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Petitioner: MUHAMMAD DAWOOD and 8 others VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Shahab Sarki Title: MUHAMMAD DAWOOD and 8 others vs The STATE Case No.: Criminal Jail Appeals Nos.D-72 and D-73 of 2013 Date of Judgment:2014-09-25 Reported As: 2015 P Cr. L J 316 Result: Appeals allowed
JUDGMENT
JUDGMENT IRFAN SAADAT KHAN, J.---These criminal jail appeals have been preferred against the judgment dated 11-9-2013 passed by the Judge, Anti-Terrorism Court, Khairpur, whereby the accused persons namely Muhammad Dawood, (2) Ranjhan, (3) Ashique Hussain, (4) Bhagial, (5) Muhammad Maroof, (6) Ghulam Qadir, (7) Allah Bux, (8) Ghulam Asghar, (9) Khadim Hussain, (10) Abdul Hameed, (11) Nawab and (12) Abdul Hakeem, were convicted and sentenced to suffer R.I for life. The moveable and immovable property of all the said accused persons were also forfeited by the State under section 365-A, read with 149, P.P.C. And 7(e) of A.T.A. All the accused were also convicted for offence under section 395 read with section 149, P.P.C. and were sentenced to suffer R.I. for 10 years and fine of Rs.20,000 each and in case of default in payment of fine, they shall suffer further SI for six more months. 2. Brief facts of the prosecution case, as per F.I.R. in crime No.10/2009 under sections 365-A, 395, 148, 149, P.P.C. and 7, A.T.A. of Police Station Hingorja District Khairpur, are that one Shoaib Ahmed (herein after referred to as the abductee) son of Rajibudin Sahito aged 22 years resident of Rasool Abad taluka Sobitodero was kidnapped from the land of his maternal-uncle namely Mukhtiar Ahmed Sahito. The complainant after receiving the said information along with his staff ASI Zahoor Ahmed, HC Abdul Qadir, P.C. Talib Hussain Solangi, went to the village of the abductec and met with his maternal uncle Mukhtiar Hussain and his father Rajibuddin. Mukhtiar Hussain told the complainant that on 27-2-2009 when he and the abductee were present on their land some 14 armed persons came there and on the gunpoint asked them to remain quiet and thereafter kidnapped Shoaib. Since life threats were issued by the accused persons hence F.I.R. was not registered either by the father or other relatives of the said abductee. However, when the said
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information was received by the police. F.I.R. was registered on 12-4-2009, whereas the incident took place on 27-2-2009. The names of 14 persons were duly mentioned in the F.I.R. and thereafter investigation of the case began. 3. Mr. A.R. Farooque Pirzada Advocate has appeared on behalf of the accused persons namely (i) Ashique Hussain son of Khuda Bux Thcbo and (ii) Abdul Hameed son of Jamaluddin Thebo. Learned counsel stated that the judgment passed by the learned Anti-Terrorism Court is not in accordance with law as the learned Judge has not considered various contradictions, which have appeared in the prosecution case. While elaborating his view point the learned counsel has submitted that the F.I.R. was registered after a considerable delay of more than 40 days as the date of occurrence of the incident was 27-2-2009 whereas, the instant F.I.R. was registered on 12-4- 2009, which delay according to him, had remained unexplained. The learned counsel further submitted that it was claimed by the complainant that he received information of the said incident on 12-4-2009 on telephone, however he has failed to explain that whether he was having any previous information about the said incident prior to said date or not. The learned counsel further submitted that it is strange to note that the said F.1.R. was neither lodged by the father nor by any other relative of the abductee rather the said F.I.R. was lodged by S.I.P Ashraf Ali Mangi, who was the S.H.O. of P.S. Hingorja. He further stated that the complainant had inimical terms with the Theba community and in order to falsely implicate the accused persons the instant F.I.R. was registered, since some complaints were made by the said Sheba community against him regarding his highhandedness in some previous matters. Learned counsel further submitted that on the one hand the complainant has mentioned that he has registered the F.I.R. Himself but on the other hand has failed to record any statement under section 161, Cr.P.C., which had remained unexplained. He further submits that there was a gap of more than 40 days in the incident and the lodging of the F.I.R. And it is strange to note that no body from abductee side had ever approached the police about the happening of the alleged incident. She learned counsel stated that it is beyond comprehension that for more than 40 days the abductee side kept mum and did not inform the police about the alleged abduction. She earned counsel further submits that it is also noted that Mukhtiar Hussain, who is the maternal uncle of the abductee, was a police informer hence the S.H.O. Helped him in falsely implicating the accused persons and a case was set up against the said accused persons of abduction due to the enmity between the two tribes. He further stated