' IRFAN SAADAT KHAN, J.-Both these appeals filed by the appellants Ali Hyder, Wali Muhammad alias Wali, Noor Muhammad, and Mitho alias Mithal are arising out of one and the same judgment as such heard and are disposed of by this common judgment.
2. The appellants have challenged judgment dated 19-12-2012 passed by Judge, Anti-Terrorism Court, Hyderabad at Hyderabad, whereby they were convicted under section 7(e) of ATA, 1997 and sentenced to undergo R.I. For Life Imprisonment each and their property moveable or immovable be forfeited. Appellants were however extended the benefit under section 382-B, Cr.P.C.
3. Briefly stated the facts of the case are that on 28-11-2008 complainant came to Police Station Qasimabad and reported that his son Ali Aslam, on 26-8-2008, after dropping his sisters at Saint Bonaventure School saw two unknown persons in police uniform who asked him for a lift at Al- Madina Petrol Pump near Wadhu Wah at about 9-00 a.m. In the morning and thereafter the said two persons with the help of their three .Companions kidnapped Ali Aslam, and ,through phone Qurban Jatoi, Mithal Khoso demanded Rs,500,000 (Rupees five lac) as ransom for his release and the complainant paid the ransom amount to them and got released his son. On 27-11-2008, the complainant came to know thit four culprits had been arrested in Another case Crime No,275/2008 under sections 399, 402, P.P.C. At Police Station Hatri. On such information, complainant along with his son went to the said Police Station Hatri, where Ali Aslam identified Wali Muhammad alias Wali, All Hyder Noohani, Nawab Noohani and Noor Muhammad alias Nooro who had kidnapped him for ransom. Complainant's son also disclosed that amongst those four Ali Hassan Nohani and Waseem Jarwar had guarded him and two Laloo Nohani and Fakeer Noohani provided him weal during his detention. Thereafter, F.I.R. Was lodged.
4. Initially investigation was assigned to ASI Inayat Ali Zardari, who arrested the said four accused at Police Station Hatri on 28-11-2008 and brought them at Police Station Qasimabad. Thereafter, further investigation was assigned to Inspector Ali Sher Khaskheli SIP Sakhipir who recovered Rs, 200,000 from accused persons and statement of Ali Aslam was recorded under section 164, Cr.P.C.
Before Judicial Magistrate and after completion of investigation, challan was submitted.
5. Charge was framed against the appellants, to which they pleaded not guilty and claimed for trial of the case. To prove its case the prosecution examined as many as seven Prosecution Witnesses and thereafter closed its side.
6. The appellants in their statements recorded under section 342, Cr.P.C. Denied the case of the prosecution and pleaded their innocence. However, the Appellants neither examined themselves on oath nor examined any witness in their defence.
7. The learned trial Judge after considering the evidences and hearing the parties convicted the appellants in the manner as stated above.
8. Mr. Nisar Ahmed Durani, Advocate for the appellant/accused Wali Muhammad has stated that the F.I.R. Has been lodged after a lapse of three months. He has further stated that no F.I.R. Was lodged against the appellants/accused and it is only on the instigation of police that the said F.I.R.
Was lodged, which creates, doubt. He has further stated that admittedly original statement of victim Ali Aslam recorded under section 164, Cr.P.C. Was not produced and the case was proceeded mere on the basis of a photostat copy of the same. He has also stated that no identification of the accused was made before the Magistrate and it is categorically been admitted by the complainant as well as the abductee that they could not identify appellant Wali Muhammad. He said that mala fide in the case is quite apparent from the fact that the said F.I.R.
Was registered only when the appellant/accused Wali Muhammad and other appellants/accused were arrested. He said that at the time of arrest of appellant/accused Wali Muhammad, he did not possess the ransom amount with him which also proves that he has got nothing to do With the sent crime. He also stated that it has been mentioned that appellant Wali Muhammad was present at his flat at the time of incident which had not been proved. He also pointed out that there are major lacunas in this case as in the statement under section 342, Cr.P.C. Of the applicant/accused there is nothing mentioned with regard to ransom amount which clearly shows that the case is full of doubts, conjecturesand surmises and in view of the above facts, the appellant/accused is liable to be acquitted. In support of his above contentions, he has relied upon the decision given in the case Shahid alias Aamir and another v. The Stale reported in 2011 YLR 2238 (authored by one of us namely Irfan Saadat Khan, J).
