IRFAN SAADAT KHAN, J.---These criminal jail appeals have been preferred against the judgment dated 11-9-2013 passed by the Judge, Anti-Terrorism Court, Khairpur, whereby the accused persons namely Muhammad Dawood, (2) Ranjhan, (3) Ashique Hussain, (4) Bhagial, (5) Muhammad Maroof, (6) Ghulam Qadir, (7) Allah Bux, (8) Ghulam Asghar, (9) Khadim Hussain, (10) Abdul Hameed, (11) Nawab and (12) Abdul Hakeem, were convicted and sentenced to suffer R.I for life. The moveable and immovable property of all the said accused persons were also forfeited by the State under section 365-A, read with 149, P.P.C. And 7(e) of A.T.A. All the accused were also convicted for offence under section 395 read with section 149, P.P.C. and were sentenced to suffer R.I. for 10 years and fine of Rs.20,000 each and in case of default in payment of fine, they shall suffer further SI for six more months.
2. Brief facts of the prosecution case, as per F.I.R. in crime No.10/2009 under sections 365-A, 395, 148, 149, P.P.C. and 7, A.T.A. of Police Station Hingorja District Khairpur, are that one Shoaib Ahmed (herein after referred to as the abductee) son of Rajibudin Sahito aged 22 years resident of Rasool Abad taluka Sobitodero was kidnapped from the land of his maternal-uncle namely Mukhtiar Ahmed Sahito. The complainant after receiving the said information along with his staff ASI Zahoor Ahmed, HC Abdul Qadir, P.C. Talib Hussain Solangi, went to the village of the abductec and met with his maternal uncle Mukhtiar Hussain and his father Rajibuddin. Mukhtiar Hussain told the complainant that on 27-2-2009 when he and the abductee were present on their land some 14 armed persons came there and on the gunpoint asked them to remain quiet and thereafter kidnapped Shoaib. Since life threats were issued by the accused persons hence F.I.R. was not registered either by the father or other relatives of the said abductee. However, when the said information was received by the police. F.I.R. was registered on 12-4-2009, whereas the incident took place on 27-2-2009. The names of 14 persons were duly mentioned in the F.I.R. and thereafter investigation of the case began.
3. Mr. A.R. Farooque Pirzada Advocate has appeared on behalf of the accused persons namely (i)
Ashique Hussain son of Khuda Bux Thcbo and (ii) Abdul Hameed son of Jamaluddin Thebo.
Learned counsel stated that the judgment passed by the learned Anti-Terrorism Court is not in accordance with law as the learned Judge has not considered various contradictions, which have appeared in the prosecution case. While elaborating his view point the learned counsel has submitted that the F.I.R. was registered after a considerable delay of more than 40 days as the date of occurrence of the incident was 27-2-2009 whereas, the instant F.I.R. was registered on 12-4- 2009, which delay according to him, had remained unexplained. The learned counsel further submitted that it was claimed by the complainant that he received information of the said incident on 12-4-2009 on telephone, however he has failed to explain that whether he was having any previous information about the said incident prior to said date or not. The learned counsel further submitted that it is strange to note that the said F.1.R. was neither lodged by the father nor by any other relative of the abductee rather the said F.I.R. was lodged by S.I.P Ashraf Ali Mangi, who was the S.H.O. of P.S. Hingorja. He further stated that the complainant had inimical terms with the Theba community and in order to falsely implicate the accused persons the instant F.I.R. was registered, since some complaints were made by the said Sheba community against him regarding his highhandedness in some previous matters. Learned counsel further submitted that on the one hand the complainant has mentioned that he has registered the F.I.R. Himself but on the other hand has failed to record any statement under section 161, Cr.P.C., which had remained unexplained. He further submits that there was a gap of more than 40 days in the incident and the lodging of the F.I.R. And it is strange to note that no body from abductee side had ever approached the police about the happening of the alleged incident. She learned counsel stated that it is beyond comprehension that for more than 40 days the abductee side kept mum and did not inform the police about the alleged abduction. She earned counsel further submits that it is also noted that Mukhtiar Hussain, who is the maternal uncle of the abductee, was a police informer hence the S.H.O. Helped him in falsely implicating the accused persons and a case was set up against the said accused persons of abduction due to the enmity between the two tribes. He further stated that, if the deposition of the abductee is seen, it would be noted that he has mentioned that a ransom of Rs,900,000 was paid by his maternal uncle Mukhtiar Hussain, whereas in the deposition of Mukhtiar it would be noted that ransom amount has been mentioned as Rs,10,00,000. He further submitted that in the deposition of abductee he has not mentioned the name, of Ashique Hussain as one of the accused person. He further submitted that though in the 164, Cr.P.C. Statement the abductee has named only three persons but the police has connected as many as 14 persons in the commissioning of the alleged crime. He further stated that in the 164, Cr.P.C. Statement presence of only two co-accused namely Dawood and Ranjhan was mentioned whereas, no allegation has been levelled either against Ashique Hussain or Abdul Hameed. He further submitted that even at the time of recording of 161, Cr.P.C., statement the abductee had identified Ranjhan and Dawood only. He further submitted that the abductee in his 164, Cr.P.C.
