FAHIM AHMED SIDDIQUI, J. These appeals are directed against the impugned judgment dated 28- 05-2015 passed in Special Case No. 51/2013 (Criminal Jail Appeal No. D-50/2015 - Re: State v.
Zahoor Ahmed Sahito) and impugned judgment dated 02-06-2017 passed in Special Case No. 51- A/2013 (Criminal Jail Appeal No. D-79/2017 Re: State v.. Waqar and another) respectively. Through the impugned judgments, the appellants have been convicted and cumulatively sentenced extended to life imprisonment, etc. under section 365-A, P.P.C. as well as section 7, ATA. Since both the aforementioned appeals pertain to Crime No. 68/2013 lodged by the complainant under sections 365-A, 395, 342, 149, P.P.C. and 7, ATA, as such it would be appropriate to dispose of both of these appeals through this single judgment.
2. Brief facts leading to the filing of these appeals are that on 29-08-2013, complainant Muhammad Hashim Memon lodged FIR regarding an incident taken place on 28-04-2013.
According to the complainant, on that date at about 19:00 hours, he and his cousin Siraj Ahmed, while going towards Ranipur in their car, were intercepted by five culprits boarded in a white coloured Carola. On the show of weapons, they controlled the complainant party and forced them to get out of their car. Amongst the culprits, the complainant identified accused Zahoor Ahmed armed with pistol and Waqar armed with Kalashnikov while the three unidentified persons were armed with pistols. The accused deprived the complainant party of their mobile phones and cash amount and forced both of them to sit in their Corolla car. They kept the complainant and his cousin in their captivity for a period of one month and 23 days. The accused have demanded Rs.
50,00,000/- as ransom, which was subsequently reduced to Rs. 20,00,000/-, and allegedly paid by complainant's uncles Dr. Basheer Ahmed and Abdul Sattar. On the next day_ of payment of the amount i.e. on 15-06-2013, when the accused persons were about to release the abductees, police came to the scene and an encounter took place but the accused persons, leaving the abductees, succeeded in escaping from the scene of offence. Thereafter accused Waqar Ahmed Sehto extended threats to the complainant party time and again for di e consequences and forbidden them not to lodge FIR. However, the complaint finally approached the police station and an reported the incident.
3. Subsequent to the investigation, a charge-sheet was filed against all the absconding accused persons including appellants. Meanwhile, appellant Zahoor Ahmed was arrested and after filing a supplementary charge-sheet, the first phase of the trial was conducted against him. In the first phase, a full-dressed trial was done during which the prosecution has examined as many as five witnesses including both the abductees i.e. complainant and his cousin Siraj Ahmed as well as Dr. Bashir Ahmed. The learned trial court has confronted the evidence brought on the record to the then arrested accused/appellant Zahoor Ahmed (Criminal Jail Appeal No. D-50/ 2015) by recording the statement under section 342, Cr.P.C. After the trial, though impugned judgment dated 28-05-2015, appellant Zahoor Ahmed was convicted and sentenced for life under section 365-A, P.P.C. as well as for 10 years and a fine of Its. 50,000/- under section 395, P.P.C. and in case of failure to pay the fine he has to suffer rigorous imprisonment of six months more. He was also punished for life under section 7 ATA, 1997.
4. Subsequently. the appellants Waqar Ahmed Sehto and thereafter another accused Amir Bux alias Baboo were arrested and brought before the trial court through two different supplementary charge-sheets but they were tried together. The same set of witnesses were examined during the second phase of the trial and after trial, the appellant Waqar Ahmed was convicted and sentenced through impugned judgment dated 02-06-2017, for life under section 365-A and for 10 years and fine of Rs. 50,000/- under section 395, P.P.C. with the observation that in case of failure to pay fine he, has to suffer rigorous imprisonment of six months more. He was also punished for life under section 7, ATA, 1997. However, the other accused i.e. Amir Bux alias Baboo was acquitted from the charge through the same judgment.
5. We have heard Messrs Khan Muhammad Sangi and Nadeem Ahmed Malik learned advocates for the appellants as well as the learned prosecutor and, also perused the record and proceedings with the able assistance rendered by them.
