IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Before:-

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah.

Crl. Jail Appeal No.D- 100 of 2017.

Appellant: Ranjhan alias Ranjho son of Waryam.

Through Mr. Dareshani Ali Hyder ‘Ada’ advocate.

Cr. Appeal No.D-97 of 2017.

Appellant: Mehdi Dino son of Muhammad Bachal Larik,

Through Mr. Manzoor Hussain Larik, advocate.

Cr. Jail Appeal No.D-141 of 2018.

Appellant: Kashmir alias Kashoo son of Baig Muhammad

Phulpoto in person.

Respondent: The State, through Mr. Aftab Ahmed Shar,

Additional Prosecutor General.

Date of hearing: 21-05-2019

Date of decision: 21-05-2019

JUDGMENT

IRSHAD ALI SHAH, J; The appellants by way of captioned appeals have impugned judgment dated 13-07-2017 passed by learned Anti-Terrorism Court Khairpur whereby they have been convicted and sentenced as under:-

“All the above named three accused are liable to be punishable for the charge under section 365-A r/w section 149 PPC and they are awarded sentence rigorous imprisonment for life each. The moveable or immoveable property of all said accused persons also be forfeited to the State. I also convict the Mehdidino and Ranjhan for an offence punishable under section 324 r/w section 149 PPC and sentence them to suffer R.I for ten years each and to pay the fine of Rs. 25,000/- each. In case of default in payment of fine they shall suffer further R.I for six months each. I also convict accused Mehdidino and Ranjhan for an offence punishable under section 353 r/w section 149 PPC and sentence them to suffer R.I for two years each. I also convict accused Mehdidino and Ranjhan for an offence punishable under section 342 r/w section 149 PPC and sentence them to suffer R.I for one year each.

The prosecution also proved its case bearing Crime No. 65/2012 in respect of recovery of KK looks like rifle from accused Mehdidino which was also separately registered and was amalgamated by this Court for joint trial as envisaged in section 21 (m) of ATA, 1997, therefore I further convict the accused Mehdidino for an offence punishable under section 13(d) Arms Ordinance and sentence him to suffer R.I for five years and to pay the fine of Rs. 10,000/-. In case of default in payment of fine, he shall suffer further S.I for two months.

I also convict all the above named three accused persons for the offence punishable under section 7 (e) of ATA, 1997 and sentence them to suffer rigorous imprisonment for life”

2. It is the case of the prosecution that PWs Muhammad Aslam, Asghar Rind, Muhammad Iqbal and Ameer Pathan assembled to have discussion for return of motorcycle, which was taken away by unknown culprits from custody of Muhammad Iqbal, they accordingly were taken by appellant Kashmir alias Kashoo to some unknown place under the pretext to get return their motorcycle after payment of ransom money, they were abducted and/or kept confined illegally by the appellants and others for ransom. SIP Hafeezullah Mashori of PS Faiz Muhammad Narejo came to know through spy information that said abductees have been detained by the appellants and others in Katcha area by the side of Pattan of Raja Mangnejo. On such information he with rest of police personnels of different police stations went at the place of incident, there undertook an encounter with the culprits and then apprehended appellant Mehdidino with unlicensed Kalashnikov and secured PWs Ameer, Asghar, Muhammad Iqbal, Aslam and Kashmir alias Kashoo (appellant) from the captivity and then lodged FIR of the present case against them. On due investigation, the appellants were challaned before learned trial Court to face trial for the above said offence.

3. At trial the appellant did not plead guilty to the charge and prosecution to prove it examined PW/1 complainant SIP Hafeezullah Mashori at (Ex. 12, he produced roznamcha entry, mashirnama of arrest and recovery, FIR Crime No. 64/2012 and FIR Crime No. 65/2012, PW/2 Muhammad Aslam Kalhoro at (Ex. 15, PW/3 Muhammad Iqbal Abro at (Ex. 16), PW/4 Muhammad Aamir Pathan at (Ex. 17), PW/5 Asghar Ali Rind at (Ex. 18), PW/6 SHO Hakim Ali Jalbani at (Ex. 19), he produced roznamcha entry and memo of arrest of accused Kashmir, PW/7 I.O/Inspector Muhammad Ameen Patha at (Ex. 20) he produced ballistic expert report and then learned DDPP for the State closed his side vide statement at (Ex. 21).

4. The appellants in their statements recorded u/s 342 CrPC denied the prosecution allegation by pleading innocence by stating that they have been involved in this case falsely by the police. They did not examine any one in their defence or themselves on oath.

5. On conclusion of the trial, learned trial Court convicted and sentenced the appellants as stated above.

5. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police; no FIR with regard to the abduction of the abductees was lodged by their relatives; soon after their abduction, the encounter proved to be in effective one; the evidence which the prosecution has produced before learned trial Court being inconsistence and doubtful has been believed by learned trial Court without lawful justification. By contending so, they sought for acquittal of the appellants.

6. Learned APG for the State half heartedly opposed the acquittal of the appellants.

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

8. If for the sake of arguments, it is believed that PWs Ameer, Asghar, Muhammad Iqbal and Aslam were actually abducted by the appellants and others for ransom, then such abduction ought to have been reported by their relatives to the police soon after their abduction. It was not done for no obvious reason, which has made the allegation of their abduction for ransom to be doubtful. Lodgment of FIR on the recovery that too by police officer on behalf of state is significant. It is stated by complainant SIP Hafeezullah that he went at the place of incident on information. If it was so, then he was under lawful obligation to have associated with him independent person to have witnessed the arrest of the culprits and recovery of the alleged abductees. It was not done by him, for no obvious reason, which has made the very proceeding by the complainant with his police party to the place of incident on information to be doubtful. At place of incident as per the complainant, he undertook an encounter with the appellants and others, which continued for about twenty (20) minutes. Surprisingly it proved to be in effective in all respects. In effective firing is always to be judge with doubt in case like the present nature. In consequence of such encounter as per the complainant, he not only apprehended appellant Mehdidino with Kalashnikov, but got released abductees/PWs Ameer Pathan, Asghar Rind, Muhammad Iqbal and Aslam Kalhoro. By stating so, he was fair enough to say that appellant Kashmir alias Kashoo was also got released by him along with abductees and he does not know, how the investigating officer has implicated him as an accused in this case. By stating so, the complainant has made the involvement of Kashmir alias Kashoo to be doubtful one. The arrest of appellant Mehdidino together with Kalashnikov allegedly by the complainant is belied by PWs Muhammad Aslam and Asghar Ali by stating that he was not amongst the culprits. If he was not amongst the culprit, then his arrest with recovery of Kalashnikov at the place of incident by the complainantis appearing to be doubtful. As per FIR, appellant Ranjho at the time of incident was identified by SIO/SIP Hakim Ali. Such identity of appellant Ranjho on part of SIO/SIP Hakim Ali at the time of incident is appearing to be doubtful as both of themhardly were known to each other prior to the incident. On arrest, appellant Ranjho was not subjected to identification by the complainant and his witnesses, the alleged abductees, which has made the involvement of appellant Ranjho to be doubtful. No ransom is paid. In these circumstances it would be safe to conclude that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt.

9. In case of Tarique Pervez 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.”

10. For what has been discussed above, the impugned judgment is set-aside, consequently, the appellants are acquitted of the offence for which they were charged, tried and convicted by learned trial Court, they are in jail, they shall be released forthwith in present case.

11. The captioned appeals are disposed of in above terms.

Judge

Nasim/P.A