Statement has also admitted that he had not disclosed the names of 14 accused persons connected in the commissioning of the alleged crime. He further stated that the said abductee in his deposition has categorically stated that his 164, Cr.P.C. Statement was written by the police. He further stated that abdUctee was not recovered by the police rather he was produced by his relations at the police station on their own, rather voluntarily. He further stated that though the abductee has asserted that during the period of his abduction he was physically tortured but it is strange to note that there is no medical certificate/report available on the record to corroborate his this statement. He further stated that though the abductee was allegedly released after receiving ransom on 26-4-2009, however, surprisingly the F.I.R. Was registered on 27-4-2009, which explanation is not available with the prosecution. She learned counsel, in view of the above facts, submitted that the deposition of the abductee is hearsay and not trustworthy and is liable to be ignored. The learned counsel further submitted that it is strange to note that it was Mukhtiar Hussain, the maternal uncle of the abductee, who took the pains to go to the Police Station, collect the ransom amount and to do all the other ancillary jobs whereas, no role has been played either by the father or the brothers of the abductee, which aspect creates serious doubts about the happening of the said incident. The learned counsel further submitted that the prosecution side has given up the evidence of Rajabuddin, the father of the abductee, and no explanation in this behalf is available with the prosecution. The learned Counsel further submitted that if the deposition of Mukhtiar Hussain is examined a number of contradictions would be noted; as he has categorically named certain persons, who were with him at the time of payment of ransom amount, whereas the same has not been mentioned in the deposition of the abductee. The learned counsel further submitted that why the ransom amount was paid by Mukhtiar Hussain and not by the father and brothers, also puts a dent on the case of the prosecution. He has further submitted that in the deposition of Mukhtiar Hussain he has mentioned that he collected the ransom from the nekmards of the area but no such list of those nekmards was even submitted in order to check the veracity of the statement given by him. He further submitted that from the deposition of P.Ws.
Shahnawaz it may be noted he has categorically stated that he was not present when abductee was brought at the police station. Shah Nawaz has further admitted that memo. Of recovery does not bear his signature. He has also categorically admitted that he has given his statement at the instigation of his brother Mukhtiar Hussain, which clearly establishes that the deposition given by Shahnawaz was tainted and a cooked up affair. He further submitted that the deposition of P.W.5 Hussain Bux also reveals that he has mentioned that the abductee was produced before the police whereas it has been mentioned by other P.Ws. That the abductee had appeared voluntarily before the police. Moreover, the said Hussain Bux has also not identified Ashique Hussain and Abdul Hameed in the Court. The deposition of Hussain Bux would further reveal that he has mentioned that the accused persons have snatched away cash and mobile from Mukhtiar Hussain, which is also beyond comprehension as when the accused persons have come with the motive to kidnap Shoaib then what was the necessity to snatch/rob cash and mobile, which aspect has not been properly explained by the prosecution. He further submitted that though empties were sealed from the spot but those were not produced in a sealed condition before the Court. He further submitted that there was no mark or identification on the case property also. He further submitted that though the mashir Hussain Bux has stated that ransom was collected after selling cattle, gold and other articles however this statement is in contradiction to the deposition of other P.Ws. Who have stated that the ransom amount was collected from the nekmards of the area. He further stated that P.W. Hussain Bux has also admitted that police did not record his statement. The learned counsel states that this admission has altogether changed the scenario of the case of the prosecution, since when this admission has been made the deposition of .Hussain Bux has become false and was liable to be rejected, which aspect has been ignored by the lower court. He further submitted that if the evidence of P.W.9 Sajawal Khan is examined, it would be seen that he has failed to properly identify