' ABDUL HAMEED DOGAR, J.--- By common judgement we propose to dispose of Special Anti- Terrorism Jail Appeal No,25 and Special Anti-Terrorism Appeal No,27 of 1998, as they arise out of same judgement.
2. By the above appeals, appellants Dhani Bux alias Dhanoo, Muhammad Sharif alias Sharif and Eidan had challenged the judgement, dated 6-8-1998 of the learned Judge, Special Court for Anti- Terrorism, Sukkur and Larkana Division at Sukkur, passed in Special Case No,4 of 1998, whereby they were convicted and sentenced as under:--
(i) Appellants Dhani Bux alias Dhanoo and Muhammad Sharif alias Sharif were convicted under section 365-A, P.P.C. And sentenced to death;
(ii) Appellant Eiden and absconding accused Asghar, Mir Hassan, Deedar and Akbar were convicted under section 305-A, P.P.C. And sentenced with imprisonment for life. The properties of the appellants as well as absconding accused were forfeited to the extent of Rs,70,000 each; and
(iii) Appellant Dhani Bux alias Dhanoo and Muhammad Sharif alias Sharifo were also convicted under section 395, P.P.C. And sentenced to 7 years' R.I. And a fine of Rs,10,000 and in default whereof to suffer further R.I. For 6 months each. The appellants were, however, allowed benefit of section 382-B, Cr.P.C. Towards computation of their sentence.
3. Briefly the case of prosecution, as narrated in the F.I.R., is that complainant Muhammad Hashim was businessm an and had sufficient agricultural land. On 30-12-1997 in the morning he had gone to Daur on his motorcycle for repair of his tractor in the workshop of Mechanic Habibullah. He was asked by the mechanic to purchase spare parts which he purchased from Hyderabad and handed over the same to mechanic where at that time his relatives Nazar Muhammad and Rasool Bux met with him. At about 8 p.m. All of them proceeded to their village on the complainant's motorcycle and when they reached near Kori Division James Mori, they were accosted by 7 culprits with open faces out of them complainant identified in the light of motorcycle notorious dacoit Dhani Bux alias Dhanoo Dahari and Muhammad Sharif alias Sharif. They and two unknown culprits were having Klashnikoves whereas another unknown culprit had gun and remaining two unknown culprits were armed with hatchets. They on the force of weapons, took away complainant Muhammad Hashim and asked his abovementioned relatives to pay Rs,5,00,000 for his release. Thereafter, the above P.Ws. Went to their village, whereas complainant was taken inside sugarcane crop where he was robbed a golden chain, Rs,500, documents of motorcycle and N.I.C. After sometime firing started from outside and inside of sugarcane crop in between villagers and the appellants' party and the complainant finding an opportunity, succeeded in coming out of their clutches. He found villagers, police and his relatives available outside sugarcane crop. He narrated them the above facts.
4. The appellants were arrested and on completion of investigation were sent up to face trail before the abovementioned Court alongwith absconding accused Asghar, Mir Hassan, Deedar and Akbar.
5. A charge was framed against the appellants under the abovementioned sections, to which they pleaded not guilty and claimed trial.
6. At trial the prosecution examined complainant Muhammad Hashim, who produced FIR., P.W.
Rasool Bux, P.W. Bilawal, P.W. Abdul Klialique Mashir, who produced Mashirnama of Wardat, recovery of two golden chains from appellant Dhani Bux, recovery of Rs,500 from appellant Muhammad Sharif and Mashirnama of arrest of appellant Eidan and recovery of hatchet from him and Mashirnama of identification parade 01 all the three appellants, P.W. A.S.-I. Amjad Iqbal, Mashir, who produced Mashirnama of arrest of appellant Dhani Bux and Muhammad Sharil and recovery of Klashnikoves from each of them, P.W. Anwar Din, Assistant Mukhtiarkar and Third Class Magistrate, Nawabshah, who conducted identification parade, P.W. Inspector Rahib Khan Tunio Investigating Officer and P.W. T.P.C. Feroze Khan and the prosecution closed its side
7. The appellants in their respective statements under section 342, Cr.P.C. Denied the case of prosecution and claimed that they had been involved due to enmity. They neither examined themselves on oath under section 340(2), Cr.P.C. Nor led any evidence in defence. Appellant Dhani Bux has pleaded in his statement that he had inimical terms with the friend of the complainant and because of that he was involved in the case. Appellant Muhammad Sharif claimed that P.Ws. Had deposed against him at the instance of S.S.P. Nawabshah. Appellant Eidan has claimed that he had inimical terms with the Hari of the complainant party and as such he has been involved in this case
8. The learned trial Court framed the following points for determination:--
(1) Whether on 30-7-1998 at about 8-30 p.m. The complainant was abducted by the accused in presence of P.Ws. Rasool Bux and Nazar Muhammad near James Mori, while complainant was coming on his motorcycle alongwith P.W. Rasool Bux and Nazar Muhammad and whether after the abduction the accused Dhani Bux and Muhammad Shareef snatched any property from the complainant Muhammad, Hashim?