that, if the deposition of the abductee is seen, it would be noted that he has mentioned that a ransom of Rs,900,000 was paid by his maternal uncle Mukhtiar Hussain, whereas in the deposition of Mukhtiar it would be noted that ransom amount has been mentioned as Rs,10,00,000. He further submitted that in the deposition of abductee he has not mentioned the name, of Ashique Hussain as one of the accused person. He further submitted that though in the 164, Cr.P.C. Statement the abductee has named only three persons but the police has connected as many as 14 persons in the commissioning of the alleged crime. He further stated that in the 164, Cr.P.C. Statement presence of only two co-accused namely Dawood and Ranjhan was mentioned whereas, no allegation has been levelled either against Ashique Hussain or Abdul Hameed. He further submitted that even at the time of recording of 161, Cr.P.C., statement the abductee had identified Ranjhan and Dawood only. He further submitted that the abductee in his 164, Cr.P.C. Statement has also admitted that he had not disclosed the names of 14 accused persons connected in the commissioning of the alleged crime. He further stated that the said abductee in his deposition has categorically stated that his 164, Cr.P.C. Statement was written by the police. He further stated that abdUctee was not recovered by the police rather he was produced by his relations at the police station on their own, rather voluntarily. He further stated that though the abductee has asserted that during the period of his abduction he was physically tortured but it is strange to note that there is no medical certificate/report available on the record to corroborate
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his this statement. He further stated that though the abductee was allegedly released after receiving ransom on 26-4-2009, however, surprisingly the F.I.R. Was registered on 27-4-2009, which explanation is not available with the prosecution. She learned counsel, in view of the above facts, submitted that the deposition of the abductee is hearsay and not trustworthy and is liable to be ignored. The learned counsel further submitted that it is strange to note that it was Mukhtiar Hussain, the maternal uncle of the abductee, who took the pains to go to the Police Station, collect the ransom amount and to do all the other ancillary jobs whereas, no role has been played either by the father or the brothers of the abductee, which aspect creates serious doubts about the happening of the said incident. The learned counsel further submitted that the prosecution side has given up the evidence of Rajabuddin, the father of the abductee, and no explanation in this behalf is available with the prosecution. The learned Counsel further submitted that if the deposition of Mukhtiar Hussain is examined a number of contradictions would be noted; as he has categorically named certain persons, who were with him at the time of payment of ransom amount, whereas the same has not been mentioned in the deposition of the abductee. The learned counsel further submitted that why the ransom amount was paid by Mukhtiar Hussain and not by the father and brothers, also puts a dent on the case of the prosecution. He has further submitted that in the deposition of Mukhtiar Hussain he has mentioned that he collected the ransom from the nekmards of the area but no such list of those nekmards was even submitted in order to check the veracity of the statement given by him. He further submitted that from the deposition of P.Ws. Shahnawaz it may be noted he has categorically stated that he was not present when abductee was brought at the police station. Shah Nawaz has further admitted that memo. Of recovery does not bear his signature. He has also categorically admitted that he has given his statement at the instigation of his brother Mukhtiar Hussain, which clearly establishes that the deposition given by Shahnawaz was tainted and a cooked up affair. He further submitted that the deposition of P.W.5 Hussain Bux also reveals that he has mentioned that the abductee was produced before the police whereas it has been mentioned by other P.Ws. That the abductee had appeared voluntarily before the police. Moreover, the said Hussain Bux has also not identified Ashique Hussain and Abdul Hameed in the Court. The deposition of Hussain Bux would further reveal that he has mentioned that the accused persons have snatched away cash and mobile from Mukhtiar Hussain, which is also beyond comprehension as when the accused persons have come with the motive to kidnap Shoaib then what was the necessity to snatch/rob cash and mobile, which aspect has not been properly explained by the prosecution. He further submitted that though empties were sealed from the spot but those were not produced in a sealed condition before the Court. He further submitted that there was no mark or identification on the case property also. He further submitted that though the mashir Hussain Bux has stated that ransom was collected after selling cattle, gold and other articles however this statement is in contradiction to