THE HIGH COURT OF SINDH AT KARACHI

Special Anti-Terrorism Acquittal Appeal No.28 of 2006

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Aftab Ahmed Gorar

J U D G M E N T

Appellant: The State through Mr. Mr. Muhammad Iqbal Awan, Assistant Advocate General Sindh

Respondent: Muhammad Saleem son of Muhammad Hanif through Mr. Fazl-ur-Rehman Awan, Advocate

Date of Hearing: 22.03.2016

Date of Announcement: 31.03.2016

NAIMATULLAH PHULPOTO, J.- Accused Shoukat Ali alias Baba, Muhammad Saleem, Muhammad Shahzad alias Steel and Mujataba alias Majoo were tried by learned Judge, Anti-Terrorism Court No.V, Karachi Division Karachi in Special Case No.11/2006, “State v. Shoukat Ali and Others” in Crime No.88/2006 under section 365-A, PPC read with Section 7 of the Anti-Terrorism Act, 1997 of Police Station Soldier Bazar, Karachi. After full dressed trial vide judgment dated 16.8.2006 accused Mujtaba Hussain alias Majoo son of Ghulam Ali, Muhammad Saleem son of Muhammad Hanif and Muhammad Shahzad alias Steel son of Allah Rakha were acquitted by the trial Court whereas Shoukat Ali was convicted under section 365-A PPC read with Section 7(e) of the Anti-Terrorism Act, 1997 and sentenced to death. Learned trial Court made reference to this Court for confirmation of death sentence awarded to accused Shoukat Ali. State filed appeal against acquittal of accused Mujtaba Hussain alias Majoo son of Ghulam Ali, Muhammad Saleem son of Muhammad Hanif and Muhammad Shahzad alias Steel son of Allah Rakha. Notices were issued to acquitted accused. Accused Muhammad Saleem is being represented by Mr. Fazl-ur-Rehman, advocate whereas process was issued against acquitted accused Muhammad Shahzad alias Steel and Mujataba alias Majoo but the same always returned unserved as acquitted accused were concealing themselves. NBWs were also issued against them which was also returned unexecuted. Proceedings under sections 87 and 88, Cr.PC were conducted against them.

2. Brief facts of the prosecution case as disclosed in the F.I.R. are that on 24.04.2006 at 0855 hours, the brother of the complainant namely Shabbir Ali left home for his office situated at Gillani Centre, Tower Karachi, but he did not reach the office nor returned home in the evening. The family members of PW Shabbir Ali started search for him but without any clue. On 25.04.2006 at 12:15 p.m. uncle of complainant PW Mohsin Raza received a call on his mobile phone No.0303-7286716 from Cell No.0300-9200715 made by PW Shabbir Ali who informed PW Mohsin Raza that he has been kidnapped for ransom and demand of Rs.20,00,000/- has been made for his release. It is further stated that one of the accused persons talked to PW Mohsin Raza on the cell and made demand of ransom of Rs.20,00,000/- for the release of Shabbir Ali. It is further stated that Mohsin Raza, the uncle of Shabbir Ali replied to the caller that it was huge amount. Caller issued threats that in case of non-payment of ransom dead body of Shabbir Ali would be received by his relatives. Complainant Murtaza Ali, brother of Shabbir Ali, went to the police station and lodged F.I.R. of the incident on 26.04.2006 at 0235 hours. It was recorded vide Crime No.88/2006 under section 365-A, PPC.

3. During investigation, police started search for the recovery of the abductee. Accused contacted with uncle of Shabbir Ali for ransom. Finally, it was agreed, that complainant party would pay cash of Rs.4,00,000/- as ransom for the release of Shabbir Ali. On 27.04.2006, the accused persons after receipt of ransom of Rs.4,00,000/- released Shabbir Ali and he returned home. Investigation Officer recorded statement of Shabbir Ali under section 161 Cr.PC and prepared memo of the place of payment of ransom pointed out by PW Mohsin Raza. Such mashirnama was prepared in presence of mashirs. On 08.05.2006, accused Shoukat and Mujtaba were arrested by the police at Young Husband road near Allah Rakha Park, Kharadar, Karachi on the pointation of abductee Shabbir Ali. Police secured two TT pistols from their possession for which they had no licenses. Mashirnama of arrest and recovery was prepared in presence of mashirs. Police lodged separate two FIRs under section 13(d) of the Arms Ordinance, 1965, against both the accused on behalf of State. Accused Shahzad and Saleem were also arrested on the pointation of appellant Shoukat Ali. Such mashirnama was also prepared in presence of mashirs. during investigation abductee Shabbir identified Car No.AJX-213 Suzuki Alto and Car No.AFT-348 Toyota Corolla, such identification memo of cars was prepared. One the conclusion of usual investigation, I.O. submitted challan against the accused under section 365-A read with section 7 of the Anti-Terrorism Act, 1997 in the Court of learned Administrative Judge, Anti-Terrorism Court, Karachi. Thereafter, case was made over to learned Judge, Anti-Terrorism Court No.V, Karachi for disposal according to law.

