Present: Mr.Justice Nadeem Akhtar

Mr. Justice Shahnawaz Tariq

Appellants : Hajan and Lakhi through Mr.

Muhammad Yousif Leghari advocate.

Respondent : State through Mr. Shahid Ahmed

Shaikh Asstt. P.G.

Date of hearing : 06.02.2014.

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JUDGMENT

SHAHNWAZ TARIQ J.- The appellants namely Hajan son of Muhammad Siddique and Lakhi son of Meeral Khan have preferred instant appeal against the impugned Judgment dated 11.05.2012, passed by learned Judge, court of Anti-Terrorism, Hyderabad in ATC Case No.311 of 2008 bearing Crime No.240/2008 of Police Station Tando Jam under section 365-A, 34 PPC read with section 6 (2), (e) of Anti Terrorism Act, 1997, whereby the appellants have been convicted and sentenced to suffer rigorous imprisonment for life, however, benefit of section 382-B Cr.P.C has been extended to them.

2. Precisely, the prosecution story in nutshell is that on 29.08.2008 at 2250 hours, complainant Haji Khan Zounr lodged FIR stating that on 03.07.2008 after having dinner, he went to his plot situated at Jhan Mori and slept there at 9.00 p.m. At about 11.00 p.m. he was awakened by five persons, two armed with Kalashankoves, two with guns, one with pistol, and out of them three persons were with muffled faces while two with open faces. They took the complainant towards a jungle and detained him in a house at village Karam Khan Nizamani, and his eyes were tied with cloth. One day, while taking chance, complainant / abductee got his eyes opened and saw accused Muhammad Halepoto, Lakhi Muhammad Nizamani and Hajan Nizamani, while two other persons were unknown. Accused persons remained in contact with his relatives, he also asked his relatives to contact Muhammad Halepoto. After 24 days, the culprits received Rs.2,50,000/- as ransom and two persons took him on a motorcycle and released him after 24 hours at Raju Niazamani, wherefrom the Complainant himself reached at his village and informed his uncle Muhammad Esso and brother Punhoon that prior to the incident, accused Muhammad Halepoto, Lakhi Muhammad Nizamani and Hajan Nizamani were visiting Gul Hassan who is residing adjacent to their plot, but they advised him to remain silent to make inquiry in this regard. They contacted Gul Hassan Halepoto for settlement who kept them on false hopes, and ultimately complainant appeared at P.S. and lodged FIR.

3. At the trial to substantiate its case, prosecution examined following witnesses:-

a) PW 1 Complainant / abductee Haji Zounr at Ex.11 and he produced FIR at Ex. 11/A.

b) P.W.2 Muhammad Esso at Ex.12, who paid ransom.

c) P.W. 3 Punhoon at Ex.13, who negotiated with culprits,

d) P.W.4 Pir Bux at Ex.14, who produced mashirnamas at Ex.14/A to 14/E respectively,

e) P.W.5 Investigating Officer Inspector Muhammad Sharif at Ex.15.

4. Statements of accused under section 342 Cr.P.C were recorded, wherein they denied prosecution allegations and claimed themselves to be innocent. However, they neither examined themselves on oath nor led any evidence in their defence.

5. After hearing the arguments of learned Prosecutor and learned defence counsel, the trial court pronounced the impugned Judgment and convicted the appellants.

6. Learned counsel for the appellants contended that the appellants are innocent and have falsely been implicated in the case at the instance of one Sharif Nizamani who is on inimical terms with the appellants. The FIR was lodged with unexplained delay of more than one month even after release of the complainant / abductee which creates serious doubt regarding false implication of the appellants. Learned counsel further contended that on the same set of evidence trial court has acquitted two accused persons and simultaneously convicted the appellants erroneously. Neither place where the complainant / abductee was allegedly kept in wrongful confinement was inspected by the Investigating Officer nor any mashirnama was prepared, and even no identification parade was held before the Magistrate in order to ascertain real culprits. The complainant did not disclose any identification marks or numbers of the currency notes to prove that the cash amount recovered from the appellants was the same which was allegedly paid to the accused as ransom. The statement of abductee / Complainant under section 164 Cr.P.C was not recorded before the Magistrate. The appellants have already been acquitted in cases registered under section 13(e) of Arms Ordinance. The evidence of the P.Ws being close relatives is neither corroborative nor confidence inspiring, therefore, conviction passed by the learned trial court is liable to be set-aside.

