1. ' FAIZ MUHAMMAD QURESHI, J.---Appellants Abdul Hameed son of Gul Muhammad Butt and Ghulam Rasool son of Abdul Hadi Tunio have challenged the judgment dated 28-6-1992, passed by Judge, Special Court, Suppersession of Terrorist Activities, Hyderabad, in Case No,130 of 1991 under sections 365-A, 302, P.P.C. Read with section 149, P.P.C. In Crime No,4 of 1991 registered with Police Station Thar-ri Mohbat, District Dadu, whereby they have been found guilty of the offence under sections 302 and 365-A, P.P.C. Read with section 149, P.P.C. It has not been established from the record as to who had caused butt injury to deceased Roshan Ali as a result whereof he has died and were convicted and sentenced to suffer imprisonment for life which is the other sentence prescribed for an offence under section 302, P.P.C. As regards the offence under section 365-A, P.P.C. Both appellants have been sentenced to imprisonment for life and confiscation of their movable and immovable property. The substantive sentences of imprisonment for life for offences under section 302, P.P.C. And under section 365-A, P.P.C. Awarded to each of these two accused are directed td run concurrently. However, in the case of Abdul Hameed, who is already serving sentence for life imprisonment in another case of abduction for ransom, the sentence of imprisonment, for life awarded in the present case shall commence from the expiry of that sentence. Hence these two appeals.
2. ' The charge against the appellants is that on 16-1-1991 at about 9-30 p.m. They alongwith .
3. Absconding accused namely, Yousif, Mula Bux, Ali Ahmed. Ghulam Mustafa, Saleh, Zameer, Sher Manzoor Akber, Mehboob and Gul Shah duly armed with kalashnikov, rifles and guns formed an unlawful assembly and with the common object of the assembly they abducted Roshan Ali, Mukhtiar Ali and Masood for the purpose of getting ransom for their release. The accused are further charged that on the aforementioned date and time, at distance away from the said Mill, in furtherance of their common object they - committed the murder of kidnapee Roshan Ali by causing his death with butt ends of their weapons. According to prosecution story, Haji Ghulam Umar, who is of deceased Roshan Ali and uncle of kidnapee Mukhtiar Ali and Masood briefly stated is that about 12 months back at about 9-30 p.m. He was sitting in his Mill alongwith deceased Roshan Ali and kidnapee Mukhtiar Ali and Masood. There was electric light available in the Mill, when 9/10 dacoits armed with Kalashnikov and other weapons, came inside the Mill and took control of all of them, the dacoits kidnapped deceased Roshan Ali, Mukhtiar Ali and Masood for ransom. There was firing made by the dacoits, the dacoits went away and after their departure they had covered some distance, complainant heard cries of Roshan Ali, after sometime when the firing by the dacoits ended, he alongwith 'Chair Muhammad and others went outside and found that Roshan Ali was lying dead due to having sustained blunt substance injuries; on the next day he went to Police Station Thar-ri Mohbat and lodged his F.I.R. Exh.18, he brought the police to the place of wardat and showed the dead body of Roshan Ali to the police which was removed by the Police for post-mortem. Gul Munir, Incharge of Police Post Sindhi Butra on 17-1-1991 when he recorded the Report 'lodged by the complainant Ghulam Umar at 10-00 a.m. He then went to the place of wardat and prepared mashirnama of wardat Exh.25; he found the dead body of Roshan Ali half furlong away from the place of wardat who had blunt injuries on his head; he prepared inquest Report Exh.26 and sent the dead body for post-mortem examination to Taluka Hospital Mehar. After about 15/20 days kidnapees Masood and Mukhtiar Ali came at Police Post, where their statements were recorded; then he was transferred and he handed over the police papers of this case to S.H.O.
4. Of Thar-ri-Mohbat, Police Station for further investigation. Nazir Ahmed S.I.P. C.I.A. Dadu received the case paper from Inspector C.I.A., Malik Muhammad Hussain who had also handed over to him accused Gulloo alias Ghulam Rasool, Soonharo and Usman for interrogation. It may be stated here that Soonharo and Usman were neither accused before the Court nor they have been shown as absconders and they were let off by Police as they were not identified by the witnesses in the Identification Parade. On 16-9-1991, he produced all three accused persons before Resident Magistrate Dadu for identification through complainant and the other witnesses. The witnesses picked out only accused Gulloo alias Ghulam Rasool, he then was handed over the Inspector C.I.A., Dadu for further investigation; on 17-9-1991 Inspector C.I.A. Arrested accused Muhammad Jamman, Ali Gohar, Wahid Bux, Mureed and Shoaban on the further statement of P.Ws; such mashirnama was prepared in presence of mashirs, which has been produced as Exh.31.