4. Charge against accused Shoukat Ali, Mujtaba Hussain, Muhammad Saleem and Muhammad Shahzad was framed at Exh-3 under section 365-A/34 PPC and 7(e) of the Anti-Terrorism Act, 1997. Accused met the charge with denial and claimed to be tried.

5. At the trial, prosecution examined PW-1 Murtaza Ali at Ex-8, who produced F.I.R. Exh-9, PW-2 Muhammad Moin Khan at Ex-10, who produced memo of place of confinement Exh-11, PW-3 PC Fareed Ahmed at Ex-12, who produced memo of audio cassette and mobile telephone data at Exh-13, data of mobile phone at Exh-14, memo of arrest of accused Shahzad at Exh-15, memo of arrest of accused Muhammad Slaeem at Ex-16, PW-4 Naseem at Ex-17, PW-5 Salman Siddiq at Ex-18, who produced carbon copies of Sada Bahar Rent A Car Ex.19 and 20, seizure memo of vehicles Exh-21, PW-6 Mohsin Raza at Ex-22, who produced memo of place of payment of ransom Exh-23 and notice from AVCC for identification Exh-24, PW-7 Ms. Shazia Asif, Civil Judge and Judicial Magistrate East at Ex-25, who produced copy of application for holding identification parade at Exh-26, objection of advocate for accused Shoukat at Exh-27, statement of IO about date of arrest of accused at Exh-28, memo of identification parade at Exh.29, PW-8 S. Salman Ahmed at Ex-31, who produced copy of application of I.O. for cassette and mobile data Exh.32, PW-9 Shabbir Ali at Ex-33, who produced copy of note of Rs.5 at Exh.34, memo of place of abduction Exh.35, memo of place of release at Exh.36, memo of arrest of accused and recovery of weapons at Exh.37, notice for identification parade at Exh.38, memo of identification of cars used in Crime at Exh.39, PW-10 Tahir Naseer at Ex-40, I.O., who produced order entrusting investigation to him by SSP Investigation-I, Karachi at Exh-41, cassettes recording Exh-42, notices for identification served upon accused at Exh-43, 44 and 45, PW-11 SIP Khan Nawaz at Ex-46, statement of prosecutor for closing side at Exh-47, CW Atiqur Rahman, who produced letter at Exh-C/1 and data of mobile phone 0300-9200715 at Exh-C/2.

6. Statements of accused (1) Mujtaba Hussain, (2) Muhammad Shahzad, (3) Muhammad Saleem and (4) Shoukat Ali under section 342 Cr.PC were recorded at Exh-48 to 51.

7. On the conclusion of the prosecution evidence, trial Court after assessment of the evidence convicted Shoukat Ali as stated above and acquitted co-accused by judgment dated 16.08.2006.

8. Shoukat Ali alias Baba filed Special Anti-Terrorism Appeal No.D-26/2006 before this Court. Vide judgment dated 13.11.2013 this Court converted death sentence awarded to Shoukat Ali to imprisonment for life. Mr. Fazul Rehman, who had appeared for appellant Shoukat Ali stated at bar that judgment passed by this Court has not been challenged before Hon’able Supreme Court. Same statement has been given by learned APG.

9. In order to ascertain whether trial Court has appreciated the evidence in respect of appellant Shoukat Ali in accordance with settled principles of law, we have scanned the entire evidence brought on record by the prosecution.