the deposition of other P.Ws. Who have stated that the ransom amount was collected from the nekmards of the area. He further stated that P.W. Hussain Bux has also admitted that police did not record his statement. The learned counsel states that this admission has altogether changed the scenario of the case of the prosecution, since when this admission has been made the deposition of .Hussain Bux has become false and was liable to be rejected, which aspect has been ignored by the lower court. He further submitted that if the evidence of P.W.9 Sajawal Khan is examined, it would be seen that he has failed to properly identify the accused persons in Court and picked a wrong person with different name. It may also to be seen that mashirs brought by Mukhtiar had no information about the release of the abductee. It is also to be noted that the police had failed to collect mobile phone data of Mukhtiar whereas; it was claimed that the accused persons were making phone calls on the mobile phone of Mukhtiar for ransom amount. He further submitted that Mukhtiar moved an application to Judicial Magistrate for recording statement under section 164, Cr.P.C. On 27-4-2009
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whereas the date of the application was 5-5-2009, which belies the statement of Mukhtiar and the entire case of the prosecution has become dubious. He further submitted that it has also come on record that there was previous enmity between the Theba community and the Sahito community, due to which the instant F.I.R. Has been registered. He further submitted that no independent witness was examined in the case. He further submitted that the SIO of this case has also made contradiction in his deposition by mentioning that "it is correct to suggest that P. Ws. Of present case did not produce any incriminating evidence against the accused persons which could prove that the abductee was released after payment of ransom amount". He further submitted that it was claimed that Mukhtiar and Shoaib were having lantern and torch in their hands but these were never produced in the Court. In the end the learned counsel submitted that if all these factors are considered in juxtaposition it would become evident that the prosecution case is fabricated and has been foisted upon the accused due to previous enmity. He further staled that since the present case is not free from doubts hence the accused persons are entitled to be acquitted. He therefore, prayed that the said accused persons may be acquitted and the order passed by the Anti- Terrorism Court may be set aside. In support of his submissions, the learned counsel has relied upon the following decisions:-- (i) Muhammad Zubair and 2 others v. The State (2010 PCr.LJ 1892) (ii) Mst. Parveen Akhtar and others v. The State (2010 YLR 1899) (iii) Dr. Muhammad Abrar v. State (2010 YLR 1674) (iv) Amjad Ali v. The State (1994 PCr.LJ 87) (v) Khalid and another v. The State (1989 PCr.LJ 742) (vi) Tariq Pervez v. The State (1995 SCMR 1345) (vii) Jan Alam v. The State and another (2004 PCr.LJ 68) (viii)Murad Shah and others v. The State (1991 MLD 887) (ix) Wazir Muhammad v. The State (1992 SCMR 1134) (x) Abdul Khanan v. The State (2004 PCr.LJ 92) (xi) Muhammad Luqman v. The State (1989 MLD 1708) (xii) Daniel Boyd (Muslim and another v, The State (1992 SCMR 196) 4. Mr. Nisar Ahmed. Bhanbhro, learned counsel has appeared on behalf of the appellants/accused namely Muhammad Daud son of Khan Muhammad Thebo, Bhagial son of Gulab Khan Thebo, Muhammad Maroof son of Rajabuddin Thebo, Ghulam Qadir son of Rajabuddin Thebo, Allah Bakhsh son of Allah Ditto Thebo, Ghulam Asghar son of Nabi Bakhsh Thebo, Khadim Hussain son of Imdad Ali alias Jurial Thebo, in Criminal Appeal No,72 of 2013 and other appellants/accused namely Ranjhan son of Shah Bakhsh Siyal in Criminal Jail Appeal No,D-73 of 2013. Learned counsel while adopting the arguments of Mr. Abdul Rehman Faruq Pirzada, Advocate has submitted that there are: a number of contradictions in the deposition of the P.Ws. He stated that at one place P.W. Ashraf Ali has mentioned that there was enmity between the parties, which aspect was denied by P.W. Mukhtiar Hussain by stating that there was no enmity. He further submitted that in the deposition of the abductee he has mentioned that he was beaten by the accused party, whereas on the other place it was admitted that his condition appeared normal when he appeared at the police station. He further submitted that all the P.Ws are relatives of the abductee and no independent P.W. Was examined. He further submitted that P.W. Shah Nawaz was also declared hostile. He further submitted that in the 164, Cr.P.C. Statement of abductee no name was mentioned. He further submitted that there is no criminal record of the accused persons. Learned counsel finally submitted that the present case is false and has been foisted upon the present accused persons, hence they are liable to be acquitted. In support of his above contentions, the learned Counsel has placed reliance upon the following decisions. (i) (2014 SCMR 314) Muhammad Tayab and others v. The State.
