IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Appeal No.D-02 of 2015

Present:

Mr. Justice Khadim Hussain M. Shaikh

Mr. Justice Amjad Ali Sahito

Appellant: Laique son of Trooh Khatiyan, Through Mr.Ghulam Sarwar Soomro, Advocate

Complainant: Muhammad Illyas s/o Azizullah Khatiyan, Through Mr.Rashid Mustafa Solangi, Advocate.

State: Through Mr.Khadim Hussain Khooharo, Addl.Prosecutor General

Date of hearing: 17.04.2018.

Date of decision: 17.04.2018.

J U D G M E N T

Amjad Ali Sahito, J.–Appellant Laique son of Trooh Khatiyan was tried by the learned Judge, Anti-Terrorism Court, Larkana, in Special Cases No.14 to 2014, vide Crime No.22/2014 for offence punishable under Section 365-A/34 PPC read with Section 6/7 of Anti-Terrorism Act, 1997, registered at Police Station Warrah, District Qamber-Shahdadkot, whereby he was sentenced to suffer imprisonment for life for an offence punishable u/s 365-A/34 PPC with forfeiture of his property to the government and further sentenced to imprisonment for life for an offence punishable u/s.7(e) of Anti Terrorism Act, 1997 r/w Section 34 PPC, both the sentences were ordered to run concurrently. However, the benefit of Section 382-B Cr.PC was also extended to him.

2. The brief facts leading to disposal of instant appeal are that on 05.03.2014, at about 1930 hours, complainant Muhammad Illyas son of Azizullah by caste Khatiyan lodged FIR with Police Station, Warrah, stating therein that on 30.01.2014, he alongwith his brother Muhammad Peeral, Mukhtiar Ahmed, cousin Imdad Ali and guest/friend Khalid Arain, resident of Punjab, was sitting in his otaq where the electric bulbs were glowing. At about 11.30 p.m(night), they noticed six armed persons came there, out of them one was identified to be Saleem son of Qurban Ali Kalhoro, resident of Yar Muhammad Khatiyan, Taluka Warrah, while the remaining five with open faces were unidentified, who were seen clearly on bulb light and could be identified, if seen again, all of them were armed with Kalashnikovs, who aimed their weapons upon the complainant party and accused Saleem with three unknown culprits took away his brother Muhammad Peeral and guest/friend Khalid Arain on force of deadly weapon, while the remaining two unknown culprits kept standing over them with their respective weapons. After lapse of half an hour, the accused asked the complainant party that they have abducted his brother Muhammad Peeral and guest/friend Khalid Arain and by saying so they fled outside. The villagers on hearing cries then rushed towards the place of incident, who were narrated the factum of the incident. They then searched but to no avail. On the following morning, the police was informed about the incident and thereafter the complainant party alongwith police and villagers then followed the footprints, which missed at village Yar Muhammad Khatiyan. Later-on, due search for discovery of the abductees was made with an advice of the nekmards, and finding no any clue the complainant then lodged the FIR against the accused to the effect that the accused in prosecution of their common object, abducted his brother Muhammad Peeral and guest/friend Khalid Arain on account of ransom.

3. During course of investigation, the SIO submitted interim challan u/s 344 Cr.PC against accused Saleem Kalhoro and five unknown culprits. Subsequently, on 17.04.2014, the final report u/s.170/173 Cr.PC was submitted before learned trial Court by showing accused Saleem in custody and accused Abdul Wahab Khatiyan with accused Laiq Khatiyan and three unknown culprits as absconders. On 22.05.2014, accused Laique was arrested by the police and he joined the trial. The learned trial Court after completion of usual formalities, framed the charge against accused Saleem and Laique at Exh.11, to which both the accused pleaded not guilty and claimed trial.

4. At the trial, in order to establish the accusation against the accused, the prosecution examined the following witnesses:-

(i) PW-01 complainant Muhammad Illyas at Exh.14, he produced FIR of the present case at Exh.14/A;

(ii) PW-02 Mukhtiar Ahmed at Exh.15,

(iii) PW-03 Imdad Ali at Exh.16.

