1. ' ABDUL MAJID KHANZADA, J.--- The present three matters are outcome of the judgment, dated 21- 12-1991, passed by the Special Court, Suppression of Terrorist Activities, Hyderabad, convicting the appellant Roshan under section 365-A, P.P.C. Read with section 148, P.P.C. To suffer R.I. For life and also confiscation of his property to the Government in Crime No,46 of 1990 of Police Station Bhan Saeedabad, District Dadu, under sections 302, 365-A read with section 149, P.P.C.
2. ' The prosecution case, in brief, as stated in the F.I.R. Lodged by one Jan Muhammad son of Adho Khan Mahisar on 26-4-1990 at 13-00 hours is that he owned a Buffaloes Cattle Pen at Zunfejo Muhallah in Bhan City. He looked after the said Cattle Pen himself. He resides in Yar Muhammad Kalhoro Village and is aged about 60/62 years. On 25-4-1990, he was present in his Village Yar Muhammad Kalhoro when at about Isha prayer time (Somahani time) he came out from his house for call of nature. At about 7-45 p.m. He was in public street of the city, he saw four persons, out of them one was armed with klashnikov, one was armed with rifle, one was armed with gun and one was armed with Lathi and they were in police uniform. He had seen them clearly in light of electric bulbs and shall be able to identify them on seeing again. They caught hold him from arms, and asked him do not raise cries, as they are dacoits. They enquired about Haji Khan Korejo. He told them that he does not know about Haji Khan Korejo. Thereafter, all the four persons took him from the arms and dragged him for some distance, when they reached at public street, they saw Arbab Ali alias Mumtaz Ali son of Ali Gohar Qureshi resident of Yar Muhammad Kalhoro, aged about 20/21 years was standing. The abovesaid dacoits took him from the arms and dragged him forcibly. The abovesaid dacoits kidnapped him then and went away towards north from the village, thereafter, they went towards forest, when they crossed Mirbahar Mori of Warah canal, there appeared vehicle light. On which the dacoits released him and asked that he should inform the relatives of Arbab Ali alias Mumtaz Ali to pay money as ransom. Thereafter, the abovesaid dacoits took Arbab Ali alias Mumtaz Ali Qureshi and went away towards forest. The dacoits disclosed their names as (1) Abdul Karim, (2) Jam Panhwar and they did not disclose the names of the other persons. Thereafter, he returned to the village by foot, and he walked on foot for whole night. In the morning time, he reached village and narrated the above facts to Haji Khan son of Muhammad Saleh, Korejo and other person of the village. Haji Khan brought him to police station for lodging the complaint. On account of this F.I.R. Police started investigation and arrested the above accused alongwith co- accused Anwar son of Jam separately and finally on 21-3-1991, the present accused were challaned.
3. ' Prosecution in support of their case examined the following witnesses: H.C. Of Police Station Sohrab Bhan was examined as (Exh.2). In his deposition he has stated that he was given non- bailable warrant against accused Qurban, Bashir, Adam and Anwar. According to him, accused Anwar son of Jam is confined in Central Jail, Hyderabad, and according to accused Adam, he stated that he has died in encounter with, Haji Ismail police and such F.I.R. Was recorded at police station as Crime No,10 of 1990. He has produced the statements of Muhammad Yaqoob and Muhammad Uris to that effect as (Exhs.2/1 and 2/2). Such order was passed by the Judge, Suppression of Terrorist Activities, Hyderabad on the evidence of H.C. Sohrab of Police Station Bhan that accused Qurban and Bashir are absconding and the evidence recorded to be treated against them as provided by section 512, Cr.P.C. The charge was framed against Roshan son of Mir Muhammad Khusk and Anwar son of Jam on 15th December, 1990 as Exh.3.
4. ' In support of their case, the prosecution examined P.W.1 Jan Muhammad as (Exh.6) according to him he had a Cattle Pen. At about 8-30 p.m. He was standing at the entrance in his house for the purpose of easing himself, when four dacoits came and held him by arms. One of them had klashnikov, the other had a rifle, the third one had a gun and they asked him about Haji Khan. He told them that he had no knowledge. According to him they dragged him to the house of Haji Khan, where Arbab met them at the door of the house of Haji Khan. The dacoits also dragged Arbab with them. Haji Khan was not in his house. The dacoits then took them for about 1-1/2 miles and disclosed their names as Abdul Karim and Jam. According to him, the dacoits left him and told him to ask the parents of Arbab to pay ransom of Rs, lac. He has also produced F.I.R. As Exh.7.
5. ' P.W.2 Ali Gohar was examined as (Exh.8). According to him he and his son Arbab Somanhi had gone to bring meals of Khairat from the house of Haji Khan, when he saw four dacoits armed.
6. Complainant Jan Muhammad was also with them. According to him they went into the house of Haji Khan and came back. The dacoits caught hold of his son Arbab as well as Jan Muhammad and took them away. He identified the dacoits on electric light. According to him, one of them was Roshan as he was living in the vicinity who had a rifle or gun with him.