9. Mr. Aslam Perwaiz Khan, Advocate representing the other appellants/accused namely Ali Hyder, Noor Muhammad and Mitho alias Mithal had adopted the arguments of Mr. Nisar Ahmed Durani, Advocate and stated that in the present case since serious allegation have been raised, a joint investigation team should have been formed for making the investigation which mandatory requirement has specially mentioned in section 19 of the ATA, 1997 and which has not been complied with. He further submitted that though it has been mentioned that ransom amount has been recovered from the appellant/accused but it is hardly believable that even after the passage of three months, the appellants were still having the said amount with them. He further submitted that there is contradiction in the evidence of the complainant and F.I.R. As in his deposition, the complainant has deposed that an amount of Rs,1.0 crore was demanded and ransom amount was settled as Rs,34,00,000 which was then paid by him, while in the F.I.R. He has mentioned that Rs,500,000 was demanded from him which he paid to the culprits. He further submitted that the parameters as mentioned in sections 6/7 of the ATA, are not attracted in the present case since no insecurity has been created in the society due to the alleged crime, if admitted, committed by the applicants/accused. He further submitted that the evidence of prosecution witnesses is not corroborated with each other which proves that prosecution has not done its homework properly and the appellants/accused are liable to be acquitted. He further submitted that it has clearly been mentioned in the deposition of the complainant that Ikramuddin came to him and informed that the persons who had kidnapped his son have been apprehended by the CIA Police but it is strange to note that statement of said Ikramuddin was never recorded by the police authorities. He also stated that the complainant has further mentioned that he went to the designated place for payment of ransom amount to the culprits along with two ladies i,e, one being the wife of his brother and the other being wife of his brother-in-law, however, the statement of these two ladies have also not been recorded. In the end, he prayed that since the case is full of doubts, the appellants/accused be acquitted.
10. Mr. Muhammad Iqbal Kalhoro, learned A.P.G. Sindh, on the other hand, has stated that the star witness, the abductee, has clearly identified the culprits and since the statement of the abductee has not been shattered the appellants/accused are not liable to be acquitted. He stated that the ransom amount has also been recovered from the possession of the appellants/accused. He submitted that the abductee is a sensible person hence, it is hardly believable that either he would depose falsely or he would make some error in identifying the culprits. He further stated that the identification parade is only necessary when there is some doubt with regard to identification. In support of his contention, the learned A.P.G. Sindh has relied upon the decision of Pahlw,an and others v. The State reported as 2000 PCr.LJ 299 and State v. Farman Hussain and others reported as PLD 1995 SC 1. However, before concluding his arguments the learned A.P.G. Frankly conceded that there are certain anomalies in this case but in his view since these are minor these would not vitiate the prosecution case.
11: While making the rebuttal the counsel for the appellants/accused have stated that since they have not raised the issue of identification parade hence, the submission of the learned A.P.G.
Regarding identification parade is misplaced and placing reliance on a decision given by the Hon'ble Supreme Court is also not correct since when this issue has not been raised how can a reply thereof be given. The submissions of the learned A.P.G. In our view thus are misplaced in this regard.
12. We have heard all the learned counsel at considerable length and have perused the record and the decisions relied upon.
13. Prosecution has examined P.W.1 Haleem Ahmed, Civil Judge and Judicial Magistrate, his evidence reveals that he has accepted that original 164, Cr.P.C. Statement has not been produced, however, certified true copy of the statement has been produced at Exh.21/A as original has been misplaced and despite efforts could not be traced.
14. P.W.2 complainant Muhammad Aslam examined at Exh.22. The examination-in-chief of complainant is reproduced as under:- "On 26-8-2008, 1 along with my family members was residing at Gulshan-e-Fatima Hyderabad, on that day at 8-00 or 8-15 a.m., my son Ali Aslam went to leave my daughters to their school in car.
But he did not return till 10-00 a.m., hence my wife got awakened me at about 10-30 a.m. I then went out to search him and also went to the School, but my daughters were in the School and I was told that my son Ali Aslam had dropped my daughters to their school. I then searched him all possible places and also asked the police who circulated the information on wireless but no clue.
