' WAQAR HASSAN MIR, J.---Through this appeal, the appellant calls in question the judgment, dated 9-9-2005 passed by the learned Judge Anti-Terrorism Court, Faisalabad, whereby he has been convicted under section 365-A, P.P.C. Read with section 7(e) of ATA, 1997 and sentenced to imprisonment for life and forfeiture of property.
2. The prosecution case as disclosed in the F.I.R. Is that on 17-2-1997 the complainant Dr. Tariq Sardar, Assistant Director of Anti-Corruption Establishment, Faisalabad was on way to Lahore from Faisalabad on his private Car No, 9871/FDQ (Toyota Corolla) Model 1993 along with his brother Aamer Aziz, mother Mst. Khurshid Sardar and driver Munir Ahmad. It was about 6-30 a.m. That they reached near Majeeda Textile Mills, Khurrianwala and were followed by a Car No,7070/PRQ, white colour (Honda Civic) Model 1995 boarded by 4 persons, one of black colour, stout body height 5'-9/10" aged 27/28 years, second of whitish colour, smart body height 5'-8" who was driving the car and the remaining two were also of whitish colour wearing Shalwar-Qameez and were aged about 22/24 years; they all were armed with fire-arm weapons and stopped the car of the complainant at gunpoint; two of the accused persons forced their entry into the car and the driver Munir was got seated by the accused persons in their own car and the car was got turned towards Khurrianwala, then towards Jaranwala Road and it was again turned on the left side from Tiwana Chowk. On reaching a drain, the accused persons got seated the complainant and his brother into their own car and they were covered with a `Chadar' and Munir Ahmad driver and his mother were released with the direction to reach at Shahkot-Nankana Road upto 3-00 p.m. With cash amount of Rs,5,00,000. Thereafter, they were taken in a sugarcane crop after the driver of about 1-1/2 hour where they were put under guard. At about 3-00 p.m. They were taken to the other side of the sugarcane crop and the accused persons moved towards pointed place which was an abandoned brick kiln falling in the area of Chak No,13 and got ransom amount from his mother worth Rs,5,00,000 and the accused persons reached there while boarding in the car belonging to the complainant and after boarding them, made their release at the drain at Nankana Road. They were also deprived of their luggage consisting of a bag of clothes. The accused persons moved towards Nankana and also released one Arif and his driver Ihsan who were taken back to Faisalabad by the complainant. The accused persons could be identified, if confronted. At this statement of the complainant, the complaint Exh.PA was drafted and case F.I.R. (Exh.PA/1) was registered under section 365-A, P.P.C.
3. After the registration of case, the complainant and his P. Ws. In their supplementary statements, dated 19-2-1997 nominated the accused Fayyaz alias Kala, Nasar Ullah son of Ahmad Din, Ghulam Sabir son of Atta Muhammad, Naeem alias Baba, Sardar alias Dari, Imtiaz Ahmad, Mushtaq Ahmad, Muhammad Ilyas, Arshad, Ghulam Dastgir alias Billa, Jamaat Ali alias Bagga (since all P.Os) and the accused/appellant Ihtesham-ul-Haq alias Ihsan, who was declared a proclaimed offender and was later on arrested on 10-2-2005 in this case. After investigation of the case, he was found to be guilty of the offence and challan against him was submitted before the learned trial Court.
4. The prosecution examined as many as eight witnesses in support of its case. The investigation of the case was conducted by P.W.6. Shujjat Ali, S.-I. And P.W.7 Habib Ullah S.-I.
5. P.W.7. Stated that on 18-2-1997 he was posted as S.-I. At Police Station Khurrianwala and was present at Adda Khurrianwala along with other police officials where the complainant Dr. Tariq Sardar appeared before him and got recorded his statement Exh.PA which was reduced into writing and the same was read over to him who put his signatures as a token of its correctness. He sent the complaint Exh.?A after conducting the police proceedings for registration of the case. He recorded the statements of the P.Ws. Under section 161, Cr.P.C. And prepared un-scaled site plan Exh.PE after visiting the place of occurrence. On 19-2-1997 he was again present at Adda Khurrianwala where the complainant along with P.Ws., came to him and recorded his supplementary statement. He recorded the statements of the P.Ws., under section 161, Cr.P.C. And took into possession Car No,9871/FDQ produced by the complainant vide recovery Memo. (Exh.P.B.) attested by the P.Ws.
