1. MUHAMMAD SALEEM JESSAR, J.By means of instant Special Cr. Jail Appeal the appellants have assailed the Judgment dated 22.05.2019 passed by learned Judge Anti-Terrorism Court in Special, Case No. 113 of 2010, being outcome of FIR No. 72 of 2010 under section 365-A, P.P.C. read with Section 7 ATA registered at P.S. Baberloi, District Khairpur Mir's, whereby appellants were convicted under section 365-A read with Section 149, P.P.C. and sentenced to undergo rigorous imprisonment for life each and their properties were also ordered to be forfeited to the State. The appellants were also convicted under section 7 ATA, 1997 and sentenced to suffer rigorous imprisonment for life each. Both the sentences were ordered to run concurrently. However, they were extended benefit under Section 382-B, Cr.P.C.
2. Brief facts of the prosecution case are that on 05.07.2010 at 1400 hours, Complainant Manzoor Ahmed Kalhoro lodged FIR No. 72/2010 at PS-Baberloi District Khairpur alleging therein that Mehboob alias Mohib Ali, aged about 26/27 years, is his brother and was working in Marble Mills Karachi along with Yaseen Shar and others as labour. On 06.06.2010 while his brother Mehboob was present at home then Yaseen Shar called him through telephone to come at Sathio Wah Bridge as they were going back to Karachi, therefore he took his brother on motorcycle and reached at the pointed place at 0800 hours, where they saw one blue colour. Datsun, in which 1. Nazroo Shar, 2.
3. Yaseen Shar,
3. Eidan Shar,
4. Sachal Shar,
5. Saleh Shar,
6. Jumo Shar,
7. Sabir Shar, 8.Mujahid Shar and six unidentified persons were sitting in the Datsun; then his brother Mehboob alias Mohib Ali also boarded on such Datsun which was without number and after leaving his brother, he returned to his village. It is also mentioned in FIR that on 09.06.2010 Complainant along with Riaz Kalhoro and Hussain Bux Kalhoro were sitting in Otaq, which is situated in their village. It was about 03:30 p.m. a phone call was received by him on his mobile from his brother having number 0306-3631603, through which Soomar Shar and Yaseen talked with him that they had kidnapped his brother Mehboob, who was with them in Katcha area and demanded Rs.50 Lac as ransom for the release of his brother and informed him that they will contact With him again. They contacted him and also permitted him to converse on phone with his brother frequently for the arrangement of ransom amount of Rupees five Lac. It is also mentioned in FIR that complainant arranged the ransom amount and went to village Gehalpur along with above named witnesses and paid the ransom amount to Soomar Shar in presence of above said witnesses on 02.07.2010, who told the complainant that his brother was in Katcha area and directed them to go home and their person shall reach at home upto the morning. Thereafter, complainant along with said witnesses returned to their home. On 03.07.2010 in the evening time his brother Mehboob alias Mohib Ali returned to home and narrated that the above named accused armed with KKs, Rifles and Guns, informed him that they had received the ransom amount of Rupees five Lac for his release. Thereafter, the accused released him. Later on, the complainant went to Police Station and lodged the FIR against the accused as narrated above. Police made efforts to arrest the nominated accused persons including the present appellants/ accused during stipulated investigation period, but none of the accused was arrested.
4. On the completion of investigation, I/O submitted the challan in absentia of accused. The NBWs against all absconding accused were issued. The proceedings under Sections 87 and 88, Cr.P.C. were also initiated against them. After completion of all the legal formalities, the case against both the present accused along with others was kept on dormant file till their arrest vide order dated 21.10.2011. After passing above cited order, both the accused (present appellant) were arrested in this case on 02.02.2018 and were produced before the trial Court along with supplementary challan/subsequent report, which was accepted by the trial court and the case against the accused stood re-opened with same previous number for trial in accordance with law.The required copies of necessary documents of case under section 265-C, Cr.P.C. were supplied to both the accused. The required Oath under section 16 of ATA, 1997 was taken by the learned Judge of trial court on 11.06.2018 at Ex.06.
