1. ' Present appellants have challenged the judgment, dated 6-3-2000 passed by the learned Vlth: Additional Sessions Judge, Larkana in Sessions Case No,674 of 1989, whereby the appellants have been convicted under section 365-A/34, P.P.C. And sentenced to suffer R.I for 14 years and to pay fine of Rs,50,000 each and in default of payment of fine they shall suffer R.I for five years more. They are also given benefit of section 382-B, Cr.P.C. For the period which they have remained as under trial prisoners. Hence this appeal.
2. ' Brief facts of the prosecution case as unfolded in the F.I.R. Lodged by Muhammad Ibrahim Kalhoro at Police Station B-Section, Larkana on 23-1-1989, are that he and his nephew Sajid Ali are studying in Degree College, Larkana and they used to go and back to their village daily. On 16-1-1989 the complainant had come at the bungalow of Nisar Ahmed Khuhro and was sitting there when at about 12-30 noon he heard cries and also heard that some persons are taking away a man. On hearing this, the complainant came out and saw Faiz Muhammad Chaki resident of Wagan and Dilshad Dero resident of Dera standing there and they informed him that five dacoits armed with K.Ks. Have abducted Sajid Ali in a car and they have gone along Rasheed Wagan Road. They further informed him that they had seen all the five dacoits clearly as their faces were open and that they can identify them if they are brought before them. On hearing this, the complainant went to his vallage and informed his elder brother Muhammad Ramzan who directed him to lodge report. The complainant then went and lodged the report with concerned police.
3. ' After registered of the F.I.R., A.S.I. Ghulam Abbas Chandio of B-Section Police Station started investigation, but in the meanwhile S.H.O. Ghulam Kabeer Dal took up the investigation and visited the place of incident, prepared such mashirnama (Exh.17) in presence of mashirs Niaz Hussain and Yar Muhammad. He also recorded further statement of complainant. He also arrested accused Liaqat Ali, Miral alias Mir Muhammad and Ali Asghar and they were put to the identification test before Assistant Mukhtiar and T.C.M., Larkana through P.Ws.; Fiaz Muhammad, Dilshad and abductee Sajid Ali. On completion of usual formalities, the accused Liaqat Ali, Miral and Ali Asghar were challaned in the Court of law to face their trial showing accused Mumtaz and Ali Bux as absconders, who were subsequently arrested and challaned.
4. ' On receipt of the case in the Court of learned Vlth Additional Sessions Judge, Larkana (trial Court), accused Liaqat, Miral and Ali Asghar Kori were charged, but during the pendency of the case, accused Liaqat was murdered and the proceedings against him were abated. Accused Miral absconded away and could not be produced by the concerned police and, as such, he was declared proclaimed offender on 23-6-1996 after recording the statement of process server H.C.
5. Ghulam Kadir (Exh.6) by the trial Court.
6. ' Thereafter, amended charge was framed against accused Ali Asghar Kori, Mumthz Tunio and Ali Bux Tunio (Exh.11) under sections 148, 149, and 365-A, P.P.C. To which they pleaded not guilty" and claimed their trial vide their pleas (Exhs.12 to 14), respectively.
7. ' To substantiate its case, prosecution examined abductee Sajid Ali (Exh.15), Niaz Hussain the mashir of wardat (Exh.16), who produced mashirnama of wardat (Exh.17), complainant Muhammad Ibrahim (Exh.18), he produced F.I.R. And his further statement (Exhs.18-A and 18-B); Ghulam Kadir (Exh.19); Faiz Muhammad (Exh.21); Dilshad (Exh.23); Abdul Rasheed retired Magistrate (Exh.25), he produced the mashirnama of identification (Exh.25-A); Muhammad Ramzan (Exh.26), the well- conversant of Investigation Officer Muhammad Moosa who had arrested the accused (Exh.27); Mashir Ghulam Sarwar for the arrest of accused Abdul Karim (Exh.30), he product mashirnama of arrest of accused Abdul Karim (Exh.30-A).
8. ' The accused Ali Bux, Ali Asghar and Mumtaz in their statements recorded under section 342, Cr.P.C.
