AIJAZ HUSSAIN Versus State
ORDER
ABDUL RASOOL MEMON, J.--- Appellants (1) Aijaz Hussain, (2) Altaf Hussain both sons of Muhammad Safar and (3) Nadeem son of Meehal all by caste Lodhro were tried by the Judge Anti-Terrorism Court, Khairpur Miras and were convicted under sections 365-A read with section 149, P.P.C. to suffer rigorous imprisonment for life with forfeiture of their property. They were also convicted and were awarded sentence under section 7(e) of Anti-Terrorism Act to suffer imprisonment for life. The sentences were ordered to run concurrently. However, the appellants were extended benefit of section 382-B, Cr.P.C.
2. Facts of the prosecution case as stated in the FIR are that on 18.09.2009 complainant Qurban Ali Mahar outside his house in the street was talking with his cousin Javed Ahmed when at about 10:00 p.m. 8/10 armed persons with faces covered came in and abducted them on gun point. The culprits took them to a place AKHA BANDRI at a distance of two kilometers where lighting the torches uncovered their faces and told the abductees that they abducted them for ransom and killing them because they made complaints against them (culprits). Both abductees recognized the accused on torch lights as Altaf, Irshad and Aijaz all sons of Muhammad Safar Lodhro with KKs, Abdul Hameed son of Minhal and Din Mohammad son of Raza Mohammad Lodhra with guns. They robbed them of mobile phone and cash amounts. They had seen the figures of unidentified accused clearly, who could be identified. At the same time, the chasing party following the footprints reached there. On seeing them accused left the abductees and told them had they not reached both would have been killed after getting ransom. Afterwards the accused fled away and the abductees returned with chasing party. FIR of the alleged incident was registered on the directions of the Court. Inspector Inayatullah Soomro conducted investigation into the case wherein he inspected the place of alleged incident, recorded 161, Cr.P.C. statements of witnesses after nine days of registration of FIR. JIT was also constituted to further probe into the case wherein statement of independent witnesses were recorded. During investigation case was found false and report under "C" class was submitted before the trial Court, which was not accepted and cognizance was taken in the case. Appellants and acquitted accused Anwar Ali joined the proceedings while accused Irshad, Din Mohammad and Abdul Hameed were declared as Proclaimed Offenders. Their case was kept on dormant file vide order dated 20.03.2013.
3. During trial prosecution examined (PW-1) alleged abductee Javed Ahmed at Ex.8, (PW-2) Inspector Inayatullah I.O. of the case at Ex. 9, (PW-3) Shafqat Ali at Ex-11, (PW-4) Abdul Rauf at Ex-12, (PW-5) Ghulam Ali at Ex.-13, (PW-6) Ehsan Ali mashir at Ex-14 and (PW-7) ASI Barkat Ali author of FIR at Ex-17. Despite issuance of warrant complainant did not appear in Court and ultimately after giving up him and remaining PWs prosecution side was closed by DDPP through his statement at Ex-18.
4. In their statements recorded under section 342, Cr.P.C. accused denied the allegations and claimed their false implication. However, neither they examined themselves on oath under section 340(2), Cr.P.C. nor they produced any evidence in defence. The trial Court at the end of trial acquitted accused Anwar Ali after extending benefit of doubt to him but convicted the present appellants on the same set of evidence by judgment dated 09.04.2015 which is impugned in the present appeal.
5. We have heard Mr. Qurban Ali Malano learned counsel for appellants, Mr. Saleem Akhtar learned Additional Prosecutor General Sindh and perused the record.
6. Learned counsel for appellants argued that accused/appellant Nadeem was not named in FIR but was subsequently involved in the case falsely being close relative of co-accused/appellants Aijaz Hussain and Aftab Hussain who are real brothers and admittedly are on inimical terms with complainant party; that the witnesses are close relatives to each other and inimically designed the false story of abduction against the appellants; that there are major contradictions in the statements of witnesses; as such prosecution has not only failed to prove the charge against the accused beyond any reasonable doubt but has absolutely not proved the case and that learned trial Court has committed serious error of law by misreading the evidence on record.
7. Learned DPG supporting the impugned judgment contended that the case against appellants was proved through direct evidence of abductee Javed Hussain who was released due to prompt reaching of foot tracking party to accused, and that the judgment of trial is in accordance with law.
8. We have given careful consideration to the arguments advanced by the learned counsel for the appellants, learned DPG and have gone through the relevant record.
