Abdul Razzaque & another (Appellant) VS The State (Respondent)

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rNrtrrp HIGH,co,uRT oF SINDH'

CIRCUIT COURT HYDERABAD

Before:

Mr. Justice Naimatullah PhulPoto Mr. Justice Mohammad Karim I(han Agha

Cr. Spl. ATA APPeal No.D-19 of 2013

Abdul Razz,aq and another Versus

The State

and

Cr. Spl. ATA Jail Appeat No.D-20 of 2073' Wazir Ali and another

The State

Appellants : Abdul Razzaq Through Mr. A,mjad Ali S ahito, Advocate and another in Cr. SPl.

ATA Appeal No.D-19 of 20t3 Appellants ; Wazir Ali and Thqough Mr. Mu hammad Hashim _,t-

another in Cr. Spl. ATA Laghari alongwith Mr. Ilussain Bux Jail Appeal No.D-20 of Solangi, Advocate

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Respondent: The State Through Mr hahzado Saleem Nahiyoon

A.P.G.

Date of hearing 03.05.2017

Date of judgment 03105.2017

JU DGMENT

MOIIAMMAD I(ARIM KHAN AGHA J.- B y this judgment rve intend. to decide both the aforementioned Cr' Spl' ATA Appeals' as r both arise out the same judgment.

- 2. Appellants Abdul Razzaq, Ghulam Hyder, Ali Hassan and Wazir l.r; j-l t Ali were tried by learned Judge, Anti-Terrorism Court' Hyderabad' in Case No.36/20 1 1, arising out of crime No'76 l2OlL registered at

t_ LJ 'ry liceStationNaseemNagarforoffenceundersections365.APPC' 7 ATA Act, !997 . Appellants were found guilty by Judgment dated

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19.03.2013 (the impugned judgment) and were convicted under section 7(e) of Anti-Terrorism Nct, I99Z and sentenced to undergo life imprisonment and forfeiture of their moveable and immoveable property. Benefit of Section 3q2-B Cr.p.C. was also extendecl 1.o l'lre appellants. The appellants have challenged the impugned Judgrnent through the instant appeals.

3.The brief facts of the prosecution case as disclosed in the F.l.R. are tlrat on 22.03.2011, complainalt Muhammad Ayoub S/o Misbahuddin R/o Bungalow No.A-36 Abdullah Blessing easimabad, Hyderabad lodged FIR at the pqlice Station Naseem Nagar that he resides at the above address. with his family and was Assistant Engineer, Liaquat Medicat Universit5r. On 18.03.2011, his servant Razzaq Mallah took the son of the complainant Muzammil aged about 2Vz or 3 years out of the house, but did not come back despite lapse of time. Complainant tJlen tried to search his son and servant, btrt not succeeded. The matter was reported to the police on "15" and they continued to search for them. On2l.O3.2O1 1, a phone call was received on the mobile phone of the complainalt, the caller told the complainant that his son was kidnapped and one crore rupees are required for his release otherwise his son would be killed. Such type of call was repeated ald then he became sure that his son was A kidnapped by his servant Rezzaq Mallah 'ivith the help of dacoit for ransom. Thereafter, he went to Police Station and lodged report of the incident.

4.During investigation, on 30.03.2011, on spy information a raid was conducted at a grave yard within the timit of P.S. Hatri and the abductee was recovered and the appellants were arrested. Later on co-accused Hyder Bux and Ali Nawaz surrendered themselves ancl were admitted on bail by this Court, whereas accused Imam Bux was sent up for trial under a supplementary challan.

5.After completion of usual investigation, police submitted the chailan against above named acCused.

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6.Formal charge against the accused was framed by trial Court.

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Accused all pleaded not guilty and clairned to be tried.

ll- * In order to prove its case prosecution examined 07 witnesses o ?

's) and thereafter learned DDPP closed the side of prosecution de statement Ex.25 Yf, ,tr-/|n

8.Statements of accused were recorded under section 342 Cr.P.C. at Ex. 26 to F,x.32, in which they have denied the allegations of prosecution and have claimed that they have been falsely involved in this case. They however neither examined themselves on oath nor led any evidence in their defence.