10. Complainant Murtaza Ali has stated that abductee Shabbir Ali is his brother. He is in private service, run by his uncle PW Mohsin Raza and his office is situated at Jillani Centre Tower, Karachi. On 24.04.2006, his brother Shabbir Ali left house at 09:00 a.m. but did not reach office nor returned home till night. Thereafter, complainant started search for his brother through the relatives and friends but without any clue. On 25.04.2006 at 12:15 p.m. his uncle Mohsin Raza received a call from his brother Shabbir and informed PW Mohsin Raza that he has been kidnapped for ransom and demand of Rs.20,00,000/- has been made. Complainant has stated that a number of calls were received from the accused for ransom and threat was issued that in case of non-payment,

abductee Shabbir Ali would be murdered. On 26.04.2006 at 02:00 am he went to police station and lodged F.I.R. regarding kidnapping for ransom of his brother Shabbir Ali. He has produced F.I.R. as Exh.9. In the cross-examination to advocate for accused Shoukat Ali complainant has replied that he was not present when his uncle received a mobile call from culprits for demand of the ransom. Complainant has denied the suggestion that Shabbir Ali was never kidnapped.

11. PW-6 Mohsin Raza has deposed that he runs an agency situated at Jillani Centre, Tower Karachi. His nephew Shabbir Ali and some other persons work with him in his office. On 24.04.2006, his nephew Shabbir Ali did not reach to his office till evening and he went to the home and enquired about Shabbir Ali. He was informed that Shabbir had left the house for his office at morning time and did not return back thereafter he has deposed that search for Shabbir Ali was made, on 25.04.2006 at 12:15 p.m. he received call on his mobile phone No.0303-7286716 from Cell No.0300-9200715 from his nephew Shabbir Ali who informed him that he has been kidnapped for ransom and culprits have made demand of Rs.20,00,000/-. PW Mohsin Raza has stated that one of the culprits also talked to him on the mobile for ransom and he replied him that it was huge amount. On 26.04.2006, Rs.4,00,000/- were to be paid as ransom for the release of Shabbir Ali. Accused directed PW Mohsin Raza to bring the ransom amount at Taj Peshawari Hotel, Kharadar. He went to the said hotel by taking ransom amount. Accused gave him a call on cell and asked him to reach at Moosa Lane and put the ransom there. After sometime again call was received by PW Mohsin Raza that Agencies were watching them, they would not be able to pick up the ransom amount. Thereafter, bag of ransom was taken by Mohsin Raza from there and kept waiting for another call. He received a call and he was directed by the culprits to reach at Burns Road. He went there with ransom amount. Accused persons called him and said to reach at Dilpasand Sweets, M.A. Jinnah Road, Karachi at footpath and put the ransom amount in the iron enclosure around a tree. PW Mohsin Raza did what he was asked. After keeping the ransom, he sat on a chair at Dilpasand Sweets. After some time, a boy wearing pant-shirt appeared and took the bag of ransom of Rs.4,00,000/-, crossed the road and went away. Thereafter, call was made to Mohsin Raza made by the accused persons that ransom has been received by them and Shabbir Ali would soon return home. He has further stated that his nephew Shabbir Ali returned home. He has further stated that he had pointed out the place to SIP Tahir Naseer from where appellant Shoukat Ali had taken ransom near Dilpasand Sweets. Such mashirnama was prepared in present of mashirs. He produced it as Exh-23. His statement was also recorded. He informed CPLC about the kidnapping of his nephew Shabbir Ali for ransom. He has further stated that he had handed over cassette containing conversation with the accused persons to the CPLC on 27.04.2006. PW Mohsin Raza clearly stated that accused Shoukat Ali had taken away bag containing ransom amount of Rs.4,00,000/- from iron enclosure situated at M.A. Jinnah Road, opposite Dilpasand Sweets. He has further stated that on 11.05.2006 he received notice that identification parade of accused would be held by the Magistrate on 13.05.2006. He went to the said Court where identification parade was held before Judicial Magistrate. Twelve persons were standing in a queue including appellant Shoukat Ali. He picked up accused Shoukat Ali in the identification parade and could not identify the remaining culprits. In the cross-examination to learned counsel for the appellant Shoukat Ali, he replied that he did not go to AVCC on 25.04.2006. He has replied that his statement was recorded on 27.04.2006. He has admitted that he is not voice expert. Complainant has denied the suggestion that he was deposing falsely against the accused Shoukat.