5. A formal charge was framed against the accused at Ex.7, to which they pleaded not guilty and claimed to be tried vide Pleas Ex.7/A and 7/B respectively. In order to prove its case prosecution examined PW-1. Manzoor Ahmed Kalhoro (Complainant) at Ex.8, who produced FIR bearing No.72/2010 as Ex.8/A.PW No. 2. Mehboob Ali Kalhoro (abductee) was examined at Ex.9. PW No. 3. Riaz Hussain Kalhoro was examined at Ex.10.PW-4 SIO/Inspector Hamid Ali Jumani was examined at Ex.11, who produced memo of place of incident as Ex.11/A. PW .5 SIP-Nazeer Ahmed Bhayo was examined at Ex.I2, who produced memo of arrest of both the present accused as Ex. 12/A. Statement was submitted by learned Addl. P. G. for State to give-up the PW-Hussain Buz, which was allowed and kept on record at Ex.13. PW No. 06. PC-Abdul Jabbar Bhayo was examined at Ex.14. Statement was submitted by learned Addl. P. G. for State to keep the memo of producing the abductee with the evidence of SIO/Inspector Hamid Ali Jumani as inadvertently the same was not produced during recording the evidence of above said Inspector, which was allowed and kept UN record in the evidence part at Ex.15. Thereafter, the learned Addl. P.G. for State closed prosecution side vide statement at Ex.16.
6. The Statements under Section 342, Cr.P.C of both accused Nazroo alias Nazeer Shar and Yaseen Shar were recorted vide Exs.17 and 18 respectively. Both accused in their statements denied the prosecution allegations. They stated that they are innocent and have been falsely implicated in this case at the instigation of MPA-Abdul Rauf Khoso as well as brother of complainant namely ASI- Ghulam Nabi Kalhoro. They also stated that all the PWs are private, interested and have deposed against them for the purpose mentioned above. Accused Nazroo alias Nazeer Ahmed Shar has submitted the Photostat copies of his CNIC as well as CNIC of his father and certified true copy of Judgment dated 28-03-2018 passed by learned Assistant Sessions Judge, Kashmore at Exs. 17/A to 17/C respectively while accused Yaseen Shar also produced the Photostat copies of his CNIC and CNIC of his father at Exs.18/A and 18/B respectively. However, neither they got examined themselves on Oath, as provided under Section 340(2), Cr.P.C., nor produced any witness in their defense.
7. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellants, as stated above. Against said judgment the appellants have preferred instant appeal.
8. We have heard arguments advanced by learned counsel for the appellants, learned Additional Prosecutor General appearing for the State as well as learned counsel for the complainant and have perused the material available on the record. Learned counsel for appellants argued that incident had occurred on 06.06.2010 whereas the FIR was lodged on 05.07.2010 after a delay of about one month, for which no explanation was furnished by the prosecution. They next submitted that after completion of legal formalities, the charge-sheet against accused was submitted by the police in absentia in terms of Section 512, Cr.P.C. on 20.08.2010. They further submitted that appellants were shown to have been arrested through imaginary memo on 02.02.2018 and the names of the appellants are not same as the police in order to show their efficiency had added alias with their names and implicated them in this false case. They further submitted that one of PWs namely Riaz Hussain (page No. 73 of paper book) was declared hostile by the prosecution itself. They further submitted that there are major contradictions between the statements of Investigating Officer and PC Abdul Jabbar with regard to the arrest of the appellants from judicial lockup of Kashmore. They further submitted that brother of complainant namely ASI Ghulam Nabi was serving in Sindh Police Department and in the year 2010, he was posted at Kandhkot where he had strong relations with Abdul Rauf Khoso (MPA of the area), who had grudge with the appellants over landed dispute, therefore, the said Abdul Rauf Khoso (MPA of the area) by utilizing his personal relation with said ASI Ghulam Nabi had got instant case registered against appellants so that the appellants may meet with his unjustified demands. They further submitted that the appellant Yaseen had specifically deposed before the trial Court in his statement recorded under Section 342, Cr.P.C. to the effect that he had enmity with Abdul Rauf Khoso (MPA of the area) over forest land. The learned counsel, therefore submitted that all the appellants have falsely been implicated in this case and such suggestion was also put to PW Riaz Hussain. They further submitted that no ransom amount as claimed by the PWs, was recovered from the possession of the appellants and even the persons in whose presence, it was paid, had not been examined. They further submitted that neither the ransom amount nor the offensive weapons have been shown to have been recovered from the possession of the appellants, besides, appellants at the time of their arrest were confined at Judicial Lockup Kashmore, where from incharge of lockup or any duty officer in whose presence their arrest was made, was not examined by Investigating Officer. They further submitted that prosecution has failed to prove its charge against appellants. They lastly submitted, in the light of above discrepancies, lots of doubts are created, which go in favour of accused.