6. P.W.6. Stated that on 4-3-2005 he was posted as Incharge P.P. Balochni of Police Station Khurrianwala, during campaign of proclaimed offenders, the name of Ihtehsam-ul-Haq alias Ahsan was also found there and when he made a search of him, it was known that he was confined in District Jail, Gujranwala in any other case. At this direction, Zulfigar A.S.-I. Got produced the accused Ihtesham-ul-Haq alias Ahsan before him on 11-2-2005 and got five days physical remand of the accused Ihtesham-ul-Haq alias Ahsan. Again four days physical remand of the accused was obtained from the Court. He got summoned the complainant of the case and during investigation, Ijaz, father of the accused Ihteshamul-Haq and his brother Muhammad Akram also joined in the investigation and they promised to get recovered the ransom money of the share of Ihtesham-ul-Haq alias' Ahsan accused. On 19-2-2005 he was interrogating the accused in the compound of the Police Station Khurrianwala that the complainant Dr. Tariq Sardar along with Zafar Ali, Aamer Sohail and Muhammad Farooq put their appearance; just after 15 minutes, the abovementioned father and brother of the accused came there and during that Muhammad Akram, brother of the accused, handed over an amount of Rs,100,000 consisting of 55 notes of Rs,1000 denomination P.1/1-55 and 90 notes of Rs,500 denomination P.1/1-55 and 90 notes of Rs,500 denomination P.2/1-90 which were taken into possession by him vide recovery memo. Exh.P.C.
Attested by the P.Ws. He prepared the un-scaled site plan of the place of recovery Exh.PD on which two marginal notes were in his hand. He also got recorded the statements of the P.Ws., under section 161, Cr.P.C. On the next day, the accused was sent on judicial remand in the jail.
7. The learned Public Prosecutor vide his separate statement after giving up the P.Ws., namely Danial Gill No,1848/HC, Munk Ahmad driver, Khurshid Bibi, Muhammad Ayub A.S.-I., Muhammad Aqeel No, 3045/C, Tariq Mehmood No,4073/C, Allah Rakha S.-I., Farooq Ahmad Inspector, Abdul Majeed S.-I., Muhammad Farooq, Zulfiqar Ali, S.-I. Being unnecessary, closed the prosecution evidence.
8. The statement of the accused was recorded under section 342, Cr.P.C., he was confronted with the prosecution evidence on the file against him at which he pleaded innocence and denied the case of the prosecution. The accused also denied the recovery of ransom money from him and at a question put to him "why this case against you and why the P.Ws., deposed against you" the accused replied that:-- "It is a false case, as per my perception committed by some unknown accused persons, the complainant party of this case especially P.W.1., Dr. Tariq Sardar and P.W.2. Amir Aziz (both brothers) were Executive Government Officers, the former P. W.1. Was an Assistant Director, Anti-Corruption, Faisalabad, the latter P.W.2. Was a Deputy Director, FDA, Faisalabad who had spread a wide net on a number of registered criminals in order to recover the alleged ransom amount, as a result of which P.W. I. Through his false supplementary statement nominated one Ihsan alias Amjad son of Safdar Ali caste Jatt resident of Dhonkal Sadar, Wazirabad as a co-accused of above said occurrence. The said Ihsan alias Amjad accused remained behind the scene so far in this case but the Investigating Officer P.W.6 with mala fide roped myself in this case as personated by above said Ihsan alias Amjad alleged accused, who is absolutely another person. My true and actual name is Ihtesham-ul-Haq son of Ijaz Ahmad caste Machi, resident of Jodhake Police Qilla Dedar Singh, District Gujranwala; in this regard I also tender in evidence an attested photocopy of trial Court order, dated 16-3-2004 in case F.I.R. No, 44 of 2002, dated 22-2-2002 offence under section 392/412, P.P.C. Registered with Police Station Sadar Hafizabad titled "State v. Muhammad Arif etc." as Exh. DB in which my name and address was the same as stated above by me. The complainant party malafidely in league with Investigating Officer (P.W.6) wanted to, for nothing, digest above said amount of Rs,1,50,000 which was produced any my above said relatives as a condition that P.W.6 will not assassinate (or murder) in a fake police encounter. It is pertinent to add here that the said P.Ws. Also extended threats of dire consequences to me and my above said relatives for not to report this incarceration to some high-ups of police department as committed by above said P.Ws.
