' SADIQ HUSSAIN BHATTI, J.---The above named appellants/accused persons, along with five co- accused were tried by learned Anti-Terrorism Court, Mirpurkhas Division, in Special Case No,7 of 2012, for offence under sections 365-A, ... 344, 386, 146, 148, 149, P.P.C. Read with sections 6/7 Anti- Terrorism Act, 1997, whereby the Appellants/Accused Muhammad Abid son of Noor Muhammad Qaimkhani and Ameer Azam Shah son of Syed Sammar Shah were convicted and sentenced to suffer imprisonment for life and their respective properties were ordered to be confiscated under section 7(e) ATA 1997, in favour of Government. No benefit under section 382-B, Cr.P.C. Was awarded to both the appellants/accused, as they did not remain in Jail for a single day, in this case, whereas, remaining five co-accused were given benefit of doubt and thus acquitted from the charges and acquitted under section 265-H(i), Cr.P.C.
2. Complainant Shahid Malik son of Babu Khan, lodged an F.I.R. At Police Station Satellite Town, Mirpurkhas on 13-7-2012 which was registered at Police Station as F.I.R. No,76 of 2012, in which Complainant in all nominated ten accused to have actively participated in the alleged crime.
3. Brief facts of the prosecution case are as under.-- "The case has been registered on the orders of the learned Sessions Judge, Mirpurkhas's Order No, Cr1/3074/2012 dated 7-7-2012, wherein complainant Muhammad Shahid narrated the facts that they are eight brothers. Aftab Malik is his younger brother and has business of purchasing and selling motor vehicles. On 24-5-2012 in the night time he was present in his house where the friend of Aftab Malik, namely Malik Farooq, Malik Ashraf, Asif Qureshi, Waseem Khanzada informed him that they were sitting at Pathan Hotel at Jarwari Shakh Mirpurkhas at about 2100 hours and busy in co,: versation. At about 2200 hours one white colour XII Car, one Police Mobile and Motorcycle arrived there. DSP Abid Qaimkhani, SIP. Muhammad Ameen Mari, SIP. Ameer Azam Shah, SIP.
Ghulam Mustafa Thebo, PC. Zulfiqar Kala, PC. Sabbir Zaman, PC. Saeed, PC. Rehmatullah, PC Vickey and PC. Imamuddin came out from the vehicles. PC. Zulfiqar and PC. Sabbir Zaman caught hold Aftab Malik from the colter of his shirt and tried to sit him down in the Car on which they tried to restrain them from taking away Aftab Malik whereupon Police Party on the poiaation of weapon extended them threats of killing and they sat down Aftab Malik in car and went away towards Hyderabad Road. Thereafter, they met with the said Police Officer for the release of Aftab Malik, but they refused. On the next day of incident, DSP Abid Qaimkhani sent PC. Zulfiqar and PC. Sabbir Zaman to his house and called him. On which he along with Malik Farooq went to Police Station Satellite Town, Mirpurkhas, where DSP Abid Qaimkhani met with them, admitted kidnapping of Aftab Ahmed and demanded amount of Rs,30,00,000 for the release of abductee Aftab Mailk within three days with the threats that if he would not arrange such amount he wouk.l be responsible of the dire consequences. They returned back and thereafter he moved applications to the high-ups of judiciary, Police, Administrative Departments so also conduct Press Conference but no fruitful result came out. On 31-5-2012 in the evening time PC. Zulfiqar Kala, PC. Sabbir Zaman and PC Saeed informed me and Farooq to accept the proposal of the DSP Abid Qaimkhani, otherwise they would be responsible of the consequences. PC Zulfiqar also asked me that he would talk with DSP Abid Qaimkhani for reduction of the ransom amount which was finally decided, he would pay the amount of Rs,10,00,000 to the DSP Abid Qaimkhani for the release of detainee Aftab Malik. On 7-6-2012 in the evening time, I contacted with PC. Zulfiqar Kala on phone who directed me to bring aniount Rs,10,00,000 at the Comprehensive High School Mirpurkhas, thereafter he alongwith Farooq, arranged the ransom amount and came at the pointed venue where DSP Abid Qaimkhani and SIP Ameer Azam Shah came in a Car and they set him down in their Car. DSP Abid Qaimkhani took the ransom amount from him and directed him to reach at Al- Falah Hotel Pump, Qasimabad, Hyderabad and the abductee Aftab would be released there. They went to the pointed place and reached there at about 2230 hours. After half an hour one white colour car came and the person driving the car pushed out the abductee Aftab from that car and went away from there. They brought the abductee Aftab at Mirpurkhas and tried to lodge F.I.R.
