' ABDUL HAMEED DOGAR, J.---Appellants Ishaque, Allah Bux, Karim Bux, Nawaz Ali and Amir Bux have assailed the judgment dated 6-3-1998 of the learned Special Judge, Anti-Terrorism Court, Hyderabad and Mirpurkhas Division at Hyderabad, whereby they were convicted under section 365 read with section 34 P.P.C., and sentenced to suffer R.I. For 7 years each and fine of Rs,10,000 each or in default whereof to suffer R.I. For two years more. However; they were extended benefit of section 382-B, Cr.P.C. Towards computation of their sentences.
2. Briefly the facts of the prosecution case are that complainant' Qabool Muhammad was Manager of Zamindar Lala Umer Jan. On 7-9-1997, at about 9-00 p.m. His son Ali Sher and Ali Hassan Khoso son of Sajawal went to operate tube-well in the land of Lala Umer Jan, whereas his son Ismail had already gone to the land. His son Ismail returned at 11-00 p.m. And informed the complainant that six armed persons with weapons caught hold of his brothers Ali Sher and Ali Hassan Khoso near the tube-well at Katchi Pattri and due to fear he has come while escaping from there Complainant informed the above facts to P.W. Sajawal and other villagers and then they proceeded there and found foot-prints of dacoits .Alongwith foot-prints of Ali Sher and Ali Hassan Khoso. They picked the same, which led them to the road of Pir Bio Khan where Oderolal, police also arrived while patrolling. They narrated the facts to S.H.O. Of Police Station Oderolal, who called PC, Thaddo Khan Peri and P.C. Muhammad Soomar Peri on wireless. D.S.P. Matiari along with his staff also reached there. Thereafter, they tracked foot-prints, which ultimately reached to Nasarpur where so many persons of locality arrived and from whom it was learnt that Ali Hassan Khoso had ran away from the clutches of the dacoits. Subsequently, Ali Hassan Khoso met the complainant party and narrated them that at the time of incident the dacoits had taken then to Nasarpur and asked him to sleep in the sugarcane crops where he slept till next morning and thereafter, he came to his home by bus, whereas the dacoits had taken way abductee Ali Sher with them. The complainant chasing the dacoits while tracking their foot-prints for about two days and thereafter lodged F.I.R.
At Police Station Oderolal on having advice from Zamindar.
3. On 11-9-1997 abductee Ali Sher was got released from the dacoits by Shahpur Police in an encounter. S.H.O. Recorded 161, Cr. P.0 . Statement . On 24-9-1997 appellants Ishaque, Allah Bux, Karim Bux, Kallo alias Nawaz Ali Ismail and Nabi Bux were arrested in an encounter by the police. On 25-9-1997 appellant Nooral was arrested by Shahpur Police in another case, whereas Ameer Bux escaped away. Their identification test was arranged where abductees identified the appellants before the Judicial Magistrate. On completion of investigation all abovenamed 7 appellants were sent up to face trial before the abovementioned Court. Subsequently absconding appellant Ameer Bux appeared and surrendered before the Court
4. The charge under section 365/34, P.P.C. Was framed against the appellants to which they pleaded not guilty and claimed trial.
5. At the trial prosecution examined complainant Qabool Muhammad, who produced F.I.R., P.W. 2 Ismail, P.W.3 Sajawal who produced mashirnama of wardat, P.W.4 Muhammad Saleem, who produced mashirnama of arrest of appellant Nooral, P.W.5, Vikio---who produced mashirnama of arrest and recovery of appellants Ishaque, Allah Bux, Karim Bux, Kaloo alias Nawaz Ali, Nabi Bux and Ismail, P.W.6 Ali Hasan, abductee, who produced 164, Cr.P.C., statement, P.W. Ali Sher abductee who produced 164, Cr.P.C. P.W.8 Allah Bux, who produced memo. Of identification test conducted by Judicial Magistrate, Matiari, P.W.9 Muhammad Aslam, Judicial Magistrate, who produced letter of S.H.O. For conducting identification test, P. W.10 Mukhtar Ahmed, A.S.I. Of Police Station Shahpur, who produced F.I.R. Of Crime No,16 of 1997. P.W.11 Investigating Officer Ali Nawaz and thereafter the prosecution closed its side.
