' AHMED ALI M. SHAIKH, J.---This Jail Appeal is directed against the judgment dated 14-1-2003, passed by Judge Anti-Terrorism Court-I, Sukkur and Larkana Divisions at Sukkur, whereby the appellant was convicted under section 365-A, 109, P.P.C. Read with section 7(e) of Anti-Terrorism Act, 1997 and sentenced to suffer RI for life with fine of Rs,.50.000 and in case of failure to pay fine to suffer rigorous imprisonment for one year more. However, benefit of section 382-B, Cr.P.C. Has been extended to him.
2. The facts of the prosecution case are that on 21-10-2001 complainant Muhammad Aslam Lashari lodged report with Police Station Ratodero, which was registered vide Crime No,233 of 2011 under section 6/A of Anti-Terrorism Act, 365-A, P.P.C., and 17(3), Offences Against Property (Enforcement of Hadood) Ordinance, 1979. In the F.I.R. Complainant sated that Rajib Ali is his cousin while Sardar Khan' is his nephew. The complainant and Sardar Ali have a shop at Ratodero Town. On the day of incident i,e, 20-10-2001 at sunset time. The complainant after closing his shop proceeded to his village along with Sardar Khan and Rajib Ali. At about 8-30 p.m. When they reached at Ghanghra Shakh. Five persons encircled them. Out of them, one was armed with Kalashnikov, two with guns and rest had TT Pistols. The accused persons robbed one torch and Rs,.200 from complainant and Rs,.150 from Rajib Ali. After maltreating, complainant party was taken towards Seelra plot where accused enquired about their names. The accused armed with Kalashnikov separated Sardar Ali and took him towards western side, accused armed with TT Pistols and guns kidnapped complainant and Rajib Ali and took them towards northern side. After passing some distance, accused directed Rajib Ali to convey message to nekmard Raza Muhammad Lashari for payment of Rs,.10,00,000 as ransom amount for the release of Sardar Ali, thereafter Rajib Ali and complainant were released. Complainant and Rajib Ali came to their village and narrated the incident to Raza Muhammad Lshari, who accompanied the complainant towards Police Station Ratodero from where SHO Ratodero along with his subordinate staff proceeded towards the place of waraat. The SHO, with the help of TC Nabi Bux of Police Station Ratodero, tracked the foot-prints of accused, where Inspector Ghulam Hussain Mastoi of CIA along with, his subordinates met them. The foot- prints disappeared at the house of Hamzo Lashari near village Old Tharo. The police party encircled the whole village and while searching the house of Hussain Bux Lashari, found abductee Sardar Ali tied in a room with a cot. The SHO released abductee Sardar Ali. The SHO also found two women sitting in the courtyard who disclosed their names as Mst. Shahzadi wife of Hussain Bux Lashari and Mst. Amina daughter of Hussain Bux Lashari. The ladies informed the police that the dacoits had brought the abductee there. The ladies further told the police that on seeing the police, the accused had run away towards western side. Thereafter with the help of police, abductee was brought at Police Station, Ratodero where case was registered to the above effect.
3. After usual investigation challan was submitted in the trial Court on 10-11-2001 .Against co- accused Sahib alias Shaheen. Hamzo, Ghulam Shabir, Mst. Shahzadi and Mst. Gulshan alias Amina.
Appellant Misri was arrested on 8-2-2002 and was sent up to stand trial by subsequent report dated 9-2-2002. Formal charge was framed against him along with co-accused vide Exh.11, to which he pleaded not guilty and claimed to be tried. Consequently, pleas of the appellant along with co-accused was recorded vide Exh.11-A to 11-F.
4. The prosecution, in order to prove its case, examined in all ten witnesses and thereafter side of the prosecution was closed by the learned SPP vide Exh.127 dated 15-11-2002.
5. Statements under section 342, Cr.P.C. Of the appellant as well as of co-accused were recorded vide Exhs.28 to 33, to which appellant as well as co-accused professed their innocence and denied the allegations levelled against them but neither they examined themselves on oath nor led any evidence in their defence.
6. From the material placed in the evidence, the learned trial Court after framing the points for determination, acquitted the co-accused Sahib alias Shaheen, Hamzo, Ghulam Shabir, Mst.
