IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Appeal No.D-07 of 2013.

Criminal Jail appeal No.D-10 of 2013.

Present.

Mr. Justice Mohammad Iqbal Mahar.

Mr. Justice Amjad Ali Sahito.

For hearing of main case.

Date of hearing. 06.09.2018.

Date of Judgment. 06.09.2018.

Appellants: Nazeer Ahmed Chachar and Abdul Ghaffar, through Mr. Rukhsar Ahmed Junejo, Advocate.

The State, Through Mr. Zulfiqar Ali Jatoi Addl.P.G.

J U D G M E N T

Amjad Ali Sahito, J:- By this common judgment, we propose to dispose of above captioned two criminal appeals, as in both appeals, the appellants have challenged the judgment dated 02.02.2013 passed by learned Special Judge, Anti-Terrorism Court, Khairpur Mir’s in Special Cases No.148/2010, 149/2010 and 150/2010 arising out of crime No.182/2010 Police Station, Tando Masti Khan, crime No.266/2010 and 267/2010 Police Station, Gambat, whereby they were convicted as under:

For offence under section 365-A r/w section 149 PPC and 7(e) of ATA, 1997 appellant-accused Abdul Ghaffar was sentenced to suffer R.I for life and his property was forfeited to the State and for offence under Section 13(d). Arms Ordinance, 1965 he was sentenced to suffer R.I for Five years and to pay fine of Rs.50,000/ and in default in payment of fine to suffer further R.I for one year.

For offence under section 324 r/w section 149 PPC both appellants/accused Nazeer and Abdul Ghaffar were sentenced in Crime No.266/2013 to suffer R.I for Ten years and to pay fine of Rs.50,000/- each. In case of default in payment of fine to suffer R.I for one year more.

For offence under section 353 r/w section 149 PPC both the appellants/accused were sentenced to suffer R.I for two years and to pay fine of Rs.20,000/- each and in case of default in payment of fine to suffer further SI for six months more.

However, benefit of Section 382-B Cr.P.C was extended to them and all the sentences awarded to the appellants-accused persons were ordered to run concurrently.

2. Precisely, prosecution case is that on 19.09.2010 at 2100 hours complainant Abdul Razzak Arain and his brother Muhammad Ashfaque were present on their land in connection with their rotation of water. In the meantime eight accused persons being armed with deadly weapons appeared there. The complainant party identified three of them on torch light to be Zulfiqar, Barkat and appellant Abdul Ghaffar. Out of them Zulfiqar was armed with G-3 Rifle while remaining were with Kalashnikovs. The accused persons challenged the complainant party to keep quiet else they would not be spared and forcibly kidnapped Mohammad Ashfaque. The accused persons asked the complainant to arrange for ransom amount and get released the abductee. The complainant raised cries which attracted Abdul Gafoor, Zulfiqar and other villagers who also saw the accused persons while kidnapping Muhammad Ashfaque. The complainant party tracked the foot prints of the accused persons but missed in Katcha side. He narrated the above facts to nek mard Wali Muhammad Khan Marri and himself took efforts for release of the abductee but on 08.11.2010 the accused persons refused to release the abductee, thereafter he went at Police Station and lodged the FIR.

3. It is further case of prosecution that on 08.11.2010 during patrolling, ASI, Mumtaz Ahmed received spy information that accused Umedoo and others were shifting abductee Mohammad Ashfaque Arain. He informed SDP and SHO Gambat and proceeded to link Road leading from Ripri and saw on head light of the mobile 8/9 persons who were identified as Umedo, Zulfiqar Ali, Abdul Gafar, Nazeer Narejo, Barkat, Laloo, Nazeer Chachar armed with deadly weapons and one empty handed. The police party challenged the accused persons where upon they started firing upon the police. The police also took position and retaliated firing and arrested appellant Abdul Gafar alongwith repeater while the remaining accused persons made their escape good. In the meantime one person from the accused side disclosed that he is abductee Muhammad Asfaque. ASI prepared mashirnama of arrest and recovery of repeater and abductee and brought the accused, abductee and property at PS and lodged FIR No.266/2010 U/Ss 324, 353, 148, 149 PPC against the accused persons and a separate FIR No.267/2010 under section 13(d). Arms Ordinance on behalf of the State.

4. The investigating officer of the case after completing investigation submitted challan against the accused persons. Learned trial Court observed all legal formalities and framed combined charge against the appellants at Ex.13, to which they pleaded not guilty and claimed to be tried such pleas were obtained at Ex.13-A and 13-B respectively.