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(ii) (2009 SCMR 230) Muhammad Akram v. The State. (iii) (2011 YLR 1899) Mst. Parveen Akhtar and others v. The State. (iv) (2011 PCr.LJ 361) Muhammad Luqman v. The State. (v) (2011 YLR 2338) Muhammad Mushtaq and others v. The State. (vi) (2010 PCr.LJ 1892) Muhammad Zubair and others v. The State. (vii) (2010 PCr.LJ 564) Dr. Muhammad Abrar v. The State. (viii) (PLD 1995 Kar. 315) Qurban alias Darboo and 2 others v. The State. 5. Mr. Sahab Khan Kanasero, learned counsel has appeared on behalf of appellants/accused namely Nawab son of Abdul Hakeem son of Abdul Hameed Siyal and Abdul Hakeem son of Abdul Hameed Siyal in Criminal Jail Appeal No,D-73 of 2013. Learned counsel while adopting the arguments of Mr. Abdul Rehman Faruq Pirzada and Mr. Nisar Ahmed Bhanbhro, submitted that there are a number of contradictions in the depositions of the P.Ws. And that it has already been held in the decision given by the Hon'ble Supreme Court of Pakistan in the case of Saeed Muhammad Shah v. The State (1993 SCMR 550) that in case of contradiction in the depositions, the matter should be decided in favour of the accused by giving them the benefit of doubt. 6. Mr, Abdul Rehman Kolachi, learned A.P.-G. Has appeared on behalf of the State and submitted that the learned Judge Anti-Terrorism Court, has passed an exhaustive and erudite Judgment, which may be confirmed. He, while elaborating his view point, submitted that the delay in the F.I.R was due to the fear that the accused party might harm the abductee. He further submitted that the said abductee had remained for more than 40 days in the captivity of the accused persons. Learned A.P.-G. Further submitted that the motive and enmity are not the ingredients in a ransom case. He submitted that the main stress of the accused persons that the case has been foisted upon them due to enmity is a farfetched submission. Learned State counsel further submitted that deposition of father of abductee was given-up only on the ground that he was not an eye-witness of the incident. He further stated that P.W. Shah Nawaz was declared hostile and another witness was arranged in his place hence no dent in the case of the prosecution is put in this regard. He further submitted that Mukhtiar was a poor person and by selling his cattle, house hold goods and gold ornaments had arranged the ransom money, which aspect could not be ignored. He further submitted that the abductee has not given up the names of the accused persons, which is evident from page 69 of the Paper Book. He further submitted that the P.Ws. Are natural witnesses and could not in any way be considered to be the interested witnesses. He further submitted that the assertion of the learned counsel for the accused that Mukhtiar Hussain was a police informer is also of little significance as when a question was put to him ill this regard, he categorically denied the same. He further submitted that so far as the allegation of non-providing of the list of persons from whom ransom amount was collected by Mukhtiar Hussain is concerned, suffice to state that the said amount was arranged by selling cattle, gold ornaments etc. And there is no contradiction in the deposition of P.Ws. In this regard. He finally submitted that even if, for argument sake, it is assumed that there are certain contradictions, these are minor and are liable to be ignored. He further stated that since the accused persons were receiving threats that is why F.I.R. Was not registered. He further stated that in view of the above facts and circumstances, the appeals filed by the accused persons are liable to be dismissed and the judgment passed by the lower Court may be upheld. In support of his above submissions the learned Counsel has placed reliance on the following decisions:-- (i) 2007 SCMR 1519 (Zahoor Ahmed v. The State) (ii) 2009 SCMR 1260 ((Muhammad Tariq alias Tara v. The State) (iii) 2008 SCMR 1623 (Samiullah v. Jamil Ahmed) (iv) 2007 SCMR 641 (Ashfaque Ahmed v. The State) (v) 2001 MLD 1135 (Muhammad Iqbal v. The State)
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(vi) 2006 SCMR 1761 (Muhammad Ilyas and others v. Khadim Hussain) (vii) 2006 SCMR 1801 (Dilbar Masih v. The State) (viii) 2009 SCMR 1428 (Mst. Razia alias Jia v. The State). 