' ABDUL HAMEED DOGAR, J.---By this common judgment, we propose to dispose of Criminal Appeal No,65 of 1996 and Criminal Jail Appeals Nos.93, 94, 95 and 96 of 1996, as they arise out of one and same judgment.
2. Appellants Meer Muhammad alias Meeran son of Muhammad Khan Leghari, Meer Muhammad S/o Muhammad Soomar Chandio, Abdul Khaliq son of Ghulamdin Rajpur, and, Haji S/o Uris Korai, have called in question the judgment, dated 17-3-1996 of Judge, Special Court (Suppression of Terrorists Activities), Nawabshah Camp at Central Prison, Hyderabad, whereby they were convicted under section 365-A, P.P.C. For imprisonment for life and forfeiture of their properties to the extent of Rs,75,000. They were also convicted under section 392, P.P.C. And sentenced to ten years R.I. And a tine of Rs,50,000 each, in default whereof to suffer R.I. For three years more. They were also convicted under section 148, P.P.C. And sentenced to suffer R.I. For three years. All the sentences were ordered to run separately. The forfeited amount if recovered was order to be deposited as fine in the account of Government of Sindh and in default whereof they were to suffer further R.I. For three years.
3. Precisely, the facts for filing of these appeals are that complainant, Muhammad Ashraf, Tapedar, and his cousin Manzoor while going to Moro Town on Motorcycle on 8-2-1992 were followed by one car in which six cu prints were sitting. Out of them three were armed with Kalashnikov, one with rifle and one was empty handed, who took away complainant's m tricycle, whereas other abducted them and took them towards the forest side and ultimately handed over them to one Ali Muhammad alias Allan Chandio. The case of the prosecution further was that said Ali Muhammad Chandio had got written letter from the complainant to his father Muhammad Saleh with regard to payment of ransom for their release. According to the F.I.R., complainant and abductee Manzoor were released a day prior to lodging of the F.1.R. It was on 29-3-1992 the case was registered as Crime No,32 of 1992 at Police Station Moro wherein an application of complainant was incorporated.
4. Appellants were arrested and were sent up whereas co-accused Ali Muhammad and Badruddin were shown absconders.
5. Final charge was framed against the appellants to which they pleaded not guilty and claimed trial. At the trial, prosecution examined P.W. Muhammad Ashraf, complainant, P.W. Manzoor Ali, abductee, P.W.3 Muhammad Saleh, P.W.4 Arbab, P.W.5 Ali Jan, P.W.6 Ghulam Qadir, P.W.7 Khair Muhammad, P.W.8 Inayatullah, P.W.9 Syed Parial Shah, P.W.10 Anwar Ali, P.W.11 Muhammad Suleman and P.W.12 Zameer Ahmed.
6. Appellants were examined under section 342, Cr.P.C. Wherein they denied the case of prosecution and claimed innocent. Excepting appellant Haji, no one either examined themselves on oath nor led any evidence in defence.
7. The trial Court framed the following points for determination.
"(1) Whether the present accused alongwith co-accused namely Badro alias Badruddin and Ali Muhammad alias Allan (now dead) on 8-2-1992 at about 3.00 p.m. Came on Link Road from Moro to Bandhee Deh Ghairabad Taluka, Moro, District Naushero Feroze fully armed with deadly weapons and formed an unlawful assembly in prosecution of their common object to commit the abduction of complainant Muhammad Ashraf and Manzoor Ahmed and thereby committed an offence punishable under sections 148 and 149, P.P.C. Within the cognizance of this Court?
(2) Whether the present accused alongwith co-accused namely Badro Badruddin and Ali Muhammad alias Allan (now dead) on the same day and time and place have robbed the Motorcycle bearing No,NHA/6656 from the complainant alongwith Government record which were available at the time of commission of offence by the accused, thus, thereby they have committed an offence punishable under sections 392 and 149, P.P.C. Within the cognizance of this Court?
(3) Whether the present accused alongwith co-accused namely Badro alias Badruddin and Ali Muhammad alias Allan on the same day and time and place in prosecution of their common object abducted Muhammad Ashraf and Manzoor Ahmed in order to extort ransom amount, and thus, then by committing an offence punishable under section 365-A, P.P.C. Read with section 149, P.P.C. And within the cognizance of this Court?
(4) What offence if any the present accused alongwith co-accused namely Badruddin alias Badro and Ali Muhammad alias Allan (now dead) have committed ?"
8. We have heard M/s. Ali Bux Leghari and Masooda Siraj, learned counsel on behalf of the appellants, and Mr. Habib Ahmed, learned A.A.-G. On behalf of the State and have also gone through the record and proceedings of the case.
9. At the very outset, we have found that investigate Officer Madad Ali Khokhar has not been examined in this case. No plausible reason for this non-examination has been advanced in the trial. On Police Station Inayatullah, S.H.O. Police Station Moro in his statement at the trial has not given any explanation with regard to the whereabouts of the Investigating Officer Madad Ali Khokhar. It was through this witness that investigation conducted by Investigating Officer was brought on record which is not the requirement of law. In such circumstances, we feel that defence has been seriously prejudiced. Irrespective of this, we have observed serious lapses on the part of the learned Presiding Judge. It seems that he has neither applied his mind nor has gone through the statements under section 342, Cr.P.C. At the time, the same were being recorded. The same, on the face of it, show that in Question No,1 the blanks with regard to the co-accused have been left and have not been filled in and all the statements are typed carbon copies which again is not the requirement of law. For reference, we quote Question No, 1 .
' O.No,l. You have heard the prosecution story. It has come in evidence that you alongwith co- accused and two co-accused Badro alias Badardin and Ali Muhammad Chandio who are now dead on 8-2-1992 at about 3.00 p.m. Came on Link Road leading from Moro to Bandhi Deli Ghairabad Taluka, Moro, District Naushero Feroze fully armed with deadly weapons in a Toyota Car formed an unlawful assembly in prosecution of your common object and commit the offence of abduction. What have you to say?"
10. Irrespective of this important incriminating evidence with regard to the arranging of identification test and picking of appellants in such identification test before respective Magistrate have not been put to the appellants in their statements under section 342, Cr.P.C. No question has also been put to the appellant Haji and Meer Muhammad Leghari that they had gone to P.W.
Muhammad Saleh and had settled the ransom amount with him and had obtained settled amount of Rs,3 lacs from him in presence of P.Ws. Arbad and Manzoor.
11. By now, it is well-settled that if incriminating pieces of evidence have not been put to the appellants in their statements under section 342, IC Cr.P.C. The same cannot be taken into consideration.
12. Accordingly, we are left with no option but to remand the matter for recording the statement of Investigating Officer as well as statements under section 342, Cr.P.C. Of the appellants.
13. With the above observation, we set aside the conviction and sentences and remand the case to the Court of learned Special Judge (Suppression of Terrorist Activities) Naushero Feroze, who should immediately start with the case and dispose it off within three months. Appellants are at liberty to file application for grant of bail if they so desire as according to the learned counsel they are in custody for the last more than 6 years.