Against the culprits but his F.I.R. Was not registered by the police. He went to the Sessions Court Mirpurkhas and on the orders of the learned Sessions Judge Mirpurkhas he appeared at Police Station. Police recorded his statement and then registered his F. I. R."
4. During the course of investigation, appellants/accused and five co-accused were granted pre- arrest bail and had joined the investigation. The Investigating Officer after usual investigation submitted the charge sheet against the accused in "B" Class as there was no sufficient investigation against them. However, the learned trial Court did not agree with the findings of Police, and turned down the same vide Court order dated 30-7-2012 and directed the Investigating Officer to submit charge sheet against all the accused persons. In pursuance of the above order of the Court, submitted the charge-sheet against all the accused persons.
5. Before the commencement of trial, the relevant documents were supplied to the accused persons on execution of the receipts as Exh.3 and Exh.4.
6. Learned trial Court framed the charge Exh.15 against the accused persons namely (1) DSP.
Muhammad Abid, (2) Inspector Ameer Azam Shah, (3) Inspector Ghulam Mustafa, (4) SIP.
Muhammad Ameen, (5) PC. Imamuddin, (6) PC. Muharrimad Saeed, (7) Muhammad Shakir alias Vickey, whereas co-accused PC. Zulfiqar Ali, PC. Sabiruzzaman and HC. Rehmatullah are declared absconders and proclamation issued under section 87/88 were issued and their salaries were stopped such letter were issued to District Accounts Officer and concerned SSP. The learned trial Court framed charge for offence under sections 365-A, 344, 386, P.P.C. And sections 6/7 of the ATA, 1997 read with section 148, P.P.C.
7. The accused persons pleaded not guilty and claimed to be tried vide pleas Exhs. 16 to 22.
8. The prosecution in order to substantiate the charges against the accused persons, examined following P.Ws:-- ' P.W.
1. Muhammad Aftab. At Exh.24 Abductee.
' P.W.2. Muhammad Ashraf, at Exh.25 Eye-witness.
' P.W.3. Muhammad Asif, at Exh.26 Eye-witness.
' P. W .4 . Waseem Ummer, at Exh.27 Eye-witness.
' P.W.5. Muhammad Farooq, at Exh.28 Eyewitness.
' P.W.6. Nadeem Ahmed, at Exh.29 Mashir.
' P.W.7 Muhammad Abid at Exh.33.
' P.W.8 Muhammad Shahid, at Exh. Complainant/Eye-witness ' P.W.9 Muhammad Younis, at Exh. Incharge Officer.
9. Prosecution after examining the abovenamed P.Ws. Closed its side vide Exh.44. The statements of the appellants/ accused persons were recorded under section 342, Cr.P.C. But neither they examined themselves on Oath nor examined any defence witness.
10. All the accused persons have declined the prosecution allegations levelled against them and pleaded their innocence, and further stated that none of the P.Ws. Have deposed against them, as they are innocent.
11. We have given due consideration to the submissions made at bar and have carefully considered the arguments of learned State Counsel and complainant's Counsel as well. Perused the evidence recorded by learned trial Court.
12. The Star witness in this case is the abductee Aftab Ahmed Malik, who was examined as Exh.24 has deposed that on the day of incident he along with his friends Malak Farooque, Malik Ashraf, Asif Qureshi were sitting at Pathan's Hotel situated near Jarwari Channel Mirpurkhas. All of a sudden a white coloured vehicle came and stopped at Pathan Hotel 3 or 4 persons stepped down came at Hotel and blind-folded him and took him away. On his query as to who were they, they threatened him to keep silence. After 3/4 hours journey they brought him at some unknown place, without electricity where they confined him for about 13 to 15 days, thereafter they took him and dropped him at Highway Road and set him at liberty. He informed his friend Abdul Salam at Hyderabad who brought him at Mirpurkhas in a Van. At Mirpurkhas his mother was sick hence he brought him at Karachi for medical treatment and thereafter he returned back to Mirpurkhas after about one and half month. During this period of time no Police Officer contacted him nor recorded his statement.
