IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA.

Crl. Jail Appeal No.D-34 of 2015

PRESENT:

Mr. Justice Salahuddin Panhwar,

Mr. Justice Syed Saeeduddin Nasir,

Appellant : Rahimdad Mohammadani, through Mr. Rashid Mustafa

Solangi, Advocte.

Respondent : The State, through Mr. Shahzado Saleem Nahiyoon,

Assistant Prosecutor General.

Date of hearing: 04-09-2015. Date of Judgment: 11.09.2015.

J U D G M E N T.

SALAHUDDIN PANHWAR, J.- By the dint of this judgment we intend to decide the captioned appeal, whereby appellant has assailed the judgment dated 18^th May, 2006, thereby appellant alongwith accused Ali Hassan and Sajjan were tried in absentia, on culmination of trial, they were convicted. they were convicted.

2. Precisely, relevant facts are that on 29.1.2005 at 2030 hours six dacoits, armed with deadly weapons, including Kalashnikovs, abducted Dilmeer and Khalid Hussain from Kandhkot-Shikarpur National Highway for ransom, while they were on their way to Punjab. On 2.2.2005, at 1300 hours, SIP Agha Najeebullah Pathan, the then S.H.O of Police Station B-Section, Kandhkot, on receipt of secret information about commission of the offence, registered F.I.R, bearing No.6/2005 acting as complainant on behalf of the State. On the same day, at 2200 hours the S.H.O claims to have rescued the two abductees after an encounter with dacoits near Jagan Patan, deh Makhwani wherein nobody was injured nor any body was arrested. However, police claimed to have identified the dacoits to be Wazir, Sajan, Ali Hassan and Rahimdad. Wazir was arrested on 12.6.2005.

3. Trial Court framed charge against the appellant alongwoth accused Wazeer and others. Except accused Wazeer, all other accused were absconders, therefore, charge was framed in their absentia. To substantiate the charge prosecution examined two police officers and one abductee namely, Dilmeer.

4. The statements of accused persons were recorded. Counsel, provided by trial Court, pleaded that appellant is innocent and has been implicated falsely.

5. At the outset, learned Counsel for the appellant has contended that co-accused Ali Hassan, who was convicted in absentia alongwith appellant, preferred appeal being Criminal Jail Appeal No.D-20 of 2009 before this Court; the same was allowed; the set of evidence is same; abductee Dilmeer has not deposed against appellant, even he has not identified co-accused Wazeer, therefore, by extending benefit of doubt said appellant was acquitted, hence under the rule of consistency present appellant is entitled to claim same legal treatment in the eyes of law.

6. Upon confrontation of this situation, learned A.P.G also extended his no objection.

7. At this juncture, it worth to refer the paragraph No.10 of the earlier judgment passed by this Court in the case of Ali Hassan v. The State, reported in 2009 M L D 1198, which is as under :-

“10. Out of two abductees, one, namely, Khalid Hussain could not be traced out and other, namely, Dilmeer did not implicate either Wazir, in whose presence the trial was conducted, or the present appellant, who was tried in absentia. The evidence of two police officers, namely, SIP Najeebullah Pathan and H.C. Janib, who claimed to have identified the dacoits, was not believed by this Court in the appeal filed by Wazir. After the acquittal of Wazir by this Court, conviction in absentia of present appellant Ali Hassan, who has a better case for acquittal, cannot be sustained on same evidence. No useful purpose will be served to examine the same witnesses again. The learned Assistant Advocate General is also of the same opinion. Accordingly, the conviction and sentence of the appellant recorded in his absentia are set aside and he is acquitted. He may be released immediately.”

(emphasis provided)

8. Candidly abductee Khalid Hussain was not examined as his attendance was not procurable, whereas abductee Dilmeer negated the version of police with categorical statement that accused Wazir is not same person who abducted them. A sum-up of the case of the prosecution would make the allegation against the appellant as that of:

‘he alongwith his other accomplices allegedly abducted the abductees’

‘he alongwith his other accomplices was allegedly identified by police officials while escaping from place of recovery of abductees’

In either of the above situation(s), the star witnesses of incident could be none but the ‘abductees’ themselves, therefore, best evidence available with the prosecution to insist for conviction was evidence of the abductees for which burden was always upon the prosecution. The perusal of the record shows that in discharge of such burden the prosecution failed to bring the abductee Khalid into witness box while the other abductee namely Dilmeer did not implicate the co-accused Wazir, in whose presence trial was conducted, during his examination before the trial Court. Since a case of abduction always revolves round the abductee therefore it is never safe to hold the conviction where the abductee does not point his / her finger at the accused, claiming the same (accused) as culprit of abduction. Further, it is not the case of the prosecution that the present appellant was arrested from place of recovery of the abductee but other witnesses of prosecution i.e police officials were claiming to have identified the dacoits / abductors. Perusal of record reflects that prosecution case is that police officials, on receiving a tip-off chased the dacoits and after face-off with them, recovered two abductees, namely, Dilmeer and Khalid Hussain. Police officials in their statements disclosed that they have identified the accused persons on the source of searchlights. Let us add that in such like situation, as is in the instant case, i.e recovery of abductee after face-off and escape of abductors, the most natural natural witness of the incident is the ‘abductee himself’ as prosecution itself sticks with his prior presence with abductors therefore the prosecution has to suffer the consequence of dent(s), if caused by such a ‘star witness’ in prosecution case and even evidence of members of raiding party cannot take away the doubts, so caused by its (prosecution) own star witness. Ignoring such doubt and dent in prosecution would frustrate the very object and purpose of ‘benefit of doubt’ on which whole system of Criminal Administration of Justice rests.

9. Worth to add here that trial in absentia was completely illegal and against the spirit of fair trial provided under Article 10-A of the Constitution of Pakistan as it shall give an opportunity to the aggrieved to come and seek a de novo trial. We are also conscious that such article is equally applicable to either side hence prosecution may come with such plea. It is however to be kept in view that such right is not meant to prejudice the Article 13 of the Constitution or its application which even bars prosecution for one and same offence more than once.

10. It is also a matter of record that the allegation against the present appellant, co-accused Wazeer and Ali Hassan were one and same and even fate of trial for said accused persons, including the present appellant was result of same set of evidence. It is also a matter of record that out of convicts, Wazeer and Ali Hassan have been acquitted and per prosecution not challenged hence present appellant is also entitled for same treatment and even remand of the case would not serve any purpose of justice. We may refer the case of Muhammad Akram v. The State (2012 SCMR 440) wherein the Honourable Supreme Court of Pakistan, while considering other factors held that :

‘same set of evidence which was disbelieved qua the involvement of co-accused could not be relied upon to convict the accused on a capital charge’.

11. In view of above discussion, we are of the firm view that appellant has succeeded to make out his case for acquittal. Accordingly, impugned judgment is set aside. Appellant is acquitted of the charge. He shall be released forthwith if not required to be detained in any other case.

JUDGE

Qazi Tahir/*