MUHAMMAD IQBAL MAHAR, J.---The appellant has called in question the Judgment dated 09.02.2015 passed by the learned Judge, Anti-Terrorism Court Hyderabad in ATC Case No,116/2013, whereby appellant was convicted under section 7(e) of Anti-Terrorism Act, 1997 and sentenced to suffer life imprisonment.
2. The prosecution case in nutshell is that on 20.09.2013 father of complainant Anand Kumar namely Dr. Murli Das as usual left for Rani Bagh Hyderabad for walk, in his Suzuki Cultus sliver colour Car No,AJW-968 but did not return till 7.45 a.m. The complainant disclosed such facts to his relative and neighbour Jay Parkash and Imran Memon and searched the abductee but could not find him and ascertained that he was abducted by some unknown persons. Complainant, therefore, appeared at P.S and lodged FIR.
3. During course of investigation, per prosecution case, police recovered abductee Dr. Murli Das along with his car from the appellant Muhammad Bux as such he was arrested. Besides appellant, co-accused Haji Badshah and Papu Mugheri were found involved in commission of offence and after completion of investigation challan was submitted against the appellant showing two accused namely Haji Badshah and Papu is absconders, who could not be arrested despite coercive process and were declared proclaimed offenders by the trial court.
4. A formal charge was framed against the appellant at Ex.11 to which he pleaded not guilty and claimed his trial.
5. In order to prove its have, prosecution examined P.W.1 Syed Koral Shah, the author of the FIR at Ex.13. He produced FIR at Ex.13/A, P.W.2 Abductee Dr. MurJi Das at Ex. 14, P.W. 3 complainant Anand Kumar at Ex.15, P.W.4 mashir Imran at Ex.16. He produced mashirnama of place of wardat at Ex. 16-A, P.W.5 I.O. Inspector Irfan Ali Shah at Ex.18. He produced Roznamcha entries, mashirnama of arrest and recovery, order of SSP Hyd, notice issued to abductee for recording his statement under section 164, Cr.P.C. At Ex.18/A to 18/D, P.W.6 SHO Gulshan Mehar at Ex.19, P.W.7 1.0. Akhtar Hussain Samo at Ex.
20. Thereafter prosecution closed its side.
6. The statement of appellant under section 342, Cr.P.C. Was recorded, wherein he denied the prosecution allegations and pleaded his innocence. Neither he examined himself on oath nor led any evidence in his defence.
7. The learned trial court after hearing the parties and appraising the evidence, convicted the appellant as mentioned above while case of absconding accused Haji Badshah and Papu Mugheri was kept on dormant file.
8. Learned counsel for the appellant contended that the FIR is blind and none has been nominated therein as none has witnessed the incident. He further contended that as per prosecution case on receiving spy information the I.O. Conducted raid and recovered abductee along with his car from the possession of appellant on 21.09.2013 at 4.00 p.m. But he did not join any private person from the locality in raiding party, thus according to learned counsel, there is violation of section 103, Cr.P.C. He added that the recovery of the abductee and his car from the possession of appellant has been belied by abductee himself in his deposition before the trial court, wherein he deposed that on 20.09.2013 at Asar time, police had recovered him, therefore, very recovery of the abductee on the basis of which the appellant was implicated in the case, is highly doubtful. Learned counsel submits that in view of the aforementioned contradictions and lacunas, the prosecution has failed to prove charge against the appellant. He prayed for setting aside the impugned Judgment and acquittal of the appellant.
9. On the other hand, learned Deputy Prosecutor General has supported the impugned judgment and submitted that the abdcutee along with his car was recovered from the possession of the appellant and no defence witness was produced by the appellant in support of his plea before the trial court, therefore, impugned Judgment does not call for any interference and instant appeal is liable to be dismissed.
10. We have heard learned counsel for the appellant, learned DPG for the State and have minutely perused the material available on record.
11. It is an admitted fact that no one has been nominated in the FIR IA lodged by the complainant and on the same pattern complainant has'deposed in his evidence before the trial court. The entire prosecution case hinges upon the evidence of abductee Dr. Murli Das, who is the star witness of the prosecution. He has deposed in his examination in chief as under:- "On 20.09.2013 as usual at 05.30 am being diabetic patient I had gone for walk. I used to go in my car and parked the same at Rani Bagh. As soon as I parked the car I saw two persons in front of me with open faces,. One of them taken out pistol pointed at me and blind fold me and taken me inside the car and forced my head between two front seats. They at that time kept pistol on me and directed me not to talk else I would be killed. At that time I was suffocating. After ten or twenty minutes drive I was confined in a room. Thereafter two persons came and served me food there they went on enquiring about as to how much land I possessed and what was my business etc. The same day at about Aser time police conducted raid and police straight away taken me to the Thana. My car was in police custody. The police has recorded my statement. The accused present in the court is neither from those who had abducted me nor has kept me in captivity and were present at the time the police has conductedr the raid. The culprits were young persons".
Admittedly the abductee has not implicated the present appellant in his abduction on the contrary, he clearly stated before the trial court that accused present in court was neither from those who had abducted him nor from persons who kept him in their captivity and were present at the time when police conducted raid. He further stated that the culprits were young persons. This was the reason that the learned Defence counsel choose not to cross- examine the abductee.
12. So far the evidence of I.O. Irfan Ali Shah and mashir Gulshan Mahar is concerned, they have deposed that on 21.09.2013 at 4.00 p.m. On advance information, they conducted raid at the house of one Khalid Mallah situated in Lab-e-Mehran Phase II Qasimabad and recovered abductee along with his car and arrested the appellant, however, despite information in advance they did not bother to associate any person from the locality to strengthen arrest and recovery proceedings and even did not record statement of Khalid Mallah and for that no explanation has been given.
Moreover, such version is belied by the abductee himself, who deposed that he was recovered on the very day of incident at Asar time.
13. It has also come on record in evidence of SHO Gulshan Mehar that the place of recovery of abductee was situated in front of the house of appellant which is hardly believable that he would dare to keep the abductee in Hyderabad City in front of his house in a thickly populated area and as per I.O. The said house was not belonging to the appellant. He stated that "it is correct that house from which abductee was recovered does not belong to present accused". This shows that the abductee was not recovered from the house of appellant. Furthermore when the appellant was arrested he was alone in the house to guard the abductee but no weapon was recovered from his possession or from the house. Not only this but the 1.0. Noted that when police party entered into the house, the eyes of abductee were covered with a PATTI (piece of cloth), which was removed from by the 1.0. But neither same was secured nor was produced before the trial court. Moreover no incriminating material was collected from the said house.
14. In view of the above circumstances, we are of the firm view that the prosecution has not been able to prove charge of abduction of the abductee Dr. Murli Das against the appellant beyond shadow of doubt. Accordingly, impugned Judgment dated 09.02.2015 passed by learned trial Court is set aside. Consequently, the appellant is acquitted from the charge.
14(sic.) We have allowed this appeal and acquitted the appellant by our short order dated 12.11.2015 for the foregoing reasons.