All seven accused persons namely (1) DSP. Muhammad Abid, (2) Inspector Ameer Azam Shah, (3)
Inspector Ghulam Mustafa Thebo, (4) SIP. Muhammad Ameen, (5) PC. Imamuddin Qureshi, (6) PC.
Muhammad Saeed Shaikh, (7) Muhammad Shakir alias Vickey were shown to him in the Court and declined to recognize the accused persons and categorically stated that they were not the same persons, who abducted him.
13. At this stage of his testimony, the State Counsel declared him hostile and sought permission from the learned trial Court to cross-examine him. The permission was accordingly accorded by learned trial Court. In the cross-examination to the State Counsel, this witness/Abductee/Victim deposed that his statement was not recorded by DSP Younis Balouch nor made any enquiry about the alleged incident. Strangely the Court has allowed Prosecutor to confront his own witness with 161, Cr.P.C, which is not signed by witness and hence cannot be produced in the Court as sufficiently mentioned under section 162, Cr.P.C, statement to Police not to be signed:-- "162. Statements to police not to be signed: Use of statements in evidence. (1) No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police-diary or otherwise or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made."
' The learned trial Court must take into account that such statement, which is not before the Court, as such the learned trial Court will not be in advantageous position to appreciate the material brought through cross-examination by Prosecutor. It can only be possible if any signed material by P.W. Like 164, Cr.P.C. Statement or any mashirnama is produced in the Court to enable the Court to see how the truth is elicited by way of cross-examination. It is noteworthy whether Prosecutor produce 161, Cr.P.C. Statement of the P.W. Before the Court to seek permission for cross- examination. A document, which is not before the Court, how Court forms opinion to allow to confront such witnesi, is shrouded in mystery.
16. The good example is that according to Qanun-e-Shahadat Order, 1984, the Prosecutor can declare his own witness, but to cross-examine such witness he has to seek permission from Court, the wisdom behind such embargo is discussed above.
15. Hence, the cross-examination by Prosecutor on the basis of 161, Cr.P.C. C statement cannot be legally acted upon and can safely be ignored.
16. The learned trial Court once again has not taken into account the provisions of Qanun-e- Shahadat Order, 1984, When it has recorded the concluding para at Page No,3 of deposition of P.W.1 Aftab Ahmed, "It is incorrect to suggest that I have patched up with the accused persons, therefore, I resile from the contents of my 161, Cr.P.C., statement and am deposing in favour of they accused persons."
17. The learned trial Court seems to be oblivious of the well-established law in this regard that "Prosecution cannot confront its own witnesses or defence witnesses with their statement recorded under section 161, Cr.P.C."
18. Statement under section 161, Cr.P.C. Cannot be used in favour of prosecution and only the accused can claim to use the previous statement of prosecution witness for the purpose specified under section 162, Cr.P.C, while the prosecution cannot use it for any purpose when a witness has been declared hostile PLD 57 Lahore page 519, (Ghulam Haider's case).
19. Non-substantive evidence. Statement of witnesses recorded under section 161, Cr.P.C. Cannot be treated as substantive evidence. Such statements can only be used under section 145 of the Evidence Act, PLD 1965 SC. Page 188 (Nazir Hussain's case).
20. In cross-examination to the learned D.A. This P.W. Once again reiterated that present seven accused persons are not the real culprits, who had abducted him.
21. The Prosecution, in support of the above evidence, has recorded the Statements, of P.W.2 to P.W.5 as eye witnesses of the alleged incident but to the dismay of prosecution abductee/victim and the abovenamed witnesses have not supported the Prosecution case and categorically denied that the present accused persons, who were shown to him present in the Court have any hand in this abduction case as they were not present on the day of incident at place of incident.
Hence, all the above witnesses were disowned by the Prosecution and declared hostile. The learned trial Court allowed the Prosecutor to confront his own witnesses on the basis of 161 Cr.P.C.
