, P.P.C criminalizing kidnapping for ransom does not, by itself, attract the penal consequences under Section 6(2)(e) of the ATA unless the requisite mens rea defined in Section 6(1) is clearly established and therefore, the provision of section 7(2)(e) cannot be enforced. In light of the foregoing analysis, the invocation of the Anti-Terrorism Act, 1997, particularly Section 7(e), is contingent upon the act qualifying as a terrorist offence under Section 6(1). The Schedule to the ATA serves only to confer jurisdiction upon the Anti-Terrorism Courts but does not obviate the statutory requirement of proving intent or design to terrorize. In the present case, there is no cogent evidence to demonstrate that the offence was committed with the objective of spreading terror or coercion in the manner contemplated by Section 6(1). Furthermore, the dispute appears to be rooted in commercial dealings between the parties, which have already been subjected to civil litigation. Therefore, the attempt to prosecute the appellants under the ATA framework is legally misconceived and unsupported by the factual matrix. Accordingly, sentencing under Section 7(e) ATA is not sustainable in law and cannot be upheld. In Ghulam Hussain v. State (PLD 2020 SC 61), the larger bench of Hon ble Supreme Court held at paragraph No.13 that: - For the purpose of further clarity on this issue it is explained for the benefit of all concerned that the cases of the offences specified in entry No. 4 of the Third Schedule to the Anti-Terrorism Act, 1997 are cases of those heinous offences which do not per se constitute the offence of terrorism but such cases are to be tried by an Anti-Terrorism Court because of their inclusion in the Third Schedule. It is also clarified that in such cases of heinous offences mentioned in entry No. 4 of the said Schedule an Anti-Terrorism Court can pass a punishment for the said offence and not for committing the offence of terrorism. It may be pertinent to mention here that the offence of abduction or kidnapping for ransom under section 365-A, P.P.C. is included in entry No. 4 of the Third Schedule and kidnapping for ransom is also one of the actions specified in section 7(e) of the Anti-Terrorism Act, 1997. Abduction or kidnapping for ransom is a heinous offence but the scheme of the Anti-Terrorism Act, 1997 shows that an ordinary case of abduction or kidnapping for ransom under section 365 A, P.P.C. is merely triable by an Anti-Terrorism Court if kidnapping for ransom is committed with the design or purpose mentioned in clause (b) or (c) of subsection (1) of section 6 of the Anti-Terrorism Act, 1997 then such offence amounts to terrorism attracting section 7(e) of that Act. In the former case the convicted person is to be convicted and sentenced only for the offence under section 365-A, P.P.C. whereas in the latter case the convicted person is to be convicted both for the offence under section 365-A, P.P.C. as well as for the offence under section 7(e) of the Anti-Terrorism Act, 1997 . (Emphasis added) 9. Another dilemma what we find is that the trial Court has convicted the Appellants under ATA and P.P.C. It is a settled principle of constitutional and criminal jurisprudence that no individual shall be prosecuted or punished more than once for the same offence. This protection is firmly embedded in Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973 which guarantees that no person shall be prosecuted or punished for the same offence more than once. This constitutional safeguard is reinforced by Section 403 of the Code of Criminal Procedure, 1898 which bars retrial for the same offence or upon the same facts once a person has been acquitted or convicted. Additionally, Section 26 of the General Clauses Act, 1897, provides that although a single act may constitute offences under multiple enactments, the offender may be prosecuted under any one of those enactments but shall not be liable to be punished twice for the same offence. 10. We have already observed that the offence of kidnapping for ransom under Section 365-A, P.P.C is a schedule offence for the purposes of jurisdiction and exclusively triable by the Anti-Terrorism Court which read as under: 365-A. Kidnapping or abduction 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…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

• Browse all judgments from Sindh High Court
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant