' ZAFAR AHMED KHAN SHERWANI, J.---This is a jail appeal filed by the appellants Abdul Ghani alias Mooso Khoso, Habibullah alias Jani and Fazul, who has been convicted and sentenced by the learned Special Judge, Anti-Terrorism Court, Sukkur, vide judgment, dated 31-1-2005, whereby the appellants were convicted and sentenced as under:--
(a) "All the present accused so also the absconding accused are convicted for an offence punishable under section 365/A read with section 149, P.P.0 and sentence them to suffer imprisonment for life. Property of all accused shall also be liable to be forfeited to State."
(b) "All the present accused so also the absconding accused are also convicted for an offence punishable under section 395 read with section 149, P.P.0 and sentenced them to suffer imprisonment for life. They are also ordered to pay the fine .Of Rs,50,000 each. In case of default in payment of fine, they shall suffer further R.I. For one year more."
(c) "All the above named present accused so also the absconding accused are also convicted for an offence punishable under section 324 read with section 149, P.P.C. And sentenced them to suffer R.I. For 10 years and also to pay the fine of Rs,20,000 each. In case of default in payment of fine they shall suffer further R.I. For six months more."
(d) "All the present accused so also the absconding accused are also convicted for an offence punishable under section 353 read with section 149, P.P.C. And sentenced them to suffer S.I. For two years and also to pay fine of Rs,5000 each. In case of default in payment of fine, they shall suffer S.I.
For two months more."
(e) "All the present accused so also the absconding accused are further convicted for an offence punishable under section 7(e) of A.T.A, 1997 and sentenced them to suffer imprisonment for life.
Property of all accused shall also be liable to be forfeited to the State."
(f) "Accused Abdul Ghani and Habibullah are also convicted for an offence punishable under section 13(d). A.O. And sentenced them to suffer R.I. For 5 years and also to pay the fine of Rs,20,000 each. In case of default in payment of fine, both accused shall suffer further R.I. For one year more."
2. The brief facts leading to this appeal are that the appellants along with absconding accused, namely, Hameed, Mahboob, Boujilo, Nawab and Saeed were tried by the learned Special Judge, under section 365-A, P.P.C. 17(3) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, 324, 353, 148, 149, P.P.C. And 13(d) Arms Ordinance and section 7(e) of the Anti- Terrorism Act, 1997, on the ground that on 14-8-2004 at about 10:30 p.m., when complainant Muhammad Usman Sadhayo along with his brother Zulfiqar Ali and one Ahmed Yar Khoso were travelling in a car bearing registration No, PH-951 towards Shikarpur and reached near Pir Musafir, the appellants along with the absconders stopped the car showing T.T. Pistols, and overpowered them and got them down from the car. They after maltreating them, robbed their valuables including cash and kidnapped P.Ws Zulfiqar Ali and Ahmed Yar for the purpose of ransom.
However, on account of arrival of the police at the spot and seeing the police mobile, the appellants along with the absconding accused left the place of the incident and ran away with the abductees. The police party also chased them, and after some distance firing was exchanged between them. The police apprehended two accused namely, Abdul Ghani alias Mooso and Habibullah alias Jani and brought them at the place of the incident. In the meanwhile both the abductees were also released by the culprits and they reached at the wardat, where during interrogation the appellant, namely, Abdul Ghani and Habibullah disclosed their identity.
Unlicensed pistols as well as robbed articles were also secured from them and they were taken to the police station, where F.I.R No,28 of 2004 was registered besides registration of F.I.Rs Nos.129 of 2004 and 130 of 2004 under section 13(d) of the Arms Ordinance.
3. Later on, appellant Fazul Panhwar was also arrested and on the basis of his identification through the two eye-witnesses he was also challaned.
4. At the trial, the prosecution examined all the material witness, out of them the three P.Ws., namely, Muhammad Usman Sadhayo, complainant and the abductees P.Ws. Zulfiqar Ali and Ahmed Yar Khan were examined at Exhs.17, 18, and 19 respectively. In their support P.C. Ghulam Shabir, P.W. Moula Bux, who were witnesses of the recovery of the robbed articles and the unlicensed pistols from the appellants Abdul. Ghani and Habibullah at the place of the incident, were examined. Sub-Inspector Baharuddin Keerio was examined in support of arrest of the appellants Abdul Ghani and Habibullah and also on the recovery of the robbed articles and the illicit weapons from them in presence of the above mentioned witnesses. After examination of the appellants under section 342, Cr.P.C. The counsel for the parties were heard and then the impugned judgment was passed convicting and sentencing the appellants as afore mentioned.
5. We have heard the learned counsel for the appellants and also the learned Assistant A.G. For the State.
6. It was contended by the learned counsel for the appellants that the prosecution has failed to prove the alleged offences because the alleged victims, namely, Zulfiqar All and Ahmad Yar who had admittedly reached at the spot soon after the arrest of the appellants Nos.1 and 2 by the police, therefore, no offence under section 365-A, P.P.0 has been made out by the prosecution.
Moreover it has come in evidence that the complainant and the two victims were travelling in the car at the time of incident, but surprisingly neither the car was secured nor produced by the police, therefore, the entire evidence of the prosecution becomes doubtful. He further contended that the appellants have been involved in the case on account of enmity over dispute in respect of agricultural land, therefore, no independent witness was examined, even the witness produced to prove the arrest and recovery of the weapons from them, namely, Moula Bux, was Hari of P.W Ahmad Yar Khan, whose presence at the spot was by chance, therefore, the evidence of this witness cannot be relied upon without corroboration by an independent witness. He also contended that in spite of exchange of heavy firing between the police and the appellants, none from either side was injured and even no empty was secured from the place of incident.