Statements, which is illegal and not permitted according to Qanun-e-Shahadat Order, 1984. All the above witnesses have also very candidly deposed their 161 Cr.P.C. Statements were not recorded by Police at any time.
22. P.W.6, Nadeem Ahmed examined at Exh.29 is mashir. According to this mashir, he had not gone to different places as mentioned in the Memos but same were Exh.30, Exh.31 and Exh.32 signed by me at Police Station Sindhri.
23. P.W.7, Muhammad Abid examined at Exh.33. He has denied that the First Informant Muhammad Shahid on 7-6-2012 at 6-00 or 7-00 p.m. In his presence gave some money to Accused DSP.
Muhammad Abid, and Inspector Ameer Azam Shah for the release of his brother Muhammad Aftab. He also denied that accused persons DSP. Muhammad Abid, and Inspector Ameer Azam Shah are not known to him. He also deposed that Police did not record his 161 Cr.P.C. Statement.
This P.W. Was also declared hostile by Prosecution.
24. P.W.8, Muhammad Shahid examined at Ex.8. He has deposed, that above incident took place about 8/10 months back at 11-30 p.m. At that time he was present in his house at that time P.Ws.
Ashraf, Asif and Farooq came to his house and informed him that they along with his brother Aftab were sitting at the Hotel, Jarwari Channel Mirpurkhas at about 10-00 p.m. 3/4 persons came in a Car and took away his brother Aftab with them on Car and pointed their weapons at the witness not to resist. The complainant Shahid further disclosed that after 3/4 days of this incident he received a Mobile Phone Call at about 2-30 p.m. The Caller demanded ransom of Rupees Ten Lacs for the release of his brother. After 13/14 days he arranged the amount and informed the culprits.
On the following day he along with P.W. Abid went to complainant's School where a black car came in which two persons with open faces were sitting I accordingly paid them the ransom amount and they told him to come at Qasimabad on the next day where his brother Aftab shall be released by them. On the next day at about 11-30 p.m. Abductee Aftab his brother returned back and reached Mirpurkhas. On his enquiry, Aftab informed that accused/abductors were not the residents of Mirpurkhas neither they disclosed their names. Complainant Shahid further deposed that later on he heard that DSP Muhammad Abid, Inspector Ameer Azam Shah and others had abducted his brother. On hearing this fact, he went and lodged above F.I.R. At Police Station Satellite Town, Mirpurkhas against these two Police Officers after submitting an application to honourable Sessions Judge, under section 22-A & B, Cr.P.C. This P. W/complainant Shahid did not identify any accused. He also did not identify accused DSP Muhammad Abid and Inspector Ameer Azam Shah to whom he had paid the ransom money. He firmly stated that they are not the same persons to who he had paid the money.
25. Learned counsel for the accused persons confronted that all the P.Ws., who are examined they did not support the Prosecution case. This is a case of no evidence and requested that under these circumstances the Appeal be allowed and the appellants/accused persons be acquitted.
26. Learned Deputy Prosecutor General, Sindh has supported the prosecution case.
27. Having considered the above contentions of the learned counsel for the respective parties, we are of the opinion that since the direct evidence have miserably failed, hence conviction cannot be based on hearsay evidence.
28. Abductee, who remained with the abductors for about 13/14 days did not support so also the complainant, who paid the ransom money to the appellants/accused persons, did not support the prosecution case. Then what else remains to convict the accused persons on merely surmises. The learned trial Court always should act on the evidence which is placed before it and should not be influenced by other material which apparently not tangible to the facts and circumstances of the case in hand. For example, the alleged incident occurred on 24-5-2012, but the same was reported on 13-7-2012 without any plausible explanation.
29. We fully agree with the contentions of the learned counsel for the appellants/ accused persons, that this is a case of no evidence.
30. The upshot of the above discussion is that there is no evidence, whatsoever to connect the appellants/accused persons with the alleged crime, we therefore, accept this Appeal, set aside the conviction and sentences and acquit the appellants/accused persons, if they are not required in any other case.
31. This Spl. A.T. Appeal was allowed by a short order dated 30-5-2013, these are the reasons for the same.