IN THE HIGH COURT OF SINDH,
BENCH AT SUKKUR
Criminal Jail Appeal No. D 70 of 2013
Before;
Mr. Justice Muhammad Iqbal Mahar
Mr. Justice Irshad Ali
Shah
Appellants : Zahid Hussain, Riaz Hussain
and Javed
Ali, through Mr. Nisar
Ahmed Bhanbhro
Advocate
Respondent : The
State, through Syed Sardar Ali Shah
Deputy
Prosecutor General
Date of hearing : 24.01.2019
Date of decision: 24.01.2019
JUDGMENT
IRSHAD ALI SHAH, J:- The appellants by way of instant Criminal Jail
Appeal have impugned judgment dated 27.08.2013 passed by learned Judge,
Anti-Terrorism Court Khairpur, whereby they with
co-accused Ghulam Sarwar
(now has died) have been convicted and sentenced as under;
Therefore,
they all are convicted for offence punishable u/s 365-A r/w Section 149 PPC and
sentence them to suffer Rigorous imprisonment for life, the moveable or
immovable property of all the above named accused persons also forfeited to the
State. I also convict all the above said four accused persons for the offence
punishable u/s 337(e) of Anti-Terrorism Act, 1997 for life.
2. The
facts in brief necessary for disposal of instant criminal jail appeal are that
the appellants and co-accused Ghulam Sarwar (now has died) with rest of the culprits after
having formed an unlawful assembly and in prosecution of their common object
abducted PW Mehdi Hassan and then let him go after acceptance of ransom of
rupees five lacs from his father Walidad,
for that they were booked and reported upon by the police.
3. At
trial, the appellants and co-accused Ghulam Sarwar (now has died) did not plead guilty to the charge
and prosecution to prove it, examined PW-1 Mehdi Hassan (Ex.14), PW-2 mashir Waheed Ali (Ex.15), he
produced memo of place of incident, PW-3 SIO/ASI Abdul Haq (Ex.16), he
produced list containing criminal record of accused, PW-4 SIO/SIP Din Muhammad
(Ex.19), he produced memo of arrest of accused Ghulam
Sarwar (now has died), PW-5 mashir
PC Illahi Bux (Ex.20), he
produced memo of arrest of accused Riaz Hussain and Zahid Hussain, PW-6
SIO/Inspector Fareed Ahmed (Ex.21), PW-7 HC Bakhat
Ali (Ex.24), PW-8 Complainant SIP Loung Khan (Ex.25),
and then closed the side.
4. The
appellants and co-accused Ghulam Sarwar
(now has died) during course of their examination u/s 342 Cr.P.C
denied the prosecution allegation by pleading innocence. They did not examine
any one in their defence. However, appellants Riaz Hussain and Zahid Hussain examined themselves on oath.
5. It
had, inter-alia, stated by appellants Riaz Hussain and Zahid Hussain in
their statements on oath that they have been involved in this case falsely by
PW Mehdi Hassan on account of his dispute with co-accused Ghulam
Sarwar on karap.
6. On
the basis of evidence so produced by the prosecution learned trial Court convicted
and sentenced the appellants, as stated above.
7. It is contended by learned
counsel for the appellants that the appellants being innocent have been
involved in this case falsely by the police in connivance with PW Mehdi Hassan,
the alleged abductee and the evidence so produced by the prosecution at trial
being inconsistent and doubtful has been believed by learned trial Court
without lawful justification. By contending so, he sought for acquittal of the
appellants.
8. Learned DPG for the State by
supporting the impugned judgment has sought for dismissal of the instant
appeal.
9. We have considered the above
argument and perused the record.
10. PW Mehdi Hassan allegedly was
abducted on 23.11.2008 but his abduction was not reported to police by way of
lodging any FIR by his relatives without any lawful explanation. The FIR of the
incident was lodged on 15.01.2009 by SIP Loung Khan on
behalf of State, in his capacity as SHO of police station Tando
Masti Khan that too on recovery of PW Mehdi Hassan.
