1992 PLP 1453 (MLD)

A.G. Mangi, AA.‑G. for the State. Date of hearing: 22nd January 1992. SALAHUDDIN MIRZA, J.‑‑‑This appeal is directed against the judgment, dated 13.‑5‑1991 delivered by learned Judge, Special Court (Suppression of Terrorists Activities) at Hyderabad, in Case No.3/91 in Crime No.1/91 of P.S. Berani under section 365‑A/34, P.P.C., which was recorded on 16‑1‑1991 at 0215 hours at the instance of complainant Yaseen, who stated in his F.I.R. that his younger brother Yameen had friendly relations with Badal (the present appellant), that at about 0200 hours the same day this Badal came to him and informed him that a day before in the evening time he had come to Berani for some work after which he went to the Octroi Post of Berani Town Committee where he met Yamcen and asked him to accompany him to his village and both of them accordingly proceeded towards village Wazirabad through katcha road and when they reached near the said village at about 9800 hours, two persons, out of whom one had a Klashnikov rifle and the other had a double barrel gun and both had muffled their faces, approached them and asked them to go ahead whereupon both of them proceeded ahead as ordered and were made to walk for about 4 or 5 hours whereafter they reached some sugar‑cane-cultivation where those two persons maltreated Yameen and demanded Rs.5 lacs as ransom for his release and wrote a chit to that effect and gave it to him (appellant Badal) on which they wrote their names as Achar Machi and Ali Sher Magsi, whereas their real names were Miran Khaskheli and Bachal Khaskheli and they told _him (the appellant) that Yameen would be released after this amount was paid and he was directed to go and deliver the chit to Yameen's brother. Complainant further stated in the F.I.R. that he suspected that appellant Badal was in collusion with the other two culprits and all the three of them had abducted Yameen. The main culprits were never apprehended and were proceeded against in abstentia. However, appellant Badal was arrested on 25‑1‑1991 from a house in village Wazirabad. He' was charged under section 365‑A/34, P.P.C. and he pleaded not guilty and was put to trial.

2. The prosecution examined as many as 6 witnesses in support of its case. P.W. 1 Muhammad Yaseen is the complainant. Apart from supporting the averments earlier made by him in his F.I.R. (which ire produced as Exh. 10) he stated that appellant/accused Badal was friend of his abductee brother Yameen, that Badal was his very close neighbour and resided at a call's distance away. He further stated that abductee Yameen was released after he (the complainant) had paid about Rs.20,000 to relatives of Badal and he further stated that he had paid this amount to maternal‑grandfather of appellant Badal in the evening and that same night Yameen was released and came home. P.W. 2 Muhammad Abbas is the mashir of the inspection of the wardat vide mashirnama Exh.12 and of the arrest of the appellant vide mashirnama Exh.

13. P.W. 3 S.H.O. Muhammad Bashir had recorded the F.I.R. Exh.10, who had also conducted part of the investigation and had arrested appellant on 25‑1‑1991. He also stated that on 23‑1‑1991 abductee Yameen appeared at the police station where his statement was recorded. It is apparent that it was after that that the appellant was arrested on 25-1‑1991. P.W. 4 Muhammad Yameen is the abductee himself. He concedes that appellant Badal was his friend and they were on visiting terms to each other and confirmed the description of the commission of crime as given by complainant Yaseen in his deposition and in the F.I.R. on the strength of what the complainant was told by appellant himself. He also affirmed that the two absconding accused had asked appellant Badal to take the chit to his (Yameen's) brother and to deliver the same to him to pay the amount for his release. He also confirmed the version of appellant Badal that the two absconding culprits were Bachal and Miran. He, however, contradicted the complainant when he stated that he was rescued from absconding culprits after an encounter took place between them and the police party, who at that time managed to escape whereafter he was brought by police to Berani Police Station where his statement was recorded. He further stated that (on what basis, it is not clear) the absconding accused had since died in a subsequent encounter with the police. P.W.5 Faiz Muhammad is the husband of the abductee and the complainant. He claimed to be sleeping with complainant Yaseen when appellant Badal had come to him and had narrated the incident of abduction and had delivered him the Chit for ransom money. He does not state anything against the appellant and rather supports what he had narrated to the complainant. ‑P.W. 6 Muhammad Anwar is the mashir of wardat. In his 342, Cr.P.C. statement, the appellant had denied his involvement in the commission of the offence and had stated that the brothers of the abductee did not like his association with the abductee and, therefore, had maliciously involved him in the case. He also examined a defence witness in the person of Beero who supported the appellant on this point. On the basis of this evidence, learned Judge came to the conclusion that the charge against the appellant had been proved and found him guilty and convicted him under section 365‑A read with section 34, P.P.C. and sentenced him to death.

3. After hearing the learned counsel for the appellant and learned AA: G. for the State and after going through the evidence on record, we are of the view that the evidence brought on record by the prosecution did not warrant the conviction of the appellant and did not prove his involvement in the offence. It is an admitted position that the appellant was a friend of abductee Yameen and that both of them were abducted by the absconding accused. Now, if the appellant was a friend of the abductee, it does not appeal to reason that he would be instrumental in his abduction for extortion of money from him. The only incriminating factor against the appellant is that he had brought the ransom‑note from the absconding accused to the complainant but merely this in itself is not sufficient to bring home the guilt of the appellant and to hold that he was in complicity with the absconding accused. It is a matter of every day observation that dacoits abduct a number of persons and afterwards release one of them with a message, either oral or in writing, to the relatives of the other abductees for payment of ransom but such person, who brings such a message, cannot be said to be in complicity with the actual abductors unless there is some positive evidence to link such person with the actual abductors. In the present case, appellant Badal had admittedly acted under coercion of the absconding accused. He had obviously no alternative but to deliver the ransom note to the complainant. There is nothing on record to connect the appellant with the commission of the offence except the delivery of the ransom note to the complainant. Besides, there is a very serious contradiction as to the manner of the release of the abductee from the clutches of the absconding accused. Complainant P.W.1 Muhammad Yaseen says that the abductee was released by the absconding accused only after he had paid Rs.20,000 to the maternal‑grandfather of appellant Badal whereas the abductee himself stated that he had not secured his release in this manner but that there was an encounter between the absconding accused and the police party and as a result of this encounter the absconding accused had to abandon him whereafter they made good their escape from the scene of encounter and it was in this way that he secured freedom. There is yet another contradiction in the prosecution evidence when the abductee said that after the police encounter and his resultant release he was brought by the police party to the police station whereas P.W. 3 Muhammad Bashir S.H.O. stated that abductee himself appeared at the police station where his statement was recorded. In view of this factual position, we are of the view that the prosecution simply failed to prove the involvement of the appellant in the commission of the offence. For that matter, it would have been more reasonable if the grandfather of the appellant had been prosecuted for being in complicity with the absconding accused because it was he who, according to the complainant P.W.1 Muhammad Yaseen, had received the ransom money and it is rather intriguing to note that the grandfather was not at all questioned by the police and instead the appellant was hauled up even though he had done nothing except bringing the ransom chit to the complainant.

4. In view of the above position, we had, by a short order of this morning, accepted this appeal, set aside the impugned judgment and had directed that the appellant should be released forthwith if not required in any other case. These are the reasons for our short order. N.H.Q./B‑219/K Appeal accepted.