IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.D-08 of 2017
alongwith Cr. Reference No.D-02 of 2017,
and
Criminal Jail Appeal No.D-11 of 2017
Before:
Mr. Justice Muhammad Iqbal Kalhoro
Mr. Justice Irshad Ali Shah
Appellant in Criminal Appeal No.D-08 of 2017.
Riaz son of Muhammad Bux alias Haji Koura Jagirani, through Mr. Ahmed Bux Abro, Advocate
Appellant in Cr. Jail Appeal No.D-11 of 2017
Abdul Wahid son of Allah Warrayo Tunio, through Mr. Aijaz Ahmed Bhatti, Advocate
State: Through Mr. Khadim Hussain Khooharo, Additional Prosecutor General
Date of hearing: 01.03.2018.
Date of judgment: 06 .03.2018.
J U D G M E N T
IRSHAD ALI SHAH, J.- It is alleged that the present appellants/accused on 13.04.2016, at about 09.00 A.M, in furtherance of their common intention abducted a boy Riaz Ahmed, when he went outside of his house at Mirani Muhalla Larkana, then demanded rupees Five Lacs as ransom for his release from his parents. They eventually were arrested by the police after an encounter and from them was secured said abducted boy by police party of P.S Waleed, led by SIP Sadoro Khan Lashari. The complainant party reported the incident to police formally. The present appellants/accused on due investigation were challaned to face trial for the above said offence.
2. The present appellants/accused denied the charge and prosecution to prove it examined PW Tika Khan (father of abducted boy), produced through him his passport and work permit of U.A.E. PW Muhkumuddin, Complainant Bhale Dino, produced through him FIR of the present case. SIP Khadim Hussain, produced through him order of S.S.P Larkana whereby a Joint Investigation Team was constituted to investigate the present case. SIO/SIP Sadoro, produced through him mashirnama of place of incident, roznamcha entry whereby he conducted the petrol, mashirnama of arrest of the present appellants/accused and recovery of pistols and abducted boy from them. PW Samano Khan. PW Mst.Shahida Khatoon(mother of the abducted boy). PW/Mashir Deedar Hussain. SIO/SIP Mumtaz Ali, through him was produced roznamcha entry relating to his departure from police station and letter which he submitted before learned 5th Judicial Magistrate, Larkana for recording of 164 Cr.PC statements of the witnesses. PW/ASI Haji Ameer Ali, through him was produced mashirnama of place of incident relating to police encounter and recovery of empties and then prosecution closed its side.
3. The present appellants/accused in their statements recorded under section 342 Cr.PC, denied the prosecution allegations by pleading their innocence. They did not examine anyone in their defense.
4. The appellant/accused Riaz Ahmed at one moment wanted to examine himself on oath but refused to make such statement subsequently. No statement on oath was made by the appellant/accused Abdul Wahid.
5. On evaluation of the evidence, learned trial Court found both the present appellants/accused to be guilty for an offence punishable u/s 365-A PPC r/w Section 7 (e) of A.T.Act, consequently convicted and sentenced appellant/accused Riaz Ahmed to death with forfeiture of his entire moveable and immoveable property, while convicted and sentenced appellant/accused Abdul Wahid to undergo imprisonment for life with forfeiture of his entire moveable and immoveable property and then made reference before this court in terms of Section 374 Cr.PC, for confirmation of death sentence of appellant/accused Riaz Ahmed vide its judgment dated 06th March, 2017.
6. Both the appellants/accused being aggrieved of above said conviction and sentence, preferred their separate appeals before this Court, their appeals together with the reference of learned trial Court are being decided by way of this single judgment.
7. It is contended by learned counsels for the appellants/accused that they being innocent have been involved in this case falsely by the complainant party after due consultation, there is delay of about four days in lodging of the FIR, the complainant was declared hostile to the prosecution on account of his failure to support the case of prosecution, while the witnesses which were produced by the prosecution were chance witnesses, they as such ought not to have been relied upon by learned trial Court. By contending so, they sought for acquittal of the present appellants/accused. In support of their contentions they have relied upon case of Tiloo and others vs. the State, which is reported at 2007 YLR-239, 2). Case of Muhammad Akram vs. the State, which is reported at 2009 SCMR-230, 3). Case of Gul Muhammad alias Guloo vs. the State, which is reported at 2004 YLR-216, 4). Case of Azmat Ali vs. the State, which is reported at 2012 YLR-1152, 5). Case of Muhammad Rafique through Muhammad Anwar vs. the State, which is reported at PLD 2008 Lahore-268 and 6). Case of Muhammad Tufail vs. the State, which is reported at 2010 P.Cr.LJ-1389.
