2019 P Cr (PLP)

FAHIM AHMED SIDDIQUI, J.

The Special Judge Anti-Terrorism Court of Hyderabad and Mirpurkhas Division at Hyderabad in ATC Case No. 28/2006 has convicted the appellants by passing the impugned judgment dated 11th January, 2006. The operating part of the impugned judgment is as under:- "The accused persons namely Dhani Bux Abro, Majnoo Dahri and Daim Dahri are found guilty under section 365-A, P.P.C. read with section 6(2)(e) of Anti-Terrorism (Amendment) Ordinance, 2001 and thereby each of the accused persons namely Dhani Bux Abro, Majnoo Dahri and Daim Dahri are hereby sentenced and punished under section 7(e) of Anti-Terrorism (Amendment) Ordinance, 2001 for the term of Imprisonment of Life and shall also be liable to fine and also forfeiture of their property owned by them each. The fine of Rs.50,000/- each shall be recovered from them and will be deposited into Government Treasury. In case of non-payment of fine art(sic.) I for one year each to suffer. The co-accused namely Aqueel Ahmed Arain and lady accused Mst. Zareen Shah are hereby acquitted under section 265-H(i), Cr.P.C. The convicts will have benefit of section 382-B, Cr.P.C. from the date of arrest viz. 30/10/2006." Since two of the nominated accused persons namely Aqueel Ahmed Arain and Mst. Zareen Shah have been acquitted; therefore, the complainant also filed Acquittal Appeal, which is also being disposed of with this judgment.

2. The prosecution's story is unfolded in FIR which was lodged by the complainant Sirajuddin at Police Station Baldia, Hyderabad on 12-10-2006. In the said FIR, he alleged that one of his relatives namely Mst. Zareen Shah (acquitted accused) requested the Complainant to allow his children namely Hamza and Huzaifa to go with her as she wanted to deliver the cloth to a tailor in Kalhora Colony. Subsequently, he was informed by Imran Ali Memon (acquitted accused) that his wife Mst. Zarina informed him that his two sons have been abducted by two unknown persons in a white car from a place nearby Medina Mosque. The complainant informed about the incident to his brother Zaheeruddin.

3. It is worth noting that certain facts have not been mentioned in the FIR but the same have subsequently came on the record through further statement of the complainant or other documents. As per his statement, on the next day i.e. 7-10-2006, he received a telephone call at about 10:00 hours in which he was directed not to do anything. Again the complainant received telephone call on the same date at about 08:00 hours directing the complainant party to arrange Rs. 35,00,000/- as ransom.

4. The case was investigated and after completion of investigation, a Final Report was filed before the trial Court. The learned trial Court took cognizance of the case and framed the charge against the accused persons to which they denied and claimed trial. Thus the trial commenced and prosecution examined their witnesses, where after the statement of accused persons were recorded under section 342, Cr.P.C. After closure of trial, the learned trial Court pronounced its verdict as described above.

5. We have heard the arguments advanced and have gone through the entire material with the able assistance provided to us by the learned members of bar and learned DPG.

6. In the instant case, the foremost important thing is that there is inordinate delay in lodging the FIR. It is also a fact that this delay has not been plausibly explained within the body of FIR. It is also a fact that at the time of lodging of FIR, the alleged abductees were already reached home but this fact was not mentioned in the same. It is also notable that the fact of alleged payment of ransom is also missing in FIR. In cross-examination, the complainant admits this fact that he had not mentioned in FIR that his children had already returned and he had paid ransom for their release/return. The counsel for the appellants have pointed out certain discrepancies and contradictions in the evidence recorded before the trial Court. The complainant and witnesses are not in agreement on the vital point of their depositions. According to complainant, he received information about the abduction of his children Hamza and Huzaifa on 6-10-2006 just after the incident and he disclosed the same on 15 but no report was lodged. It is surprising that he himself is stated that he had informed the police about the entire facts and police disclosed him that they had arranged Nakabandi but no FIR was lodged. It is also stated by the complainant that from the second day of abduction to on word, they had received series of telephone calls from the accused persons from a landline number but during investigation no record of such phone calls was collected to establish this aspect of the assertion of the complainant. It is alleged by the complainant that an amount of Rs.535,000/- and some golden ornaments were handed over to the accused persons through lady accused Mst. Zareen Shah in civil hospital, but no recovery of ransom amount or golden ornaments was effected from any of the accused persons. According to complainant, at the time of delivery of ransom amount, Imran, his brother Zaheeruddin were also went to Civil Hospital along with lady accused Mst. Zareen Shah and the delivery was made by lady accused in the hospital while they were waiting outside and subsequently she disclosed that she had delivered the bag containing amount and ornaments to a person aged about 24/25 years, who have gone afterwards. It is indeed surprising that when he was outside the hospital, then how he had identified accused Aqueel Ahmed in the court by saying that he is the person, who had received the bag from lady accused Mst. Zareen Shah.

