1. AFTAB AHMED GORAR, J. --- By this single Judgment we, propose to dispose of abovesaid two Cr.
2. Acquittal Appeals as in both the appeals same acquittal Judgment has been impugned by the complainant and the State respectively. By these acquittal appeals, the appellants have challenged the judgment dated 30.11.2004 passed by learned 1st Additional Sessions Judge/Special Judge, Karachi Central whereby she acquitted respondents Nos.1 to 7 under section 265-H(i).
3. Cr.P.C.
4. Brief facts of the prosecution case are that complainant Muhammad Moin son of Haji Abdul Rehman lodged FIR at Police Station Bin Qasim on 12.9.1998 at about 1540 hours stating therein that on 07.9.1998 Oil Tanker of Rupali Polyester Ltd. Being driven by driver Muhammad Nawaz after filling the chemical for onward travel to Sheikhupura when came out from the main gate of the company, 6/7 persons armed with Vandas' got stopped the tanker and forcibly snatched the keys of the tanker and after making the driver and cleaner to sit with them in the same tanker, abducted and decamped them. Complainant further stated that the culprits were the persons of Haji Pathan and he recognized them as Talib Hussain Jokhio, Haji Pathan, Ahmed Ali, Shams, Nizamuddin Bhutto and added that he would recognize others whenever they are produced before him.
5. Complainant further stated that he gave such information to his supervisor and made search for the tanker. According to him, during the search they found the tanker with another tanker No, LSB- 4996 parked at Jamil Petrol Pump situated on National High Way along with drivers and cleaners of the tankers. The drivers and cleaners were in custody of the Men of Haji Pathan as hostages. He further alleged that Haji Pathan and his accomplices had snatched the tanker and abducted driver and cleaner because they wanted to supply the company's chemical in their own tankers whereas the same was being supplied by the company itself. Accordingly report was lodged under sections 395/365/34; P.P.C. Against Haji Pathan, Shams, Nizamuddin Bhutto, Talib Hussain Jokhio and Ahmed Ali at Police Station Bin Qasim.
6. After registration of the FIR police raided Jamil Petrol Pump situated on National High Way on the same day i,e.
7. 12.9.1998 and recovered tankers No,KL-1729 and LSB-4996 along with the drivers and cleaners.
8. On 23.9.1998 after usual investigation challan was submitted before the competent Court of law for offences under sections 343/365-A/395/34, P.P.C.
9. A formal Charge was framed against the accused persons to which they pleaded not guilty and claimed to be trial.
10. The prosecution, in order to prove its case against the accused/respondents, examined PW-1 Complainant Mohammad Moin (Ex.10) who produced FIR (Ex.10/A), Memo of Inspection of place of vardat (Ex.10/B), Memo of arrest and recovery (Ex.10/C), Pointation of place of vardat (Ex.10/D), PW-2 Mohammad Nawaz (Ex.12) who produced Memo of Pointation of place of vardat (Ex.12/A), PW-3 Sajjad Ali (Ex.13) who produced form 'G', Certificate of Registration (Ex.13/A), PW-4 Khan Mohammad (Ex.14) who produced Certificate of Registration (Ex.14/A), PW-5 Ghazanfarullah (Ex.15), PW-6 Shaikh Mohammad Akhtar (Ex.16) who produced letter of All Pakistan Oil Tankers Owners Association (Ex.16/B), Letter dated 07.9.1998 of Rupali Polyester Ltd. (Ex.16/C), Reply of All Pakistan Oil Tankers Owners Association (Ex. 6/D, Ex.16/E and Ex.16/F), PW-7 Inspector/I.O. Mohammad Ayub (Ex.18) who produced letter addressed to Illaqa Magistrate Bin Qasim (Ex18/A) and Notice issued to accused persons (Ex.18/B), PW-8 Sikandr Amin Phoore (Ex.20) who produced 164, Cr.P.C. Statements of Khan Mohammad and Ghazanfarullah (Ex.20/C and Ex.20/D), letter of IVth Judicial Magistrate addressed to Nazir to keep the statements under section 164, Cr.P.C. In safe custody (Ex.20/E). Special Public Prosecutor filed statement dated 23.8.2003 (Ex.21) giving up P.Ws Tanveer Khan and Major (Retd.)
11. Azhar Hameed. Thereafter prosecution side was closed vide statement (Ex.22).
12. Thereafter statements of accused persons under section 342, Cr.P.C. Were recorded at Ex.16 in which they denied the prosecution allegations and pleaded that they had been falsely involved in the case. Accused Shams and Haji Pathan showed their willingness to examine witnesses in their defence and also to examine themselves on oath under section 340(2), Cr.P.C. However, accused Shamsuddin examined himself on oath but he did not produce any witness in his defence, whereas accused Haji Pathan neither examined himself on oath under section 340(2), Cr.P.C. Nor produced any witness in his defence.
13. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing the counsel for the parties, learned 1st Additional Sessions Judge/Special Judge, Karachi Central vide impugned judgment acquitted the accused/respondents Nos.1 to 7. In the instant appeals the said judgment of acquittal has been impugned by the complainant and the State respectively.
14. Syed Maroof Ali, learned counsel for the complainant/appellant contended that the trial court erred on facts and in law while passing the acquittal order which is based on surmises and conjectures. According to him, the evidence of the prosecution witnesses in the absence of valid and cogent reasons cannot be discarded by simply holding that they are partisan and interested witnesses. He further argued that the trial Court erred in appreciating the evidence of the prosecution witnesses particularly the abductees who have categorically involved the accused persons in the commission of the alleged offence. He further contended that the trial Court did not take into consideration the fact that the evidence of the prosecution witnesses is corroborated by recovery of detenues and oil tankers from the custody of the accused persons. According to him, the recovery cannot be rejected simply on the ground that the mashirs of recovery belonged to complainant's company particularly when the place of recovery was an abandoned place situated at National Highway. He further contended that the trial Court while holding that section 365-A, P.P.C. Was not attracted in the case, failed to consider that for constituting offence under section 365-A, P.P.C. It is not necessary that ransom should be only in the shape of money. He prayed for setting aside the acquittal order.
15. Learned A.P.G. Appearing for the appellant in Cr. Acq. Appeal No,33/2005/State submitted that abductee Mohammad Nawaz is driver of the truck and Sajjad Ali is the cleaner whereas truck driver and cleaner of another truck are Khan Mohammad and Ghazanfarullah respectively and they were detained by accused persons in under-construction Jameel Petrol Pump. However, learned A.P.G.
16. Showed his ignorance as to whom the said petrol pump belongs. According to him, two abductees were recovered from one room and two other abductees were recovered from another room. He further submitted that the accused were arrested by the police at the said petrol pump while they were armed with dandas. However, learned A.P.G. Could not confirm from the record as to whether both the said rooms were in exclusive possession of the acquitted accused. He further submitted that there was dispute over the contract but, according to him, it does not mean that on the basis of the said dispute offence could have been committed by the accused persons. Learned A.P.G.
17. Frankly conceded that section 365-A, P.P.C. Is not attracted in the case. He. However, contended that the delay of five days in lodging of FIR has been explained.
18. Conversely, Mr. Mohammad Farooque, learned counsel for respondents Nos.1 to 7/acquitted accused, while supporting the impugned judgment, contended that the impugned judgment passed by the trial court is just and proper and sound reasons have been assigned for passing the same. He further argued that there was dispute over the contract of supply of chemical between the complainant and appellant Haji Pathan and on account of such dispute/enmity the accused persons were involved by the complainant. He further argued that there was delay of five days in lodging the FIR, therefore the possibility of concoction and false involvement of the accused in the case cannot be ruled out, particularly when no plausible explanation has been furnished by the complainant for inordinate delay. He further contended that although all the accused persons were alleged to be armed with 'dandas' at the time of commission of the alleged offence but only one danda was recovered from one acquitted accused. He prayed for maintaining the acquittal order and dismissal of the instant acquittal appeals.
19. We have given due consideration to the evidence on record in the light of arguments addressed by the learned counsel for the parties. Complainant/State have filed the present appeals against acquittal of the accused/respondents. It needs no reiteration that there is marked difference between appraisement of evidence in appeal against conviction and an appeal against acquittal.
20. In appeal against conviction appraisal of evidence is done strictly and in appeal against acquittal.
21. The same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis/appreciation of evidence on record. In the acquittal appeal, interference is made by this Court only when it appears that there has been gross misreading of evidence which amounts to miscarriage of justice. In an appeal against acquittal, this Court would not, in principle, ordinarily interfere and instead would give due weight to the findings of the Court acquitting the accused. The Court would not interfere with acquittal merely because of re-appraisement of evidence it comes to the conclusion different from that of Court acquitting the accused provided both the conclusions are reasonably possible. Ordinarily, scope of appeal against acquittal of accused is considerably narrow and limited. The criteria laid down for appeal against acquittal is entirely different than the criteria of hearing of appeal against conviction. Reference can be made to the case of Muhammad Usman and 2 others v. The State (1992 SCMR 489).
22. It appears that in the instant case the learned trial Court has elaborately discussed each and every point involved in the case and has assigned sound and cogent reasons for its findings. Prosecution has not been able to prove its case against the accused/respondents.
23. There is inordinate delay of five days in lodging the FIR and no plausible explanation has been furnished by the complainant for such delay. The only reason assigned for delay of five days in reporting the matter with the police by the prosecution is that the complainant was waiting for instructions from the owners. It may be pointed out that PW-6, Shaikh Muhammad in his deposition stated that in between the night of 7th and 8th September 1998 he received telephonic call that during search two robbed oil tankers were found by complainant Moin at Jamil Petrol Pump. It is not understandable that despite this, as to why the complainant did not report the matter to the police and waited for five days and what was the fun in keeping the matter in abeyance. This smacks something foul on the part of the complainant party and in these circumstances false involvement of the accused persons cannot be ruled out.
