JUMO BANGULANI Versus State
MUHAMMAD SALEEM JESSAR, J .---The appellant is aggrieved by the judgment dated 17.09.2015 passed by I-Additional Sessions Judge, Jacobabad in Sessions Case No.70 of 2014 (State v. Jumo son of Abdul Rehman Bangulani) whereby the appellant was convicted under section 265-H(2), Criminal Procedure Code and sentenced to R.I. for 10 years' and also imposed a fine of Rs.50,000/-, which, if recovered, was to be deposited in Government Treasury. Benefit of section 382-B, Criminal Procedure Code, was however, extended to the appellant.
2. Brief facts of the prosecution case, according to FIR No.13 of 2014 lodged by complainant Ali Nawaz Buriro with Police Station A-Section Thul on 24.01.2014 at about 1100 hours, are that on 12.01.2014, he along with his brother Fida Hussain, son Bakhtullah and cousin Abdul Khalique went to Sarki Fish Farm for fishing purpose. After fishing, they gave some fish to Bakhtullah to take the same to his house. It was about 4-00 p.m, when they saw four persons on two motor cycles going towards Thul. Out of them they identified Jumo son of Abdul Rehman Bangulani, while the other three persons with open faces were not known to them, who abducted his son Bakhtullah and took him away towards Thul Town. They being empty handed and without conveyance did not chase the accused. Thereafter they privately tried for return of Bakhtaullah but with no result. Thereafter he came to police station and lodged the FIR against accused as stated above.
3. After usual investigation, police submitted challan against the appellant, Jumo, showing the three other co-accused as absconders. The case was sent up to the Court of Sessions Judge, Jacobabad, and later on the R & Ps were sent to the trial Court i.e. Ist Additional Sessions Judge, Jacobabad by transfer for its disposal according to law.
4. The necessary documents were supplied to the accused/appellant under Exh.01 and charge was framed against him as Exh.03 for offence under section 364/34, P.P.C., to which he pleaded not guilty and claimed to be tried vide his plea at Exh.3/A.
5. In order to prove its case, prosecution examined HC Ghulam Qadir Noonari as Exh. 04, he produced mashirnama of arrest of accused Jumo Bangulani as Ex. and roznamcha entries as Ex.4-B and 4-C., mashir Abdul Khalique Buriro as Ex.5, he produced mashirnama of appearance of abductee Bakhtullah as Ex.5-A. and mashimama of inspection of place of occurrence as Ex.5-B, PW-Fida Hussain as Ex.6. Abductee Bakhtullah as Ex.7, complainant Ali Nawaz as Ex.8, he produced FIR as Ex.8-A, and I/O of the case, ASI Shahan Shah as Ex.9. Thereafter the learned ADPP for the State closed the Prosecution side by his statement Ex.10.
6. Statement of accused Jumo Bangulani under section 342, Cr.P.C. was recorded as (Ex.11) in which he denied the prosecution allegations. Regarding complainant and PWs he stated that they have deposed due to enmity. He professed innocence and alleged false implication. He, however, did not examine any witness in defence and also declined to examine himself on oath despite of that an opportunity was given to him. However he has prayed that justice be done with him.
7. After hearing learned counsel for the accused/appellant and learned ADPP for the State, and perusing the record, learned trial Court convicted and sentenced the appellant as stated above. Hence, this criminal appeal.
8. The case of the prosecution is that on 12.01.2014 when complainant's son Bakhtullah was going from fish farm to his house with the catch of fish, he was abducted by the appellant along with three other unidentified co-accused persons. Thereafter, on 24.01.2014, FIR was lodged by the complainant Ali Nawaz and on the same date appellant Jumo was arrested from Benazir Kanta and on 30.1.2014 abductee Bakhtullah appeared at Police Station Thul. He informed the police that he was abducted by appellant Jumo along with three unidentified persons who kept him in different places and was forcing him to give phone numbers of his brother and father for contact. (page 71 of the paper book). Thereafter his son on the pretext to attend the call of nature ran away from the custody of accused and came at police station. The abductee has not mentioned in his deposition that he was asked by the abductors to give phone number of his brother and father. However, this is mentioned in the impugned judgment.
