1. MUHAMMAD TASNIM, J.---Through present appeal, the appellant has questioned the validity of judgment dated 11-4-2009 passed in Sessions Case No. 298 of 2008 by learned Additional Sessions Judge, Gambat in F.I.R. No. 201 of 2007 registered with Police Station Sobhodero under sections 364, 392, 34, P.P.C.
2. Brief facts of the prosecution case are that on 18-11-2007 complainant Muhammad Panah lodged the F.I.R., alleging inter alia that he is labourer by profession and they are three brothers. On 15-11- 2007 he had gone to harvest the sugarcane crop of one Dil Murad where other labourers, namely, Sepahi, Altaf, Waris and Jinsar were also available. When at about 5-00 p.m., accused Farooq with gun, Fazul alias Fazoo with gun and Muhammad Rafiq with lathi came there. They abducted complainant and also robbed him of Rs.300 and tied his eyes with cloth and confined him in sugarcane crops. Accused persons also extended threats to complainant to remain calm. Due to fear, he remained calm. Accused detained him in different places in sugarcane crop. Accused Rafiq used to bring meal for him. Thereafter accused released complainant on 18-11-2007 at about 1-00 a.m. Of night and left him at Gulab Shah Ji Mori. The complainant narrated incident to his father Dadlo and brothers Muhammad Salah and Imdad and then lodged the F.I.R.
3. Learned counsel for the appellant in support of the present appeal has argued that no recovery of robbed money and the alleged crime weapon was recovered from the appellant. He further argued that the allegations in the F.I.R. Are not supported by any cogent evidence on record. He further said that in the F.I.R. One Rafiq has been shown to be armed with Lathi whereas in the deposition of the complainant, Rafiq has been shown armed with gun, hence learned counsel submitted that the benefit of doubt in the deposition of complainant is to be extended to the present appellant. He further submitted that there was three days delay in lodging of the F.I.R.
4. Which was not explained by the prosecution. He said that it is a cooked up story by the prosecution against the present appellant, as present appellant has matrimonial disputes with the complainant party. Lastly, he submitted that the deposition of eyewitnesses are not corroborative to each other and benefit of such situation be extended to the present appellant. He submitted that the witness Dil Murad though has been cited as eye-witness, but he did not say in his deposition that he was present at the scene of offence and said Dil Murad has not even supported the prosecution case. So much so Dil Murad has stated in deposition before the trial Court that the police had not recorded his statement under section 161, Cr.P.C. In support of his contentions, learned counsel relied upon the cases of Amin Bux v. The State (1990 PCr.LJ 1765), Islitiaq Ahmed v.
5. The State (1996 PCr.LJ 1811), Milvi Ali Gohar v. The Crown (1969 PCr.LJ 1047), Allah Bakhsh and Muhammad Nawaz v. The State (PLD 1978 SC 171), Muhammad Ibrahim and others v. The State (1993 PCr.LJ 128), Dr. Ahmed Ali v. Agha Mir Alavi and another (1992 PCr.LJ 2038), Yaqoob Masih and 2 others v. The State (1992 MLD 922) and Rab Nawaz and others v. The State (PLD 1994 Supreme Court 858).
6. As against above, learned APG submitted that the evidence of the prosecution fully 'supported the version of the prosecution in the F.I.R. He further submitted that all the P.Ws. Have supported the prosecution case and have specifically implicated the appellant in their depositions. He said that the solitary statement of one witness is enough to pass conviction order. He further submitted that delay in the F.I.R. Has been explained through cogent evidence on record. He further said that the statement on oath has not been shaken in cross-examination, hence shall be deemed to be admitted by the appellant. Lastly he submitted that no enmity of witnesses deposed against the appellant was suggested.
7. In support of aforesaid contentions, learned APG relied upon cases of Sheraz Tufail v. The State (2007 SCMR 518), Muhammad Ali and others v. The State and others (1999 SCMR 1957), Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 940), Muhammad Tariq alias Tara and another v.
