1. ' ABDUL RASOOL MEMON, J.---This common judgment shall dispose of instant Cr. Appeals preferred by applicants/ convicts namely Nooral alias Nooro, Sadoro, Imamuddin, Muhammad Ayub and Momin against judgment dated 6-11-2012 passed by the learned Judge Anti-Terrorism Court, Khairpur whereby they were convicted and sentenced in the following manners:--
(i) Under section 365-A, P.P.C. r/w section 149, P.P.C. To undergo R.I. For life imprisonment and forfeiture of their movable and immovable property to State.
(ii) Under Section 7(e) of A.T.A to suffer R.I. For life imprisonment and forfeiture of their movable and immovable property to State.
(iii) Under Section 342 R/W Section 149, P.P.C. To undergo one year's R.I. With fine of Rs,3000 each and in default thereof to undergo 15 days' S.I.
(iv) Appellants/convict Nooral and Sadoro were also convicted under section 13 (e) A.O. To undergo five years' R.I. With fine of Rs,50,000 and in default thereof to undergo one year's R.I.
2. Further.
(v) While appellant Nooral was also convicted under Section 21-L of A.T.A to suffer RI for 5 years with fine of Rs,50,000 and in default thereof to undergo one-year's R.I. Further.
(vi) No benefit of Section 382-B, Cr.P.C. Was extended to the appellants/convicts and sentences awarded to them were ordered to run consecutively.
3. ' Facts unfolded in the FIR are to the effect that on 24-7-2003 at 8.30 p.m. Complainant Noor Ahmed, his brother Nisar Ahmed and maternal cousin (Phupat) Abid Ali by foot were going to village Daro and reached at link road near village Mehral Ujjan, eight armed men intercepted and took them away inside banana garden; after enquiring names etc, complainant was released with direction to make arrangement for ransom and contact them in village Kariyo; however, accused abducted Nisar and Abid Ali and went away towards River Indus; complainant identified three culprits as Nooral alias Nooro, Zangejo and Amoo with K.K and Sadoro with gun. Accused Nooral while talking with unknown accused called their names as Ghulam Sarwar Narejo, Momin Kori, Tasleem Narejo, Dodo Jiskani and Hameed Jatoi; complainant went to village Daro, narrated the incident to Manzoor Hussain and Ghulam Asghar who chased the accused. Complainant after few days took ransom amount with both witnesses contacted all the eight accused for the return of abductees who kept them on false hopes on one or other pretext and ultimately on 23-9-2003 they accepted the ransom and promised the release of abductees on 24-9-2003, who came in village and informed that they were released at Railway Station Sitta wherefrom through train they reached at Khairpur and then to their village. Both abductees also disclosed same names of culprits. Complainant lodged FIR as mentioned above, hence this case.
4. ' After completion of investigation, the appellants/convicts and co-accused namely Imamuddin alias Imam Bux, Ghulam Sarwar alias Akan, Tasleem, Dodo, Hameed, Khadim Hussain, Hakim Ali, Gul Hassan, Juman, Javed and expired accused Noorullah were sent up to face the charge, to which they pleaded not guilty and claimed trial. In order to prove accusation, the prosecution examined as many as 15 (fifteen) witnesses.
5. ' In statements under section 342, Cr.P.C. Of the accused, they denied the allegations and pleaded their innocence, they however, did not examine themselves on oath in disproof of charge in terms of Section 340(2), Cr.P.C. Nor produced any witness in their defence. On conclusion of trial, the learned trial court convicted and sentenced the appellants/convicts as mentioned above.
6. ' Mr. Qurban Ali Malano the learned counsel for appellants/accused namely Sadoro and Muhammad Ayub has argued that there are material contradictions in between the statements of witnesses; that the complainant allegedly received letters by posts got written through abductees by absconding accused Dodo Jiskani but said letters were neither produced before Investigating Officer nor in the trial court; that there is delay in lodging of FIR though per complainant they identified the accused on the very day; that nothing is mentioned that to whom the amount of ransom was paid; that the statement of complainant Noor Ahmed, abductees Abid Ali and Nisar Ahmed on the point of kidnapping are not consistent, while on the point of payment of ransom, the prosecution witnesses namely Manzoor and Asghar Ali have not supported the prosecution version.
7. Mr. Rukhsar Ali Junejo the learned counsel for appellants/convicts namely Nooral alias Nooro and Momin had also taken same plea as of Mr. Malano and has placed reliance on the case of Muhammad Tufail v. The State (2013 SCM R 768) while Mr. Syed Sarkar Ali Shah learned A.P.G has argued that evidence of prosecution witnesses is consistent as abductees Abid Ali, Nisar Ahmed and complainant Noor Ahmed have supported prosecution case. Moreover recovery of arms have been established on the pointation of accused Nooral and Sodoro, therefore the prosecution has proved its case for offences under sections 365-A, 342 r/w S.149, P.P.C. 7 and 21(L) of A.T.A and 13(e)
8. Arms Ordinance, thus the judgment of trial court is in accordance with law and does not suffer from any infirmity.
9. ' We have given our anxious consideration to the arguments advanced at bar and have gone through the record with the assistance of parties counsel.
10. While hearing the learned counsel for the appellants, we find that there are certain unexplained facts and weaknesses in A the prosecution story which makes the whole case doubtful. To start with matter, it is the case of prosecution that complainant Noor Ahmed, his brother Nisar and phupat Abid Ali while going to village Daro were abducted by eight armed persons but later on complainant was let free to make arrangement for ransom and according to complainant, all the culprits were with open faces and he had identified three of them as Nooral, Sadoro and Imamuddin . The report of alleged incident was registered after two months of the incident when the abductees said to have been released.
