2016 P Cr (PLP)

MUHAMMAD IQBAL MAHAR, J.

These five appeals are directed against the Judgment dated 26.11.2012 passed by the learned fudge, Anti-Terrorism Court Hyderabad in ATC Case No.52/2011, whereby appellants were convicted under section 7(e) read with section 365-A, 34, P.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs.50,000/- each, in default to suffer SI for six months Moveable and immoveable property of each accused was ordered to be confiscated to the Government, however benefit of section 382-B, Cr.P.C. was extended to the appellants.

2. The facts of the prosecution case in brief are that, on 07.06.2011 Tarique Naeem Shaikh son of complainant Muhammad Naeem did not return back from his computer shop at Saddar Hyderabad upto 10.00 or 11.00 p.m. Complainant tried to contact with him but his cell phone was off. On inquiry, his employee Jawad disclosed that Tarique Naeem had closed the shop at 10.00 pm and kept computer in his Suzuki Liana Car bearing registration No.ALE-385. Thereafter Naeem Shaikh kept searching his son Tarique Naeem, however, his mobile phones were switched off. Later on he received telephonic call from cell phone of his son Tarique Naeem demanding ransom for his release. He ascertained that his son was abducted for ransom on 17.06.2011 and registered FIR at P.S. Cantonment Hyderabad bearing Crime No.73/2011 under section 365-A, P.P.C.

3. During course of investigation, appellants/accused were arrested and challan was submitted against them showing two accused namely Anwar Pathan and Jamshed as absconders, who could not be arrested despite coercive process and were declared proclaimed offenders by the trial court.

4. A formal charge was framed against the appellants to which they pleaded not guilty and claimed their trial.

5. In order to prove its case, prosecution examined complainant P.W.1 Muhammad Naeem at Ex.14. He produced FIR at Ex.14/A, his further statement at Ex.14/B, P.W.2 Abductee Tarique Naeem Shaikh at Ex.16. He produced his 164, Cr.P.C. statement, at Ex.16/A, P.W.3 Muhammad Ilyas at Ex.17. He produced mashirnamas of recovery of amount at Ex.17/A to 17/F; P.W.4 SIP Sajjad Ali Khan, of ACLC Hyderabad who had arrested the accused and recovered crime weapons and also prepared mashirnamas was examined at Ex.18. He produced mashirnamas of arrest and recovery and FIRs under section 13-D, Arms Ordinance lodged against the accused at Ex. 18/A to 18/E, P.W.5 ASI Shoukat Ali at Ex.20. He produced mashirnama of recovery of abductee at Ex.20/A, P.W.6 Haris Mehmood who was employee of abductee Tarqiue Naeem at Ex.21. He produced mashirnama of place of incident at Ex.21/A, P.W.7 ASIP Ghulam Sadiq at Ex.22, P.W.8 Intisar Ali who was the Magistrate and recorded statement under section 164, Cr.P.C. of abductee at Ex.25. He produced letter of SIO at Ex.25/A, P.W.9 mashir Ghulam Hussain at Ex.26., P.W.10 I.O. Insp. Javed Hussain at Ex.29. He produced his departure and arrival entries and challan at Ex.29/A to 29/C and then closed its side.

6. The statements of appellants under section 342, Cr.P.C. were recorded, wherein they denied the prosecution allegations and pleaded their innocence. Neither they examined themselves on oath nor led any evidence in their defence. Appellants in their statements stated that they were working as labour and were falsely implicated in the case. They further stated that they were illegally arrested and kept in wrongful confinement at CIA centre for which their relatives had made applications. Appellant Aamir Ali Shah and Yameen produced certified copies of application under section 491, Cr.P.C. filed before learned Sessions Judge, Hyderabad along with order and raid report.

7. The learned trial court after hearing the parties and appraising the evidence, convicted the appellants as mentioned above while case of absconding accused Anwar and Jamshed was kept on dormant file.

8. Learned counsel for the appellants contended that there is delay of 10 days in lodging the FIR wherein the names of the appellants are not transpiring and no identification parade has been arranged. He further contended that prosecution had miserably failed to prove its charge against the appellants beyond shadow of reasonable doubt; that there are major contradictions in between evidence of the P.Ws but the same were ignored by the learned trial court; that the place of incident as well as place of recovery of the abductee was situated in thickly populated area but I.O. did not examine any independent person from the vicinity; that abductee himself in his statement under section 164, Cr.P.C. implicated eight culprits while in his deposition implicated three accused only which created serious doubt in the prosecution case; that allegedly the accused and complainant were earlier known to each other but the accused received shopper from the complainant with open face and did not conceal his identity, this aspect also creates doubt in the prosecution case. He added that both the mashirs of recovery of cash from the appellant Muhammad Naveed, Rizwan Ali, Aamir Ali Shah, Rashid, Asadullah and Yameen and recovery of car from a plot behind Social Security Hospital Kotri at the pointation of all six appellants have not supported the prosecution case and were, declared hostile, therefore, he prayed that the prosecution has failed to prove its charge against the appellants, hence they are entitled for acquittal. In support of his arguments, he has relied upon the 2013 SCMR 768 and 2012 SCMR 538.