9. Learned counsel therefore, prayed for acquittal of the appellants. In support of their contentions, learned counsel placed reliance upon the cases of Faiz-ur-Rehman v. The State (2012 SCMR 538), Muhammad Tufail v. The State (2013 SCMR 768), Abdul Jabbar and others v. The State (2017 PCr.LJ 160 (A &B)) and Muhammad Naeem alias Neemon and 2 others v. The State and another (2017 YLR 448).
10. Learned Additional P.G., Sindh opposed the appeal on the ground that the appellants are nominated in the FIR besides, there is no enmity or any ill will, through which, it can be deduced that there was any false implication. He also could. Not controvert the fact that after alleged release of the abductee from the clutches of the appellants, the appellants were not subjected to identification parade. He is also not in a position to controvert the fact that after release, the abductee had not shown the place where he was allegedly kept under wrongful confinement by the appellants even Investigating Officer did not bother to extend the scope of investigation to such extent. He; however, opposed the appeal. Learned counsel for complainant submitted that complainant as well as abductee does not want to implicate the appellants. He, therefore, under the instructions did not oppose this appeal.
11. It appears that there are material contradictions in the statements of PWs which put dents in the prosecution case and go in favour of the accused.
12. PW No.1 Complainant Manzoor Ahmed in his examination in chief admitted, "Accused Yaseen Shar contacted with my brother Mehbood on cell phone" Whereas PW-2 the alleged abductee, namely, Mehboob in his examination in chief deposed, "Accused Nazeer, Sachal, Jumman, Yaseen, Sabir, Mujahid and Eidan made me phone call and asked me to accompany them to work at Karachi.
13. The contradiction is apparent that according to the complainant only Yaseen Shar contacted the alleged abductee whereas alleged abductee deposed that besides Yaseen other persons named above also contacted him to accompany them to work at Karachi. Likewise, complainant deposed, "on 02.07.2010 I along with my relative Riaz and Hussain Bux went to near Kashmore for the payment of ransom amount Rs. 05 Lac. The accused asked me on telephone that the above amount is to be paid at the Otaq of one Soomar where I paid Rs. 05 Lac as ransom amount to one Soomar Shar". On the other hand, PW-3 Riaz has belied such statement by deposing, "on 02.07.2010, I, complainant and Deen Mohammad went for the payment of ransom amount towards Kashmor. When we reached at Geehalpur situated in Kashmor besides the protective bund/katcha band and paid the ransom amount to one Sachal". Putting the above two statements in juxtaposition, it is evident that both the above said witnesses contradicted themselves on two points, firstly; according to complainant while going for paying ransom amount he was accompanied by PW-Riaz and Hussain Bux, whereas PW Riaz has added the name of one Deen Mohammad instead of Hussain Bux, secondly; according to complainant they made payment of ransom amount to one Soomar at his Otaq whereas PW Riaz has not named accused Soomar, instead he deposed that the ransom amount was paid to one Sachal.