After about 2 days, when I was present at my shop, at Station Road Hyderabad. 1 received telephone call on my mobile and on the other end my son was speaking and he informed me that he has been kidnapped by the persons, those persons then talked to me and demanded Rs, 1.0 crore as ransom for release of my son. The said telephone calls continued received to me 2/3 days and amount of ransom was settled Rs,34,00,000. Finally, they called me on 31-8-2008, and also directed me to bring at least two female with me and the amount. They had asked me to proceed with the amount and ladies at 4-00 p.m. Accordingly, I with my brother Muhammad Saleem, my wife and wife of my brother in law went at the directed place at Jhangara Bazara near Sehwan Sharif. We reached there at Maghrib prayer time. At service road, about 3/4 persons we met to whom I paid the amount. During my travelling the said culprits remained in contact with me on phone. I could not see the faces of the culprits to whom I made the payment, as it was dark and they had got switched off the light of the car and then those persons delivered me my son in exchange of that amount. After about three months, it was 28-11-2011 the Secretary of our shop union namely Ikramuddin came at my shop and told me that the culprits of kidnapping of my son were apprehended and I should go with him at CIA Centre Hyderabad. At CIA Centre I was shown three persons Nawab, Wali Muhammad and Ali Hyder saying that the same were my culprits, the two Ali Hyder and Wali Muhammad are present in Court today, while Nawab said to have been expired. In my presence, the police interrogated the said three accused and they admitted the abduction of another case of Hindu Boy and I came to know that the accused Wali Muhammad was arrested with a Baleno Car. I also put some question to the said accused and satisfied that they were involved in kidnapping of my son. On the same night, I then lodged the F.I.R. At the Police Station Qasimabad. I produce said F.I.R. As Exh.22-A, it is same and bears my signature. Police had told me that some amount was recovered from the accused persons."
' In the cross-examination, the complainant has admitted that he took two females with him. He also admitted that in the F.I.R. He had stated that on 27-11-2008, he went to the P.S, saw the culprits and then lodged the F.I.R. He has also admitted in the F.I.R. That he was not informed about the arrest of the culprits by Ikramuddin and the said Ikramuddin accompanied him to the P.S and that Ali Aslam did not go with him to the PS. He also had not shown the place of kidnapping of his son to the police. The complainant has also admitted that he had not said in the F.I.R. About seeing the applicant accused at the P.S and putting any question to them.
15. P.W.3 the abductee Ali Aslam was examined by the prosecution at Exh.23. His examination-in- chief is reproduced as under:-- "On 26-8-2008, at about 8-30 or 8-45 a.m., I was coming back after leaving my sister at Saint Bonaventure Hyderabad towards my house. When I reached near Hush Muhammad Sheedi Fly Over Qasimabad it was at that time under construction. The two persons who were in police uniform sought lift. I made them sit in my car. At some distance, they asked me to stop at the place which was road going from Ghora Ground towards Askari Petrol Pump saying that their mobile was coming back. I stopped the car at the side. In the meantime, the person sitting at the passenger seat took out the pistol and I thought to come out from the car but at that time, one motorcycle emerged there on which three persons were riding and they stopped it near the door of my car. The two persons of that motorcycle came in my car while their third companion pushed me and kept cloth on my mouth and made me sit at the hulk board of the car. Then all drove me in my car. They took me at a place near Sehwan which place I came to know afterwards. They kept me at open place at about six days. On third day of my kidnapping they called my lather and asked to pay ransom. They demanded more amounts but agreed to Rs,34,00,000. They gave two days time to my father for payment. On the sixth day, they closed my eyes with cloth and took me to somewhere, my father and other family members came and after payment I was released. My statement was recorded by the police and also before the Magistrate. I see Exh.21-B, and say that it is same statement, which was before the Magistrate. The witness pointed out towards accused Mithal saying that he is one of those persons who had sought lift from me in police uniform, the other is not present in the Court today he was sitting in my car on back seat. The witness also pointed the accused All Hyder and Wali Muhammad that these are the two persons amongst those three who came on motorcycle and these two persons sat in my car. Accused Ali Hyder was in police uniform and Wali Muhammad was driving my car. During travelling at all check posts accused Ali Hyder had signalled hence they were not stopped anywhere. The witness states that he does not recognize other two accused."
