IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Jail Appeal No.S-42 of 2013

Appellant : Dodo @ Muhammad Yaqoob Junejo

Through Mr. Khadim Hussain Khoso, Advocate

Complainant : Rehmatullah @ Shahzado through

Mr.Syed Tahir Abbas Shah, Advocate

State : Through Mr. Raja Imtiaz Ali Solangi, A.P.G

Date of hearing : 22.11.2018

Date of decision : 22.11.2018

J U D G M E N T

IRSHAD ALI SHAH, J-. The appellant by way of instant appeal has impugned judgment dated 29.06.2012, passed by learned 2^nd Additional Sessions Judge, Jacobabad, whereby the appellant and co-accused Ghulam Qadir and Irshad have been convicted and sentenced as under;

“Accused Dodo @ Muhammad Yaqoob, Ghulam Qadir and Irshad, in furtherance of common intention have committed the offence of abduction of Hamzo Khan and they all three above named accused have wrongfully confined the abductee Hamzo Khan for more than one month, therefore, the prosecution has proved its present case beyond any reasonable doubt. The accused Dodo @ Muhammad Yaqoob, Ghulam Qadir and Irshad are found guilty of offence punishable under section 365-A Cr.PC and the present accused namely Dodo @ Muhammad Yaqoob, Ghulam Qadir and Irshad are convicted and sentenced under section 265-H(ii) Cr.PC to undergo for imprisonment for life and their property be forfeited. The incident had taken place on 28.11.2008 when Hamzo Khan was abducted and abductee was presented before police after abduction on 08.02.2009 and his statement was recorded, it means he was wrongfully confined with all these three above named accused for about for more than two months, hence I also convicted and sentenced the above named three accused of offence punishable under section 344 PPC to undergo for three years and fine of Rs.10,000/- each, in case of failure, they shall suffer S.I for three months each more. The present accused namely Dodo @ Muhammad Yaqoob, Ghulam Qadir and Irshad all three by caste Junejo be taken into custody to serve out the said conviction”.

2. The facts in brief necessary for disposal of instant appeal are that the appellant and others in furtherance of their common object, allegedly abducted PW Hamzo for ransom, for that they were booked and challaned in the present case.

3. At trial, appellant, co-accused Adan alias Kouro, Ghulam Qadir and Irshad, plead not guilty to the charge and the prosecution to prove it, examined PW-01 Rehmatullah @ Shahzado, produced through him FIR of the present case and his further statement, PW-02 Mazari, produced through him his 162 and 164 Cr.PC statements and memo of place of incident, PW-03 ASI Muhammad Sharif, produced through him roznamcha entries, memo of recovery of PW Hamzo and recovery of unlicensed T.T pistol, PW-04 Hamzo, produced through him his 162 and 164 Cr.PC statements, PW-05 ASI Liaquat Ali, PW-06 SIP Israr-ul-Hassan, PW-07 SIO/SIP Amanullah and the closed the side.

4. The appellant and others (co-accused) during course of their examination u/s 342 Cr.PC denied the prosecution’s allegation by pleading innocence. They did not examine anyone in their defense or themselves on oath in disproof of the prosecution allegation.

5. On analysis of the evidence so produced by the prosecution, the learned trial Court acquitted co-accused Adan alias Adul, while convicted and sentenced the appellant and co-accused Ghulam Qadir and Irshad, as detailed above by way of judgment.

6. Surprisingly, the appellant, co-accused Ghulam Qadir and Irshad managed their release through fake release orders even prior to filing of their appeals. Subsequently on arrest the appellant preferred the instant appeal. It was time barred, yet was admitted to its regular hearing.

7. It is contended by learned counsel of the appellant that the name of appellant is not appearing in the FIR though it is lodged with delay of about seven days to the incident, the abductee has returned of his own without paying ransom to anyone and co-accused Adan alias Adul has already been acquitted by learned trial Court, on the basis of same set of evidence. By contending so, he sought for acquittal of the appellant.

8. Learned A.P.G and learned counsel for the complainant have sought for dismissal of the instant criminal appeal by contending that the case of the appellant is distinguishable to that of co-accused Adan alias Adul, who has already been acquitted by learned trial Court.

9. I have considered the above arguments and perused the record.

10. It was stated by the complainant Rehmatullah @ Shahzado and PW Mazari before learned trial Court that on 18.11.2008, when they, PW Habibullah and Victim/PW Hamzo were going back to their village on their motorcycles after selling their milk, when reached near village Abdul Majeed Hambi, there at sunset time, came four unknown culprits in Car, who abducted Victim/PW Hamzo for ransom through their Car. If it was so, then the incident ought to have been reported by them to police promptly and not with delay of seven days, such delay having not been explained properly could not be lost sight of in the circumstances of the case. It was further stated by them that subsequently they came to know that the accused involved in the incident were Dodo alias Muhammad Yaqoob, Adan alias Kouro alias Adul, Ghulam Qadir and Irshad and for that according to their further statements were recorded by the police. It was done with delay of more than two months, as such no much reliance could be placed upon further statements of the complainant and his witnesses.

11. In case of Khalid Javed and another vs. The State (2003 SCMR-1419), it has been observed by the Honourable Supreme
Court that;

“---S.161---Supplementary statement by the complainant---Value---Supplementary statement of the complainant is not more than a statement under S.161 Cr.PC.

12. No doubt, PW Hamzo has supported the complainant and PW Mazari in their version but there could be made no denial to the fact that he appeared before the police of his own. The reason which he advanced before the police for his safe recovery was that on one night of his captivity, he by taking advantage of sleep of his captivators, made his escape good there-from. The person who allegedly was abducted for ransom could hardly be let to go in such a easy way by his captivators. There is no memo of place of captivity of the victim/PW Hamzo, which appears to be significant. No identification parade of any of the accused involved in the incident was held through the complainant or his witnesses, which appears to be significant.

13. In case of Faiz-ur-Rehman Vs. The State (2012 SCMR-538), it has been observed by the Honourable Supreme Court that;

“Validity---No test identification parade was held so as to positively incriminate the accused---Alleged abductee was not recovered from custody of accused who surfaced on his own and had appeared before police on his own volition---No ransom was paid by complainant or alleged abductee or by anybody else to accused or any other person---Taxi car wherein alleged abductee was statedly abducted by accused was not recovered from the possession of accused---In absence of any other evidence on record establishing involvement of accused in alleged offence, prosecution failed to prove its case against reasonable doubt---Supreme Court condoned the delay in filing of appeal and set aside conviction and sentence awarded to accused by the Court below and acquitted him of the charge”.

14. PW Habibullah was given up by the prosecution for no obvious reason. The inference which could be drawn of his non examination would be that he was not going to support the case of prosecution.

15. Obviously, it was same set of evidence, which has been disbelieved by learned trial Court in respect of Adan alias Kouro alias Adul, while it has been believed in respect of the appellant and co-accused Ghulam Qadir and Irshad, who by managing their release through fake release orders are still absconding.

16. In case of Sardar Bibi and another 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”.

17. Based upon above discussion, the conviction and sentence recorded against the appellant by way of impugned judgment could not be sustained, it is set aside. Consequently, he is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. He shall be released forthwith in the present case, if not required in any other custody case.

18. The instant criminal appeal is disposed of accordingly.

JUDGE

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