' MUNIB AHMAD KHAN, J.---The appellant has challenged the judgment, dated 19-12-2003 passed by Anti-Terrorism Court-II Sukkur by which the appellant has been convicted in crime No, 6 of 2001 of Police Station, Garhi Hassan, District Jacobabad registered under section 365-A, 457, 147, 149, P.P.C. Read with section 7 of A.T.A. Act, 1997. The learned Court has awarded death sentence to the appellant by convicting him under section 365-A, P.P.C. And forfeiture of his immovable property to the extent of Rs,Two Lac and has also convicted under section 457, P.P.C. For five years' R.I. And fine of Rs,50,000. The learned Court has also convicted the appellant under section 7(e) of ATA Act, 1997 to death along with forfeiture of his property to the extent of Rs,Two Lacs to the government. Vide the said judgment the learned Court has acquitted all the eight absconding accused.
' According to the F.I.R. The complainant lodged report on 2-2-2001 that his father Ghanshamdas has been abducted on 14-12-2000 at about 1-30 p.m. By four unidentified accused persons while seven unidentified culprits were standing outside the premises and that the accused were armed with Rocket Launcher and Klashnikovs. After abducting Ghanshamdas the culprits went towards eastern side. On the cries of the complainant, watchman Shabeer Ahmed Sarki was attracted and other villagers also arrived at the place of incident. He followed the footprints which disappeared at the village of Bagan near Dera Bughti. Bagan advised him to wait for three days but after no response towards availability of abductee, the complainant lodged the F.I.R. On 22-2-2001 naming therein Zurthi,
2. Bagi, 3.Rehmatullah, 4.Sian Bux, 5.Lalan, 6.Talahi,
7. Lal Jan,
8. Nekoo and three unidentified for abductinghis father Ghanshamadas for extorting ransom. Thecomplainant again approached Bagan Bugti who kept on false hopes and finally replied that he could not find the abductee. The appellant was arrested in the F.I.R. On 16-5-2001 while eight other named persons remained absconders.
' The charge was denied by the appellant and to prove the same the prosecution examined eight witnesses, out of which, abductee Ghanshamdas was examined as P.W.1 while his son Panwan Kumar, thecomplainant was examined as P.W.3, Judicial Magistrate Qadir Bux was examined as P.W.2 as he recorded statement under section 164, Cr.P.C. Of the abductee and conducted identification parade of the accused. Other witnesses have been examined, who were the mashir of the place of incident or they were witness to the recovery of abductee who, according to the prosecution, was found to a police mobile on 30-3-2001 near Ashique-Abad, Shahi Wah at about 2200 hours. After recovery of the abductee police did not record his statement and on 16-5-2001 when the appellant was arrested then his identification parade was conducted and statement under section 164, Cr.P.C. Of the abductee was also recorded.
' Learned counsel for the appellant has assailed the judgment on the following grounds:--
(i) That name of the appellant has not been mentioned in the F.I.R.
(ii) That the accused named in the F.I.R. Remained in abscondence, have been acquitted in absentia while there is same series of evidence against all the accused.
(iii) That the case of the appellant is on better footings than that of absconding accused as their names have been mentioned in the F.I.R.
(iv) That the abductee was not recovered from the custody of appellant nor any ransom has allegedly been paid. The abductee was recovered by the police itself from an open place during patrolling.
(v) That no incriminating weapon was recovered from the appellant nor was attributed to him.
' Learned counsel for the appellant argued that the police has involved the appellant just to close the F.I.R. As the prosecution has miserably failed to prove the involvement of the appellant and that the identification parade was not necessary as, according to statement of abductee, he knew appellant and identified him instantly on the day of incident while on the other hand identification parade was necessary from complainant as he has not identified any person as per statement recorded in the F.I.R. He further asserted that statement of the abductee was not recorded for a longer period after his appearance on 30-3-2001 and it was very strange that when the appellant was arrested on 16-5-2001 then immediately statement of abductee under section 164, Cr.P.C. Was recorded on that very day while there is no statement of the abductee under section 161, Cr.P.C. On the Court file and that thenatural witness, as mentioned in the F.I.R., could be Chowkidar Shabeer Ahmed Sarki and other villagers who were attracted on the hue and cry of the complainant. He has also invited attention of have Court to the Roznamcha entry Exh.20-F through which the appellant was apprehended.