5. ' After usual investigation, the accused persons were challaned in the Court, which three accused persons have been shown as absconders as already stated above.
6. ' Prosecution examined 11 witnesses; P.W.1 Masood Ahmed kidnapped and has given details of his kidnapping P.W.2 Ghulam Umar, who is the first informer, who has lodged the F.I.R. As Exh.18; Mukhtiar Ali is another kidnapee who has also given details of his kidnapping; P.W. 4 Habibullah as Assistant Mukhtiarkar TCM Mehr who had conducted Identification Parade in respect of accused Abdul Hameed through complainant and kidnapee; P.W. Aftab Ahmad also acted ,as mashir in respect of identification of accused Gulloo alias Ghulam Rasool on 16-9-1991 and in which test the witnesses had correctly identified Gulloo alias Ghulam Rasool; P.W. Aftab has also acted as mashir of wardat and produced mashirnama of wardat as Exh.25 and also produced mashir of Inquest Report as Exh.26; P.W.6 Gui Muhammad was posted as Resident Magistrate, Dadu when on 19-9- 1991 he held Identification Parade in respect of accused Gulloo alias Ghulam Rasool, Sonharo and Usman through kidnapees Mukhtiar Ali and Masood Ahmed and complainant Ghulam Umar; the witnesses picked out only accused Gulloo alias Ghulam Rasool; T.W. And Nazir Ahmed, S.I.P., C.I.A.
7. Who conducted further investigation in the present case; P.W. Rasool Bux was Medical Officer at Taluka Hospital .Mehar, Ali who had conducted post-mortem examination on the dead body of Roshan Ali on 17-1-1991 and found that deceased had died due to sustaining injuries of had blunt substance; P.W.9 Khair Muhammad is eyewitness and has correctly identified accused Abdul Hameed in the Identification Parade and so also Gulloo alias Ghulam Rasool; P.W.10 Ghulam Nabi is tapadar and produced sketch of wardat as Exhs.36-A and B. P.W. Gul Munir Incharge Police Post, Sindhi Butra of Police Station Thar-riMohbat; who recorded report of complainant Ghulam Umar on 17-1-1991 and he had visited the place of wardat and prepared Inquest Report of the dead body of Roshan Ali; he recorded the statement of kidnapee Mukhtiar Ali and Masood Ahmed.
8. ' The prosecution again examined P.W. Gul Munir, who has stated that he could not serve the warrants upon Sarfraz Ahmed P.W. And has given his reports Exh.41 and Exh.42.
9. ' The statements of all the accused under section 342, Cr.P.C. Have been recorded, they have denied the allegations that they alongwith absconding accused had abducted deceased Roshan Ali, Mukhtiar Ali and Masood for the purpose of getting ransom. They have also denied that they had committed the murder of kidnapee Roshan Ali. They have also denied that they had received a sum of Rs,3,20,000 as ransom for the release of kidnapees Mukhtair Ali and Masood Ahmed.
10. Appellant Abdul Hameed has admitted that he was arrested on 27-8-1991 from Police lock-up of Mehar Police Station. He has, however, denied that he was correctly picked up by in an Identification Parade held by P.Ws. Khair Muhammad Mukhtiar Ali and Masood. He has stated that in fact no Identification Parade was ever held. He has further stated that P.Ws. Had deposed against him because of enmity over the lands and complainant party. He examined himself on oath in his defence but did not produce any witness in his defence. Appellant Gulloo alias Ghulam Rasool has also denied that he was arrested from Police lock-up Dadu on 3-9-1991. He has stated that he was working in Jute Mills Kotri from where the police arrested him He also denied that he was correctly identified by the kidnapee Mukhtiar Ali and Masood Ahmed in the Identification Parade. He has also stated that no Identification Parade was ever held. He further stated that all P.Ws. Are inter-related and there was suspicion against him regarding the abduction of the wife of one Abdul Wahab who was a near relation of the Complainant party. He did not examine himself on oath in his defence but stated that his Advocate would submit the list of defence witnesses. The other co-accused Wahid Bux, Mureed, Muhammad Jumman, Ali Gohar and Shoaban have denied the allegations of the prosecution and have suggested their enmity with the police of C.I.A.
11. ' The trial Court formulated the points for determination and after going through the evidence deposed by the prosecution and material available on record passed the judgment in terms as stated above.
12. ' We have heard learned counsel for the parties and we propose to dispose of both Appeals which have arisen out of the same judgment in Crime No,4 of 1991.
