ABDUL MAALIK GADDI, J.---By this common judgment, we intend to dispose of the above-cited criminal acquittal appeals, as they arise out of the same incident, involving common question of law and facts as well as the impugned judgment having been delivered by the same learned trial Court on same date i.e. 22.05.2014.
2. Through the captioned criminal acquit tal appeals, the appellants named above have assailed the legality and propriety of the judgment dated 22.05.2 014, passed by the learned Judge, Anti-T errorism Court Hyderabad at Hyderabad in (1) ATC Case No.38/2012 (re: The State v. Ghulam Nabi and others ) arising out of Crime No.80/2012 of Police Station Hatri, under sections 365-A, 34, 109, P.P.C.; (2) ATC Case No.39/2012 (re: The State v. Ghulam Nabi and others ), arising out of Crime No.88/2012 of Police Station Hatri, under sections 324, 353, 147, 148, 149, 109, P.P.C.; (3) ATC Case No.6 8/2014 (re: The State v. Ghulam Nabi), arising out of Crime No.89/2012 of Police Station Hatri, under section 13(d) Arms Ordinance; (4) ATC Case No.69/2014 (re: The State v. Ali Sher ), arising out of Crime No.90/2012 of Police Station Hatri, under section 13(d) Arms Ordinance; (5) ATC Case No.70/2014 (re: The State v. Muhammad Anwar ), arising out of Crime No.91/2012 of Police Station Hatri, under section 13(d) Arms Ordinance; and (6) ATC Case No.71/2014 (re: The State v. Hullio ), arising out of Crime No.92/2012 of Police Station Hatri, under section 13(d) Arms Ordinance, whereby while disposing of all the aforementioned ATC cases through one and same judgment, the learned trial Court after full dressed trial, acquitted the private respondents by giving them benefit of doubt.
3. The brief facts of FIR No.80/2012 of Police Station Hatri, under sections 365-A, 34, 109, P.P.C., are that on 07.08.2012 at about 2100 hours complain ant Hakeem Ali reported at Police Station Hatri that he runs buffalo pond at Bhans Colony and another buffalo pond was being run by Karim Ali and they both used to go to their ponds daily in early morning. On 2.1.04.2012, he and Karim Ali as usual were going to their respective ponds on separate motorcycles; when they reached at Hala Naka in front of WAPDA Grid Station, he saw one Mehroon coloured Toyota car came and stopped Karim Ali and then five persons alighted from that car and forcibly him sit in the said car and went away . It is further stated that he (complainant) informed Ali, bother of abductee Karim Ali, who arrived there and they searched Karim Ali on their own; thereafter , complainant received phone calls from different numbers and caller disclosed his name as Ghulam Nabi Kalhoro and disclosed that Karim Ali was with him and they should arrange Rs. Ten lac random for his release otherwise they would kill him. Then complainant tried his level best to get the abductee released but failed, thereafter , he lodged such FIR.
4. 'The facts of FIR No.88/2012 of Police Station Hatri, under sections 324, 353, 147, 148, 149 and 109, P.P.C., are that when Inspector Altaf Arain of CIA Hyderabad was on his duty on 20.05.2012, he received spy information that kidnapee Karim Ali Khowaja was made to sit by seven armed persons under the trees of Khamiso Faqeer Grave Yard, therefore, he along with his staff reached at the pointed place at about 1600 hours and alighted from their vehicles, but the culprits started firing straight upon the police party whereupon the police also fired and that after sometime the firing stopped end police party entered the grave yard, where one person whose eyes were folded with cloth raised his hands and disclosed his name as Karim Ali Khowaja. It is further stated that in the meantime three culprits succeeded to run away from there while four culprits namely Ghulam Nabi Kalhoro, Ali Sher, Muhammad Anwar and Huliyo Baghri were over-powered and that their weapons were secured by the Inspector and that they disclosed the names of the absconding accused as Fouji Laghari, Faiz Muhammad Lashari and Piaro Kacchi. As per FIR, the Inspector then brought the kidnapee and accused persons at Police Station and registered the FIR as Crime No.88/2012 under sections 324, 353, 147, 148 and 149, P.P.C. so also separate cases for recovery of illicit weapons were also registered against them as Crime Nos.89 to 92 of 2012.
