1. ' FAIZ MUHAMMAD QURESHI, J.--- Appellant Raza Muhammad alias Rajib Ali has called in question the judgment, dated 26-10-1994 passed by the learned Judge Special Court No,1, Suppression of Terrorist Activities, Hyderabad in Case No,241 of 1992 whereby he has been convicted and sentenced to suffer R.I. For life imprisonment under section 365-A, P.P.C. Read with section 149, P.P.C.
2. And all his immovable property shall be confiscated to the State according to the law.
3. ' Brief facts of the case are that complainant who is kidnapee in the instant case namely Jaffar son of All Bux Sahito lodged report on 26-11-1992 with Police Station Hala stating therein there he was kidnapped by dacoits Raza Muhammad alias Rajib Ali Wadho, deceased Adho Leel, deceased, More Rojhani, deceased Gullan alias Katli and Mehrab Fanani Khoso for getting ransom at the instance of Ameer Bux Muno Nizamani, Yaroo Nizamani and Nawaz Sahito who made conspiracy of his kidnapping.
4. ' After usual investigation police of Hala challaned the above named appellant Raza Muhammad alias Rajib Ali alongwith co-accused Mehrab son of Wahid Dino Khoso before the trial Court.
5. ' Charge Exh.3 was framed against the appellant alongwith co-accused Mehrab to which they pleaded not guilty and claimed their trial.
6. ' During trial prosecution examined P.W.1 Jaffar Exh.6, who is complainant and kidnappee in this case and produced the F.I.R. Exh.7 P.W.2 Rahim Exh.8. P.W.3 Alam Exh.9, a Mashir of Wardat and produced Mashirnama of Wardat as Exh.10. P.W.4 S.H.O. Khalid Taggar Exh.11, who arrested accused Raza Muhammad alias Rajib Ali and produced an attested copy of such Mashirnama as Exh.12, P.W.5 Nisar Ahmed, the then Assistant Mukhtiarkar and T.C.M. Hala, who supervised identification of the accused and produced Mashirnama of identification as Exh.15. And thereby the prosecution closed its side at Exh. 16 .
7. ' Statement under section 342, Cr.P.C. Of the appellant and co-accused Mehrab were recorded as Exh.17 and Exh.18 in which they have denied the prosecution allegations regarding kidnapping of Jaffar Sahito for ransom. They have also denied that they were identified by complainant/kidnapee Jaffar on 2-12-1992 from the identification line and have stated that they were not produced before the Magistrate for identification purpose. Appellant Raza Muhammad alias Rajib Ali had stated that P.Ws. Have deposed against him due to enmity. Complainant was himself Patharedar and he is how confined at Central Prison Hyderabad in one kidnapping case. He has further stated that he is innocent and falsely implicated in this case at the instance of one Patharedar Jaffar who is complainant in this case who is also involved with him in a case of kidnapping Crime No,14 of 1991 of Hala Police under section 365 -A , P P C ' Accused Mehrab has also gated that no P.Ws. Have deposed against him and he is innocent and has been falsely implicated in this case by the police due to enmity.
8. ' Both the accused have not examined themselves on oath nor they have examined any witness in their defence.
9. ' The trial Court after hearing the learned counsel for the parties passed the judgment whereby acquitted co-accused Mehrab as his case is doubtful and accorded him benefit of doubt whereas the trial Court convicted and sentenced the present appellant in terms as stated above, hence this appeal.
10. ' Mr. Allah Bachayo Soomro, learned counsel for the appellant has submitted that the incident has taken place on 4-3-1992 at 19-00 hours whereas the F.I.R. Has been lodged by the complainant/kidnapee on 26-11-1992 at 18-00 hours and such delay goes unexplained by the prosecution although the kidnappee/complainant remained in detention of the accused for seven days and thereafter he availed the chance and made his escape good as the culprits were sleeping and yet he has gone to police station on 26-11-1992 for the registration of the F.I.R. He has further argued that the present appellant was arrested on 26-11-1992 and he has been subjected to identification parade on 2-12-1992 and he was already shown in police lock-up and there was no justification to hold identification of the appellant. He has further submitted that it has been stated by the complainant Jaffar (kidnapee) that on the way the dacoits gave a chit demanding Rs,10 lacs as ransom for his release to someone whose name is not remembered and told him to hand over the chit to his relatives. According to the learned counsel for the appellant no such witness in this regard has been examined by the prosecution. He has further submitted that P.W. Rahim who is the real brother of the kidnapee Jafar no where has stated with regard to the receiving of chit for the purpose of ransom and has not supported the case of the,. Prosecution. He has further argued that the identification has been held by Assistant Mukhtiarkar and T.C.M. Hala who is not competent to supervise the identification parade and has submitted that the prosecution has failed to prove its case against the present appellant.
11. ' On the other hand learned counsel for the State Mr. Anwar Hussain Ansari submitted that evidence of the complainant/kidnapee Jaffar is enough who has implicated the present appellant and appellant has been identified by the complainant Jaffar (kidnapee) during the identification parade. When asked as to whether Assistant Mukhtiarkar and T.C.M. Hala was competent to supervise the identification Parade, learned counsel for the State replied that he was not competent to supervise the identification parade. Learned counsel for the State could not reply to the query that why the person has not been examined to whom the chit was given for the purpose of ransom and during the course of arguments learned counsel for the State very frankly admitted that the ransom is not proved.
12. We have heard learned counsel for the parties and have examined the material available on record and with their assistance we have gone through the evidence of the witnesses. Admittedly the ransom is not proved and it has been stated by the complainant/kidnapee Jaffar that when he was being taken away by the dacoits they gave a chit demanding Rs,10 lass as ranscm for his release to someone whose name is not remembered by the complainant and that chit was handed over to his relatives and in this regard prosecution has miserably failed to examine any such relative of the kidnapee/complainant. Admittedly the brother of the kidnapee P.W. Rahim has been examined by the prosecution who has not supported the case of the prosecution. No where he has stated that any ransom was demanded or any chit was given to the relative of the complainant for the purpose of ransom and he has not supported the case of the prosecution at all. We have also examined the Mashirnama of identification dated 2-12-1992 and the same has not been held in accordance with the procedure laid down by the superior Courts and the very purpose of the identification parade becomes fatal when the appellant has been shown to the complainant in police lock-up, and therefore, the identification parade has lost the sanctity.
13. Although offence has taken place on 4-3-1992 and admittedly the kidnapee Jafar has remained in custody of accused for seven days and thereafter he was let off by the accused and yet he has gone to police station on 26-11-1992 and the explanation is being given by the learned counsel for the State with regard to delay in lodging F.I.R. That 'omplainant/kidnapee Jaffar due to fear did 1.:It go to police station for lodging F.I.R. And the delay is not being explained by the prosecution and we have not been impressed by the arguments rendered by the learned counsel for the State on the factum of delay in lodging of F.I.R.
14. ' We have also examined the impugned judgment and the co-accused namely Mehrab has been acquitted by the trial Court on the same evidence.
15. ' In the circumstances we are of the considered view that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant and we accordingly give benefit of doubt to the appellant and set aside the conviction and sentence of the appellant. In result this appeal is allowed, appellant shall be released forthwith if not required in any other case.
16. ' Above are the reasons of our short order, dated 22-2-2001.