IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. D – 34 of 2013

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

Appellants : Liaquat Ali, Shoukat Ali & Muhammad Amin

through Mr.Mehfooz Ahmed Awan, Advocate

Respondent : The State, through Mr. Zulfiqar Ali Jatoi,

Additional Prosecutor General

Date of hearing : 26.02.2019

Date of decision: 26.02.2019

JUDGMENT

IRSHAD ALI SHAH, J:- The appellants by way of instant Criminal Jail Appeal have impugned judgment dated 15.05.2013 passed by learned Judge, Anti-Terrorism Court Khairpur, whereby they have been convicted and sentenced to various terms as are detailed in the judgment.

2. The facts in brief necessary for disposal of instant appeal are that the appellants with rest of the culprits abducted PW Gada Hussain for ransom for that they were booked and reported upon by the police.

3. At trial, the appellants and co-accused Muhammad Aslam did not plead guilty to the charge and prosecution to prove it, examined PW-1 complainant Abdul Khaliq (Ex.14), he produced FIR of the present case; PW-2 Gada Hussain (Ex.15), he produced his 164 Cr.P.C statement; PW-3 Hakim Ali (Ex.16), he produced his 164 Cr.P.C statement; PW-4 SIP Shafi Muhammad (Ex.19), he produced memo of arrest of accused, jail certificate and his application; PW-5 ASI Ameer Ali (Ex.20); PW-6 SIP Sher Muhammad Maitlo (Ex.22); PW-7 ASI Zahid Hussain (Ex.23), he produced roznamcha entries, memo of recovery of abductee and FIR Crime No.10/2010 and 11/2010 of Police Station Mehboob Kalhoro; PW-8 Mashir HC Allahditto Narejo (Ex.24); PW-9 ASI Muhammad Waris Solangi (Ex.25), he produced memo of place of incident and his letter to learned Judicial Magistrate for recording 164 Cr.P.C statements of the P.Ws and roznamcha entry; PW-10 Mashooque Ali (Ex.26); PW-11 PC Roshan Ali (Ex.27) and then closed the side.

4. The appellants and co-accused Muhammad Aslam during course of their examination u/s 342 Cr.P.C denied the prosecution allegation by pleading innocence by stating that they have been involved in this case falsely by the complainant party on account of their enmity with Safar and Habib Shaikh over landed property.

5. None of the appellants examined themselves on oath, however, co-accused Muhammad Aslam examined DW Abid Hussain his defence and then closed the side.

6. On the basis of evaluation of evidence, so produced by the prosecution, learned trial Court convicted and sentenced the appellants, as stated above.

7. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party in order to satisfy his enmity with them over landed property, there is delay of about thirteen days in lodgment of FIR which is not explained plausibly by the prosecution and the evidence which is produced by the prosecution at trial being inconsistent has been relied upon by the learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellants.

8. Learned Additional PG for the State did not support the impugned judgment and conceded for acquittal of the appellants.

9. We have considered the above argument and perused the record.

10. It is stated by the complainant, PW Gada Hussain and PW Hakim that on 28.11.2010, they with PW Aziz they were going to Sukkur through their Car when reached at link road leading from Agro to Nau‑Pathano, there at about 8:00 p.m, were confronted by eleven culprits out of them six were identified under the light of Car to be Liaquat, Shoukat Ali, Arbab, Aslam, Saindino and Amin. If it is believed to be so, then the identity of the culprits under the light of Car obviously is appearing to be a weak piece of evidence, which could hardly be relied upon to connect the appellant with the commission of incident. No such Car even otherwise has been produced by the prosecution before learned trial Court. It was further stated by them that the said culprits then abducted PW Gada Hussain for ransom. No ransom was paid. The FIR of the incident was lodged on 11.12.2010. It was with delay of thirteen days to the incident, which is not explained properly by the complainant party. It reflects consultation and deliberation.

11. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it was observed by the Hon’ble Court that;

“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.

12. As per prosecution, PW Gada Hussain was recovered after an encounter with police. With such recovery, co-accused Muhammad Aslam was also arrested and from him allegedly was secured G-3 Rifle by SIP Din Muhammad of Police Station Mehboob Kalhoro. Significantly co-accused Muhammad Aslam has been acquitted of the charge for offence punishable u/s 365-A PPC by learned trial Court. His acquittal for such penal section has not been impugned by the prosecution by way filing acquittal appeal. The acquittal of one set of the accused and conviction for another set of the accused, on the basis of same evidence with regard to abduction of PW Gada Hussain could hardly be approved.

13. In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR-344), it was held by the Hon’ble Court that;

“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.

14. PW SIP Din Muhammad could not be examined by the prosecution on account of his death. PW Aziz Ahmed was given up by the prosecution under the pretext that he has been won over by the appellants. No reason was assigned to give up PW PC Roshan Ali. In that way, the appellants were prejudiced in their defence seriously.

15. The conclusion which could be drawn of the above discussion would be that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt.

16. In case of Tarique Bashir 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.”

17. In view of above the conviction and sentence recorded against the appellants by way of impugned judgment could not be sustained, it is set aside. Consequently, the appellants are directed to be released forthwith, if they are not required in any other case.

18. Above are the reasons of short order dated 26.02.2019, whereby the instant Criminal Jail Appeal was disposed of.

Judge

ARBROHI