' ABDUL HAMEED DOGAR, J.---This appeal is directed against the judgment dated 5-12-1994 of learned Judge, Special Court (Suppression of Terrorist Activities Act), Nawabshah whereby he convicted and sentenced the appellants under sections 365-A and 34, P.P.C. With imprisonment for life and also ordered forfeiture of their movable and immovable property to the extent of Rs,50,000 or in default thereof to undergo further R.I. For three years each.
2. Briefly the facts of the prosecution case are that on 30-11-1992, complainant Muhammad Ismail lodged F.I.R. No,134 of 1992 at Police Station Moro stating therein that he and his maternal uncle Shamsuddin reside together in one room and on 19-10-1990 he alongwith his guests Muhammad Bux Korai, Darya ,Khan and his maternal uncle Shamsuddin and relative Haji Karim Bux were chit chatting in otak when at about 9.00 p.m., 8 docoits entered inside the otak who were identified on the light of electricity as Azoo alias Azizullah Almani, Dost Ali Mar armed with kalashinkov, Khudoo Mari, Isso Machi armed with guns and rest four unknown docoits armed with rifles and guns. It is further mentioned that on the pointation of arms the deciots abudcted complainant Muhammad Ismail and Shamsuddin and after covering 1 k.m. When they reached near houses of appellant Muhammad Hassan Mullah and Ghulam Nabi, they fired in air and on the fire reports appellants came out from their houses. Thereafter abductees were taken to Keti Leghari forest where dacoits Sawali Mari and others were present. On 21-10-1990 decoits Azoo Almani and others informed complainant that they were releasing abductee Shamsuddin with the message to his parents to bring Rs,2,00,000 as ransom for the release. Complainant further narrated in F.I.R. That on 24-10- 1990 his cousin Shamsuddin brought ransom amount of Rs,2,00,000 and handed over the same to dacoits Azoo Almani in presence of others dacoits. The complainant was then released with the direction not to report the matter to police or inform anyone else he will be killed. After 1-112 years he was summoned by army officials and was advised to lodge F.I.R. As such he lodged the same on 30-11-1992.
3. The appellants were arrested and sent up to face trial on 26-11-1993. ' Co-accused Azoo alias Azizullah Almani was declared as proclaimed offender and case proceeded against him in his absence in terms of section 5-A (4) of Act XV of 1975. A formal charge was framed against appellants to which they pleaded not guilty and claimed trial.
4. At trial prosecution examined Muhammad Ismail, complainant, abductee Shamsuddin, P.Ws., Haji Karim Bux, Darya Khan, Muhammad Parial Mashir of Wardat and arrest, Muhammad Bux and Khair Muhammad (I.0.).
5. Appellants in their respective statements under section 342, Cr.P.C. Denied all the allegations of the prosecution and stated that they have been falsely implicated due to enmity with complainant.
Appellant Haji Karim Bux in his statement stated that one Moto, Hari of complainant, had stolen his bullock and such report was made with Haji Sattar who called Moto, and complainant Muhammad Ismail in Faisla and decided that complainant should pay Rs,10,000 as fine and because of such enmity he has been involved in this case.
6. Appellants did not examine themselves on oath as required under section 340(2), Cr.P.C. But examined Haji Abdul Razzak in their defence.
7. On the assessm ent of evidence learned trial Court found the appellants guilty of the offence and convicted and sentenced them as mentioned above.
8. We have heard Mr. A.Q. Halepota on behalf of the appellants and Mr. Habib Ahmed, learned Assistant Advocate-General on behalf of the State at length. Learned counsel for the appellants contended that according to F.I.R. As well as the statements of abductees' Muhammad Ismail (complainant) and P.W. Shamsuddin recorded at trial, appellants were neither present at the time of occurrence nor played any roll in the abduction of the said abudctee. Mere mention that they came out of their houses on fire reports made by co-accused Azoo alias Azizullah Almani and other decoits while going alongwith abductees by the side of their houses, will not in any manner connect them with the alleged offence. He further argued that as per F.I.R. As well as statements of abductees no conversation of any sort took place in between the decoits as well as appellants, therefore, the prosecution has failed to bring on record any link connecting the appellants with the offence. According to him even no evidence of whatsoever nature has been brought on record by the prosecution of hatching any conspiracy or abetment of offence by the appellants with regard to abduction of abductees. Learned counsel lastly submitted that in the statements under section 342, Cr.P.C. The appellants have been asked such questions which had no relevancy with their case as had emerged from F.I.R. As well as that of abductees and other witnesses, therefore, the prosecution has failed to prove the case against the appellants and they deserved to he acquitted.
