' NISAR MUHAMMAD SHAIKH, J.---Through this appeal the appellants. Khizar Hayat and Muhammad Shahzad have challenged the conviction and sentence awarded to them vide a common judgment dated 27-2-2007 passed by learned Judge; Anti-Terrorism Court No,1 Karachi in amalgamated Special Case Nos. 18, 19 and 20 of 2006 (Crime Nos.297, 298 and 299 of 2006 of Police Station Aziz Bhatti, Karachi) whereby both appellants were convicted under section 7(e)
Anti-Terrorism Act, 1997 and sentenced to suffer imprisonment for life and forfeiture of their property to the extent of Rs,5 lac each and they were also convicted under section 13(d) Arms Ordinance and sentenced to suffer R.I. For three years and pay fine of Rs,25,000 each or to suffer R.I.
For six months more. These sentences were directed to run concurrently but the benefit of section 382-B, Cr.P.C. Was not extended to the appellants.
2. The prosecution case in brief is that on 10-7-206 at 11-00 p.m .The complainant Abdul Ghafoor resident of Gulshan-e-Iqbal, Karachi lodged F.I.R. No, 297 of 2006 of Police Station Aziz Bhatti of Gulshan-e-Iqbal Town, stating therein that today i,e, 10-7-2006 at about 4/5-00 p.m. The accused Khizar Hayat son of Abdul Karim, who was the son of his brother in law, came to visit his house at usual. After observing 'Esha' prayer, when the complainant returned to his house he saw Khizar Hayat sitting in TV Lounge together with his grand son namely Abdul Rehman son of Abdul Razzak, aged about 10 months. The complainant went to his bedroom and after sometime when he came back, he saw that his grand son Abdul Rehman as well as accused Khizar Hayat were not available in TV Lounge. Thereafter the complainant, together with his sons Abdul Razzak and Abdul Jabbar as well as his nephew Imran, started searching for the child and the accused in the Muhalla. In the meantime, at about 10-00 p.m. Abdul Razzak son of complainant received a call at his mobile phone number 0300-2117475 from mobile phone number 0300-3604289 and after talking on such phone he told complainant that the person who talked him has informed that the child is with him and if the same is wanted back alive, then immediately arrange Rs,10 Lac and to wait for further call on phone for discovery of place for delivery of such amount. Thereafter, the complainant reached at Police Station and lodged such report that the action may be taken against the accused Khizar Hayaz and his other accomplices for abduction of his grand son and for their demand of Rs,10 lacs as ransom for the release of the child. Such F.I.R. Was registered by A.S.-I.
Javed Akhtar who then also visited the place of incident at 11-30 p.m. Prepared such mashirnama.
3. It further appears from the mashirnama of arrest and recovery that thereafter, the SIP Dost Muhammad S.H.O. Of Police Station Aziz Bhatti, together with his police party as well as the complainant party, reached at the places as per the directions given to P.W. Abdul Razzak on his mobile phone but nothing was found at such places and lastly, after receiving spy information, they reached inside National Cement Factory near Dalmion, at about 6-00 a.m. (on 11-7-2006) and found a person in suspect condition at the road inside National Cement Factory, who stood near the car of complainant, therefore, he was apprehended by the Police party. On inquiry he disclosed his name as Imran son of Shafi Muhammad but he could not give satisfactory account of his presence at such place. The Police party took apprehended person with them and then reached in an abandoned room which was on western side of the above road and found two persons together with the victim child in such room. The complainant identified the child as well as Khizar Hayat saying that this accused had kidnapped his child. Whereas the other accused disclosed his name as Muhammad Shahzad son of Nazir Ahmed. On their personal search, the police secured an unlicensed T.T. Pistol of .30 bore with a magazine loaded with 03 live rounds as well as mobile phone 'Nokia 1100' with Sim No,0300-3604289 from accused Khziar Hayat and an unlicensed pistol of .30 bore together with a magazine loaded with three live rounds form accused Muhammad Shahzad. Both these accused together with Imran were arrested and such mashirnama of arrest and recovery was prepared by SIP/S.H.O. Dost Muhammad at the site on 11-7-2006 at 6-00 a.m. In presence of mashirs Abdul Razzak and Ghulam Sarwar.