5. In order to prove its case, the prosecution examined PW-1, complainant Abdul Razzak Arain at Ex.14, who produced FIR No.182/2010 of Police Station, Tando Masti Khan at Ex.14-A. PW-2, Abductee Mohammad Ashfaque Arain at Ex.15. PW-3 Abdul Ghafoor at Ex.16. PW-4 Gulzar Ahmed Arain at Ex.17, who produced mashirnama of place of wardat and mashirnama of arrest of accused Abdul Ghaffar and recovery, FIR No.266/2010, FIR No.267/2010 and roznamcha entries at Ex.18-A to 18-E respectively. PW-6 HC Khadim Hussain at Ex.19, who produced mashirnama of place of wardat at Ex.19-A. PW-7 PC Barkat Ali at Ex.21, who produced mashirnama of arrest of accused Nazeer Ahmed at Ex.21-A. PW-8 SIP/SIO Shafi Mohammad Maitlo at Ex.22, who produced roznamcha entry at Ex.22-A. PW-9 SIP, Zafaruddin Bajwa at Ex.23, who produced Jail certificate of accused Nazeer Ahmed, order of JIT and list of criminal record of accused at Ex.23-A to 23-C respectively. Thereafter, prosecution closed its side vide statement at Ex.24.

6. After conclusion of prosecution evidence, learned trial Court recorded statements of the appellants/accused as required U/s 342 Cr.P.C at Ex.25 and 26. The appellants accused denied the prosecution case and claimed their innocence. Appellant-accused Abdul Ghaffar further stated that no crime weapon was recovered from his possession but the same had been foisted by the police with malafide intention. Appellant/accused Nazeer Ahmed stated that the private complainant, witnesses including abductee have not implicated him but the Police officials with malafide intention have deposed against him as they are interested witnesses. However, neither they examined themselves on oath nor produced any witness in their defence.

7. The learned trial Court after hearing learned Counsel for appellants, learned DDPP for the State and appraising the prosecution evidence passed impugned judgment.

8. Learned counsel for the appellants/accused contended that the appellants are innocent and have falsely been implicated in the cases; that there is delay of more than one month in lodging the FIR, which is fatal to the prosecution case; that the prosecution story as setup in the FIR appears to be false, fabricated and unbelievable; that neither the name of appellant/accused Nazeer Ahmed appears in the FIR nor identification parade was held; that the private witnesses did no implicate appellant Nazeer Ahmed in their evidence; that neither he was arrested at the spot nor crime weapon was recovered from his possession; that the identification of appellant/accused Nazeer Ahmed is shown on head light of vehicle at dark hours of the night, which is a weak piece of evidence; that there are major contradictions in the evidence of P.Ws which creates doubt. He lastly concluded that the prosecution has failed to prove its case against the appellants/accused beyond reasonable doubt, hence impugned judgment passed by learned trial Court is liable to be set aside.

9. Conversely, learned Addl.P.G while refuting the contentions of learned Counsel for the appellants submitted that appellant Abdul Ghafar is real culprit, he was nominated in the FIR with specific role; that during encounter he was arrested at spot alongwith unlicensed repeater when abductee was recovered; that he has been implicated by all the prosecution witnesses including abductee in their evidence. He maintained that the prosecution has proved the guilt to the hilt by producing forthright eye witness account duly supported by circumstantial evidence to the extent of appellant Abdul Ghafar, therefore, he is not entitled for acquittal. However learned Addl.P.G tendered no objection for the acquittal of appellant Nazeer Ahmed.

10. We have heard the arguments of learned Counsel for the appellants, learned Addl.P.G for the State and have examined the evidence available on record minutely.

11. On evaluation of the material brought on the record, it appears that case of prosecution mainly depends upon the ocular testimony furnished by the prosecution in shape of evidence of complainant Abdul Razzak (PW-1) and eye witness abductee Mohammad Ashfaque being star witness (PW-2) and Abdul Ghafoor and their evidence is corroborated by LPC Mumtaz Ahmed (PW-5) in his presence during encounter the abductee Mohammad Ashfaque was remained. Finally Investigating Officer Shafi Mohammad was examined including circumstantial evidence of rest of witnesses. Complainant Abdul Razzak (PW-1) deposed in his evidence on 19.09.2010 that he along with Mohammad Ashfaque and his elder brother were present in their land eight accused persons whose faces were opened came there along with deadly weapons. He identified three accused persons namely Zulfiqar Ali alias Zulfoo Mari, Abdul Ghaffar alias Boro Langah and Barkat Ali forcibly abducted brother of the complainant Mohammad Ashfaque for ransom in the end of the evidence he deposed that “Accused Abdul Ghaffar Langah present in Court is same. Accused Zulfiqar has expired away and accused Barkat Ali is still absconder and rest of the accused namely Nazeer present before the Court I could not identify”. In cross examination he denied the suggestion that he has falsely implicated accused Ghaffar Langah in the present case. Mohammad Ashfaque (PW-2) who has supported the version of the complainant. He further deposed that “I remained under the custody of accused for about 50/55 days and thereafter I was released by the Police during Police encounter at Pir Gillani when the accused persons shifted me from one place to another place. Police has also arrested one accused Ghaffar Langhah during said encounter”. In the last he has identified the accused in the Court but he has not identified appellant Nazeer in the Court during his evidence at the time of abduction my brother was directed to arrange the ransom amount”.

