1. ' AFTAB AHMED GORAR, this single Judgment we propose to dispose of above-noted two Criminal Appeals as in both the appeals appellants are one and the same, so also the facts as well as the law involved.
2. ' Through the instant Criminal Appeals filed under section 25 of Anti-Terrorism Act, the appellants Mumtaz Ali and Ilyas have impugned the Judgment dated 20-12-2003 passed by Judge of Anti- Terrorist Court, Hyderabad and Mirpurkhas Division at Hyderabad in Special Cases Nos.58 of 2002 and 59 of 2002 whereby he convicted the appellants and sentenced each of them to suffer imprisonment for life and forfeiture of movable and immovable properties owned by them; for the offence of kidnapping for ransom. Each of them was also convicted for the offence of causing death of P.C. Nabi Bux and sentenced to suffer imprisonment for life and to pay fine of Rs.1,25,000 and it was ordered that the fine, if realized, shall be given to the legal heirs of the deceased and in case of non-payment, each of them would suffer R.I. For one year more. They were also convicted for the offences punishable under sections 353 and 324, P.P.C. Read with section 149, P.P.C. And were sentenced to stiffer imprisonment for seven years with fine of Rs.50,000 and it was ordered that the fine, if realized. Shall be deposited into Government Treasury and in case of non-payment, each of them would suffer R.I. For one year more. All the sentences were ordered to run concurrently. However, they were extended benefit of section 382-B, Cr.P.C.
3. ' Precisely, the facts of Crime No.26 of 2002 lodged by complainant Reelomal son of Teckomal at Police Station Orderolal on 22-9-2002 are that on 11-9-2002 some armed persons trespassed in the otak of abductee Mahesh Kumar, Teckchand, Jethomal and they were abducted at night time. This incident was reported to the complainant Reelomal by P.W. Premchand who was cook of the abductees. According to the complainant, the armed culprits had committed the incident of abduction for the purpose of ransom.
4. ' The facts of Crime No.23/2002 registered at Police Station Omersand are that on 22-9-2002 complainant Manzoor Ahmed SIP/S.H.O. Of Police Station Omersand received wireless message from DSP Matiari that he along with police force should reach the land of accused Ghani Dars and Hussain Kalro in Deh Elchi Tal, Tando Allahyar, where encounter of the police with the dacoits was going on for the purpose of recovery of aforesaid abductees. On receiving the ,message, S.H.O.
5. Manzoor Ahmed reached there along with police force where he was informed that the aforesaid abductees were confined by the dacoits Badal Kario and others in the sugarcane cultivation of accused Ghani Dars and. Hussain Ali and accused Mumtaz and Ilyas being the Kamdars of Ghani Dars and Hussain All were also with the dacoits The complainant SIP Manzoor Ahmed along with police force conducted the search of the sugarcane cultivation under the commands of DSP Matiari and then firing started from the side of the dacoits. Such information was given by DSP Matiari to the superior police officers who also arrived at the place of occurrence and the encounter of the police with the dacoits continued. During the course of encounter abductees Jahtomal appeared from the place. However, two culprits Ilyas and Mumtaz were recovered and arrested from the spot. The encircling of the sugarcane cultivation continued upto 23rd September, 2002 and in the morning again the search of the cultivation was conducted during which it was found that other dacoits had run away while they had taken away with them abductee Teckchand.
6. It was also found that abductee Mahesh Kumar was lying in injured condition who was recovered by the police and the dead body of the deceased P.C. Nabi Bux was also found lying there. The dacoits had taken away the government SMG of deceased P.C. Nabi Bux along with bullet proof jacket etc. According to the complainant, he secured the utensils of the dacoits which were lying there under mashirsnama and then he returned to Police Station Ornersand where he lodged the F.I.R. Thereafter challan was submitted before the trial Court against the arrested/absconded accused persons.
7. ' At the trial prosecution examined P.W. SIP Miskeen, Process Server as Exh.4, P.W.1 P.C. Muhammad Uris, P.W.2 Ali. Muhammad, P.W.3 A.S.-I. Allah Warayo, A.S.-I. Muhammad Ibrahim Exh.21, P.W.5 Aurangzeb, P.W.6 A.S.-I. Abdul Aziz, P.W.7 A.S.-I. Muhammad Aslam, P.W.8 S.H.O. Mukhtiar Ahmed, P.
8. W .9 Reelomal, P. W .10 Jehtomal , P.W.11 Mahesh Kumar, P.W.12 Teckchand, P.W.13 Inspector Nazeer Hussain, P.W.14 SIP Manzoor Ahmed, P.W.15 SIP Wahid Bux, P.W.16 Dr. Abdul Samad, P.W.17 Tapedar Muhammad Fazil and P.W.18 S.H.O. Plaro Manzoor Ahmed. Thereafter prosecution side was closed vide statement Exh.36.
9. ' Learned counsel for the appellants contended that the trial Court misread the evidence; that although the witnesses have not supported the prosecution case, the appellants have been convicted. He states that though allegedly at the time of incident accused persons were not muffled but no identification parade has been held. He also stated that the abductees were not recovered from the custody of the present appellants, rather they themselves came from inside the sugarcane cultivation. He further contended that the accused Abdul Ghani Dars and Hussain Ali, who are the owners of the land from where the abductees were recovered, have been acquitted whereas on the same set of evidence appellants have been convicted which is unjust and unlawful and opposed to the rule of consistency. He further submitted that the prosecution has failed to prove its case beyond reasonable doubt, as such benefit of doubt must be given to the accused persons; that no recovery has been attributed to the present appellants. According to him, merely presence of the appellants in the sugarcane cultivation without any recovery is not sufficient for conviction. He further contended that without any specific order, joint trial of two separate cases has been held which is illegal; which is in violation of section 103, Cr.P.C. As without any justification the trial Court has held that there was no private witness of the locality to act as mashir. He prayed for acquittal of the appellants.
