JUDGMENT SHEET

HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD.

Present:

1. Mr. Justice Amir Hani Muslim,

2. Mr. Justice Irfan Saadat Khan.

Cr. J. A. No.D-221 of 2004.

Rasheed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Appellant.

Versus.

The State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Respondent.

Appellant: Through Mr. Talib Hussain Chandio, Advocate alongwith Mr. Shahzad Ali Shah, Associate of Mr. Sayed Sajid Muneer Shah, Advocate.

Respondent the State: Through Mr. Muhammad Iqbal Kalhoro, Additional Prosecutor General.

Date of hearing: 21.10.2010.

Date of judgment: 21.10.2010.

J U D G M E N T.

IRFAN SAADAT KHAN,J.- This Criminal Jail Appeal has been filed against the judgment dated 6.12.2004, given by Judge, Anti-Terrorism Hyderabad and Mirpurkhas Divisions at Hyderabad (A.T.C.), wherein the present appellant namely Rasheed son of Muhammad Siddiq Brohi was found guilty under section 365-A P.P.C., r/w section 6 of the Anti-Terrorism Act 1997 and was convicted and sentenced for life imprisonment with fine of Rs.100,000/- and in default of payment of fine the appellant was further sentenced to undergo rigorous imprisonment for one year more under section 7(e) of the Anti-Terrorism Amendment Ordinance 2001. However, benefit of section 382-B Cr.P.C. was extended by the learned A.T. Court to the appellant.

2. Facts as they appear from the record are that on 09.5.2002 at about 8.00 p.m. near village Muhammad Bachal Khaskheli, District Hyderabad, the present appellant/ accused alongwith the absconding accused persons namely (1) Jaffar S/o Sattardino Kerio, (2) Badal S/o Sattardino Kerio, (3) Yousuf S/o Moula Bux Mari and (4) Muhammad S/o Muhammad Idrees duly armed with deadly weapons took the abductees namely Jan Muhammad Khaskheli and his son Khan Muhammad Khaskheli by force. The accused persons took both the above named abductees to the Jungle and kept them under their illegal confinement for more than two months in Khebrani Forest. The motive behind the kidnapping was to extort money by way of ransom. As per the prosecution, this act of the accused persons had created sense of insecurity and terror, which is triable and punishable under the A.T. Act. The police received spy information that some persons are kept in captivity in Khebrani Jungle and raided at the pointed area. Firing took place between the police party and the accused persons, thereafter the abductees, some how or the other managed to flee away from the captivity of the accused persons and reached the police party, who took them to the police station and thereafter the F.I.R. was lodged. The matter thereafter proceeded before the Anti-Terrorism Court who after finding the accused persons guilty of the charges convicted them by the impugned judgment.

3. Mr. Talib Hussain Chandio Advocate alongwith Mr. Shahzad Ali Shah, Associate of Mr. Sayed Sajid Muneer Shah, Advocate appeared on behalf of the appellant and contended that there are material contradictions in the depositions of the prosecution witnesses. As per the learned counsel, the time of the encounter with the police, as at one place mentioned as half an hour, whereas at the other place it has been mentioned as two and half hours. As per the learned counsel there are also contradictions with regard to the allegation that whether the abductees were chained or not. He, however, candidly conceded that there is no animosity between the abductees and the accused persons. The learned counsel further submitted that no identification parade took place which, according to him, was a major legal lacuna and non fulfillment of this legal requirement entails acquittal of the appellant as reasonable doubt had been created in the prosecution case. The learned counsel, during the course of the arguments, also admitted that it has no where been before the Anti-Terrorism Court that the abductees had ever deposed falsely or they had leveled the charges against the appellant due to some malafide intention. The learned counsel has also conceded that the abductees had identified the accused person in the Court during the trial. As per the learned counsel the F.I.R. has been lodged after a period of more than two months of which no plausible explanation has been given and such delay caused in lodging the said F.I.R. has, in his opinion, weaken the case of the prosecution and the appellant thus is liable to be acquitted due to this lapse. He further asserted that all the other accused persons are absconding and there is no criminal record prior to this case, of the appellant. In the end, the learned counsel submitted that in view of the averments made by him, the appellant is liable to be acquitted.

