IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No.D-10 of 2017
Present:
Mr. Justice Muhammad Junaid Ghaffar
Mr. Justice Irshad Ali Shah
Appellants : 1). Nazir s/o Wasand Chandio
2). Mour @ Jalal s/o Ali Murad @ Hassan Chandio
Through Mr.Habibullah Ghouri, Advocate
Complainant : Abdul Jabbar s/o Muhammad Ismail Chujjan
Through Mr.Khalil Ahmed Kober, Advocate (called absent)
The State : Through Mr.Aitbar Ali Bullo, D.P.G
Date of hearing : 02.09.2020
Date of decision : 02.09.2020
J U D G M E N T
IRSHAD ALI SHAH, J; The appellants by way of instant criminal jail appeal have impugned judgment, dated 28.02.2017, passed by the Special Judge, Anti-Terrorism Court, Sukkur, whereby they have been convicted and sentenced as under;
1) For committing offence U/S.365-A PPC r/w Section 149 PPC, both accused are convicted and sentenced to suffer for imprisonment of life and forfeiture of their moveable and immovable properties.
2) For committing offence 7 (e) ATA, 1997, both accused are convicted and sentenced to suffer imprisonment of life.
2. The facts in brief necessary for disposal of instant appeal are that appellant Nazir and PW/abductee Abdul Manaf were working together at Saudi Arabia. On coming back to Pakistan, appellant Nazir allegedly invited PW/abductee Abdul Manaf to have meal with him at his village “Meeran Machhi”, Taluka Qamber, while he was going there with complainant Abdul Jabbar and PWs Muhammad Muslim and Abdul Razzaque and reached adjacent to village “Nau Goth”, Taluka Qamber, he allegedly was abducted by the appellants and 11 more culprits for ransom, for that the present case was registered by the police. On investigation, the appellants were challaned by the police to face trial for the above said offence.
3. At trial, the appellants did not plead guilty to the charge and the prosecution to prove it, examined in all seven witnesses and then closed its’ side.
4. The appellants in their statements recorded u/s.342 Cr.PC denied the prosecution allegation’s by pleading innocence. The specific plea of innocence, which appellant Nazir took, was to the following effect;
“Sir, I am innocent and falsely involved by complainant party, as I had outstanding amount of Rs.9000/- Riyal against alleged abductee Abdul Manaf when he was working with me at Saudi Arabia and on demand of said outstanding amount, the complainant party falsely involved me in this case. I pray for justice”.
None of the appellants examined anyone in their defence. However, appellant Mour alias Jalal examined himself on oath. His statement on oath was to the following effect;
“It is correct to suggest that none of my parents made any complaint against the police. It is incorrect to suggest that I am deposing falsely”.
5. On conclusion of trial, learned trial Court convicted and sentenced the appellants, as is detailed above, by the way of impugned judgment.
6. On the last date of hearing, the instant appeal was adjourned as last and final chance, with specific direction to learned counsel for the complainant to prepare his brief. None has appeared on behalf of the complainant to argue the instant appeal; therefore, we proposed to dispose of the same on merits, after hearing learned counsel for the appellants and the State.
7. It is contended by learned counsel of the appellants that the appellants being innocent have been involved in this case falsely by the complainant party in order to satisfy its dispute with them over money; the FIR has been lodged with delay of about 50 days; there is no independent witness to the incident and the evidence of the prosecution being doubtful in its character has been believed by learned trial Court without cogent reasons. By contending so, he sought for acquittal of the appellants. In support of his contention, he relied upon cases of Irshad Ali alias Ishoo and 02 others Vs. The State (PLD 2006 Karachi -178), 2). Muhammad Akram Vs. The State (2009 SCMR-230), 3). Faiz-ur-Rehman Vs. The State (2012 SCMR-538) and 4). Mumtaz Ali and another Vs. The State (2013 YLR-1619).
8. Learned Deputy Prosecutor General for the State by supporting the impugned judgment has sought for dismissal of the instant appeal.
9. We have considered the above arguments and perused the record.
10. It was case of abduction of a young man for ransom; therefore, the complainant party was under obligation to have reported the incident to the police promptly. It was not done for no obvious reason, therefore, the lodgment of the FIR with unexplained and unplausible delay of about 50 days could not be lost sight of. Indeed, it is reflecting consultation and deliberation.
11. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it has been held by Honourable Apex 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. It is also a matter of fact that no independent person from the place of incident has been examined by the prosecution to support the allegation of abduction of PW/abductee Abdul Manaf and such omission on the part of police could not be overlooked. Admittedly, no ransom money has been paid for release of PW/abductee Abdul Manaf. No C.D.R has been obtained by the police to establish the nexus of the appellants with the cell phone numbers, whereby the demand for ransom money for release of the PW/abductee Abdul Manaf was made. The complainant and his witnesses were found to be inconsistent on demand of ransom money. As per PW/abductee Abdul Manaf, he was released from the captivity with arrest of appellant Nazir, by the police of P.S Qamber, after an armed encounter. Contrary to it, as per PW/Mashir PC Muhammad Rafique, appellant Nazir was arrested when he was already found confined at Central Prison, Larkana. Surprisingly, PW/Mashir PC Muhammad Rafique during course of his examination was not able to identify appellant Nazir. None has been examined by the prosecution to prove the release of alleged PW/abductee Abdul Manaf, after an armed encounter with the culprits involved in the incident by police party of P.S Qamber. Significantly, as per PW/abductee Abdul Manaf, his 161 Cr.PC statement was not recorded by the police and such fact is also affirmed by SIO/Inspector Shamsuddin, which appears to be significant. PW Abdul Razzaque has not been examined by the prosecution, for no obvious reason. His non-examination as per Article 129 of Qanun-e-Shahadat order, 1984, would lead to presume that he was not going to support the case of prosecution. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellants beyond the shadow of doubt.
13. In the case of Tariq Pervez Vs. The State (1993 SCMR-1345), it has been held by the Honourable Apex Court that;
“for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right”.
14. In view of the facts and reasons discussed above, the instant appeal is allowed and the impugned judgment is set aside. Consequently, the appellants are acquitted of the offence for which they were charged, tried and convicted by the learned trial Court and they shall be released forthwith, if not required in any other custody case.
15. Above are the reasons of our short order dated 02.09.2020, whereby the instant appeal was allowed.
J U D G E