2007 PLP 181 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

This judgment will dispose of the Cr.A.T As. Nos. 54, 55 and 59 of 2004 as they arise out of a common Judgment. The brief facts giving rise to the present Appeals are that on 30-6-2002 the complainant Suhrab and P.W.2 Abdul Khaliq went to abductee P.W. 3 Reejho Mal to give company, while going to the house of P.W.3 as they used to do so after closing the shop because of the law and order situation. The complainant and P.W.2 on a Motorcycle whereas P.W.3 Reejho Mal on another Motorcycle left the shop situated in Trighati Taluka Rohri to go towards Sanghar side after sun set. The head light of the Motorcycle of P.W.3 was dim, therefore, he was following the Motorcycle of the complainant. When they reached Pir Chuttal Road, they found it under construction, therefore, they took the Katcha Path. Suddenly three persons emerged from the adjoining bushes and came on the Road. The complainant identified the said persons on Motorcycle light to be absconding accused Anwar armed with Kalashnikov, Appellant Hubdar armed with Kalashnikov, and Appellant Qamaruddin armed with gun. The culprits directed the complainant to stop his Motorcycle, therefore he came down from the Motorcycle and started running back along with P.W. Abdul Khaliq. In .the meantime P.W. 3 Rajhoo Mal reached the place of incident where he. was caught by the culprits. The culprits then took away Rajhoo Mal inside the bushes. The complainant took his Motorcycle and went towards Police Station to lodge the report. Whereas P. W .3 took the Motorcycle of Rajhoo Mal and went towards the village. The Police after registering, the case flashed the news of abduction to various officers on Wireless sets. In pursuance of the said information P.W.7 A.S.-I. Ali Nawaz along with his subordinate Staff, P.W.8 Muhammad Hayat after recording the F.I.R. reached the place of incident. They found the foot-prints, therefore with the help of villagers they tracked the same but the foot-prints were lost at Sim Nali. At that time the sun had risen. They again found the foot-prints which lead them to the Jangle where they surrendered the culprits but the culprits started firing at the police party. The encounter continued for about half an hour. Thereafter the Appellant Hubdar was arrested with K.K. He lead the Police party towards a tree where abductee Reejho Mal was sitting blind folded. P.Ws. saw the Appellant Qamaruddin and absconding accused Anwar running away from the said place. In the said encounter it was alleged that two villagers had lost their lives. The Appellant Hubdar and abductee were brought to the Police Station. On 5-7-2002 the Appellant Qamaruddin was arrested thereafter he produced a DBBL gun before the Police which was secured. After completing the investigation the Appellants were challaned in the Court showing the accused Anwar as absconder. The learned Judge Anti-Terrorism Court-III, Sukkur and Larkana Divisions at Sukkur tried, convicted the appellants for offence punishable under section 365-A/34, P.P.C. and sentenced each of them to suffer imprisonment for life and forfeiture of movable and immovable properties amounted to Rs.2,00,

000. They were further convicted for offence punishable under section 7(e) of the Anti-Terrorism Act, 1997 and sentenced to suffer imprisonment for life and forfeiture of movable and immovable properties of Rs.2,00,000 each. The appellant Hubdar was also convicted for offence punishable under section 13(d) of Pakistan Arms Ordinance, 1965 and sentenced to suffer R.I. for 5 years and fine of Rs.50,

000. The appellant Qamaruddin was also convicted for offence punishable under section 13(e) of Pakistan Arms Ordinance, 1965 and sentenced to suffer R.I. for 5 years and fine of Rs.50,

000. In case of none payment of fine the appellants were directed to suffer R.I. for one year. All the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C. under the impugned judgment, dated 4-6-2006. We have heard the Advocate for the appellant Qamaruddin, appellant Hubdar in person, A.A.-G. for the State and perused the record of this case very carefully. The learned Advocate for the appellant Qamaruddin has stated that the abductee and P.W.2 have not implicated the Appellant; that the Police with mala tide intention have prepared a forged record to implicate the Appellant; that both the mashirs of arrest and recovery of gun from the possession of the appellant, have not supported the case; that the case rests upon the evidence of complainant, who is hostile and inimical to the appellant, therefore, his evidence is not sufficient to convict him. The appellant Hubdar has stated that he is innocent; that he has been involved falsely due to enmity; that the prosecution witnesses are set up witnesses; that no recovery was made from his possession but the Kalashnikov has been foisted upon him by the Police. Conversely, the learned A.A.