4. The learned A.P.G. on the other hand vehemently and vociferously opposed the submissions made by the learned counsel for the appellant. He submitted that there is no contradiction with regard to either identification of the appellant or to the incident. The appellant was identified by the abductees. He submitted that there is no question of delay in lodging of the F.I.R. as admittedly the abductees were kept by the appellant in illegal confinement for more than two months and the moment they got themselves released from the appellant they instantly lodged the F.I.R., hence there could not be any question with regard to the delay of the F.I.R. He further submitted that the question of identification is also misconceived, as the appellant had been identified by the abductees, hence there could be no question of identification parade in this regard. As per the learned A.P.G. the depositions of the P.Ws. have remained un-shattered, therefore, the prosecution has been able to bring home its case without any iota of doubt and the judgment passed by the Anti-Terrorism Court being a well reasoned and a speaking judgment may be affirmed.

5. We have heard both the learned counsel and have perused the record. The deposition of the P.W-1 reveals that at the time of encounter the armed persons disclosed their names as Rasheed, Muhammad Yousif and Thaheem. He further deposed that the police after securing them brought them to the police station and thereafter F.I.R. was registered. It has further been submitted that when the dacoits were dispersing due to the firing of the police party, they were successful in reaching to the police party. Moreover, when the appellant was apprehended and produced in the Court, P.W-1 identified him. As per P.W-3 the abductees were taken into custody alongwith their neighbours namely Nawaz and Wazir, who were subsequently released by giving chit for payment of ransom amount and the other deposition of the said P.W. is identical to that of P.W-1. P.W-4 also has asserted that when he reached katcha/jungle at about 12.30, encounter with the dacoits took place for about two and a half hours to three hours, and the dacoits were calling each other with the names Jaffar, Badal, Thaheem and Rasheed Brohi. It is also worth mentioning that the other deposition of the said P.W. has been the same as that of the other P.Ws. P.W-6 has given the same deposition and has also identified the accused person.

6. Perusal of the above depositions would reveal that abductees have given a detailed and graphic account of their abduction, captivity etc. The abductees not only identified the accused in the Court but also in their statements given in the police station have disclosed the name of the appellant as Rasheed Brohi. Abductees had no reason to falsely implicate the appellant, who was not known to them previously. In crimes like the above the abductees had a photographic memory with regard to the person who had kidnapped them and could instantly recognize and identify them on seeing them. The testimony of the abductees inspire confidence on which alone, in our view, conviction can be recorded as there is no material on record to disbelieve them. Though apparently no harm had been done to the abductees and they had reached to the police but this could not be made the ground for acquittal of the appellant that the abductees remained unharmed therefore the appellant deserves lenient view. The evidence of the police officials who also were not alleged to have any enmity with the appellant had fully implicated the appellant to prove the case against the appellant. The prosecution, in our view, had proved its case beyond reasonable doubt and the evidence of the prosecution witnesses is confidence inspiring. The abductees have fully implicated the appellant.

7. We are also fortified by the judgment of the Honourable Supreme Court in the case of Muhammad Akbar v. The State (1998 S C M R 2538), wherein the Apex Court has observed that "where a witness has spent considerable time with the accused and has had an opportunity to take a good look at him, holding of identification test would not be necessary". In an another case Habib and another v. The State (1993 P Cr. L J 444), it was observed that "the abductee has identified the appellant in the open Court, in such circumstances, identification parade is not a legal requirement".

8. It is a well settled proposition of law that in like cases conviction could be recorded on the basis of a single eye witness, if it inspires confidence and in the instant case the depositions of the abductees, which had remained un-shattered, in our view, were confidence inspiring.

9. In view of the reasons stated hereinabove, we are of the view that the prosecution has successfully brought home its case, thus, the sentence awarded to the appellant by the impugned judgment was justified.

Above are the reasons for our short order passed on 21.10.2010, through which we have dismissed this appeal alongwith the listed application.

JUDGE