the accused persons in Court and picked a wrong person with different name. It may also to be seen that mashirs brought by Mukhtiar had no information about the release of the abductee. It is also to be noted that the police had failed to collect mobile phone data of Mukhtiar whereas; it was claimed that the accused persons were making phone calls on the mobile phone of Mukhtiar for ransom amount. He further submitted that Mukhtiar moved an application to Judicial Magistrate for recording statement under section 164, Cr.P.C. On 27-4-2009 whereas the date of the application was 5-5-2009, which belies the statement of Mukhtiar and the entire case of the prosecution has become dubious. He further submitted that it has also come on record that there was previous enmity between the Theba community and the Sahito community, due to which the instant F.I.R. Has been registered. He further submitted that no independent witness was examined in the case. He further submitted that the SIO of this case has also made contradiction in his deposition by mentioning that "it is correct to suggest that P. Ws. Of present case did not produce any incriminating evidence against the accused persons which could prove that the abductee was released after payment of ransom amount". He further submitted that it was claimed that Mukhtiar and Shoaib were having lantern and torch in their hands but these were never produced in the Court. In the end the learned counsel submitted that if all these factors are considered in juxtaposition it would become evident that the prosecution case is fabricated and has been foisted upon the accused due to previous enmity. He further staled that since the present case is not free from doubts hence the accused persons are entitled to be acquitted. He therefore, prayed that the said accused persons may be acquitted and the order passed by the Anti- Terrorism Court may be set aside. In support of his submissions, the learned counsel has relied upon the following decisions:--
(i) Muhammad Zubair and 2 others v. The State (2010 PCr.LJ 1892)
(ii) Mst. Parveen Akhtar and others v. The State (2010 YLR 1899)
(iii) Dr. Muhammad Abrar v. State (2010 YLR 1674)
(iv) Amjad Ali v. The State (1994 PCr.LJ 87)
(v) Khalid and another v. The State (1989 PCr.LJ 742)
(vi) Tariq Pervez v. The State (1995 SCMR 1345)
(vii) Jan Alam v. The State and another (2004 PCr.LJ 68)
(viii)Murad Shah and others v. The State (1991 MLD 887)
(ix) Wazir Muhammad v. The State (1992 SCMR 1134)
(x) Abdul Khanan v. The State (2004 PCr.LJ 92)
(xi) Muhammad Luqman v. The State (1989 MLD 1708)
(xii) Daniel Boyd (Muslim and another v, The State (1992 SCMR 196)
4. Mr. Nisar Ahmed. Bhanbhro, learned counsel has appeared on behalf of the appellants/accused namely Muhammad Daud son of Khan Muhammad Thebo, Bhagial son of Gulab Khan Thebo, Muhammad Maroof son of Rajabuddin Thebo, Ghulam Qadir son of Rajabuddin Thebo, Allah Bakhsh son of Allah Ditto Thebo, Ghulam Asghar son of Nabi Bakhsh Thebo, Khadim Hussain son of Imdad Ali alias Jurial Thebo, in Criminal Appeal No,72 of 2013 and other appellants/accused namely Ranjhan son of Shah Bakhsh Siyal in Criminal Jail Appeal No,D-73 of 2013. Learned counsel while adopting the arguments of Mr. Abdul Rehman Faruq Pirzada, Advocate has submitted that there are: a number of contradictions in the deposition of the P.Ws. He stated that at one place P.W.
Ashraf Ali has mentioned that there was enmity between the parties, which aspect was denied by P.W. Mukhtiar Hussain by stating that there was no enmity. He further submitted that in the deposition of the abductee he has mentioned that he was beaten by the accused party, whereas on the other place it was admitted that his condition appeared normal when he appeared at the police station. He further submitted that all the P.Ws are relatives of the abductee and no independent P.W. Was examined. He further submitted that P.W. Shah Nawaz was also declared hostile. He further submitted that in the 164, Cr.P.C. Statement of abductee no name was mentioned. He further submitted that there is no criminal record of the accused persons. Learned counsel finally submitted that the present case is false and has been foisted upon the present accused persons, hence they are liable to be acquitted. In support of his above contentions, the learned Counsel has placed reliance upon the following decisions.
(i) (2014 SCMR 314) Muhammad Tayab and others v. The State.
(ii) (2009 SCMR 230) Muhammad Akram v. The State.
(iii) (2011 YLR 1899) Mst. Parveen Akhtar and others v. The State.
(iv) (2011 PCr.LJ 361) Muhammad Luqman v. The State.
(v) (2011 YLR 2338) Muhammad Mushtaq and others v. The State.