9. The first and very important aspect of the case which catches the eye is that the incident of abduction allegedly took place on 12.01.2014, whereafter, the complainant made hectic efforts for the return of his son. However, no details of the efforts have been mentioned by him as to whether during this intervening period he met the appellant or searched the appellant or abductee or that any telephone contact was made by the appellant or by any other person from the accused party with him or whether he involved elders of the area in the search for the abductee and the abductors. Then on 24.1.2014 i.e. after 12 days of the alleged incident, he lodged FIR No.13/2014 at Police Station Thul. From 12.01.2014 to 24.01.2014, there was no trace of the abductee/Appellant Jumo, however, suddenly when FIR was lodged on 24.01.2014, on the same day he was arrested from Benazir Kanta (weigh bridge) at Thul. PW-01, HC Ghulam Qadir Noonari, during his deposition stated that accused/appellant Jumo was arrested when he was standing at road in front of Benazir Kanta. He further stated that the accused did not try to flee away when they were arresting him. However, in the mashirnama of arrest and personal search (Exh.4-A at page 31 of the paper book) it is stated that the wanted accused Juma son of Abdul Rehman by caste Bangulani resident of Chowk Lashari Thul was found in not fully conscious condition due to ailment, we arrested him in the above crime."
10. It is also noteworthy that appellant was arrested at the pointation of the complainant, as stated by PW-01 Ghulam Qadir in his deposition (Exh.4 at page 29 of paper book). It is surprising that for 12 days there was no trace of the appellant Jumo as nothing has been disclosed by the complainant in this regard in his deposition except that efforts were being made to search the abductee. However, immediately after registration of the FIR on 24.1.2014 at 11-00 a.m., Jumo surfaced mysteriously and was arrested at the pointation of the complainant. This is highly improbable that a person who has abducted somebody in broad day light would roam the same area openly so that everybody can see him and inform the complainant or police and will not even try to escape to avoid his arrest. This co-incidence is also doubtful that immediately after registration of the FIR the complainant saw him at Benazir Kanta and called the police to arrest him. It shows that no such incident has taken place and, therefore, the appellant Jumo neither hide himself somewhere nor tried to escape when he saw the police coming towards him as he was not expecting them to arrest him.
11. The consequence of unexplained delay in lodging the FIR have been discussed by the learned apex Court in the case of Ayub Masih v. The State (PLD 2002 SC 1048) as under:-
"The unexplained delay in lodging the FIR coupled with the presence of the elders of the area at the time of recording of FIR leads to the inescapable conclusion that the FIR was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the FIR is an intriguing circumstance which tarnishes the authenticity of the FIR, casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the FIR is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused "
12. In view of unexplained delay of about 12 days occurring in lodging of the FIR in the instant case, possibility of false implication of the accused could not be excluded from consideration.
13. Apart from the delay in recording of the FIR and the above improbability of events there are very material contradictions in the evidence of PWs which are narrated hereunder:
14. PW-Fida Hussain, in his cross examination stated that they went to Fish Farm through Datsun from their house at 12-00 noon and reached the Fish Farm within half an hour. However, abductee Bakhtullah shows a completely different picture in his cross-examination by stating that they went to the fish farm by foot. This is a very crucial contradiction in the evidence of the PWs. In case they left the house and went to the fish farm by foot no one will forget this. Therefore, either Bakhtullah is wrong in saying that they left for fish farm on foot or PW-Fida Hussain, uncle of Bakhtullah, is wrong who stated that they went to the fish farm by Datsun.
