FAHIM AHMED SIDDIQUI, J.---The appellants Mujahid, Abdul Hakeem, Asghar Ali, Sikander Ali, Shoukat Ali, Liaquat Ali, and Akhtiar have challenged the impugned judgment by way of filing Criminal Jail Appeal No. D-109 of 2012 against their conviction and sentence awarded to them by the learned Judge Anti-T errorism Court, Khairpur in Special Case No. 81/2008, which was pronounced on 04.12.2012, while appellan t Allah Wassayo alias Faqir has filed Criminal Jail Appeal No. D-24. of 2020 assailing the judgment dated 20.07.2020 against his conviction and sentence awarded to him by the same Court in Special Case No.81-B/2008 respectively .
2. Briefly the prosecution case is that on 07.06.2008 at 1520 hours, complainant Haji Ghulam Umar Siyal lodged the FIR at Police Station Sobhodero District Khairpur against the accused persons, alleging therein that on the night of the date of incident (i.e 07.12.20 07), he along with his father Haji Ahmed and brother Nabi Bux went to offer Isha prayer in the mosque of their village and after offering prayer they were returning back to home and when at about 8.00 p.m, they reached near their house, they saw and identified (16) accused persons duly armed on the torchlight who controlled upon complainant party .
3. It is alleged in the body of FIR that the father of complainant asked for the introduction from those culprits on which the accused slapped him and informed him that they are dacoits. Complainant party claimed that on the torch light they have clearly seen all the (16) accused persons and identified them as 1. Hakeem Siyal,
2. Mujahid Shaikh both were armed with K.Ks 3. Liaquat Shaikh with G-3 rifle,
4. Ghulam Rasool,
5. Sikander Khuhro with KKs,
6. Wasayo alias Faqir Khuhro with repeater ,
7. Ali Hassan Khuhro with KK,
8. Sattar Khuhro with repeater , 9.
Jamal Khuhro with repeater ,
10. Akhtiar Khuhro with KK,
11. Asghar Jodh with KK,
12. Shoukat Behleem, 13.
Naban Shaikh both were equipped with KKs,
14. Manthar with repeater ,
15. Niaz with KK, and 16. Ameen Shaikh with rifle. It is also alleged that all the above said accused persons on the point of aforementioned deadly weapons forcibly abducted away complainant Haji Ghulam Umar for ransom purpose. The accused persons issued threats to the father and brother of the complaina nt/abductee not to disclose the facts of abduction to police otherwise the complainant/abductee will be murdered. The accused persons also made aerial firing and created harassment and on the firing of accused the relatives of complainant namely Ghulam Akber , Ghulam Fareed, and others attracted to the place of incident and they also saw and identified the above-named abductors who have taken away the complainant/abductee under the force of weapons. Due to fear of deadly weapons, the witnesses did not chase the accused persons.
4. It is also alleged in the FIR that the accused persons confined the abductee/co mplainant in a jungle, by putting chains in his limbs. After 4 days of the incident, accused Ali Hassan Khuhro directed the abductee to contact his father for a ransom amount of Rs.25 lacs, and the complainant/abductee allowed to talk with his father to whom, he disclosed that the accused persons are demanding ransom amount of Rs.25 lacs for his release. Ultimately the deal was settled at Rs.5 lacs and after (54) days accused Akhtiar Khuhro and Sattar Khuhro informed the complainant/abductee that his ransom amount of Rs.500,000/ has been received. On next day, they took him in a car and left/released him near village Veehar from where the complainant/abductee called his father from a PCO.
Thereafter , the brothers and cousin of the abductee came there and took him to their village. Allegedly , after recovery of his health, the abductee went to Police Station, where he reported the incident against the accused persons by lodging FIR. After usual investigation challan was submitted against the accused persons before the learned trial Court for trial.
5. The charge was framed against (07) accused/appellants to which they pleaded not guilty and claimed to be tried as per their pleas respectively recorded.
6. In order to prove its case against the accused, the prosecution examined (14) witnesses, and thereafter side of the State was closed.
