HAZIQ-UL-KHAIRI, J.-- In this appeal, the appellants are aggrieved and dissatisfied with the judgment dated 13-2-1992 passed by the learned Judge of Special Court, Suppression of Terrorist Activities, Hyderabad, in which he had convicted the appellants under section 365-A PPC read with sections 149 PPC and 307 PPC. The appellants were to suffer R1 for life and forfeiture of their property under section 365-A PPC. Both the accused were also convicted and sentenced to suffer R.I for four years each and fine of Rs.5,000/- each under section 307 PPC. In default of payment of fine they were to suffer R1 for one year each more.
2. Briefly stated the prosecution case is that on 16-7-1991 H.C. Shabhir Ahmed, Incharge of P.S. Naughty, District Dadu received spy information that some dacoits had abducted one Sanwan Shar son of Ranjho Khan Shar from Shar village. On the aforesaid information the H. C.,started for this place of incident alongwith his staff and was informed by the abductee's brother namely Khair Mohammad son of Ranjho Khan that his brother Sanwan Shar had been abducted. Narrating the incident it is stated by him that he; his said brother and his father namely Ranjho Khan were sleeping in the house and a lantern was' burning besides-them when at 1.00 A.M. Some 7/8 dacoits came into the house.
They were identified in the light of the lantern as Sajjan son of Majnoon, Mashooq son of Ati Nawaz, Habib son of Ali Khan Machi, Nizam son of Ali Nawaz Machi and four unknown dacoits. Habib had DBBG and-the rest had KKs. They could not identify the other dacoits. While returning, the dacoits asked them to pay money at Sona-Bindhi Bela for the release of the abductee Sanwan. The H.C., who is complainant, started tracking the foot-marks of the dacoits and the abductee, with the help of Allah Dino, Dino, tracker. After tracking the same, they reached Aghamain Mori where the complainant called the law-enforcing agency. The foot prints reached the village Bacho Wahan inside the Bela. The complainant and the law-enforcing agency surrounded the Bela, whereupon the dacoits started firing. Police and the law-enforcing agency also fired at the dacoits. This encounter continued for one hour when the two dacoits standing with hands- up were arrested.
They gave their names as Habib son of Ali Khan Machi and Ali Nawaz Machi who are appellants herein. The former had a 12 bore DBBG in his hand. The latter is stated to have thrown his gun in water. A man came near them, and disclosed that he was the abductee, Sanwan son of Ranjho Khan Shar. Mashirnama was prepared in the presence of H.C. Mohammad Uris and P.C.
Mohammad Ayub. The police arrested both the appellants herein.
3. The prosecution examined the complainant Shabhir Ahmed, P.W. Khair Mohammad, Ranjho Khan, Sanwan, Bahadur and H.C. Mohammad Uris. The accused Habib and Nizam were examined under section 342 Cr.P.C, and denied the allegation of abduction and also the encounter with the police as well as recovery of abductee Sanwan from their custody.
4. The appellants' counsel, Mr, Shaukat Mohammad Khan, first contended that the prosecution story on the fact of it is not believable as F.I.R, was not lodged by the brother or father or near relation of the abductee or someone from mohalla. In reply the learned AAG. Mr- K.M. Nadeem stated that in a case of abduction for ransom, lodging of F.I.R, at the Police Station by any one of them would have greatly endangered the life of the abductee.
This explanation appears to us not without substance Besides the police is expected to act promptly on spy information in cases of this nature.
5. The next" ground raised by the appellants' counsel that spy information is not liable to be considered at all, is vague and not supported by law. The third ground raised by the appellant is that the appellant could not be identified by the prosecution witnesses in dim lantern light, is without substance. None of the prosecution witnesses has been cross-examined in this regard. The evidence of prosecution witnesses in this regard is satisfactory. Even otherwise the abductee has identified the appellants in the open Court. In this regard; learned AAG has placed reliance on PLD 1988 Karachi 539, in which it was held that identification parade is not a legal requirement if the accused is identified by the witnesses in the Court.
6. The fourth ground urged by the appellant is that there was exchange of firing between the parties but the prosecution has failed to produce the cartridges, or empties: In reply the learned AAG. Argued that the exchange of fire between the parties admittedly had taken place in a thick jungle and it was not possible to procure the cartridges or empties. This appears to us a reasonable explanation. Lastly, it was contended that it is unbelievable that the appellants would surrender themselves to the police. This cannot be accepted, as the encounter had taken place for about an hour and the appellants were left with no ammunition had no choice but to surrender themselves to the police in order to save their lives.
7. From the record before us we are of the view that' the prosecution has established its case.
Learned A A.G. Also pointed out to us that it is a case under Suppression of Terrorist Activities (Special Courts) Act'1975 wherein by virtue of Section 8, burden of proof is upon the accused persons which they have failed to discharge. In the circumstances, we dismiss the appeal, uphold the conviction and sentences ol the appellants. However, the appellants will be entitled to benefit of Section 382-B Cr. P.C.