9.The learned trial court after hearing the learned counsel for the parties and on the assessment of the entire evidence convicted and sentenced the accused / appellants as stated above in the impugned judgment.

10.The facts of this case as well as evidence produced before l-he trial court find an elaborate mention in the impugned judgment passed by the trial court therefore the same may not be reproduced here so as to avoid duplication and unnecessary repetition'

11.Learned counsel for the appellants Abdul Razzaq and Ghulam Hyder contended that the impugned judgment is based on a misreading and non reading of the evidence; that there is no evidence that Abdul Razzaqand Ghulam Hyder had any thing to do with the kidnapping; that there was no evidence that any ransom demand was made; that the prosecution evidence contained major contradictions; A that in their 5.342 statements no question was put to them in respect of the demand for ransom and as such for all the above reasons the prosecution had failed to prove its case against the appellants Abdul Razzaq and Ghulam Hyder beyond a reasonable doubt and thus for all the abOve reasons the impugned judgment should be set aside and the appellants Abdul Raz'zaq and Ghulam Hyder acquitted.

12.In support of his contentions, learned counsel for the appellants Abdul Razzaq and Ghulam Hyder placed reliance on the case of Muhammed Akram V State (2009 SCMR 230)

13.Learned counsel for the appellants Ali Hassan and Wazir Ali adopted the arguments of appellants Abdul Razzaq and Ghulam Hyder and further contended that there was a delay in lodging the evidence ._, i-l FIR; two other co-accused had been acquitted on the same there was less evidence against therri; that the only allegation and |r st Ali Hassan was that he provided meals to the co-accused o wapl;no evidence against Wazir Ali; no recovery was made from e under .9 Hassan and Wazir Ali had'been acquitted of the offens ,Yy

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S.13 (d) of the Arms Ordinanceland as such for a-ll the above ,'easons the prosecution had lailed to prove its case against- the appellants Ali Hassan and Wazir Ali beyond a reasonable'doubt and thus for all the above reasons the impugned judgment should be set asicle and l.l.re appellants Ali Hassan and WaZir Ali acquitted.

14.In support of his. contentions, ,learned counsel [crt: l1r.e appellants Ali Hassan and Wdzir Ali placed reliance on l-lre cases o{' Azeem Khan and another v. Mujahid"Khan e,rr.r! ot.hers (!l[)1,6 SCMR 274), F.aheeur Ahmed.'Farooqui v" The State (2oO8 SClNIli ,' 1572), Abdul Jabbar and others v. The State (2O17 PCr'.l^r .l 6ll), Muhammad Tufail v. The State (2013 SCMR 763), I\Iooral ali.as Nooro v. The State (2015 YLR 1911), Khalid an-d otb.ers'rr^'ftrc State (2016 YLR 2589), Muhammad Akram v. Thc State (2OO(-) SCMR 23O), Muhammad Dawood and B others rr" Tho State (.',lO tii PCT.IJ 316) and Ghulam Qasim and others v" The Fitate anrl others (2016 YLR 687).

15.The learned A.P.G. fully slrpported the impugnedjudgtnenl- ancl contended that based on the evidence on record the prosectrtir-rn had proved its case against the all the appellants beyond a reasonable doubt and as such both of the a-forementioned ap;reale chor-rk1 tre dismissed. l

16.We have considered the arguments of learned cot-tnsel, lrerr-rserl the record and the case law cited by them at the bar.

17.At the outset we are of, the view that in a kiclnappi.ng lbr ransom case a delay of a few days in registering the IrlR is nol, fa l-al l-o the prosecution case as usually in such. cases the parents zu-e frantically looking for their missing child before deciding I,o r:egisl-et' an FIR as a last resort once the realizatiort finally seLs in thal- their child is not with a friend or relative and is missing. In this case l.he FIR was registered promptly,. once the eomplainant receivecl the atleged ransom calls. It is also i. or. view not relevan.rt thaf, twr., o[ lhe I other co-accused were acquitted. This is because their case is ott a different footing to the appelhnts especially Abdul Razzaq. Tlrev rrere not named in the FIR and were not arrested dr-rring the recovery o[ \\ G H Co e abductee at the grave yard. Apparently they esca.lred ancl therr es were provided by the dther then 'hrrested co-a.ccr-rber1 a-ncl lr o re is.,,.little, if any, evidence to cotnect them to the offense tbr \il

