ASLAM JAVED MINHAS J: The appellants namely, Bahawal Khan, Imam Bakhsh and Muhammad Bakhsh alias Mammi were tried by the learned Additional Sessions Judge, Jampur, District Rajanpur, in a case FIR No.578/03 dated 10.11.2003, under Section 365 A/109 PPC registered at Police Station Jampur and vide judgment dated 15.04.2005, they were convicted and sentenced under Section 365-A/34 PPC to suffer imprisonment for life alongwith forfeiture of their property. They were also extended the benefit of Section 382-B Cr.P.C.
2. The relevant facts for the disposal of this appeal are that the complainant, Muhammad Ramzan son of Rasool Bakhsh, Caste Waadu, resident of Mauza Dukkar, aged about 45/46-Years, stated in the complaint Exh.PA that about one month prior, he received a call on his phone which bore number on the C.L.I. As 317302, from Khalil son of Abdul Aziz, Caste Shar Jatoi, resident of Mauza Shahnawaz Pura, who told him that he is member of Aqeel Bosan gang, and further demanded Rs.50,000/- as ransom money or otherwise the complainant will face the dire consequences. On the following day, when he along with Muhammad Shaffi, Abdul Kareem both sons of Hasil Muhammad, Waadu by caste, was present in the house, the accused persons/appellants, namely, Bahawal son of Khan Muhammad, Imam Bakhsh alias Mammi son of Bahawal, Gopang by caste, residents of Hairo, came to him and asked him to arrange Rs.50,000/- or otherwise Aqeel Bosan gang would cause loss to his person and property. On 27.10.2003, when his sons, namely, Mumtaz Ahmad, Gulzar Ahmad alongwith Muhammad Shaffi and Abdul Kareem, reached the mosque for offering Isha and Taraveeh prayer, the accused persons, namely, Khalil Ahmad Shar, Aqeel son of Ganmun, caste Bosan, Muhammad Bakhsh alias Mammi s/o Raheem Bakhsh, Muhammad Akram alias Akri, Abdul Kareem alias Adli sons of Gul Muhammad, Gopang by caste, residents of Mauza Hairo, duly armed with Kalashnikov, reached the mosque. Accused Aqeel Bosan and Khalil Shar entered the mosque with their shoes and broke the wires of the loudspeaker. The accused persons, on the pointation of Bahawal and Imam Bakhsh alias Mammi, kidnapped the complainant's son, namely, Mumtaz Ahmad for ransom. They shifted the complainant's son through a boat with assistance of Talib s/o Allah Ditta, Shaukat s/o Allah Wasaya, Raaziq s/o Ramzan, who abetted the accused persons and facilitated them to reach their destination. On 07.11.2003, Aqeel Bosan and Farooq Bosan have been murdered in a police encounter, and the complainant has no whereabouts of his son. The occurrence was reported to the police by filing an application dated 10.11.2003 which is Exh.PA.
3. After registration of the case, the investigation was conducted and thereafter the challan was submitted in the trial court. The learned trial court framed the charge on 13.05.2004 which was denied by the accused persons and they claimed trial.
4. To prove guilt of the accused, the prosecution examined as many as five witnesses during the trial. The ocular account was furnished by Muhammad Ramzan PW-2 who reiterated the same story as narrated by him in the complaint Exh.PA. Muhammad Iqbal Shah ASI appeared as PW-1. He deposed that on 10.11.2003, while he was attached to P/S Jampur as ASI/Duty Officer, he received complaint Exh.PA through Allah Ditta 212/C-II and recorded the formal FIR. PW3 Mumtaz Ahmad (the alleged abductee) got recorded his statement in line with that of the complainant thereby corroborated the prosecution version. PW-4 Imtiaz Ahmad SI stated about the arrest of Muhammad Bakhsh accused and recovery of Kalashnikov P1 alongwith two magazines P2 & P3.