7. We have observed that there are series of contradictions in the depositions of witnesses. The complainant has stated that the identification test was done in the chamber of learned Magistrate after Jumma Prayer but the other witnesses including the learned Magistrate and minors disclose that the identification was done in the early hours of the day. It is also come on the record through the complainant that the lady accused Zareen Shah as well as co-accused Aqueel were arrested from a place nearby Zubaida College but the prosecution witness Imran (husband of lady accused) says that she was arrested from home. He also did not verify the version of the complainant that he and lady accused went to Civil Hospital to deliver the ransom amount to someone. It is worth noting that there was no effort by the prosecution to declare PW Imran as hostile and no cross was conducted to him on this point. In such a situation, we do not find any reason to brush aside the evidence of this witness of prosecution. The complainant also admits during cross that he is not in visiting terms with Imran i.e. the husband of lady accused Zareen Shah. Now a question arises, when he was not in visiting terms then why the children were sent with the wife of Imran to a tailor shop. The complainant tries to overcome this aspect, by saying that on ceremonial occasion, they visit each other. He then says that about four/five months ago, on the demise of the father of Imran he visited his house. He also admits that it was the only time that he had visited the house of Imran.

8. As far as identification of the accused persons is concerned, the same is also not free from doubt. According to complainant, investigation officer Islamuddin informed him that the accused persons were in their custody and on 8th November, he had taken his children firstly to police station and then to Court. From this part of the depositions, it is very much clear that the complainant and his children went to Court with police. Regarding identification, the statement of complainant and other witnesses are totally contradictory in respect of time, place of identification and procedure of identification. It is also a fact that the learned Magistrate had categorically stated that he had not asked any questions with the minors to test their competency for Identification Test Parade. It appears from the 'Memo of the Identification Parade' that at the time of identification there were only nine dummies amongst them three accused persons were mixed up, meaning thereby that the ratio of accused and dummies was only '1 : 3', which is far more lesser than the required ratio. It is also worth mentioning that accused Daim was not identified by one of the witness. Another aspect requires consideration. It has come on the record that the accused persons were arrested on 30 October, 2006 and it has also come on the record that the alleged abductees were produced before police station on 8th November, 2006; therefore, such identification itself does not improve the case of prosecution.

9. Both the minor witnesses are said to be the star witnesses of the prosecution. However, from the depositions and recorded before the trial court, it appears that both of them were fully tutored in despite of that there evidence remained shaky on the vital points of their depositions. One of the minors says that at the time of abduction lady accused Zareen Shah opened the door of the car and sit in with them but the other minor says that she was not accompanying them in the car. In response to a question, minor Hamza says that he cannot say for what purpose he appeared in the Court. We are of the view that such evidence of the minors solely cannot be relied and the same requires corroboration and such corroboration is missing in the case.

10. In view of the above discussion, it can safely be said that the prosecution remained fail in bringing the guilt of the accused persons (appellants) at home. There are pearls of doubt scattered here and there in the entire prosecution case, as such we are of the considered opinion that the benefit of doubt should be extended in favour of the appellants, as such we have passed the following short order dated 26-09-2017: "For the reasons to be recorded later on, Criminal ATA Appeal No. D-305 of 2006 and Criminal ATA Appeal No. D-307 of 2006 are allowed. Accordingly, impugned judgment is hereby set aside. Appellant Majnoon who is in custody shall be released forthwith if not required in any other custody case. Criminal ATA Acquittal Appeal No. D-320 of 2006 is hereby dismissed." These are the reasons for our above quoted short order. JK/D-3/Sindh Order accordingly.