9. Have denied the prosecution case, claiming their false implication and innocence. The accused Ali Bux has stated that there had been a dispute between him and his relatives with Muhammad All son of complainant Muhammad Ibrahim over agricultural land and such litigations between them were also filed by both of them against each other. He produced the true copy of order, dated 6- 10-1984 passed by the Additional Commissioner, Sukkur, original copy of notice, dated 16-12-1996 issued by High Court, attested copy of F.I.R. In Crime No,76 of 1996 of Police Station Nasirabad lodged by complainant under section 506/2, P.P.C. Photostat copy of process against complainant Muhammad Ibrahim, Photostat copy of disposed of Crime No,112 of 1987 under section 365, P.P.C.
10. And photostat copy of order of Member Board of Revenue as Exhs.17-A to 17-H, respectively. In:, accused, however, neither led any evidence in defence, nor examined themselves on oath in disproof of the charge.
11. ' The learned trial Court formulated the following points for determination:--- "(1) Whether the present accused alongwith dead accused Liaqat and absconding accused Miral formed an unlawful assembly duly armed with deadly weapons and in prosecution of the common object of such assembly abducted Sajid Ali with intention to get ransom, on the date, time and place, as alleged by the prosecution?"
12. "(2) What offence, if any, has been committed by the accused?"
13. ' After having gone through the evidence adduced by the prosecution and material available on the record, the learned trial Court passed the judgment in terms stated; above.
14. ' I have heard Messrs Ali Nawaz Ghanghro and lnayatullah Morio Advocates for the appellants as well Mr. Habibullah Ghori, Advocate for the complainant and Mr. Abdul Fattah Mughul, Advocate for the State and with their assistance I have gone through the evidence adduced by the prosecution and other material available on the record.
15. ' Messrs Ali Nawaz Ghanghro and Inayatullah Morio Advocates for the appellants have argued that the occurrence has taken place on 16-1-1989 at 12-30 noon and the report has been registered on 23-3-1989 and such delay goes unexplained by the prosecution. Apart from this, the kidnappee, namely, Sajid Ali is said to have been recovered from the clutches of the accused persons on 15-3- 1989 and thereafter, his statement under section 164, Cr.P.C. Has been recorded on 22-3-1989 wherein kidnappee Sajid Ali has stated that ransom of Rs,80,000 has been paid to dacoits through Mashooque Tunio and he has not been examined by the prosecution and this very factor has cut the root of the prosecution's case so the whole case depends upon the evidence of Mashooque Ali Tunio and his evidence revolves around that the ransom but he has not been examined by the police, although, it was disclosed on 15-3-1989 by kidnapee that it is Mashooque Tunio who played a role of go between parties and paid ransom of Rs,80,000 to the dacoits and the startling point is that no efforts have been taken by the police and prosecution to examine such material witness.
16. Mr. Ghanghro and Mr. Morio have elaborated their contentions that ransom is not proved and there are contradictory statements with regard to ransom that there was a demand of Rs,500,000 (rupees five lacs) which was reduced to Rs,80,000 and ultimately it was paid as Rs,50,000 and such question was put by the Presiding Officer to the accused and they have further contended that this was the adverse evidence against the present appellants that ransom was paid to them through Mashooque Ali Tunio and no such question has been put to the accused that they received the ransom of Rs,50,000 through Mashooque Ali Tunio and thereafter, victim/kidnapee Sajid Ali was released from their clutches. They have further contended that identification parade has been held on 10-7-1989 whereas the appellants are said to have been arrested on 26-6-1989. There is a delay of six days in holding the identification parade and it has been supervised by the Assistant Mukhtiarkar, who is not competent to hold such identification parade, and no where P.W./Kidnappee Sajid Ali has stated in his deposition before the trial Court that he had identified the accused in an identification parade, who is the main witness and who had identified the accused in an identification parade and the other witnesses namely and respectively Faiz Muhammad and Irshad were also there. According to them, no role has been ascribed by the witnesses who have identified the accused that what role was played by the accused during the commission of the offence. Finally they have contended that it is a case riddled with doubts and benefit of doubt goes to the appellants and have prayed for the acquittal of the appellants.
17. ' On the other hand Mr. Habibullah Ghori, Advocate for the complainant has halfheartedly argued the case and submitted that outside of the Court there has been amicable settlement between the complainant party and the accused party. Mr. Abdul Fattah Mughul, Advocate for the State has also conceded to the legal position and has given no objection if the present appellants are set at liberty.
