1. ' MRS. MAJIDA RAZVI, J.--- This criminal appeal has been filed against judgment, dated 7-3-1991 passed by the learned Special Judge for Suppression of Terrorist (Activities), Larkana' in Special Case No,113 of 1990 awarding sentence for life imprisonment under section 365-A, P.P.C. The brief facts as per No,20 of 1990, dated 8-2-1990 are that one Haji Muhammad Juman lodged the complaint with Bakrani Police Station stating therein that he owns land in Deh Bhangi Kalhoro wherein the paddy crop was cultivated and some paddy crop was stored also where his nephews namely Ahmed son of Haji Ghulam Hussain Qureshi aged about 15 years and Rabel aged about 13 years used to sleep for watching purposes. On the night of 6-2-1990 after taking meals the two nephews named hereinabove went as usual but when on 7-2-1990 the complainant along with Muhammad went to the Dera he found both Ahmed and Rabel missing. They enquired from neighbors and found foot tracks of four persons along with foot tracks of Ahmed and Rabel leading to bank of Rice Canal wherein foot prints disappeared. The complainant thereafter, went back and informed Muhammad Hassan, Uris and Pagi Khuda Bux who also tracked the foot prints to the point of Rice Canal, On their return they informed about the incident to their Nekmard Allah Bux Qureshi who advised them to lodge the' The complainant suspected that Kalhoros, with whom they have old enmity may have kidnapped the two nephews.
2. ' After lodging the F.I.R. The prosecution took up the investigation and recorded statements of P.Ws.
3. And on 15-3-1990 arrested the present appellants along with co-accused Sikandar and submitted challan in the Special Court. The prosecution examined the following P.Ws. Haji Juman, Saeed Ahmed, Mukhtiarkar, Muhammad Yakoob, Mukhtiarkar, Muhammad Nawaz, Investigating Officer, Muhammad Yaseen, P.C., Qadir Bux, Mashir, Ahmed and Rabel in support of the case and closed its side. Out of the present accused only Mevo recorded his statement on oath but the remaining accused neither recorded their statements on oath nor led any defense. After recording of evidence and hearing the parties following issues were framed by the learned trial Court for determination:-- "(1) Whether P.Ws.; Ahmed and Rabel were kidnapped on the fateful night?
(2) Whether they were kidnapped by culprits for extorting money from them or their relatives for their release?
(3) Whether accused or any of them kidnapped these two 'witnesses for extorting ransom for them?"
4. ' Issues (points) Nos.1 and 2 were replied by the learned trial Court in affirmative while Issue (point)
5. No,3 was also decided in affirmative except in regard to accused Sikandar, who was acquitted.
6. ' We have heard both the counsel and have perused the pleadings and the record. Miss Masooda Siraj, the learned counsel appearing for the appellant contended that no tracker was sent by the police and no names were given in the F.I.R. Further that, the co-accused Sikandar whose case was similar to the present accused or may be on better footing was acquitted on the same evidence on which the present accused were convicted. Her further contention was that the judgment of the learned trial Court is full of contradictions and as such the same should be set aside and the accused be acquitted.
7. ' Mr. Habib Ahmed, the learned A.A.-G. Could not controvert the facts given by the learned counsel for the defence. His submission was that even if the prosecution story is accepted the proper procedure as laid down under law was not followed by the police and as such he is not supporting the judgment.
8. ' While going through the depositions of the witnesses we have noticed that Ahmed P.W.2 in his statement stated that they were left by the abductors after five days and at the same time he also stated that in the absence of the old man who used to serve meals he and Rabel slipped away.
9. According to him, the abductors had demanded Rs,4,00,000 (Rupees four lacs) as ransom money.
10. In cross-examination he admitted that they were not produced before the police nor were put to an identification parade before the Magistrate. He further, stated that the statement under section 164 was not recorded by the Mukhtiarkar and F.C.M., Larkana. He further categorically stated that he did not identify any of the culprits being Ali Muhammad, Bux Brohi nor he gave a statement that Ali Muhammad was armed with rifle or that Wahid Bux and Mevo used to keep watch on them. He further, denied having stated that Ali Muhammad removed cloth from their eyes and asked Sikandar to write a letter to the relatives for payment of Rs,2,00,000 (rupees two lacs). He also denied that Ali Muhammad and Wahid Bux asked Sikandar to keep a watch over them nor that Sikandar asked him and Rabel to write a letter for ransom. He categorically denied that he has been won over by the accused side and as such deposing otherwise than what is allegedly stated by him in the statement under section 164. On a question put by the Court he said that the Magistrate had not noted his identification mark and denied having a black mole on the left side of his neck. Rabel the other alleged abductee also denied the contents of statement under section 164, Cr.P.C. He denied having identified the culprits Ali Muhammad and Bux Brohi. He admitted that he had black mole beside his left eye but was not shown to the Magistrate. He denied having given any statement under section 164, Cr.P.C. But according to him it was written by the Magistrate himself, further that while his statement was being stated by the Magistrate the present accused were not present and the statement was signed by him while he was watching in Verandah. He clearly indicated that he was involved due to enmity and was falsely implicated.
11. ' Qadir Bux who acted as Mashir stated that police took his signatures on a white paper without reading to him the contents of the same. He denied the contents of the Mashirnama when it was read over in the Court. He denied that the present appellants were arrested in his presence. He also denied that Muhammad Pinyal was his co-Mashir. According to him, he was forced to sign the papers.
12. ' After going through the statements and the cross-examination it is surprising as to how the learned trial Court convicted the present three accused while acquitted Sikandar as the entire evidence on record is the same against all the accused except that hatchet was recovered from Sikandar. In our opinion, the learned A.A.-G. Is right when he stated that police/prosecution did not follow the proper procedure and that there is nothing on the record which implicates the other accused while gives a clean slate to Sikandar who was acquitted. Mr. Habib Ahmed, the learned A.A.-G. Relied on the case of Minhon and another v. The State 1996 PCr.LJ 528, wherein the prosecution witnesses who had identified the accused in the identification parade did not implicate the accused in the crime at the time of trial. It was observed by the Court that "retracted confession should not be acted upon and made the basis for conviction unless it is corroborated in material particulars". From the evidence it is clear that no identification parade was held after the accused were arrested. The abductees were not produced before the police nor statement under section 164, Cr.P.C. Was recorded before the Magistrate. The accused Mevo in his statement on oath denied the involvement in the crime and stated that they have been involved due to enmity between his tribe Kalhoro and Qureshis which is the caste of the complainant and alleged abductees. His statement was that his thumb-marks were taken on blank paper and he was not aware as to what was written on the said paper as it was not read out to him. We have also noticed that except hatchet which was recovered from Sikandar no other weapons were recovered from any one of the accused. The prosecution witness Muhammad Juman stated that no trackers were sent by the police nor any tracking was done with the help of any private trackers. According to him, Ahmed and Rabel the abductees returned five days after the incident but the said abductees could not give any names of the abductors or their addresses or if they carried any weapon.
13. ' In the light of evidence and considering over all circumstances and violation of procedure as laid down in Criminal Procedure Code, by a short order, dated 15-10-1997 we had set aside the judgment, dated 7-3-1991 and acquitted all the three accused/appellants.