' ABDUL RASOOL MEMON, J.---Criminal Appeal No, D-16/ 2014 and D-18/2014 have been filed by appellant Abdul Jabbar and Noor Hassan and Noor Mohammad respectively against the Judgment dated 29-4-2014 passed by court of Special Judge Anti-Terrorism, Shikarpur whereby they have been convicted under section 365/A, P.P.C. And awarded sentence to suffer imprisonment for life with forfeiture of their property and convicted and awarded sentence under section 7(e) of A.T.A. To suffer imprisonment for life. The sentences were ordered to run concurrently. However, the appellants were extended benefit of section 382-B, Cr.P.C. Since the above appeals arises from same Judgments therefore both have been heard together and are being disposed of through this single Judgment.
2. The relevant facts, briefly stated, are that on 27-4-2012 complainant Abdul Hafeez, his nephew Mohammad Umar, cousin Gul Mohammad and maternal cousin Mohammad Malook having taken night meals slept in courtyard of the shop of the complainant, which was run by the complainant himself and his nephew Mohammad Umar. At about 02.00 a.m. They woke up on voice of Motorbikes and on bulb light saw five un-identified accused on two motorcycles, three of them have K.Ks while one had T.T. Pistol and one with lathi, who on gun point abducted Mohammad Umar on motorbike asking for ransom amount. Due to fear; complainant party could not resist and remained silent. On next day they informed the neck marks of the incident and on their advice, went and lodge FIR, on 28A.2012 at 2100 hours.
3. After registration of FIR Inspector Syed Noor Ali Shah SHO Police Station Dodapur took up the investigation, reached the spot and on pointation of complainant inspected the place of incident vide memo at Ex.10/A, recorded under section 161, Cr.P.C. Statements of witnesses named in FIR.
Despite of his transfer as SHO to Police Station Mohammad Pur Odho, the investigation was entrusted to him (Inspector Syed Noor All Shah). On 11.6.2012 complainant and alleged abductee appeared before him at Police Station. He recorded statement of alleged abductee who disclosed the names of accused as Ali Jan, Nisar, Abdul Jabbar, Noor Hassan and Noor Mohammad. On 12.6.2012 having received spy information I.0 arrested accused Abdul Jabbar from Faizabad curve and on 14.6.2012 he got recorded under section 164, Cr.P.C. Statement of alleged abductee. On 20- 6-2014 accused Noor Hassan and Noor Mohammad were arrested from Nek Mohammad Curve while going to Ghulam Shah. After completing investigation challan against the accused was submitted in the Court, showing accused Ali Jan and Nisar Ahmed as absconders, both were ultimately declared as proclaimed offenders.
4. As the commencement of the trial learned Judge ATC framed the charge under section 365-A, P.P.C. And 6/7, A.T.A. 1997 against the accused/appellants to which they pleaded not guilty and claimed trial.
5. During the trial prosecution examined (PW-1) complainant Abdul Hafeez at Ex.5, he produced FIR as Ex.5/A, (PW-2) PC Mehon Khan mashir at Ex.6, he produced mashirnama of arrest of accused/ appellants at Ex.6/A and B, (PW-3) Mohammad Umar, abductee at Ex.7, he produced his 164 Cr.P.C.
Statement at Ex.7/A, (PW-4) PC Ashiq Ali mashir at Ex.8, (PW-5) Mohammad Malook eye witness at Ex.9, (PW-6) Inspector Syed Noor. Ali Shah I.0 at Ex.10, he produced memo of inspection of place of vardat, copy of roznamacha Entry Nos.7 and 10 dated 12.6.2012 and 10 and 12 dated: 20-6-2012 at Ex.10/A to C respectively, (PW-7) Mr. Zulfquar. Ali Civil Judge and Judicial Magistrate, Jaccobabad at Ex.11, he produced police letter and 164, Cr.P.C. Statement of alleged abductee and notice under section 160, Cr.P.C. At Ex.11/A to C respectively and (PW-8) Khalil Ahmed mashir, at Ex.12, thereafter close its side vide Ex.13.
6. In their statement recorded under section 342, Cr.P.C. The accused/appellants denied the allegations and pleaded their innocence. Appellant Abdul Jabbar stated that his father died in June 2011 and after his death alleged abductee demanded hand of his sister for marriage which he refused and approached the co-accused who are nekmards. He further stated that co-accused asked alleged abductee not to pressurize him, on which he was annoyed and got them implicated in this case falsely. Appellant Noor Mohammad and Noor Hassan supported the version of Appellant Abdul Jabbar. They, however, did not examine themselves on oath to dis-proof of the charge nor led any evidence in defence. The trial court at the end of trial after hearing the learned counsel convicted the appellants as mentioned above in para-I supra and also awarded sentence to proclaimed offenders Ali Jan and Nisar Ahmed on account of their absence under section, 21-L of A.T.A. Of 1997 for five years. Being aggrieved the appellants have preferred these appeals.
7. Learned counsel for the appellants contended that the FIR was belated by 19 hours; that the alleged abductee and eye-witnesses are inter-related to each other and inimically designed the concocted story of alleged abduction against the appellants; that no independent witness was produced in the case, and witnesses have contradicted each other on material points; that complainant had made dishonest improvements during trial; that alleged abductee on his own appeared at Police Station and no any evidence regarding demand and payment of ransom amount was produced, therefore, the offence of abduction for ransom within the meaning of section 365/A, P.P.C. Could not be made out by the prosecution and that learned trial court committed serious error of law by misreading the evidence on record.