' On the other hand Mr. Mushtaque Ahmed Abbasi learned Assistant A.G. Very candidly admitted that the standard of evidence produced in the case does not warrant capital punishment, therefore, punishment may be reduced.
' After hearing the learned counsel and perusing the record we find that the prosecution has miserably failed to discharge its duty and even the prosecution has not made any effort to streamline the evidence and to produce witnesses to prove the guilt of the appellant. Admittedly the incident took place on 14-12-2000 but there is no explanation as to why the F.I.R. Was lodged, on 2-2-2001 i,e, after about 48 days. The excuse of the complainant in this respect that Baggan promised to return the abductee but thereafter he showed his inability to recover, has no force. It may be pointed out that a person who promised to return the abductee is named as Baggan while the appellant is also Baggan Lohar but it has not been clarified throughout the case as to whether both are one and the same person or have separate identity. Anyhow, to proceed further we have noted from Exh.20-F that on 16-5-2001 while the police party was patrolling their beat they saw a person who tried to slip way, was got apprehended but did not reply satisfactorily, therefore, he was arrested under section 54, Cr.P.C. In the instant crime i,e, Cr. No, 6.Of 2000 under section 365-A, P.P.C. It is very strange that as to how the police immediately jumped to the conclusion after arresting a suspected person that he is the accused in specific crime under specific section. More surprisingly is the factual position that on that very day he was brought to the Court for identification parade and on that very day Ghanshamdas the abductee in the case was searched and his presence was arranged before the Magistrate. Identification parade was conducted in which Ghanshmadas identified the appellant and also got his statement recorded under section 164, Cr.P.C. In fact the question arises as to what was the necessity for conducting identification parade as according to the evidence of Ghanshamdas he had identified the appellant on the electric bulb light on the day of abduction and secondly what was the reason for recording of 164, Cr.P.C. Statement of the abductee. It shows that the police and the abductee both had doubts in respect to involvement and identification of the appellant. The statement of the abductee that he had identified the appellant at the time of abduction is not safe as his son Pavan Kumar has not stated this fact in the F.I.R. And even he has named eight persons but not the appellant. When the abductee knew the appellant then it was natural that the complainant,being son of the abductee, would have some knowledge about the appellant and if not the name then at-least stature or appearance would have been mentioned. We have also noted that relevant witness in the matter could be watchman Shabeer Ahmed Sarki or other villagers who according to the complainant came at the time of hue and cry and abduction was committed but none of them has been examined. A long gap of 107 days during which abductee remained confined remained without any explanation creates doubts as the abductee has not given the detail except positive statement regarding appellant that he never saw him during his captivity period. The abductee has admitted that no ransom was paid while same was remanded during his complicity there is no allegation against accused that he demanded ransom. The abductee has not stated as to how his release was effected and how he reached on the main road wherefrom the police mobile picked him up and identified him as abductee Ghanshamdas. Apparently there is no evidence in the case to connect the accused with the abduction or demand of ransom, hence no case. Is made out against him. The finding of the trial Court in respect to absconding accused is worth noting as he acquitted them on the ground that there was no cogent evidence against them but at the same time he failed to explain it or give any reason as those absconding persons were accused in the F.I.R. And complainant followed their footprints towards a village. The complainant and abductee have stated that there were several persons who caused abduction, therefore, before awarding sentence to one person, who is even not named in the F.I.R., the trial Court would have pondered over the factum. The trial Court has also failed to pinpoint failure of the police in making watchman Shabbir Ahmed and other villagers as witnesses as well as giving a thought to the factum relating to arrest of appellant and immediately showing his involvement in specific crime under specific section as mentioned in Roznamcha entry exhibit 20-F. Even otherwise the finding of the trial Court does not match with the point he chose for consideration notwithstanding the fact that appellant was not named in the F.I.R. Nor statement of abductee was recorded by the time of his arrest.
' Before parting with the judgment, we are of the view that copy of this judgment be sent by Additional Registrar of this Court along with R & Ps of Special Case No,176 of 2001 to Member Inspection Team for putting same before competent authority for suitable action against the scribe of judgment in above special case as the learned Judge has failed to do justice and has not taken material factual position in consideration before passing the judgment.
' In these circumstances the story of the prosecution is unbelievable as it created so many doubts and in these circumstances the appellant deserve acquittal. By short order we have allowed the appealand set aside the judgment, dated 19-12-2003 of ATA Court-H Sukkur and Larkana Division at Sukkur and above are the reasons.