' HABIB-UR-REHMAN SHAIKH, J.---Through this appeal, the appellant has challenged his conviction and sentence of R.I. For seven years and fine of Rs,100,000 under section 324, P.P.C., in default he shall undergo R.I. For one year, R.I. For two years under section 353, P.P.C., R.I. For five years under section 13-D Arms Ordinance, R.I. For 10 years under section 7(b) ATA, awarded by the learned Special Judge Anti Terrorism Court Hyderabad vide impugned Judgment dated 10-1-2011. Benefit of section 382-B, Cr.P.C., was also extended to the appellant.
2. The prosecution case in a small compass is that on 26-5-2009 complainant SHO Ali Sher of Police Station Tando Adam on receipt of telephonic message from SPO Tando Adam, regarding presence of absconding accused of Cr.No,175/2009 Police Station Tando Adam, within the jurisdiction of Police Station Tando Adam and attempting to shift abductee Wakeel Ahmed of said crime, left Police Station along with his subordinate staff, vide entry No,19 at 1615 hours and reached at Bhitai Chowk, where SPO Tando Adam along with his staff was already available, under whose directions, they made Nakabandi on the road, during which at about 0600 hours, complainant party saw one white colour 2-D car bearing Registration No,AMW-315 having blue lamp affixed on its roof, was coming from Baqar Moi in a very fast speed. The complainant party signaled it to stop and subsequently got it stopped. Out of the car, four persons alighted with K.Ks. And straight away fired upon the complainant party with intention to kill them. The police also took position and started firing in their self defence, the encounter continued for about 15 minutes. Out of the accused persons, one person was apprehended by the police alongwith KK and a small leather shoulder bag, rest of the culprits made their escape good towards Banana orchard. On inquiry, apprehended accused disclosed his name as Mumtaz alias Laloo and also disclosed the names of escapees as Razak Jamali, Abbas Gujar and Papoo Buriro. Thereafter complainant party found one person sitting on the rear seat of the car, whose hands were tied. On inquiry, he disclosed his name as Wakeel Ahmed Hingoro and stated that present appellant Mumtaz alias Laloo along with absconding accused had abducted him on 30-5-2009. Such case was registered vide Crime No,175/2009 at Police Station Tando Adam. Police prepared such mashirnama of arrest of accused, recovery of the abdcutee, car and KK with leather bag, brought at Police Station and registered FIR on the same day at 1600 hours.
3. During course of investigation, accused Razak, Abbas and Papoo alias Ghulam Rasool were arrested and challan was submitted.
4. Formal charge against the appellant and above named accused was framed in offence under sections 324, 353, 34 P.P.C., 6/7 ATA and 13-D A.O. To which they pleaded not guilty and claimed their trial.
5. At the trial, the prosecution examined P.W.1 complainant SHO Ali Sher at Exh.33, P.W. 2 Khair Muhammad at Exh.34, P.W.3 Muhammad Waris at Exh.35, P.W.4 Shoukat Ali at Exh.36, P.W.5 Muhammad Khan at Exh.37, P.W.6 Khamiso 38 and P.W.7 Ghulam Muhammad at Exh.39 and then prosecution closed its side vide statement at Exh.41.
6. Statement of the appellant and other accused were recorded under section 342, Cr.P.C, in which the appellant denied the material put forth to him in shape of questions and claimed his innocence. He however, neither examined himself on oath nor produced any defence evidence.
7. After hearing the learned counsel for the parties, learned trial court passed the Judgment whereby co-accused Razak Jamali, Abbas Gujar and Papu Buriro were acquitted from the case and the appellant was convicted as stated above.
