2001 P Cr (PLP)

At trial statements of the appellants under section 342, Cr.P.C. were recorded in which they denied the allegations and appellant Muhammad in his further statement has stated as under:‑ My father Muhammad Yousuf entered into verbal agreement of sale of agricultural land belonging to Mr. Ali Bux Kaka in respect of 5 Acres. My father paid Rs.2,000 as an advance and thereafter paid Rs.28.000 to Mr. Ali Bux kaki on 21‑9‑1982 and on 30‑10‑1982 Mr. Ali Bux Kaka died and his son Ali Gohar Kaka was being pressed by my father and myself to complete the sale agreement which he did not do and he in collusion with police and abductee and the complainant filed this false case against me. On the same dm the same S.H.O. also filed 110, Cr.P.C. proceedings against me before the S.D.1‑l., Hala. This was a false case and so I had filed quashment petition and the same were quashed by the Honourable High Court. The complainant was a witness against me in 110, Cr.P.C. proceedings. These cases were filed to coerce me not to press for the demand of money which my father and I had paid to Ali Bux Kaka. I am a Government servant. I produce the complaint under section 110, Cr.P.C. filed by the same S. H. O. who had investigated this case, as Exh.30. I also produce the quashment order of the Honourable High Court as Exh.31. I also produce photo copies of two receipts signed by Ali Bux Kaka, as Exhs.32 and

33. I am innocent. I have been falsely implicated in this case. No independent person has supported the case of the prosecution. Whereas appellant Abdul Salt in his further statement has stated as under:‑‑ I am a Beldar in Hala Irrigation Sub-Division from 1-7-1982. I had been attending my duties on the day of incident. I produce the certificate signed by the Assistant Engineer, Irrigation Sub‑division as Exh.36 and photo copy of attendance sheet in the month of December, 1983 signed by Assistant Executive Engineer as Exh.37. I was a Beldar during the days of the incident and the complainant party used to break the watercourse in my beat and there used to be altercation with me on that score. The complainant party had their lands on Jamal Minor which was under my beat and hence they have given my name to take revenge. I am innocent. Whereas appellant Haleem adopted the statement of appellant Abdul Sattar. They neither examined themselves on oath nor led any evidence in defence. The following points were framed by the learned trial Court for determination:‑‑ (1) Whether P.W. Haji Allah Ditto was abducted? (2) Whether the accused had abducted P. W. Allah Ditto? (3) What offence, if any, the accused have committed? On assessment of evidence the appellants were found guilty and were convicted and sentenced as mentioned above. I have heard Mr. Khawaja Adeel Ahmed, the learned counsel for the appellants and Mr. Habibur Rasheed, the learned counsel appearing on behalf of the Advocate‑General, Sindh, for the State, at length and have gone through the R & P of the case. It is argued on behalf of the appellants that none of the appellants are neither nominated in the F.I.R. nor their physical features have been mentioned though the incident is said to have taken place at 7‑30 p.m. and electric bulb was on at that time at the place of occurrence. According to him no identification test was ever held through any of the witnesses in respect of the appellants. He attacked the prosecution evidence arid argued that from the evidence no case under section 364, P.P.C. has been made out. None from the witnesses even the abductee had deposed to the effect that Allah Ditto was ever abducted with intention of murder. According to him he also categorically stated that neither money was demanded nor the same was paid for his release. With regard to encounter it is argued that the word of abductee that he was released by the dacoits after exchange of firing in between them and the appellants is contradicted by Investigating Officer Nazeer Ahmed, who has deposed that no such encounter or firing took place. He lastly submitted that in view of the above the appellants may be acquitted and appeal be allowed. Mr. Habibur Rasheed, the learned State Counsel on the other hand, does not controvert the above arguments and raises no objection if the appeal is allowed. The complainant in F.I.R. has nominated Jam Bhambhro and Shah Mir Jalbani as the accused of the case and other four unidentified persons, whereas in his deposition before the trial Court he has stated that P.W. Haji Ali Khan, who informed him about the incident, did not disclose the name of any of the dacoits, but P. Ws. narrated that they abducted Allah Ditto after beating and maltreating him About the F.I.R. he says that the same had not been read over to him by the police. With regard to abductee, he states that he came back after 4/5 days of the incident from forest and informed that at the Fajar prayer time he identified the appellants and thereafter he heard some fire reports and was recovered by police. In cross‑examination the complainant categorically admits that he knows the appellants prior to the incident, According to him appellant Muhammad was Chowkidar and Tube well Operator in WAPDA, whereas Abdul Sattar was Beldar in the Irrigation Department and appellant Muhammad was also known to him prior to the incident. Certain questions with regard to the enmity over purchase of land and the watercourse were put to, this witness but he denied the same, P.W. Allah Ditto, abductee, at the very outset stated that he was abducted by 10 persons armed with guns and rifles. They after beating him took him to the forest and after 3/4 days there happened exchange of fires between them and the police and he was secured. He deposed that he identified Jam, Rakhio, Shah Mir and the appellants. With regard to the appellants, he said that he knew them prior to the incident. In cross‑examination he has stated that at the time of incident bulb was lightening in the Autaq. He has also admitted, to the suggestion that appellant Muhammad is Hari and appellant Haleem cultivates land and he has further admitted that he did not disclose to the police that the appellants had demanded money for his release nor he gave any money to them. P.W. Bashir, the Mashir of Wardat and arrest of appellant Muhammad, has not supported the case of prosecution. P.W. Haji Ali Khan, the informant of the incident to the complainant too has not taken the name of the appellants in his deposition, to be the culprits of this case. He has stated that he and the other witnesses were ordered to bow down their heads and as such they could not see any of the culprits and identified. Another eye‑witness Hakim alias Baghar has also not supported the case of prosecution. Investigating Officer Nazeer Ahmed in his examination‑in‑chief stated that while they were holding Nakabandi on 20‑12‑1983, some dacoits approached the opening of Bhutto Forest and seeing the police party, ran away, leaving behind the abductee. He has failed to show any reason as to why 164, Cr.P.C. statement of abductee was recorded after about 17 days. In his cross‑examination he has deposed that P.Ws. did not disclose the names of the appellants in their 161, Cr.P.C. statements. With regard to 161, Cr.P.C. statement of Allah Ditto, abductee, has stated that he never disclosed that he was beaten by the appellants at the time of abduction. The appellants had taken specific pleas of defence in their statements under section 342, Cr.P.C. and have stated that they have been falsely implicated due to enmity on lands and rotation of water by the complainant. According to them the appellants were challaned under section 110, Cr.P.C. on the same day, whereas complainant has been cited as witness. From the above discussion of evidence it can be inferred that prosecution has failed to prove case under section 364, P.P.C. None of the witnesses including abductee has stated that the abductee was abducted by the A appellants with the intention of being murdered which is the basic requirement of section 364, P.P.C. Accordingly the appeal succeeds and conviction and sentence passed against the appellants are set aside. They are acquitted. They are present on bail. Their bail and bonds stand cancelled. N.H.Q./M‑88/K Appeal accepted.