IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No.D- 184 of 2016

                                      Before:-

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Amjad Ali Sahito

                  

Appellants:                      (1) Qurban Ali S/o Hakim

(2) Lal Bux S/o Ghulam Mustafa,

                                      through Mr. Amanullah G.Malik, Advocate

 

Respondent:                    The State, through Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General

 

Date of hearing:              30.10.2018

Date of decision:             30.10.2018

 

J U D G M E N T

 

AMJAD ALI SAHITO, J-. The above-named appellants were tried by learned Judge Anti-Terrorism Court Naushahro Feroze, in Special Case No. 21 of 2016, St.Vs. Qurban Ali and another, for an offence punishable under Sections 365-A, 34 PPC r/w Section 7(1)(e) of Anti-Terrorism Act 1997, arising out of Crime No.02/2016 registered with Police Station Moondar, whereby they were convicted and sentenced to suffer imprisonment for life under Section 365-A, 34 PPC r/w Section 7(1)(e) of Anti-Terrorism Act 1997. However, the benefit of Section 382-B Cr.P.C was extended to them vide impugned judgment dated 29.09.2016.

 

2.       The concise facts as depicted in FIR lodged by complainant Muhammad Ayoub Shahani with Police Station Mondar on 11.03.2016 at 1600 hours are that some days prior to this incident accused Qurban Ali Choliani became their guest for one night. On 06.01.2016 accused Qurban son of Hakim, Lal Bux son of Ghulam Mustafa, Soonaro son of unknown and Zakhmi Khan son of Ghulam Mustaffa, all by caste Choliani resident of village Jumo Gurdo, District Kashmore and two unidentified accused persons came there on a white corolla Car. They after taking breakfast asked his son Mehboob Ali to accompany them to Dadu town for work, at about 10:00 a.m his son went with them. After sunset complainant made call on mobile No.0303-3669821 of his son, but same was not attended by his son. On 18.01.2016, complainant received call on his mobile from mobile No.0303-2669821 of culprits who informed him that his son is in their captivity and demanded Rupees ten lacs for his release and issued threats that don’t be smart otherwise, even he would not receive dead body of his son. Thereafter complainant received phone calls from cell numbers 0303-2966904, 0308-3969622, 0306-2965744,                      0316-8078331, 0321-3659877 and also from mobile number of his son, demanded ransom amount and issued threats of murder of his son. On 29.02.2016 accused persons made last call and asked to take the dead body of his son from Ubauro near Mureed Shah from northern side and they are in their village. Thereafter accused did not call and phone number of his son was also off. Then complainant filed application before the Court of Sessions Judge Dadu, and after getting Order No.494 dated 08.03.2016 issued by learned Additional Sessions Judge for lodgment of FIR appeared at police station where he registered FIR against the accused persons.

3.       The police after usual investigation submitted challan and the learned trial Court after observing all the legal formalities framed the charge against the present appellants at Ex.09, to which they pleaded not guilty and claimed trial.

4.       In order to establish accusation against the appellants, the prosecution then examined PW-1 complainant Muhammad Ayoub at Ex.12, who produced FIR and order dated 08.3.2016 of Ex-Officio Justice of Peace at Ex.12/A and 12/B respectively; PW-2 Abductee Mehboob Ali at Ex.13; PW-3 Abdul Jabbar at Ex.14; PW-4 I.O Inspector Abdul Rasheed at Ex.15, who produced order of SSP, memo of place of incident, CDR of cellphones at Ex.15/A to 15/E respectively; PW-5 ASI Shah Nawaz at Ex.16, who produced statement of complainant U/s 161 Cr.P.C, mashirnama of arrest, daily diary entry No.11 and 13 at Ex.16/A to 16/D respectively; PW-6 Liaquat Ali at Ex.17; PW-7 Shoukat Ali at Ex.18, who produced the CD conversation on mobile phone at Ex.18/A. Thereafter learned ADPP for the State closed the side of prosecution vide statement dated 15.09.2016 at Ex.19.

5.       Statements of the appellants were recorded under Section 342 Cr.P.C at Ex.20, wherein they denied the prosecution allegations leveled against them and prayed for justice and stated that they have been implicated in this case at the instance of Ex-MPA Shabbir Bijarani, whereas Hussain Bux Shahani, SHO Police Station Karampur is the maternal uncle of the abductee, who was friend of Shabbir Bijarani. They did not examine themselves on oath nor led any evidence in defence.

6.       The learned trial Court after hearing the learned counsel for the parties and going through the material brought on record awarded conviction and sentence to the present appellants, which they have impugned through instant appeal before this Court.