9. Perusal of evidence of the witnesses shows that no any ransom had been paid and whole the event of alleged kidnapping and recovery took only 45/50 minutes and that without offering any resistance. Besides this it has come on record through evidence of alleged abductee Javed Hussain that both the parties are of same caste, relatives and neighbourers. It is also admitted position on record that both the parties were already on disputed terms. In such circumstances of the case, it is beyond one's belief that being relative, neighbourer and inimical would dare to take the risk of kidnapping his enemy for 45 or 50 minutes just for the sake of issuing threats of life and ransom. Further, it also does not appeal to a prudent mind that abductors who are not only relative and neighbourer but also inimical to alleged abductees, instead of taking caution and precaution to conceal their identity would uncover their faces and flash torch lights for their recognition to implicate them in the case. All this sounds to be a more of a cock and bull story.
10. According to the prosecution, the culprits had been seen only by the alleged abductees themselves, who revealed the names of accused to other witnesses, Qurban Ali one of the alleged abductees, who lodged FIR, was not examined as he lives abroad, therefore, entire prosecution case is based on the evidence of alleged abductee Javed Hussain but his evidence is contradictory and inconsistent with the facts given in FIR. According to FIR the covered faces accused persons took the alleged abductees upto two (2) K.M. to some desolate place in woods (MANJHANDRI) where they made torch lights on and when asked that why they had made complaints against them then they recognized them while alleged abductee has deposed differently stating that he recognized the accused at the time of his kidnapping just outside the house in street. He has not said that accused came with covered faces and recognized them in desolate place in woods.
11. Now coming to the evidence of alleged eye-witnesses, namely, P.W. Shafqat Ali, Ghulam Ali and Abdul Rauf, said to be members of chasing party, are brother and uncle of alleged abductee/complainant and thus being close related to each other in presence of admitted enmity, are interested, partisan and inimical witnesses. Apart from this admittedly they had not seen the accused but they were told their names by alleged abductees. These witnesses have introduced new story in their statements and stated that they were along with chasing party at the time of recovery of abductees but their evidence is contradictory to the statements of alleged abductee Javed Hussain. These witnesses have deposed that when they felt that the alleged abductees were late in arrival at home, they look outside for them and found one shoes of both alleged abductees where they thought something wrong was there that Qurban Ali and Javed Hussain might have been kidnapped so they followed the foot prints. They called the people/villagers and after walking four (4) K.M. when reached at desolate places in the woods they saw lights of torch lights where they heard firing. Thereafter they also made firing and after few moments when firing stopped, they proceeded to the place of lights where they saw the abductees whose hands were tied, which they untied, while alleged abductee (P.W. Javed Hussain) has not said if any of the shoe was got off on way while taking away them nor he said whether there was any firing at the time of arriving of chasing party. Though villagers said to be along with chasing party but none from them was examined in the case. The trial court as it appears, omitted or neglected to refer to above material contradictions in the evidence of witnesses which would further go to show the improbability of the facts as are alleged to have taken place.
12. So far evidence of P.W. Ehsan Ali is concerned, who acted as mashir of inspection of place of wardat and arrest of appellants/accused, he is also real brother of complainant. According to this, place of alleged incident was situated in between their Mohalla and main road, which is not shown in the case. As per prosecution case the places of incident were first in street outside the house of complainant and second in desolate place in woods (MANJHANDRI) at two K.M. from the house of complainant as such, even the evidence of mashir has not supported to prosecution.
13. P.W. Inspector Inayatullah I.O. of the case has not supported the prosecution case. He was declared as hostile witness of the prosecution. He has deposed that during investigation case was found false but his report for cancellation of case was not accepted by the trial Court. He was cross-examined by the prosecution but nothing favourable to prosecution could come on record. P.W. ASI Barkat Ali is only author of FIR, as such, his evidence is formal one. The FIR was lodged with delay of more than nine months and that also under court order. For such long delay only explanation offered is that police did not register FIR. If it was so, complainant could approach the Court immediately after refusing by police by not doing so, there is every apprehension and could be said that FIR was lodged after due deliberations and consultations and in such circumstances there is every possibility of false implication of accused in the case, as nothing is brought on record to show as to which circumstances restrained them from registration of FIR.
14. In the wake of foregoing reasons, we are of the considered view that serious doubts have been created in the prosecution story, therefore, appellants are entitled to the benefit of doubt and consequent acquittal.
15. It was for these reasons that by short order passed and announced on 02.11.2016 the appeal was allowed, the conviction and sentence of the appellants were set aside and they were acquitted. These are the reasons of the above short order.
Appeal allowed.
WA/A-42/Sindh Appeal allowed.