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
Judge
Nasim/P.A