' In the cross-examination, he has admitted that in sections 161 and 164, Cr.P.C. Statements, it is not mentioned that accused Ali Hyder was in the police uniform. He has further admitted that the amount paid by his father was Rs,34,00,000. He has also ,admitted that in his section 161, Cr.P.C.
Statement, he had stated that the payment of Rs,5,00,000 was made to the culprits.
16. Prosecution has also examined P.W.4 HC Shafi Muhammad at Exh.24, he acted as mashir of the arrest of the accused Wali Muhammad, Nawab, Noor Muhammad and Ali Hyder whereas they were already in custody in Crime No,275/2008. He has also acted as mashir of the arrest of the accused namely Ali Bux and Mitho alias Mithal who were confined at C.P Hyderabad in other crime.
17. Prosecution has also examined P.W.5 Muhammad Ibrahim, SHO PS Hussainabad. In his deposition he has stated that he has arrested four accused persons namely Wali Muhammad, Nawab Noohani, Noor Muhammad and All Hyder, out of eight persons while he was on patrolling duty on 27-11-2008 and recovered weapons from their possession and registered Crime No,275/2011 under section 399 and 402, P.P.C. And a separate case was also registered under section 13(d), Arms Ordinance.
18. P.W.6 Inayat Ali, SHO Police Station Kot Ghulam Muhammad was examined at Exh.27. He has stated that he was posted as SHO at Police Station Qasimabad. He was assigned the duty to investigate crime No,344/2008 of Police Station Qasimabad registered under section 365-A, P.P.C.
Read with sections 6/7, ATA. On the same day, he wrote a letter to SSP Hyderabad for appointment of Inspector for the said case. He thereafter came to know that the four accused persons involved in this crime were in custody of Police Station Hatri in Crime No,275/2008. He, then, went to Police Station Hatri and arrested these four persons after fulfilling legal formalities and then came back at Police Station Qasimabad. During interrogation of the accused, the accused volunteered to produce the ransom amount and thereafter the police reached at the designated place i,e, Korai Flats, accused Ali Hyder produced one key of the flats which was hidden under some bricks and then led them towards Flat on fourth floor and on their pointation recovered currency notes of Rs,70,000 in the denomination of Rs,1000 notes which were stated to be seized from Ali Sher and on the pointation of. Wali Muhammad Rs,60,000 were recovered which were kept in a jacket hanging on the door of the flat, accused Nawab produced Rs,60,000 which were kept in an Almirah and accused Nawab produced Rs,60,000 which were kept in pillow lying on the bed then mashirnama of recovery of the above ransom amount was prepared. He has further admitted in the mashirnama that number of currency notes, which were recovered from the appellants/accused, has not been mentioned. He has also stated that he is not aware about whether the key of the flat was with I.O. Ali Sher or not. He has also admitted that the mashirnama is in his own handwriting and is written on the dictation of the I.O.
19. P.W.7 Ali Sher SHO Police Station .Sakhipir has been examined at Exh.28. His evidence reveals that on 28-11-2008 he was assigned the duty to investigate the case. He also stated that during interrogation the accused volunteered to produce the amount of ransom and on their pointation from the said flat the amount was recovered. In his cross-examination he has stated that the mashir Ikramuddin met him at the Flat where he was alone. He has admitted that no person from the neighbourhood was called to act as a mashir.
20. After going through the deposition of the above P.Ws and noting the contradictions and illegalities as pointed out by the counsel for the appellants/accused we specifically asked a question from the learned A.P.G. That when admittedly no F.I.R. About the kidnapping of the abductee was registered at any Police Station how the police came to know that the applicant/accused had kidnapped the complainant's son and after showing the appellants/accused to the complainant and abductee registered the said F.I.R. After a period of three months from the said abduction. The learned A.P.G. Could neither give any plausible reply nor could controvert the said fact. We have also noted that why the statement of Ikramuddin and two female persons, who accompanied the complainant during the payment of ransom amount, have not been recorded, of which no plausible explanation is available.
21.We have also note& that the complainant Muhammad Aslam has deposed in his evidence that he has paid ransom amount Rs,34,00,000 to the appellants/accused whereas he has narrated before the police at the time of recording F.I.R. That he had paid Rs,5,00,000, therefore, this is a major contradiction in his evidence and the F.I.R.