12. PW Shabbir Ali is star witness of the case. He has stated that he is working in a shipping company. His office is situated at Jillani Tower, Karachi. Company is run by his uncle Mohsin Raza. On 24.04.2006 as usual he left his house for duty and reached at Soldier Bazar near bus stop No.2 at about 09:05 a.m. he received a telephonic call from his office, after finishing the call of his office colleague, he saw that one Alto Car stopped near him in which four accused persons were sitting. Out of them, two culprits alighted from the car and one of them had a pistol and introduced himself official of CIA and asked Shabbir Ali to accompany them to CIA office as he has been called by Incharge of CIA. Forcibly he was made to sit on the rate seat of the car and both the accused persons sat with him on rare seat and drove the car fast towards Gurumandar. Culprits directed him to bow his head and keep quiet. They snatched purse, mobile phone and keys. Car was stopped after half an hour journey in front of a house. All the culprits alighted from the car. Shabbir Ali was also directed to get down from the car and he was taken to the upper storey of the house where there was store type room where a lady and child were present. Shabbir Ali was made to sit in the said room. After sometime, one of the accused informed him that he has been kidnapped for ransom. Shabbir Ali replied to the culprits that his family could arrange only Rs.1,00,000/- then he was mentally tortured. Two accused persons guarded over him at night time in the same house. On 25.04.2006 remaining two accused persons namely Mujtaba and Saleem came to the house where Shabbir Ali was detained and directed him to call his father to make arrangement of Rs.20,00,000/- ransom. He informed the culprits that his father was sick and patient of blood pressure. Then he talked from his cell No.0300-9200715 to uncle Mohsin Raza on his Cell No.0303-7286716 and informed him that he has been kidnapped for ransom and culprits were demanding Rs.20,00,000/- for his release. He has further deposed that accused Shoukat Ali also talked to his uncle Mohsin Raza and his uncle replied that it was huge amount and same could not be arranged by them. Thereafter, accused demanded Rs.15,00,000/- for the release of Shabbir Ali. He has further stated that his uncle replied that they would try to arrange such amount. He stated that deal was finalized between accused and his uncle in Rs.4,00,000/- for his release on 26.04.2006 his uncle informed that he has made arrangement of Rs.4,00,000/- and enquired from the accused that where the amount was to be paid to them. After sometime, two accused left the place and two accused remained with Shabbir Ali. In evening time, accused informed on telephone to accused Shahzad and Saleem that they have not received the ransom amount because there were some Agency persons standing over there, they could not collect the ransom amount. Further he deposed that accused Shahzad and Saleem tied the hands and feet of Shabbir Ali and put him in a store. In the evening time, accused Shoukat Ali and Mujtaba came back and asked Shabbir Ali to call his uncle to make the payment else he would be murdered. Between the night of 26 and 27.04.2006 all the four accused took him in a black coloured Toyota car and came to Lea Market area where they handed over him to another person who took him in his house where family was there. All the accused persons left that place. He remained in the said house for whole night. On 27.04.2006 at 08:30 a.m. accused Mujtaba and Shoukat Ali came there and informed that they have received the ransom and they were going to release Shabbir Ali. Accused persons released Shabbir Ali by giving him cash of Rs.500/- and dropped him in garden area. He was also given 5 rupees note on which mobile number was written. Shabbir Ali was directed that when he would reach home, he should inform the accused on mobile No.0334-3298677. Complainant came home and informed the accused that he had reached home. In the evening time, Shabbir Ali was informed by his uncle that he has paid Rs.4,00,000/- for his release on 27.04.2006 at 05:00 p.m. I.O. came to his house and he narrated him the facts. He also pointed out the place from where he was kidnapped. I.O. prepared such mashirnama on his pointation in presence of mashirs and produced it as Exh-35. At 06:00 p.m. he had also pointed out the place to the I.O. where he was released. Such mashirnama was also prepared in presence of mashirs which produced as Exh-36. He has further stated that his 161 Cr.PC statement was recorded by I.O. On 08.05.2006 he received a call from I.O. who asked him to reach at AVCC. He went there at 02:00 p.m. where SIP Tahir Naseer along with his subordinate staff took Shabbir Ali in the police mobile for the search of accused persons involved in the offence and proceeded from Garden to Lea Market, Mithadar and reached Kharadar at Young Husband Road where he has deposed that there was a wooden bench in the Allah Rakha Park on which accused Mujtaba and Shoukat Ali were sitting. Shabbir Ali identified them and pointed out to the I.O. that they were involved in is kidnapping for ransom. I.O. arrested both the accused in presence of mashirs, conducted their personal search. From the search of accused Shoukat Ali TT pistol containing three live bullets and cash of Rs.140/- were recovered. Shaukat Ali had no license for the weapon carried by him. From the personal search of accused Mujtaba one TT pistol containing four live bullets and cash of Rs.120/- were recovered. I.O. enquired the names from both the culprits and they disclosed the same names as pointed out by PW Shabbir Ali. Both the accused had no licenses for the weapons carried by them. Mashirnama was prepared in presence of mashirs. He has produced such mashirnama as Exh-37. On 11.05.2006 I.O. went to the house of Shabbir Ali and served notice upon him regarding holding of identification parade before Magistrate on 13.05.2006. On 13.05.2006 Shabbir Ali appeared before Civil Judge and Judicial Magistrate along with his uncle Mohsin Raza where identification parade was held by Civil Judge and Judicial Magistrate. PW Shabbir Ali identified accused Shoukat Ali, Shahzad and Saleem. PW Shabbir Ali has stated that on 24.04.2006 he was kidnapped by accused Shahzad and Saleem by show of weapons whereas accused Mujtaba and Shoukat Ali were sitting in the car at that time. In the cross-examination to Mr. Fazal-ur-Rahman Awan, Advocate for accused Shoukat Ali he has denied the suggestion that he had made drama to get money from his uncle. He has admitted that I.O. did not call private persons to act as mashirs in this case. He has denied the suggestion that he was deposing falsely.