6. Appellants in their respective statements under section 342, Cr.P.C. Denied, the allegtions of prosecutions and claimed to be innocent. Appellant Ishaque pleaded that he has been involved in the case at the instance of Zamindar Gul Joyo, who used to keep an evil eye on his land and compelled to sell and on his refusal he was involved in the case. Appellant Allah Bux pleaded that he was Hari of Lala Umer Jan had used to cultivate sugarcane crops and he had eaten away share of his crop and on his demand he was involved in the case. Appellant Karim Bux in his statement further pleaded that he was Vice-President of Sindh Tehreek for Nasarpur Youth and as such used to conduct demonstration against local Zamindar and police and has been implicated in this case due to that reason. Appellant Nawaz Ali further stated in his statement that was arrested on 18-9- 1997 from his village at the instance of complainant Qabool, with whom he had enmity. Appellant Ismail further said in his statement that he was working as Naib Qasid in Anti-Corruption Department at Shahbaz Building, Hyderabad and on 18-9-1997 he had gone to his village, from where he was arrested by Hyderabad Police. Appellant Nabi Bux claimed in his statement that he was arrested on 18-9-1997 from his village at the instance of complainant Qabool due to old enmity. Appellant Nooral Joyo in his statement has further said that Zamindar Gul Joyo was his neighbourer and his caste fellow and very influential person and he had an evil eye on his lands and used to compel him to sell the same and on refusal he was implicated in this case. Prior to this he had also got him mal-treated by police on 3 or 4 occasions. Appellant Ameer Bux in his statement has further stated that Zamindar Gul Joyo was his neighbour and is caste fellow and very influential person and he had an evil eye on his lands and used to compel him to sell the same and on refusal he was implicated in this case. Prior to this he had also got him maltreated by police on 3/4 occasions.
7. After hearing the arguments of the learned counsel for the parties by the learned trial Court and on the assessm ent of evidence, the appellants were found guilty and were convicted and sentenced as above
8. We have heard M/s. Rasool Bux Palijo and Raja Mir Muhammad Khan, the learned counsel appearing on behalf of the appellants and Mr. Habib Ahmed, the learned Assistant Advocate- General, Sindh, on behalf of the State, at length and have gone through the record and proceedings of the case in minute particulars.
9. The learned counsel for the appellants contended that the impugned judgment is not sustainable in law and is mainly based on surmises. According to them prosecution has failed to prove the factum of abduction, motive or any reason for abduction. The entire prosecution case has been cooked to be cock and bull story. They next argued that the F.I.R. Was lodged with the delay of 4 days and no satisfactory explanation for the same was either furnished by the complainant or by S.H.O. Of Police Station, Oderolal though he was continuously with complainant party from the day of incident. According to them the abductee Ali Hassan came back on the next day in the morning and F.I.R. Was registered on the fourth day but the name of none of the appellants was disclosed by the abductee, as such the entire evidence of abductees Ali Hasan and Ali Sher becomes doubtful that they knew appellants Allah Bpx and Karim Bux prior to the incident.
The learned trial Court has carried in law and facts by not considering the aspect of enmity of the appellants Karim Bux with Zamindar Lala Umer Jan, at whose instance the case was lodged by the complainant, his Manager. The evidence of recovery of abductee Ali Sher, that he was recovered after an encounter in between the appellants and Shahpur Police is highly doubtful as no one from either side received even a single injury. They further contended that the identification test, on which the trial Court has mainly relied for conviction is also not worth consideration. Admittedly it has come on record from the evidence that appellants Allah Bux and Karim Bux were haris of Zamindar Lala Umer Jan and were previously known to the complainant as well as abductees, as such their identification through abductees was immaterial and had got no value, whereas so far identification of rest of the appellants through them is concerned, that too is devoid of consideration as none of the abductees has assigned any specific role to them during commission of offence or during the period of their captivity. They lastly contended that a bogus investigation has been conducted in this case, hence prosecution case suffers from serious defects. The statement of complainant should not be relied upon as he apparently seems to be a false witness for the reasons that he has denied the fact that he new appellants Allah Bux and Karim Bux at all in support of their contentions they relied upon the case-law reported in 1969 SCMR 777 and 1980 SCMR 892.
10. On the other side, the learned Assistant Advocte-General argued that the prosecution has proved the case under section 365, P.P.C. Against the appellants, as such they have been rightly convicted by the trial Court.
11. Ocular evidence in this case consists of the statements of abductees Ali Hassan and Ali Sher. So far Ali Hassan is concerned, he deposed at trial that on 7-9-1997 after Isha prayer abductee Ali Sher told him to accompany to the tube-well and when they reached near the same in the fields, they were surrounded by 7 dacoits. After covering some distance the dacoits disclosed to Ali Sher that they have abducted them because they had taken 25 acres of land of Zamindar Lala Umer Jan.
After walking through different places they made him to sit in sugar-cane crop and he remained there due to fear and in the morning found that there were no dacoits around them and had gone away along with abductee Ali Slier. Thereafter he came to his village and then he, his father and other members of complainant party trached the foot-prints of the culprits and abducted Ali Sher.
He further disclosed that he had seen the dacoits clearly and would be able to identify if shown. He was axamined by police on 11-9-1997 and it was on 27-9-1997, he picked the appellants from the identification parade before the Magistrate. In cross-examination he has stated that at the time of identification parade the appellants were hand-cuffed and were brought by police in the vehicle.
The dummies were present in the Court prior to arrival of the appellants.
