IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Jail Appeal No.D- 46 of 2013

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

Appellants: Abdul Sattar S/o Nimano Machhi, Ghulam Akber S/o Ghulam Fareed Khokhar and Badshah alias Basho S/o Suhrab Machhi, through M/s Qurban Ali Malano, A.R Faruq Pirzada and Lutufullah Siyal, Advocates

Complainant: Khalil Ahmed Rajput, through Mr. Abdul Hameed Sangi, Advocate

The State, through Mr. Aftab Ahmed Shar,

Additional Prosecutor General

Date of hearing: 14.02.2019

Date of decision: 14.02.2019

J U D G M E N T

IRSHAD ALI SHAH, J-. The appellants by way of instant Criminal Jail appeal have impugned Judgment dated 18.06.2013 passed by learned Judge Anti-Terrorism Court Naushahro Feroze, whereby they for offence punishable under section 365-A r/w Section 149 PPC r/w Section 7 (e) of Anti-Terrorism Act, 1997 have been convicted and sentenced to undergo imprisonment for life. In addition to above, appellant Abdul Sattar has also been convicted u/s 13(d) Arms Ordinance and sentenced to imprisonment for four years with benefit of Section 382-B Cr.P.C.

2. The facts in brief necessary for disposal of instant appeal are that the appellant with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object abducted PW Shahid Ali for ransom, for that they were booked and reported upon by the police.

3. At trial, the appellant did not plead guilty to the charge and prosecution to prove it, examined PW-1 complainant Khalil Ahmed (Ex.17), he produced FIR of the present case; PW-2 Shahid Ali (Ex.18), he produced his 164 Cr.P.C statement; PW-3 Mashir Muhammad Idrees (Ex.19), he produced memo of place of incident; PW-4 ASI Allahdad (Ex.20), he produced memo of arrest of appellant Abdul Sattar and recovery of unlicensed Kalashnikov from him; PW-5 Mr. Khalid Hussain, the then Civil Judge and Judicial Magistrate Kandiaro (Ex.21), he produced 164 Cr.P.C statement of PW Khalid Hussain; PW-6 ASI Gulzar Ali (Ex.22); PW-7 ASI Gul Hassan (Ex.23), he produced memo of arrest of appellant Badshah alias Basho; PW-8 HC Abdul Qayoom (Ex.24); PW-9 SIP Ghulam Murtaza (Ex.26); PW-10 Inspector Abdul Majeed Arain (Ex.27) and then closed the side.

4. The appellants during course of their statements recorded u/s 342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that nothing has been secured from them. Neither any of them examined anyone in their defence or themselves on oath in disproof of the prosecution’s allegation.

5. On the basis of evidence, so produced by the prosecution, the learned Judge Anti-Terrorism Court Naushahro Feroze convicted and sentenced the appellants, as stated above.

6. It is contended by learned counsel for the appellant Ghulam Akber that he being innocent has been involved in this case falsely by the complainant party in order to satisfy their enmity with him over plot, his name is not appearing in FIR though it is lodged with delay of about twelve days to the incident, the evidence which has been produced by the prosecution being inconsistent has wrongly been believed by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant Ghulam Akber.

7. It is contended by learned counsel for appellants Abdul Sattar and Badshah alias Bashoo that they being innocent have been involved in this case falsely by the complainant party in order to satisfy their enmity with them over landed property, the material evidence has been withheld by the prosecution without lawful justification and evidence which is produced by the prosecution being inconsistent was highly doubtful in its character. By contending so, they sought for acquittal of appellants Abdul Sattar and Badshah alias Bashoo.

8. Learned Additional PG for the State and learned counsel for the complainant by supporting impugned judgment have sought for dismissal of instant appeal.

9. We have considered the above arguments and perused the record.

10. It is stated by complainant Khalil Ahmed that on 25.8.2008 when he and his son Shahid Ali were working in their lands, there at night time came eight culprits duly armed with weapons, they under the light of torch were identified by them to be Sattar Machhi, Bashoo Machhi, Iman Machhi, Sachoo Khaskheli, Gulzar Khaskheli, Qaiser Khaskheli, Akber Khokhar and one unknown culprit. By introducing the name of Akber Khokhar the complainant has improved his FIR wherein name of Akber is not taking place, such improvement indeed is appearing to be dishonest. The identity of the culprits under the torch light even otherwise is appearing to be a weak piece of evidence. It was further stated by the complainant that the said culprits then abducted him and his son Shahid Ali and after covering some distance let him go by asking him to arrange rupees Ten lac as ransom for release of his son Shahid Ali. By stating so, complainant has improved his version in FIR wherein it was stated by him that culprits abducted his son Shahid Ali alone for ransom. The complainant has not been able to explain which circumstance prevented him for reporting the incident to police promptly. In that situation, the delay in lodgment of the FIR could not be lost sight of.