(2) Whether the accused Dhani Bux and Muhammad Shareef were arrested on 31-12-1997 and so also accused Eidan was arrested on 7-1-1998 and whether after the arrest of accused they were produced before the Assistant Mukhtiarkar and T.C.M. Nawabshah for identification parade and so also for identification of foot prints tracker before Assistant Mukhtiarkar Nawahshah?
(3) Whether the accused are guilty of the charges framed against them?
9. On assessm ent of evidence appellants and the absconding accused were found guilty and were convicted and sentenced as abovementioned.
10 We have heard Messrs Khalilur Rahman Abbasi, Muhammad Ashraf Kazi and Nuruddin Sarki on behalf of appellants Dhani Bux alias Dhanoo, Eidan and Muhammad Sharif alias Sharif, whereas Mr. Sycd Jalil A. Hashmi, Assistant Advocate-General, for the State at length and have gone through the record and proceedings of the case and the impugned judgment.
11. The learned counsel for the appellants mainly contended that the trial Court while convicting the appellants has not appreciated the evidence properly, as such the conviction is liable to be set aside. According to them the prosecution has miserably failed to prove case against the appellants as not even a single independent witness from the village came forward to depose against them. They further argued that the crime weapons were not sent to ballistic experts, as such no reliance can be placed on such recoveries. About recovery of robbed articles, it was contended that the said articles being of common pattern were not put to identification test by mixing the same with identical articles, as such no reliance can be placed on the same. In support of the contentions, reliance was placed on 1985 SCM R 721, 1992 SCM R 2088, 1989 PCr.LJ 2227 (paragraph 23) and PLD 1995 SC 13 (f).
12. On the other side, the learned A.A.-G. Vehemently opposed the contentions of the learned counsel for the appellants and argued that the prosecution has fully proved its case against the appellant Dhani Bux as he was not only nominated in the F.I.R., but has also been implicated by the complainant and other witnesses at the trial. Robbed property, viz. Golden chains and weapon of offence viz. Klashnikov were also recovered from him. Appellants Muhammad Sharif and Eidan were picked up in identification parade to be the culprits and at trial also they were identified to be the same.
13. In order to appreciate and evaluate the evidence of prosecution against the appellants, we feel it essential to discuss the same in minute particulars.
14. On the factum of abduction the prosecution had examined complainant Muhammad Hashim, P.W. Rasool Bux and P.W. Nazar Muhammad.
15. Complainant Muhammad Hashim has categorically stated in F.I.R. That he identified appellant Dhani Bux alias Dhanoo and Muhammad Shari!' who were armed with Klashnkoves, whereas the rest were not known to him. In the statement at trial while narrating the incident, he deposed that on the fateful night at about 8 p.m. While he, P.Ws. Rasool Bux and Ghulam Muhammad reached near James Mori, he saw in the light of motorcycle 7 persons armed with Klashnikoves, guns and hatchets. They signalled to stop and he stopped the motorcycle and thereafter, all of them over powered him and took him in sugarcane crop and asked P.Ws. Rasool Bux and Nazar Muhammad to arrange for Rs,5,00,000 as ransom for his release. All of them were with open laces and he identified Dhani Bux only in the light of motorcycle, who was armed with Klashnikov. It was about 8- 30 p.m., all of a sudden firing started from outside sugar cane crop and appellants party also retaliated and due to such firing they became upset and he getting an opportunity came out from the sugarcane crop. At that time his brothers Bilawal and Muhammad Eshaque, P.Ws. Rasool Bux, Nazar Muhammad, many villagers and police officials were available there. He narrated them the story of his abduction and disclosed that he was robbed of two golden chains, Rs,500, original national identity card and original documents of motorcycle. Appellants Dhani Bux and his companions escaped away from the place of incident. Thereafter, he went and lodged F.I.R. Which was lodged as per his verbatim and was read over to him and he put his signature. He further deposed that all the three appellants were put to identification test and he picked them to be the culprits'. The golden chains and Rs,500 were shown to him in Court, which he stated to be his own which were robbed from him.