22. It is quite essential to note that the statement of the accused is to be recorded for the purpose of enabling the accused to explain any circumstance appearing in the evidence against him, but from the perusal of statements of the appellants/accused recorded under section 342, Cr.P.C. It appears that no question was put to them that whether they have released the abductee after receipt of ransom from the complainant and what they have to say in this regard. It is noted that no such piece of evidence is available on the record regarding receipt of the ransom amount of Rs,5,00,000 from complainant but the complainant deposed that he has paid ransom amount of Rs,34,00,000 which has been denied by the appellants/accused. We, therefore, asked a question from learned A.P.G. That whether this could be a major contradiction or not and whether non- mentioning of the ransom amount in the statement of appellants/accused recorded under section 342, Cr.P.C. In evidence, would be an irregularity or an illegality as it is trite proposition of law that when there is an irregularity, it would not vitiate the prosecution case, however, when there is an illegality, this could vitiate the prosecution case. No plausible reply in this regard was furnished by the learned A.P.G. Except by saying that in his opinion non-mentioning of the ransom amount in section 342, Cr.P.C_ statement of the appellants/accused is a mere irregularity and, not an illegality.
23. A perusal of section 342, Cr.P.C. Reveals that it consists of two parts one relates with the Court and other with the accused. In the former portion, the Court is held with the responsibility to put questions which in its view are necessary and the second part is the examination of the accused which is necessary for asking him to explain about certain points about the evidences gathered against him.> Since the prosecution has collected the ransom amount in our view, they should have asked this specific question of the recovery from the accused, which question admittedly has not been asked, therefore, we have come to the conclusion that this appears to be an illegality as provision of this section is mandatory and non-compliance thereof amounts to an illegality not curable under section 537, Cr.P.C. Reference in this regard, if any, may be made to the decision in the case of Nazir Ahmed and others v. The State and others reported in PLD 2005 Karachi 18, wherein it has been held as under:- "It is well-settled principle of law that examination under section 342, Cr. P. C. Is not an empty formality and the same has to be carried put to afford an opportunity to accused to explain his position on each aspect of the case and not each and every piece. Of evidence brought on record by the prosecution, if the same is to be used against him for the purpose of conviction. If such evidence is not put before the accused in the shape of questions while recording his such statement then conviction on the basis of that evidence would be illegal."
24.In the statement recorded under section 342, Cr.P.C. At Exh.30, the appellant/accused Ali Hyder has stated that on 25-8-2008, 26-8-2008 and 27-8-2008 he was on duty as Security Guard of the Anti-Terrorism Court. In support of his statement, he has produced duty letter of the Guard at Ext.30/A. He has also stated that on 27-11-2008, the ASP Headquarter took him from the said Court where he was on duty. Such report made by the In charge has also been produced at Exh.30/B.
Perusal of Exh.30/A shows that appellant/accused Ali Hyder was on duty at Gate No,1 of ATC Hyderabad on 25th, 26th and 27th August, 2008. Perusal of Exh.30/B i,e, letter/report of In charge of Guards to SSP/SRP Hyderabad shows that the ASP Headquarter Maroof came and took the appellant/accused Ali Hyder in the Mobile on the pretext that he wants to show him Bungalow of some officer. It further shows that an Entry bearing No,64/0105 hours has been made by the appellant/accused who thereafter contacted with the In charge regarding his detention in the Quarter-guard by the said ASP, such fact was disclosed to his superiors and such entry was also recorded being Entry No,68/0220 hours. In our opinion, this documentary fact creates a major blow in the prosecution case as this fact has not been controverted by the prosecution in any manner in spite of the fact that section 540, Cr.P.C. Clearly provides to call any person as a witness in the trial whose evidence appears to be essential to the just decision of the case but the prosecution did not make such request before the trial Court to call the In charge of Guards, ATC Hyderabad who has recorded Exh.30/A and Exh.30/B.