24. Although there are seven eye-witnesses of the alleged incident but it is well settled principle of law that where there is a background of enmity, the appraisement of the evidence of eye-witnesses is to be based on full consideration and evaluation of all the circumstances of the case. In such a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. In the instant case the eye-witnesses are the employees of Rupali Polyester Ltd. And admittedly there was dispute of the company owners with accused Haji Pathan, therefore the trial Court has rightly held that they were interested witnesses. The trial Court has very elaborately quoted the relevant portions from the cross-examination of the prosecution witnesses which show that there are material discrepancies and contradictions in their evidence. No independent witness, more particularly any employee of Port Qasim Authority, was associated as witness in the case although the incident admittedly took place only 100/150 paces away from the main gate of Port Qasim. It is also worth-noting that it has also come in evidence that accused Shafiq and Sultan at the time of alleged offence of snatching of two tankers were not present at the spot, nor they were available at the place of confinement of the drivers and cleaners of the tankers.
25. It seems that that there are glaring contradictions in the statements of the prosecution witnesses.
26. Besides, there is also violation of section 103, Cr.P.C. And very strangely the abductees themselves were made mashirs of recovery. Needless to emphasize that provisions of section 103, Cr.P.C. Are mandatory in nature and the same are meant to guard against possible manipulation, therefore it is necessary that the attendance of independent witnesses should be secured to attest the recovery and failure to do so casts doubt on the factum and veracity of recovery. These provisions are intended to eliminate and guard against chicanery and concoction to minimize manipulation and false implication. It is also a settled principle of law that interested witnesses cannot be relied upon to prove recovery. In this connection if any authority is needed, reference may be made to 1987 SCMR 117 and PLD 1988 Karachi 409. The learned trial Court has dealt with this point in an elaborated manner and we are in full agreement with the findings of the trial Court.
27. Yet there is another important aspect of the matter. Although the accused have also been involved under section 365-A, P.P.C. Which relates to an offence of abduction for ransom, but it appears that none of the prosecution witness has deposed that any demand for ransom passed on to the complainant or the owners/management of company. In the case reported as Rahat Ali v. The State (2001 PCr.LJ 98) a Division Bench of this Court held as under: "According to his testimony after searching for the missing baby, who was his sister's daughter, he returned to his job at about 4-00 p.m. And then at 5-00 p.m. He received a telephone call demanding the said ransom............. Under cross-examination the witness has steadfastly adhered to his statement regarding receipt of telephone call. The other piece of evidence regarding the demand of ransom is the deposition of Syed Naeeemuddin, Investigating Officer, who has stated that a telecard was obtained from the pocket of Mubashir, which was also produced in the learned trial Court but not exhibited. He has also stated that the Mushirnama of recovery Exh. 12-C mentions the telecard as having been recovered from accused Mubashir.
28. Under.Cross-examination he admits that no separate Ma.Shirnama of recovery of the telecard was prepared by him and also that in the said Mashirnama of recovery, it is not stated that the telecard was recovered from the pocket of the accused. It is also admitted by the Investigating Officer that the telecard was not sent to any Expert to establish whether it was expired or not. In these circumstances, in our opinion, it has not been established beyond reasonable doubt that in fact any demand for ransom was made by any of the accused as the testimony of P.W.
29. Mohammad Anwar has not been corroborated by any of the other P.Ws and also the telecard has not been produced in evidence and neither was it was sent for any technical examination so as to establish whether it had expired or not. Consequently, the ingredients of section 365(A) viz. Kidnapping for ransom have not been satisfied as far as the present appellants are concerned."
30. In the case of Irshad All alias Ishoo and 2 others v. The State reported in PLD 2006 Karachi 178 another Division Bench of this Court following the principle laid down in the abovesaid case of Rahat Ali, supra, held, "In these circumstances, in our opinion, it has not been established beyond reasonable doubt that in fact any demand for ransom was made by any of the accused as the testimony of P.W. Mohammad Ayoob has not been corroborated from an independent source or any sort of other evidence."
31. In view of above, we are in concurrence with the trial Court that insertion of section 365-A, P.P.C. In the case was not warranted under the law.
32. Needless to emphasize that the accused were entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which created doubt in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v.
33. The State (1995 SCMR 1345) the Honourable Supreme Court held as under:- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.
34. For the above stated reasons, we have come to conclusion that learned trial Court has rightly acquitted the accused persons by extending the benefit of doubt.
35. The upshot of above discussion is that we do not find any justification for interfering with the acquittal order impugned in these appeals. Consequently, both the Cr. Acquittal Appeals are dismissed. Above are the reasons for our short order passed on 19.01.2016.