2005 PLP 8 (MLD)

DR. GHOUS MUHAMMAD, J.

Vide order dated 30-5-1995 these appeals were allowed for the reasons to be recorded later on and it was ordered that the appellants should be released forthwith if not required in any other case. Before recording the reasons late M. Hussain Adil Khatri, J. expired and therefore, the reasons could not be recorded. However in view of the law laid down in (PLD 1982 Karachi 250) (DB) since one of us (Dr. Ghous Muhammad, J.) is still available and as directed by the Hon'ble chief Justice individual reasons/opinion is to be recorded by me for the sake of record therefore, the following are the brief, reasons for the short order.

2. In all 8 appellants were tried by the Judge, Special Court-L (STA) Hyderabad vide Case No.46 of 1992 (State v. Noor Hassan and others). Five of them namely accused Noor Hassan Bhatti, Javed Babbal, Rafiq Lund, Bashir Shah and Iqbal alias Sarmad Soomro were found guilty and convicted for life imprisonment and it was also ordered that their all the movable and immovable properties should be confiscated to the Government. 'They were also convicted for the offence under section 395, P.P.C. and sentenced to suffer R.I. for ten years and to pay fine of Rs.10,000 each or in default to further undergo R.I. for two years. It was ordered that the sentences should run concurrently. Accused Shahid Qaimkhani, Vikio Lund and Gullan Lund were not found guilty and, therefore, they were acquitted.

3. The appellants and the acquitted co-accused were involved in Crime No.26 of 1992 registered at Bulri Shah Karim Police Station District, Hyderabad for the offences punishable under section 365-A, P.P.C. read with section 395, P.P.C. They had allegedly abducted Lt. Col. Muhammad Iqbal on 26-12-1991 near Bulri Shah Karim with Pejaro Jeep and also abducted his two companions Mir Haji Shah Muhammad and Mir Tariq Mehmood for the purpose of ransom.

4. After due investigation, they were challenged before the trial Court and convicted as mentioned above. They pleaded not guilty to the charge. During the trial the prosecution examined seven witnesses namely P.W.1 Lt. Col. Muhammad Iqbal (Exh.15), P.W.2 Tariq Mehmood (Exh.17), P.W.3 Allah Bachayo (Exh.19). He was Additional City Magistrate who had supervised the identification parade, P.W.4 Qamruddin (Exh.23) Assistant Mukhtiarkar had also supervised identification test (Exh.24), P.W.5 Muhammad Yaqoob is mashir of the vardat (Exh.25), P.W.6 S.H.O. Muhammad Younus is the Investigating Officer and he gave the details of the investigation P.W.7 Abdullah Khan had also investigated the matter.

5. The learned trial Court framed the following points for determination: "

1. Whether the accused above named in prosecution of their common object had abducted Lt. Col. Muhammad Iqbal, Mir Haji Shah Muhammad and Mir Tariq Mehmood for the purpose of ransom?

2. Whether the accused in prosecution of their common object committed dacoity of Pajero Jeep of abductee Lt. Col. Muhammad Iqbal?

3. What offences, if any, have been committed by the accused?" On points Nos. 1 and 2 his findings were in affirmative and under point No.3 he convicted and sentenced the appellants (supra).

6. Arguments of learned counsel for the appellants and learned Advocate for the State were heard. The latter has not supported the impugned judgment as according to him that was contrary to law and facts.

7. It would be relevant to observe that the alleged incident took place on 16-12-1991 at 11-55 p.m. and the first F.I.R. bearing No.37 of 1991 was lodged on 19-12-1991 at Malir Cantt. Police Station Karachi while regarding the same incident second F.I.R. No.26 of 1992 by SIP Muhammad Younis was recorded on 25-3-1992 at 0905 hours. The fate of the first F.I.R. is not known as it was not produced and no explanation has been furnished by the prosecution whether this F.I.R. was cancelled or disposed of. As was rightly submitted by learned defence counsel there is no provision of filing of second F.I.R. Another important factor which is fatal for the prosecution is that no plausible explanation has been offered for the delay in lodging the F.I.R. The alleged abductees had not lodged the F.I.Rs. and no hospital record has been produced to show that P.W. Lt. Col. Muhammad Iqbal was hospitalized or was not in a position to report the matter to the police. Thus there are two versions in the two F.I.Rs. which cannot be believed. (See PLD 1995 Kar. 315, 1995 SCMR 127, PLD 1995 Lahore 440 and 1995 PCr.LJ 1388).