5. On conclusion of the investigation, challans in the aforesaid FIRs were submitted against the private respondents.
6. At trial, both the aforementioned cases (Crime Nos.80/2012 and 88/2012) were ordered to be tried jointly and therefore, joint charge was also ordered to be framed against the accused/respondents. Thereafter , the learned trial court framed charge against the accused/respondents at Ex.10, to which they pleaded not guilty and claimed trial by their respective pleas at Exs.1 1 to 17, respectively .
7. Thereafter , the prosecution in order to prove its cases against the accused/respondents examined complainant Hakeem Ali at Ex.19, who produced the FIR at Ex.19-A; P.W/mashir Nazeer Ahmed at Ex.20, who produced mashirnama of place of abduction at Ex.20-A; P.W/abductee Karim Ali was examined at Ex.21, who produced his 164, Cr.P.C. statement at Ex.21-A; P.W/H.C. Abdul Razzaq was examined at Ex.22; mashir of encounter and arrest; P.W/SIP Ghulam Raza was examined at Ex.23, Civil Judge and Judicial Magistrate Mr. Ahsan Ali was examined at Ex.25, who produced application of the I.O. for recording 164, Cr.P.C. statement of abductee .Karim Ali at Ex.25-A, thereafter , learned DDPP vide his statement Ex.26 gave-up P.W. SIP Shahid Aijaz; P.W/CIC Altaf Hussain was examined at Ex.36, who produced letter addressed to Inspector Altaf Arain CIA Hyderabad that he had been appointed as I.O. of the case, therefore, the original case papers were being handed over to him for completion of Karwai within 14 days at Ex.36-A, Roznamcha Entry No.12 at Ex.36-B, FIR of Crime No.88/2012 registered under sections 324, 353, 147, 148 and 149, P.P.C. at Ex.36-C, FIRs under section 13(d) of Arms Ordinance being Crime Nos.89/2012 to 92/2012 at Exs.36-D to 36-G, respectively , mashirnama of arrest of accused Shoukat Ali at Ex.36-H, Roznamcha entries Nos.9 and 11 at Ex.36-I and notice addressed to the accused for identification parade at Ex.36-J, notice to Hakeem Ali for his 164, Cr.P.C. statement at Ex.36-K, letter of the I.O. addressed to SSP Hyderabad for phone call details at Ex.36-L, mashirnama of arrest at Ex.36-M and mashirnama of arrest of accused Piaro at Ex.36-N. Thereafter , the learned DDPP closed the prosecution side vide his statement at Ex.37.
7. Thereafter , statements of accused/private respondents were recorded under section 342, Cr.P.C. at Exhs.38 to 43, in which they have denied the prosecution allegations of kidnapping and demanding Bhatta as false so also recovery of abductee and firing at the police party with intention to kill which if had resulted in death they would be guilty of Qatl-i-Amd; they have also denied the prosecution allegation as false about recovery of abductee from Khamiso Faqeer Grave Yard and their arrest and recovery of weapons from them; they have also stated that recovery of weapons has been foisted upon them; they also denied the involvement of co-accused Shoukat who during pendency of the case had died and his case stood abated, in the present case; as regards the sense of fear and insecurity in the people of society and terrorism all the accused/respondents have stated that they have not committed such offence/act; about the P. Ws, the accused/respondents have stated that they are interested. None of the accused/respondents examined defense witness. Accused/respondent Ghulam Nabi in his statement under section 42, Cr.P.C. has further stated that on 20th May 2012, SSP Hyderabad held conference in which he had disclosed that kidnapee was recovered from Manjhand District Jamshoro and alleg ed kidnapee also disclosed that continuously his eyes tied so he cannot identify the accused persons and that news were published. He produced news paper daily Sindh at Ex.D/1. He further stated that the alleged encounter was fake; whereas the remaining accused/respondent have stated that their further statements were same as that of co-accused Ghulam Nabi.
