MUHAMMAD MOOSA K. LAGHARI, J. - Since these appeals arise out of single judgment of the Trial Court those are being disposed of by the common judgment.
2. The appeals are directed against the judgment dated 5.8.2003 passed by the learned Judge, Anti-Terrorism Court. Hyderabad and Mirpurkhas Division in Special case No. 13 of 2002 whereby the appellants were convicted in the following terms:- "(1) For the main offence under Section 365-A, PPC the accused persons are sentenced to suffer for life imprisonment each with fine of Rs. 50.000/- each. The fine if realized shall be given to the victim or to the father of the victim, in default of payment of fine R.I. For one year more each to suffer.
(2) For the proved offences committed by them under Sections 324 and 353 r/w Section 149, PPC and r/w Section 6(d) of the Anti-Terrorism Amendment Ordinance, 2001 they are sentenced to suffer R.I. For 14(fourteen) years each also with fine of Rs. 50,000/- each. The fine if realized shall be deposited into Govt. Treasury, ln default of payment of fine R.I. For one year each to suffer.
3 The precise facts of the prosecution case are that on 1.2.2002 in-between 12-30 and 2-00 p.m.
Raja alias Rajes Kumar, a boy aged about 3-1/2 years was allegedly kidnapped from a street near Madina Masjid situated in Shaikh Mohalla in Deh Bhit shah taluka Matiari for the purpose of extorting ransom from his parents. The matter was reported to the police and, in the first instance, an entry was made in the Roznamcha. However, subsequently on 9.2.2002 F.I.R. Crime No. 3/02 was registered at Police Station Bhit Shah on the complaint of Gagan Das.
4. However, according to the prosecution story as unfolded in F.I.R. No. 8/2002 on 14.3.2002 Police got a clue that the kidnapped boy was in custody of some culprits, therefore, the Police party of Bhit Shah arrived at reported place at wheat cultivation in village Haji Chutto Malokani. There an encounter took place between the police and the culprits. As a result thereof out of nine culprits available on the spot, accused, Ghulam Hussain, Chanesar, Gulsher and Ghulam Mustafa were arrested while the remaining made of their escape good. After the arrest of the accused persons police recovered unlicensed weapons and ammunition from those arrested, ln the meanwhile abducted boy voluntarily came out of the wheat crop who was identified by the police through the photograph which the police was having with them The police then brought the accused persons along with the weapons, ammunition and the abducted boy at Police Station Bhit Shah where Such F.I.R, was registered. Besides separate F.I.Rs. Under section 13(d) Arms Ordinance were also registered against the accused persons.
Lt seems that subsequently co-accused Ashraf, Nangar, Rasoolo and Dhano were also arrested by the Police.
On conclusion of investigation, accused persons were sent up to stand trial.
5. The accused were formally charged by the Trial Court to which they pleaded not guilty and the trial commenced.
6. The prosecution, in order to prove their case examined as many as 13 witnesses during trial.
7. On closure of the prosecution side, the accused were examined under Section 342, Cr.P.C. All the accused persons pleaded their innocence and claimed to have been falsely implicated by the police.
8. On the basis of evidence adduced, learned Trial Court acquitted accused namely, Nangar, Dhani Bux alias Dhano, Rasool Bux alias Rasoolo under Section 265{h)(i), Cr.P.C, by extending them benefit of doubt. However, the appellants were convicted in the terms as stated herein above.
9. We have heard the learned counsel for. The appellants and the learned Assistant Advocate General Sindh. We have thoroughly scrutinized the evidence available on record, and examined the judgment of the learned Trial Court on the touch stone of the established principles of dispensation of criminal justice.
10. Lt is an admitted position that no private person was associated to witness the arrest of the appellants and to testify about recovery. No person from the locality was made mashir of place of occurrence. No mashirnama of place of occurrence was prepared. The parents of the boy were handed over the custody of the boy at the police station. There is allegation of encounter with the police but admittedly neither the empties were secured from the place of wardat nor, any body from either side was injured. This fact was admitted by PW-5 Muhammad Jumman, Additional S.H.O. Bhit Shah in his cross-examination in quite clear, unambiguous and categorical terms.
According to police they fired number of rounds but the empties of the ammunition allegedly used by the police were even not secured from the place of wardat. Admittedly, certain chits/letters allegedly received from the dacoits namely Dilsher Mari, Murid Mari and Laloo Mari were exhibited but none of the persons mentioned in the chits were arrested or associated with the investigation.
There is absolutely no evidence to show that the appellants had kidnapped the boy. The victim boy was neither produced in Court nor the accused were got identified. Victim boy, according to prosecution case, was seen coming out from the wheat cultivation. Though it was alleged that he has certain scratches on his body, but admittedly neither such mashirnama was prepared, nor the boy was medically examined. Accused Ashraf was not arrested-on the spot, but was arrested at subsequent stage yet he was not put to identification test. Learned Trial Court acquitted co- accused Nangar, Dhani Bux alias Dhano and Rasool Bux alias Rasoolo for the reasons that no recovery of weapons or ammunition was made from their possession. Other reason for their acquittal was that they were not put to identification. In presence of victim and other police witness before any Magistrate. No statement of the victim was recorded by the police under Section 161, Cr.P.C, and for these reasons learned Trial Court did not award capital punishment, learned Trial Court did not believe the version of the prosecution in respect of the acquitted accused. Thus the entire story was shrouded in mystery. The record reveals that the weapons owned by the accused/appellants were foisted upon them by the police and they were involved under section 13(d), Arms Ordinance. There is no reliable evidence to believe that the victim boy was recovered from the possession of the appellants. There is absolutely no evidence to show that any demand of ransom was made from the complainant party by the appellants. Even those chits are not written in the names of appellants. Notwithstanding their admissibility, as even the handwriting was not compared. Original chits were said to be with the police, but not produced, in the Court.
11. The case of the prosecution is marred by inherent infirmities and credible evidence is badly lacking. The reasoning given by the Trial Court itself is sufficient to arrive at a conclusion that the judgment is absolutely unsustainable. Merely because police managed to foist upon the appellants their own weapons would not be sufficient to convict them. There are convincing reasons to believe that Police has dramatized fake encounter while....................................... Investigation.
12 The above circumstances glaringly speak that the prosecution case is highly doubtful and the judgment is totally against the evidence on record, lt is outrightly unsustainable and therefore warrants to be set aside. We accordingly do that.
13. For the above reasons these appeals were allowed by short order dated 17.2.2004, the appellants were acquitted and were directed to be released forthwith if not required in any other case.