13. ' Mr. Allah Bachayo Soomro, learned counsel for the appellant has submitted that according to the evidence of the prosecution witnesses, particularly kidnapees Mukhtiar and Masood, the ransom was paid to co-accused Wahid Bux, Jumman and Ali Gohar and they have been acquitted by the Trial Court on the same set of evidence. He has further argued that murder has not been proved by the prosecution and it has also been discussed by the learned trial Judge in his judgment.
14. According to the learned counsel for the appellant the only piece of evidence against the appellants is Identification Parade which has been held on 5-9-1991 before the Resident Magistrate, Dadu through kidnapees Mukhtiar Ali, Masood, Ghulam Umar; appellants Abdul Hameed and Gulloo alias Ghulam Rasool are said to have been arrested on 27-8-1991 and 3-9-1991 respectively; there is delay in holding Identification Parade and there is signature of A.S.I. Of Dadu Police Station on the Mashirnama of Identification Parade which is said to have supervised by Resident Magistrate Dadu who is a IIIrd Class Magistrate and during the Identification Parade no role has been described to the appellant and ratio of dummies with three accused is seven and under law 10 or 11 dummies are to be intermingled with each accused and thus the Identification Parade lost sanctity and learned counsel for the appellant has placed reliance PLD 1996 Kar. 246; 1995 SCM R 127 - 128 and has prayed acquittal of the abovenamed appellants.
15. ' On the other hand, Mr. Ali Azhar Tunio, learned Assistant Advocate-General has supported the impugned judgment and has contended that all the accused caused injuries to deceased Roshan Ali and killed him and ransom is proved against the appellants. Mr. Ali Azher Tunio, learned Assistant Advocate-General has submitted that both the appeals have no merits and reliable to be dismissed.
16. ' We have gone through the material available on record and evidence of the prosecution witness through the assistance of the learned counsel for the parties. Admittedly, the murder of Roshan Ali has not been proved which has also been discussed by the trial Judge while delivering the judgment. Admittedly, co-accused 3 to 7, namely Wahid Bux, Mureed, Muhammad Jumman, Ali Gohar, Shoaban have been acquitted by the trial Judge on the same set of evidence; ransom has been paid to co-accused Wahid Bux, Muhammad Jumman and Ali Gohar and yet they have been acquitted by the trial Judge while the afore named appellants have been convicted and sentenced to suffer life imprisonment as stated supra. We have also very carefully examined the evidence of complainant Haji Ghulam Umar, kidnapees Mukhtiar Ali and Masood who have not implicated the present appellants on the factum of ransom paid by them to afore named appellants; on the contrary, they implicated Wahid Bux, Muhammad Jumman, and Ali Gohar who have been acquitted by the trial Judge. We have also very carefully examined the entire record and it reveals that murder of deceased Roshan is not proved as to who caused injuries to him and who murdered him. Now the prosecution has left with the piece of evidence in the shape of Identification Parade held on 5-9-1991 before the Resident Magistrate, Dadu; Ghulam Umar Complainant Mukhtiar Ali and Masood kidnapee and whereas both appellants are said to have been arrested by Police on 27-8-1991 and 3-9-1991 respectively and thereafter they have been subjected to Identification Parade and possibility cannot be ruled out that they were shown to afore named witnesses before the Identification Parade by Police and thereafter they were sent for Identification Parade. We have also noted with care, the signature of A.S.I. Of Police Station, Dadu over Mashirnama of Identification Parade which cuts root and object of the Identification Parade and it cannot be said that Identificatin Parade has been held under the direction of A. S.I. And in that event that Identification Parade loses sanctity. We have examined very carefully the Mashirnama of Identification Parade and nowhere the afore named witnesses have assigned the role of the present appellant by pointing out that what kind of role was played by the afore named appellants during the commission of offence. No proper ratio of dummies has been mixed up with the accused as required under the law .
17. Since the prosecution is relying on the piece of evidence against the appellants in the shape of Identification Parade and such Identification Parade has been held against the norms of law as held by Superior Courts in PLD 1996 Kar. 246 and 1995 SCM R 127 128. The murder of Roshan Ali deceased has not been proved. The complainant and kidnapees have not supported the case of prosecution with regard to payment of ransom of afore named appellants and they have implicated co-accused Wahid Bux, Muhammad Jumman and Ali Gohar on the factum of ransom and they have been acquitted by the trial Court. We find doubtful case against the present appellants and the case of the prosecution is riddled with not only material contradictions but the same has not been proved at all against the afore named appellants.
18. The upshot of the above discussion is that the prosecution has miserably failed to prove its case beyond reasonable doubt against the present appellant and we give benefit of doubt to the appellants. Their conviction and sentences are set aside; In the result booth appeals are allowed; the appellants shall be released forthwith, if not required in any other case. #EndJudgment