SHARAFAT JATOI Versus State
AMJAD ALI SAHITO, J.--- This appeal is directed against the judgment dated 23.05.2013 passed by the Judge, Anti-Terrorism Court, Hyderabad in ATC case No.71 of 2011 emanating out of Crime No.205 of 2011 under sections 365-A, 34, P.P.C., 6/7, A.T.A. and ATC Case No.72 of 2011 under sections 324, 353, 34, P.P.C., 6/7, A.T.A. bearing Crime No.206 of 2011, registered at Police Station Hatri, whereby he convicted the appellants and sentenced them to undergo R.I for life imprisonment with' forfeiture of their moveable and immoveable property while acquitted them in the case registered under sections 324, 353, 34, P.P.C. However, the benefit of section 382-B, Cr.P.C. was extended to them.
2. Briefly the facts are that on 27.10.2011 complainant Malik Abdul Majeed alias Gama appeared at Police Station Hatri and reported that he was living at Block-E Latifabad Hyderabad and runs business under the name and style of 'Javed Goods Transport Company' and also doing business of Banana jointly with his son Malik Javed, Malik Abid and grandson Zeeshan. On 25.10.2011 his son Malik Abid and Habibur Rehman Pathan were standing in front of their Truck `adda' when at about 0650 hours his son Malik Javed and grandson Zeeshan reached there in their car No.AHU-714 Toyota Corolla White color, they stopped the car and when were about to alight four unknown person(s) one with repeater gun and three with T.T. pistols came in front of the car and on the point of weapons they kidnapped Malik Javed and Zeeshan in the same Car. The complainant then searched for them and thereafter lodged the report with the police.
3. After registration of said FIR, SIP Jan Muhammad Noonari on receiving information about the availability of Car No.AHU-714 proceeded along with his staff and near Dari Mori, they tried to stop the said vehicle but four persons alighted from the Car having Repeater and T.T. pistols made straight fire shots upon police party, police also took position and exchanged firing, which continued for 10/15 minutes. In the meantime, two persons having pistols succeeded to run away while the appellants having repeater and pistol were apprehended. According to police, on hearing voices from Car they recovered alleged abductees namely, Malik Javed and Zeeshan. The police also registered the case under sections 324, 353, 34, P.P.C. read with section 6/7, A.T.A.
4. Both the cases were investigated by Inspector Wahid Bux Laghari and then submitted two separate challans as aforesaid. One accused namely Allahdad remained absconder in both the cases despite issuance of coercive process against him, hence, his case was separated.
5. A joint charge against both the accused for the offence under sections 6(2)(e)(m)(n), A.T.A. read with sections 365-A/324, 353, 34, P.P.C. was framed, to which they pleaded not guilty.
6. The trial court examined complainant Abdul Majeed as Ex.8, he produced FIR as Ex.8/A, PW-2 Malik Muhammad Javed as Ex.9, he produced his statement under section 164, Cr.P.C. as Ex.9/A, PW-3 Muhammad Zeeshan as Ex.10, he produced his statement under section 164, Cr.P.C. as Ex.10/A, PW-4 Malik Muhammad Abid as Ex.11, PW-5 Safar Chand as Ex.12, he produced memo of place of incident as Ex.12/A, PW-6 Habibur Rehman as Ex.13, PW-7 PC Ayaz Ali Laghari as Ex.14, he produced memo of arrest and recovery as Ex.14/A, PW-8 Civil Judge and JM Ahsan Ahmed as Ex.16, PW-9 SIP Jan Muhammad Noonari as Ex.17, produced Entry No.18 as Ex.17/A, FIRs being Nos.207 and 208 of 2011 as Ex.17/B and 17/C another entry as Ex.17/D, FIR No.206/2011 as Ex.17/E, PW-10 SHO Wahid Bux Laghari as Ex.18, he produced Entry No.13 as Ex.18/A, Entry No.3 as Ex.18/B, mashirnama as Ex.18/C, application for recording statement under section 164, Cr.P.C. as Ex.18/D, notice to accused as Ex.18/E. Thereafter DDPP for the state closed the side of prosecution evidence.
7. The statements under section 342, Cr.P.C. of the appellants were recorded in which they denied the allegations levelled against them by pleading their innocence. However, neither they examined themselves on oath nor led defense evidence.
8. The learned trial Court after hearing the parties and appraisal of the evidence convicted the appellants as stated above.