It was with delay of about fifty days to the incident, such delay in lodgment
of FIR has not been explained plausibly as such same could not be lost sight
of. It was stated by complainant SIP Loung Khan
during course of his cross-examination at trial that he came to know of the
incident within one hour of its occurrence. If it was so, then he was under
lawful obligation to have recorded the FIR of the incident of his own promptly,
if the relatives of PW Mehdi Hassan were found reluctant to lodge the same. His
failure to do so without any lawful justification, could not be overlooked.
11. In case of Imran Ashraf and 07 others vs. The State (2001 SCMR 424), it has
been held by Honourable Apex Court that;
----S. 154---Police Rules, 1934, R.
24.5(c)---Registration of First Information Report in cognizable
cases---Exercise of powers by police-- Scope---Principles---Delay in
registration of F. I. R. ---Adverse effects section 154, Cr.P.C.
lays down procedure for registration of an information in cognizable cases and
it also indeed gives mandatory direction for registration of the case as per
the procedure. Therefore, police enjoys no jurisdiction to cause delay in
registration of the case and under the law is bound to act accordingly enabling
the machinery of law to come into play as soon as it is possible and if first
information report is registered without any delay it can help the
investigating agency in completing the process of investigation expeditiously.
Any slackness or lukewarm attitude by the registering authority of F.I.R. in
fact intends to help the accused involved in the commission of the offence.
Thus it is advisable that the provisions of section 154, Cr.P.C.
read with Rule 24.5(c) of the Police Rules, 1934 be adhered to strictly. There
should not be any negligence in recording the F.I.R. and supplying copies to
concerned quarters because departure from he
mandatory provision of law creates a room to doubt the truthfulness of the
allegation against the accused incorporated in F.I.R.
12. Complainant SIP Loung Khan even otherwise is not an eyewitness of the
incident as such no much reliance could be placed upon his evidence. PW/abductee
Mehdi Hassan during course of his examination at trial was fair enough to state
that on the date of incident when he was taking care of irrigation water at his
lands was abducted by eight culprits whose faces were found muffled. No
disclosure was made by him as to where his lands were situated, such omission
on his party could not be overlooked. It
was further stated by PW Mehdi Hassan that he was let to go by the culprits
when his father Walidad paid ransom of rupees five lacs to accused Ghulam Sarwar (now has died). Payment of ransom money, the
prosecution has not been able to prove on account of failure of prosecution to
examine PW Walidad on account of his death. Such
benefit could be extended to the appellants. Accused Ghulam
Sarwar who allegedly accepted the ransom money for
release of PW Mehdi Hassan now has died. His death also favour
the appellants. Admittedly, PW/abductee Mehdi Hassan was not secured from the captivity
of any of the appellants personally, which lead to make a conclusion that the
prosecution has not been able to prove its case against the appellants beyond
shadow of doubt. In these circumstances, it would be hard to maintain the
conviction and sentence against the appellants.
13. In
case of Tarique Bashir vs. The State (1995 SCMR 1345), it
has been held by Honble Apex Court that;
For giving benefit of doubt to an accused it
is not necessary that there should be many circumstances creating doubt- if a
simple circumstance creates reasonable doubt in a prudent mind about the guilt
of the accused, then he will be entitled to such benefit not as a matter of
grace and concession but as a matter of right.
14. For
the above said reasons, the instant appeal was accepted by us through short
order dated 24.1.2019 in the following terms;
Heard
arguments of learned counsel for the appellants and learned DPG. For the
reasons to be recorded separately, instant appeal is allowed, the conviction
and sentence awarded to appellants Javed Ali, Riaz Hussain and Zahid Hussain under the impugned
judgment dated 27.08.2013 passed by learned Judge Anti-Terrorism Court Khairpur in Special Case No.07/2009 arising out of Crime
No.05/2009 P.S B Tando Masti Khan is set aside and the appellants are acquitted
from the charge. The appellants are in jail and they are directed to be
released forthwith if not required in any other criminal case.
Judge
Judge
ARBROHI