8. The State (2009 SCMR 1260), Muhammad Tahir Aziz v. State and another (PLJ 2010 SC(AJ&K) 1) and Mobashar Ahmed v. The State (2009 SCMR 1133).
9. I have heard the learned counsel for the parties and have perused the record. From the reading of record, it appears that charge was framed on 11-9-2008 and Muhammad Panah Sepahi, Dil Murad, SIOAbdul Sami, A.S.-I. Ghulam Sarwar and SI- Bashir Ahmed were examined by the prosecution.
10. F.I.R. Was also exhibited on record. Statement of appellant was recorded under section 342, Cr.P.C., but no defence witness was examined. Learned trial Court after hearing the parties vide judgment impugned passed the following sentences:-- "1. Under section 364, P.P.C. Rigorous imprisonment for ten years and imposed fine amounting to Rs.5000. In case of default SI six months more.
2. Under section 392, P.P.C. Rigorous imprisonment for ten years and fine of Rs.5000. In case of default SI for six months more".
11. I have examined the record with the assistance of learned counsel for the appellant as also learned APG. From the perusal of record, it appears that learned trial Court has not examined the evidence on record in its proper prospective. The prosecution case as set out in the F.I.R. Is not supported by any independent witness; on the contrary there are discrepancies, flaws and contradictions in the depositions of the prosecution witnesses.
12. A perusal of F.I.R. Shows that complainant Muhammad Panah had stated about three accused persons, namely, Farooq, Fazal and Mohammad Rafique. He further says that Farooq and Fazal were armed with guns, whereas Muhammad Rafiq was armed with Lathi. F.I.R. Further says that Rs.300 were robbed from the complainant, but it is not clear by whom such amount was robbed. If the deposition of complainant (Exh.5) is examined it will be noticed that in his evidence complainant deposed that accused Farooq, Fazal and Muhammad Rafiq came but all were armed with guns, but he does not say anything about the robbery of Rs.300. In the F.I.R. Complainant has said that he was detained for three days by the above named accused and one co-accused Muhammad Rafiq had provided him vegetable and meal, but no such assertion is made by the complainant in his deposition in the Court. In the F.I.R. It was stated by the complainant that accused party has threatened him for his murder whereas no such statement was made by him during course of his deposition. Other witness examined by the complainant was Sepahi (P.W.2). In his evidence; P.W.2 says that only accused Farooq, the present appellant came armed with DBBL and then he called Muhammad Panah, the complainant and had taken him with him but he does not take the name of other two co-accused or does not say anything about robbery or extending threats for killing the complainant. Similarly, another witness is P.W.3 Dil Murad. He only takes name of present appellant, but does not say anything, about two remaining co-accused. P.W. Dil Murad also does not say about threats of killing to the complainant or robbery of amount of Rs.300 from the complainant by the appellant.
13. From the above discrepancies, it is apparent that the case of the prosecution is doubtful and even complainant has not supported his own version in the F.I.R., and the learned trial Judge has miserably failed to take notice of above discrepancies, benefit whereof should have been extended to the present appellant. From the perusal of impugned judgment, it further appears that there is delay of about 15 hours in lodging of the F.I.R., from the time the alleged abductee was released and no plausible explanation has been brought on record by the prosecution, but this aspect of the matter has not been dealt with by the learned trial Judge. Learned trial Judge has also failed to take note of the fact that as per F.I.R. Complainant was remained abducted for three days but none of the family members had reported the matter to the police about missing of the complainant.
14. All the afore-said factors create doubt in the prosecution case. The prosecution has failed to establish its case without any shadow of doubt. Accordingly, I allow the appeal, set aside the conviction and sentence of the appellant awarded through judgment dated 11-4-2009 in Sessions Case No.298 of 2008 and acquit him by extending him benefit of doubt. The appellant was enlarged on bail vide order dated 26-10-2009 by this Court, hence surety stands discharged and bail bond cancelled.
15. The judgments cited by learned APG are distinguishable on facts and they do not apply to the circumstances of the present case, whereas cases cited by learned counsel for the appellant for extending benefit of doubt to the appellant are fully applicable in the circumstances of the case.