-G. has stated that the prosecution case rests upon ocular testimony of three witnesses including victim; that they have fully supported the prosecution case but P.Ws. 1 and 2 gave obliging statements to support the appellant Qamarddin; P.Ws 1 and 2 are unanimous that they identified the appellant Hubdar whereas P.W.3 Rajoo Mal did not state that he had identified any of the culprits at the place of abduction; that the evidence is supported and corroborated by the Police Officials, that they had apprehended the appellant Hubdar at the place of recovery of victim and saw that remaining appellant running away from there, therefore, the case has been proved against all the appellants. He has supported the impugned judgment. We have given due consideration to the arguments, gone through the evidence with the assistance of learned Advocate for the appellant and found that the prosecution examined 9 witnesses. From their statements, the incident is divided into two parts first part deals with the abduction of P.W.3 and second part deals with his recovery. As regards the first part the prosecution relied upon three witnesses viz. P.W. complainant Suhrab, P.W.2 Abdul Khaliq and P.W.3 Rajhoo Mal. As regards the incident and the manner in which it has taken all the three witnesses are unanimous. The statements of P.Ws. 1 and 2 about the involvement of appellant Hubdar are unanimous as they deposed that they identified the appellant Hubdar at the place of abduction. However, P.W.3 did not state that he had identified the appellant Hubdar at the place of abduction. As such the statements of P.Ws. 1 and 2 are in conformity with each other on the point of identification of Appellant Hubdar. As regards the identification of the appellant Qamaruddin, their statements are different from each other. According to P.W. he identified the appellant Qamaruddin at the place of abduction and found him armed with gun. The P.W.2 in the examination-in-chief deposed that he identified the appellant Qamaruddin who was armed with gun but in cross-examination he changed his statement by stating that he had not seen the appellant Qamaruddin at the place of incident but he had identified him under the direction of the Police and the Police pressurized him to involve the appellant "even before the Court of Magistrate in his statement recorded under section 164, Cr.P.C. Whereas P.W. 3 abductee stated that the appellant Qamaruddin present before the trial Court was not the same. However, the abductee was declared hostile but the learned Prosecutor could not obtain any admission which can support the involvement of the appellant Qamaruddin. The defence counsel cross-examined the witness in which he admitted that he had not identified the appellant Qamaruddin at the place of incident. He further admitted that the appellant Qamaruddin was not involved in his abduction for ransom. From the above evidence it is clear that the P.Ws. 1 and 2 have involved the appellant Hubdar in the abduction of P.W.3 whereas P.W.3 did not involve any of the appellants at the time of abduction. However, the abductee has admitted that while he was being taken away to the Jangle, the accused had demanded Rs.10,00,000 for his release. The perusal of his statement reveals that after abduction by three culprits they took him towards Jangle on foot for whole night. At dawn time he was blind folded, during that period the culprits had demanded Rs.10,00,000 for his release. In the morning the culprits made him to sit under a tree. After some time when he heard tire-arm reports, which continued for about half an hour, his eyes were opened by a person and he found one A.S.-I. present there and the appellant Hubdar was under his custody. Thus from his evidence it is clear that after the A incident an encounter took place between the Police and culprits. The Police recovered him where the appellant Hubdar was found under Police custody. As such the P.W. Rajoo Mal has also implicated the appellant Hubdar for his abduction. Thus from the evidence the A involvement of the appellant Hubdar in the commission of the offence of abduction for ransom has been proved. Where the involvement of appellant Qamaruddin is highly doubtful on the first part of the incident. As regards the second part of the story, the prosecution relied upon P.W.7 A.S.-I. Ali Nawaz, P.W.8 Investigating Officer A.S.-I. Muhammad Hayat, Both the witnesses deposed that after reaching the place of incident and after receipt of the information of the abduction of Reejho Mal, they found foot-prints, which were tracked with the help of villagers. The said foot-prints lead them to Sim Nali and then to Jangle where encounter took place between the culprits and Police, which continued for about half an hour. Thereafter the Police apprehended the appellant Hubdar. From his possession Kalashnikov and bullets were secured. The appellant Hubdar disclosed that Reejho Mal was lying near the said place. On the said information Reejho Mal was recovered. They further deposed that they saw appellant Qamaruddin and absconding accused Anwar running away from the said place. From their evidence it is clear that P.W.3 was recovered on the information supplied by the appellant Hubdar. The said information is admissible under Article 40 of the Qanun?e-Shahadat Order, 1984. Therefore, the abductee was recovered from the Appellant Hubdar. As such the appellant Hubdar has further been connected with the commission of crime. As regards the appellant Qamaruddin P.W. Ali Nawaz disclosed that he did not know the Appellant Qarnaruddin prior to the incident. In such a situation, the appellant Qamaruddin should have been put in identification test before a Magistrate to be identified through the P.W.7 Ali Nawaz but the prosecution did not do so. As such his evidence with regard to the identification of Qamaruddin cannot be safely relied upon. Nevertheless, he did not state that he saw the appellant firing at the Police. As regards P.W.8, he stated that he identified two culprits who ran away from the place of incident to be accused Anwar and Qamaruddin as he knew the Appellant Qamaruddin before the incident. He