7. In rebuttal, learned Assistant P.G for the State while supporting the impugned Judgment, has contended that the appellants were identified by the complainant, therefore, there is no question of mistaken identity or holding any identification parade. He further submitted that delay in lodging of FIR has been properly explained that for safe release of the complainant FIR was not registered. He submitted that there is strong ocular evidence against the accused persons duly supported by the circumstantial evidence; therefore, learned trail court rightly awarded conviction to them. The acquittal of the appellants in case registered under section 13(e) of Arms Ordinance, 1965, is no ground to disbelieve evidence of the witnesses in present case, therefore, conviction awarded to the appellants does not call for any interference.

8. We have heard the learned counsel for the appellants, learned Assistant Prosecutor General for the State and minutely examined the material available on record with their possible assistance.

9. Upon the perusal of ocular evidence as well as documentary evidence produced by the prosecution to bring the guilt of accused at home, it reflects that allegedly complainant was sleeping alone at his plot and was kidnapped by five culprits during night hours and was released after payment of ransom.

10. For precise assessment of the appeal, it would be proper to discuss relevant portions of evidence of three main prosecution witnesses i.e. P.W.1 the complainant / abductee Haji Khan Zounr, P.W.2 Esso Khan, who allegedly paid ransom and P.W.3 Punhoon who allegedly made all negotiations through mobile phone with the accused to settle ransom amount for the release of the complainant accurate

11. The relevant portion of evidence of P.W.1 Complainant / abductee Haji (Ex.11) is reproduced as under:-

“I had not stated in my FIR that which weapon was holding accused Hajjan and Lakhi. It is correct that in my FIR I had not stated that my uncle Esso Khan paid the ransom. It is correct to say that I had not given the name of my relative with whom the kidnappers got talked on telephone to me. I did not point out the place of my captivity to the police. I do not know if Hajjan and Lakhi are the haris of Muhammad Sharif Nizamani. The distance between the P.S and place from where I was kidnapped would be about half mile. It is correct that after month and one day of my release I have lodged the FIR. I did not make any application during the period of my release till lodging the FIR. It is correct that the DSP Muhammad Khan belongs to same village Jhan Mori. It is correct that near the land of Gul Hassan there is land of DSP Muhammad Khan Zounr. It is correct that near the place of my kidnapping, the people of Sama and Kolhi castes were living. It is correct that DSP Muhammad Khan Zounr belongs to same village Jhan Mori. He is my relative. It is correct that Gul Hassan is Zamindar. It is correct that land of Gul Hassan is near the land of DSP Muhammad Khan Zounr. It is correct that Gul Hassan and me are residing on Govt. land. It is correct that I did not hear the conversation of Gul Hassan and accused persons regarding my kidnapping”.

12. P.W.2 Muhammad Esso (Ex.12) has stated in his examination in chief as under:-

“On 3/07/2008 my nephew Haji was kidnapped and he remained with the culprits for about 24 days. Punhoon Khan brother of abductee Haji was receiving telephone from culprits regarding payment of ransom. I then reached there at evening time and sun was about to set. I saw three persons came there with muffled faces. Two persons came to me while one remained behind them.”

13. P.W.3 Punhoon (Ex.13) in his evidence stated as under:-

On 3/07/2008, my brother Haji was kidnapped. After three days of his kidnapping, the dacoits rang me on telephone and demanded Rs.50,00,000/-. The negotiations were made between dacoits and me. It is correct that in my statement I have not given the telephone number upon which the dacoits were talking with me.”