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which tJrey were charged let alone to proqe it agairest th.em betroncl- a reasonable doubt

18.Out of the 4 who were bonvicted in this case (Abdrrl fta"r,raq, Ghulam Hyder, Wazir Ati and Ali Hasshn) in or-rr rriew l-lre nrt-rsl- evidence for kidnapping rests against Abdul Razzag.'I'his is hecause he was named in ttre FIR, ,the complaint's own eviclence is that according to his wife it was his servant,.Abdul Razza.g who left the house with the minor abductee to get juice ancl l1r- v/ac allegerlly found and arrested with the abducted minor boy.

19.The question therefore,,.appears to us to be baserJ. on the particular facts and circumstances of; this case urhethel the prosecution has been able to prove beyond a reasonahle doubi through the evidence on record that Abdul Rar,zaq kiclna6,pe<-1 t-he boy and demanded a ransom io, t l" release ancl what r-ole, i[ arlJr, ai] per the evidence the other appellants may have played in the olferrse.

20.It is true that the complainaflt states that it rvas Lris r;errrattl- Abdul Razzaqwho left his house with the abductee however this was hearsay evidence provided by his wife who did not give evidence at trial. It may be true that he was not challenged abor.-rt this asper:l- ol' his evidence during cross exarnination and as lrer the (irrclitro ol' tlrc

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trial court he is deemed to have accepted the allegation ever.r l.hen however it seems strange to us that if Abdul Razzak rlid lcr.rlnap ttr.e abductee why did he allow hirriself to be the last persou seeu wilh the abductee especially as he was known to the complajnant amcl his q,it'e and must have known that in Such circumstances l.tre rrrtsl'rieic,n would fall on him. Surely, an abductor as a matter of sirerple cor)i.r.rtLrr). sense would try to conceal his identity or,at least ensure l-hat ho uras not readily linked to the abducted chitd. For example, i1 Abdrrl Fiazza.l< did in fact play a role in the abduction why did he oot relu:!'n llorne and simply say that someone else had taken the chilcl by force or that the child had disappeared while he was busy goss\ring with friends. ,r In our view his action of leaving with the child, if tte al-'rdrt,:terl tlre child, in plain sight of the complainant's wife does not see -r t-r-r apr;real to reason or common sense. At best in our'view it can be saic-l f.hat l-r.e GH the last person seen with the minor before his abdr-rctiotr base,l evidence of the complainant who whs not an eye r^rit'11s55' flvsn iJ- mplainant's evidence iis to be aciepted as u/e will cot-ne to o ere appears to us to, be a major contradicl-ion in it.. Other ,i, \

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things whioh do not seem to;

?ppeal to reJson or cofiu,,on sense a.r:e the fact tJ:at the grave yard was surrouredecl by li-onr arrything between 15 and 50 police omt.r" as per the evidence of ll-re 1:rolice wrtnesses (Pw 3, 4, s, 6,and z) yet 6 out of the 10 accuserJ rrrarragecl to escape without a shot Ueihg firea by either side. In tlris resl,ect reliance is placed on Muhammad Asif v" The Stato (2Ot./ SCMR a 486)' The number of the police.oflicers at the scene also greally var-ies between PW's 3 to7. It is also,,noticeable,,rtleat no entry !ua.r nrA(1e at PS Hatri of the raiding party flespite the raicl b"irrg .^,,ri..I or rr in the jurisdiction of PS Hatri. Appellant Wazir,,also had a Lirear.nr lrrrr_ r.licl not attempt to discharge it at ttre police while trying to escape- sonre of the eye witness police who made the recovery of the abclrrctee ancl were present when the appeliants were, arrested were not atrle to recognize the appellants in 'court (pW 3 ancl 6). All;h.crrrgh the abductee did not give evidence since he was only arrorrt 2 a.r.trl.a half to 3 years old in our view this puts an addEd onus o11 the pr.osecution to ensure that the kidnappers *"." iclentifi.ecl" A pa.rt tr.orrr "o*""try Abdul Razzaq according to thg evidence .none of Lhe other alleged abductors were known to the complainant, his wife or brotrrer anri ,o identification parade was mad! of them since it was q$sumedl r',Lat Abdul Razzaqacting alone abducted the rninor boy. A 2l . Turning to the major c'Qntradiction rnentionecl earliel It-r l:r,is evidence the complainant specilically states that, "I was called by Inspector Javed at easimabaci pli anrl wars roki that my son was recovered and I shoUld take hiur. I rverrt to pS Qasimabad and received:my child. I produce such receipt as is Ex. 130-B, it is same andl bears my sigrrature. Inspecl.or. ilicl r:rot tell me as to how he'had .".olrlr"I my c,hilcl saying l.l,rat I should be happy that my son recovered,,