Upon unloading the same further 45 bullets P4/1-45 were recovered which were taken into possession by him vide recovery memo Exh.PB. Shah Alam Khan Inspector/SHO PW-5 stated that the complainant appeared before him and got recorded his statement Exh.PA. On 17.11.2003, he arrested Bahawal and Imam Bakhsh accused. On 02.12.2003, he arrested Muhammad Bakhsh accused and recovered a Kalashnikov P1 alongwith magazine P-2 and P-3 and out of them 45 bullets P4/1-45 were also recovered which were taken into possession vide recovery memo Exh.PB.
Meanwhile, on 14.12.2004, Mumtaz Ahmad abductee appeared before him and got recorded his statement under Section 161 Cr.PC. On 16.12.2003, he sent Muhammad Bakhsh accused in judicial lock. Then, he prepared the Challan under Section 173 Cr.P.C and submitted the same to the Court on 16.12.2003.
5. After close of the prosecution evidence, the statements of the accused/appellants were recorded under section 342 Cr.P.C. They denied the allegations and claimed their innocence and false involvement. In reply to question "why this case against you and whey the PWs have deposed against you", accused Bahawal Khan stated as under:- "I am innocent. Imam Bakhsh accused is my real son. I have been serving with Mirza Ubaidullah Khan Naib Nazim District Rajanpur as his Kardar. I have been cultivating the land of said Mirza Ubaidullah on lease at village Barkhurdarpura. I had disputes with said Mirza Ubaidullah on the cultivation of land. My disputes occurred before the occurrence of abduction with Naib Nazim District Rajanpur on altercation with regard to the lease money. Complainant party is under influence of said Mirza Ubaidullah. Mirza Ubaidullah helped the complainant party in the registration of this case of abduction on the condition that complainant will implicate him and his son in this case. Before deposing in the Court, the complainant party referred me to Mirza Ubaidullah Khan in this regard saying that Mirza Ubaidullah is the only authority. I refused to contact Mirza Ubaidullah in this regard. I have been implicated falsely at the instance of Mirza Ubaidullah and the witnesses have deposed falsely against me and my son on the asking of Mirza Ubaidullah."
6. To the same question, accused Imam Bakhsh stated as under: "I am innocent. I rely upon the statement of my father Bahawal. I alongwith my father has been involved in this case falsely by the complainant on the asking of our opponent Mirza Ubaidullah Naib Nazim District Rajanpur. They have also deposed against us on the asking of said Mirza Ubaidullah. "
7. To the same question, accused Muhammad Bakhsh alias Mammi stated as under: "I am innocent. Complainant got registered this case on the basis of suspicion. When the complainant was recovered he did not nominate me. Neither I was involved in this occurrence nor any weapon was recovered from me. PWs have deposed against me being police officials. The I.O.
Of this case has planted the weapon against me. I am innocent."
8. The trial culminated into conviction and sentence of the appellants as mentioned above.
Muhammad Bakhsh convict assailed his conviction and sentence by filing Criminal Appeal No.358 of 2005 while Bahawal Khan and Imam Bakhsh convicts assailed their conviction and sentence through Criminal Appeal No.285 of 2005. As both the appeals are outcome of one and the same judgment, therefore, I intend to decide the same through single judgment.
9. Learned counsel for the appellants argued that the alleged abductee himself appeared before the police on 14.12.2004 and got recorded his statement before the police under Section 161 Cr.P.C which is Exh.DA after about 13 months of the occurrence in which he did not mention the names of Bahawal and his son Imam Bakhsh and he also stated in the last lines of his statement that Muhammad Bakhsh appellant was not involved in his abduction, therefore, the appellants are entitled for acquittal.
10. On the other hand the learned Deputy Prosecutor General assisted by the learned counsel for the complainant opposed the appeals and supported the impugned judgment.