7. The learned Assistant A.G. Contended that the prosecution could only prove an offence under section 365-A, P.P.C. But not any other offence including section 7(e) of the Anti-Terrorism Act, 1997, therefore, he would only support the conviction and sentence for the offence.
8. We have carefully considered the above arguments in the light of the record and reached at the conclusion that the prosecution could only prove beyond reasonable doubt that the appellants Nos.1 and 2 have committed the offences under section 395 read with section 149, P.P.C. And under section 13(d) of the Arms Ordinance whereas no offence could be proved against the appellant Fazul beyond reasonable doubt for the following reasons.
9. From the evidence produced by the prosecution it is an admitted fact that the entire episode of the alleged kidnapping for ransom and dacoity was a matter of ten minutes during which both the alleged kidnapees i.e, Abdul Razaque and Ahmed Yar returned from their captivity. The incident has taken place at 7:30 p.m. At National Highway. In all eight armed persons had participated in the commission of the offence and an encounter took place with the police but no body from either side received injury. The appellants Abdul Ghani and Habibullah were arrested with their illicit weapons as well as the robbed articles and both the alleged abductees taking the benefit of encounter reached at the spot where police was present with the complainant.
10. The evidence produced on the point of dacoity in the form of the ocular testimony of the three private persons A including the victims i.e, the complainant Muhammad Usman, and P.W Ahmad Yar has been supported by the third eyewitness P.W Zulfiqar and the two official witnesses i.e, P.0 Ghulam Shabbir and the S.H.O. Baharuddin Kerio. Through their evidence the arrest of the appellants Nos.1 and 2 and the recovery of robbed articles along with loaded unlicensed incriminating pistols from them immediately after the incident of dacoity has been proved. These witnesses were cross examined at length by the Advocates of the appellants Nos.1 and 2 but nothing could be elicited affecting their credibility. However, since the car in which they were allegedly travelling at the time of the incident bearing Registration No,PH.0951 was not secured after the incident with no plausible reason, therefore, it cannot be held that the dacoity took place in the said car.
11. With regard to the other charge of kidnapping for ransom under section 365A, P.P.C., it can be said that there are mere words of the complainant and P.W Ahmad Yar that they were kidnapped for ransom by the appellants and their absconding accomplices but keeping in view the statement of P.W Moula Bux, who immediately reached at the place of the incident that on the night of the incident at 7.30 p.m. He along with co-mashir Abdul Rasool were going to Jacobabad and saw his Wadera Ahmed Yar standing at Peer Musafir and on his enquiry, he informed that he had been robbed by some accused and in the meanwhile the police of Abad P.S brought the two appellants over there and recovered the robbed articles including incriminating unlicensed pistols from their possession. The said witness has also not deposed that the said Ahmad Yar had also disclosed to him that he had been abducted by the culprits but got himself released from their custody on account of police firing. He had also not disclosed about any police encounter with the appellants and their accomplies. Similarly, the fact that none from both side received any injury even no empty was produced having been secured from the place of the incident, indicated that neither the alleged abductees were abducted nor any encounter took place on account of which these adductees got themselves free from the custody of the appellants. There is no other corroborative piece of evidence on the point of kidnapping of these two alleged victims from any independent source, therefore, it cannot be said that the appellants have committed the offence of kidnapping for ransom as provided under section 365-A, P.P.0 read with section 7(e) of the Anti-Terrorism Act, 1997.
12. With regard to the case of the appellant Fazul we have not found any incriminating evidence on record against him except the identification parade before the Judicial Magistrate Thul on 28-4- 2004 in which he was identified by the complainant and P.W Zulfiqar Ali but the same has no legal value in view of the admitted fact which was deposed by the three eyewitnesses, that it was the dark night when the incident took place and this appellant was not known to them previously.
Besides this, his identification was made by these witnesses without reference to his role in the commission of the offence. Nothing incriminating has been secured from his possession or on his pointation, therefore, no offence has been proved by the prosecution against him.
13. Coming to the sentence awarded to the appellants Nos.1 and 2 who have been convicted under section 395, read with section 149, P.P.0 and sentenced to undergo imprisonment for life and fine of Rs,50,000 each and for five years' R.I. And to pay fine of Rs,20,000 each under section 13(d), Arms Ordinance. The imprisonment for life is the maximum punishment as provided in the section 395, P.P.0 for which the trial Court was required to give reasons but no reason in this regard has been given, therefore, keeping in view the facts and the circumstances of the case the sentence is reduced to five years' R.I with fine of Rs,10,000 each which will meet the ends of justice. Similarly, the sentence of five years' R.I. Under section 13(d), of the Arms Ordinance and fine of Rs,20,000 to them is also harsh and therefore the same is reduced to R.I. For two years and fine of Rs,5000 each. In default of payment of fine S.I for three months. Both the sentences will run concurrently with the benefit of section 382-B, Cr. P. C.
14. With the above modification in the impugned judgment and the sentence, the appeal of the two appellants Abdul Ghani alias Mooso and Habibullah alias Jani stands disposed of accordingly whereas the appeal of appellant Fazul is allowed. He is acquitted giving benefits of doubt. He may be released forthwith if not required in any other case.