also did say specifically that he saw appellant Qarnaruddin firing at Police party. Now it is to be seen whether the P.W. Hayat was able to see the appellant Qamaruddin and identified him in the Police encounter. In order to ascertain the correct position we have to examine the situation in which encounter took place and the place where the parties were present. Both the witnesses deposed that the Jangle was thick. Thickness of the Jangle can very well be judged from the fact that victim was present near the place where the appellant Hubdar was arrested but the Police were not able to see the said place. Thus the Jangle was so thick that a person present nearby was not visible to another person. P.W. Ali Nawaz deposed that he saw that appellant running away from a distance of about 50 feet. P.W.7 deposed that he had seen the appellant at a distance of about 200 paces. P.W.7 further deposed that he was ahead of Police party as the remaining party was about half kilometer away from him and from that place they were firing at the culprits. He further deposed that he collected the empties fired by the. culprits from various place and they were lying in an area of about half kilometer. Furthermore, P.W.8 further deposed that they were firing at the culprits by hiding themselves and no Police Officer sustained injuries in the encounter. From all the above facts it is manifest that at the time of encounter the parties were hiding in the Jangle and firing at each other, P.W.8 who claimed to have identified the appellant categorically stated that he saw them from a distance of 200 paces which means about 500 to 600 feet. In a thick Jangle it is not appealing to the common sense that P.W.8 would be able to see or identify any culprit. Furthermore P.W.2 also admitted that he was with the Police party at the time of encounter and in his presence the. appellant Hubdar was arrested and Kalashinkov was secured from him but he did not state that he or any Police officer saw the appellant Qamaruddin running away from the said place. Thus the identification of the appellant Qarnaruddin in the second part of the incident appears to be highly doubtful. It is further pointed out that P.W.9 Investigating Officer claimed that he arrested the appellant Qamaruddin who produced the gun in presence of witnesses Noor Muhammad and Tasleem. Both the witnesses have been examined by the prosecution but they did not support the Investigating Officer and stated that neither the appellant Qamaruddin was arrested nor he produced any gun before the Police in their presence but their signatures were obtained on plain papers by the Police. Both the witnesses were declared hostile by the Special Prosecutor. He cross-examined them but he could not get anything from them in favour of the prosecution. Thus it has been established that Police had prepared a false record to involve the appellant Qamaruddin in the case. The apprehension and allegation of the appellant Qamaruddin that he has been falsely involved in the case by the complainant with the connivance of Police get support from the above facts. As regards the statement of P.W. against the appellant Qamaruddin, the appellant Qamaruddin claimed that he had enmity with him and his relatives as he and his father had filed applications and suit against P.W.2 and his father Abdul Razak and said Abdul Razak was the maternal uncle of the P.W.1. The P.W.1 denied such suggestion by showing ignorance about moving the application and filing of suit but the Appellant produced various documents Exh.24-A to D that show that either Qamaruddin or mother of Qamaruddin had filed application and suit against Abdul Razak and P.W.2 Abdul Khaliq. Thus there is record enmity between P.W.2 who is maternal cousin of the P.W. and closely related to each other therefore the evidence of P.W. requires strong and independent corroboration in respect of involvement of appellant Qamaruddin, but the same is lacking in the case for the simple reason that the P.W.2 and the victim have not involved the appellant Qamaruddin in the crime. Therefore, the evidence of P.W.1 cannot be safely relied upon in respect of involvement of appellant Qamaruddin. After considering the material available on record we are of the considered view that the case of the prosecution is highly doubtful against the appellant Qamaruddin with regard to his involvement of the incident of abduction and recovery of unlicensed gun from his possession. Therefore, we gave benefit of doubt to him while passing the short order. As regards the case of appellant Hubdar the prosecution has been able to prove the case against him beyond any reasonable doubt. Therefore the learned trial Judge has rightly convicted and sentenced him under the impugned judgment. Above are the reasons of our short order, dated 17-8-2006 by which we had disposed of the Appeals in the following manner:-- "For reasons to be recorded separately the convictions and sentences awarded to the appellant Qamaruddin under the impugned judgment, are set aside, the appellant is acquitted. He is in custody, he should be released forthwith if not required in any other custody case. The Cr.A.T. Jail Appeals Nos. 54 and 59 of 2004 are allowed, whereas the convictions and sentences awarded to appellant Hubdar, are maintained. The Cr.A.T. Jail Appeal No.55 of 2004 is dismissed. Appellant Hubdar is remanded to custody to serve out the sentence." H.B.T./Q-9/K????????????????????????????????????????????????????????????????????????????????????? Order accordingly.