14. Besides; the complainant in his examination in chief has not uttered a single word about informing the police regarding payment the ransom amount to accused before proceeding to the pointed place, whereas in his cross-examination to the counsel for the accused Yaseen he deposed, "when I paid the ransom amount to accused Soomar I had already verbally disclosed to police regarding the deal of payment of ransom amount but police prepared no document regarding that. I did not ask the police for our safety when were leaving towards the Otaq of accused Soomar Shar for payment of ransom amount" Besides, while replying to a suggestion made by counsel for accused Nazeer he stated, "I did not inform to the concerned police of accused Soomar Shar regarding the receiving and payment of ransom amount to accused Soomar Shar".
15. Prosecution witnesses have also contradicted themselves on the point as to who went to police station for lodging FIR. According to complainant, "I along with Riaz, Hussain Bux and Deen Mohammad went to PS for registration of FIR on 05.07.2010". On the other hand, PW-2 Mehboob deposed, "I along with my brother Manzoor went at PS on 04.07.2010 the police asked us to come again on the next day. On the next day we again went to PS for registration of FIR". It is thus apparent that complainant does not speak about PW Mehboob accompanying him when he was going to lodge FIR whereas PW Mehboob has deposed that he also accompanied complainant for such purpose which is evident from the words, "we again". PW-Riaz Hussain also has not deposed that abductee Mehboob also accompanied them to police station for lodging FIR. According to him, "Complainant also asked us to company them towards police station".
16. Complainant in his evidence deposed, "On same day the statements of PWs-Riaz, Deen Mohammad and Hussain Bux were recorded by police".Such statement has also been made by I0 namely Hamid Ali in his examination in chief. On the other hand, PW-Riaz belied them while replying to a suggestion made by APG for the State, after the said PW was declared as hostile, by saying, "It is correct to suggest that my statement under section 161, Cr.P.C. was not recorded by police".
17. There is yet another contradiction in the statements of PWs, inasmuch as complainant, deposed "on 09.06.2010 accused Yaseen party contacted with me on my cell phone from the cell phone of my brother Mehboob. They asked me that my brother has been kidnapped away by them, therefore, ransom amount of Rs. 50 Lac be paid to them" Whereas PW-Riaz deposed, "On same day at the evening time at about 1530 hours, complainant received one call from one Sachal who asked the complainant to pay the ransom amount and get his brother from Kashmor". On the other hand, alleged abductee Mehboob does not point out any specific accused who allegedly talked with the complainant regarding payment of ransom amount, but he simply says, "The accused also talked with my brother about my abduction as well as they demanded the ransom amount from my brother".
18. Besides, there are also certain admissions on the part of prosecution witnesses which also damage the case of the prosecution. PW No.1 complainant Manzoor Ahmed in his cross-examination admitted, "my brother Mehboob with his own will and wish went in and boarded in Datsun".
19. Likewise, such admission has also been made by alleged abductee Mehboob in his cross- examination viz, "I boarded on such Datsun with my own will and wish as I had to go to Karachi for my work at marble factory". This admission by the complainant and alleged abductee spoils their claim regarding abduction for the simple reason that "abduction" generally means taking away a person forcibly without his consent. Complainant himself has not claimed that his brother Mehboob was forcibly taken away, on the other hand he clearly deposed that his brother boarded the vehicle wherein accused were already present, with his own will and wish. Furthermore, complainant in his examination in chief also admitted, "About 25 days they used to contact me on same telephone for paying the ransom amount". Despite lapse of such long period of 25 days he remained mum and did not report the matter to the police. This establishes inordinate delay in lodging the FIR.
20. Complainant also admitted "I asked the SHO after registration of FIR to visit the place where I paid ransom amount viz: Otaq of Soomar Shar but SHO did not visit the same. I did not move any application against the SHO"
21. Complainant also admitted "It is correct to suggest that I did not move any application to SHO PS-Baberloi for safe recovery of my brother."