7. The statements of all the above-named appellants/accused were recorded under section 342, Cr.P.C. respectively in which they denied the allegations levelled against them and stated that they are innocent and have been falsely implicated in the case by the complainant party on account of enmity . After the first trial, the trial of appellant Allah W assayo alias Faqir was conducted, as he was subsequently arrested.
8. After hearing the arguments of the learned counsel for the parties and perusal of record and relying on the evidence of the witnesses, the learned trial Court convicted and sentenced the appellants/ accused under the impugned judgment as stated in the first paragraph of the judgment.
9.- Mr. Rukhsar Ahmed Junejo Advocate for some of the appellants in Criminal Jail Appeal No. D-109 of 2012 after the recital of the depositions has drawn our attention towards certain contradictions. He continued to argue by submitting that the source of identification i.e. torches were not produced during the trial, which creates serious doubts. He submits that identification is rather more doubtful as the incident was taken place in December when winter is in full bloom and during that period the people usually wear warm cloths and Mufflers. According to him, there was a delay of 06 months after the incident and even after recovery the complainant/abductee remained mum for 04 long months without explanation. According to him, nothing was recovered from the appellants even no incriminating material was recovered from any of the nominated accused after their arrest. The Car in which, the alleged abductee was rescued was not produced during the trial. In support of his contentions, he has relied upon the case of Muhammad T ufail v . The State ( 2013 SCMR 768 ).
10. Mr. Dareshani Ali Haider Ada Advocate for the rest of the appellants in Criminal Jail Appeal No. D-109 of 2012 after adopting the arguments advanced by Mr. Junejo, he has preferred to add something in the same. According to him, after recovery , the alleged abductee has contacted the complainant at his home from PCO Veehar Town District Dadu but the PCO person was not examined. According to him, there was a delay of 04 days in recording the statement under section 161, Cr.P.C, which creates doubt. According to him, the alleged abduction was taken place near to the house of Haji Ahmed Siyal as per memo of inspection of the place of occurrence but said Haji Ahmed Siyal or anyone from his house, was not examined. In support of his contention, he has relied upon the cases of Muhammad Dawood and others v. The State (2015 PCr.LJ 316) and Muhammad Tufail v. The State (2013 SCMR 768 ).
11. Syed Soofan Shah, Advocate for appellant Allah Wassayo alias Faqir in Criminal Jail Appeal No. D-24 of 2020 adopted the arguments advanced by both the learned counsel.
12. Learned Additional P.G snbmits that the evidence of the abductee and complainant are in the same vein; hence contradictions are minor . He further submits that on the sole evidence of abductee, conviction and sentence may be awarded. In support of his contention, he relied upon the cases of Pahlwan and 2 others v. The State (2000 PCr.LJ 299) and Ghulam Kadir v . The State (2000 PCr .LJ 677) .
13. W e have heard the arguments advanced and gone through the relevant record.
14. As per the prosecution story , the abductee was taken into custody by the appellants at night time while he and the complainant were returning after offering ISHA prayer . It is alleged by the complainant and abductee that at the time of the abduction, the accused persons have made aerial firing for creating harassment but in such type of offences usually , aerial firing is not made especially when no resistance is offered. In such cases, the object of culprits is to remove the abductee from the place of abduction so that he may be shifted to some safe place without any hindrances. Another aspect of the case has attracted over attention. Allegedly , the complainant and witnesses have identified a teeming number of accused persons with their names and respective weapons, which creates doubts. The source of identification was said to be torch lights but the same was not established. It is noteworthy that the complainant and witnesses have stated that they have identified the accused persons on torch light but the investigator did not collect those torches as real or object evidence. The prosecution has not disclosed any reason for the non-collection of the torches and other articles to be produced during the trial. The incident was taken place on 07.12.2007 at 8 p.m. while FIR was lodged on 07.06.2008 at 1520 hours i.e. after 06 months of the incident while the alleged abductee was already recovered 04 months earlier to the lodgment of the FIR. The abductee and his witnesses have reasoned out this delay by submitting that the abductee after recovery remained under treatment for one and half months. Such treatment was provided by the private Dr. Abdul Hameed Shaikh. In case of such a huge delay , the evidence of Dr. Abdul Hameed Shaikh is important but the said Doctor was neither cited as a witness nor he was examined during the trial. During the trial, the prosecution has not made any efforts for examining Dr. Abdul Hameed Shaikh to establish that during the intervening period of recovery and lodgment of FIR, the abductee remained under treatment. Even if the assertion of treatment is accepted as gospel truth, it will be not helpful to the prosecution as according to prosecution witnesses, the abductee remained under treatment for one and half months only. Nearly all the appellants were arrested formally while they were confined at Jail in some other case. After the proforma arrest of the appellants/accused, the prosecution has not tried to get remand of the arrested accused for the purpose of investigation, which is important in such type of cases where the recovery of weapon is required. Another important prosecution witness is the owner/Manager of PCO at Veehar town from where the abductee has contacted his father and brother . Even the investigator did not try to collect the CDR of the Phone number through which the alleged abductee has contacted with his relatives. The investigator has also not collected the call record of the PCO from where the abductee has contacted to establish this link that he has reported his recovery from PCO.