18. 'I have given anxious thoughts to the arguments advanced by the learned counsel standing at the bar and have gone through the evidence adduced by the prosecution and the other material available on the record.
19. ' The entire case of the prosecution depends on Sajid Ali, who is the kidnappee and Mashooque Ali Tunio as the very fact of ransom is to he proved by these witnesses. I have noted with jade and critical eye that no efforts have been made by the police and the trial Court to examine Mashooque Ali Tunio, through whom the ransom has been paid to the dacoits and there is no explanation whatsoever from the side of the prosecution as to why such material witness was not examined by them. I have also taken into consideration the statements of the appellants under section 342, Cr.P.C. And no question has been put to them by the prosecution that they released the kidnappee Sajid Ali after receiving the ransom from Mashooque Ali Tunio as it is a claim of the prosecution that it was Mashooque Tunio who played a role of go between the parties and paid the ransom to the accused persons and this was the adverse evidence existing against the appellants and no such material question has been put by the trial Court under section 342, Cr.P.C. And in that even the benefit of doubt goes to the appellants and reliance can be placed on a case reported in 1960 SCMR 777 and 1995 SCMR 1374, 1375 wherein the Hon'ble Supreme Court has acquitted the accused on the point that 'adverse evidence was existing against the accused and no such question has been put by the prosecution under section 342, Cr.P.C.' and the benefit of doubt has been accorded to the accused and they have been set at liberty. I have also examined the statement of the kidnappee who claims to have seen the appellants and he has been produced by the police alongwith Faiz Muhammad and Irshad for identification of the accused but nowhere P.W/kidnappee Sajid Ali has stated before the trial Court that he also identified the accused in identification parade. I have also taken very serious note of it that no role has been ascribed to the present appellants during the identification parade as to what role was played by them during the commission of the offence as it is a claim of these witnesses that they had seen the accused and it was their duty to point out at the accused with specific role played by them during the commission of the offence but they have not done so and no where it is mentioned in the mashimama of identification parade or in the evidence that they have described any role to the appellants played by them at the time of offence. I am being fortified by a case reported in 1995 SCMR 127 and 128 placitum "c" wherein the Hon'ble Supreme Court has not taken into consideration the identification parade on the score that no role was ascribed by the witnesses to the accused that what role was played by them during the commission of the offence and according to Hon'ble Supreme Court the sanctity of the identification parade has been lost. Although the offence has been committed on 16-1-1989 at 12-30 p.m and yet the complainant did not go to the police station to report the matter with regard to the commission of the offence. It was the duty of the complainant to go the concerned police station immediately and to report that such a serious offence has been committed but he went to the concerned police station after the recovery of the kidnappee and wasting of such time at the place of Wardat renders doubt on the conduct of the complainant and once again the reliance can be placed on a case reported in 1995 SCMR 127. At this stage it has been pointed by the learned counsel for the parties that .The F.I.R. Was registered on 23-1-1989 before the recovery of the kidnappee, namely, Sajid Ali and this disclosure made by the learned counsel for the parties makes the conduct of the complainant more dubious as he did not go to the police station earlier. As far as the identification parade is concerned, there is a delay of 6 days which goes unexplained by the prosecution and it has been supervised by the Assistant Mukhtiarkar, who is not competent to hold such identification test and reference can be made to a case reported in PLD 1996 Karachi 246.
20. ' In view of the no objection given by Mr. Abdul Fattah Mughul, Advocate for the State and the disclosure on the part of the Advocate for the complainant that there has been some kind of amicable settlement between the parties outside the Court and the prosecution's case is riddled with the material contradictions on the one side and on the other side non-examination of material witness Mashooque Ail Tunio has riddled the entire case of the prosecution with bullets and there is a benefit of doubt against the present appellants.
21. ' Upshot of the above discussion is that the prosecution has miserably failed to prove its case beyond reasonable doubt against the present appellants and the benefit of doubt goes to the accused. If a single circumstance favours the accused, the benefit of doubt is to be given to the accused, not as a matter of grace but as a matter of right as held in 1995 SCMR 1345. Accordingly conviction and sentence of the appellants are set aside. In result, appeal is allowed. Appellants shall be released forthwith if not wanted in any other crime.