22. Investigating Officer namely Hamid Ali has also made various admissions in his evidence. He admitted in his evidence, "It is correct to suggest that I have not got recorded the statement under section 164, Cr.P.C. of abductee Mehboob It is correct to suggest that I have not prepared any mashirnama of place where the ransom amount was paid. It is correct to suggest that I have not produced any entry regarding the movement towards the place where the ransom amount was paid. It is correct to suggest that I have not given the nickname of any of accused or of his father when I submitted the report under section 173, Cr.P.C. while showing the accused as absconders under section 512, Cr.P.C. It is correct to suggest that the nickname of accused or their father has not been given by witnesses in their statements under section 161, Cr.P.C. When we returned back from place of incident, we made entry at PS but same is not produced with my deposition. The departure entry was also incorporated but same is also not produced with my deposition.
23. So far the admission that the I.O. did not record statement under section 164, Cr.P.C.of the alleged abductee is concerned, it may be observed that this is also injurious to the prosecution case. In this connection reference may be made to the case of Adeel and other vs The state reported in 2016 YLR 2212 [Peshawar (Abbotabad Bench)]. The said case relates to delayed recording of 164, Cr.P.C. statement and it was held that such delayed recording is fatal to the prosecution case and the statement of such witness is not to be relied upon. When the delayed recording of 164, Cr.P.C. statement of the witnesses is held to be fatal to the prosecution case, then what about non recording of 164, Cr.P.C. statement, it all. In the said cited case it was held as under:
24. It is also important to note that abductee was recovered from F-10 Markez on 31.01.2013 but soon after her recovery her statement was not recorded either under section 161, Cr.P.C. or under section 164, Cr.P.C., except to the effect that she is willing to go with her uncle Waqar Ahmad.
24. Her this statement is available at page 130 of judicial file. Moreover on the date of alleged recovery she did not charge Adeel for abduction. From the record it is proved that she was examined under section 161, Cr.P.C. on 04.02.2013. No proper explanation has been given for non-recording of her statement at proper time. Though it is contended by PW-17 I.O. that at the time of recovery he found the abductee in terrible condition. Who was shivering and in panic and was not fit to give statement. But no medical proof in this respect has been produced to prove that she was not able to record her statement for 4/5 days. In his cross-examination I.O. admitted "I had not obtained the opinion of any medical officer regarding the inability of Ana Bakhtiar for recording her statement". It is settled law that when the statement under sections 161 and 164, Cr.P.C. are not recorded at proper time it is fatal to the prosecution. Reference is made to "Rahat Ali v. The State" (2010 SCMR 584). Wherein it is held;- "Delayed examination of witnesses by Police without furnishing any plausible explanation is fatal to the prosecution case and the statement of such witness is not to be relied upon".
25. The august Supreme Court in case "Imran Ashraf v. The State" (2001 SCMR 424) held;- "Where no plausible explanation is offered by the prosecution for not recording the statement of eye- witness immediately after the registration of the case, then the evidence of such witness becomes incredible".
26. Even 161, Cr.P.C. statements of the alleged abductee and other prosecution witnesses were recorded after delay of 2 days as admitted by the I.O. himself, "on 05.07.2010 I recorded the statements under section 161, Cr.P.C. of PWs-Riaz, Hussain Bux and abductee Mehboob".
27. The IO has also admitted that he did not produced roznamcha entry/ daily diary of his departure and arrival at the police station when he proceeded for site inspection. Besides, SIP Nazeer Ahmed who registered the FIR and effected imaginary arrest of accused has also admitted in his cross- examination, "It is correct to suggest that I have not produced the entries for my arrival and departure regarding the imaginary arrest of accused". The superior Court have not appreciated such conduct on the part of the police of non-production of roznamcha entry and it also puts dent in the prosecution case. In the case of Muhammad Akram v. State reported in 2020 YLR Note 94 (Sindh High Court) Investigating Officer admitted in his cross-examination that he had not produced roznamcha entry before the court, likewise, witness who registered the FIR also admitted in his evidence that he had not produced the roznamcha entry in the court. It was held that in absence of any roznamcha entry, it becomes suspicious as to whether, Investigating Officer or police party, as the case may be, had in fact left the police station to the place of arrest, incident and/or recovery or not. Such facts were fatal to the prosecution case.
