'MUHAMMAD MOOSA K. LEGHARI, J.--- These appeals are directed against the judgment dated 5-4- 2003 passed by learned Judge, Anti-Terrorism Court, Hyderabad and Mirpurkhas Division Hyderabad.
2. Through the said judgment recorded in Special Case No,40 of 2001, Special Case No,41 of 2001 and Special Case No,42 of 2001 the appellants along with absconding accused Manzoor were sentenced to suffer R.I. For seven years with fine of Rs,50,000 each for the offences under section 365, P.P.C. Each of the appellants was sentenced to suffer R,I. For fourteen years for the offence falling under section 324, P.P.C. The accused persons were further sentenced to suffer R.I. For ten years with fine of Rs,50,000 each (for which no section of P.P.C. Or the offence is mentioned). Each of the appellants were further sentenced to R.I. For seven years for the offence committed under section 13(d), Arms Ordinance. Learned trial Judge specifically recorded in the judgment that the sentence awarded to the appellants to be thirty-eight years. One of the accused namely Anwar was however, acquitted under section 365-H(i), Cr.P.C. Learned Judge further observed in the judgment that the sentences so awarded shall run concurrently. The arrested accused were however, granted benefit under section 382-B, Cr.P.C.
3. The facts as unfolded by the prosecution, precisely are, that the appellants above-named along with acquitted co-accused Anwer and absconding accused Manzoor on 11-4-2001 in the day time, duly armed with deadly weapons, in furtherance of their common intention, abducted one Hyderabad-Karachi bound passenger Coach bearing No,JA-9947 boarded by the staff and the passengers. They drove the bus and snatched the cash of Rs,3,300 from the conductor besides looting the valuables from the passengers by show of force. The accused persons also opened fire upon the police party headed by complainant A.S.-I. Ahmed Khan and his subordinate staff when the police party reached on the spot after having received such information. The firing hit side wind screen of the coach causing a hole therein. A police constable by name Muhammad Rafiq who was standing at the Bus terminal Mirpurkhas was also hit by the firing. The culprits in furtherance of their common intention after covering some distance on the highway stopped the bus at Misri Agricultural Farm. Police party reached at the spot by chasing the coach where they were informed that accused persons had gone inside the garden. In the meantime other police party headed by S.I.P. Muhammad Ayub Dar also arrived. The police went inside the garden. An encounter between the police and the accused persons took place and continued for about ten minutes. After the firing stopped, the police apprehended one accused who was lying injured but was armed with .38 bore pistol. On interrogation he disclosed his name Ali Ahmed alias Ahmed Ali. The weapon which he was having, was without licence. Another accused disclosed his name as Nooruddin. He was arrested having been armed with .30 bore pistol. On their personal search a cash of Rs,11,000 and Rs,10,000 respectively was secured from the possession of those apprehended. The accused persons were brought at the police station and accused Ali was referred to Civil Hospital for treatment. The F.I.Rs, were registered vide Crimes Nos.16 of 2001 and 10 of 2001 at Police Station Old Mirpurkhas.
4. After completion of the investigation the accused were sent up to stand trial before the Judge, Anti-Terrorism Court, Hyderabad and Mirpurkhas Division Hyderabad.
5. Consequent upon framing of a formal charge to which they pleaded not guilty the accused were put to trial.
6. During the trial prosecution examined as many as 14 witnesses including the driver and conductor of the bus to prove their case.
7. On conclusion of prosecution evidence statements of the appellants were recorded under section 342, Cr.P.C. The accused persons denied the allegations and claimed to be innocent.
However, no defence was led by them.
8. Learned trial Court vide the impugned judgment acquitted one of the accused namely Anwer under section 365-H(i), Cr.P.C. By extending him benefit of doubt and convicted rest of the accused in the terms as stated in the opening paragraph.
9. We have heard Mr. Allah Bachayo Soomro learned Advocate for the appellants and Mr. Rasheed Ahmed Qureshi, Assistant Advocate-General for the State.