Thereafter, the F.I.Rs, Nos.298 and 299 of 2006 were also registered by the SIP/S.H.O. Dost Muhammad under section 13(d) Arms Ordinance against the accused Khizar Hayat and Muhammad Shahzad respectively. Further investigation of the cases was then conducted by Incharge AVCC Garden, Karachi namely Inspector Muhammad Babar. During investigation, Imran was let off on 19-7-206 under section 169, Cr.P.C. When he was found innocent. On completion of investigation the challan was submitted against arrested accused Khizar Hayat and Shahzad on 1- 8-2006 to face trial in the ahove cases.
5. During trial the accused pleaded not guilty to the charge framed by the trial Court as Exh.5. The prosecution then examined P. W.1 Javed Akhtar A.S.-I. At Exh.6 who produced F.I.R. No,297 of 2006 as Exh.6-A. Memo of inspection of place of incident as Exh.6-B. Diary Entry No,No,46 dated 10-7-2006 as Exh.6-C. P.W.2 SIP/S.H.O. Dost Muhammad at Exh.7 who produced memo of arrest and recovery as Exh.7-A, F.I.R. No,298 of 2006 as Exh.7-B. And F.I.R. No,299 of 2006 as Exh:7-C., P.W.3 complainant Abdul Ghafoor at Exh.8 who produced the receipt/superdaginama in respect of victim child as Exh.8-A. P.W. Abdul Razzak at Exh.9, P.W.5 Ghulam Sarwar at Exh.10. P.W.6 Dr. Muhammad Shafi Senior Medical Officer at Exh.11 who produced the letter of police dated 11-7-2006 as Exh.1 1-A and Medico-Legal Certificate of the victim child as Exh.11-B and P.W.7 inspector. Muhammad Babar Investigating Officer at Exh.12 who produced the letter/order dated 12-7-2006 of S.S.P (Investigation) AVCC Garden. Karachi as Exh.12-A Entries of Station Diaries Nos. 50, 56 and 57 dated 11-7-2006 as Exh.12-B(i), (ii) and (iii) letter of S.S.P. Dated 15-7-2006 as Exh.12-C and Computer Generated Statement of calls of mobile phone number 0300-6304289 as Exh.12-D.
6 The statement under section 342, Cr.P.C. Of the accused Khizar Hayat and Muhammad Shahzad were recorded at Exhs.14 and 16 respectively. They denied the allegations levelled against them.
However they did not give statement on oath under section 340(2) Cr.P.C. Nor they examined any witness in their defence. The version of accused Khizar Hayat as given by him in detail in his statement under section 342, Cr.P.C, (Exh.14) is reproduced below:-- "Sir, I have been falsely implicated by police in this case. Mst. Shameem wife of complainant Abdul Ghafoor is sister of my father (Phuppi) and due to such relationship I usually attend/visit the house of complainant and sometimes stay there also. On 20-7-2006 I had been at the house of complainant for whole of the day. Abdul Rahman son of my cousin P.W. Abdul Razzaq was not feeling well and due to said reason he was continuously weeping and I was asked by my 'Phuppi'
Mst. Shameem to take the child out of house so as to get him relief and refreshed. Consequently I got the child and was refreshing him at the road in front of the house of the complainant. All of a sudden 2 bandits on a motorcycle came there and aimed pistols at me and on gunpoint made me to sit on the motorcycle with child. They threatened me to remain silent else I and the child would be shot dead. They took me and the child and put us in a room where my eyes were blind folded and hands tied behind the back. They inquired from me about the mobile telephone number of father of child which I gave them so as to save the life of child and mine. They also inquired from me the name of some one well conversant with and well known to father of child and his other family members. I gave them the name of co-accused Shahzad and his address as such. Co- accused Shahzad is son of sister of my mother (Khalla). They brought co-accused Shahzad also an hour thereafter at the room where I was kept by them with child. After sometime I heard the rattle sound of some people entering into the room simultaneously I heard the sound/voice of bandits that police has come let us run. The tape from my eyes was removed and I saw Police personnel before me with one person with them in custody. I saw also co-accused Shahzad lying by my side having hands tied behind his back. The child was also lying there. Police brought me and Shahzad and so also the child and other arrested person from the room to police station. P.W.