Against me, as a result of which I am facing this cruel situation. I am innocent, mercy be done to me for the sake of Almighty Allah."
' However, after conclusion of the trial, the appellant was convicted and sentenced by the learned trial Court, as mentioned above.
9. The learned counsel for the appellant in support of this appeal submits that there is an inordinate delay of more than 24 hours in lodging of the F.I.R.; the appellant was named in the supplementary statement of the complainant and that too with the name of Ihsan alias Zahid son of Safdar resident of Dhonkal Tehsil Wazirabad District Gujranwala, whereas the appellant has the original name as Ihtesham son of Ijaz alias Safdar resident of Jodhake, Tehsil and District Gujranwala; the prosecution has not led the evidence according to the charge framed against the appellant; no identification parade was got conducted against the appellant; all the prosecution witnesses are interested; ransom money of Rs,100,000 was got paid through coercion and extending threat to the life of the appellant. It was further argued that the appellant has been substituted with the original accused and has been falsely implicated in this case just to make him a scapegoat and he is entitled to his acquittal from the case.
10. On the other hand, the learned Deputy Prosecutor-General has argued that the complainant along with his brother, mother and driver were abducted by the accused for ransom and ransom money of Rs,500,000 was paid to the abductors. The F.I.R. Was lodged on 18-2-1997 and just after one day the accused persons were named by way of supplementary statement of the complainant. The appellant remained fugitive from the law for a period of about 8 years; recovery of ransom money of Rs,100,000 as per his share is there; the evidence on the file fully connects the appellant with the commission of offence which was heinous in nature.
11. We have heard both the sides and find that the F.I.R. Is based upon oral statement made by the complainant Dr. Tariq Sardar before Habibullah Khan S.-1. At Adda Khurrianwala rather than the Police Station on 18-2-2007 at 3-55 p.m., and narrated the incident of 17-2-1997 taking place at 7- 00 a.m., against four unknown persons who had released his mother and driver in his own Car to arrange for Rs,5,00,000 by 3-00 p.m. And that they shall meet them at the given point i,e, dilapidated brick kiln where the said four accused persons released them purportedly after receipt of ransom money. No witness has made any statement under section 161, Cr.P.C. On 18-2-1997, rather it was pursuant to disclosure of the names, parentage, caste and residences of thirteen persons as culprits by an informer of the complainant himself that on 19-2-1997 the complainant had made a supplementary statement before the Investigating Officer wherein he had nominated four as abductors and the other nine as guards in the sugarcane crop including one known as Ehsan alias Amjad son of Sardar caste Jatt resident of Jodhake-Dhonkal Tehsil Wazirabad District Gujranwala, while the first four had already sent the complainant's mother and driver Munir in his own car to arrange for ransom money by 3-00 p.m. The complainant's mother and driver Munir have not been examined by the prosecution.