' With their assistance, we have scanned the evidence adduced on the record.
10. At the outset it must be observed that all the prosecution witnesses in the case are police personnel except P.W.11 Ghulam Moosa driver of the coach and P.W.12 Siraj Muhammad, conductor of the Bus. P.W.11 Ghulam Moosa driver of the coach in his examination-in-chief has stated that one of the culprits who was injured has disclosed his name as Ahmed Ali could not be identified by him.
He further deposed that accused Nooruddin was present when his 164, Cr.P.C. Statement was recorded. He further stated that he could not identify the said accused Nooruddin at this stage. In his cross-examination the said P.W. Stated that the identification test of the accused persons was held and at the time of identification test he has not identified them. He further stated that his statement under section 161, Cr.P.C. Was recorded by the police at the police station at about 12-00 midnight. The said P.W. Has recorded his 164, Cr.P.C. Statement before the Magistrate. In his 164, Cr.P.C. Statement he stated that two accused persons who have absconded can be identified by him. He further stated that he has seen the photograph of accused Anwer affixed on his national identity card and that he was the same person who occupied the 'driving seat and had driven the bus towards Misri Agricultural Farm. P.W. Siraj Din has stated in his examination-in-chief that police went to garden and then after half an hour two culprits were found arrested by the police. He further stated that one of the culprits was injured who has disclosed his name as Ali Ahmed while the other has disclosed his name Nooruddin. In his cross-examination the said witness admitted that it is a fact that at the time of recording his statement under section 164, Cr.P.C. Only one accused was present. He further admitted that identification test regarding accused was not held before the Magistrate. The I.O. Has said nothing about securing the empties from the place of .Wardat. He has stated in the examinationin-chief that pistol and revolver which were allegedly recovered from the possession of accused Ahmed Ali and Nooruddin were empty. Neither live bullets nor the empties of those pistols were recovered nor produced in the Court. It is admitted by said P.W. Ahmed Khan that about 10-15 persons have appeared inside the garden after the firing was over. Injured P.W. Muhammad Rafiq has neither implicated any of the accused nor attributed injury to anyone, though he was in senses. Admittedly only one private person was made Mashir who was also employee of the coach. The said private persons were not examined by the police.
P.W. Muhammad Yasin has deposed that accused Anwer had hijacked and driven the A.C. Coach while the remaining two accused persons were arrested at the spot at Agricultural Farm. However, said accused Anwer was not arrested at the spot and was acquitted by the learned trial Court by extending him benefit of doubt.
11. In their statements under section 342, Cr.P.C. The accused have clearly stated that they were falsely implicated in the case. They have given various reasons for their false implication. Learned trial Court disbelieved the version of the prosecution in respect of co-accused Anwar against whom the allegation was that he overpowered the driver, took possession of the driving seat and drove the bus towards the Agricultural Farm. The factum that all the witnesses excluding two private persons are police officials could not be lost sight of. The private persons have not implicated the appellants by way of cogent and concrete evidence. The case has been rendered doubtful, on account of lack of credible evidence. Learned Judge in quite overzealous manner awarded the sentence of ten years to the appellants for no offence allegedly committed by them.
On the one hand it was ordered that the sentence will run concurrently and on the other hand learned trial Judge calculated the entire sentence awarded to the appellants and gave a specific total figure of sentence as 38 years. There are reasons to believe that the judgment was not passed with complete presence of mind.
12. It is now well-settled that single circumstances creating a doubt in the prudent mind would be sufficient to extend benefit of doubt to the accused persons. It has to be given as a matter of right.
There are more than one circumstances in the case in hand for creating doubt in the prosecution story. No concrete evidence is available on record to maintain the judgment and uphold the conviction.
13. Resultantly, the appeals are allowed, judgment of conviction is set aside, and the appellants are acquitted. These are the reasons for the short order passed on 26-2-2004.