IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Jail Appeal No. D-20 of 2016.

Date	Order with signature of Judge

Present

Mr. Justice Muhammad Iqbal Mahar &

Mr. Justice Amjad Ali Sahito.

Appellant: Abdul Hafeez alias Azeem son of Lal Bakhsh, bycaste Nagore.

Mr. Ghulam Mujtaba Sahito advocate for appellant.

Respondent. The State.

Mr. Zulfiquar Ali Jatoi, Additional Prosecutor General.

Date of hearing. 04-09-2018.

Date of Decision 04-09-2018.

J U D G M E N T

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AMJAD ALI SAHITO, J.- The instant appeal is directed against the impugned judgment dated 29-01-2016 passed learned Anti-Terrorism Court Khairpur in Special Case No. 13/2013, Re. State Vs Abdul Hafeez @ Azeem for offence u/s 365-A, 342, 34 P.P.C & 7 ATA, Crime No. 11/2013 of PS Hingorja, Special Case No. 14/2013 Re. State Vs Abdul Hafeez @ Azeem & others for offence u/s 324, 353, 399, 402 P.P.C Crime No. 25/2013 of PS Hingorja and in Special Case No. 15/2013, Re. State Vs Abdul Hafeez @ Azeem & others, offence U/S 13 (d) Arms Ordinance, Crime No. 26/2013 of PS Hingorja, whereby the above named appellant was convicted for offence punishable u/s 365-A R/W Section 149 P.P.C bearing Crime No. 11/2013 and sentenced to suffer rigorous imprisonment for life, his property was also forfeited to the State. Appellant was further convicted for the offence punishable u/s 324 P.P.C R.W Section 149 P.P.C bearing Crime No. 25/2013 and sentence him to suffer R.I for ten year and to pay the fine of Rs. 25,000/-, in case default whereof, to suffer S.I for four months. He was further convicted for the offence punishable u/s 353 R/W section 149 and sentenced to suffer R.I for two years and for the offence punishable u/s 399 r/W section 149 P.P.C he was sentenced to suffer R.I for ten years and to pay the fine of Rs. 25,000/-, in case of default whereof to suffer S.I for four months. He was further convicted for the offence punishable u/s 401 R/W section 149 P.P.C and sentenced for R.I for seven years and to pay the fine of Rs. 15,000/-, in case of default whereof to suffer S.I for two months. Appellant was also convicted for the offence punishable u/s 13 (d) Arms Ordinance and sentenced to suffer R.I for seven years and to pay fine. Appellant was also convicted for the offence punishable u/s 7 (e) of ATA, 1997 and sentenced to suffer R.I for life, his property was also forfeited to the State.

2. Briefly, the facts of the prosecution case are that on 06-02-2013 at 1100 hours complainant Azizullah Memon lodged the F.I.R. No. 11/2013 at PS Hingorja alleging therein that his nephew Muhammad Rafi aged about 4-1/2 years studied in Mehran Public School. On 11-01-2013 at about 1500 hours after performing the Jumma prayers, complainant along with his brother Hamadullah and his neighbor/Nekmard Abdul Fateh Memon were standing in the street out of their house, when his innocent nephew Muhammad Rafi came there. Meanwhile 04 persons boarded on 02 motorcycles came there and took out the pistols from the fold and issued threats of dire consequences. One of the accused forcibly took Muhammad Rafi and got him sat on the motorcycle and then all the accused persons went away while asking the complainant to arrange the ransom amount. After 02 days the accused persons contacted the complainant party through mobile phone and demanded Rs. 80 Lacs for the release of abductee. Complainant requested the accused for reducing of ransom amount, but they told that they would receive the ransom amount less than Rs. 30 lacs. The complainant due to his poorness failed to arrange the ransom amount and appeared at PS and lodged the above said F.I.R.