8. Learned Additional Prosecutor General has supported the impugned judgment.
9. We have considered the above arguments and perused the record.
10. The FIR is lodged on 17.04.2016, with delay of about four days to the incident, the same according to PWs Muhkumuddin and Mst.Shahida Khatoon was lodged after due consultation with the elders. No elder who allegedly was consulted by the complainant Bhale Dino before lodging of the FIR was examined by the police during the course of investigation or by the prosecution at trial. In that situation, the delay in lodging of the FIR could not be lost sight of. Be that as it may be, no much reliance could be placed upon evidence of PW Tika Khan(father of the alleged abductee), as he at the time of incident was working at U.A.E. Complainant Bhale Dino during course of his examination was fair enough to state that both the appellants/accused present in Court are not same. By stating so, he belied his FIR, wherein it was stated by him that both the appellants/accused abducted boy Riaz Ahmed and then demanded from him the ransom of rupees Five Lacs for his release. No ransom money was paid to anyone for release of the abducted boy Riaz Ahmed. The only evidence which apparently prevailed with learned trial Court to convict and sentence the present appellants/accused for the above said offence was recovery of alleged abducted boy from them by police after due encounter. The encounter according to SIO/SIP Sadoro Khan continued for about 10 minutes yet none from the police personnel sustained any fire shot injury at the hands of present appellants/accused. The abducted boy was recovered safely from the present appellants/accused after causing fire-shot injury to appellant/accused Riaz Ahmed, which appears to be significant and smells of doubt because it has come on record that the boy was present on the middle of road on the both sides of which the parties were present and exchanging direct firing against each other. On point of recovery of abducted boy Mst. Shahida Khatoon (mother of the alleged abductee) came with a different version as according to her it was disclosed to her by the police that the abducted boy was recovered from the house of appellant/accused Abdul Wahid. Her such version could not be lost of sight. As per mashirnama of arrest and recovery, the numbers on the pistols allegedly secured from the appellants/accused were found erased but during course of examination, it was admitted by PW/Mashir ASI Haji Ameer Ali that one of the pistol produced in the Court is bearing words “CAL 7.53 M.M 30 bore” on its barrel. In that situation, the recovery of pistol at least from appellant/accused Abdul Wahid could be said to be doubtful one. The evidence of PW/SIP Khadim Hussain was to the extent that he was member of Joint Investigation Team and obtained the police custody remand of the accused from the court having jurisdiction. During cross examination, it was stated by him that he did not record statement of any person from the locality about involvement of the present appellants/accused in commission of the incident. If it was so, then it could be concluded safely that the investigation of the present case was not conducted in fair manner at least by SIO/SIP Khadim Hussain. The evidence of PW/Mashir Deedar Hussain is to the extent that mashirnama of place of incident was prepared by police in his presence. During course of his cross examination, it was stated by him that the contents of said mashirnama were not read over to him. If it was so, then no much reliance could be placed upon such mashirnama. The evidence of SIO/SIP Mumtaz Ali is to the extent that he recorded 161 Cr.PC statements of the PWs, made request to Magistrate having jurisdiction for recording of 164 Cr.PC of the witnesses and then submitted challan of the case before the Court having jurisdiction. During course of his cross examination, he was fair enough to admit that he recorded 161 Cr.PC statements of parents of the abducted boy on 24.11.2016, with delay of about eight days even to FIR which as said above was lodged on 17.04.2016. Such delay in recording of 161 Cr.PC statements of parents of abducted boy could not be lost sight of. It has also come on record that appellant/accused, Riaz Jagirani was related being distant cousin of mother of the abuctee as such known to the complainant party. In that situation, the abduction of boy on their part with demand of ransom, if is seen with delay in lodging of the FIR, is appearing to be doubtful.
11. The over-all discussion involved a conclusion that the involvement of the present appellants/accused in the case is not free from doubt. In that situation, the plea of innocence which the present appellants/accused took at trial and during course of their examination u/s.342 Cr.PC ought not to have been lost sight of by learned trial Court.
Result.
12. In view of the facts and reasons discussed above, the conviction and sentence recorded against the present appellants/accused by way of impugned judgment cannot be sustained, it is set-aside. Consequently, both of them are acquitted of the charge, they to be released forthwith, if they are no more required in any other case.
13. The reference for confirmation of death sentence of appellant/accused Riaz Ahmed is answered in negative.
14. Above are the reasons for our short order dated 01.03.2018, whereby both the appeals and reference of learned trial Court for confirmation of death sentence of appellant/accused Riaz Ahmed were disposed of in following terms:-
“For the reasons to be recorded later on, both the listed appeals are allowed. The convictions and sentences awarded to appellant, namely, Riaz son of Muhammad Bux @ Haji Koura Khan in Crl. Appeal No.D-08 of 2017, and appellant Abdul Wahid son of Allah Warayo in Crl. Jail Appeal No.D-11 of 2017, vide impugned judgment dated 06.03.2017, passed by Judge, Anti-Terrorism, Larkana, in Special Case No.22 of 2016, for offence punishable under sections 365-A, 34, PPC r/w S-7(e) of the Anti-terrorism Act, 1997, emanating from Crime No.54 of 2016 registered at Police Station Waleed Larkana, District Larkana, are set aside and the appellants are acquitted of the charge, as a result of which Crl. Reference No.D-02 of 2017 is replied in negative and is accordingly disposed of. They are directed to be released forthwith, if not required in any other case. “
J U D G E
Ashfaq.S.