22.This statement is contradictory to all the official police pW,s who were a part of the team involved in the recovery of the abdrrctee and the memo of arrest and recovery whibh specifically states that the complainant and his brothei were both'present at the t.irrre r:l'the ,r arrest and recovery of the abductee. Accoiding to p,tA/,s l.t,r+,15,,, o,,,,., ,, the complainant accompanied them to recovel- his abdrrcterj r;on vvlro recognized him. It is settled law that minor contraclictions l-retwee.

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witnesses whi ch is natural over the course of time will not ellect the l{ osecution case but mqior ohe's will damage the prosecut-iorr r:ase o o ?, d in our view this is a major contradiction. In this respect ,elbrence i+ v\

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may be made to the case of lakir Khan,& others rr" Th,e State (1995 scMR 1793) ,1,

23.Furthermore how "* *rl beteve the entiret5r of the cor:.plaint,s evidence in the face of such a,material contradiction especialhi a.s he is in effect an uncorroborated'non eye witness to the abcluctiorr ol tris son byAbdul Razzaq.

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24.In addition, all the aforbsaid official responclerets sr:ale r]rar- the complainant's brother accomdanied them along with tLre ct-rnrlrlairrant to the grave yard where the abductee was rccoverecl horvever. he .vas not called as a prosecution witaess. The, question therelbr..e ar.ises whether he would have supported the police version of'the alrrft-rctee being found with the active involvement of t-l.e comprainant and i^ his presence or if he would have supported the rrcr:si(rtr that both he and the complainant had no role "o.rrp1^i.rr..rts to pl.ay i* r-'Le police recovering and being present when the abductee was recover:ed. It thus cannot in our view be ruled out that ,o such police 6.;.rera r.icrrr took place at tl.e grave yard and the abductee was *ot recoverecl at- the grave yard arrd the appellant's role in tJle kidna-pping may have been foisted on them by the police especialll, a5 1-hsrs rxras 1ro independent mushir. This wris despite accorclir-rg to sorrre p1/l/,s tl-rere { were some public nearby and,even othefwise whilst acl,ing on spy information the police had mofe than enough time ancl opportr-rnity to take independent Mushir's with them as the recovely was allegedly made in day light hours and ih this respect according to sonre pllt/,s they even had taken tl:e informant with;them at the tinre of the recovery thus there was a clear violation of 5.103 C:r.l:,C irr ttris respect. ' ,

25.It.is true that police witnesses zu:le as goocl a_rr any ot-her witnesses and that in this case they are largely corroborative of each other but when we look at the facts and circumstances of this ca.se in its entirety we consider as discussed below that the benefit of the ,t doubt is likely to come into play

26.Furthermore, if someone'is kidnapped there is usually a motive Ior such kidnapping. In cases of kidnapping for rausonr the rnotirrc is \GH C the ransom money. In this case however thgre seems to be ver\r lit.tle vidence that any ransom demand was in fact made^ 'I'he only t( o o idence on this aspect of the tase is the uncorroborated account ol ", e complainant whose evidence in light of the rnajor cor rtr-acl ictiorr irr

-l ?g his evidence, as discussed a,bove, is now in our view to a certain extent in doubt. Forr example,.rregarding the ransom, the complainant did not state that he recognizeil the voice of any of the apperlants (not even Abdul Razzaq) during the terephone conversations when the ransom demands were allegedly made, there is no telephone CDR data to show that any call was actually made to his mobile pt orr" Uy any of the appellants, no mob,e phone was recovered from any of the a appellants at the time of their arrest, there is no confessional statement from any of the appellants and apparently no money was being arranged by the complainant let alone exchanged hands after the alleged ransom demand. Thus, in our view there is harclly any evidence to show that a ransotn demand was made let alone by whom. Apart from the ransom money no other motive has been shown as to why Abdul Razzag or any of the other appellants may want to kidnap the complainant,s son.