11. No doubt in cases involving kidnapping of young persons for ransom, parents as well as police invariably try their best to locate the victim rather than promptly lodge FIR for fear of death of victim but in the case in hand the accused were already known to complainant and as per FIR, the culprits had asked for contact with them in particular village Kariya and complainant himself stated in FIR that he and witnesses namely Manzoor Hussain and Ghulam Asghar continuously remained in contact with accused who kept them on false hopes, even then no FIR was registered for about two months, by not doing so, there is every apprehension and could be said that FIR was registered after due deliberation and consultation and in B such circumstances there is every possibility of false implication of accused in the case, as nothing is brought on record to show as to what circumstances restrained him from registration of FIR. It creates clouds of doubt in the prosecution story. Even otherwise it is beyond to believe that abductor who is already known to complainant without taking caution and precaution to conceal his identity, would release him to go and arrange ransom to pay in a particular village knowing that they would face the scourge of charge after release of complainant . All this Prosecution examined complainant Noor Ahmed both abductees Nisar Ahmed and Abid Ali as star and important witnesses of case. Learned trial court has placed reliance and believed the evidence of these witnesses. We have minutely gone through the evidence of these important prosecution witnesses with the assistance of learned counsel for the appellants/convicts, who has pointed out towards a number of contradictions in their evidence. Though FIR was registered after two months of the alleged incident and return of both abductees nowhere it is mentioned as to how much amount of ransom was paid, who received it or where the alleged payment was made, but complainant Noor Muhammad in his statement made before the trial court has made lot of improvements by deposing that he had received letters duly written by both the abductees through post and in pursuant thereof he paid Rs, 500,000 (Rupees Five Lac) to absconding accused Dodo Jiskani in Saad Belo Sukkur and on next day of payment abductess were released. In cross-examination complainant has further stated that he received 2/3 letters from accused Dodo Jiskani allegedly got written through abductees Nisar and Abid Ali for ransom (it is important to note that said letters were neither produced before I.O. Nor in the court during trial). Surprisingly both abductees Nisar and Abid throughout of their statements have not stated a single word if they had written a letter to complainant for payment of ransom to accused persons, even not said as to how much ransom was demanded or how much payment was made to accused persons. Both the abductees have deposed that they have identified all the eight culprits involved in the case but the FIR was admittedly registered after their return and only the names of three accused viz, Nooro, Sadoro and Imamuddin were mentioned. As per FIR both the abductees after their release from captivity of dacoits came through train from Railway Station Seeta to Khairpur and then their village. This version given in the FIR is not supported by the abductees. They have deposed quite differently P.W/abductees Abid Ali in cross-examination has stated that accused paid Rs,200 and released them there, he and Nisar Ahmed came through train from Seeta to Rohri in night hours, they made a telephone call from PCO to their relatives, who arrived at Rohri Station and took them away to their village. It is important to note that P.W/abductee Nisar Ahmed has not said if Rs,200 had been paid by the culprits to them or they came by train at Rohri Station or they called their relative through telephone who received them at railway station Rohri. P.Ws. Asghar Ali and Manzoor Hussain are not eye-witnesses of the alleged incident but as per FIR they both were present with complainant when ransom amount was offered and paid to all the eight accused. It is pertinent to mention here that both these witnesses have also not supported the above version of complainant given in the FIR. P.W. Asghar has deposed that he cannot say if present accused are involved in the commission of offence. P.W. Manzoor has stated that he was informed by complainant about payment of ransom to culprits. Both these witnesses have not said if complainant in their presence had ever approached the culprits or offered the ransom to them.
12. ' The above glaring untrustworthy, unreliable and contradictory evidence of prosecution could not be said to have establish the charge of abduction for ransom against the appellants/convicts beyond any reasonable doubt.
13. ' So far charge of production of K.K. On the pointation of appellant/accused Nooral alias Nooro and shot gun by appellant/convict Sadoro is concerned, according to prosecution case on 6-10-2003 both the accused arrested from Daro More in presence of mashirs Rahim Bux and Ali Gul who during interrogation admitted their guilt before I.O. Of the case and voluntarily led the police towards lands of Syed Nawab 11i Shah and from waste of banana took out K K and gun allegedly used in the Submission of offence and produced before I.O. .Which were recovered in presence of mashirs. This story is set up by prosecution regarding the arrest of appellants/convict is falsified by both the abductees by deposing that as soon as they were released and arrived at home they came to know about accused Nooro and Sadaroo in police custody. P.W. Nisar Ahmed in cross- examination deposed that on 23-9-2003 he went to Police Station to see accused. It indicates that appellants/convicts Sadoro and Nooral were already arrested before the date shown in the mashirnama as deposed by mashirs and I.O. It is settled principle of law that if the statement of a witness is not believed on one aspect, veracity of his statement on other aspect is also reduced to nil. The evidence of mashirs Rahim Bux and Ali Gul and I.O. In the circumstances appears as not inspiring confidence and trustworthy.
14. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principles of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not as grace. It was observed by the Hon'ble Apex Court in the case of Tariq Bashir v. The State (1995 SCM R 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is single circumstance which created reasonable doubt in the prudent mind about the guilt of the accused, then the accused would be entitled to its benefit not as a matter of grace and concession but as a matter of right.
15. In the above circumstances, while allowing these appeals, we set aside the impugned judgment and acquit all appellants/convict by extending them benefit of doubt. The accused namely Nooral alias Nooro, Sadoro, Muhammad Ayoob and Momin are in jail and they shall be released forthwith if not required in any other case.