2021 P Cr (PLP)

FAHIM AHMED SIDDIQUI, J.

This single judgment will suffice for disposal of the aforementioned appeals as both are arising out of the one and same crime bearing No.98/2011, registered at Police Station Shaheed Fazil Rahu, District Badin for the offences punishable under sections 365-A/343/34, P.P.C. read with sections 6/7, ATA, 1997.

2. Since one of the appellants namely Abdul Khaliq at the time of commission of the alleged offence was of tendered age, hence, his case was tried separately from the case of appellants namely Abdul Ghafoor and Muhammad Ilyas.

3. The appellants namely Abdul Ghafoor and Muhammad Ilyas have challenged their convictions and sentences awarded in the aforementioned crime through impugned judgment dated 19.10.2011, passed in Special Case No.15/2011 [The State v. Abdul Ghafoor and another] by the learned Judge, Anti-Terrorism Court, Badin under section 7(e) of Anti-Terrorism Act, 1997 read with sections 365-A/34, P.P.C. to imprisonment for life and forfeited their property worth Rs.100,000/-. each. However, the trial Court extended benefit of section 382-B, Cr.P.C. to them. Simultaneously, the appellant Abdul Khaliq has impugned the Judgment dated 20.12.2011 passed by the said Court in Special Case No. 15-A/2011 [The State v. Abdul Khaliq], whereby he was convicted under section 7(e) of Anti-Terrorism Act, 1997 read with sections 365-A/34, P.P.C. and sentenced to be detained for a period of ten [10] years in the Youthful Offenders Industrial and Reformatory School at Karachi where he will be provided technical education considering his interest; formal education was also ordered to be provided to him. The Superintendent was directed that he shall observe provisions of relevant laws of detention including the Sindh Juvenile Justice Rules, 2002. The benefit of section 382-B, Cr.P.C. was also extended to him.

4. The factual matrix of the case is that on 21.05.2011, complainant Noorul Ameen lodged FIR stating therein that he owns a Mobile Phone Shop and has eight sons. His seventh son namely Asad aged about 14 years is studying in Jamia Muhammadia High School Shaheed Fazil Rahu in 7th class and on 13.05.2011 at 08.00 a.m., he was dropped by the complainant's other son namely Shah Alam at the said School but after School timings he did not return to home. The complainant and his son Shah Alam, on inquiry, came to know that Asad left the School at 08.15 a.m. in order to purchase a notebook but did not return. According to complainant, he received a phone call at about 10.30 p.m. from cell phone No. 0342-8174213 and the caller disclosed that they have kidnapped his son Asad and directed for the arrangement of the ransom amount. Thereafter, on 14.05.2011 and 15.05.2011, the complainant received a phone call from said number. Per complainant, the culprits demanded ransom amounting to Rs.5,10,000.00 [Rupees five lacs and ten thousand only] and directed to bring the said amount towards Baran. On their directions, the complainant along with his brother Nasir, Saeed, Muhammad Rafiq and Masoom Akhtar when reached near Village Jaheja, they met with three persons in sugarcane crop; out of them, faces of two were opened and they can be identified if seen again. The complainant delivered the ransom amount Rs.5,10,000.00 to them, however, the culprits told them that in the evening time the boy will reach at home and they went away. At about 07.30 p.m. the alleged abductee Asad reached at Golarchi. According to complainant since his son Asad being confused did not disclose about the incident; as such, he was taken to hospital for treatment and thereafter instant FIR was lodged.

5. The appellants were arrested and recovery of ransom amount of Rs.5,10,000.00 was effected from the houses of appellants on their indication. After usual investigation, police submitted the final report before the learned trial Court.

6. Formal charges against the appellants were framed, who pleaded not guilty and claimed trial. As mentioned above, the appellant Abdul Khaliq was declared as 'juvenile' by the trial Court, hence, he was separately charged and he also pleaded not guilty and claimed trial.