13. Ms. Shazia Asif, Civil Judge and Judicial Magistrate East, Karachi has deposed that on 11.05.2006 I.O. of this case produced before her an application for holding the identification parade of accused in this case. After observing legal formalities, she held identification parade of accused Shoukat Ali, Muhammad Shahzad and Muhammad Saleem through PWs Mohsin Raza and Shabbir Ali. PW Shabbir Ali identified accused Muhammad Shahzad, Shoukat Ali and Muhammad Saleem. She has further deposed that PW Mohsin Raza identified accused Shoukat Ali. Memo of identification parade was prepared in presence of mashirs. In the cross-examination to Advocate for Shoukat Ali, Magistrate has replied that PW Shabbir Ali informed her that he had seen accused Shoukat Ali at police station. Magistrate had denied the suggestion that some of dummies were police officials in plain clothes. She has also denied the suggestion that accused were not produced with muffled faces at the time of identification parade.

14. Tahir Naseer, I.O. has deposed that he had conducted investigation of the case. In cross-examination, denied suggestion for deposing falsely against the accused. CW Atiq-ur-Rahman has stated that he serves in Mobilink Company and produced data of Cell No.03009200715 from 24.04.2006 to 28.04.2006.

15. Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General Sindh argued that case of accused Shaukat Ali, who has been convicted by this Court, was not distinguishable from the case of respondent/accused Muhammad Saleem. He has read out the evidence of the abductee Shabbir Ali in which it is stated that abductee Shabbir Ali pointed out during trial that accused Shaukat had abducted him for ransom and accused Muhammad Shahzad and Shaukat Ali confined him at night in the house. Learned A.P.G. contended that abductee was taken in a car by four accused persons and Saleem and Mujtaba went to the house of accused Shaukat Ali on 25.04.2006 where abductee was detained and asked the abductee to make call to the relatives for arranging ransom of Rs.2,000,000/-. Learned A.P.G. submits that sufficient evidence was produced against accused Saleem and trial Court without assigning sound reasons has recorded acquittal in his favour.