12. P.W. Abductee All Sher, while narrating the incident of abduction, stated that at the time of incident he and P.W. Ali Hassan identified appellants Karim Bux and Allah Bux Chotto. According to him appellant Allah Bux told him on the way that he had been abducted because he had taken their land on lease from Lala Umer Jan and due to that revenge they had been abducted. He further deposed that on 14-9-1997 at about 11 p.m. In the night police came to the sugar-cane crop where he was confined and an encounter took place and the appellants/dacoits ran away leaving him alone there. On 27-9-1997 police got recorded his 164, Cr.P.C. Statement before Judicial Magistrate Matiari and also arranged identification parade on the same day he identified the appellants to be the culprits of the case.
13. Judicial Magistrate Muhammad Aslam deposed that he conducted identification in respect of appellants in two parts on 27-9-1997, in which abductees Ali Hassan and All Sher identified the appellants. In cross-examination he has admitted that identifying witnesses did not assign any role to any of the appellants in the commission of offence. He has also admitted that at the time of identification parade A.S.I. Zulfiqar Ali was present, who also signed the mash I mama .
14. It would be appropriate to give reasons in details to why the occular version of above witnesses be disbelieved.
15. Abductee All Sher has categorically deposed at trial that appellants Allah Bux and Karim Bux are their neighbourers. He and abductee Ali Hassan reside in the same village. He knows the above appellants since last 7/8 years. The appellants reside at the A distance of 3/4 miles away from the abductees. He and Ali Hassan identified both of them, but did not identify the rest of the culprits.
According to this witness appellants Allah Bux and Karim Bux were heris of Zamindar Lala Umer Jan.
He does not know as to when they left the relationship. He had taken the disputed land on lease about 8/10 years ago and cultivates the same. His father also cultivates the same. P.W. All Hassan as well as complainant Qabool Muhammad, father of abductee Ali Sher, have totally denied that they knew appellants Allah Bux and Karim Bux prior to the incident. Complainant Qabool Muhammad has admitted that he is Manager of Zamindar Lala Umer Jan. With regard to appellants Karim Bux and Allah Bux. He stated that he does not know them at all and had never seen them prior to the incident. In this view of the matter. Credibility of complainant becomes highly doubtful and apparently he seems to be a false witness and should never be believed.
16. The credibility of P.W. Ali Hassan, another abductee is also shrouded in mystery and should not be relied upon for the purpose of conviction. Apparently for the reasons that he knew appellants Allah Bux and Karim Bux prior to the incident, but did not disclose their names after his return to the police. Had he disclosed their names, they would have been nominated in F.I.R and not doing so the fact that they were implicated in the case subsequently after due deliberation and consultation due to enmity over the lands cannot be relied out. Accordingly it would be highly unsafe to rely upon the evidence of such a false witness and the benefit Of doubt clearly goes in favour of appellants Allah Bux and Karim Bux .
17. With regard to the remaining appellants, the only piece of evidence against them being identification test which is also doubtful for the reasons that identifying witnesses have not assigned any role to them in the commission of offence, simply picking them in identification test is not the requirement of law, but specific role is to be assigned to each accused at the time of identification parade.
18. Irrespective of above, abductees All Sher as well as Ali Hassan have not deposed even at trial as what part appellant Ishaque Nawaz Ali, Ismail, Nabi Bux, Nooral and Ameer Bux played in the entire offence, as such they are also entitled to benefit of doubt.
19. Admittedly a joint identification test has been arranged in respect of all the appellants under common mashirnama which too is not the requirement of law. Two contrary versions have been put fourth by abductees All Sher, Ali Hassan and P.W. Qabool Muhammad, complainant, with regard to the identity of appellants Allah Bux and Karim Bux which reflects serious doubt over the entire case of prosecution, the benefit of which goes in favour of all the appellants. The complainant has not stated truth but has stated false by deposing that he does not know appellants Allah Bux and Karim Bux though he has remained with them for about 8/10 years as manager of Zamindar Lala Umer Jan.
20. With regard to testimony of witness the Hon'ble Supreme Court in the case of Din Muhammad v.
The State reported in 1969 SCMR 777 has held that the Court should not only consider whether there is consistency in narrative but should also consider whether the version is probable or not.
21. The judgement is also not sustainable in law as mandatory requirement of section 367, Cr.P.C.
Has not been complied by the trial Court by not framing the point for determination. This provision of law stipulates that judgment shall contain the point for determination, the decision thereon and reasons for the decision. In the case of Issa Khan v. The State reported in PLD 1987 Quetta 174, it has been held that proper judgment must specify points for determination and reasoning of the Court for deciding such points. In the case of Muhammad Khan v. The State reported in 1995 PCr.LJ 1516, the same view has been taken and it has been held that judgment must specify points for determination contained reason for deciding the same.
22. The upshot of the above discussion is that the prosecution has miserably failed to prove its case against the appellants, as such they are extended benefit of doubt and are acquitted.
' The above are the reasons of our short order dated 24-8-1999.