7. In order to establish their case the prosecution has examined as many as 10 witnesses including 4 official witnesses. Amongst the official witness, two are the Judicial Magistrates to support the identification parade and statements of some prosecution witnesses recorded under section 164-B, Cr.P.C. After closure of the prosecution side, the trial Court has provided an opportunity to explain their position in respect of prosecution evidence by recording their statements under section 342-B, Cr.P.C. In their statement, the appellants denied all the allegations levelled against them by the prosecution and claimed their innocence. Nevertheless, neither they examined themselves on oath nor led any defense evidence.

8. After observing all the prerequisites and legal formalities and evaluating the evidence produced; the trial Court found the appellants guilty of the offence with which they were charged and pronounced the verdict as stated above.

9. Learned counsel for the appellants after going through the entire prosecution evidence pointed out certain contradictions in the deposition recorded before the trial Court. They contended that the incident is unseen and no source of information regarding involvement of the appellants has been furnished by the prosecution. According to them, the prosecution could not establish the allegations against the appellants through their evidence even the evidence of complainant and his witnesses is not in the line which is very much contradictory. The identification parade of appellants is not conducted in accordance with law even in such parade, the complainant and his witnesses could not properly identify the appellants with specific part played by them in the alleged offence. Even the recovered amount is not made as well as produced as case property during trial. The appellants are innocent and they have been falsely implicated. Allegedly, the incident took place on 13.05.2011 while alleged ransom amount has been paid on 15.05.2011. while FIR was lodged after a delay of eight days on 21.05.2011 without plausible explanation. They prayed for acquittal of the appellants.

10. On the other hand, learned Assistant Prosecutor General Sindh has supported the impugned judgment, however, she while admitting certain lacunas in the identification parade contended that the prosecution has fully implicated the appellants and they are involved in a heinous offence demanding ransom amount after abduction of a minor boy/student of 7th class; hence, such lacunas would not be considered as fatal to the prosecution.

11. We have heard the arguments advanced and have scanned the entire material in the light of valued submissions made before us.

12. A meticulous scrutiny of the evidence of prosecution, it reflects that the complainant and his witnesses in their evidence have stated that the culprits demanded a handsome amount but abruptly agreed to a ransom amount of Rs.5,10,000.00. According to them, they paid the said ransom amount to the culprits, and it was seen by the witnesses, who have concealed themselves. It is hard to believe that the accused persons and witnesses were available within the sugarcane crop and witnesses were privy of the entire affairs and culprit remained oblivion of their presence. Nevertheless, the mode and style of identification parade itself are questionable. Mrs. Badaruddin Memon the learned Magistrate regarding identification parade of two suspected persons, deposed that he arranged 20 dummies and two marginal witnesses for identification parade, and directed the suspected persons to mingle in the row of dummies at a position of their choice. The memo produced by the learned Magistrate did not clarify the mode and style of identification and it appears from the memo that both the witnesses were called at the same time to pick the real culprits. However, the learned Magistrate has disclosed in his evidence that he called the witnesses one by one to identify. Nonetheless, even if it has happened so; the suspected persons were neither asked to change their position nor it reflects from the record that a chance was given to them to change their position. Even the Magistrate himself admitted during cross-examination that he did not ask the suspects to change their position. It has also come on record that only two accused/appellants were directed to be identified while the third one person was also present there but he was not placed for the test of identification amongst the row of dummies by the Investigation Officer. The reason is obvious, as the abductee admits that he was his close relative and this fact was well in knowledge of Investigation Officer but the same was not brought on record. In such a situation, the whole of the process of identification becomes doubtful and the same cannot be relied upon.