10. ' On the other hand, learned D.P.G. Supported the impugned judgment contending that the same is well-reasoned and has been passed after taking into consideration all the material facts as well as the law involved. According to him, witnesses have supported the prosecution case; that the accused have been arrested from the spot after encounter between the police and the dacoits. He further contended that the case of the acquitted accessed and that of the present appellants is quite distinguishable, hence the appellants cannot claim the benefit of the rule of consistency.
11. ' We have heard the learned counsel for the parties and gone through the material available on the record with the assistance of the learned counsel for the parties.
12. ' In the present case two F.I.Rs were registered one under section 365-A, P.P.C. For the offence of abduction and the other under section 302, P.P.C. For the murder of P.C. Nabi Bux of Police Station Umersand. During the encounter both the abductees were recovered by the police, however, no mashirnama of recovery was prepared at the place of incident and or even at Police Station. When both the appellants were recovered/arrested, they were empty-handed, no recovery of any weapon was effected from them. Even no mashimama of arrest was prepared at the place of occurrence. It is strange to note that during the encounter between the police and the dacoits, no one received injuries during the perio.d 22nd to 24th September, 2002. No identification parade has been held in spite of the fact that the faces of the accused persons were not muffled. During the trial both the abductees did not identify the accused persons, though they were the star witnesses in the case. It is also noted that when the appellants were arrested they disclosed that they were the kamdars of the owners of the land namely Abdul Ghani Dars and Hussain. Ali, hence how an adverse inference was drawn is beyond apprehension.
13. ' P.W. Manzoor Ahmed, S.H.O. Of Police Station Omersand in his deposition stated that DSP Matiari told him that dacoits along with abductees are confined at sugarcane cultivation. This witness further deposed:-- "He further disclosed that "Kamdars" of Ghani Dars and Hussain Ali, whose names are Mumtaz and Ilyas were also with dacoits."
14. ' He further deposed: "Two persons namely Ilayas and Mumtaz were recovered from the sugarcane cultivation by DSP, they were entrusted to me and I then entrusted them to S.-I. Abdul Aziz ' From the above deposition, it is crystal clear that both the appellants were not arrested as dacoits rather were "recovered" from them as deposed by the said S.H.O. Manzoor Ahmed.
15. ' In the cross-examination the said witness stated:-- "I know Hameer Bhangwar S.H.O. His relatives are living within territory of Police Station Omersand. I do not remember whether there arose dispute between Bhangwar brotheri. I am shown Entry No.22 dated 13-9-2002 of Police Station Omersand and in the entry it is mentioned that there arose the dispute in which Mumtaz and his brother were made as accused."
16. ' P.W. Wahid Bux, S.H.O. Police Station Sekhat, in his deposition stated: "I prepared the Mashimama of custody of Mahesh Kumar, who was injured and he has sustained injury on his leg."
17. ' However, Mahesh Kumar deposed that he sustained firearm injury in his right "arm". This glaring contradiction has also created serious doubt in the prosecution case.
18. ' The persons who were allegedly abducted by the dacoits are the star witnesses of the occurrence as they remained very close to the accused persons and none-else other than the abductees could be said to be in a better position to identify the real culprits. However, none of the abductees in their deposition has deposed against the present appellants. Neither the complainant nor the abductees, who are said to have been recovered from the place of encounter, stated that appellants Mumtaz and Ilyas were arrested from there. Even none amongst the official witnesses has deposed that at the time of 'recovery' of the present appellants, they were armed with weapons or any weapon has been recovered from them. As per 161, Cr.P.C. Statement of abductee Jethomal, they were chained by the accused, but according to the statement of P.W. Nazir Hussain Shah, when the abductees were recovered they were not chained.
19. ' P.W. Jethomal who is also one of the abductee, in his deposition stated as under:-- "We had not identified the culprits. The accused persons present in this court are not same culprits".
20. ' Likewise, P.W. Mahesh who is also one of the abductee made a categorical statement that:-- "In my presence nobody was arrested by police. I could not identify the culprits as their faces were closed. The accused persons present in the court are not the same persons"
21. ' P.W. Teckchand, who is also one of the abductee too corroborated the said version by deposing that:- "I could not identify the culprits.
22. ' The accused persons present in court are not the same persons"
23. ' In view of above, it cannot be said that the prosecution has been successful in proving its case beyond reasonable doubt. Needless to say that the accused are entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubt in the prosecution case. Even an accused cannot be deprived of benefit of doubt if there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State (1995 SCM R 1345) the Honourable Supreme Court of Pakistan has observed as under:-- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
24. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
25. ' There is also another aspect of the case i.e. Accused Abdul Ghani Dars and Hussain Ali who are admittedly the owners of the sugarcane cultivation from where the abductees were allegedly recovered, have been acquitted whereas on the same set of evidence appellants have been convicted. Rule of consistency demands that if an accused has been exonerated from the charge on the basis of certain evidence and has been extended benefit of material discrepancies / contradictions in the evidence, other accused charged with similar allegations is also entitled to the same concession.
26. ' In the case of Umar Farooque v. The State reported as 2006 SCM R 1605 the Honourable Supreme Court has held as under:-- "On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umer Farooque could be convicted."
27. ' The upshot of above discussion is that the prosecution has not been able to prove ifs case beyond reasonable doubt against the present appellants. Accordingly, the conviction and sentence awarded to the appellants is unwarranted. Consequently, the appeals are allowed and the impugned judgment is set aside. The appellants are acquitted, they be released forthwith if not required in any other case.
28. ' Above are the reasons of our short order announced on 23-1-2013.