3. It is further case of prosecution that on 10-03-2013 at 1915 hours complainant A.S.I.-Durood Ali Gopang lodged F.I.R. No. 25/2013 alleging therein that on the same date he along with his subordinate staff during patrolling received spy information that a group of dacoits is available in the graveyard of Shah Awais. On receipt of such information complainant informed his subordinate staff and proceeded towards the pointed place, where they reached at 1745 hours and saw 05 accused persons armed with weapons standing there. Complainant party directed the accused persons to surrender, but they started firing upon them with intention to commit their murder. Police party also fired upon the accused in their self defence, such encounter continued for about 10 minutes and after the encounter, they apprehended appellant/accused Abdul Hafeez @ Azeem Nagor and recovered one unlicensed 30 bore pistol from his possession, but remaining accused persons succeeded to escape. On enquiry the apprehended accused disclosed the names of escaped accused to be Irfan Jatoi, Karam Khan Chandio and two were unidentified persons. He further disclosed that prior to this incident they had abducted Muhammad Rafi from Hingorja. Such mashirnama of arrest and recovery was prepared at the spot, then accused and case property were brought to police station where complainant lodged two separate F.I.Rs.

4. On completion of the usual investigation, the police submitted report u/s 173 Cr.P.C against the accused before the competent Court of law having jurisdiction. The record shows that all the above mentioned cases were amalgamated for joint trial and usual charge against the accused was framed on 05th May 2014 at Ex. 09, to which he pleaded not guilty and claimed trial.

5. In order to prove the case against the accused, the prosecution examined PW/1 Azizullah Memon/complainant of Crime No. 11/2013 at Ex. 10, who produced the F.I.R. at Ex. 10/A, PW/2 Abdul Fateh Memon at Ex. 11, PW/3 Hamadullah Memon at Ex. 12, PW/4 Farhad Ali Arain at Ex. 13, who produced the memo of place of incident and memo of producing the abductee before police at Ex. 13/A and 13/B respectively, PW/5 Inspector Fateh Khan Awan at Ex. 14, PW/6 Inspector Nazar Hussain Mallah at Ex. 15, PW/7 A.S.I. Durood Ali Gopang/complainant in F.I.Rs. No. 25/2013 and 26/2013 at Ex. 16, who produced roznamcha entry, memo of arrest of accused and recovery of crime weapon and empties from the place of incidents, F.I.Rs. at Ex. 16/A to 16/C respectively, PW/08 PC-Sahibdino Junejo at Ex. 17, who produced the memo of place of incident at Ex. 17/A, PW/9 Mr. Raja Habibi Rehman Junejo/Civil Judge & Judicial Magistrate at Ex. 18, who produced the police letter for conducting the identification parade of accused and memo of identification parade of accused at Ex. 18/A and 18/B respectively, PW/10 Inspector Muhammad Amin Pathan/Investigation Officer at Ex. 19, who produced the further statement of complainant Azizullah Memon in Crime No. 11/2013 at Ex. 19/A. Thereafter learned DDPP for the State closed the side of prosecution vide his statement at Ex. 20.

6. The statement of the accused u/s 342 CrPC ws recorded at Ex. 21, who denied the prosecution allegations and stated that he is innocent and has been falsely implicated in this case by the police at the instance of Wadero Mushtaq due to enmity over the landed property. Neither, accused examined himself on oath nor examined any defence witness.

7. The learned trial Court after hearing the arguments of learned counsel for the parties and appraisal of the evidence, convicted the present appellant as stated above. The sentence awarded to the appellant has been impugned by him before this Court by way of filing instant jail appeal.

8. We have heard learned counsel for the appellant and learned Additional Prosecutor General and with their assistance have minutely scanned the evidence.

9. Learned counsel for the appellant argued that the impugned judgment is against the law and facts of the case; that the appellant is innocent and has falsely been implicated in this case due to enmity; that all the witnesses cited in the case are interested witnesses; that complainant and PWs have given contradictory evidence; that the F.I.R. has been lodged by the complainant Azizullah with the delay of one month against unknown persons and no specific role has been assigned by the witnesses, which demolished the whole case of the prosecution. He lastly prayed for the acquittal of the appellant.

10. While rebutting the above contentions, the learned Additional Prosecutor General for the State argued that the delay has properly been explained by the complainant in the F.I.R; that no enmity or ill will has been shown by the accused against the complainant Azizullah; that no material contradiction and discrepancy is pointed out by the learned defence counsel to show his false implication in this case, therefore the learned trial Court has rightly awarded the conviction and sentence to the present appellant in accordance with law and thus he lastly prayed for dismissal of the appeal.