Shahzadi and Mst. Gulshan alias Amina and convicted appellant Misri, as stated above.
7. Heard Mr. Abdul Rehman Bhutto, learned counsel for the appellant and Mr. Altaf Hussain Surahio, on behalf of the State.
8. Learned counsel for the appellant contended that the F.I.R. Is belated and in this regard prosecution has not furnished any explanation. Name of the appellant does not transpire in the F.I.R. Nor is his description or Hulia mentioned, though the complainant and appellant party belong to same community and are on visiting terms since their forefathers. He further contended that no identification parade was conducted to identify the appellant. Neither any weapon nor any incriminating article connecting the appellant with the commission of crime was recovered.
Prosecution evidence is full of contradictions, inconsistent and unreliable, thus the case is not free from doubt. Co-accused Sahab Khan, Hamzo, Mst. Shahzadi and Mst. Gulshan alias Amina have been acquitted and the prosecution did not prefer any appeal against their acquittal.
9. Conversely, Mr. Altaf Hussain Surahio, learned State counsel supported the impugned judgment by submitting that the prosecution has proved its case beyond shadow of doubt, therefore, impugned judgment does not warrant any interference.
10. We have considered the arguments advanced by learned counsel for the parties and gone through the material available' on record with their able assistance.
11. Upon perusal of deposition of P.W.1 Muhammad Aslam, it appears that he narrated the same facts as earlier given in the F.I.R. However, he made certain improvements with regard to the identity of the culprits. Admittedly, F.I.R. Was registered after recovery of abductee Sardar Khan but none of the culprits was nominated in the F.I.R. However, in his examination-in-chief complainant deposed that he identified three accused at the place where-from he, P.W. Rajib Ali and Sardar Khan were abducted. He disclosed the names of the culprits as Misri, Hamzo Lashari and Mukhtiar.
In cross-examination, he admitted that complainant party and accused are Lashari by caste. He further admitted that the complainant and accused party are also relative and having visiting terms on each occasion. He further admitted that complainant party and accused knew each other since their forefathers. P.W.2. Rajib Ali, also corroborated the facts of the F.I.R. However, he further stated that when the abductee was recovered from the house of accused, two ladies were sitting outside the room and on enquiry they disclosed that accused Hamzo, Ameero, Sahab and Misri lad left the abductee in the house and tied him with the cot. However, in his cross- examination, he admitted that complainant party and accused are Lashari by caste and have relationship with each other. However, while replying to a suggestion, he denied that there was a dispute between complainant and accused over matrimonial affairs. P.W.3 Raza Muhammad Lashari. Though he is not eye-witness of the occurrence, but the gist of his deposition is that on 20- 10-2001 at about 0-30 p.m. P.W. Muhammad Aslam Lashari and Rajib Ali came to him and narrated the facts of the incident with regard to the kidnapping of Sardar Khan. Following which, he along with P.Ws. Went to Police Station, Ratodero and met SHO Nizamuddin Seehar and apprised him about the incident. The SHO did not register the case at that moment, however, he formed a police party and left the police station to the place of occurrence. He, as well as P.W Aslam and Rajib Ali were also with the police party, they reached at the place of occurrence and followed the foot- prints of the accused which led them to village Old Tharo. Police encircled the village. Male members of the village ran away, however, police searched the houses of Lashari Community and ultimately recovered abductee Sardar Khan from the house of Hussain Bux Lashari where abductee was tied with the rope. Two ladies were present there who disclosed their names as Mst. Amina and Mst. Shahzadi. The abductee disclosed that he was kidnapped by five dacoits and out of them he identified Ameer Bux alias Ameero, Misri and Mukhtiar, who brought him at village Old Tharo and was handed over to Hussain Bux and Hamzo Lashari and he further disclosed that at the place of occurrence i,e, Ghanghra Wah, accused Ghulam Shabir alias Teeli was also with the culprits. In cross-examination, he admitted that prior to this incident, he was Sub-Inspector of Police. He further admitted that he and complainant party reside in same village and accused and complainant party belong to Lashari community. While replying to a suggestion he admitted that his statement is based on the information given to him by complainant Muhammad Aslam, P.Ws.