8. On the same evidence co-accused Gullan and Vikro were acquitted therefore, the conviction of the appellants is based on mis-appreciation of evidence (See PLD 1985 SC 11, 1994 SCMR 1148, 1157-1082, 1992 PCr.LJ 2092, 1996 SCMR 308 317 and PLD 1995 SC 526).

9. One of the alleged abductees Mir Haji Shah Muhammad was not examined which gives rise to presumption against the prosecution under Article 129(9) of the Qaunoon-e-Shahadat (See 1996 SCMR 308, PLJ 1996 Cr. Cases Kar. (DB) 12, 1976 PCr.LJ (DB) Kar. 243 and 1997 PCr.LJ 694).

10. Another piece of evidence is the identification test. The two identification tests were held on 29-3-1992 and 16-9-1992 respectively. The first test was held after 3-1/2 months of the incident while the second was held after nine months. Even otherwise these identification tests were not held in accordance with law and the Police Rules. Strange enough no question was put to the accused under section 342, Cr.P.C. regarding second identification test dated 16-9-1992. P.W. Muhammad Yaqoob who is one of the mashirs on the point of identification has not supported the prosecution and no question was put to him regarding mashirnama of identification. Therefore, the identification can safely be termed as illegal. (See PLD 1981 SC 42 1995 SCMR 412-276, 1993 SCMR 585, 1995 PCr.LJ 1430; 1996 PCr.LJ 73; PLD 1991 SC 447; 1992 SCMR 2088 and PLD 1996 Kar. 246).

11. Similar is the case of recoveries. Right from 3-3-1992 to 14-4-1992 nothing was recovered from the four accused. No mashirnama was produced for such recoveries. There is no evidence on record to show as to who were the mashirs of the alleged recovery and no case property was produced before the Court. Likewise no question was put under section 342, Cr.P.C. to the accused about such recovery. There is also nothing in the impugned judgment about this piece of evidence. Therefore, the alleged recovery is false and it has not been established according to law to connect the accused with the alleged incident. (See 1996 PCr. LJ 1410 and 1989 PCr. LJ 1555), for the following reasons there is not an iota of evidence to establish the charge under section 365-A, P.P.C.:-- (a) There is no allegation in the application Exh.16 that the alleged abduction was made for ransom; (b) there is no allegation against any of the appellants that they demanded amount of ransom except against accused Vikio Lund who has been acquitted; (c) none of the abductees were recovered from anyone of the appellants; (d) there is no allegation of payment to anyone by way of ransom; (See PLD 1995 Kar. 315, 1995 PCr.LJ 1394-1430, PLD 1995 Kar. 16, 1995 PCr.LJ 1388, PLD 1996 Kar. 159 and 1996 PCr.LJ 503). The prosecution has also miserably failed to prove the charge under section 395, P.P.C. and the impugned judgment being legally unsustainable is set aside for the following reasons:-- "(a) there is no eye-witness of the alleged dacoity of the Pejaro Jeep by the accused; (b) no Pejaro Jeep, said to have been taken away by the culprits, has been recovered from any of the culprits; (c) if the Pejaro Jeep had been taken away by the dacoit, its owner namely Mir Shah Muhammad should have been active and should have lodged the F.I.R. in time as Pejaro Jeep is a costly vehicle; (d) no details of the alleged Pejaro have been given in the application Exh.16 and in the F. I. R.; (e) the fact of dacoity of the Pejaro Jeep by the culprits has not been supported by any other independent evidence." In view of the above the appeals are allowed as prayed. H.B.T./R-27/K Appeal allowed.