11. On analysis of the evidence brought on record, we found that the prosecution case merely depends upon the ocular testimony furnished by the prosecution in shape of evidence of complainant Azizullah (PW-1), eyewitnesses Abdul Fatah (PW-2) and Hamadullah (PW-3) and their evidence is corroborated by Farhad Ali (PW-4), A.S.I. Durood Ali (PW-7) who during encounter arrested the appellant on 10-03-2013, Raja Habib Rehman (PW-9), who conducted the identification parade and other witnesses supported the prosecution story. Complainant Azizullah (PW-1) deposed in his evidence that on 11-01-2011 at about 2-45 or 3-00 pm after Zuhar prayer, he along with Abdul Fatah and Hamadullah were standing near Masjid. Muhammad Rafi aged about 4 1/2 years came there. Four persons being armed came there on two motorcycles and on show of force took away Muhammad Rafi by saying to the complainant to arrange ransom amount and they would talk with them on phone. On 12-02-2013 the accused persons demanded ransom amount, to which he paid Rs. 21 Lacs on the road, when they came on the car and on very next day accused left away boy/abductee Muhammad Rafi. On 18-02-2013, identification parade was held before learned Magistrate and the complainant identified appellant Abdul Hafeez, so also identified the appellant in the Court. In cross examination he admitted that he along with driver went to the place where he paid ransom to accused on Mehran Car and came to know the name of the appellant Abdul Hafeez through telephone conversation and thereafter identified him during course of identification parade held before the concerned Magistrate. However he denied the suggestion that the name of the appellant has been given at the instance of police.

12. The prosecution examined Abdul Fatah (PW-2) and Hamadullah (PW-3) both have supported the version of the complainant and deposed that during identification parade, they have identified the present appellant before Magistrate. On 10-03-2013 during encounter with police appellant Abdul Hafeez was arrested and one unlicensed 30-bore pistol along with magazine was recovered from his possession and such pistol and magazine were brought at police station and separate F.I.R u/s: 13 DAO was lodged. The appellant was also produced before Civil Judge and Judicial Magistrate Sobhdero @ Ranipur for identification parade, where the appellant was mixed with nine dummies, the complainant and his eyewitnesses identified him with specific role that "at the time of incident the present accused was amongst the other culprits and asked abductee Muhammad Rafi to sit on motorcycle and abducted him away on the show of force for the purpose of ransom."

13. All the PWs identified the appellant 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 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.

14. The minor discrepancies in statement of all the witnesses are not enough to demolish the case of prosecution because there discrepancies always occurred on account of lapse of time which came be ignored. It is not a discrepancy or discrepancies which could be pressed for an acquittal but the defence has to bring on record the contradictions which too should be of a nature to cut a root of the prosecution towards their presence and manner of incident. It is settled principle that the variations in the statements of witnesses which are neither material nor serious enough to affect the case of the prosecution adversely, are to be ignored by the Court it is also a settled principle that statements of the witnesses have to be read as a whole and the Court should not pick up a sentence in isolation from the entire statement and ignoring its proper reference, use the same against or in favour of a party, the contradictions must be material and substantial so as to adversely affect the case of prosecution. 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 investigation 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 is corroborated by circumstances evidence, therefore, we are of the opinion that the prosecution has successfully proved its case against him beyond any shadow of doubt.

15. Adverting to the contention of learned counsel for the appellant that there is delay in lodging the F.I.R., it is necessary to mention here that delay in F.I.R. 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 case of like nature the complainant party uses to avoid to register the F.I.R. immediately and try to make safe recovery of person kidnapped by the accused. Furthermore, appellant has not alleged any enmity with the complainant party or with the police, hence delay in F.I.R. is of no consequence. In case of Ghulam HUSSAIN SOOMR V. The State (supra) the Honourable Supreme Court has held as under:-

" Mere delay in lodging of F.I.R. 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 F.I.R. for fear of death of victim. No adverse inference was to be drawn against prosecution on ground of delay along in lodging of F.I.R.

16. The upshot of above discussion is that the prosecution has successfully established its case against appellant Abdul Hafeez @ Azeem Nagor beyond any shadow of doubt. Learned counsel for the appellant failed to point out any material illegality or serious infirmity committed by learned trial Court, while passing the impugned judgment, which in our view is bases on appreciation of evidence and does not call for any interference by this Court. Thus the conviction awarded to the appellant by learned trial Court is hereby maintained and the instant appeal filed by the appellant is merits no consideration, which is dismissed accordingly.

17. These are the detailed reasons for the short order dated 04-09-2018 announced by us.

JUDGE

Nasim/P.A