JUDGMENT ABDUL RAHIM KAZI, J.- By this common judgment we intended to dispose of these two appeals arising out of the same judgment involving the same case.
2. Briefly the facts are that on 1.9.1992 at 9.00 a.m. FIR being No. 18/1992 was registered by the complainant Mumtaz Ali with the Police Station Ghaji Dero (now known as Fatehpur) under Section 365-A read with section 149, PPC. The case in the FIR is that at the night of incident which is for months earlier than the date of the FIR, the complainant alongwith his father and family members was sleeping in the house when at about 10:30 p.m. They were awakened and saw five culprits including the for appellants and absconder Ameero Lashari had entered the house by scaling over the wall and were armed with Klashnikovs and shot guns. As per the FIR the culprits had caught hold of the complainant and dragged him outside the house and asked the father of the complainant to arrange for a ransom of Rs. 2,00,Q00/- to get the abductee released. The accused party when cathe out of the house, started firing in the air, their firing was responded by the picket man who were at guard. During this firing from both sides the complainant managed to escape and, thus, the attempt of abduction was foiled. According to the FIR the complainant party did not register any FIR with the Police for the said period of 4/5 months due to fear of dacoits and now that the members of law enforcing agency had taken-over, they found courage to approach the police and got the FIR, registered. The Police arrested the for appellant at Dokri Police Station where they were already in police custody and after completing the usual investigation sent up the case for trial. Charge was framed u/S. 365-A/149, PPC to which the ,appellants pleaded not guilty and claimed trial. The prosecution examined the complainant Mumtaz Ali, his father Muhammad Soomar, two eyewitnesses PWs Nazeer Ahmed and Muhammad Uris and also two mashirs, namely, Ghulam Sarwar and Muhammad Ramzan. Finally Investigating Officer Sanaullah was examined.
The Trial Court after hearing the arguments of the counsel was pleased to pass the judgment convicting the appellants and absconder Ammero Lashari u/S. 365-A, PPC read with Section 149, PPC and sentenced them to suffer life imprisonment and. Further ordered the confiscation of their entire property. Being aggrieved the appellants have preferred these appeals.
3. We have heard Mr. Nooruddin Sarki, learned counsel for the appellants and appellant Qadir Bux Qadro who is present in person having been produced from jail.
4. At the very out-set . The learned counsel for the appellants has pointed out than the prosecution has not only failed to prove the case against the accused beyond any reasonable doubt but have absolutely not proved the case. He has referred to the evidence of the witnesses and the circumstances and facts brought forth to show that there is absolutely no probability of the conviction of the present appellants on the basis of the evidence which is produced on the record.
The learned counsel has referred to the case of Rafiq v. The Crown (PLD 1955 Federal Court 70).
Wherein their Lordships have been pleased to observe that: "In this connection it is necessary also to observe that if (he facts of a case provide elements which go in favour of an accused person, there is nothing in law to require, and it would be anxious to the whole system of justice as operated in this country, that the prosecution should deliberately refrain from presenting evidence of such elements also before the Court. It is true that the Court decides, the case on the evidence, but justice requites that evidence shall disclose the truth to the maximum extent that may be possible irrespective of the result. The duty of producing evidence falls, in the main, upon the prosecution."
5. He has also referred to the case of S. Mehmoodi Alam Shah v. The State) PLD 1987 SC 250). It may be observed that while dealing with a case under criminal law the Court is obliged to take into consideration all matters placed before it before arriving at the conclusion whether a fact stands proved or not. Proof of a fact would depend not only upon the accuracy of the Statement but also upon the probability of such facts having existed. The ultimate responsibility to give necessary findings on facts vests with the Court which is undivided and complete. In the present case a plain reading of the judgment of a Trial Court goes to show that the Trial Judge has held that all the witnesses have deposed correctly and there is unanimity in their evidence. The Trial Court has, it appears, omitted or neglected to refer to material considerations in the evidence of the witnesses which would further go to show the improbability of the facts as are alleged to have taken place.
6. The learned counsel for the appellants has at the very out-set pointed out that even the time and manner of the incident stand belied and there are material contradictions in the depositions of abductee (complainant) and his father in whose presence abduction is said to have taken place. According to the complainant he was abducted by the accused about 4/5 months prior to the registration of the FIR which was done on 1.9.1992 at 9.00 a.m. Against this the father of the complainant in his deposition has given specific date of the incident to be 1.9.1992 and the time of incident given by him is 10.00 or 10:30 p.m. Now this fact alone goes to shatter the entire prosecution case give as per FIR the evidence of complainant shows the time and date of incident to be 10:30 p.m. About 4 and 5 months prior to registration of the FIR. This fact has not been dealt with by the Trial Judge while discussing the evidence. According to the learned counsel for the appellants the prosecution has also not been able to prove the manner in which the incident is alleged to have taken place. According to the complainant the two picket men, namely, Nazeer Ahmed and Muhammad Urs were on guard duty in the night when the incident is said to have taken place. PWs Nazeer Ahmed is said to have been on guard duty in the street while Muhammad Urs was on guard duty on the back side of the house of the complainant. However, in cross- examination the complainant states that Nazeer Ahmed was on duty .At the Flour Mills. According to the evidence there were a number of picket posts established in the Village and different people were on duties at different picket posts. As discussed above the. PWs Nazeer Ahmed is said to have been on guard duty in the street or at the Flour Mills. This witness, Nazeer Ahmed, in his deposition states that he was on duty in the picket which was situate on the roof of his house which is a different place. According to this witness, Nazeer Ahmed, eight (8) persons had entered into the house of the complainant for kidnapping him while the complainant and his father state that only five (5) persons had entered and were standing outside the house. Not only this but there are other material contradictions. According to the complainant Qurban Jogi and absconder Ameero Lashari both were carrying klashinkovs but in the FIR only Ameero Lashari is said to have been armed with klashnikov while the other were armed with shot guns.