27.Wit,l- regard to the kidnipping let alone the ransom aspect we are acutely aware that it is a wpl setfled principre of criminal raw that it is for the prosecution to prove its case against the accused beyond a shadow of a doubt a.d if there is any doubt in the prosecution,s case the benelit of such doubt, as set out i, th. pervez v. rrhe state (1995 SCMR 1345) must go to the appellant """. bf rariq as of right as opposed to concession' However in considering this .{- aspect of the case we are also guided by the case of Faheem'lAhmed Far,6oqui v state (2oog scMR 1572) where it was held as under at p. 1526 at para D

"It needs no reiteration that for . the purpose of giving benefit of doubt to an accus".i p"."trr,'more th# one infirmity is not- reasonable doubt .required, a single infirmity .r""tiog in the mlnd of a reasJnable ancl -mafe* prudent mind re-garding the truth of tn" the whole case doubtful. Merely because the"n"rg- burden is on the accused to prove his'innoce"nce it does not absorve the prosecution from itS duty to prove its case against the accused beyond any shadow of douUt."lbold addedi 28. In the recent supreme Court case of Hashim easim V State (Criminal Appeals No.115 and 116 of 2013) dated 12ft April2OlT the Hon'ble supreme court in respect of the benefit of cloubt held .v as under at para 20: '

iGH "Even a single doubt, if found reasonable , would entitle the accused person to ac quittal and not a combination of several a{ o doubts is bedrock p rinciple of justice. Reference may be made to the case of Riaz Masih Mithoo v. The State (NLR 1995 Crl. 694f."

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29.In this case for the reasons discussed above primarily being the trtaior contradiction in the complainant's story that he playecl no role ir-r the recovery of his son and was not present when his son was recovered which was the opposite of the police version, the lach of appeal ability to reason of sorii! aspects of tfie police case, the faih-rre of the prosecution to call the biother of the complainant we are of the view that when the evidenbe id reaa 44d cpnsidered in totality there would be a reasonable doirbt un a reasorlable and prudent person's mind that the appellant Abdul'Razzaq.was not guilty of the offense of kiduapping let alone kidnapping for ransom for which he has been convicted by the trial court.

30.Once we have reached this conclusion in respect of appellant Abclul Razraq it follows that tt-re same conclusion must apply to the other three appellants (Ghulam Hyder, Hassan Ali and Wazir Ali) -r'.

against whom there is hardly any evidence. In essence it seems that the only evidence against: them is that they happened to be with appellalt Abdul Razzaqwhen he was arrested. No one saw tl:rern play a role in abducting the minor:boy and there is no evidence that ar-ry ransom demand was even made let alone by them. Thus, the benelit of the doubt is also applicable to their case ,

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31.Thus, for the reasons'' discussed above we hnd that the prosecution has failed toi provp its case beyond a reasonable doubt against the appellants (Abdul Razzaq,i Ghulara Hyder, Ali Hassan and Wazir Ali) and that the said appellants ale entitled to the benefi[ of the doubt and as such set aside the impugned judgment and up hold the appeals. , ',

32.As such the appellants (Abdut Raz,zaq, Ghulam Hyder, Ali I-{assan and Wazir Ali) are all hereby acquitted and are ordered t-o be irnmediately released by the concerned jail authorities in the a-foresaid cases unless they are in custody in respect of some other

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.) These are the reasons for our, short order dated O3-O5 2Oi7

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tLing all t-he aforesaid appellan ts in this case; rL SD,/ , I.IoIIIIAUULT,AH .PHULP{r'I@ o o JUNGT, SD/ Muli,il',lul,tu Kli[HI[l KHrrN AGHri

rabad / . Jlrllil d: 03-05-2017 H ciii.,t].rIE, 'Ist Bb irUU C0137

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