Syed Sadam Hussain (Appellant) VS Faisal Shah (Respondent)

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c o U R T o F S N D H c R c U T COURT HYDERABAD B e f,o r M J u S t c e A b d u M a alik Gaddi M J u S c e M o h a m m ad Karim Khan Agha

C r AC q A p p e a N o. D 1 6 of 2 0 1 8

S ved S a d a m H u SS a n

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F d s a S h a h a n d o h e (S

Through Mr. Kashif Ali Lakho, Advocate

Nene present for respondents No.1 to 3

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The Through Syed Meeral Shah Bukhari, Additional Prosecutor General

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'. Prg-cisely, the facts of the prosecution case are that; ,*,-lil ,, ;,', ., ,',t,:

..': ". 'r'l'On 16.11.2015 complainant Syed Sadam Hussain Shah lodged ,FlR at Police.Statioh Jamshoro, alleging therein that on 09.'1'1.2015, he anQ his father Taj Muhammad Shah were present in their house when at 02:00 pm Syed Faisal Shah made phone call to him asking to come

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".at 'llT Morr'l super highway for some work. The complainant after informing his father reached at "T Morr" al02.45 pm and saw Faisal -Shah, Syed Qurban Shah and their friend Shamsher Ali Khoso. Faisal rl Shah asked the complainant that since he had asked for job, and .ifurther asked him to accompany them for providing duty and took him , in a rickshaw and brought him to a house at Sikandarabad Kotri where IheY confined the complainant. Qurban Shah and Faisal Shah took out : pistols.and asked the complainant to keep quiet and not to disclose ' anything to anyone or else they will murder him, thereafter, accused , tied arms and legs of complainant and taped his mouth and went away. ' lt.is further alleged that after sometime they again came and from the ,' Phone of complainant talked with his father and demanded ransom for ;'elease of the complainant. Thereafter, on 1 2.11.2015, complainant ,, wflile taking advantage of absence of accused slipped away and came '1"to his house and disclosed the facts to his father who reported the ', matter.r Nekmard, but to no avail, therefore, on 16.11.2015 to { complainant went to P.S and lodged his FIR in the manner as stated above further disclosing therein that his phone etc is still with the :: ?CCUSed."

3,,., ' After usual investigation, challan of the case was submitted before the cQncerned:,coL[t. At trial, learned trial court framed charge against the aCcUSed named above at Ex.14, to which they pleaded not guilty and claimed ;to bg{iqd vide their respective pleas at Exs.15 to 17.

4jjl .'"iTlle progecution in order to prove its case against the accused persons Fxamined 07.,witnesses. Then prosecution side was closed at Ex.26.

Thergafter, staterlents of the accused persons were recorded under . ,j -'.

s'ectipn,,342 Cr.P,C at Exs.27 to 29, wherein they denied the allegations of sved Faisal shah stated that he has dispute on {l.ff'lffifjt"ffi,tpH:lli"1l-;,fcoused ,, .:1",,,, -r{l.atrimenial bffairs and over a plot with Syed Taj Muhammad Shah who has ;.. ,.j;il lals."Jy , got.. registgred present F.l.R. through his son. While accused :;:t:'ti Sfiamsher: Ali Khoso stated that he has been falsely implicated byrthe '.i complalnant at the in_stance of his father as he is friend of co-accused Syed is plose .relative of the complainant and have dispute with , F.ilFl,,S,Iah,whQ .,tfrpm,'eicused QurbanAlishah stated thathe has been involved in this case .Olg,trl'qr;ity..However, neither they examined themselves on oath nor led any defense evidence.

trFl court after hearing the learned counsel for the parties and !r' ,'i,The aQpe.iQigg the, evidence available on record, by the impugned judgment aeqUitted, :ir,r;

the aqqUsed / private respondents as stated in the concluding ' t.

paragraph of,the impugned judgment, Hence, this acquittal appeal has been filed by the appellant.

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;Learned counsel for the appellant contended that the judgment passed i by-the learned trial'court is opposed to law, facts, equity and the reasons for acquitting j._ the private respondents are artificial, vis-d-vis the evidence on rq,cord; lthat the'prosecution has fully proved its case against the private rgspqqdents by producing evidence on all material points; that the trial court h.as passed the impugned judgment in a hasty manner without applying its ju$igjat grounds on which the trial court proceeded to acquit the lind;,tha1the private,-fespondents are not supportable from the evidence on record. He SUbmitted that the private respondents have been directly charged with the c,g" misSion of the offence and that the discrepancies in the statemenls of witneSses are not so material on the basis of which respondents could be acquitted. He further contended that the learned trial court has based its . findings of acquittal merely on the basis of minor contradictions on non-vital ' , points in the statements of prosecution witnesses and that the prosecution ,',.. eVidence has not been properly appreciated. Lastly, he prayed that this ':r criminal acquittal appeal may be allowed as prayed. ' ' B:. On the other hand the learned Additional Prosecutor General has s_Upported thg impugned judgment passed by learned trial court by arguing At ;![g.. impugned judgment has been passed after due appreciation of evide nqq on record; that the incident was allegedly committed on 09.11.2015 ereas it wag reported at police station on 16.11.2015 with a delay of 07 satisfactgry. explanation has been furnished, as such, false implication of the private respondents with due and consultation on this ground alone cannot be ruled out; that plainant was called and confined in captivity by the vate respondents for about 03 days and on 12.11.2015, he while taking anta q e of the,absence of accused / respondents slipped away and came delay of 0 4 days, which has not been explained satisfactory. During course of a;gunlenls the leamed APG has read the entire evidence of the prosecution witnegses. He further contended that the learned trial court while rendering lhe,eqgUittal

iudgment has attended to all the aspects involved in this case and as chJlg apneal against acquittal should be dismissed ve heard the learned Counsel for the parties and perused the evidence so brought on record alongwith impugned judgment with their able assistance

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"Prosecution' case mainly rests upon evidence of i

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Khoso also came at same place and asked for ransom but he asked

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him to first hand over his son and thereafter, he received a phone of his son that he has been released. He asked him to come at home by hiring,..,rickshaw and then his son came at his home. ln his cross examination, PW Taj Muhammad admitted that accused Qurban Ali S[ah is his real cousin while accused Faisal Shah is son of his cousin 3nd that being very close relatives they had visiting terms with each other';'.He deposed that however, there was dispute between him and l- aqgusgd Faisal Shah and Qurban Shah over giving education to his daughlers which has annoyed the accused.