25.The main emphasis of the learned A.P.G. Sindh is that since the abductee, who is the star witness has identified the accused, hence no leverage could be given to the appellants/accused in this regard. We fully agree with the learned A.P.G. Sindh that if the star witness who is abductee identifies the accused and his deposition remains unshattered, the appellants/accused are liable to be convicted but looking to the facts of the present case,, it is an admitted fact that abductee has given contradictory statement which had made his deposition doubtful as at one place he has admitted that deal took place between his father and culprits for Rs,5,00,000 whereas in his evidence he deposed that his has paid the ransom amount as Rs,34,00,000. We have further noted that there is also contradiction in the statement of Ali Aslam regarding identification of the accused as he has stated in his statement that he has not identified appellant/accused Wali Muhammad which also proved that his deposition is not free from shadow of doubt.
26.Apart from the above, perusal of 164, Cr.P.C. Statement of the abductee All Aslam shows that he has stated before the Magistrate that the deceased accused Nawab took out Kalashnikov and the remaining appellants/accused were having pistols in their hand at the time of his abduction in the Car whereas no such fact has been mentioned in his deposition. Even if the decision relied upon by the learned A.P.G. In the case of Pahlwan and 2 others is examined it would be seen that it has clearly been mentioned in the said judgment that evidence of the abductee is material and conviction can be based upon testimony alone if the same inspire confidence. Meaning thereby that the Court is fully conscious of the fact that evidence of the abductee is material if the same inspires confidence whereas in the instant appeals it is seen from the facts mentioned supra that the evidence of the abductee does not inspire confidence hence, this case, in our view, does not help the prosecution rather it supports the stand taken by the appellants/accused.
27.We have also noted that though the learned A.P.G. Has stated that the parameter of requirements of section 342, Cr.P.C. Have not been fulfilled in letter and spirit and since the same is an irregularity and not illegality the same would be cured by remanding the matter to the trial Court for recording of the same afresh. We, however, do not ascribe to IF this proposition since there is a contradiction with regard to payment of ransom amount and no question in this regard has been asked hence, on this score evidence already recorded could not be discarded at this stage. Hence, even if the case is remanded back it will not bear any fruit since the position, in our view, would remain the same since it cannot be denied that the contradiction already identified and pointed out, could not be cured or changed at the subsequent stage. This aspect also has not been denied by the learned A.P.G. Sindh.
28. We have also noted that it is not explained that why the abductee and the complainant had remained mum for almost three months and had not approached the police during the period in which either the abductee was in the illegal confinement of the appellants/accused or even after his recovery.
29. We have further noted that when the police had arrested the accused in the cases under sections 399 and 402, P.P.C. And under section 13(d), Arms Ordinance, how they have come to the conclusion that the accused had also previously kidnapped Ali Aslam for ransom when admittedly no F.I.R. Of such incident was recorded. No reply in this regard, is available with the prosecution.
30. In the light of the above facts and circumstances of the case noted above we have come to the conclusion that the present case is not free from doubts as it is a settled proposition of law that where there is a doubt, benefit of which has always to be given to the appellant/accused.
Reference in this regard, may be made to the decision in the case of Tarique Pervaiz v. The State reported as 1995 SCMR 1345, wherein Hon'ble apex Court has categorically observed that benefit of doubt has also to be given to the appellants/accused. It would always be pertinent to observe that while trying a criminal case, it is the duty of the Court to appraise evidence strictly according to the legal requirements of the law without being influenced away emotionally for any other extraneous reason, which falls outside the pale of legal jurisdiction of appraisement of evidence. In the criminal jurisprudence which we follow, it is invariably the duty of the prosecution to prove, the case against accused beyond doubt and in that process not only if there is any room for doubt, benefit thereof has to go to the accused but if any legal provision, which is to be relied upon in the appraisement of evidence and is open to two clarifications, one beneficial to the accused has to be adopted. In our view, to bring home guilt of the accused, legal evidence is required to be of incriminating nature to connect accused with the commission of crime beyond any shadow of reasonable doubt.
31. For the aforesaid facts and circumstances we are of the considered view that the prosecution case does not inspire confidence and the conviction of the appellant was founded on tainted evidence which cannot be sustained in law. We, therefore, allow these appeals, set aside the judgment of the trial Court and acquit the appellants of the charge. They shall be released forthwith unless required in any other case. Before parting with the order we would like to record our appreciation for the able assistance provided to us by the learned A.P.G.
32. Above are the reasons of our short order dated 12-3-2013, by which these appeals were allowed.