16. Mr. Fazal-ur-Rahman Awan, learned counsel for respondent/acquitted accused Muhammad Saleem submits that trial Court by detailed judgment while assigning sound reasons acquitted Muhammad Saleem. He has submitted that no call data regarding any mobile used by Saleem was produced before the trial Court. Learned counsel for respondent Saleem has also referred to the reasons assigned by the trial Court for recording the acquittal of Saleem. Lastly, Mr. Fazal-ur-Rehman submitted that after acquittal, Saleem has acquired presumption of double innocence. He has also argued that appreciation of evidence in the case of appeal against conviction is different from appeal against acquittal. In support of his contentions, relied upon the following cases:

1. Barkat Ali versus Shaukat Ali and others (2004 SCMR 249)

2. Rashid Ahmed versus Muhammad Nawaz and others (2006 SCMR 1152)

3. Mehmood Ahmad and 3 others versus The State and another (1995 SCMR 127)

4. Waseem alias Asgher versus The State (1997 PCr.LJ 1037)

17. Record reflects that trial Court acquitted co-accused Muhammad Saleem son Muhammad Hanif, Muhammad Shahzad alias Steel son of Allah Rakha and Mujtaba Hussain alias Majoo son of Ghulam Ali vide judgment dated 16.08.2006 for the following reasons:-

“As far as the case against accused Muhammad Saleem, Muhammad Shahzad and Mujtaba Hussain are concerned, the only allegations against them which was categorically mentioned by the abductee is that they were with accused Shoukat in the car at the time of incident but subsequently they remain disappeared from the scene except on the night of 26.04.2006 when accused Muhammad Shahzad stated to be also stayed with him in a house which was occupied by family of accused Shoukat. Even it is presumed to be correct then a night is enough to recognize a person’s case but his statement before the police is silent about the features of accused which is essential to lead to assure that accused Muhammad Shahzad was also present there. Accused Muhammad Saleem and Muhammad Shahzad in their statements u/s 342 Cr.PC claimed animosity with the I.O. and stated that since they were working for the AVCC as informer and on objection raised by the mohalla people for the usual visits of the I.O., they stopped working for him, hence they were threatened for dire consequences as such, they were falsely implicated by the I.O. in repercussion. The only evidencing material against accused Mujtaba Hussain is receipts of Rent-a-Car for obtaining respective cars on rent which were allegedly used in the occurrence.

On perusal of record, it became crystal clear that the receipts of Rent-A-Car were not signed by authorized person and that Toyota Corolla which was allegedly taken by accused Mujtaba Hussain is also doubtful as the registration number mentioned in Statement u/s 161 Cr.PC is different than the number given during statement before the Court. The crucial thing which creates doubt regarding both the cars obtained on rent by accused Mujtaba Hussain allegedly involved in the offence is that neither the abductee has mentioned the numbers of cars nor any specific mark for which those can be identified easily. Such fact was also admitted by the abductee during the cross-examination. It is also admitted by the abductee in his cross that I.O. called him at AVCC and said that the cars kept there are used during his abduction which he identified to be the same.

The above admission of the abductee creates doubt in respect of the guilt of accused Mujtaba Hussain for allegedly getting cars on rent.

The sum up of the above discussion is that the prosecution has failed to bring home charge against accused Muhammad Saleem, Muhammad Shahzad alias Steel and Mujtaba Hussain alias Majoo as the lacunas left creates serious doubts which cannot be said to be minor discrepancies and the benefit of doubt always goes to the accused.

In case reported as 1997 PCrLJ 1 it has been held by the Apex Court that the prosecution has to stand squarely on its own legs and has to be proved beyond all reasonable doubts, the case of defence as to be accepted even if it is only probable and not proved beyond doubt (Italic and bold is mine).

In a case reported as PLD 2006 (K) it has been held Benefit of doubt anything going in favour of accused must be taken into consideration and the benefit of doubt, if any, be extended to him not as a matter of grace but as a matter of right (Italic and bold is mine).

As far as the case against accused Shoukat Ali alias Baba is concerned, record shows his presence on each and every occasion of the incident. The star witness of the case is Shabbir Ali, the abductee, who has identified the accused Shoukat Ali to be accused playing pivotal role in is abduction. It is stated by the abductee in his Examination-in-Chief that he was kept in house where accused Shoukat Ali remained present, so also he is the accused who called his uncle PW Mohsin Raza. PW-4 Syed Naseem stated to be the owner of the house where abductee was kept, stated that such house bearing No.B-340 situated was rented out to accused Shoukat Ali.

Furthermore, the I.O. has prepared memo of identification of place of captivity which is the same. The statement of abductee in respect of involvement of accused Shoukat Ali is also supported by PW Mohsin Raza who has said to have paid the ransom amount. Mohsin Raza in is statement attributed the role to accused Shoukat Ali to be the same who after call taken the ransom amount. No enmity with police or I.O. has shown by accused, even not a single word was uttered to be believed that he has falsely been involved, hence I am of the view that there is no reason to believe that he has falsely been involved letting off the actual accused. Reference is made to the case of Ali Akbar Shah versus the State (1999 MLD 488).