(vi) (2010 PCr.LJ 1892) Muhammad Zubair and others v. The State.
(vii) (2010 PCr.LJ 564) Dr. Muhammad Abrar v. The State.
(viii) (PLD 1995 Kar. 315) Qurban alias Darboo and 2 others v. The State.
5. Mr. Sahab Khan Kanasero, learned counsel has appeared on behalf of appellants/accused namely Nawab son of Abdul Hakeem son of Abdul Hameed Siyal and Abdul Hakeem son of Abdul Hameed Siyal in Criminal Jail Appeal No,D-73 of 2013. Learned counsel while adopting the arguments of Mr. Abdul Rehman Faruq Pirzada and Mr. Nisar Ahmed Bhanbhro, submitted that there are a number of contradictions in the depositions of the P.Ws. And that it has already been held in the decision given by the Hon'ble Supreme Court of Pakistan in the case of Saeed Muhammad Shah v. The State (1993 SCMR 550) that in case of contradiction in the depositions, the matter should be decided in favour of the accused by giving them the benefit of doubt.
6. Mr, Abdul Rehman Kolachi, learned A.P.-G. Has appeared on behalf of the State and submitted that the learned Judge Anti-Terrorism Court, has passed an exhaustive and erudite Judgment, which may be confirmed. He, while elaborating his view point, submitted that the delay in the F.I.R was due to the fear that the accused party might harm the abductee. He further submitted that the said abductee had remained for more than 40 days in the captivity of the accused persons.
Learned A.P.-G. Further submitted that the motive and enmity are not the ingredients in a ransom case. He submitted that the main stress of the accused persons that the case has been foisted upon them due to enmity is a farfetched submission. Learned State counsel further submitted that deposition of father of abductee was given-up only on the ground that he was not an eye-witness of the incident. He further stated that P.W. Shah Nawaz was declared hostile and another witness was arranged in his place hence no dent in the case of the prosecution is put in this regard. He further submitted that Mukhtiar was a poor person and by selling his cattle, house hold goods and gold ornaments had arranged the ransom money, which aspect could not be ignored. He further submitted that the abductee has not given up the names of the accused persons, which is evident from page 69 of the Paper Book. He further submitted that the P.Ws. Are natural witnesses and could not in any way be considered to be the interested witnesses. He further submitted that the assertion of the learned counsel for the accused that Mukhtiar Hussain was a police informer is also of little significance as when a question was put to him ill this regard, he categorically denied the same. He further submitted that so far as the allegation of non-providing of the list of persons from whom ransom amount was collected by Mukhtiar Hussain is concerned, suffice to state that the said amount was arranged by selling cattle, gold ornaments etc. And there is no contradiction in the deposition of P.Ws. In this regard. He finally submitted that even if, for argument sake, it is assumed that there are certain contradictions, these are minor and are liable to be ignored. He further stated that since the accused persons were receiving threats that is why F.I.R. Was not registered. He further stated that in view of the above facts and circumstances, the appeals filed by the accused persons are liable to be dismissed and the judgment passed by the lower Court may be upheld. In support of his above submissions the learned Counsel has placed reliance on the following decisions:--
(i) 2007 SCMR 1519 (Zahoor Ahmed v. The State)
(ii) 2009 SCMR 1260 ((Muhammad Tariq alias Tara v. The State)
(iii) 2008 SCMR 1623 (Samiullah v. Jamil Ahmed)
(iv) 2007 SCMR 641 (Ashfaque Ahmed v. The State)
(v) 2001 MLD 1135 (Muhammad Iqbal v. The State)
(vi) 2006 SCMR 1761 (Muhammad Ilyas and others v. Khadim Hussain)
(vii) 2006 SCMR 1801 (Dilbar Masih v. The State)
(viii) 2009 SCMR 1428 (Mst. Razia alias Jia v. The State).
7. We have heard all the learned Counsel at considerable length and have perused the record and the decisions relied upon by them.