28. Another significant point in this case is that FIR got registered after a considerable delay.
29. Admittedly the complainant received a telephonr call from the accused on 09.06.2010 regarding abduction of his brother and demand of ransom amount, whereas the FIR was got registered on 05.07.2010 thus there occurred a delay of about 27 days. The complainant also admitted in his evidence that for about 25 days he used to receive telephonic call from the accused for payment of ransom amount. In this view of the matter, it was incumbent upon the complainant to have reported the matter to police promptly but he remained mum till 05.07.2010. The lethargic attitude of not reporting the matter to police after the release of his brother, the alleged abductee who admittedly reached the home on 03.07.2010 but the FIR was lodged by the complainant on 05.07.2010 i.e. after a delay of 2 days from the date of release of alleged abductee. Such delay in lodging the FIR is fatal to the prosecution case and such conduct has not been appreciated by the Superior Courts. In the case of Sabir Hussain v. The State (2022 YLR 173), it was held as under: "9. The complainant has knowledge about missing of the deceased on 13.07.2019, but despite that, the complainant did not lodge the report, and he lodged the report on 16.07.2019 at 10:30 a.m. Nothing came on record about lodgment of the report of missing of the deceased by the complainant in Levies Thana. It has also come on record that the dead body of the deceased was recovered from the water bank of the Madrasa on 16.07.2019 at 6:30 a.m., and the FIR was lodged on the same date at 10:30 a.m., with a delay of four hours from the recovery of dead body of the deceased. The lodgment of the FIR with delay by the complainant creates a reasonable doubt in the prosecution case. Reliance in this behalf is placed in the case of Mehmood Ahmed and 3 others v. The State and another (1995 SCMR 127)."
30. It is also worthwhile to point out at this juncture that during the course of arguments, learned counsel for the complainant submitted that complainants as well as abductee do not want to implicate the appellants/accused. Learned counsel, therefore, in the circumstances, under the instruction did not oppose this appeal. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt. And any doubt arising in the prosecution case must be resolved in favour of the accused. In the instant case prosecution does not seem to have proved the allegations against the accused/appellant by producing unimpeachable evidence, thus doubts have been created in the prosecution version. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under: "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."
31. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under: "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal."
32. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right and not as a grace or concession. In the present case, there are various admissions in the evidence of the prosecution witnesses which create doubts and put dents 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. 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.
33. 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 forgoing reasons, by a short order dated 27.9.2022 instant Criminal Jail Appeal was allowed, consequently, impugned judgment dated 22.05.2019 penned down by the learned trial Court/Court of Anti-Terrorism Court, Khairpur Mir's in Sessions Case No.113/2010 Re- The State v. Nazroo and others, arising out of Crime No.72/2010 registered at Police Station Baberlio, District Khairpur Mir's for the offences punishable under Sections 365-A, P.P.C. and read with Section 7 ATA, was set aside.
35. Resultantly, the appellants Nazeer Ahmed alias Nazroo son of Mehvval alias Jhullan Shar and Yaseen son of Lashari alias Eidan Shar were acquitted of the charges and they were ordered to be release forthwith, if their custody is no longer required by the jail authorities in Law any other criminal custody case.
36. It may be noted that the appellants have also moved a Constitution Petition being C.P No. D- 297/2021 for suspension of sentence awarded to them. In view of disposal of Criminal Jail Appeal whereby the appellants have been acquitted of the charges, the said Petition having become infructuous, was also dismissed along with application(s), if any. Above are ' the reasons for said short order.