8. Learned APG assisted by learned counsel for complainant, while vehemently opposing these appeals argued that the case against appellants was proved to the hilt and was supported by direct evidence of complainant, abductee and eye-witnesses Mohammad Malook, who had no previous enmity to falsely implicate the appellants; that the alleged delay in lodging FIR was fully explained in FIR as well as in the statement of complainant before the trial court. He supported the impugned judgment.
9. We have heard the learned counsel for the parties at length and gone through the evidence on record.
10. The entire prosecution case is based on the evidence of the complainant Abdul Hafeez, alleged abductee Mohammad Umar and PW Mohammad Malook, who have been examined as eye- witnesses of alleged incident. The evidence of these important witnesses being on same line is taken up and discussed together. It is an admitted fact on record that the alleged abductee was not recovered from the appellant's custody but he appeared before police on l2is own volition along with complainant. It is also matter of record that no ransom has been paid by the complainant or any other relative of alleged abductee to appellants or any other person. FIR speaks that while abducting Mohammad Umar accused asked complainant party to arrange for ransom and nothing was mentioned that how much amount was allegedly demanded as ransom but complainant and alleged eye witness Mohammad Malook as well as alleged abductee in their statements recorded before court have made a lot of improvement by deposing that accused have demanded fifty (50) lacs as ransom. Alleged abductee in his cross examination stated that after seven (7) days of his abduction all accused demanded ransom from his relatives two times through cell phone but surprisingly the complainant, who is real uncle of the alleged abductee, throughout his statement had not said if after alleged abduction of Mohammad Umar any demand of ransom was made by accused through cell phone or otherwise. As per FIR accused came on two motor bikes and on gun point abducted PW-Mohammad Umar. They due to odd hours of night remained in their home and in morning went to their nekmard informed him of incident and on their advice lodged report in police but in the court they have deposed differently.
Complainant has deposed that after going of culprits, they chased their foot prints and called tracker dogs but foot prints disappeared from them, thereafter lodged the FIR. This statement of complainant is an exaggeration from FIR. Similarly, PW Mohammad Malook introduced a new story in his statement that at the time of alleged incident all accused maltreated them but complainant is silent so also FIR.
11. It is also important to note that as per FIR all accused were unidentified to complainant and witnesses though with open faces. Complainant deposed that on return alleged abductee disclosed the names of culprits but in cross-examination he admitted that mother of accused Abdul Jabbar is his MASAT (maternal cousin) and by, birth lives in same village. For other appellants Noor Mohammad and Noor Hassan the (complainant) stated that they reside at the distance of about 6/7 KM from his village. The above statement of complainant clearly shows that one of the culprit was not only his near relative (cousin's son) but also co-villager and co-accused neighbors but even then they were shown unidentified in FIR, it creates clouds of doubt in the prosecution story. Furthermore it is beyond belief that alleged abductors, who were not only relative but resident of same village/locality without taking precautionary measures for concealing their identity, would abduct the alleged abductee and provide an opportunity to him to go without fulfilling the object of his abduction knowingly that they would face the scourge of charge after his release. All this appears to be a cock and bull story.
12. The other aspect of the case is the presence of the alleged eyewitnesses at vardat. In cross- examination complainant has stated that the house of PW-5 Mohammad Malook is adjacent to his shop (place of vardat). To a question of defence counsel about his presence at the time of alleged incident, PW Mohammad Malook replied that 'I stayed with Abdul Hafeez on his request at the night of incident'. The above statement of PW Mohammad Malook shows his presence at the scene of alleged incident as mere causal as if complainant was in knowledge of incident who got him stayed just to witness the incident. The presence of this witness, in the circumstance, appears to be doubtful. Despite the admitted fact that different caste people viz Jatoi, Brohi and Thaheem were also living in the same village of complainant where place of vardat was situated, no independent witness was cited in this case.
13. If the evidence of above witnesses is excluded, there remains evidence of PWs PC Mehon Khan, PC Ashiq Ali, Khalil Ahmed shop keeper, who acted as mashir of arrest of accused and inspection of place of alleged incident, as such their evidence is formal one. Beside them, there is also evidence of Inspector Syed Noor Ali Shah I.0 who conducted the investigation. His evidence is also contradictory to the evidence of alleged abductee. In cross-examination he (I.0) stated that abductee appeared before him on next day of his release and disclosed to have been released after 35 days but alleged abductee himself has deposed differently. He has not said if he was released by the dacoits but deposed that he himself removed chain and escaped from the captivity of accused and after two days, he along with complainant went to P.S. In these circumstances the evidence of I.0 also does not inspire any confidence.
14. PW-7 Zulfquar Ali Kamboh is Magistraie who recorded 164, Cr.P.C. Statement of alleged abductee in presence of appellant/accused Abdul Jabbar, as at that time he only was shown to have been arrested. In his 164, Cr.P.C. Statement alleged abductee has not said if complainant and alleged eye-witnesses were present with him at the time of alleged incident. As per his above statement alleged abductee was alone at the time of alleged incident. Further in 164, Cr.P.C.
Alleged abductee stated that the accused were identified on wardat but in FIR they were shown unidentified as such, the 164, Cr.P.C. Statement of alleged abductee is also inconsistent with the version given in the FIR as well as statement of complainant and the alleged eye witnesses, thus, is not helpful to prosecution case.
15. In the circumstances discussed above we are of the considered opinion that the evidence of prosecution witnesses is unbelievable and untrustworthy. It is well settled principles of law that where evidence creates doubts about truthfulness of the prosecution case, benefit of such doubt has to be given to the accused, without any reservation, therefore, for the foregoing reasons the prosecution has failed to prove its case against the appellants beyond any reasonable doubt.
16. As a result appeals filed by appellants, are accepted and by giving benefit of doubt to them, they are hereby acquitted of the charge. They be released forthwith if not required in any other case.