7. We have heard all the learned Counsel at considerable length and have perused the record and the decisions relied upon by them. 8. P.W.1 Ashraf Ali in his deposition has stated that he was posted as S.H.O, PS, Hingorja, on 12-4- 2009 when he received information on telephone that Shoaib Sehto has been abducted. He along with other police officials reached the house of said abductee, met with his father and maternal uncle, who disclosed him the story and thereafter the instant F.I.R. Has been lodged. In the deposition P.W., Ashraf, at one place has mentioned that the accused persons were having inimical terms with Mukhtiar Hussain whereas; in the statement he has categorically denied the same. It is also noted that he has lodged the F.I.R. Against the accused persons as nominated by him, meaning thereby that the names of accused persons were not given to him either by Mukhtiar Hussain or by the abductee or by the father of the abductee. He has also stated that on 12-4-2009 he received the information about the kidnapping. He has also admitted that there is no official stamp on the daily diary entry of 12-4-2009 report at P.S. It is also noted that at one place he has mentioned that when he reached the house of abductee he met with his father and maternal uncle whereas, in the cross-examination he has mentioned that he has met with Mukhtiar only. He has further mentioned that when he reached the house of abductee the father and uncle of abductee were not available, however, when he inquired from the co-villagers they informed him about the happening of the said incident. He has further admitted that at the police station Hingorja there is no criminal record of the Sheba community or that of the accused persons. He further stated that the names of the accused persons were given to him by the maternal uncle of the abductee whereas, at other place in his deposition he has stated that accused persons were nominated by him. He has further admitted that most of the criminal cases are not reported at the police station and also stated that prior to 12-4-2009 he has never visited the place of "wardhat". He has further admitted that F.I.R. Was written by WHC Ahsan Gilal on his dictation. He has also admitted that he has not produced the departure entry in the present case. 9. The deposition of the abductee reveals that he has mentioned that the incident took place on 27-2-2009 at 8-00 p.m., when he along with his maternal uncle Mukhtiar went to see the rotation of water of their wheat crop, where some accused persons came, who robbed his uncle and took him away along with them, after making aerial firing. He states that in his deposition that firstly the said accused persons took him and Mukhtiar, however left Mukhtiar with the directions to arrange ransom for an amount of Rs,10,00,000 for his release. He has admitted that he was severely beaten by the accused persons when he was in their captivity but it is strange to note that there is no medical report available on the record in this regard. He further stated that when the said ransom amount of Rs,900,000 was paid, the accused persons left him near an abandoned lake whereas on the other place he mentioned that his custody was handed over to Mukhtiar Hussain and Hussain Bux. He has further admitted that he does not remember the month of his release. He stated that his maternal uncle brought him to the police station where his 161, Cr.P.C. Statement was recorded on the same day. He has also admitted that there is no enmity between him and the accused persons but the accused persons have kidnapped him for ransom. He has admitted that though he has mentioned in his 161, Cr.P.C. Statement that when he and Mukhtiar were checking the rotation of water and they were having lantern and torch but in examination-in-chief nothing has been mentioned about. The said lantern. He further admitted that though the accused persons snatched away the mobile of Mukhtair but he does not remember his mobile number. He has also admitted that he had not named the 14 persons who abducted him in his 161, Cr.P.C. Statement. He also admitted that the ransom amount was not paid in his presence. He also admitted that
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persons from revenue department and police department used to visit Mukhtiar. He has also admitted that persons from department he has given the application to give up his father as a witness as he was not an eye-witness of the incident and that the said application was written by Mukhtiar, on whose advice the said application was moved. He has also admitted that his uncle Mukhtiar has lodged some criminal cases against Raza and others. 10. The deposition of P.W.3 Mukhtiar Hussain reveals that since he was directed by the accused persons not to register the F.I.R. Otherwise abductee would be murdered, hence he did not lodge the F.I.R. In his deposition he has categorically admitted that he has not named the accused persons in his statement. In his deposition he has stated that at the place of incident no villager reached at that time, however at another place he has mentioned that due to aerial firing made by the accused persons co-villagers were attracted. He has also admitted that he has not named Ranjhan in his 161, Cr.P.C. Statement or in examination-in-chief. He has also admitted that he visited Sheba village to inform that their people had abducted Shoaib, whereas he never approached the Police station for lodging of F.I.R., which was only at…
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