9. Learned Assistant Advocate-General frankly conceded to the arguments advanced by the appellants' counsel and argued that prosecution has not been able to collect any sort of evidence against the appellants and has miserably failed to prove the case against them, as such, he had no objection if appeal is allowed.
10. We have given anxious thought to the contention advanced by the learned counsels and have gone through the evidence recorded at trial. On the factum of abduction, the abductees Muhammad Ismail (complainant) and P.W., Shamsuddin and eye-witnesses, namely, Haji Karim Bux, Darya Khan and Muhammad Bux have implicated at trial only co-accused Azoo. Dost Ah Mari, Khudoo Mari and Isso Machi and four unidentified decoits. Both abductees in their respective statements before the trial Court have not deposed even a single word against the appellants that they were either present at the time of incident or played any roll in their abduction, on the payment of ransom amount of Rs,2,00,000 both of them have stated that the same was received by co-accused Azoo. In the absence of such evidence appellants cannot be convicted under section 365-A, P.P.C. For proper appraisal we find it appropriate to reproduce section 365-A, P.P.C.
As under:-- "Kidnapping or abduction for extorting property, valuable security, etc.--- Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise for obtaining release of the person kidnapped or abducted, shall be punished with (death or) imprisonment of either description for a term which may extend to fourteen years and shall not be less than three years, and shall also be liable to fine."
11. It seems from the evidence on record that none of the ingredients of this section are attracted against the appellants, therefore, the conviction and sentence under section 365-A, P.P.C. As awarded in this case is not sustainable.
12. Admittedly, neither charge of hatching conspiracy about the abduction of abductees nor that of abetment of the said offence has been framed against the appellants. In charge as well as in the statements of appellants under section 342, Cr.P.C. It is mentioned that on 19-10-1990 appellants alongwith absconding accused Azizullah went to the otak of the complainant fully armed and in furtherance of common intention abducted complainant Muhammad Ismail and Shamsuddin, in order to extract ransom money and, thus, committed an offence under section 365-A, P.P.C. Read with section 34, P.P.C. From the perusal of above it becomes crystal clear that the then learned Judges while framing charge and recording statement under section 342. Cr.P.C. Have not applied their mind to the facts of the case and the evidence recorded at trial of the complainant, abductee Shamsuddin and other eye-witnesses. Prosecution has not been able to prove from evidence that appellants in what manner and at what time plotted the conspiracy about abduction or when they abated the commission of offence. On this complainant and abductee Shamsuddin in their respective statements have simply said that when they and the accused nominated in the F.I.R.
Arrived near the house of appellants, they came out of their houses on the fire reports made by dacoits. Neither the abductees nor other P.Ws. Have uttered even a single word that there happened any talk in between appellants and the dacoits, who had kidnapped them. Simply on coming out of the houses on hearing reports one cannot be saddled with the intention of committing offence. In villages people usually come outside their houses during the night hours on hearing fire shot report. In this case none of the witnesses have said that appellants either instigated the co-accused Azoo and others nominated in F.I.R. To abduct the abuctees, nor they engaged them in conspiracy of committing the offence. In these circumstances of the case appellants are not liable to be convicted even under section 109 or 120-B, P.P.C. When the case of the prosecution setforth in F.I.R. And the statements of witnesses is not putforth in its real sense to the appellants in charge as well as in their statements under section 342, Cr.P.C., the same loses its credibility and lacks consideration mainly for the reasons that they are not bound to reply to the questions with which they are not acquainted.
13. Adverting to the delay of about two years in lodging of F.I.R., we would mention here that complainant has not advanced any plausible explanation about not lodging the same immediately after his release and after payment of ransom amount. Coupled with the above major defects in the case of the prosecution, the delay in lodging of F.I.R. Entirely shatters the case of the prosecution and leaves no room for consideration. Accordingly, we hold that the prosecution has miserably failed to prove the case against the appellants beyond any shadow of doubt.
14. In result, we allow the appeal and set aside the conviction and sentence as well as the order of forfeiture of their movable and immovable property to the extent of Rs,50,000.
15. These are detailed reasons for the short order announced on 1-10-1997, whereby we allowed the appeal and set aside the conviction and sentence and ordered for their release forthwith if not required in any other case.