15. Then there is another critical contradiction in the evidence of PWs regarding timing of leaving home and reaching the fish farm. While PW-Fida Hussain stated that they left the house at 12-00 noon and reached the fish farm at 2-30 (as he states that they reached the fish farm within half an hour). However, Bakhtullah states that they left the house at 2-00 p.m. and travelled by foot and reached the fish farm at 4-00 p.m. However, PW-Fida Hussain states in his examination-in-chief that he gave the fish to Bakhtullah at about 4-00 p.m. This means that they had completed their fishing before 4-00 p.m. This would be impossible in view of the fact that as per deposition of Bakhtullah they reached the fish farm at 4-00 p.m.
16. The above two contradictions are not at all minor and immaterial contradictions. In fact they completely destroy of the case of prosecution and I am surprised as to how these contradiction evaded the attention of the trial Court.
17. Apart from above contradiction, there are contradictions as well and same cannot be termed minor contradiction.
18. PW-Fida Hussain, on the point of abduction of Bakhtullah, stated that "Accused Jumo was seated on back side (pillion seat) of the motor cycle. Accused Jumo had got seated the abductee in middle. However, when I turn to the deposition of the abductee regarding his abduction he tells an entirely different story. He states "The motor cycle on which I was got seated, the two accused persons sitting on that motor cycle were with muffled faces." Meaning thereby, that accused Jumo, who was identified by the complainant party as he was with open face, was not sitting on the back seat of the motor cycle as that motor cycle was occupied by two unknown persons, whose faces were covered.
19. There is also contradiction with regard to the condition of the appellant at the time of his arrest. While PW-01, HC Ghulam Qadir Noonari, during his deposition stated that accused/appellant Jumo was arrested when he was standing at road in front of Benazir Kanta; however, in the mashirnama of arrest and personal search (Exh.4-A at page 31 of the paper book) it is stated that the wanted accused Juma was found in not fully conscious condition due to ailment, we arrested him in the above crime." This is also a very material contradiction as to the condition of the appellant at the time of his arrest as one witness states that he was standing on the road while he states that he was not in fully conscious condition.
20. Then, there is also conflict between the evidence of the PWs with regard to the fact whether the accused or some of them were with muffled faces or their faces were open. PW-Bakhtullah in his cross-examination stated that "The motor cycle on which I was got seated, the two accused persons sitting on that motor cycle were with muffled faces." However, in the FIR lodged by complainant Ali Nawaz, father of abductee Bakhtullah, it was stated that the "... at 04.00 p.m. four persons were going on two Motorcycles towards Thul, out of them one was identified by me and witnesses as Rana son of Abdul Rehman Bangulani resident of Chowk Lashari Thul and three were unidentified with open faces would be identified if seen again..." This is also a major contradiction in the deposition of two alleged witnesses of the incident, amongst whom, one was the abductee himself The complainant states that the accused who were not identified were with open faces while the abductee Bakhtullah states that the two accused who were sitting on the motor cycle on which he was seated were with covered faces. Out of them who is deposing correctly and who is deposing falsely.
21. PW-Bakhtullah also stated in his deposition that his face was muffled by the abductees; however, no such fact was mentioned by any other witnesses. In his cross the alleged abductee has deposed in following terms vide page 49 of the paper book:
"....The motorcycle on which I was got seated, the two accused persons sitting on that motorcycle were with muffled faces. The present accused Jumo was not in the house from which (where) I made by (my) escape good but three other accused persons were present in that house...."
Similarly, while in his deposition PW-Ali Nawaz stated that revolver was shown by the abductor to his son; however, he did not say so in the FIR.
22. Then there is an inordinate and unexplained delay in filing of the FIR. In case son of the complainant was abducted by any one, the normal and usual course would have been that he would rush to the police station to lodge FIR. The only reason given by the complainant for the delay is that he was searching for his son. However, he was not lost so that search was being made for him. He was alleged to have been abducted and thus a serious crime was committed by the abductors, therefore, there was no need for search of the abductee. The complainant did not say that he was negotiating release of his son with the abductors in which it may be presumed that for the well being of his son he did not approach the police. Therefore, the reason given by the complainant for delay in lodging the FIR is not confidence inspiring.