16. P.W. Rasool Bux stated at trial that on 30-12-1997 he had gone to Daur for his personal work where he met with complainant and P.W. Nazar Muhammad in the workshop of mechanic Habibullah. He and P.W. Nazar Muhammad requested complainant Muhammad Hashim to take them to their village on his motorcycle. It was about 8-30 p.m. When they reached near village Imamuddin Kirio, they saw in the light of motorcycle 7 persons with open faces standing duly armed with Kiashnikoves, guns and hatchets. He has further deposed that he identified appellant Dhani Bux only as he was resident of a nearby village. He was armed with Klashinkov. Thereafter, they stopped the motorcycle whereupon complainant Muhammad Hashim was abducted and was taken towards sugarcane crop and at the time of abduction appellant Dhani Bux disclosed that he belonged to the gang of Muhammad Sharif and demanded Rs,5,00,000 for his release. He and P.W. Nazar Muhammad rushed to the nearby village while crying upon which Bilawal, Ishaque and other villagers and police reached there. An exchange of firing took place between them and the police party and abductee Muhammad Hashim finding a chance came out of the sugarcane crop whereas appellant Dhani Bux and others succeeded in running away. The complainant disclosed that he was robbed of two golden chains, Rs,500, original documents of motorcycle and original national identity card. He further deposed that identification test of the appellants was conducted before the Assistant Mukhtiarkar, Nawabshah, where he picked them correctly. In crossekamination he stated that he and P.W. Nazar Muhammad saw the accused from the distance of 10 to 12 paces at the time of offence. Appellant Dhani Bux was in front while the others were on the either side at the time of incident.
17. P.W. Nazar Muhammad, another eye-witness of incident, was given up.
18. P.W. Bilawal, brother of the complainant, deposed that on 30-12-1997 his brother had gone to Daur for repair of his tractor. It was at about 8 p.m. He and his brother Muhammad Ishaque were sitting in their house when at that time P.Ws. Rasool Bux and Nazar Muhammad came running, who disclosed that their brother Muhammad Hashim has been abducted by the accused belonging to the group of appellants Dhani Bux and Muhammad Sharif Jokhio from near James Mori and have demanded Rs,5,00,000 for his release and presently they have gone inside the nearby sugarcane crop whereupon he, P.W. Nazar Muhammad, Rasool Bux and other villagers went running there duly armed. It was at about 8-30 p.m., complainant party started firing upon the appellants party in the sugarcane crop and they in retaliation also fired which continued for 10 minutes and thereafter they saw Muhammad Hashim coming out of sugarcane crop. Abductee disclosed that the appellants had snatched two golden chains, Rs,500, original documents of motorcycle and original national identity card from him. In cross-examination he stated that complainant Muhammad Hashim disclosed that appellant Dhani Bux had snatched two golden chains from him whereas appellant Muhammad Sharif Jokhio snatched amount of Rs,500 from him and he was not aware as to who had snatched the documents from him.
19. P.W. Abdul Khalique, the Mashir, deposed that he was made Mashir of Vardat from where 10 empties of KK and 10 empty cartridges of gun were recovered. He was also made Mashir of recovery of two golden chains from appellant Dhani Bux and of Rs,500 from appellant Muhammad Sharif. He had also acted as Mashir of arrest of appellant Eidan and recovery of hatched from him.
He was also Mashir of identification parade of appellants before Assistant Mukhtairkar, Nawabshah.
He has also acted as Mashir of conducting foot-prints test before the same Magistrate through one TPC Feroze Khan. In all the above Mashirnamas co-Mashir with him was Ghulam Shafi.
20. P.W. Anwar Din, Assistant Mukhtiarkar and T.C.M., Nawabshah, deposed that on 10-1-1998 he conducted identification parade of the appellants. First of all he kept the appellants in his Court with covered faces and then they were mixed with 30 persons in the row in the verandah of his office where complainant Muhammad Hashim, P.W. Rasool Bux and P.W. Nazar Muhammad picked them, to be the culprits of the case. On the same day he conducted foot-prints test of the appellants through one T.P.C. Feroze Khan by mixing them with 30 persons, who were asked to walk for about 10 paces. T.P.C. Feroze Khan identified the foot-prints of the appellants.
21. P.W. Rahib Khan, Investigating Officer, stated that on 30-12-1997 he was on patrolling when he received wireless message about abduction of complainant Muhammad Hashim from James Mori.
He communicated the same to the higher officers and then proceeded to the place of incident, where he found S.S.P., Nawabshah, D.S.P. Daur and other Police Officers prior to his arrival. At that time complainant came out from the sugarcane crop and was narrating facts to his relatives. He lodged the F.I.R. Which was recorded in his verbatim. He recovered 10 empties of KK, two empties of .10 bore gun and $ other empties of guns from the place of Wardat and prepared such Mashirnama. He recorded 161, Cr.P.C. Statements of P.Ws. Nazar Muhammad, Rasool Bux, Bilawal and Muhammad Ishaque and on 31-12-1997 A.S.-I. Amjad lqbal of Police Station Taluka informed him that the accused involved in this crime have been arrested by him in police encounter. He arrested all the three appellants and recovered the abovementioned articles from them. On 10-1- 1998 he got them identified in identification parade arranged by Assistant Mukhtiarkar, Nawabshah, wherein they were picked up by complainant Muhammad Hashim and P.Ws. Nazar Muhammad and Rasool Bux. He also got conducted foot-prints test of the appellants and on completion of investigation challaned them alongwith 4 other absconders.
