' IJAZ-UL-HASSAN KHAN, J.--- This criminal appeal, with leave of the Court granted on 29-2-2008, arises out of judgment dated 3-10-2007 delivered by learned High Court of Sindh, at Karachi, whereby Special Anti-Terrorism Appeal No,4 of 2007 filed by appellant has been dismissed and judgment dated 22-2-2007 passed by learned Judge, Anti-Terrorism Court, Karachi in Special Case No,32 of 2005 has been maintained.
2. The prosecution story, as given in the F.I.R. Registered on the statement of Rasheed Hamdani complainant, briefly stated is that on 30-9-2005, Mst. Daulat, P.W, along with her son Fahad Hamdani and two daughters, was present in her Flat No,209 in `Gulshan-e-Iqbar, Karachi, when at about 3-30 p.m., someone knocked at the door. Mst. Daulat responded the call. Fahad Hamdani also followed her. On opening the door, they saw a person wearing `Shalwar"Qamiz' standing outside. He introduced himself as Faheem Ahmed Farooqi, D.S.P. Crime Branch, Karachi and stated that Fahad Hamdani was required in connection with interrogation of a case and he should accompany him to the police station. He took Fahad Hamdani in a private car. After two hours, Mst.
Daulat received a telephone call from Fahad Hamdani telling her that the police wanted to involve him in four murder cases and she should contact her brother Muhammad Yaqoob (absconding accused) for his release. He also stated that Faheem Ahmed Farooqui, demanded Rs,8,00,000 in this regard. After sometime Muhammad Yaqoob Contacted Mst. Daulat stating that the police demanded Rs,8,00,000 for the release of Fahad Hamdani and the amount should be arranged. She informed her husband complainant Rasheed Hamdani, P.W., serving as Vice-President, at Habib Bank Plaza, Branch, Karachi, about it. She also narrated the story to the officials of Citizens Police Liaison Committee. (CPLC) at about"12-00 midnight, Ahmed Chinay and Najeeb Danawala, officials of CPLC came to her residence to apprise them of the situation. In the meanwhile, Muhammad Yaqoob (absconding accused) contacted complainant and told him that a deal was made and the amount was reduced from Rs,8,00,000 to Rs,2,00,000 and Altaf Hussain (acquitted co-accused) will collect the amount. Altaf Hussain visited the residence of complainant to receive the amount.
The complainant informed the police about it. The police arranged a raiding party. On arrival of Altaf Hussain, where CPLC officials were also present, the complainant handed over an envelope containing cash amount of Rs,40,000 and a cheque of Rs,1,60,000 to Altaf Hussain. On leaving the flat, the CPLC officials police and complainant followed Altaf Hussain. On reaching under the bridge of NIPA Chorangi, Altaf Hussain got down from the motorcycle and delivered the envelope to the person sitting on the driving seat of the car parked there. Thereafter, Fahad Hamdani alighted from the said car and sat on the motorcycle with Altaf Hussain. They were chased and apprehended by the police. Fahad Hamdani took them to a bungalow known as "Fatima Sunrise City" and informed the police that he was confined in the said bungalow. The police recorded statement of complainant, which was incorporated in the F.I.R. No,506 of 2005 dated 1-10-2005 under section 365-A, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997.
3. The police prepared Mashirnama of the place of recovery and place of abduction of Fahad Hamdani. The police also visited the office of Faheem Ahmed Farooqui and secured the interrogation report. The appellant was arrested and produced before a Magistrate who carried out an investigation parade in Family Court premises. Mst. Daulat and Fahad Hamdani P. Ws.
Identified appellant to be the culprit. After usual investigation, police submitted challan in the Court against appellant and acquitted co-accused, to face trial.
4. At the trial, the prosecution in order to prove its case produced as many as 10 witnesses in all.
The appellant and acquitted co-accused in their statements recorded under section 342, Cr.P.C.
Denied the prosecution allegation and claimed to have been falsely charged. The appellant stated that he was placed under suspension on 27-9-2005. He was not feeling well, as such, he proceeded to his native place `Draza Sharif' Taluka Gambat, District Khairpur. His condition deteriorated and he was shifted to Taluka Medical Science Hospital Gambat, where he remained under the treatment of Dr. Ghulam Rasool Memon. The medical certificate was sent by his brother Neeem Ahmed Farooqui to Deputy Superintendent Police, Industrial Crime Unit (ICU), Investigation Zone Karachi. He also stated that he was not arrested by the police on 20-10-2005. In fact he voluntarily appeared before Deputy Superintendent Police. Ch. Aslam on 19-10-2005. The appellant and co-accused neither examined themselves on Oath as required under section 340(2),Cr.P.C. Nor produced evidence in their defence.