6. Mr. Khan Muhammad Sangi Advocate for appellant Zahoor Ahmed Sahito after the recital of the deposition has drawn our attention towards certain deficiencies in the prosecution ease. According to him, there are serious anvital contradictions in the deposition of material witnesses, as such the prosecution case- cannot stand on- its legs. He submits that the complainant and abductee are not in agreement regarding the number of accused persons. He says that the complainant and his cousin Siraj were allegedly abducted in the same episode but they have given contradictory statements. He submits that the complainant says about the episode of robbery also but eye- witness Siraj did not say anything about the robbery. Similarly, the complainant did not say anything about beating while eye-witness disclosed that they were beaten by the accused person.
He submits that complainant in FIR says that there were 2 unidentified persons at the place of confinement but in the deposition, he disclosed that there were 3 or 4 unidentified persons. Ile contends that the complainant said that they reached the place of confinement after travelling for one hour but eye-witness told that it took two hours. By referring to the specific portion of depositions, he submits that the complainant has stated that there was traffic on the road but the eye-witness belied this fact in his examination before the Court. He submits that the amount of alleged ransom is also contradictory besides neither amount was recovered nor any other proof placed on record to believe that the amount of ransom was paid by the uncles of the complainant.
According to him, the FIR was lodged after a delay of four months, which is sufficient to establish that is prosecution's story is nothing but false. According to him, the complainant has made improvement through further statements as initially, he has not implicated appellant Waqar. He draws attention towards FIR. No. 60/2013 and submits that it does not show the abductees as witnesses. Ile submits that FIR No. 60/ 2013 was lodged on 15-06-2013 but the present incident was not reported on that date that is the date of recovery of the alleged abductees. According to him the case against the appellants is highly doubtful. In support of his contentions, he relied upon the cases of Abdul Hamid v. The State (PLD 1980 Peshawar 25), Noorul Haque v. The Stare (1992 SCMR 1451), Akhtar Ali and others v. The State (2008 SCMR 6), Faheem Ahmed Farooqui v. The State (2008 SCMR 1572), Muhammad Akram v. The State (2009 SCMR 230), Muhammad Rafique add others v. The State (2010 SCMR 385), Muhammad Zubair and 2 others v. The State (2010 PCr.LJ 1892), Faizur-Rehman v. The State (2012 SCMR 538), Riasat Ali v. The State (2013 YLR 272), Muhammad Tufail v. The State (2013 SCMR 768), Muhammad Tavvab and others v. The State (2014 SCMR 314), Muhammad Salem v. The State (2014 YLR 794), Qari Ahmed Yousif v. The State and another (2016 PCr.LJ 662) and Abdul Haque v. The State (2020 SCMR 116).
7. Mr. Nisar Ahmed Bhanbhro, learned counsel appearing for complainant, opposed the instant appeals. According to him, the prosecution has collected sufficient material to connect the appellants with the commission of offence. He submits that there is no major contradiction between the narrations of different witnesses regarding the happening of the episode- commanded and carried out by the appellants/accused. Even, it is a misconception posed by the defence that the witnesses were not in agreement regarding the number of accused persons.
According to him, if we go through the whole depositions of complainant rid eye-witnesses, it becomes crystal clear that there were five persons who have taken part in the alleged offence. So far as the. difference in amount is concerned, it is a typographical mistake. He submits that during cross-examination, no suggestion was placed that the amount was not paid or received, which amounts to admission on the part of the accused persons. He submits that the FIR of the present incident was not lodged on the date of recovery of the complainant and eye-witnesses only because the police was reluctant to lodge their FIR. He continues to say that in such type of cases delay is plausible as there is an anxiety for the safety of the abductees while it is a. fact that in the year 2013, the cases of abduction for ransom were common in Sindh. According to him, mere delay will not come in the way of the prosecution. He submits that the recovery of ransom is not material as the appellants/accused were not arrested at the time of handing over the ransom amount. He submits that the prosecution has established their case during trial, as such the appellants were rightly convicted. In support of his contentions, he took reliance from the cases of Ahmed Hussain alias AMI and others v. The State and others (PLD 2008 Supreme Court 110) and Muhammad Anwar alias Lalu v. The State (2003 YLR 300).
8. Instead of adopting the arguments of learned counsel for the complainant, learned Additional P.G prefers his submissions. During the submissions, he draws attention towards different aspects of the case of the prosecution. According to him, during cross-examination, the defence has made certain admissions but a conviction cannot be rest upon such admissions.