7. ' P.W.3, Rafique Ahmed was examined as Exh.3 According to him on 24-6-1990, he was Assistant Mukhtiarkar and T.C.M. Sehwan when S.H.O. Of Police Station Bhan sent a letter for holding identification parade of accused Roshan through complainant Jan Muhammad. According to him, the complainant correctly picked the accused Roshan at Serial No,7. He produced the Mashirnama regarding identification as Exh.10. He has also produced Mashirnama of identification parade.
8. ' Exh.11, is deposition of Buxial, P.W.4, who was Mashir of Mashirnama of Sarzameen. According to prosecution he was also the Mashir of identification parade, but according to him he was never taken to the office of the Mukhtiarkar of Sehwan nor any identification parade was held in his presence. According to him, the Mashirnama (Exh.10) bears his L.T.I., but the contents of the same are not correct. He has also disowned Mashirnama of identification (Exh.10).
9. ' Exh 13 is a statement of A.P.P. For giving up H.C. Mushtaq Corpose bearer.
10. ' Exh.14, is the statement of the A.P.P. To examine Co-Mashir Haji Khan son of Muhammad Saleh.
11. ' Exhibit 15 is the evidence of P.W.5 All Bux. He has produced postmortem notes, examination report of deceased Arbab son of Ali Gohar as Exh.16.
12. ' Exhibit 17, is the deposition of P.W.6, Jiando. According to him, he plied Suzuki taxi of Muhammad Hasan Bhand on hire. He knows accused Roshan as he is his cast-fellow. According to him, Roshan had not hired his taxi at any time. According to him, he did not know Adam and Bashir nor they ever travelled in his taxi. According to him, the S.H.O. Had taken him to the Mukhtiarkar's office at Sehwan where his signature was obtained by a clerk of Mukhtiarkar. The contents were not read over to him. He produced 164, Cr.P.C. Statement as- Exh.18, it bears his signature, but the contents are not correct. He was declared hostile and cross-examined by A.P.P.
13. ' Exhibit 19, is the deposition of Muhammad Suleman, P.W.7. According to him, on 24-6-1990, he was Mukhtiarkar and F.C.M. Sehwan Sharif on that day Bhan Police Station had produced witness Jiando son of Umed Ali Khushik for recording his 164, Cr.P.C. Statement in the case against Roshan and others, he recorded the statement in Sindhi and read over to Jiando. He admits the contents of Exh.18. In his cross-examination he has admitted that accused was present at that time.
14. ' Exhibit 20 is the statement of S.P.A. For summoning P.W. Haji Khan son of Muhammad Saleh Kaurejo from the reserved list and also for W.H.C. Irshad Ali.
15. ' Exhibit 21, is the deposition of P.W.8, Irshad Ali, who has stated that he knew Imdad Ali Pitaffi who was S.H.O. At Police Station Bhan. According to him, this S.H.O. Died 2/3 months ago. He is well- conversant with the handwriting and signature of the said S.H.O. According to him; F.I.R. Exh.7 was recorded by him and it bears signature of deceased S.H.O. He also saw Exh.12, Mashirnama of Wardat, which also bears the signature of the said S.H.O. He also produced Mashirnama of the arrest of accused Roshan as (Exh.22) which was prepared by the S.H.O. And which bears his signature.
16. ' Exhibit 23, is the deposition of Haji Khan, P.W.9. According to him, on 25-4-1990, at about 7-45 p.m., he was sitting in his house when three culprits entered in his house alongwith weapons, on the light of electric bulb he identified Roshan. According to him, they were firing in the air and nothing was stolen from his house, so many people collected outside his house and the villagers told him that Mumtaz alias Arbab Ali and Jan Muhammad have been forcibly abducted by them, next morning Jan Muhammad came back and informed him that due to old age he could not identify any of dacoits. He further told him that dacoits are not releasing Arbab without ransom. They went to the Police Station Bhan where Jan Muhammad lodged the F.I.R. After 8 days they were informed that Arbab had been killed by the dacoits. He had also identified the accused Anwar in Court. He did not see Anwar committing the dacoity or abducting Arbab.
17. ' Exh.24, is the deposition of P.W.10, Khadim Hussain. According to him, he was incharge of Police Station Ismail-Ja-Bhan, District Dadu. According to him, he was informed that a dead body is lying near school in his village and he found a plastic Thaili tied with the neck of the deceased. After opening the same he found one paper which contained the name of Arbab. His dead body was also identified by Muhammad Bux and Rasheed Ali. He prepared Mashirnama as Exh.25. He has prepared inquest report as Exh.26. He has also prepared Mashirnama of Wardat as Exh.27. He subsequently, sent the dead body to the Civil Hospital for post-mortem.
18. ' Exhibit 28, is the statement of A.P.P. For closing his side.