13. It is important to note that the complainant himself has contradicted his version of delivery of the ransom amount to the accused persons in his evidence to the stance taken by him in his FIR. In the FIR, he stated that he had paid ransom amount of Rs.5,10,000.00 but at the time of identification parade he identified one of the accused by disclosing that he is the one who demanded Rs. 50,000.00 as ransom from him. Furthermore, apparently, the identification test of both the accused was held in presence of both the prosecution witnesses, regarding which we have already observed that it creates a big question mark on the entire process of identification. In the case of Kamal Din alias Kamala v. The State [2018 SCMR 577], wherein it is held as: "Apart from that the test identification parade held in this case was a joint parade wherein two accused persons had been made to stand with dummies in two lines and their identification had taken place simultaneously in one go. This Court has also clarified in the cases of Lal Pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v. The State (2008 SCMR 1210), Bacha Zeb v. The State (2010 SCMR 1189), Shafqat Mehmood and others v. The State (2011 SCMR 537) and Gulfam and another v. The State (2017 SCMR 1189) that identification of many accused persons in one go is not proper besides being unsafe."

14. It is worth mentioning that the evidence of the prosecution witnesses must need to be in conformity with each other and the complainant party must corroborate their version taken in the FIR, statements under section 164-B, Cr.P.C. and deposition, but in the present case, the prosecution failed to establish their version. It has come in the record that the police has informed the complainant party about the arrest of accused persons and then the rest of the process has taken place. However, the record does not speak about the source of information to the police, which urges the police to believe about the involvement of the appellants with the commission of the instant crime, It is prime duty of the prosecution to establish the case against the accused persons beyond reasonable doubt but in the present case irrespective of illegalities as well as contradictions pointed out above, the alleged recovery of ransom amount from appellants was effected but the memos of recovery do not show the numbers of currency notes in order to substantiate the recovery. Besides, non-production of the alleged recovered amount has also caused a serious dent in the prosecution case.

15. It is the prosecution case that the alleged abductee was taken on a motorcycle but the same was also not produced as an article during trial. The FIR was lodged by the complainant on 21.05.2011 after 08 days of the incident, however, there is no explanation for such a long delay in putting the wheel of the law in motion. It is also the prosecution case that the appellant has called at the mobile phone of the complainant regarding the ransom amount but it is the important aspect of the case that no data of alleged Mobile Phone Number have been collected during the investigation in order to ascertain as to whether the complainant received calls from such phone number. It has also come on the record that one of the appellants namely Abdul Khaliq is maternal cousin of the alleged victim but his name has not been given in the FIR despite of the fact that the FIR was lodged after release of the victim. Even the alleged victim during his evidence deposed that the said Khaliq brought him in a wagon while releasing him and during that time he did not raise any hue and cry. Nevertheless, appellant Abdul Khaliq in his statement under section 342, Cr.P.C. stated that he has enmity with complainant party over property; therefore, he has been falsely implicated in the instant case. If this statement of appellant Abdul Khaliq is put in juxta position of the prosecution case, it further thickened the clouds of doubt regarding the prosecution story.

16. It is well settled principles of criminal administration of justice that no conviction can be awarded to an accused until and unless reliable; trustworthy and unimpeachable evidence containing no discrepancy or casting some cloud over the veracity of prosecution story is adduced by the prosecution, in which they remained failed. It is our candid opinion that in the present case, the prosecution story engulfed under the thick clouds of doubt, as such, we are of the view that prosecution could not able to establish their case during trial beyond the reasonable doubt.

17. The ultimate outcome of the above discussion is that the prosecution had failed to prove its case against the appellants beyond the reasonable doubt; therefore, we accept the Criminal Appeal No.D-319/2011 and Criminal Jail Appeal No. D-03/2012 filed by the appellants namely Abdul Ghafoor, Muhammad Ilyas and Abdul Khaliq respectively and set aside the convictions and sentences awarded to them by the trial Court and acquit them of the charge by extending the benefit of doubt. The appellants are in custody; it is directed that they should be released forthwith if they are not required in any other custody case. These are the reasons for our short order passed on 26.03.2019. JK/A-96/Sindh Bail granted.