5. Learned Judge, Anti-Terrorism Court, Karachi on having completed the trial vide a judgment dated 22-2-2007 extended benefit of doubt to co-accused Altaf Hussain and acquitted him while appellant Faheem Ahmed Farooqui was convicted and sentenced to suffer imprisonment for life.
His property was also forfeited to the State. He was, however, given benefit of section 382-B, Cr.P.C.
6. Appellant feeling aggrieved thereby, preferred appeal which was dismissed by a learned Division Bench of the Sindh High Court, at Karachi and maintained the judgment of the trial Court as detailed here-above.
7. We have heard Mr. Muhammad Ashraf Kazi, learned Counsel for the appellant and Mr. M. Qasim Mirjat, learned Additional Advocate-General representing the State. We have also re-examined the entire evidence with their able assistance.
8. Learned counsel for the appellant empathetically contended that ingredients of offence punishable under section 365-A, P.P.C. And section 7(e) of the Anti-Terrorism Act, 1997 are not attracted in this case; that evidence brought on record is full of contradictions and inconsistencies and is not sufficient to connect the appellant with the commission of crime; that identification parade has not been conducted fairly and properly and that the evidence has been disbelieved qua Altaf Hussain co-accused whereas, the same set of evidence has been made basis of conviction of the appellant, resulting in gross miscarriage of justice.
9. As against that, learned Additional Advocate-General appearing on behalf of the State, controverted the arguments of learned appellant's counsel and supported the impugned judgment maintaining that the learned trial Court as well as learned High Court on the appraisal of evidence and material placed before them came to the conclusion that appellant was responsible for the crime. Their decision on the question of facts not open to challenge in this Court, in the absence of any illegality, misreading or non-reading of evidence.
10. Having considered the available evidence from all corners, we are of the view that prosecution has miserably failed in its primary duty to establish the case and bring guilt home to the appellant beyond reasonable doubt. The evidence produced by the prosecution is highly discrepant and suffers from serious infirmities and contradictions and except the bare allegations in the F.I.R., there is nothing incriminating on the file to connect the appellant with the commission of crime. It may be observed that neither Fahad Hamdani, alleged abductee has been recovered from the custody of the appellant nor there is evidence regarding passing of the ransom amount to the appellant.
The mere assertion; of the complainant that appellant had a hand in the affair and he is author of the crime, without a positive attempt on his part to substantiate the same, is of no consequence.
We find force in the submission of learned Counsel for the appellant that no cause of abduction or kidnapping is made out and ingredients of offences punishable under section 365-A, P.P.C. And section 7(e) of the AntiTerrorism-Act, 1997 are not attracted in this case. Fahad Hamdani P.W.
Clearly stated at the trial that appellant took him in his car to his house, located in Fatima Sunrise City, Karachi. He was sitting outside the bungalow within the compound for about 35/40 minutes where Chowkidar was also present. From the above alleged acts of the appellant, it is quite clear and evident that the alleged detention of the abductee was to extort illegal gratification and not the ransom amount. So far as identification parade is concerned, same is held after six days of the arrest of the appellant and without satisfying the requirements of law.
11. Adverting to the contention of learned counsel for the appellant, we find that on the available evidence co-accused had been acquitted by the trial Court, whereas, the same set of evidence against the appellant has been believed and relied upon, against whom no appeal has been filed neither by the complainant party nor by the State. When attention of learned Assistant Advocate- General was drawn to this aspect of the matter, he had no plausible reply to make.
12. It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful.
Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt.
13. In view of the above discussion, while extending benefit of doubt in favour of the appellant in the given facts and circumstances of the case, he has been found entitled to earn acquittal.
Consequently, the appeal is accepted, the impugned judgment dated 3-10-2007 of the High Court of Sindh, Karachi, is set aside and the appellant is acquitted of the charge. He shall be released from jail forthwith, if not wanted in any other cause.
' These are the detailed reasons of our short order dated 23-4-2008. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.