8. Learned trial Court after hearing the learned counsel for the parties and examining the evidence available on record, acquitted the accused/responden ts through impugned judgment as stated above. Hence these acquittal appeals.
9. Learned trial court in the impugned judgment has already discussed the evidence led by the prosecution in all 06 cases, in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition.
10. It appears from the record that the captioned criminal acquittal appeals were filed on 20.06.2014 and 21.06.2014, respectively , and repeatedly notices were issued to the private respondents and their counsel, but despite service of the same they failed to cause their attendance before this Court to argue the instant appeals except accused/respondent No.3 (Ali Sher), therefore, under the circumstances, on the last date of hearing viz. 10.10.2018, learned counsel for the appellants were directed to come prepared on the next date of hearing (today) and argue these acquittal appeals on merits. Today , learned counsel for the appellants in both acquittal appeals appeared and they have been heard at length.
11. Mr. Aslam P. Sipio, learned counsel for the appellant in Cr. Acquittal Appeal No.D-1 1 of 2014 and Syed Meeral Shah Bukhari, learned Additional Prosecutor General appearing for the appellant (The State) in Cr. Acquittal Appeal No.D-12 of 2014, have contended that the impugned judgment passed by the learned trial Court is illegal, perverse and the reasons are artificial, vis-a-vis the evidence on record; that the grounds on which the trial Court proceeded to acquit the private respondents are not supportable from documents and evidence available on record; that the private respondents have been directly charged and that discrepancies in the evidence of the prosecution witnesses are not so material on the basis of which respondents could be acquitted; that the learned trial Court has based its findings of acquittal merely on the basis of minor contradictions on non-vital points in the evidence of prosecution witnesses; that the prosecution evidence has not been properly appreciated; therefore, under these circumstances they were of the view that the captioned acquittal appeals may be allowed as prayed.
12. As observed above, none on behalf of the private respondents has appeared except respondent No.3 (Ali Sher), who submits that the judgment passed by the trial Court is perfect in law and on facts; that he is innocent; that he has not played any role in the commission of the alleged offence(s); that these appeals were filed in the year 2014 and the cases pertain to year 2012 and since then he is appearing before the learned trial Court as well as before this Court; that the reasons of acquittal as given by the learned trial Court are convincing/plausible and in accordance with the documents as well as evidence available on record; therefore, according to him, the impugned judgment needs not to be interfered.
13. Heard the learned counsel for the appellants as well as respondent No.3 in person and perused the record.
14. We have gone through the entire evidence available on record along with the impugned judgment with the able assistance of learned counsel for the appellants as well as respondent No.3 and find number of contradictions in between the statements of the prosecution witnesses, which are material and fatal to the prosecution case and these contradictions, discrepancies in the prosecution evidence have already been highlighted by the learned Presiding Officer of the trial Court. When these contradictions, which have already been highlighted by the learned Presiding. Officer in impugned judgment were confronted to the learned counsel for the appellants they have no answer to rebut the same.