In case reported as 1999 MLD where the Honourable High Court held that the abductee had not only deposed about abduction, but had categorically fully implicated the accused assigning them the roles played by them during occurrence. Release of abductee on payment of ransom amount was also proved. (Italic and bold is mine).

In view of the discussion made herein above the points No.1 to 4 are answered in affirmative in respect of the involvement of accused Shoukat Ali alias Baba son of Muhammad Ali whereas the same are answered in negative in respect of the involvement of accused Muhammad Slaeem son of Muhammad Hanif, Muhammad Shahzad alias Steel son of Allah Rakha and MUjataba Hussain alias Majoo son of Ghulam Ali.

In view of the above discussion, I reached to the conclusion that the case against accused Muhammad Saleem son Muhammad Hanif, Muhammad Shahzad alias Steel son of Allah Rakha and Mujtaba Hussain alias Majoo son of Ghulam Ali are full of doubts and prosecution has miserably failed to prove case against them beyond any reasonable doubt. Therefore, are acquitted under section 265-H(1) Cr.PC from the charge of present case giving them benefit of doubt, they may be released forthwith if not required in any other case.”

18. Mr. Muhammad Iqbal Awan, learned A.P.G. mainly argued that prosecution had produced cogent evidence against accused Saleem but it was not properly appreciated by the trial Court and on the same set of evidence co-accused Shaukat Ali was convicted and accused Muhammad Saleem, Muhammad Shahzad alias Steel and Mujataba alias Majoo were acquitted without assigning sound reasons. He has argued that Saleem and Mujtaba had gone to the house of the main accused Shoukat Ali where they compelled the abductee to call his relatives for payment of ransom. Learned A.P.G. has also submitted that Saleem and remaining two acquitted accused were identified in identification parade by abductee. However, learned A.P.G. very frankly stated that case of main accused Shaukat Ali was distinguishable from the case of accused Saleem. On the other hand, Mr. Fazal-ur-Rehman, learned counsel for respondent/acquitted accused Muhammad Saleem submits that trial Court has rightly acquitted Saleem as there was no cogent evidence against him to connect in this case. He submitted that after abduction, abductee was detained by accused Shoukat in his house and whole episode revolves around accused Shoukat. As regards to the allegation against acquitted accused Saleem and Mutajaba for compelling the abductee to make the call to his relatives, it is submitted that no mobile was recovered from Saleem and no call data evidence in this regard has been collected against him. Mr. Fazal-ur-Rehman has submitted that acquitted accused Saleem after his acquittal from the criminal charge enjoys double presumption of innocence, one before the trial of the case and second after his acquittal. It is submitted that all the pieces of evidence were carefully considered by the trial Court and appeal against acquittal of appellant Saleem may be dismissed.

19. We have come to the conclusion that trial court has examined the evidence deeply and has assigned sound reasons while recording acquittal. Trial court has properly appreciated the prosecution evidence and rightly acquitted Muhammad Saleem of the charge. Prosecution failed to prove its case against respondent/accused Saleem beyond any reasonable doubt. In the present case, learned A.P.G. rightly stated that case of main accused Shoukat Ali was distinguishable from the case of accused Saleem who has been acquitted by the trial Court. Allegation against Saleem was that he compelled abductee to make call to the relatives for making arrangement of ransom but no such call data was produced before the trial Court. This Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at. The acquittal judgment has not been passed in gross violation of law.

20. The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty as held by Honourable Supreme Court. Such principle has been laid down by Honourable Supreme Court in the case of THE STATE and others versus ABDUL KHALIQ and others (PLD 2011 Supreme Court 554) as follows:-

From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.

21. In the case of State versus Government Sindh through Advocate General Sindh, Karachi versus Sobharo (1993 SCMR 585) Honourable Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:-

“14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed.”

22. For what has been discussed above, we are of the considered view that impugned judgment dated 16.08.2006 is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Honourable Supreme Court of Pakistan. Neither, there is misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, appeal against acquittal is without merit and the same is dismissed.

`J U D G E

J U D G E

Gulsher/PS