12. The appellant was not named in the F.I.R.; he seems to be a different person than the one Ehsan alias Amjad son of Sardar Caste Jatt resident of Jodhke-Dhonkal Tehsil Wazirabad District Gujranwala. The appellant has been implicated in the instant case by one Muhammad Arif son of Manzoor, who remained a co-accused with the appellant in case F.I.R. No,44 of 2002, dated 22-2- 2002 registered with Police Station Hafizabad under sections 392-412, P.P.C. It is not proved by the prosecution that the appellant was an accused in the instant case, any process had ever reached him at any point of time, he had abandoned his residence and that he avoided service of summonses or warrants in the instant case. The proceedings of abscondence against Ehsan alias Amjad, the instance of the Investigating Officer under pressure of the complainant and his brother, rightly have not been taken into consideration by the learned trial Court against the appellant, especially because the complainant's real brother P.W.2. Had candidly conceded in his cross- examination that they had gone beyond their jurisdiction to get various persons implicated and interrogated during investigation of this case. In the absence of any independent corroboration, mere abscondence has never been countenanced by the Apex Court as conclusive proof of the alleged built as held in Haji Paio Khan v. Sher Biaz and others (2009 SCM R 803). Moreover, the alleged abscondence has not been put to the appellant in his examination under section 342, Cr.P.C., hence it is of no legal effect as held in Ch. Muhammad Yaqoob and others v. The State and others (1992 SCM R 983).
13. Similarly, despite being summoned in connection with the instant case and P'. W.1. And P.W.2.
Purported to have identified him in the Court, no question has been put to the appellant to the effect that as per prosecution case he was actually Ehsan alias Amjad son of Sardar caste Jatt resident of village Jodhake-Dhonkal Tehsil Wazirabad and that he was known with the said names and parentage and that he was same person who was nominated in the supplementary statement (Exh.DA). Hence non-questioning under section 342, Cr.P.C. Despite having clearly cross- examined the P.Ws. With regard to appellant's independent name, parentage, caste and residence as well as different identity, is incurable and fatal to the prosecution case. Neither the appellant can be dubbed as one amongst the nominated accused persons in this case nor can his requisitioning be used for conviction; reference is made to Munir Ahmad alias Munni v. The State (2001 SCM R 56), Asif Ali Zardari and another v. The State (PLD 2001 SC 568) and Khushi Masih v. The State (1996 PCr.LJ 1787). The complainant admittedly was an Assistant Director in ACE at Faisalabad on the day of occurrence; his real brother was Deputy Director in FDA; they seem to be influential over the local police. The complainant's mother and driver were free persons and let at large in the complainant's own car to arrange for ransom money without either being accompanied by anyone of the accused or cautioned not to report the matter to the police or threatened with any consequence, rather they had been given a specified point to bring the ransom money where the assailants themselves had to meet them. Therefore, non-reporting of the matter to the local police by the complainant's mother and driver speaks volumes against the complainant's credibility in the matter of alleged incident. The lodging of the F.I.R. By an Assistant Director of ACE, Faisalabad not only after 24 hours of his release but also out of the Police Station and before his own acquaintance A.S.-I. Further renders the whole demonstration as extremely doubtful as held in Abdul Wahid v. The State (2008 YLR (Lahore) 248). Admittedly the appellant has been nominated as Ehsan alias Amjad with a different parentage, caste and residence through supplementary statement (Exh.DA). The supplementary statement has successively been held as a statement under section 161, Cr.P.C. Recorded during investigation, which would neither be equated with F.I.R.
Nor read as a part of the same. Reference can be made to Noor Muhammad v. The State (2008 SCM R 1556).
14. So far as the alleged recovery from the appellant's father and brother is concerned, it may be held that the appellant was admittedly in police custody and he did not at all make any disclosure with regard to the ransom money; he had not pointed out its availability or venue of its availability or the source of its production, rather the ransom money was allegedly brought by the complainant's mother and driver from Arif, Bank Manager and his driver Ehsan. None of all these four persons has been produced to identify the allegedly recovered amount as a part of the ransom money. The complainant and his brother having not witnessed the ransom money could not link the appellant with the same. Hence the recovery from the appellant's father and brother under the disguise to save the appellant from being done to death in a fake police encounter remains of no consequence as the same has neither linked the appellant in any manner with the commission of alleged offence nor the same was of any corroborative value. The motive admittedly is a double-edged weapon. It cuts both ways. If it can be a reason for a person to commit an offence, it can equally be a reason to falsely implicate a person in the crime. The ransom demand being not proved, the complainant's motive to falsely rope the appellant in this case exposes his mala fides and ulterior motives in the matter; reliance is placed upon Raza Muhammad alias Rajib Ali and another v. The State (2001 YLR 1743).