19. ' Exhibit 29, is a statement of accused Roshan. Exhibit 30, is the statement of accused Anwar. Exhibit 31 is an application under section 540, Cr.P.C. By the Advocate for the accused Buxial for recalling W.H.C. Irshad Ali and Haji Khan to prove the contradiction in the statement under section 161, Cr.P.C.
20. ' Exhibit 32, is an application by the Advocate on behalf of the accused Roshan to summon H.C. Niaz Hussain Plaintiff of Police Station Bhan in defence.
21. ' Exhibit 33, is the deposition of Niaz Hussain D.W.1. He has stated that is mentioned in 161, Cr.P.C.
22. Statement of P.W. Haji Khan that he had gone in the evening with his work outside the village and returned to his village next morning. Exh.34 is a statement of Advocate for defence to close his side.
23. ' We have heard Mr. Shaikh Meer Muhammad, counsel for the appellant and Mr. Raja M. Irshad, A.A.- G. And also Abdul Latif Channa, who has filed the revision and have also perused the record.
24. According to P.W.1, his spectacles had fallen down as such, he could not see. According to him, he was taken for a distance of only 1-1/2 miles, but again states that he returned in the morning and he walked through out the night. According to him, dacoits had never entered into the house of Haji Khan nor Haji Khan was present at home. According to him he did not identify the accused. He also denied to have identified the accused in presence of Mashir at Sehwan at the office of the Mukhtiarkar. The incident, as alleged, took place on 25-4-1990, at 7-45 p.m. While the F.I.R. Was lodged on 26-4-1990, at 1-00 p.m. According to F.I.R. He walked whole night on foot and in the morning he reached village. According to the father of the deceased Mumtaz alias Arbab he and his son Arbab at Somahani had gone to bring the meals of Khairat from the house of Haji Khan. We fail to understand as to how the dacoits could kidnap a boy for ransom who lives on charity.
25. According to the complainant the witness Ali Gohar resides in Dadu. It is also pertinent to point out here that this witness was never examined by the police as his 161, Cr.P.C. Statement is not available either with the police or with the prosecution nor it is available on record but according to him, his statement was recorded by police after 10 days of the incident, but the same is not available on record. In these circumstances, the evidence of this witness is not to be taken in consideration in view of provision of section 265(c) of Cr.P.C. According to the Assistant Mukhtiarkar, P.W.3 the accused Roshan was brought from the lock-up and his handcuffs were got removed in his office.
26. Buxial (Exh.4) has denied the Mashirnama and had stated that police had got his L.T.I. On the Mashirnama at the police station. P.W.6 Jiando has not supported the prosecution, as according to him his taxi was never hired by the accused Roshan nor accused Adam and Bashir travelled in his taxi. According to him, S.H.O. Sehwan took him to the office of Mukhtiarkar where his signature was obtained by a clerk of Mukhtiarkar and the contents were not read over to him. He has denied the contents of Exh.18. He has also disowned 164, Cr.P.C. Statement. P.W.7 Muhammad Suleman, Mukhtiarkar who had recorded the 164, Cr.P.C. Statement in absence of accused, as such his evidence is of no value nor any notice was given to the accused while recording the 164, Cr.P.C.
27. Statement as provided under law. P.W.9 Haji Khan (Exh.23) is a very important person of the village.
28. According to him, he knows accused Roshan for the last 4/5 years prior to the incident. He had gone to police station alongwith the complainant. According to him, he had identified the accused Roshan also in electric bulb light, but the name of accused Roshan does not appear in the F.I.R. It is also surprising to note that when dacoits specially came to kidnap Haji Khan as per statement of complainant why he was not kidnapped nor anything was taken away from his house. According to complainant the dacoits did not go to the house of Haji Khan who was not at home at that time, but this witness states that he was at home. In his 161, Cr.P.C. Statement he has stated that he had gone out of his village for some work and had come back next day which is probably correct version, but to implicate the accused person, the story has been concocted by this Haji Khan, who is a big contractor. Exh.22, which is the Mashirnama of arrest of accused Roshan shows the place of arrest was lock-up of Police Station Bhan that proves that the accused was already with the police of Bhan.
29. ' We fail to understand as to why the poor boy who lives on charity, was kidnapped and subsequently murdered. If the accused Roshan as stated by the witness Haji Khan and the father of deceased Ali Gohar knew accused Roshan prior to the incident as he lives in the locality then it is otherwise also that the accused must also know the financial position of Mumtaz alias Arbab. The co-accused Anwar had already been acquitted by the lower Court as there was no evidence against him.
30. From the above discussion, we are of the view that the prosecution has not been able to prove the case against the appellant/accused. Accordingly, we allow the Criminal Appeal No,5 of 1992, set aside the judgment and conviction awarded by the trial Court and acquit the appellant who shall be set at liberty if not required in any other case. The Acquittal Appeal No,128 of 1992 and Criminal Revision Application No,50 of 1992 are dismissed.
31. ' Above are the reasons for the short order announced by us in Court on 11-10-1994.