Rajib Ali and Sardar Khan. He further admitted that he did not ask the SHO to register the case. He also admitted that when search of the house was made he, along with complainant and Rajib Ali entered in the room with SHO Nizamuddin Sehar where abductee was kept hostage. P.W.4 Sardar Ahmed is a victim as well as star witness of the prosecution. In his deposition, he also narrated the same facts like complainant. However, in his deposition he stated that he identified, three dacoits namely, Ameero alias Ameer Bux, Mukhtiar and Misri and after his abduction. He was handed over to Sahab Khan, Hamzo and two ladies and later on he was recovered by SHO Nizamuddin Seehar in presence of P.Ws. Raza Muhammad, Muhammad Aslam and Rajib Ali and after his release he along with complainant, P.Ws. Rajib Ali, and nekmard Raza Muhammad Lashari went to Police Station Ratodero where Muhammad Aslam lodged the report. His deposition further reveals that place of wardat was shown to the police by him, complainant and P.W. Rajib Ali. In cross-examination, he admitted, that accused and complainant party belong to Lashari community. He further admitted that after his release from the room, he went to Police Station, Ratodero with the complainant, P.W.
Rajib Ali and Raza Muhammad where F.I.R. Was lodged. The F.I.R. Was, reduced in writing in his presence on the report of his paternal uncle Muhammad Aslam. In cross-examination while replying to a suggestion he admitted that at the time of incident it was dark night. However, he denied the suggestion that he was not kidnapped and was giving, false statement at the instance of Raza Muhammad Lashari and SHO Nizamuddin Seehar. P.W.5 Muhammad Azeem, is a mashir of recovery of abductee Sardar Khan. His deposition reveals that he along with Inspector Nizamuddin Seehar of Police Station, Ratodero followed foot prints of the culprits which led to the house of Hussain Bux Lashari situated in village Old Tharo where abductee Sardar Khan Lashari was found in the room of that house and tied with the cot with a rope. In his presence, Inspector Nizamuddin Seehar recovered abductee from a room and prepared such mashimam in his presence. However, in cross-examination while replying to a suggestion, he stated that he did not remember the date of recovery of abductee. He further admitted that P.W. Aslam is his relative. In a reply to another suggestion, he stated that at the time of recovery, the abductee was tied with a rope. The length of rope was 10 to 15 meters. The evidence of P.W.6 SIP Khan Muhammad is formal. His depOsition reveals that on 21-10-2001 he was Incharge SHO of Police Station Ratodero and on same date at about 9-30 a.m. Complainant Muhammad Aslam Lashari along with P.W. Raza Muhammad Lashari, Rajib Ali Lashari and Sardar Khan Lashari came at Police Station and lodged F.I.R. In respect of abduction and he registered the same vide F.I.R. No,233 of 2001, contents of F.I.R. Wereread over to complainant and later on he obtained his signature. This witness was not put to cross- examination. P.W.7 Mukhtiar Ali is a mashir of place of wardat as well as arrest of accused. His deposition reveals that on 21-10-2001 police prepared mashirnama of wardat in his presence which was read over to him and he put his left thumb-impression and on 25-10-2001 he acted as mashir of arrest of accused Hamzo, Misri and Ghulam Shabir and two ladies from the Otaq of complainant, situated in village Pir Bahar Shah. Accused were arrested in his presence and such mashirnama was prepared and read over to him. In cross-examination, he admitted that complainant and accused party are Lashari and complainant is his relative. While replying to a suggestion, he admitted that accused were arrested from the Otaq of complainant where they stayed for half an hour. However, he denied that the mashirnamas were prepared at 'Police Station. P.W.8 Inspector Nizamuddin Seehar in his deposition stated that on 20-10-2001 he was posted as SHO Police Station, Ratodero. On same day, he left .Police Station for patrolling. During patrolling when he reached at Banguldero Town, he received WT message that Aslam, Sardar Ali and Rajib Ali have been kidnapped from Ghanghra Shakh. Following which, he informed to his high-ups, later on he came at Police Station, Ratodero where he found Muhammad Aslam Lashari, Rajib Ali and their nekmard Raza Muhammad Lashari and on enquiry, they disclosed that they along with Sardar Khan were kidnapped by five dacoits and later on they were set free and they were directed to convey their message to their nekmard Raza Muhammad to arrange Rs,.10,00,000 for the release of Sardar Khan Lashari. After getting such information from Aslam and Rajib Ali he along with his subordinates and above named P.Ws. Left. Police Station for Ghanghra Shakh. He inspected the place of wardat and later on foot trackers Kandhal, Nabi Bux, Meer Baig, Haji Jatt and his staff along with private persons followed the foot-prints of the dacoits which led them to village Old Tharo. It was 6/6-15 p.m. When they reached at village Old Tharo. However, the villagers after seeing the police party ran away. He along with subordinates encircles the village and in presence of mashirs Liaquat Ali and Ghulam Shabir conducted search of the houses. However, when they entered in the third house belonging to Hussain Bux Lashari he found abductee, whose hands were tied with a rope in cot. He untied his hands. On enquiry, he disclosed his name Sardar Ali (abductee). Later on such mashirnama was prepared in presence of mashirs. On enquiry, Sardar Khan (abductee) disclosed that he along with P.Ws. Aslam and Rajib Ali was abducted from Ghanghra Shakh by five dacoits, who were armed with deadly weapons and later on Aslam and Rajib Ali were set free.