(iv) PW-04 Pir Muhammad at Exh.17(Note:-his name is placed in charge sheet as Muhammad Peeral but his name in his deposition has been mentioned as Pir Muhammad);

(v) PW-05 Khalid Arain at Exh.18,

(vi) PW-06 Ghulam Sarwar at Exh.19, he produced mashirnama of place of incident at Exh.19/A, mashirnama of surrender of abductees Muhammad Paryal and Khalid Arain at police station at Exh.19/B,

(vii) PW-07 Inspector Mukhtiar Ahmed at Exh.20, he produced attested photo stat copy of mashirnama of arrest of accused Saleem at Exh.20/A;

(viii) PW-08 Inspector/I.O Saith Ali at Exh.21, he produced letter of S.S.P Larkana relating to receipt of investigation of the present case to him at Exh.21/A.

(ix) PW-09 SIP Jan Muhammad at Exh.22, he produced mashirnama of arrest of accused Laique at Exh.22/A.

(x) PW-10 HC Ali Akbar at Exh.23,

The complainant and eye witnesses were declared hostile by learned DDPP for the State, who requested the learned trial Court to cross examine them. The request was accordingly allowed and these witnesses were cross examined by the learned DDPP for the State. Besides this, all the prosecution witnesses were cross examined by the counsel for the appellant. Thereafter, the side of prosecution was closed as Exh.25.

5. Both the accused in their statements recorded in terms of Section 342 Cr.PC at Exh.26 and 27 respectively, denied the prosecution allegations and lastly prayed for justice. However, they neither examined themselves on Oath in terms of Section 340(2) Cr.PC, nor produced any witness in their defense.

6. The learned trial Court after hearing the counsel for the parties and appraisal of the evidence, acquitted accused Saleem Kalhoro while convicted the present appellant Laique as stated above vide impugned judgment dated 23.12.2014, which he has impugned before this Court by way of filing instant appeal.

7. Mr.Ghulam Sarwar Soomro, learned counsel for the appellant argued that the appellant is innocent and has falsely been implicated in this case by the complainant; that the learned trial Court has failed to appreciate the evidence adduced at trial, that the name of present appellant does not find place in the FIR while the name of accused Saleem is mentioned in it alongwith his parentage and residential address but at trial none of the eye witnesses identified him but implicated the present appellant in their statements; that all the eye witnesses are untrustworthy as during trial they all were declared hostile and were crossed examined by learned DDPP for the State; that neither any incriminating article was secured from the possession of present appellant, nor any identification parade was got conducted; that at the time of submission of interim report, the name of the present appellant was not placed in it, then what was the source available with the police to nominate the present appellant in final report/challan; that no any substance was brought on the record to justify the claim of receiving ransom amount by the accused from the complainant party. He lastly prayed that the conviction recorded against the present appellant by learned trial Court may be set-aside and the accused be acquitted in the circumstances.

8. While rebutting the above contentions, the learned counsel for the complainant argued that the appellant was correctly identified by the complainant and his witnesses during course of trial; that all the accused had received ransom amount from the complainant party in lieu of release of abductees; that all the eye-witnesses were wrongly declared hostile by the learned DDPP for the State as all of them had identified the present appellant in Court room; that the learned trial Court was right to record conviction against the accused in accordance with law, which does not call for any interference by this Court and lastly prayed for dismissal of instant appeal.

9. The learned Additional Prosecutor General for the State supported the impugned judgment passed by learned trial Court.