7. The learned counsel for the appellants has then argued that very arrest and recovery of arms is also doubtful. The counsel has referred to the deposition of PW Ghulam Sarwar, who has acted as mashir of recovery and arrest. According to this witness, he is a friend of the complainant Mumtaz and on the day when such arrests were made he had visited the complainant when police came there and prepared a mashirnama of wardat and also obtained his signatures on different documents on different dates showing the arrest of the accused persons. In his cross- examination-in-chief this witness states that his signatures were obtained by SHO at his village. He, in the same breath also states that he had signed the memos, of arrest on different dates but he does not remember as to how many times the SHO had visited his village. In his cross-examination he says that the SHO had visited his village on quite sometimes and the accused were already with the police when they had gone to his village for signatures on the memos, of arrest. This witness further states that the arrest was made about two months after the inspection of wardat. As against this SHO Sanaullah, who is the Investigating Officer states that he came to learn that the accused were in custody of Dokri Police Station and that he went there to arrest the accused at Dokri Police Station and at that time PW Ghulam Sarwar the mashir was with him. This Ghulam Sarwar does not say so but the evidence as discussed above is quite contrary. The learned counsel has further pointed from the evidence of the Investigating Officer that although the accused, to the knowledge of Investigating Officer were at Police Station Dokri but he made arrests of these accused on different dates. Accused Qurban and Hanif were arrested on 15.9.1992 while accused Abdul Kadir was arrested on 5.10.1992 and accused Qurban Jogi was arrested on 3.11.1992. There is no explanation on the record as to why these arrests were made on different dates when according to the Investigating Officer all these accused were in police custody at Dokri Police Station. The father of the complainant PW Muhammad Soomar in his evidence states it was only after acquiring the knowledge that the accused persons have been arrested by Army Personnel that they approached the Police Station for registration of the FIR. This fact also does not stand supported by any other independent evidence. The very fact that there is a delay of for months in lodging the FIR would give rise to inference against the case of the prosecution.
8. The deposition of the SHO further shows that much before the registration of the FIR i.e. Soon after the commission of the alleged kidnapping, he , had the knowledge and he had also visited the village of the abductee but yet he did not register the FIR although on his own admission in cross- examination, this being cognizable offence he was under an obligation to register such FIR and undertake investigation. The reason given by the SHO is that the abductee or his father were not willing to get the FIR registered. We are afraid, we cannot subscribe to such plea taken by the prosecution. It is bounden duty of a Police Officer to register the FIR if he acquires the knowledge of the commission of a cognizable offence and to undertake the investigation thereof. The very conduct of the concerned SHO in not only avoiding to register the FIR promptly but the manner in which he has done the investigation in the present case goes to show that he is either not a fit person to hold such an important post or he has deliberately left such lacuna in the case. The competent authorities should have taken action against the said SHO which we very strongly recommend.
9. The learned counsel for the appellants has further- referred to the deposition of the complainant who has produced the FIR as Ex. 8/A and states that it is the same, correct and bears his signatures.
We have seen the original FIR Ex. 8/A produced at the time of the trial and can very certainly say that the same is totally not readable. Even such note has been made by the Trial Court in the deposition of the SHO, Sanaullah Ex. 14 who was confronted with the FIR. It is' not understood, as to how then the complainant could have said that the FIR produced in Court is correctly written. Even the SHO in his evidence states he had signed this FIR which was written at his instruction by the Head Moharrir. We do not understand as to how a Police Officer, such as Station House Officer, would sign a document which he himself cannot read the same being illegible. Thus if appear, from the above discussion, that not only the SHO but also the Trial Court have acted mechanically.
10. As against the above, the learned counsel for the appellants has pointed out that the present appellants have been involved in this case on account of enmity which fact was suggested to the complainant and the father of the complainant in cross-examination. It is, however, admitted that the present appellants are also involved in a criminal case registered with regard to kidnapping of Gul Hassan, a relative of the complainant who had been kidnapped sometime before the present alleged abduction of the complainant. The accused in their statements u/S. 342, Cr.P.C, have also pointed out to enmity between the parties wherein they had opposed the marriage of one girl from their clan.
11. In view of the above discussion we are of the view that the prosecution has not been able to prove any case against the present appellants who have been involved falsely on account of enmity. According, we accept these appeals and set aside the conviction and sentence awarded by the Trial Court. The appellants are in custody. They shall be released forthwith if not required in any other case.