15. The supplementary statement (Exh. DA) itself is hit by hearsay as envisaged under Article 71 of Qanun-e-Shahadat Order, 1984 inasmuch as the names and particulars of all the accused persons were provided by the informer, who was neither associated with the investigation nor was interrogated despite being the complainant's acquaintance, but not a registered informer of the local police; he was neither cited as a calendar witness-nor has entered the dock under Oath in the trial, therefore, the same cannot be legally relied upon as per the dictums reported as Abdul Rehman v. Ali Sher and others (2000 PCr.LJ 33). In Amrood Khan v. The State (2002 SCM R 1568), the Apex Court had held that the prosecution must produce the best kind of evidence to establish accusation against accused facing trial, though not obliged to adduce a good number of witnesses and this Court in Muhammad Shabir v. The State (2004 PCr.LJ 1030) has also held that withholding of material witnesses shall breed presumption against prosecution. In this case, the complainant's mother and driver had allegedly brought the alleged ransom money along with Arif and Ehsan of the concerned Bank. All these four witnesses have been withheld. Withholding of the best evidence, despite availability and presence of the said calendar witnesses had rendered the case of the prosecution highly doubtful against the appellant. In Mst. Dur Naz and another v. Yousaf and another (2005 SCM R 1906), the Honourable Supreme Court of Pakistan has held that the prosecution is bound to prove its case beyond any reasonable shadow of doubt and the burden does not shift from the prosecution even if accused takes any particular plea and fails in its; furthermore, the weakness of the defence cannot be made a strong prosecution case.
16. In this case, the P.Ws., have admittedly introduced dishonest improvements in their statements during the trial; their depositions are conflicting, hence in the light of the judgment reported as Noora and another v. The State (PLD 1973 SC 469) it is a clear case of conflict of versions of both the alleged, abductee-witnesses. Neither the said abduetees were recovered from the appellant nor the ransom money has been proved to have been demanded by the appellant or paid to him. The prosecution has failed to bring home the guilt of the appellant beyond reasonable doubt. Primarily, none of the accused was nominated in the F.I.R. And only their descriptions were given therein, but later on the complainant nominated 13 accused in his supplementary statement (Exh.D.A.). As the appellant was not known to the complainant or the P.Ws. By face and his name was not mentioned in the F.I.R., therefore, it was all the more necessary for the prosecution to hold identification parade of the appellant. The prosecution was under obligation to prove its case against the appellant beyond any shadow of doubt in which obligation the prosecution has miserably failed.
17. The evidence of eye-witnesses as to identification of accused by their names including their descriptions etc. And role attributed to them by the such witnesses in view of the answers given by them in the cross-examination suffers from substantial discrepancies, inconsistencies and material doubts. Being admittedly not known to the P.Ws. By face and his name not mentioned in the F.I.R., it was all the more necessary for the prosecution to hold identification parade of the appellant. Having not done so, the prosecution has failed to establish the appellant's nexus with the alleged episode. Reliance is placed upon Mah Gul v. The State (2009 SCM R 4), Muhammad Asghar v. The State (PLD 2008 SC 513), Shafqat Abbas and another v. The State (2007 SCM R 162), Muhammad Yameen alias Raja v. The State and others (2009 SCM R 84), Abdul Ghaffar v. The State (2009 PCr.LJ 57), and Sohail Abbas and others v. Kashif and others (PLD 2001 SC 546).
18. It is very strange that the Investigating Officer did not keep the case property in safe custody at Malkhana of the Police Station. He did not record any case-diary in this behalf. He kept the same with himself and brought in the Court on the day of his examination. This personal custody offends against the High Court Rules and Orders. Even the complainant-P.W. Had misused the case property after obtaining the same on Superdari and brought different currency notes from the Bank on the date of his own examination in the dock. This activity speaks volumes against the credibility, truthfulness and responsibility of the complainant.
19. In the light of what has been discussed above, by allowing this appeal the impugned judgment, dated 9-9-2005 passed by the learned Judge Anti-Terrorism Court, Faisalabad is set aside and the appellant is acquitted of the charges. He shall be released forthwith if not required in any other case.