Another witness examined in this case is PW Muhammad Mithal ti.zq. According to prosecution case, this witness had rented out the pfgmi$eg,,to accused where the accused kept complainant after kidnapping him. ln his cross examination, he stated that on the ground flqpr ot.the said premises he was residing with his family members and some women were also residing with accused on upper floor. He further stated that there is only one room on the upper floor which was rq;rled out by him'and during the stay of accused he or any member of his family never heard cries from upper floor and that he is chowkidar Of hiE mohalla and had not seen accused bringing the complainant in the said premises as it is not believable that in a room where accused were fesiding With Women abductee was also confined in the same room and that too without knowledge of PW ltluhammad Mithal Ex.24 Who Was not only residing with his family on ground floor of the said premises but also was working as chowkidar of his mohalla. Beside complainanUabductee has not stated that beside accused some wgmen . were . also residing in the room/premises when he was confined.

,: Above evidence of this witness falsify the complainant. i,f ',1, : ,':',11.t:1',-', 1i;: ,i, ,fi1[hough PW Taj Muhammad, father of abductee neither in his 16'l .,. _ .'t, 1 ..r.r, . cr,P.c. 'statement nor in his deposition Ex.19 have stated that he rl,,,trq:iii..,6*:Hg*ri*Xl,1"ry:gffio1ded,;talk* ".:.,:l, msfls...between him and accused on phone, during 'ii;'i; $,;,# 1r,, 1 i.'g';':rr :r cqptivity of his son but after a month of registration of FlR, 162 Cr.P.C. t '1 statement of PW Taj tt/uhammad Shah was recorded wherein he , :j,:,.., ,, are also produced by the LO. lnspector Ghulam Akbar Chandio Ex.21.

. ir.,.,:,;..:: , have no evidentiary value in the eyes of law and at second place it may i,',',,,', r i:"ril:l ::';fl[?*?lH":?:"]:'J',,:,?JT:,',iJ:""::T,],*':*""fl .,.): i '.,: recorded such conversation and then handed over his mobile phone to a , , , :' Taj lVluhammad Shah as admittedly neither mobile phone of . ,t ,: complainant Sadam Shah from which accused had allegedly talked j:: 'r;.'- with PW Taj Muhammad Shah was recovered nor mobile phone of Ta.1 .l Muhammad Shah was recovered. ln such a situation, USB its : i " il.., l.. ..,1 r -'" transcript, r..

CDR etc are of no help to the prosecution Apart from that :: :',:i', .: , FIR is also belated for about seven days of incident and four days after ;": i thp regovery of abductee Sadadm Hussain Shah for which no plausible i:' r;.explanation is furnished"

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1|: ., ft transp.ires from the evidence that the abductee (complainant) was 24 years of age however when he managed to escape he waited 4 days before regiltering the F.l.R. which has remained unexplained thus since it has come on record therg was dispqte and enmity between the complainant, the cgmplainants father and the accused the chance that he made a false case qannat he rqled out; this is more so since both the father and son who were thp main witnesqes in there case made dishonest improvements in their initial stAtements by making supplementary statements a month after the event and as such there evidence cannot be safely relied on. ln this respect reliance is p[aced on the case of Mohammed Mansha V State (2018 SCMR 772)', thal the complainant and the other main eye witness were also closely related being father and son and there are major contradictions in their evidence which means that it cannot be safely relied upon. For example, the abductee statesrthat the'iansom money was brought to the house where he was whilst his father states that he took the ransom money to a petrol ,ldetai,1ed ppmp. ln this respect rbliance is placed on Basharat Ali v Muhammed ', Safdal (SCMR 2017 1601); that the father could not prove how he obtained the ransom money which was not paid; that the abductee some how qranaged to e-sgape despite being tightly bound, that the ab ductee WAS allegg{ty,6 e t in'a room with some women but he did not mention this i n his statemen t and even the landlord who lived in the bottom part of the h ouse ' 'rl'Ifansom calls to any of the accused or mobile phones recovered; that. the .. the : . important tape evidence was not mentioned by the father in his 5.161 Slalement and in essence the whole of the prosecution case and evidence : dqes,notappeal to reason. ln this respect reliance is placed on Haq Nawaz v ,.,.;i.,,:,: Slate (2O18 SCMR 95); that in our view the trial court has rightly found the . .,,u,'-._pfgqecutiqn.evidence not to be either reliable, trust worthy or confidence Insprnng

1..Q.r-.,Tfrus, keeping in view the extremely narrow scope of appeals against acquitta! 3s: ? matter of law as mentioned above, the fact that the repRondents are entitled to the benefit of the doubt and the double presumption of innocence having again reviewed the evidence against the above we consider that the ', : 'i' ,. .i,f. rf,

judgment is based upon valid and sound reasons and has rightly acqultted

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ZgL their acquittal is

announced to day

length. They hbve recorded later on, longwith pending

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