9. We have heard the arguments and have gone through the available record. It is the case of the prosecution that the appellants have their hands in the abduction of the complainant and eye- witness Siraj Ahmed. The alleged abduction was taken place from a bus stop at National Highway but the prosecution could not collect or produce any evidence regarding this effect. Nevertheless, even from a populous area, it is hard for the prosecution to collect and present the evidence of such type of offences in the shape of eye-witnesses and the same may be over looked but there are other aspects of the case, which require consideration. The alleged incident was said to be taken place on 28-04-2013 but the FIR was delayed for about four months and the same was lodged on 29-08-2013 without giving any plausible explanation for the same. We do admit that in such types of offences, the anxiety of the relatives of abductees is regarding their safe recovery due to which the FIR is usually delayed till the recovery of the abductees. Nonetheless, in the present case allegedly the complainant and his cousin were recovered on 15-06-2013 during an alleged police encounter but even then the complainant party remained tongue-tied for another period of about one and half months without any reason. We are of the view that this silence not only speaks volumes but also speaks loudly regarding the reliability of the prosecution's story.
10. During the course of arguments, the learned counsel for the appellants have thrown light about certain contradictions. Amongst them, some of the contradictions are surely minor in nature but there appear certain major contradictions and illogicalities in the prosecution case, which cannot be overlooked. The FIR indicates that the accused persons have deprived the complainant of one mobile phone and a cash amount of Rs. 8000/- but the complainant in his examination in chief stated that the accused person has snatched Rs. 18,000/- from him. We are of the view that this difference in amount creates doubt regarding the prosecution story as it cannot be said that the same is due to fading of memory due to lapse of time. The complainant in FIR states that at the place of their confinement to unidentified persons were available but in his examination in chief, he says that there were 3/4 unidentified persons were already available. It is pertinent to mention that the complainant in his deposition had quoted the name of appellant Waqar in a way that he was already known to him but surprisingly his name is missing in FIR, though it was added through a further statement. We consider that if the complainant was already known and identified him then why his name did not appear at the first instance in FIR, and on this score, the case of prosecution engulfed under clouds. The complainant and eye-witness Siraj Ahmed are also not in agreement regarding the maltreatment by the hands of the accused persons during the course of abduction.
Another aspect of the case creates serious doubt regarding the prosecution story which pertains to the payment of the ransom amount. Although it is claimed by the complainant and PW-3 Bashir Ahmed that an amount of Rs. 20 lakhs were paid as ransom and the same was arranged by him by drawing some amount from his bank and loan collected from friends and relatives. However, neither whole or a portion of that amount was recovered from the appellants nor any evidence has been brought on record for arranging the said amount through the aforementioned sources. It is also important to note that one of the PW Riaz has been given up during the trial. The said Riaz is the witness before whom the amount of ransom was paid to the accused persons. We are of the view that regarding the story of abduction and payment of ransom amount, PW Riaz was the witness to be considered as best available evidence and non-examination of him has badly damaged the prosecution case in view of the provision under Article 129(g) of the Qanun-e- Shahadat Order. It is alleged by the prosecution that both the alleged abductees were recovered during a raid and regarding which another FIR bearing No. 60/2013 was lodged but surprisingly one of the members of the raiding police party was examined in this case. Even the prosecution did not bother to produce in this case the memo of recovery of both the abductees during the encounter, which also creates doubt regarding the prosecution case. The present case was tried before Anti- Terrorism Court whereas the case of alleged encounter initiated through FIR No. 60/2013 of Police Station T.M Khan could be tried simultaneously in view of section 21-M of Anti-Terrorism Act, 1997 but the prosecution, for the reasons best known to them, avoided doing so.
11. In view of the reasons and explanations given in the foregoing paragraphs, we are of the considered opinion that the case of the prosecution against the appellants is not free from doubt and the benefit of the same should go in favour of the appellants/accused. Since the prosecution could not establish the charge against the appellants beyond the reasonable doubt; therefore, we have held that the prosecution case fails, as such the instant appeals were allowed through our short order dated 04-11-2020 and the appellants were acquitted from the charge with directions to release them forthwith if not required in any other custody case. These are the reasons for the aforementioned short order.