15. It has also come on the record that from the recovery of the abductee, the father of the abductee has paid an amount of Rs. 5-lac. It is alleged that initially demand of Rs.25-lac was made to the father of the abductee by the accused persons but the same was subsequently reduced to Rs.5-lac and the father of the abductee namely Haji Ahmed had sold out his Mazda Van to arrange such amount. However , the prosecution could not establish the fact of selling Mazda 'Van even it could not be established that at the time of the abduction, the father of the abductee has owned any Van. Allegedly , the amount was paid to Ali Hassan Khuhro by a brother of the abductee i.e. PW Ghulam Fareed in presence of PW Bakht Ali. However , on this vital issue of the payment of the ransom amount PWs Ghulam . Fareed and Bakht Ali are not in agreement. Even they are not consistent regarding the place of payment of such amount. This fact also creates serious doubt regarding the prosecution story .
16. It is also important to note that the FIR was lodged by the abductee himself and if after recovery he was not in a position to lodge FIR, father or any other relative can report the incident to the police so that the criminal law may timely put in motion. It has also come on record that after recovery the area police has contacted but father and other relatives of the abductee have sought time from the area police to report the incident but even then neither any FIR was lodged by any relative of the abductee nor area police has lodged the FIR on behalf of the State which they could do in case of a cognizable offence took place in their jurisdiction. It has also come on the record that SP (Investigation) has ordered for the forma tion of JIT headed by I.O. being senior and who was then transferred during investigation, but instead of handing over the investigation to a member of the JIT comprising Inspectors, the investigation was handed over to one SIP, which also casts clouds over the impartiality of the investigation. The case against the appellants was tried twice. During the first trial the appellants! accused Mujahid, Abdul Hakeem, Asghar , Sikander Ali, Shokat Ali, Liaquat Ali, and Akhtiar have faced the trial. After the arrest of appellant/accused Allah Wassayo and one Muhammad Ameen second trial was initiated in which appellants Allah Wassayo alias Faqir and Muhammad Ameen have faced trial on the same set of evidence, appellant Allah Wassayo alias Faqir was convicted but Muhammad Ameen was acquitted. In such a situation, the entire prosecution case is engulfed under the thick cloud of doubt and it is a settled law that doubt always goes in favour of the accused., As such we have no other option but to declare that the prosecution could not establish the case against the appellants beyond a reasonable doubt, as such both the appeals are allowed and the appellants/ accused Mujahid, Abdul Hakeem, Asghar Ali, Sikander Ali, Shokat Ali, Liaquat Ali and Akhtiar in Criminal Jail Appeal No. D-109 of 2012 and appellant/accused Allah Wassayo alias Faqir in Criminal Jail Appeal No. D-24 of 2020 are acquitted from the charge through our short order dated 10.02.2021 and these are the reasons for the same. Before parting we would like to clarify that in the said short order inadvertently only the names of appellants Mujahid, Sikander Ali, and Allah Wassayo alias Faqir were mentioned while names of appellants Abdul Hakeem, Asghar , Shokat Ali, Liaquat Ali, and Akhtiar remained missing. The office is directed to issue release writ of all the appellants forthwith including appellants Abdul Hakeem, Asghar , Shokat Ali, Liaquat Ali, and Akhtiar in this case, whose names could not be mentioned in the aforesaid short order .