8. P.W.1 Ashraf Ali in his deposition has stated that he was posted as S.H.O, PS, Hingorja, on 12-4- 2009 when he received information on telephone that Shoaib Sehto has been abducted. He along with other police officials reached the house of said abductee, met with his father and maternal uncle, who disclosed him the story and thereafter the instant F.I.R. Has been lodged. In the deposition P.W., Ashraf, at one place has mentioned that the accused persons were having inimical terms with Mukhtiar Hussain whereas; in the statement he has categorically denied the same. It is also noted that he has lodged the F.I.R. Against the accused persons as nominated by him, meaning thereby that the names of accused persons were not given to him either by Mukhtiar Hussain or by the abductee or by the father of the abductee. He has also stated that on 12-4-2009 he received the information about the kidnapping. He has also admitted that there is no official stamp on the daily diary entry of 12-4-2009 report at P.S. It is also noted that at one place he has mentioned that when he reached the house of abductee he met with his father and maternal uncle whereas, in the cross-examination he has mentioned that he has met with Mukhtiar only. He has further mentioned that when he reached the house of abductee the father and uncle of abductee were not available, however, when he inquired from the co-villagers they informed him about the happening of the said incident. He has further admitted that at the police station Hingorja there is no criminal record of the Sheba community or that of the accused persons. He further stated that the names of the accused persons were given to him by the maternal uncle of the abductee whereas, at other place in his deposition he has stated that accused persons were nominated by him. He has further admitted that most of the criminal cases are not reported at the police station and also stated that prior to 12-4-2009 he has never visited the place of "wardhat".
He has further admitted that F.I.R. Was written by WHC Ahsan Gilal on his dictation. He has also admitted that he has not produced the departure entry in the present case.
9. The deposition of the abductee reveals that he has mentioned that the incident took place on 27-2-2009 at 8-00 p.m., when he along with his maternal uncle Mukhtiar went to see the rotation of water of their wheat crop, where some accused persons came, who robbed his uncle and took him away along with them, after making aerial firing. He states that in his deposition that firstly the said accused persons took him and Mukhtiar, however left Mukhtiar with the directions to arrange ransom for an amount of Rs,10,00,000 for his release. He has admitted that he was severely beaten by the accused persons when he was in their captivity but it is strange to note that there is no medical report available on the record in this regard. He further stated that when the said ransom amount of Rs,900,000 was paid, the accused persons left him near an abandoned lake whereas on the other place he mentioned that his custody was handed over to Mukhtiar Hussain and Hussain Bux. He has further admitted that he does not remember the month of his release. He stated that his maternal uncle brought him to the police station where his 161, Cr.P.C. Statement was recorded on the same day. He has also admitted that there is no enmity between him and the accused persons but the accused persons have kidnapped him for ransom. He has admitted that though he has mentioned in his 161, Cr.P.C. Statement that when he and Mukhtiar were checking the rotation of water and they were having lantern and torch but in examination-in-chief nothing has been mentioned about. The said lantern. He further admitted that though the accused persons snatched away the mobile of Mukhtair but he does not remember his mobile number. He has also admitted that he had not named the 14 persons who abducted him in his 161, Cr.P.C. Statement. He also admitted that the ransom amount was not paid in his presence. He also admitted that persons from revenue department and police department used to visit Mukhtiar. He has also admitted that persons from department he has given the application to give up his father as a witness as he was not an eye-witness of the incident and that the said application was written by Mukhtiar, on whose advice the said application was moved. He has also admitted that his uncle Mukhtiar has lodged some criminal cases against Raza and others.
10. The deposition of P.W.3 Mukhtiar Hussain reveals that since he was directed by the accused persons not to register the F.I.R. Otherwise abductee would be murdered, hence he did not lodge the F.I.R. In his deposition he has categorically admitted that he has not named the accused persons in his statement. In his deposition he has stated that at the place of incident no villager reached at that time, however at another place he has mentioned that due to aerial firing made by the accused persons co-villagers were attracted. He has also admitted that he has not named Ranjhan in his 161, Cr.P.C. Statement or in examination-in-chief. He has also admitted that he visited Sheba village to inform that their people had abducted Shoaib, whereas he never approached the Police station for lodging of F.I.R., which was only at a distance of 2-1/2 kilometers from his house.
He has further admitted that the amount of Rs,900,000 was arranged by him as well as the father of the abductee and other relations, whereas from the deposition of other P.Ws. It is clear that the said amount of ransom, if any, was arranged by, Mukhtiar Hussain from his own resources. It is also noted that in the deposition of abductee he has mentioned that the amount of ransom was paid near an abandoned lake whereas, in the deposition of Mukhtiar the place of payment of ransom has not been mentioned. It is also noted from the deposition of Mukhtiar that he had informed the police about the place of payment of ransom amount but the S.P has not given him any aid in this regard. Shis statement of Mukhtiar, in our view appears, to be dubious since when he has informed the S.P about the payment of ransom of amount and about the place of "wardhat" why he has not registered the F.I.R. Against the accused persons, which creates doubt. He further admitted that abductee was not having any injury on his body, which is in contradiction with the statement given by the abductee, wherein he has admitted that he was severely tortured by the accused persons.