9. Learned counsel for appellants mainly contended that the impugned judgment is against the law and facts of the case; that the present appellants are innocent and have falsely been involved in this case by the complainant party; that in fact there were outstanding amount of father of appellant Sharafat and Asif for which the alleged abductee kidnapped the appellants when they reached at Khanewal toll Plaza, they raised cries and police arrested the Malik Jawed but Hyderabad police implicated them in the present case; that the appellants were acquitted from the charge in police encounter; that when encounter is not proved then entire case has become doubtful; that there is two days delay in lodgment of FIR for which no plausible explanation has been given by the complainant; that prosecution has miserably failed to prove the case against the appellants and thus, according to him under abovementioned facts and circumstances, appellants are entitled to be acquitted. In support of his contentions he has relied upon the case laws; Nooral alias Nooro v. The State (2015 YLR 1911), Muhammad Dawood and 8 others v. The State (2015 PCr.LJ 316) and Muhammad Tufail v. The State (2013 SCMR 768).
10. On the other hand, learned counsel for complainant as well as learned A.P.G while rebutting the above contentions have argued that all the witnesses have supported the version of the complainant; that there is no material contradiction in the evidence of prosecution witnesses and in that situation learned trial Court was right to record the conviction and sentence against appellants which were in accordance with law. They lastly prayed for dismissal of the instant appeal.
11. We have heard the learned counsel for the parties and have gone through the evidence with their assistance.
12. It is borne out from the record that the complainant has not disclosed the real facts in this case and Police/I.O. of the case has not performed the duty honestly but on the urging of the complainant, the appellants were booked in this case. The complainant lodged FIR with delay of two days whereas the police station was at the distance of 6/7 kilometers. Even he failed to disclose in his evidence the reason for delay in lodgment of FIR. According to the complainant, all the accused persons duly armed with weapons including Sharafat came at his Truck `ADA' namely "Jawed Goods Company Hala Naka" and abducted his son Jawed and grandson Zeshan in their Car No. AHU-714. In cross-examination he denied the suggestion that the father of the present accused was his employee and used to keep his emoluments with Malik Javed and two days prior to alleged incident indulged with harsh words. In order to support the evidence of the complainant, the prosecution examined abductee Malik Jawed, who in his evidence deposed that on an eventful day he along with his son was abducted in his Car. On 27.10.2011 the accused were shifting them when they reached Teh Dari Mori, police mobile was standing there who signaled them to stop, but culprits did not stop the vehicle, as a result, there was exchange of firing between police and culprits, two-persons were apprehended on the spot, while two absconded away. Accused and abductee were brought at police station. In cross-examination he admits that the father's name of accused Sharafat is Nosha. But he denied that the said Nosha had worked with him. He has denied that the accused were arrested from Khanewal. He has also denied that on 25th October 2011 he informed that an amount of Rs.2,20,000/ of Sharafat and Rs.30,000/ of Asif were kept with him and he promised to pay their amount in Sahiwal. Abductee Muhammad Zeeshan also supported the prosecution story. It is admitted by both abductee that they were released by the police after encounter but neither the accused nor abductee received any bullet injury. Even no bullet mark was found on the Car AHU-714 owned by the abductees. Alleged abductees in their respective statements before the trial court had not deposed even a single word that after their abduction accused demanded ransom amount from the complainant, nor complainant deposed that the accused have demanded ransom amount from him for release of the abductees.
13. On 27.10.2011 at about 1100 hours the complainant lodged FIR and on very same day at about 1700 hours SIP Jan Muhammad received information that the car involved in above crime was seen going from Osman Shah to Masso, on receiving such information SIP Jan Muhammad (PW-9) left police station along with four police officials in police mobile and reached at pointed place. He tried to stop the car, and when it was stopped four-persons alighted from the car, one was holding repeater and three were having pistols and they immediately opened fire towards police, police also made fire in their defense. The firing continued for about 8/10 minutes, police arrested the appellants and while two accused persons escaped well. The abductees were released. In cross-examination, he admitted that SHO Wahid Bux was not with them. No one sustained injury nor bullet hit to mobile. He has also fired 9/10 bullets but he has not collected empties from the place of incident.
14. The appellants in their statements recorded under section 342, Cr.P.C. have denied the participation in the occurrence. Appellant Sharafat in his statement stated that his father Nosha was working with Malik Jawed and Abdul Majeed Gama as Banana sorter for about 20 years and had kept deposited their income with them as 'Amanat'. Two days prior to this on Eid occasion he demanded back their amount which was Rs.220,000/- and of Asif Rs.30,000/- on such demand the complainant become annoyed, however, they asked them to go with them as they had to make money at Sahiwal. The accused persons then went with them on 25.10.2011 from Hala Naka. Dadan was the driver of Malik Javed. During journey at Khanewal Toll Plaza the complainant party shouted that they had been kidnapped and therefore, they have been involved in this false case. He produced photocopy of a letter addressed to Superintendent of Police National Highway of Motorways police by Chief Patrol Officer Khanewal. Accused Muhammad Asif also repeated the same statements.