9. On the other hand, learned Deputy Prosecutor General has supported the impugned judgment and submitted that there was sufficient evidence against the appellants and holding of identification parade was futile exercise because the abductee in his 161 and 164, Cr.P.C. statements recorded before the police and learned Magistrate and complainant in his further statement had disclosed the names of the appellants. He further submitted that the complainant and abductee have fully implicated the appellants, therefore, they were rightly convicted by the learned trial court.

10. We have given due consideration to the arguments of learned counsel for the appellants as well as learned Deputy Prosecutor General Sindh and have gone through the evidence available on record and examined the case law relied upon by the learned counsel for the appellants.

11. From perusal of case file it reveals that the incident occurred on 07.06.2011 at 10.30 pm and on following day, complainant received a call from cell number of his son, the abductee and the caller informed that his son has been abducted, hence he was required to arrange two crores for release of his son but he did not bother to lodge FIR and on 17.06.2011 after 10 days of the incident, he went at P.S and recorded his FIR against unknown accused persons. No explanation has been given by the complainant for such delay. No doubt the abductee is the star witness of the case as there is no other eye-witness of the incident other than the abductee and even the complainant disclosed the names of appellants in his further statement recorded on 19.06.2011 on the narration of the abductee. The abductee in his 164, Cr.P.C. statement recorded before the Magistrate disclosed names of Amir Ali Shah, Yameen, Rizwan Ali, Jamshed Pathan, Muhammad Naveed, Asadullah Rind, Anwar Pathan but in his deposition before learned trial court, he deposed that: "at the time of my recording statement there were six persons amongst those I recognized three as they had been employees of my father namely Muhammad Naeem, Rizwan Arain and Amir Ali Shah. ...Three accused namely Rizwan, Nadeem and Amir present in court are same".

12. Admittedly the prosecution case is based on the evidence of abductee Tarique Naeem as he is the sole witness and victim of the offence but he has given two versions one before learned Magistrate in 164, Cr.P.C. statement in which he implicated 08 persons and other before the trial court wherein he implicated only three persons who according to him were employees of his father. He has further deposed that when he was going to his car in the street of Bombay Bakery, his employee Muhammad Jawad was also with him who was holding some articles to keep in the car, who kept the same in the car and then abductee started the car and crossed the street but when mashir of wardat namely Haris Mehmood, the employee of abductee was examined at Ex.21, he stated that he was employee of abductee Tarique Naeem Shaikh and on the night of incident he as usual went with abductee to his car to keep CPU at 10.15 pm and after departure of Tarique Naeem he went to his house. The version of Haris Mehmood belies the version of abductee and Muhammad Jawad was neither examined by the I.O. nor he was produced before the trial court.

13. Perusal of file further reveals that prosecution examined two mashirs namely Muhammad Ilyas at Ex.17 and Ghulam Hussain at Ex.26 but both did not support recovery of ransom amount from the possession of each appellant, recovery of car from open plot and were declared hostile by the learned SPP, hence their evidence is not helpful to the prosecution.

14. The prosecution case is that the place of wardat was inspected by the I.O. in presence of mashir Haris Mehmood but said mashir in his cross-examination stated that he signed the memo. of wardat at police station.

15. Another important aspect of the case is handing over the ransom amount to the accused, in this respect only there is evidence of complainant and even the driver of his car or anybody else was not examined as to whether he gave Rs.12,00,000/- to accused. Furthermore complainant has stated in his evidence that accused asked him to stop the car and bring the shopping bag outside the window of car one person went there and took shopping bag. He further stated that his son disclosed the names of culprits and he had seen the face of that person who had taken shopping bag containing amount of ransom, he was Amir Shah. The complainant further stated that Amir was seen for the first time at P.S. but the I.O. failed to hold identification parade whereas the abductee has stated that Amir had remained employee of complainant.

16. Perusal of file further reveals that all the six appellants were arrested on 20.06.2011 by ACLC at Grid Station Road and from appellant Rizwan, Muhammad Naveed, Asadullah and Aamir Ali Shah TT pistols were recovered, whereas the appellants Aamir Ali and Yameen produced certified copy of 491, Cr.P.C. application filed by their relatives on 18.06.2011 claiming them to have been illegally detained at CIA Centre Hyderabad but due to leakage of order of raid, the police officials concealed the appellants and showed their arrest and recovery on 20.06.2011. This makes the arrest of the appellants and recovery of pistols from them as doubtful.

17. The facts of the case of Muhammad Tufail v. The State (2013 SCMR 768), relied upon by learned counsel for the appellants are identical to the case in hand as such supports the case of the appellants.

18. Apart from that there are many contradictions, exaggerations in evidence which have not been considered by the learned trial court while deciding the case of the appellants.

19. The result of the above discussion is that the prosecution has failed to prove its charge against the appellants beyond shadow of reasonable doubt. Accordingly, impugned Judgment dated 26.11.2012 passed by learned trial court is set aside and the appellants are acquitted from the charge.

20. By our short order dated 04.11.2015, these appeals were allowed and these are the reasons for the same. MH/R-2/Sindh Appeal allowed.