Mukhtiar has also admitted that all the P.Ws. And mashirs are his close relations. He has further mentioned that he has stopped the father of the abductee from recording his statement. He has also admitted that police officials used to visit him and he also used to visit them. He has also admitted that he has registered some criminal cases against Theba community. He has further admitted that the F.I.R. Was registered after the release of the abductee. He has also admitted that he has neither mentioned the names of the contributors of the ransom amount in the F.I.R. Nor in his 161 and 164, Cr.P.C. Statements.
11. Deposition of P.W.4, Shahnawaz reveals that when he heard fire shots he reached the place of incident where, Mukhtiar met him and disclosed to him that the accused persons have abducted Shoaib. Shahnawaz has mentioned that the accused persons have robbed Rs,8,000 from Mukhtiar whereas, in the deposition of Shoaib and Mukhtiar there is no mention about the amount of cash robbed by the accused persons. He has also stated that during all the time when Shoaib was in abduction the accused persons were in contact with Mukhtiar. It is also noted that the said Shahnawaz had made a wrong identification and had identified Nawab as Ranjhan and that at that time the S.P.P, requested the court to declare him hostile, which permission was granted by the lower court. He had also made assertion that he has no personal knowledge of the present case and has disclosed the matter as per the information provided to him by his brother namely Mukhtiar and that the statement given by him before the Court was on the instigation of his said brother Mukhtiar, which in our view has given a major blow to the case of the prosecution.
12. She deposition of P.W.5., Hussain Bux, reveals that when he heard firing he came to the place of "wardhat" where he met Mukhtiar who disclosed to him the story of abduction of Shoaib. He also admitted that during the captivity of the abductee the accused persons were in constant contact with Mukhtiar. He also admitted that the ransom amount was arranged by selling the cattle, gold ornaments etc. Which is totally against the deposition of other P.Ws., who have stated that ransom amount was arranged by Mukhtiar from Nekmards of the area. He has also stated that the moment Shoaib was released he was taken to the police station where Shahnawaz was already present and thereafter statements of these persons were recorded. Whereas, in the deposition of Shahnawaz, he has not stated that he was already present at the police. Station when Mukhtiar, Hussain Bux reached the police station along with abductee for recording of their statements. He has also stated that the police officials along with him visited the place of "wardhat" and recovered some empties, however it is strange to note that even after the passage of more than 40 days of the happening of the incident the empties remained at the place of "wardhat", without being noted by any person. Shis in our view also is a major blow to the case of the prosecution. He also admitted that Dawood and Ranjhan were arrested from Bus stand in presence of mashir Shahnawaz, however, it has already been noted above that Shahnawaz failed to identify Nawab and Ranjhan and was declared as hostile. It. Is also noted that the said Hussain Bux has admitted that he was not an eye-witness of the incident and whatever he has recorded in his deposition was on the basis of the facts as disclosed to him by Mukhtiar. He has further mentioned that after hearing the noise of the firing he reached at the place of "wardhat" at 8-00 p.m. Whereas, in the deposition of Shoaib and Mukhtiar they have disclosed that they were available at their land at 8- 00 p.m. And went to check water when whole episode took place which must have consumed some time however, this is not understandable that how could the time of reaching at the land by Shoaib and Mukhtiar be the same as that of Hussain Bux i,e, 8-00 p.m. Who after hearing the noise of firing, when admittedly the whole episode was over, reached there, this aspect had also remained unexplained. Hussain Bux has also admitted that he reached the place of "wardhat" with other co-villagers, whereas names of those co-villagers have not been disclosed. He has also admitted that apart from the named P.Ws. And mashirs, who were his close relations, no other person was made either P.W. Or mashir in this case. He also admitted that the case property was sealed at the spot however the said case property was not produced in the Court in a sealed condition. He has also disclosed that the abductee resides with him whereas; in the deposition of other P.Ws. It has been mentioned that the abductee lives with his father. He has also mentioned that the said amount was paid by Mukhtiar by selling cattle, gold as well as by arranging some contributions from the father of the abductee however, no evidence of selling cattle, gold and other articles was available with them. He has also stated that he along with other persons went to pay the ransom amount, which matter was not disclosed to the police, whereas from the deposition of other P.Ws. It would reveal that it was admitted that the concerned S.P. Was duly informed about the payment of ransom amount. He has also admitted that no police official used to visit his brother, whereas Mukhtiar has admitted in his deposition that not only he used to visit the police officials but the police officials also used to visit him.