10. We have heard the learned counsel for the parties and have gone through the evidence with their assistance. It has borne out from the record that the prosecution case revolves around the statements of complainant Muhammad Ilyas and PWs Mukhtiar Ahmed, Imdad Ali, Muhammad Peeral and Khalid Arain. Admittedly, the complainant has disclosed the name of accused Saleem in his FIR but did not mention the names of rest of the accused. Though, the complainant and other PWs had followed the foot prints of the accused persons, which led to village Yar Muhammad Khatiyan and till registration of FIR on 05.03.2014, neither the complainant nor his witnesses had implicated the present appellant Laique with commission of offence. Per complainant and his witnesses, the appellant Laique is resident of village Dhingano Khatiyan which is at distance of 02 ½ kilometers away from the village of complainant party. The interim challan was submitted before learned trial Court on 08.04.2014, which shows the name of only one accused namely Saleem and rest five have been shows as unknown. The record reveals that both the abductees had appeared before the police station of their own on 07.04.2014 and such mashirnama of their appearance was prepared at Exh.19-B. When both the abductees had appeared at police station one day prior to submission of interim challan, then neither the abductees nor the investigation officer disclosed the name of present appellant Laique in the interim challan. Further, the FIR was lodged on 05.03.2014 with delay of about three months after the incident and abductees appeared before the police on 07.04.2014. Since, registration of the FIR till appearance of both the abductees before the police, none of the eye witnesses have disclosed that any ransom was demanded by the accused persons. Furthermore, according to FIR, PWs/Abducees Muhammad Peeral and Khalid Arain were abducted in presence of eye witnesses, who knew accused Saleem with his parentage and residential address at the time of abduction, the accused had not demanded any ransom amount nor they issued any threats to the PWs to arrange for ransom and in this case the complainant rushed to police station and sought help of police for discovery of abductees. All the witnesses are closely related to the complainant and not a single independent witness from the locality was produced by the prosecution to support the ocular account. The inordinate delay in lodging the FIR and conduct of the abductees after the abduction as noted above castes heavy doubt on the veracity of the evidence of complainant and his witnesses. In the FIR, complainant Muhammad Illyas and other eye witnesses have specifically named accused namely Saleem with his parentage and residence. However, the complainant and all eye witnesses in their examination in chief did not disclose the name of accused Saleem but implicated present appellant Laique and Abdul Wahab with commission of offence. When all these eye witnesses were declared hostile and were cross examined by learned DDPP for the State, to which he had given suggestion that they had given the name of accused Saleem in the FIR and 161 Cr.PC statements with specific role which they denied. Even in their examination in chief they had not identified accused Saleem. Such omission by the complainant and other eye witnesses in their statements made them untrustworthy. It is settled principle of law that to disbelieve a witness, it was not necessary that there should be numerous infirmities, if there was one which would impeach the credibility of the witnesses, that could make the entire statement doubtful.

11. The above noted facts make it clear that PWs had been making divergent statements before the learned trial Court about accused Saleem, when the PWs have involved accused Saleem in earlier part of the case and subsequently before learned trial Court they have exonerated accused Saleem from the abduction of the abductees, then their statements qua the other accused could not be relied upon in the absence of very strong independent and corroboratory evidence against them.

12. When the complainant and his eye witnesses have stated in their statements that unknown persons had abducted the abductees, who could be identified if seen again, then it was the duty of the investigation officer to produce the appellant after his arrest before the concerned Court for his identification through such eye witnesses, which is safe administration of the justice, and the same is lacking in the present case. So far the identification of the appellant by the complainant and his witnesses during course of trial is concerned. In this context, the reliance is placed upon case of Azhar Mehmood and others vs. the State(2017 SCMR-135), wherein the Honourable Supreme Court of Pakistan has held that;-

3. During the trial the above mentioned eye witnesses had maintained that the appellants facing the trial were the actual culprits and they courts below had found such identification of the appellant during the trial to be of significance. We, however, note that both the above mentioned eye witnesses i.e PW-15 and PW-16 had appeared before the trial Court after prosecution witnesses had already made their statements before the trial Court and all such occasions the present appellants were physically present in the dock and, thus, the above mentioned eye witnesses had ample opportunities to see the present appellants in the Court room on all such occasions. Even prior to that the appellants had been produced before the trial Court at the time of framing of the charge and even at that time of obtaining remand from the concerned forum. This is why the identification of culprits before trial Court during trial has repeatedly been held by this Court to be unsafe.

13. In these circumstances, discussed above, we are of the considered view that the prosecution has failed to prove it’s case against the appellant beyond reasonable doubt and it is well settled principle of law that for creating shadow of doubt, it is not necessary that there should be many circumstances. If a single circumstance creates a reasonable doubt in the prudent mind, then its benefit has to be given to the accused not as a matter of grace or concession, but as the matter of right. The reliance is placed on the case of Muhammad Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:

4.--- Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim,”it is better that ten guilt persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State(1995 SCMR-1345), Ghulam Qadir and 2 others v. The State(2008 SCMR-1221), Muhammad Akram v. The State(2009 SCMR-230) and Muhammad Zaman v. The State(2014 SCMR-749).

14. The learned trial Court has not evaluated the evidence in its true perspective and thus reached to an erroneous conclusion by holding the appellant guilty of the offence. Consequently, the instant appeal is allowed. The conviction and sentence awarded to the appellant is set-aside and he is acquitted of the charge by extending him benefit of doubt.

15. These are the detailed reasons of short order dated 17.04.2018, announced by us.

J U D G E