11. I have heard the learned counsel for the parties and perused the record with their able assistance.
12. The alleged abductee namely, Mumtaz Ahmad is the star witness of this case. He appeared before the learned Trial Court and categorically deposed that appellants were the accused of this case, but before that when he appeared before the police during the investigation, he did not mention the names of the appellants and it was verified by PW5 Shah Alam Khan Inspector who categorically admitted that he recorded the statement of the abductee without any addition or omission. The statement Ex.DA got recorded by the alleged abductee before the police reads as under:- {{ URDU TEXT }} In the above statement the abductee admitted that name of Muhammad Bakhsh accused had been inadvertently recorded by his father (PW2) in the complaint instead of Tariq Bosan and that Muhammad Bakhsh accused is innocent. He also got recorded in his statement that Muhammad Bakhsh accused is innocent in his abduction case. PW5 further admitted that the abductee Mumtaz Ahmad also did not mention the names of Bahawal and Imam Bakhsh accused and also did not level any allegation against them of extorting money. Thus the statement Ex.DA of the alleged abductee recorded by PW5 cuts the roots of the prosecution case. According to the circumstances of the case, the accused persons entered into mosque with their shoes and had broken wires of the loudspeaker but neither the police recorded the statements of the persons who were offering prayers nor any of the witness was produced before the trial court in this regard. The police also did not collect any material likewise broken wires and the loudspeaker. Muhammad Ramzan, complainant appeared in the court as PW2 during the bail proceedings of Muhammad Bakhsh accused and Mumtaz, alleged abductee, Muhammad Shafiq and Abdul Karim, PWs submitted their affidavits with regard to his exoneration and also admitted that he made a similar statement to the police with regard to the innocence of Muhammad Bakhsh on 14.12.2004. The alleged abductee, PW3 stated in his examination in chief that he reached home and thereafter he and his father reported about the occurrence to the police and then the police recorded the statement of the alleged abductee on 14.12.2004 after about 14 months of the alleged occurrence.
He also admitted in his statement Ex.DA as well as in before the Court that Muhammad Bakhsh, appellant was not involved in this case and the whole statement of the PW3, alleged abductee confronted to his statement Ex.DA. He also admitted in his cross-examination that Bahawal, appellant and Mirza Ubaid Ullah Khan have dispute now a day. Mirza Ubaidullah Khan is the owner of the land and the accused/ appellant cultivating the land of said Mirza Ubaid Ullah Khan. PW3 further admitted in his cross-examination that it is correct that Bahawal and Imam Bakhsh had come to me with a request not to make a statement against them and I had referred them to Mirza Ubaidullah stating that he will make the decision in this regard as an authority. He further admitted that they had refused to contact Mirza Ubaidullah in this regard. He further denied that he had made a false statement on the asking of Mirza Ubaid Ullah. Thus, Mirza Ubaid Ullah Khan appears the main character of the case and involvement of the appellants in this case because of the admitted litigation between said Mirza Ubaid Ullah and the appellant, Bahawal and his son cannot be ruled out. It is an other question as to why the police did not inquire and investigate the other accused persons mentioned in the complaint Ex.PA, its answer is definitely create some doubt in the prudent mind.. It is settled principle of law that benefit of doubt is always extended in favour of the accused. In view of the major contradictions and material irregularities in this case the prosecution has miserably failed to bring home the guilt of the accused persons. It is not necessary that a bundle of facts for acquitting a person were required rather a single stance, which was material, was enough to put a dent in the case of the prosecution and to entitle acquittal of the accused.
13. For what has been discussed above, both the appeals i.e. Crl.Appeal No.358 of 2005 and Crl.Appeal No.285 of 2005 allowed, the conviction and sentence of the appellants namely, Bahawal Khan, Imam Bakhsh and Muhammad Bakhsh alias Mammi vide the impugned judgment dated 15.04.2005 is set aside and they are acquitted of the charges. The appellants is already on bail, therefore, their sureties are discharged. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.