13. The deposition of P.W.6. Muhammad Waris, reveals that he has admitted that when he reached the C.P Khairpur he did not ask any jail staff to act as mashir in the present case. He has also admitted that he had not produced any arrival or departure entry of the police station. He also admitted that neither he was entrusted with the investigation nor any prior permission was obtained for arresting Dawood and Ranjhan, though he had admitted that he visited the CP Khairpur to arrest the said person. He has also admitted that in the Supplementary challan section 7(e), A.S.A. Was not mentioned. He further stated that arresting the accused was the duty of the 1.0.
He also admitted that he was neither a member of JIT nor was entrusted with the duty to arrest the accused persons.
14. Deposition of P.W.7 Bashir Ahmed reveals that he was entrusted with the duty to arrest the accused persons however he handed over the file to Sijawal Khan on the instructions of his high ups. He has admitted that there was a dispute between the rival parties over wheat crop. He has also admitted that nothing is mentioned in the F.I.R. With regard to demand of ransom amount. He has further admitted that neither any entry has been produced before the court with regard to his departure from the police station nor with regard to the inspection of the place of "wardhat". He has further admitted that in the complaint it has been disclosed that Shoaib was abducted for ransom but this fact has not been mentioned in the F.I.R. He has further admitted that though it was claimed that the accused persons made aerial firing but this aspect also has not been mentioned in the F.I.R. He has further admitted that he has made no investigation with regard to the improvements made by the abductee side in the case. He further admitted that he was not aware that mashirs are real brothers. He further admitted that the WHC Saydar wrote the memo of place of "wardhat" and recovery on his dictation. He has also admitted that no foot marks were available at the place of "wardhat" whereas, in the deposition of Hussain Bux, availability of foot tracks on the place of incident was mentioned. He has also admitted that though empties were recovered from the place of "wardhat" and were sealed but these were not produced in a sealed condition before the court. He also admitted that there was no mark of identification on the case property. He has also admitted that there is no criminal record of the accused persons available at the concerned police station.
15. P.W.8. Qurban Ali has only stated about the arrest of some of the accused persons.
16. P.W.9. Sijawal Khan has stated that he has received the case papers on 23-4-2009 and on 26-4- 2009 Shoaib Ahmed was produced before him along with Mukhtiar Hussain, Hussain Bux and Shahnawaz. He has stated that he prepared the mashirnama in presence of mashirs and obtained their signatures on those mashirnamas. He has further stated that he has recorded the 161, Cr.P.C.
Statement of Shoaib, Mukhtiar, Shahnawaz and Hussain. He also admitted that he received spy information about the presence of Dawood and Ranjan at the Bus stop near Rasool Abad and that both these persons were arrested in presence of the mashirs. He also admitted that nothing was recovered from these two persons at the time of their arrest and that after the arrest these persons were brought to the police station and their 161, Cr.P.C. Statements were recorded. He also admitted that he has no information about the manner through which the abductee was released. He further admitted that when abductee was produced before him his condition looked normal both physically and mentally. He further stated that when he received police papers for further investigation, 161, Cr.P.C. Statements of P.Ws. Were already in the file. He also admitted that no attempt was made by him to collect the mobile data of Mukhtiar. He has also stated that in the 161, Cr.P.C. Statement of abductee no name of any of the accused was mentioned. He has further admitted that in the F.I.R. It has been mentioned that there was enmity between Shito and Theba community. He has also admitted that he has not recorded statement of any independent witness.
He has also admitted that the P.Ws. Have not produced any incriminating evidence against the accused persons, which may prove that the abductee was released after the payment of ransom.
He has also admitted that there are marked contradictions in the statement of Mukhtiar recorded by him and by the Judicial Magistrate. He also admitted that he did not serve notice upon the witnesses with regard to the said contradictions and has also not prepared any report in respect thereof. He has also admitted that he has denied the assertion that Mukhtiar was a police informer.
He has also admitted that abductee was not recovered by the police rather he appeared before the police station voluntarily. He has also admitted that the provision of section 7, A.T.A. Was inserted during the investigation. He has also admitted that during investigation no JIT was formed.
He has also admitted that at the time of arrest of Dawood and Ranjan no independent witness was arranged.
17. If, all the depositions of the P.Ws. Are seen in juxta position along with the material available on record, it would be seen that the case of the prosecution is not free from doubts and material contractions are evident.
