IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. D – 127 of 2013

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

Appellants : Imran, Ghulam Akber and Haji Khan

through Mr. A.R Faruq Pirzada Advocate

Respondent : The State through Abdul Rehman Kolachi DPG

Date of hearing : 13.03.2019

Date of decision: 13.03.2019

JUDGMENT

IRSHAD ALI SHAH, J:- The appellants by way of instant Criminal Jail Appeal have impugned judgment dated 16.12.2013 passed by learned Judge, Anti-Terrorism Court Naushehro Feroze, whereby they for offence punishable U/S 365-A, 34 PPC read with section 7 (c ) of A.T. Act 1997 have been convicted and sentenced to suffer R.I for life. Additionally they were also convicted for offence punishable under section 13(d) A.O and sentenced to undergo RI for 3 years and to pay fine of Rs.10,000/- each and in case of default to undergo S.I for three months. All sentences were ordered run concurrently with benefit of section 382-B Cr.P.C.

2. The facts in brief necessary for disposal of instant appeal are that the appellants with rest of the culprits allegedly abducted complainant Zahid Mehmood and PW Muhammad Ramzan and then led the complainant go to arrange ransum money for release of his brother Muhammad Ramzan for that they were booked and reported upon by the police.

3. At trial, the appellants and co-accused Sanaullah and Muhammad Din did not plead guilty to the charge and prosecution to prove it, examined PW-1 complainant Zahid Mehmood (Ex.4), he produced FIR of the present case; PW-2 Shahzad Akhter (Ex.5), PW-3 Muhammad Ramzan (Ex.6), he produced his 164 Cr.P.C statement; PW-4 Waqas Arif (Ex.7), he produced memo of place of incident; PW-5 Liaquat Ali (Ex.8); PW-6 HC Ghulam Mustafa (Ex.9); he produced memo of arrest and recovery of accused, roznamcha entries, copy of FIR crime No.94/2012 of PS Padidan. PW-7 Mr. Zaffar Hussain Civil Judge & Judicial Magistrate at Ex.10, he produced 164 Cr.P.C statement of abdcutee Muhammad Ramzan. PW 8 Inspector Abdul Sattar Ujjan at Exh. 12, he produced roznamcha entry, memo of arrest and recovery of accused Sanaullah, Imran and Ghulam Akber, FIR crime No.87/2012 PS Padidan, copy of FIR No. 88/2012 of PS Padidan, copy of FIR crime No. 89/2012 of PS Padidan, copy of FIR crime No.90/2012 PS Padidan. PW-9 ASI Muhammad Azeem at Exjh.13, he produced memo of examination of vehicle, memo of place of incident, PW 10 mashir PC Qurban Ali at Exh. 14, he produced memo of placeof incident, PW 11 ASI Khadim Hussain, he produced memo of arrest of Haji Khan , entry, copy of FIR crime No.93/2012 PS Padidan. PW12 Inspector Abdul Majeed Arain at Exh. 17, he produced memo of place of incident, report of Expert, PW 13 HC Amanullah at Exh.18 and then closed the side.

4. The appellants and co-accused Sanaullah alias Sani and Din Muhammad during course of their examination u/s 342 Cr.P.C denied the prosecution allegation by pleading innocence by stating that the weapons have been foisted upon them, they did not examine themselves on oath or any one in their defence.

5. On the basis of evaluation of evidence, so produced by the prosecution, learned trial Court acquitted co-accused Sanaullah alias Sani and Muhammad Din while convicted and sentenced the appellants, as stated above.

6. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party; there is delay of about five days in lodgment of FIR which is not explained plausibly by the prosecution and the evidence which is produced by the prosecution at trial being inconsistent and doubtful has been relied upon by the learned trial Court without lawful justification only to record conviction against the appellant. By contending so, he sought for acquittal of the appellants.

7. Learned Additional PG for the State by supporting impugned judgment sought for dismissal of the instant appeal.

8. We have considered the above argument and perused the record.

9. It is stated by the complainant that on 16.06.2012 when he and his brothers PWs Muhammad Ramzan and Shahzad were going to their house when reached at the graveyard of Fatan Fakir, there they found four culprits, they were identified by them under the light of bulb to be Imran with Repeater, Haji Khan Lashari with K.K, Ghulam Akber with Repeater and Sanaullah alias Sani with Repeater. If for the sake of arguments it is believed that complainant was able to identify the said culprits under the light of bulbs then it appear to be weak piece of evidence. It was further stated by the complainant that they took away PW Muhammad Ramzan with them asking him and PW Shahzad to arrange for money for return. If it was so, then the complainant was under lawful obligation to lodge FIR soon after the occurrence, same was lodged on 21.06.2012 with delay of about 5 days, that too after consultation with elder, which has made the evidentiary value of his version and his FIR to be doubtful.

10. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it was observed by the Hon’ble Court that;

“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.

11. PW Shahzad did not implicate accused Sanaullah alias Sani, on such account he was declared to be hostile. PW Muhammad Ramzan did not implicate accused Sanaullah alias Sani and Muhammad Din. By doing so he too has made his version to be doubtful. It is stated by Inspector Abdul Sattar Ujjan that on 21.06.2012 he came to know that abductee Muhammd Ramzan is going to be shifted from the place of his abduction. On such information he with his police party left PS Padidan under roznamcha entry No.17 at about 1930 hours and then proceeded to the place of information and then recovered abductee Muhammad Ramzan from the captivity of the culprits after an encounter though continued for about 25 minutes yet proved to be ineffective one which appears to be strange and reflect doubt about the very encounter. It was further stated by him that with recovery of said abdcutee he also arrested accused Ghulam Akber, Imran and Sanaullah alias Sani with their respective weapons and then prepared such mashirnama, such mashirnama as per ASI Muhammad Azeem was prepared by one constable. Who that police constable was ? it is not made known by the prosecution. In that situation no much reliance could be placed upon such mashirnama or alleged recovery.

12. On the basis of same evidence accused Sanaullah alias Sani and Muhammad Din were acquitted for offence punishable U/S 365-A, 34 PPC read with section 7 (c ) of A.T. Act 1997 while the appellants were convicted, such disparity could not be over looked.

13. In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR-344), it was held by the Hon’ble Court that;

“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.

14. The conclusion which could be drawn of the above discussion would be that the prosecution has not been able to prove its case against the appellants too beyond shadow of doubt.

15. In case of Tarique Bashir vs. The State (1995 SCMR 1345), it has been held by Hon’ble 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.”

16. Above are the reasons of short order dated 13.03.2019 whereby the instant appeal was allowed in following terms;

“Reasons to follow, instant appeal is allowed, conviction and sentence awarded to the appellants Imran, Ghulam Akbar and Haji Khan by the Court of learned Special Judge ATC Naushahro Feroze vide judgment dated 16.12.2013 is set aside and appellants are acquitted from the charge. The appellants are in custody and they shall be released forthwith, if not required in any other criminal case.”

Judge

ARBROHI