22. In order to arrive at a proper conclusion, we feel it appropriate to discuss and evaluate the above stated evidence against each appellant separately.
(i) So far the case against appellant Dhani Bux is concerned, he is not only nominated in the F.I.R. To be the principal accused who abducted abductee Muhammad Hashim but demanded ransom of Rs,5,00,000 for his release from P.Ws. Nazar Muhammad and Rasool Bux. Irrespective of above, he also robbed two golden chains, Rs,500, original documents of motorcycle and original national identity card from the complainant. The complainant and P.W. Rasool Bux have categorically stated at trial that they identified appellant Dhani Bux alias Dhanoo only as he was resident of a nearby village. According to them it was he who demanded ransom of Rs,5,00,000 for the release of the abductee. With regard to the recovery of two golden chains, Mashir Abdul Khalique and Investigating Officer Rahib Khan categorically stated that it was appellant Dhani Bux who volunteered to produce the same from his Autaq. Though fully cross-examined by the appellants counsel, yet not even a single favourable reply was obtained. The suggestion that he was implicated by the complainant as he was on inimical terms with his friend Qadu alias Qadir Bux Dahiri is not convincing and believeable. He neither examined himself on oath nor led any evidence in his defence, as such there is no reason why the evidence furnished by prosecution witnesses against him be not believed. Accordingly we are of the view that prosecution has been able to ,prove case against him beyond shadow of any doubt. Since the abductee came out of the clutches of appellants immediately after his abduction and no loss or damage occurred to him, as such this is in our view would be a mitigating circumstances to reduce his sentence. Accordingly we reduce his sentence to imprisonment for life.
23. So far the evidence adduced at trial against appellant Muhammad Sharif is concerned, in our opinion, it does not suffic to sustain the conviction against him for the following reasons:- "(i) Complainant Muhammad Hashim has stated in F.I.R. That he identified appellant Dhani Bux and Muhammad Sharif on the light of motorcycle, but in his examination-in-chief at trial he did not state so and deposed that, 'all the 7 culprits were with open faces. I identified only accused Dhani Bux on the light of my motorcycle, C who was armed with KK at the time of my abduction'.
(ii) P.W. Rasool Bux stated at the trial that he identified appellant Dhani Bux alone, out of the 7 culprits. Concerned para. From his deposition is quoted as 'we saw that 7 persons were standing who were present there duly armed with KK, guns and hatchets. The faces of culprits were open.
Accused Dhani Bux is living near our village, as such I identified him by name. He was having Klashnikov at that time'.
(iii) So far picking of the appellants in identification test by above P.Ws. Is concerned that, too, is not convincing as the said identification test was held on 10-1-1999, after about 11 days of their arrest.
Moreover, no descriptions of the dummies who were mixed with the appellants at the time of identification parade were at all mentioned in the Mashirnama of identification parade. No explanation of any sort was furnished by the prosecution for non-arranging of identification parade immediately after arrest of the appellants as such the same cannot be accepted.
(iv) Contention that robbed money viz: Rs,500 was recovered from appellant Sharif is devoid of consideration and is also not believeable mainly for the reasons that complainant neither in F.I.R.
Nor in his deposition had stated that it was appellant Muhammad Sharif who had robbed Rs,500 from him. In absence of particulars and denominations of robbed amount, furnished in F.I.R., the recovery thereof has no value in the eye of law."
' It will be unsafe to base conviction against appellant Eidan on the aforesaid evidence. He was neither nominated in F.I.R. Nor any physical features of him were given by the complainant or any other witness in their respective statements before the police, as such his subsequent picking up in belatedly arranged identification through complainant. Muhammad Hashim and P.W. Rasool Bux would be of no avail. In absence of any independent piece of evidence connecting him with crime, his conviction and sentence is not sustainable. Admittedly, prosecution has failed to collect any corroborative as well as circumstantial pieces of evidence against him at trial, as such he deserves to be acquitted. Moreover, the evidence of identification test is not trustworthy as identifying witnesses have not assigned any role to appellant Eidan in the commission of offence.
25. On scrutiny of the above evidence, we are of the considered view that prosecution has proved its case against appellant Dhani Bux alias Dhanoo as such while maintaining his conviction under section 365-A, P.P.C., we reduce the sentence due to mitigating circumstances of the case, to imprisonment for life and dismiss his appeal, whereas acquit appellants Muhammad Sharif and Eidan as the prosecution has failed to prove its case against them beyond any shadow of doubt.
' These are the reasons of short order announced by us on 14-5-1999.