11. In case of In case of Mehmood Ahmed and others vs. The State and others (1995 SCMR 127), it has been held by Hon’ble Apex Court that;

“that delay of two hours in lodgment of FIR in the particular circumstances of the case has assumed great significance as the same could be attributed to consultation, taking instruction and calculatedly preparing the report keeping the names of accused open for roping in such person whom ultimately the prosecution might wish to implicate.”

12. Be that as it may, it has further been stated by the complainant that on 25.08.2008, he came to know through his well‑wishers that his son Shahid Ali has been kept confined by culprits in Sugarcane crop of Machhis, such information he passed on to police, he and police party led by SIP Mir Imdad Ali went at the place of captivity of his son Shahid Ali. Police undertook an encounter with the culprits, as a result whereof, his son Shahid Ali was secured with arrest of appellant Abdul Sattar with recovery of unlicensed Kalashnikov while rest of the culprits made their escape good. Significantly such encounter as per complainant proved to be ineffective one. SIP Mir Imdad Ali who allegedly secured the abductee Shahid Ali, arrested appellant Abdul Sattar with recovery of Kalashnikov from him, the prosecution has not been able to examine without lawful justification. In that situation, it would be safe to conclude that the prosecution has failed to prove the allegation of recovery of abductee Shahid Ali after encounter or arrest of appellant Abdul Sattar with recovery of Kalashnikov from him. PW Shahid Ali has attempted to support complainant Khalil Ahmed by stating that they both were abducted by the culprits and then his father Khalil Ahmed was let by the culprits to go to arrange for ransom for his release. By stating so, he contradicted his version in his 164 Cr.P.C statement wherein it was stated by him that he alone was abducted by the culprits. Such contradiction on part of PW Shahid Ali could not be lost sight of. Be that as it may, it was further stated by PW Shahid Ali that his 161 Cr.P.C statement was not recorded by police on the date of his release. Why not on the date of his release? The explanation to it which is offered by the complainant was that PW Shahid Ali was ill. Nothing has been brought on record by the prosecution which may suggest that PW Shahid Ali on his release from captivity was ill and such illness prevented him from making his 161 Cr.P.C statement.

13. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained.”

14. As said above, it was claimed by the complainant that he was available with the police at the time of encounter with the culprits. It was contrary to his earlier statement dated 02.02.2011 wherein it was stated by him that he was intimated by the police that his son Shahid Ali has been got released after an encounter. In such situation, the evidence of the complainant being contradictory and doubtful could hardly be relied upon.

15. In case of Muhammad Akram vs. The State (2009 SCMR 230), it has been held by Honourable Apex Court that;

“For giving benefit of doubt it is not necessary that there should be many circumstances creating doubt. Single circumstances creating reasonable doubt in a prudent mind about the guilt of the accused makes him entitled to its benefit not as a matter of grace and concession but as a matter of right.”

16. The discussion involved 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 awarded to the appellants.

17. Above are the reasons of short order dated 14.2.2019, whereby the instant Criminal Jail Appeal was allowed with the following observation;

“Heard arguments of learned counsel for the appellant, learned counsel for complainant and Additional PG. Reasons to follow, instant Jail Appeal is allowed, the conviction and sentence awarded to the appellants under the impugned judgment dated 18.06.2013 passed by learned Judge Anti‑Terrorism Court Naushahro Feroze in Special Case No.05/2012 arising out of Crime No.75/2008 P.S Khanwahan and Special Case No.06/2012 arising out of Crime No.76/2008 P.S Khanwahan, is set-aside and the appellants are acquitted from the charge. The appellant Ghulam Akber, is present on bail, his bail bond stands cancelled and surety discharged while appellants Abdul Sattar and Badshah alias Bashoo are in custody and they are directed to be released forthwith, if not required in any other criminal case.”

Judge

ARBROHI