15. It appears from the record that the incident in the main case i.e. Crime No.80/ 2012 of Police Station Hatri was occurred on 21.04.2012. The distance in between the place of incident and the police station was about 03 kilometers, but the FIR has been registered at police station on 07.05.2012 with a delay of about sixteen (16) days, for which no plausible explanation has been furnished by the prosecution. During the course of arguments, we have specifically asked the question from the learned counsel for the appellants to explain that why they kept mum for such a long period for lodging of FIR, but they have no satisfactory reply with them. It also appears from the record that the accused are not nominated in the said FIR. As per record, it appears that after an encounter with police, the accused were arrested on 20.05.2012 and after such encounter and arrest of accused, one repeater of .12-Bore without number with magazine was recovered from accused/respondent Ghulam Nabi one TT Pistol of .30-Bore with a magazine was recovered from accused/respondent Ali Sher; one TT Pistol of .30-Bore with a magazine was recovered from accused/respondent Muhammad Anwar; and, one TT Pistol of .30-Bore with a magazine was recovered from accused/ respondent Hulio, but we have noted that all these weapons have not been sent to FSL for report. We have also asked the question from the learned counsel for the appellants to show us on which date the alleged recovered weapons/empties were sent to FSL for report, they after going through the entire record submit that there is nothing on record whether the weapons / empties allegedly recovered from the accused/respondents, ever sent to FSL for examination and report.
16. The case and claim of the appellants / prosecution are that on 21.04.2012, when complainant along with Karim Ali (abductee) as usual was going to their respective cattle ponds on separate motorcycles, it was about 06:30 a.m., when they reached at Fiala Naka in front of WAPDA Grid Station, they saw one Mehroon coloured Toyota car came and stopped near Karim Ali, five persons alighted from it and then forcibly got seated Karim Ali inside the said car and went away . The case and claim of the prosecution has been denied by the respondents/accused persons in their respective statements recorded under section 342, Cr.P.C. It also appears from the record that on 20.05.2012, when Inspector Altaf Arain of CIA Centre, Hyderabad, was on patrol duty he received spy information that kidnapee Karim Ali was made to sit by 07 armed persons under the trees of Khamiso Faqeer Grave Yard, therefore, he along with his subordinate staff reached at the pointed place and alighted from their vehicles, but the culprits started firing upon the police; police also retaliated in defense and made firing upon the culprits and after sometime when firing stopped and police party entered the grave yard, they saw one person whose eyes were folded with cloth raised his hands and disclosed his name as Karim Ali Khowaja (abductee) and thereafter the accused persons were arrested and illicit weapons were also recovered from their respective possession.
17. As already observed above, that the accused who are not nominated in the FIR, were arrested on 20.05.2012 in presence of mashirs, but it is surprising to note that after the arrest of all accused persons no identification parade of any of the accused person was held in this case to ascertain the truthfulness and / or falsehood. Under the law, in a criminal case in which no accused was nominated and who was arrested subsequently , the identification parade in such like case was necessary . Non-holding of the identification parade in these cases under the aforementioned facts and circumstances of the case, create serious doubt in the prosecution case. Be that as it may, the abductee (Karim Ali) was recovered on 20.05.2012, but his 164-, .Cr.P.C. statement was recorded before the Civil Judge and Judicial Magistrate on 31.05.2012 after a delay of about eleven days, for which again no satisfactory/ plausible explanation has been furnished by the prosecution. Therefore, during this intervening period the possibility that the accused persons were shown to the abductee before recording his statement could not be ruled out.
18. We have perused the statement of the abductee under section 164, Cr.P.C. available on record at Ex.21-A, recorded by the learned. Judicial Magistrate-VI, Hyderabad, which shows that in the said statement the abductee has not named any .of the culprits/accused persons; however , he further stated that he was kidnapped by four armed F persons but we have noted, that the FIR has been lodged against five accused persons. This aspect of the case, also create doubt in the prosec ution case. No identification parade of any of the accused persons has been held through complainant as well as the abductee.