18. The learned APG was categorically asked a question that whether this is a case of kidnapping simplicitor or kidnapping with ransom, since nothing has been mentioned in the F.I.R. With regard to claim of ransom money. Shough the learned APG submitted that this is a case of kidnapping for ransom; however he could not deny the fact that in the F.I.R. Nothing has been mentioned with regard to the claim of any ransom amount. The learned APG was also asked to show us from the F.I.R about the allegation of aerial firing being made by the accused persons. Again the learned APG admitted that there is no discussion about any aerial firing being made by the accused in the instant F. I .R .
19. The case of kidnapping or kidnapping for ransom are two different crimes being dealt with by sections 365, P.P.C. And 365-A, P.P.C. Since the legislature has provided different punishments, the kidnapping for ransom is considered to be more heinous than kidnapping, since kidnapping for ransom, creates fear, terror and insecurity in the society and that is why the same has also been made a part of Anti-Terrorist Act, 1997, vide section 7(e) of the said Act.
20. Now coming to the facts of the case, we have noted major contradictions and material irregularities in the case of prosecution, hence we are of the view that the prosecution has not been able to bring home the case for convicting the accused persons. It is a settled proposition of law that while dealing with the criminal cases, it is not C necessary that a bundle of facts for acquitting a person are required, rather a single evidence, which is material is enough to put a dent in the case of the prosecution and to entitle acquittal of the accused persons. Reliance in this regard may be made to the cases of 2010 PCr.LJ 261 (Ghulam Murtaza v. The State) and 2010 P. Cr.LJ 477 (Syed Muatasim Wasit alias Momi v. The State).
21. In the decisions given by the honourable Supreme Court of Pakistan in the case reported as 2014 SCMR 749 (Muhammad Zaman v. The State) and in the case of Muhammad Tayab (supra) under somewhat identical circumstances F.I.R. Was lodged after some delay, which F.I.R. Too was not registered by the father of the abductee and the honourable apex Court, apart from making other observations, stated "that in such like cases, unexplained delay in lodging F.I.R. Is fatal to the case of the prosecution". The honourable Supreme Court while giving the above judgment has placed reliance on the case reported as 2008 SCMR 6 (Akhter Ali and others v The State).
22. In the case of Muhammad Akram (supra), it was observed by the honourable Supreme Court that "benefit of doubt must be given to the accused as a matter of right and not as a matter of grace". Moreover, the honourable apex Court has further observed that "for giving a benefit of doubt, it is not necessary that there should be many circumstances creating doubt in a case even a single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused, makes him entitled to its benefit not as a matter of grace and concession but as matter of right".
While making the above observation, the 'honourable apex Court has placed reliance on the famous case of Tariq Pervez v. State (1995 SCMR 1345).
23. The decisions relied upon by the learned APG mostly talk about ignorance of minor contradictions but from the perusal of the above contractions, it is evident that these could neither be considered to be minor nor immaterial rather these are material contradictions which in our view has put a major dent in the case of the prosecution and even a single circumstance, if found reasonable, is enough to warrant acquittal of the accused.
24. In the case of Parveen Akhter referred to above, authored by one of us namely (Irfan Saadat Khan, J), it was observed that "it is a settled proposition of law that if a legal infirmity creating reasonable doubt in fulfilling the requirements of law is noted the whole case becomes doubtful and the benefit of the same is to be given to the accused". The author while making the above observations has placed reliance on the Case reported as 2008 SCMR 1572 (Faheem Ahmed Farooqi v. The State). A similar view was also taken in the case of Dr. Muhammad Ibrar, wherein also one of us namely (Irfan Saadat Khan, J) was a member of a Division Bench, which observed that "a, single circumstance creating reasonable doubt in a prudent mind about guilt of accused would make him entitled to its benefit, not as a matter of grace and concession but as a matter of right".
25. We, therefore, in light of that what has been discussed above in detail, are of the considered view that the prosecution has not been able to prove its case against the accused persons beyond any reasonable shadow of doubt, which could entail awarding of punishment given to them. We, therefore, are of the view that the Court below while giving the respective judgment has fallen into error by not properly appraising the evidence, the depositions of the witnesses in a deeper manner; hence such judgment cannot sustain, therefore, the judgment of the trial Court dated 11-9-2013 is set aside and these appeals are allowed. All the appellants are acquitted from all the charges levelled against them. They shall be released forthwith if not required in any other case.
Appeals stand disposed of as allowed.