15. In the case of police constable Khizar Hayat (PLD 2019 SC 527), the honourable Supreme Court of Pakistan has held that; falsus in uno, falsus in omnibus is a Latin phrase meaning "False in one thing, false in everything." The rule holds that a witness who lied about any material facts must be disbelieved as to all facts. By keeping the case of both parties in juxta position.It appears that on 26.10.2011 one Ghulam Safdar Chief Patrol Officer Beat 18 Khanewal wrote a letter (Ex-20/A) to the Superintendent of Police National Highways and Motorway Police, Multan, that during the night between 25/26.10.2011 APO/DVR Muhammad Amjad Khan was deputed for the checking of suspected vehicles along with other staff. On suspicion the car was stopped. As the car stopped the driver Allah Dad ran away towards the crop, two-person were arrested namely Sharafat and Muhammad Asif. After arrest of accused person, two other persons were found in the car, they disclosed their names as Malik Muhammad Jawed and Malik Muhammad Zeshan. In the instant case, the claim of the police that on 27.10.2011 after encounter they have arrested the accused from Teh Dari Mori, whereas Motorway police claimed that they have arrested the accused person during the mid-night 25/26.10.2011, from Khanewal motorway. The incident took place on 25.10.2011, whereas the FIR was lodged with delay of two days viz 27.10.2011 at about 1100 hours, no plausible explanation was furnished by the complainant for such long delay. On very same day at about 1700 hours SIP Jan Muhammad received information that the car involved in the crime was seen at the road Osman towards Masoo. The encounter continued for 10 minutes but not a single person from either side received any scratch to believe that there was exchange of firing. Even no bullet mark was found on both vehicles viz. police mobile and car. SIP Jan Muhammad made 10 fires from his SMG, from perusal of Ex-18/C memo of place of incident the Investigating Officer secured 10 empties of SMG. If it is true that only 10 SMG empties were secured meaning thereby the same were fired only by SIP Jan Muhammad, then other police officials namely PC Ayaz Ali claimed that he has fired 20 shots, Muhammad Hashim, HC Nizam, PC Sahib Khan and DPC Muhammad Yaqoob had claimed that they have also fired. It is very strange to note here that in middle of the city, four-persons duly armed with Repeater, Gun and pistol can abduct two persons without having their own vehicle and as per prosecution, the appellant abducted two persons in their Car and thereafter in the same Car in day time, they were shifting them on busy road; nevertheless, police remains 24 hours on road and there are so many police check post available on the road. Despite availability of police personnel on road for the purpose of keeping eyes over the movement of persons specially in order to apprehend the criminals, how it is possible that the appellants remained safe and were not apprehended till either upto Toll Plaza Khanewal or till as per prosecution version/encounter. The learned trial Court acquitted the accused from the charge of encounter between police and accused person, whereas police claimed that during encounter the abductees were recovered. There are material infirmities and contradiction in the prosecution evidence rendering the prosecution case highly doubtful. In the case of Muhammad Tufail v. The State (2013 SCMR 768) the honourable Supreme Court of Pakistan has held that;
8......The complainant was abducted on 18.10.2013 yet neither his father nor his first cousin who subsequently appeared in the court as PWs reported so important an incident. Nor did they put forth any explanation for not doing so. Even the complainant did not breathe even a single word about this unnatural conduct of his father and cousin. All this sounds to be more of a cock and bull story as for as the implication of the applicant is concerned. His conviction and sentence, therefore, cannot be maintained on this quality and quantity of evidence.
(Underline by us)
16. The over-all discussion involved a conclusion that the prosecution has failed to prove the guilt against the present appellants beyond any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, it is not necessary that there should be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is to be extended in favour of the accused not as a matter of grace or concession, but as the matter of right. The reliance is placed on the case of 'Muhammad Masha v. The State' (2018 SCMR 772), wherein the Hon'ble Supreme Court of Pakistan has held that:
"4. Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim,"it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR-1345), Ghulam Qadir and 2 others v. The State (2008 SCMR-1221), Muhammad Akram v. The State (2009 SCMR-230) and Muhammad Zaman v. The State (2014 SCMR-749).
17. In this case, the learned trial Court has not evaluated the evidence in its true perspective and thus arrived at an erroneous conclusion by holding the appellants guilty of the offence. Resultantly, the instant appeal was allowed; the conviction and sentence awarded to the appellants were set-aside and they were acquitted of the charge by extending the benefit of the doubt by our short order dated 19.11.2019. These are the detailed reasons for the same.
SA/S-11/Sindh Appeal allowed.