14. It is well settled law that the factum of causing delay in lodging of FIR must be explained by the complainant plausibly, if he has failed to furnish the circumstance beyond his control or sound justification in this regard, the allegations leveled in FIR would be presumed the result of deliberation, negotiation discussion and after thought with sole drive and ulterior motive to get the accused convicted, therefore, such deliberate delay cannot be ignored by the court in routine manner. In present case allegedly the abductee was kidnapped on 03.07.2008 and released after 24 days, but FIR was registered on 29.08.2008 at 2250 hours i.e. after 55 days, while admittedly complainant’s relative DSP Muhammad Khan Zounr is residing in the same village, therefore, lodging of FIR promptly was not any difficult task for the complainant and his relatives. Consequently, the inordinate and unexplained delay of 55 days in lodging of FIR by the complainant, even after his alleged release, while the complainant has deposed that the distance between place of incident and P.S is about ½ mile, creates serious doubt and it can easily be gathered that instant FIR was lodged by complainant after due deliberation, negotiation, discussion and after thought with sole object and ulterior motive to get the appellants convicted.

15. For appropriate conclusion and to strengthen our findings, we would like to refer the cases decided by the superior courts.

16. In case of The State through Additional Advocate General Sindh Khyber Pakhtunkhwa, Peshawar Vs. Attaur Rehman and 3 others (2013 MLD 899), it is held that in F.I.R no one was cited to have witnessed the occurrence but then paternal cousin of complainant was introduced as prosecution witness for the first time to record his statement before Investigating officer to the effect that he had witnessed the occurrence of abduction of complainant at the hands of accused. House of the prosecution witness was adjacent to that of the complainant, who in his examination-in-chief referred to abduction of a girl by accused and in the same breath he stated that later on he came to know that the girl was his cousin but such statement was recorded on 27^th day of occurrence. Case of complainant was full of glaring contradictions and material discrepancies, therefore, Trial Court had no choice but to acquit the accused and its Judgment was unexceptionable which called for no interference.

17. In case of Mehboob Vs. The State (2012 P Cr. L J 415), it is held that Prosecution could not produce tangible evidence in support of the charge against accused, connecting him with the commission of the offence. Alleged abductee, being star witness of the prosecution had not uttered a single word against accused and could not identify him as one of the culprits. Accused had been convicted and sentenced on the sole evidence of father of alleged abductee. Father had simply deposed that he was informed by his son / alleged abductee that accused was involved in his abduction. Neither alleged abductee had been recovered from the custody/ possession of accused, nor any evidence had been brought on record to establish that house, wherefrom alleged abductee was allegedly recovered belongs to accused.

18. In case of Bashir Ahmed Vs. The State ( 2011 MLD 867 ), it was observed that no positive incriminating evidence was available against accused on the basis of which the conviction for any offence against him could be recorded, particularly when witnesses had been declared doubtful.

19. In case of Faheem Ahmed Farooqui Vs. The State (2008 SCMR 1572), it has been held that prosecution evidence was highly discrepant and suffered from serious infirmities and contradictions. Except the bare allegations in the F.I.R, nothing incriminating was available on the file to connect the accused with the commission of the crime. Neither the alleged abductee had been recovered from the custody of the accused, nor any evidence was produced regarding passing of the ransom amount to him. Mere assertion of the complainant that accused had a hand in the affair and he was author of the crime, without a positive attempt on his part to substantiate the same was of no consequence. No case of abduction or kidnapping was made out and ingredients of offences punishable under S. 365-A, P.P.C and S.7(c) of the Anti-Terrorism Act, 1997, were not attracted in the case. Co-accused had been acquitted by the Trial Court on the same evidence which had been believed and relied upon against the accused, particularly when the acquittal of co-accused was not challenged either by the complainant party or by the state. Benefit of doubt was extended to accused and he was acquitted in the circumstances.

20. In case of Muhammad Ali and others Vs. The State (2002 P Cr. L J 1631) it has been held that evidence against the accused on charge of kidnapping was ocular evidence of the complainant and one prosecution witness who was brother in law of complainant, but no eyewitness of incident of kidnapping of complainant was on record. Inordinate delay in lodging F.I.R was not plausibly explained.