7.       Learned counsel for the appellants argued that the impugned judgment is against the law and facts of the case; that the present appellants are innocent and have falsely been implicated in this case due to enmity; that all the witnesses of the alleged incident are related inter se i.e complainant, his brothers and son; that there is unexplained delay of 64 days in lodgment of the FIR; that the statements of P.Ws were recorded under Section 161 Cr.P.C with delay of seven days; that the complainant has not disclosed the names of the P.Ws in the FIR and made improvements in his evidence disclosing the names of his witnesses; that the alleged abductee was not recovered from the custody of the appellants; that there are material contradictions in the evidence of the prosecution witnesses which demolished the whole case of the prosecution and thus he lastly prayed that the impugned judgment may be set aside and appellants may be acquitted.

8.       While rebutting the above contentions, learned Additional PG for the State argued that complainant, abductee and P.Ws have supported the prosecution case; that all the accused had received ransom amount from the complainant party; that all the P.Ws were cross-examined at length but nothing in favour of the appellants could be brought on record. He further contended that in these circumstances, the trial Court has rightly awarded conviction and sentence to the appellants in accordance with law. He prayed for dismissal of the instant appeal.

9.       We have heard the learned counsel for the parties and perused the record.

10.     On careful perusal of material available on record, it appears that the prosecution case solely depends upon the ocular testimony adduced in shape of the evidence of complainant Muhammad Ayoub and eyewitnesses Shoukat S/o Muhammad Ayoub 2) Abdul Jabbar, brother of Muhammad Ayoub and               3) Liaquat S/o Muhammad Ayoub. Admittedly, the complainant has not disclosed the names of the eyewitnesses in the FIR, but he has made improvements in his evidence and disclosed the names of PW Shoukat, Liaquat Ali, both sons of Muhammad Ayoub and Abdul Jabbar brother of the complainant Muhammad Ayoub as eyewitnesses. The case of the complainant was that on 06.01.2016 appellant Qurban and Lal Bux along with four                    co-accused came in white corolla Car at the village, where they took breakfast which was served by his son. Accused persons asked son of the complainant Mehboob to accompany them for Dadu, from where the son of the complainant was abducted for ransom. It is pertinent to mention here that the complainant, his eyewitnesses/ and accused persons were previously known to each other that’s why the complainant has disclosed the name of the appellants along with their residential address. Per complainant after the abduction of his son the appellants/accused were not attending the mobile call but after 12 days of the incident the complainant received phone call from the appellants they demanded ransom. It is surprising to note here that after the abduction of his son, the complainant has not informed to local police nor any relative, though he knew the accused persons with their residential address, the police collected mobile DATA of the appellants which shows that they all were residents of village Machi Band, Taluka Tangwani Kandhkot and were present at their house. After sixty four days, the complainant appeared before 2nd Additional Sessions Judge and filed an application seeking registration of FIR and then he registered FIR against the appellants, nowhere it is mentioned that the complainant approached to the police station but his FIR was not registered. From perusal of his evidence, it appears that he has changed his version as and when suited to him. In his evidence he has not disclosed the mobile number from whom he has received calls nor he informed to police about the mobile calls. In cross-examination he has admitted that his son is plying donkey cart and he is working as Hari, but he paid Rs.3,50,000/- as ransom to the appellant, when question was put to him from where you have arranged such a huge amount, he has replied that he took loan from Tameer Bank and also borrowed from other persons, but the complainant failed to produce any evidence regarding obtaining loan from bank nor he disclosed the name of person from whom he borrowed. As per complainant on 16.03.2016 he paid the ransom amount to the appellants and on same day his son was released and in cross-examination he has admitted that police came at place of incident and recorded statement of my son there. He further admitted that “no one from the village came at the place of incident, when police came for recording statement of my abducted son.

11.     In order to support the contentions of the complainant prosecution examined son of the complainant, who is the star witness of the incident namely P.W Mehboob Ali/ abductee, who in his evidence has deposed that on the eventful day he served breakfast to the appellants and absconding accused and then he went along with them to their village, they all were boarded the Car, however, he admitted in his cross-examination that “in my 161 Cr.P.C statement, it is mentioned that accused persons received ransom amount from my father and uncle Abdul Jabbar and after taking ransom amount released me. My statement was recorded at police station Mondar”, the abductee admitted that he has not disclosed the SIM number nor given mobile data and further admitted that he is cultivating the lands of Ghulam Mustafa Shahani.