However, he was brought at village Old Tharo and was handed over to Hussain Bux Lashari, Sahab alias Shaheen and Hamzo Lashari where he was confined in a room and his hands were tied with a rope. Two ladies were also present in the house. They disclosed their names as Mst. Shahzad and Mst. Gulshan alias Aamina. Thereafter he directed Muhammad Aslam to lodge the report at Police Station, Ratodero and he along with CIA Inspector proceeded for the search of the dacoits.
However, none of them was arrested and he came back at the place of wardat where he inspected the wardat at 1600 hours in presence of mashirs Mukhtiar Ali and Soobo Lashari. After visiting the place of wardat he recorded 161, Cr.P.C. Statements of Raza Muhammad and Rajib Ali Lashari on 22-10-2001. He recorded 161, Cr.P.C. Statements of inspector Ghulam Hussain Mastoi and foot tracker. On 25-10-2001 while he was present at Police Station, Ratoder, he received secret information about the presence of accused at the Otaq of complainant Aslam Lashari and Sardar Lashari. Following which, he along with his subordinate staff duly armed with weapons proceeded to village Pir Bahar Shah and from the Otaq of Aslam Lashari and Sardar Khan Lashari arrested accused Sahab alias Shaheen, Hamzo Lashari, Ghulam Shabir alias Teeli, Mst. Shahzadi and Mst.
Ulshan alias Amina in presence of mashirs Mukhtiar Ali and Soobo. Such mashirnama was prepared in presence of mashirs Mukhtiar Ali and Soobo. In cross-examination he admitted that no weapoh was recovered from the arrested accused. He further admitted that mashirnama of recovery of abductee Sardar Khan was prepared on 21-10-2001 at 6-30 a.m. In a reply to a suggestion he admitted that the search for the dacoits was taken firstly, so also the abductee was recovered before lodging of the F.I.R. He further admitted that mashimama in respect Of search of two houses was not prepared. P.W.9 PC Abdul Jabbar is the mashir. His deposition reveals that on 8-2-2002 accused/appellant Misri was arrested from Mirpur curve and such mashimama was prepared by ASI Deedar Ali in his presence. P.W.10 ASI Deedar Ali deposed that on 8-2-2002 he was posted at Police Station, Ratodero and on same day he along with his subordinates was on patrolling duty and during patrolling he received secret information about the presence of accused/appellant Misri. Following which, he reached at the pointed place and arrested him. Such mashirnama was prepared in presence of mashirs.
12. Perusal of prosecution evidence would reveal that the appellant and complainant party belong to same community, relatives inter se and they were on visiting terms since their forefathers. Such fact is admitted by complainant Muhammad Aslam, P.Ws. Rajib Ali and Sardar Khan. It is worthwhile to mention here that though the parties were known to each other prior to this incident and the F.I.R. Was registered after recovery of abductee Sardar Khan and in presence of Sardar Khan (abductee) but none amongst the accused was nominated in the F.I.R. Besides, neither appellant was put to identification parade for his identification nor his features or marks of identification were given in the F.I.R. Admittedly, F.I.R. In the instant case was registered after recovery of the abductee which is belated by 26 hours but in cases of kidnapping for ransom, delay in lodging the F.I.R. Is not fatal to prosecution case, though in some cases it militates against benefit of prosecution. However, in case like in hand, complainant and police party usually try their best to locate the victim 'rather than lodge F.I.R. Due to fear of death of abductee, therefore, no adverse inference can be drawn against the prosecution on the ground of delay alone.