23. The superior courts have held time and again that un-explained delay in lodging of FIR to be an element which tarnishes the authenticity of the FIR. There is also an element of consultation involved as the complainant lodged the FIR after delay of 12 days but did not give any plausible reason for the same except that he was searching for his son.
24. There is also another important point which was not considered at all by the trial Court. In the FIR it is stated that the abductee Bakhtullah was abducted on 12.01.2014 and FIR was lodged on 24.1.2014 while the abductee Bakhtullah reached the police station himself on 30.01.2014 stating that he was kept at different places by his abductors. He stated that he decamped from his captors on 18.1.2014 and came at village Bahoo Khoso. Then he came to Thul by wagon and went to police station. He stated that he made his escape good on the pretext of attending to call of nature. However, there is no explanation as to where he was and what he was doing from 18.1.2014 - when he escaped from the clutches of his abductors, upto 30.1.2014, when he appeared at the police station. In case he reached the home on 18.1.2014 then why he was not produced before the police immediately. If he did not reach home on 18.1.2014 then where he spent the intervening period from 18.1.2014 to 30.1.2014. This creates serious dents in the prosecution case.
25. The abductee Bakhtullah has also alleged that the alleged abductors were asking for telephone numbers of his father and brother. Whether it is acceptable that he did not give the same to the abductors to ensure his early release from their illegal confinement. However, there is nothing on record to show that any contact was made by the alleged abductor with the complainant or any one of his family members or whether anyone contacted them in this regard by any other means.
26. The abbductee Bakhtullah stated in his deposition that he was kept at many places and on 18.1.2014 he ran away from his captors and on 31.1.2014 he appeared at the police station. However, there is nothing on record to show that any attempt was made by the police to reach the place of confinement of the abductee. It is very strange that no such attempt was made to at least to go the last place of confinement of the abductee Bakhtullah. Bakhtaullah also stated in his deposition that his abductors chased him but he fled away from them. It does not appeal to a prudent mind that a 12 years old boy would outrun his abductors in an unknown place.
27. In view of the above contradictions in the evidence of the prosecution witnesses, coupled with delay in filing of the FIR in the instant case, the prosecution has not been able to prove its case against the appellant beyond any reasonable doubt as doubts have crept in the evidence of the prosecution witnesses. Therefore, in my view, the impugned judgment is liable to be set aside and the appellant merit acquittal.
28. In view of the discussion and reappraisal of the evidence, it appears that prosecution has not been able to prove its charge against the appellant and the evidence adduced by it (prosecution) is full of discrepancies and not inspiring confidence, which has made the case full of doubts and deficiencies, hence, the impugned judgment is based upon non-reading and misreading of the record, therefore, in the circumstances it cannot be maintained to sustain the conviction against the appellant. It is settled law that even an accused cannot be deprived of benefit of doubt merely because there is only one circumstances which creates doubt in the prosecution story. In the instant case entire evidence of the prosecution is full of mysteries, contradictions, discrepancies and doubts. The Honourable Supreme Court of Pakistan, has laid down the dictum with regard to the doubt in case of Tarique Pervaiz v. The State 1995 SCMR 1345 and held as under:
"The concept of benefit of doubt to an accused person is deep rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about guilt of accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".
29. Vide my short order dated 08.02.2019, instant criminal appeal was allowed, the impugned judgment dated 17.09.2015, passed by 1-Additional Sessions Judge, Jacobabad in Sessions Case No. 70 of 2014 (State v. Jumo) was set aside and the appellant Jumo was acquitted of all charges by extending the benefit of doubt. The appellant was in custody and he was ordered to be released forth with if his custody was not required in any other case.
30. Above are the reasons for my short order dated 08.02.2019.
Let R&PS of Sessions Case No.70 of 2014 re-the State v. Jumo Bangulani being outcome of Crime No.13 of 2014, PS A Section Thul under sections 364, 34, P.P.C. may be sent back to the trial court along with copy of judgment through learned Sessions Judge, Jacobabad.
JK/J-11/Sindh Appeal allowed.