12.     The prosecution has also examined another brother of the complainant PW-3 Abdul Jabbar, this witness first time introduced that the appellants informed that they have committed murder of abductee Mehboob Ali  and they informed to SSP Dadu on 29.02.2016, who inquired from Kashmore police but they informed him that no such dead body is lying near Mureed Shakh. In cross-examination, PW Abdul Jabbar has admitted that the house of complainant is situated within his village, and he had not given any amount to brother to pay ransom. PW-6 Liaquat Ali who is the son of complainant has deposed that on 18.03.2016 in his presence Investigating Officer prepared the mashirnama of place of incident on 24.03.2016 police arrested accused Qurban and Lal Bux in his presence.

13.     The prosecution has also examined PW-5 Shoukat Ali another son of the complainant, who has deposed that on 29.02.2016, the accused persons called us and informed that they have committed murder of abductee Mehboob Ali and asked to collect his body from Mureed Shaikh, thereafter his father moved an application before Sessions Judge Dadu for registration of FIR, his statement was recorded on 18.03.2016 in cross-examination, he has admitted that he and his brother Mehboob (abductee) are plying donkey carts and about 70/80 houses are situated in our village. He further admits that                   “I have not disclosed that accused persons have contacted with me on dates 14.02.2016, 24.02.2016 and 28.02.2016 after receipt of information regarding the death of abductee, they went to police station Mondar”. The prosecution also examined other witnesses.

14.     Having considered the available material from all corners, we are of the view that prosecution has miserably failed in its’ primarily duty to establish the case and bring home the guilt of the appellants/accused beyond reasonable doubt. The evidence produced by the prosecution is full of discrepancies and contradictions and suffers from infirmities, except the mere allegation in the FIR, there is nothing incriminating on the record to connect the appellants/accused with the commission of crime. It may be observed that neither Mehboob Ali, the alleged abductee has been recovered from the captivity of the appellants/accused nor the alleged vehicle used in the offence. As per prosecution case the ransom amount was paid but neither the numbers of the currency notes nor denominations of the notes have been disclosed by the complainant party more so nor the police was informed. During investigation the ransom amount was not recovered from the possession of the present appellants/accused, which connects them with the commission of the offence. It has also come on record that the complainant has took loan of Rs.3,50,000/- from Tameer Bank for the payment to the accused persons but no bank statement was collected during investigation. Furthermore the FIR was lodged with unexplained delay of about sixty four days, the object and importance of FIR in a criminal case was an extremely vital and valuable piece of evidence for the purpose of corroborating the oral and ocular evidence adduced at trial. Object of insisting upon prompt lodging of the report to the police in respect of commission of an offence was to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging of FIR quite often would result in establishing that same was a creature of afterthought. In this context reliance is placed upon the case of Rahat Ali vs. The State (2010 SCMR 584) wherein the Honourable Supreme Court of Pakistan has held as follows:-

“9……..Thus there is inordinate delay of silence of P.W.2 which creates doubt about his veracity. Delay of 24 hours, 4 days and 15/20 days in reporting the matter to the police or recording the statement of witnesses by the police has been found adversely affecting the veracity of witnesses as held in the cases of Muhammad Sadiq v. The State PLD 1960 SC 223, Sahib Gul v. Ziarat Gul 1976 SCMR 236 and Muhammad Iqbal v. State 1984 SCMR 930, respectively. It has also been observed by this Court that delay in recording the statement without furnishing any plausible explanation is also fatal to the prosecution case and the statement of such witness was not relied upon in the case of Syed Muhammad Shah v. State 1993 SCMR 550. Therefore, the evidence of P.W.2 is coming within the scope of above rules laid down by this Court. Hence, his statement cannot be safely relied upon in the peculiar facts and circumstances of the present case.”

 

15.     For what has been discussed above, we are of the considered view that the prosecution has failed to prove its case against the appellants/accused beyond reasonable doubt and it is settled proposition of law that for giving benefit to an accused it is not necessary that there should be many circumstances creating doubts, if there is a single circumstance which creates reasonable doubt about the guilt of the accused, then the accused will be entitled to the benefit. In this respect, reliance can be placed upon the case of Muhammad Mansha v. The State reported in 2018 SCMR 772, wherein the Honourable Supreme Court has held that:-

“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tarique Parvez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”

 

16.     Keeping in view the above facts and circumstances of the case and the case-law referred above, benefit of doubt was extended in favour of the appellants and as a consequence whereof instant appeal was allowed by our short order dated 30.10.2018, whereby the appellants/accused were acquitted of the charge and they were directed to be released forthwith, if not required in any other criminal case. Above are the reasons for our short order.

 

Judge

Judge

 

ARBROHI