21. In case of Ali Bux and another Vs. The State (2001 YLR 1027), it has been held that Complainant did not promptly report the matter to the police about the commission of such a serious offence but he did so after recovery of the victim which had made his conduct questionable. Accused were extended the benefit of doubt and acquitted in circumstances.

22. Admittedly, present appellants were not identified amongst to be the culprits who had allegedly kidnapped the complainant / abductee and even the culprits who received ransom from P.W.2 Esso Khan were muffled faces. Likewise, P.W.3 Punhoon who allegedly remained in contact with the culprits through mobile phone and negotiated and settled the quantum of the ransom, but he has neither mentioned said mobile number in his statement recorded by the police nor disclosed in his evidence recorded before the trial court.

23. The question of alleged recovery of cash from the houses of appellants also requires serious consideration as admittedly neither the serial numbers nor any identification marks were mentioned by P.W.2 Esso Khan, who had made payment of amount to the culprits, therefore, the alleged recovery of same cash from the house of the appellants could not be believed.

24. In case of Ihtesham-ul-Haq Vs. the State (2010 P Cr. L J 852 ) it has been held that identity of the allegedly recovered amount of ransom money as well as the demand of the same, had remained unproved by withholding the best evidence in this regard by the prosecution, which had exposed its mala fides and ulterior motives. Prosecution witnesses had introduced dishonest improvements in their statements during the trial and made conflicting depositions. Abductees were not recovered from the accused, nor any ransom money was proved to have been demanded by him or paid to him. No identification parade had been held for identification of accused and prosecution had failed to establish his nexus with the alleged episode.

25. In case of Kak alias Abdul Razak V. The State (PLD 1965 (W.P) Karachi 31), it has observed that the prosecution witness not acquainted with accused prior to occurrence, identification parade not held, evidence of such witness, as identity of accused, nor of such value. P.W. did not know appellant before, nor was the appellant put in any identification parade for his identification. His evidence is not, therefore, of much value with regard to the identity of the appellant.

26. In case of Muhammad Rafique Vs. The State (1997 SCMR 412), Honourable Supreme Court has observed as under:-

“Fact that the petitioner is accused in a number of cases of robbery, is not sufficient to deprive him of his liberty. It has not come on record, as to, why identification test of the petitioner through eyewitness was not held when his name did not appear in the FIR. Mere production by the petitioner before police of some cash alleged to have been obtained by robbery, in absence of any other evidence, could not be believed.

27. Another important aspect is that during the course of investigation, the place of captivity was neither pointed out to the Investigating Officer nor such mashirnama was prepared and this alone missing piece of evidence is fatal dent to the prosecution case when the complainant has mentioned the place of captivity in FIR. Admittedly, people of different casts are residing adjacent to the place of incident but none from the locality was examined by the police or produced before the trial court to prima facie establish that the complainant was abducted.

28. It is prime responsibility of the Court to examine strictly the iota of evidence adduced by the complainant or witnesses as whole and not in piecemeal only to the extent of alleged offence to conclude the same being trust worthy and confidence inspiring, and even such statement must be deposed in a natural way, and conviction should not be based upon the mere allegations leveled by the witnesses and ignoring other connected relevant facts and circumstances.

29. Upon a bare examination of the depositions of the prosecution witnesses, there are series of admissions and material contradictions which have made the prosecution story highly doubtful. It is also well settled law that each and every coin of doubt must be deposited in the account of defence, and even one stroke of doubt is sufficient to demolish the entire prosecution structure irrespective of heinousness of the alleged offence.

30. For the foregoing reasons, we are of the considered view that the prosecution has failed to bring guilt of appellants to home and charge could not be established beyond any shadow of doubt. Consequently instant appeal stands allowed and the impugned Judgment dated 11.05.2012 passed by the learned Judge Anti Terrorism Court in Anti Terrorism case No.240/2008 is set aside. Accordingly, the appellants are acquitted from the charge. The Superintendent of concerned Prison is directed to release the appellants forthwith if they are no more required in any other case.

JUDGE

A.K