19. We have scrutinized the evidence of complainant (Hakeem Ali), in which, he has only identified the accused Ali Sher, Shoukat Ali and Muhammad Anwar and for rest of the accused persons, present before the trial Court, he did not recognize them; whereas the FIRs have been lodged with regard to the same incident against five accused persons. It means, that either the complainant stated lie with regard to number of the accused and their names, or the FIRs have been falsely registered against the remaining accused. Again we have perused the evidence of abductee Karim Ali (Ex.21), who has deposed that he was kidnapped by four G armed persons and they forcibly took him in their car; they folded his eyes with cloth and took him at an unknown place. He further deposed. that accused kept him at a place which was a house and he was kept there by folding his eyes. Now the question arises that when throughout the alleged incident , his eyes were folded then how he has identified the accused persons. In his 164, Cr.P.C. statement, the abductee has alleged that four persons on gun point had abducted him, but in his evidence recorded before the trial Court (Ex.21), he has not recognized accused Shoukat Ali and stated that six accused persons, present.in Court, were same; thus, by such way, he has improved his 164, Cr.P.C. statement. It means that either the 164, Cr.P.C. statement of the abductee mentioning G four accused persons is a false statement or his evidence recorded before the trial Court, wherein he has implicated six accused persons, is incorrect; such aspect of the case caused a serious dent in the prosecution case with regard to the number of the culprits/accused persons.
20. We have also gone through the cross-examination of abductee Karim Ali, in which, he has stated that after his release from the captivity of the accused persons, the police had shown him the accused and also disclosed him their names. For the sake of brevity , it would be appropriate to reproduce the relevant portion of the cross- examination; of abductee Karim Ali (Ex.21), which reads as under: "It is correct that in my 164, Cr.P.C. statement, the place from where I was recovered has not been mentioned. The place of my confinement from where I was got released was a room within area like jungle. The said house was katcha built. Only one room was there. In that room, I was shifted two days prior to my recovery . The culprits did not talk me about negotiation, but they were talking with my relatives. I did not say about my keeping in room in my 164 as whatever was asked by Magistrate, I told him. It may be that I did not say in my 161, Cr.P.C. statement about keeping me in room. I was not taken to the P.S. on the day of my recovery . After my recovery , I went to the P.S. twice. It is correct that at the police station, police had shown me the accused persons and it is correct that they also told me their names. It is incorrect to say that I have falsely stated that I was kidnapped. It is not correct that police had told me that the present accused were involved in my kidnap ping. It is not correct to say that accused Hulio Baghri was not present at the place but he was at Hala. It is not correct that he was arrested from Hala. It is incorrect to say that I am deposing falsely ."
21. In view, of the above cross-examination, it is crystal clear that the case of the prosecution based upon the contradictory evidence and the impugned judgment passed by the trial Court is legal, proper and based upon sound reasons. Accused/respondents were acquitted by the trial Court mainly on the ground that the evidence of the prosecution witnesses on material particulars of the case is contradictory and untrustworthy . During the course of arguments, we have specifically asked the question from learned counsel for the appellants to point -/ show us any piece of evidence, which is not suppo rtable from evidence on record, no satisfactory answer was available with them. Perusal of record further shows that the trial Court rightly acquitted the accused / private respondents through impugned judgment, which is neither perverse nor arbitrary . So far as the appeals against acquittal are concerned, after acquittal respondents / accused have acquired double presumptio n of innocence, this Court would interfere only if the impugned judgment is arbitrary , capricious or against the record. But in this case, there were number of infirmities and impugned judgment of acquittal in our considered view, does not suffer from any misreading and non-reading of the evidence. As regard to the consideration warra nting the interference in appeal against acquittal and an appeal against conviction principle has been laid down by the Hon'ble Supreme Court in various judgments. In case of State/Government of Sindh through Advocate General Sindh, Karachi v. Sobhar o reported as 1993 SCMR 585, Hon'ble Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under: "14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of , evidence resulting in miscarriage of justice.
Reference can be made to be case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed."
22. For what has been discussed above, we are of the considered view that impugned judgment is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Hon'ble Supreme Court of Pakistan. Neither , there is any misreadin g, nor non-reading of material evidence or misconstruction of facts and law. Resultantly , these criminal acquittal appeals being devoid of any force and consideration are liable to be dismissed.
23. Above are the reasons of short order dated 05.11.2018, whereby after hearing the learned parties counsel, the captioned acquittal appeals were dismissed and the impugned judgment passed by the learned trial Court dated 22.05.2018, was maintained.