13. However, there is yet another aspect of the case i,e, the impact of non-holding of identification parade. Apparently, none including the appellant was nominated in the F.I.R. Nor the description or features of any culprit were given in the F.I.R. Though the case was registered after recovery of the abdcutee from the clutches of the culprits and the F.I.R. Was registered in presence of the abductee/victim but due to the reason best known to the P.Ws., none was nominated in the F.I.R.
Though the evidence of identification parade is not the sole criteria to prove the case against the unknown assailants and the prosecution can prove charge against them if the identity of the accused is sufficiently proved by other convincing evidence i,e, direct or circumstantial evidence but looking into the peculiar circumstances of the case in hand it appears that either the names of the culprits including the present appellant were introduced at trial or same were introduced at the instance of P.W. Raza Muhammad Lashari, nekmard of the complainant party. It is very strange and against the normal human conduct that when the accused are known to the complainant as well as to victim and F.I.R. Is registered after recovery of the abductee then why the P.Ws. Particularly the abductee, did not disclose his name to the police or complainant, who lodged F.I.R. In his presence.
Such circumstances create doubt in the prudent mind. It is admitted by the complainant Muhammad Aslam as well as P.W. Rajib Ali and Raza Muhammad that the abductee was recovered from the house of accused Hussain Bux Lashari in their presence. Such fact further gets corroboration from the evidence of I.O. But none of them stated that abductee disclosed the name of appellant Misri as one of the assailants.
14. We have assessed the evidence of all the material witnesses, which reflect that name of the appellant was disclosed at the time of C trial. It is admitted by P.W. Rajib Ali that at the time when abductee was recovered from the house, two ladies were there, who disclosed the names of culprits including the present appellant. However, upon a perusal of evidence it does not appear that he ever claimed that he identified the accused at the time of incident. Upon a careful examination of 'IO's evidence, it appears that after his recovery, Sardar Khan (abductee) disclosed that he was abducted by five unknown culprits but he did not disclose the name of any of the culprits. Besides above, the Investigating Officer could not collect any piece of evidence connecting the appellant with the commission of the crime. Neither any crime weapon nor any incriminating article was recovered from the appellant. Further more co-accused Sahib alias Shaheen, Hamzo, Ghulam Shabir alias Teeli, Mst. Shahzadi and Mst. Gulshan alias Amina have been acquitted by the trial Court but no acquittal appeal has been preferred either by the State/complainant or victim. It is well settled principle of law that the prosecution is duty bound to prove its case against the accused beyond reasonable doubt and this duty does not change or vary in the case in which no defence plea is taken by accused or defence plea is too weak.
Apparently, present appellant has been inducted on the statements of co-accused Mst. Shahzadi and Mst. Gulshan alias Amina and it is settled principle of law that accused cannot be convicted even on the confessional statement of co-accused. Reference can be made to the case of ARIF NAWAZ KHAN v. STATE PLD 1991 FSC 53. Apparently, prosecution witnesses while appearing in Court made improvements in their statements to strengthen prosecution case, such improvements had caused serious doubt on veracity of such witnesses, therefore, such witnesses do not seem to be worthy of reliance and creates doubt about their truthfulness. It is repeatedly held by the honourable Supreme Court that for extending benefit of doubt it is not necessary that there should be many circumstances creating doubt. A single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused makes him entitled to its benefit not as a matter of grace and concession but as a matter of right as held in the case of SHAHID ABBAS v. SHAHBAZ AND OTHERS, (2009 SCM R 237) and TARIQ PERVEZ v. STATE, (1995 SCM R 1345).
15. The upshot of above discussion is that after going through the entire evidence on record, we are of the considered view that the. Prosecution could not prove its case against the accused beyond shadow of doubt. Consequently, instant appeal is allowed and the conviction and sentence awarded to the appellant, under the impugned judgment, is set aside and the appellant is acquitted of the charge. Let the appellant shall be released forthwith if not required or detained in any other case.