8. It is inter alia contended by the learned counsel for the appellant that the appellant is innocent and did not commit the alleged offence. He further contended that the learned trial court did not appreciate evidence of the prosecution in which the complainant and P.Ws. Fully admitted that there was no injured from either side nor any bullet hit to any vehicle viz. Police mobile or the car allegedly recovered from the place of incident. He further contended that it is also admitted by the witnesses that the abductee was recovered during course of encounter and mashirnama of his recovery was the same as mashir of arrest of accused. Learned counsel submitted that even the prosecution did not examine the alleged abductee Wakeel Ahmed Hingoro, who was the independent witness of the occurrence. He further contended that the Judgment passed by the learned lower court is based on presumptions and assumptions and the prosecution has failed to prove the charge against the appellant beyond shadow of doubt. He added that case bearing Crime No,175/2009 under sections 365-A, 395, 342, 412, 171, 109, 149, P.P.C. Being Special case No,45/2009 was tried by the same court in which the appellant and other accused have been acquitted vide Judgment dated 23-7-2010 by extending benefit of doubt as the abductee and other witnesses did not identify the appellant and other accused as real culprits and the present case was in continuation of the said crime, therefore, it is crystal clear that the story narrated in the FIR is false, fabricated, concocted and managed one and also full of doubt. He further submitted that on the same set of evidence, learned trial court has acquitted co-accused persons while convicted and sentenced the appellant erroneously. He submitted that learned trial court has passed the impugned Judgment by misreading and non-reading of the evidence. He prayed for allowing the appeal and acquittal of the appellant.
9. On the other hand, learned Assistant Prosecutor General supported the impugned Judgment and contended that the prosecution has proved its case beyond any shadow of doubt. He further argued that present appellant was apprehended at the spot along with abductee and crime weapon. He contended that complainant and P.Ws. Corroborated each other and the conviction and sentence of the appellant is based on sound reasons. He prayed for dismissal of the appeal.
But he fairly admitted that the case of Arms Ordinance was not proved against the appellant. He also admitted that nobody received the injury from either side.
10. We have heard learned counsel for the parties and examined the record with their able assistance.
11. Prima facie, the complainant SHO Ali Sher of Police Station Tando Adam received telephonic message that the absconding accused involved in Crime No,175/2009 are present within the jurisdiction of his Police Station. He along with his subordinate staff made Nakabandi on the link road, arrested present appellant and also recovered abdcutee of Crime No,175/2009 along with weapon and registered FIR. The mashirnama of arrest and recovery of abductee as well as weapon was prepared at the spot. The abductee namely Wakeel Ahmed was the star witness of the alleged incident, rest of the witnesses are the police officiajs and subordinates to the complainant SHO.
Thereafter he submitted the challan before learned trial court/ATA Court as the crime No,175/2009 was the case of ATA and the present case was in continuation of aforesaid crime and in the present crime, abductee of the said crime was recovered, therefore, this case was also proceeded before learned ATA Court Hyderabad. It further reveals from the record that the crime No,175/2009 was decided by the learned trial court wherein the accused persons were acquitted from the charge of abduction/ kidnapping of abductee Wakeel Ahmed vide Judgment dated 23-7-2010 as the abductee had not supported the prosecution version and he had not identified the accused persons before the trial court during trial and it is very surprising to note that the abductee who was recovered during the incident of the present case has not been examined by the prosecution.
None from either party received injury nor any bullet hit to the vehicle on recovered car from which abductee was allegedly recovered. The alleged recovered weapon was not sealed at the spot nor it was sent to the ballistic expert and the prosecution on this point has totally failed to prove its case. During arguments, learned Asstt. P.G conceded the facts that the recovered weapon has not been proved against the appellant so also he admitted that the ingredients of section 324, P.P.C.
Are also missing in the present case. When two main sections were not proved by the prosecution, the evidence on the remaining sections became doubtful and thus it is clear like mirror that the prosecution did not prove the charge against the appellant beyond any shadow of reasonable doubt.
12. We are in agreement with the arguments advanced by the learned counsel for the appellant that since the appellant was acquitted in the case of abduction of abductee Wakeel Ahmed bearing Cr. No,175 of 2009, the present case became doubtful as no evidence was brought against the appellant in the aforesaid abduction case. From the careful examination of the evidence available on record, we are of the view that the prosecution has failed, to prove charge against the appellant regarding attempt to commit murder of the complainant party and deterring them in discharge of their lawful duties etc. Even the prosecution has failed to prove the recovery of crime weapon from the possession of the appellant, which too has not been sent to the ballistic expert in order to ascertain its working condition so also failed to prove any terror or sense of fear in the society.
13. For the foregoing reasons, a reasonable doubt has been created in the prosecution case. It is well settled principle of law that benefit of doubt always goes in favour of the accused as a matter of right. Accordingly, we are inclined to allow this appeal, set aside the impugned Judgment and acquit the appellant from the charge. The appellant be released forthwith if he is not required in any other case.
14. This Criminal Appeal was disposed of vide order short order dated 21-5-2013 and the above are the reasons of the same.