1. ' WALI MUHAMMAD KHAN, J.---These two petitions, Criminal Petition No, 25-K/94 and Jail Petition No, 52-K/94 are directed against the judgment dated 12-1-1994 passed by a learned Division Bench of the High Court of Sindh, whereby Criminal Appeal No, 118/92 filed by All Sher, petitioner herein, against the judgment of the learned Judge, Special Court for Suppression of Terrorist Activities, Larkana dated 5-5-1992, convicting him for offence under section 365-A/149, P.P.C. And sentencing him to suffer imprisonment for life, and also convicting him under section 395/397, P.P.C. And sentencing to suffer seven years' R.I. Plus fine of Rs,1,000 or in deault to one year R.I., was dismissed.
2. However, the appeal of his co-accused Muzaffar Ali was accepted and his conviction and sentence set aside.
3. ' The facts of the case, briefly stated, are that Nazir Hussain P.W.2 was employed as a driver by one Manzoor Shaikh resident of Shandadkot, District Larkana to ply his taxi. On the day of occurrence viz. 10-12-1990, Nazir Hussain P.W. 2 took Abdul Hameed P.W.6, Mir Hassan P.W.7 and Hassan Ali P.W.
4. 5 in his car for taking them to Larkana and the complainant Ghulam Hussain P.W. 1 also accompanied them and when they travelled for about 3/4 kilometres from Shandadkot and reached near Shahi Village, a car overtook them and stopped in front of their car forcing Nazir Hussain to stop his car, and five culprits got down from their car while one remained sitting in the driver's seat. Two of the culprits were in police uniform. They brought down Nazir Hussain and Hassan All from the car and made them sit in their car (hereinafter to be referred to as the car of the culprits). The other three culprits sat in the car of the complainant party and one of them started driving the same and after covering 2/3 kilometres, the culprits threw out the complainant on the road and continued travelling both the cars onwards. The complainant proceeded on foot and en route met Rafiuddin Khoso, the SHO of Mirokhan and his police party to whom he narrated the incident. The police party were having a police van and the SHO immediately transmitted a wireless message to various police stations of the District and himself took the complainant alongwith him and started in chase of the kidnappers. When they reached near Gaibidero bypass they came across the police officers of other police stations and all of them started pursuit of the culprits by following tracked wheel marks on the road over which they had kidnapped the complainant party. An encounter were between the dacoits and the police party as a result whereof they were able to 'capture' one of the culprits and rescue Mir Hassan and Abdul Hameed kidnapees P.Ws. 15 and 14 but the remaining dacoits succeeded in taking away Nazir Hussain and Hassan Ali P.Ws. On inquiry from the apprehended culprit, he disclosed the names of All Sher petitioner herein and Muzaffar All acquitted accused. The dacoits had also abandoned both the cars. As a result of the encounter Ali Sher petitioner was arrested and from his personal search a key of the car abandoned by the dacoits was also recovered from him. Both the cars were taken into possession and brought to the police station alongwith the petitioner and the abductees named above where the complainant lodged the F.I.R. Exh. 4-A which was recorded by Rafiuddin SHO Mirokhan Police Station. He prepared the necessary Mashirnamas, recorded statement of the abductees, inspected the spot. Muzaffar Ali acquitted accused was found absent from duty alongwith Government service rifle. The petitioner All Sher was produced on 12-12-1990 before Assistant Mukhtiarkar and Second Class Magistrate Mirokhan and got indentified by abductees in a regular identification parade. Ali Sher also made a judicial confession before the Mukhtiarker and F.C.M., Mirokhan. He was challaned to the Court on 26-12-1990 while Muzaffar Ali and other co- accused were shown as absconders. Nazir Hussain and Hassan Ali were later on released by the culprits and on their appearance before the police their statements were recorded under section 161, Cr.PC. And under section 164, Cr.P.C. Muzaffar Ali acquitted accused was subsequently arrested and supplementary challan put in Court against him. The absconders did not respond to the non- bailable warrants of arrest issued against them and proceedings under section 512, Cr.P.C. Were initiated against them.
5. ' The petitioner and acquitted accused Muzaffar All were challaned to the trial Court where they denied the charge-sheet framed against them and claimed trial. The prosecution produced Ghulam Hussain Complainant/P.W.1, Nazir Hussain P.W. 2, Hassan All P.W. 5, Abdul Hameed P.W.6, and Mir Hassan P.W.7, the abductees in support of its case besides Zulfiqar All P.W. 3, Ubed Ullah P.W. 4, Muhammad Meenhal P.W.9, Rafiuddin P.W.10, Mehar All P.W.11, all police officials, and Bashir Ahmad P.W.8 Mukhtiarkar and FCM, Mirokhan who recorded the confessional statement of the petitioner. The accused/petitioner was examined under section 342, Cr.P.C. Who denied the questions put to him arising out of the prosecution evidence and in answer to question No, 23 made a counter-allegation that he was kidnapped by four persons armed with KKs, robbed of the key and after his hands were tied down he was thrown in the rear seat of the car and themselves began driving the car towards Shandadkot side and en route stopped a car coming from Shandadkot and getting down two of the inmates of the said car and making them sit in this car, drove both the cars towards the mountains when his car stuck up in the sand dunes and the culprits leaving him in the car continued driving the other car further on. According to him, after some time police arrived there, untied his hands, made inquiries from him and took him to the police station and on the arrival of his relatives the police demanded money from them. He stated that the confession was obtained through force and duress. He did not like to record his statement on oath but stated he will produce defence and tendered Rehmatullah D.W.2 in his defence. On the appraisal of the evidence produced in the case and the plea of the accused/petitioner, the learned Judge, Special Court for Suppression of Terrorist Activities, Larkana, vide his judgment dated 5-5- 1992, found the petitioner as well as his co-accused Muzaffar Ali guilty of the offence under section 365-A read with section 149, P.P.C. And sentenced them to life imprisonment and forfeiture of their property to the Government. They were also found guilty under section 395 read with section 397, P.P.C., convicted them thereunder and sentenced them to seven years' R.I. Each and a fine of Rs,1000 or in default one year R.I. The substantive sentences were ordered to run concurrently and the benefit of section 382-B, Cr.P.C. Also extended to them. However, they were acquitted of the charge under section 148, P.P.C. The appeal filed by the petitioner before the High Court was dismissed through the impugned order. However, the appeal of his co-accused was accepted and he was acquitted of the charges against him. Hence the instant petition for leave to appeal.
