' FAZAL ILAHI KHAN, J.---Leave was granted in this Jail Petition against the judgment of learned High Court of Sindh, Karachi, dated 27-9-1992; whereby, the conviction and sentence awarded to the petitioner by the trial Court was maintained in Criminal Jail Appeals No, 84/91 and 278 of 1991.
2. Facts of the case as given in the first information report, lodged by Hussain Bakhsh complainant, briefly stated are that on 20-9-1989 at night Muhammad Moosa, his brother, alongwith Khan Nizamani bad gone to the Bari garden of Muhammad Ramzan which was on lease with Sheral Nizamani, as it was their turn of irrigation. At night the complainant had taken meal for both of them and when at about 10 p.m. He again went to the garden to collect the utensils, Muhammad Moosa and Khan Nizamani both were missing. In spite of search they could not be traced, therefore, he came back and informed his co-villagers who accompanied him to the garden but it being odd hours of the night no clue could be found. In the morning footprint trackers were called who accompanied by the police traced some foot prints leading up to a Pukka Road only, therefore, they gave up the search and lodged the report at 18-30 hours on 21-8-1989 in the police station. In the report two unknown persons were charged for suspected kidnapping of his brother and his companion viz. Khan.
3. It is evident from the record that Muhammad Moosa abductee was released by the decoits on the second day of the occurrence and he was directed to send ransom for the release of his companion. Muhammad Moosa on his return appeared before the police and made his statement on the 3rd day of the occurrence.
4. The prosecution connected the appellant with the commission of the offence on the ground that on 16-11-1989 at mid-night Gul Muhammad, S.H.O., during Nakabandi at Latif Shah Bridge arrested Tayyab appellant, Yousaf, Ibrahim and Moosa with their respective arms and ammunition in presence of Ghulam Nabi and Muhammad Latif, A.S.I. The appellant was having Klashnikov and bullets while the others had double-barrel shot guns except Moosa acquitted accused who had a country-made pistol. A case under the Arms Ordinance was registered against the accused. The S.H.O. Suspected the arrested persons to be members of the gang of decoits, directed the A.S.I. To arrange identification parade of the accused in the abduction case from the witnesses referred to above. Accordingly, an identification parade was held by Mushtaq Ali (P.W.6) Mukhtar-e-Kar on 17- 1-1990. In the identification parade Tayyab and Yousaf, who were produced before him in handcuffs, were made to stand with 18 others whereafter Khan (P.W.2) was called who identified the appellant and Yousaf to be the persons who had abducted them.
5. On completion of investigation the accused were put on trial and were formally charged under section 365-A/34, P.P.C. By Judge Special Court, Hyderabad, to which they did not plead guilty.
Prosecution in support of its case relied on the statements of Khan (P.W.2) and Muhammad Moosa (P.W.7) both the abductees, the identification parade held by Mushtaq Ali (Mukhtar-eKar) (P.W.6) and the circumstantial evidence.
6. The learned Special Judge vide judgment dated 27-10-1991 basing reliance on the abductees and the identification parade found that the prosecution was successful in proving the guilt of the accused/appellant beyond any reasonable doubt, convicted and sentenced him to life imprisonment and ordered confiscation of his entire movable and immovable property, while Yousaf co-accused was acquitted by giving him the benefit of doubt on account of certain contradictions in the statements of the witness regarding his identity. The appellant's conviction and sentences was maintained by the learned High Court in appeal as stated above.
7. Leave was granted to examine whether in the absence of any description or marks of identification in their statements by the P.Ws. Made before the police and in the presence of one of the abductee's statement that the abductors had muffled their faces and his silence about the identification of the accused, the appellant's conviction could be maintained.
8. As stated earlier the accused were not charged by name in the F.I.R. Nor their description was given but when the foot-trackers found footprints of 4 persons it was suspected that two of them were the abductees and the other two were the accused. The accused/abductors could not be traced as the footprints were traced up to the Pukka Road and not beyond that. The only evidence of some substance is the statements of the two abductees viz. Muhammad Moosa (P.W.7), a labourer, who was released by the decoits on the same night with 'a mission to arrange for the ransom for the release of Khan Nizamani that of Khan Nizamani (P.W.2).
9. As far as the statement of Muhammad Moosa is concerned he did not appear when the identification parade was arranged and was called for recording his statement at the trial. It was at the time of recording such evidence that he stated, 'pointing towards Tayyab', that he was the man who abducted him. Such evidence can hardly be relied upon as identification of the accused and corroboration to other evidence and made basis for conviction. No doubt Tayyab and Yousaf both were identified by Khan (P.W.2) in the regular identification parade held by Mushtaq Ali (P.W.6), but evidenciary value of such identification can be judged in the light of the circumstantial and direct evidence if available in the case. It is not denied that the identification parade was held on 16-1- 1990 i,e. After two months of the arrest of the accused and the only explanation given for said delay is that the accused were required in several other cases. This explanation cannot absolve the prosecution of the element of doubt created by such inordinate delay that during the period of 2 months the witnesses had every chance to see the accused. Even otherwise Muhammad Moosa (P.W.7) has clearly stated that accused had muffled their faces while Khan (P.W.2) has stated that their faces were not muffled. This material contradiction further made the C prosecution case more doubtful as far as identification of the accused is concerned.
10. In the circumstances of the case the appellant's conviction on the basis of such evidence is not maintainable. Accordingly, the appeal is accepted, the D judgments of the learned Courts below are set aside and the appellant is acquitted of the charge. He shall be released forthwith if not required in any other case.