12. The police during encounter arrested appellant/accused Abdul Ghafar, recovered abductee and repeater gun, for which he could not produce any valid license. The other private witnesses, including official witnesses fully implicated appellant Abdul Ghafar. All the PWs identified him in Court at the time of recording of their evidence. The prosecution witnesses were subjected to lengthy cross examination but learned Counsel for the appellant was unable to shatter their evidence with regard to the case of appellant/accused Abdul Ghafar and nothing could be brought on record in his favour. Furthermore, the appellant has failed to show any enmity/motive with the private or official witnesses for his false implication in the case. The contradictions in evidence of witnesses with regard to the role of appellant/accused Abdul Ghafar, as pointed out by learned Counsel, are minor and due to lengthy cross examination and passage of time as the witnesses were examined before trial Court after about two years of the incident and on the basis of such minor contradictions the ocular evidence cannot be discarded but same can be ignored. In this respect reliance can be placed upon case of GHULAM HUSSAIN SOOMRO V. The STATE (PLD 2007 SC 71). The Honourable Supreme Court has observed as under;

“Case of kidnapping for ransom were to be dealt with iron hands and even if there were minor discrepancies and deviations in evidence or shortfalls on part of investigating agency, the Courts were always to be dynamic and pragmatic in approaching true facts of the case and drawing correct and rational inference and conclusions arising out of facts and circumstances of each case”.

The ocular evidence in respect of appellant/accused Abdul Ghafar is corroborated by circumstantial evidence, therefore, we are of the opinion that the prosecution has successfully proved its case against him beyond any shadow of doubt.

13. Adverting to the contention of learned Counsel for the appellants that there is delay in lodging the FIR, it is necessary to mention here that delay in FIR is explained by the complainant that after the incident he approached the accused persons for recovery of abductee, who kept him on false hopes. Even otherwise, in cases of like nature the complainant party uses to avoid to register the FIR immediately and try to make safe recovery of person kidnapped by the accused. Furthermore, appellant Abdul Ghafar has not alleged any enmity with the complainant party or with the police, hence delay in FIR is of no consequence. In cased of Ghulam Hussain Soomro v. The State (supra) the Honourable Supreme Court has held as under;

“Mere delay in lodging of FIR was not always fatal to prosecution cases, though in some cases it might militate against bonafides of prosecution. In cases involving kidnapping of young persons for ransom, parents as well as police invariably try their best to locate the victim rather than promptly lodging FIR for fear of death of victim. No adverse inference was to be drawn against prosecution on ground of delay alone in lodging of FIR.

14. So far as the case of appellant Nazeer Ahmed is concerned, his case is on different footings than the case of appellant/accused Abdul Ghafar. As per prosecution case, neither he was nominated in the FIR nor was arrested at spot by the police during encounter and nor any weapon was recovered from his possession. Even after his arrest he was not put in identification parade. Furthermore, the complainant and his witnesses, including abductee, did not identify him in Court. Apart from above, there is no sort of corroboration which connects him with the commission of offence. So keeping in view the above discussion, we are of the opinion that the prosecution has failed to prove its case against appellant Nazeer Ahmed beyond any shadow of doubt. The learned Addl.P.G has rightly conceded for his acquittal.

14. The upshot of above discussion is that the prosecution has successfully proved the case against appellant/accused Abdul Ghafar beyond any shadow of doubt, therefore, Crl. Jail Appeal No. 10/2013 filed by him was dismissed and the sentence awarded by learned trial was maintained while the criminal appeal No.07/2013 filed by appellant Nazeer Ahmed was allowed and he was acquitted of the charge by extending benefit of doubt by our short order dated 06.09.2018. Appellant Nazeer Ahmed was present on bail, his bail and bond was canceled and surety discharged. The above are the reasons of our short order.

JUDGE

JUDGE

Ihsan.