6. ' We have heard Mr. Khalid Ishaque, Advocate, for the petitioner; Mr. M.A.I. Qarni, Advocate, for the respondent; and have perused the record of the case.
7. ' The learned counsel for the petitioner took pains to read out almost the entire record of the case for us and tried to persuade us that the police had invented the story of hectic chase of the culprits and the cross-firing between them and the culprits and that their version is not corroborated by any circumstantial evidence in the form of recovery of bullets, empties or any bullets/pellets marks fired by them. He also asserted that in spite of numerical superiority and being duly armed they were not able to either apprehend any of the culprits or were able to rescue any of the abductees from their dutchyes though, according to their version, they left the car after the encounter and took away the kidnappees on foot. The learned counsel referred to the statement of Ghulam Hussain P.W.1, Nazir Hussain P.W.2, Hassan All P.W.5 and submitted that according to the deposition of these witnesses the abductees had muffled their faces and consequently, they could not posssibly identify any one of them and that since the accused/petitioner had stayed behind in the car, his identification was out of question. About Mir Hassan P.W.7, he argued that he had not indentified any culprit at the identification test acccording to his own doposition before the Court on account of which the learned APP requested to cross-examine him which was granted.
8. Similarly, according to him, Abdul Hameed P.W.6 was also afforded an opportunity by the police to see the petitioner Ali Sher before the identification test as is apparent from his cross-examination.
9. Be that as it may, all his efforts apparently were directed to create doubt in the prosecution case so far as the other culprits were concerned and was of little benefit to the case of Ali Sher petitioner who had been apprehended at the spot alongwith the car and the kidnapees, and also being in possession of the key of the car. The petitioner himself has not denied his arrest at the spot but has offered are explanation that he too, had been kidnapped by the dacoits and his car was stuck in the sand dunes and he was arrested by the police. He has not stated anything about the presence of two kidnapees in his car. Abdul Hameed P.W. Who was in his car at the time of his arrest did state on oath that when both the cars were stuck up in sand, there took place an encounter between the police and dacoits and during the encounter they raised shouts that they were abductees and to be saved. He also stated that the police secured both the cars and captured one of the dacoits and recovered him and Mir Hassan P.W.7. The witness pointed to Ali Sher petitioner as the person who had been captured by the police. He also testified to the correctness of the identification parade in which he correctly picked up the petitioner as one of the dacoits. Mir Hassan P.W.7 has made an obliging statement in favour of the petitioner. Ghulam Hussain P.W.1 who was accompanied by the police after he was dropped by the dacoits on the way, in his statement in Court has deposed about the pursuit of the dacoits by the police and the apprehendig of one of the culprits (Ali Sher petitioner) and rescuing of Abdul Hameed P.W.6 and Mir Hassan P.W.7 from their clutches and also securing key of the car from the possession of the petitioner. In his presence the culprit was apprehended by the police who disclosed his name as Ali Sher but did not disclose the names of other culprits. In his presence the petitioner did not disclose that he too, was kidnapped by the dacoits or that his handswere tied when the police apprehended him. The statements of Nazir Hussain P.W.2 and Hassan Ali P.W.5 are not very much relevant so far as the case of the petitioner is concerned as they had been made to sit in the other car which was plied by Nazir Hussain as driver and the dacoits had been succeeded in taking them to mountains in spite of the counter and therefore, there was no occasion for them to see the petitioner who was driving the car in which Abdul Hameed and Mir Hassan P.Ws. Had been made to sit.
10. ' In addition to the direct evidence referred to above, there is the confessional statement of the accused/petitioner recorded by Bashir Ahmed, Mukhtiarkar/FCM, Mirokhan (P.W. 8) Exh.P-13-A, duly thumb-impressed by the accused/petitioner, after he was made to understand that he is not bound to make confessional statement, and that the same shall be used against him at the trial. In his confesssional statement, he has confessed his participation in the alleged dacoity from start to finish, though this confession has been retracted, but it has the support of direct and circumstantial evidence and therefore, was rightly taken into consideration by the trial Court as well as the High Court against the accused/petitioner.
11. ' From the narration of the above facts, it is amply clear that the petitioner was the driver of the car in which the dacoits were sitting and through which the car of Nazir Hussain P.W.2 was overtaken and stopped. This very car was found stuck in the sand after covering some distance alongwith the two abductees, namely, Abdul Hameed P.W.6 and Mir Hassan P.W.7 and the police in the presence of Ghulam Hussain complainant/P.W.1 were able to apprehend the petitioner and rescue the aforementioned abductees. The explanation offered by the petitioner has been fairly considered by the trial Court as well as the High Court and kept out of the consideration as an afterthought, and not supported by any direct or circumstantial evidence. We do not find any legel or factual flaw in the impugned judgments of the trial Court as well as the High Court and are not inclined to grant leave to appeal.
12. ' Resultantly, the instant Criminal Petition No, 25-K/94 and Jail Petition No, 52/94 are dismissed and leave to appeal refused.