Abdul Razzaq and complainant Abdul Ghafoor came at Police Station where police handed over the victim child to them. Police detained me and Shahzad at Police Station on the pretext that we would be beneficial for identification of the culprits who escaped. Police afterwards involved me and Shahzad in these cases falsely and foisted unlicensed arms and ammunition and the recovery of victim child and let-off Imran who was arrested by police on the spot. The mobile telephone set 'Nokia-1100' with Sim No, 0300-3604289 are not mine. I am innocent and pray for justice."
' Likewise, the accused Muhammad Shahzad also stated during his statement under section 342, Cr.P.C. (Exh.161 as under:-- ' Sir, I say on 10-7-2006 I was available at my house where at midnight time one person came there and informed that my cousin co-accused Khizar Hayat has met with an accident and was lying injured and he had come to take me there for his help. I accompanied said person who brought me at a room I saw co-accused Khizar Hayat with his eyes blind folded and his hands tied behind the back. I was also overpowered by the 2 bandits duly armed with weapons and was confined there and my hands tied behind the back. I was told by the bandits that I had to identify the father and relatives of victim child to them. All of sudden police entered into the room and on seeing them the culprits escaped and police caught me and untied my hands and removed the tape from the eyes of co-accused Khizar Hayat besides his hands also untied. They took me and Khizar Hayat the victim child to police station. Police had caught another person and he was also taken to Police Station. Complainant Abdul Ghafoor and P.W. Abdul Razzaq, came at Police Station to whom Police handed over the victim child and detained me and Khizar Hayat at Police station contending that we would be used for identifying the culprits. Police challaned me and Khizar Hayat in present cases falsely to show their efficiency by foisting recovery of victim child and unlicensed arms and ammunition. I am innocent and pray for justice."
7. We have heard learned counsel for the appellants and learned Additional Prosecutor-General for the State/respondent and also perused the material available on record.
8. It is mailed by Mr. Irfan Ahmed Usmani, learned counsel for the appellants that the case of prosecution was of no evidence but the appellants were convicted by the trial Court on surmises and conjectures though all the private witnesses did not implicate the appellants during their evidence and there was nothing incriminating against the appellants brought by the prosecution through the evidence of complainant and his two witnesses therefore, the evidence of two Investigating Officers only could not be the basis of conviction specially when the same was also doubtful. He also argued that the actual culprits including Imran who was admittedly arrested by the police were let off by the police who falsely implicated the present appellants and such details were given by them in their statement under section 342, Cr.P.C. He further argued that burden to prove the case was upon the prosecution but its case was highly doubtful therefore, such burden could not be shifted upon the accused even if their defence plea was found weak and not substantiated by the evidence. In support of his contentions he also placed reliance on the authorities namely 1999 SCMR 1220, 2006 SCMR 1139, PLD 2008 SC 513, 1990 MLD 1023, PLD 1963 SC 17, 1992 SCMR 196 and 1995 SCMR 1345.
9. On the other hand, Mr. Zafar Ahmed Khan, Additional Prosecutor General contended that the case of prosecution stood proved by the facts and circumstances of this case as well as the material brought on record of this case and therefore, the appellants were rightly convicted by the trial Court. He also contended that the defence plea of the appellants is false and unbelievable and the same being afterthough was rightly rejected by the trial Court and therefore, the appeal of the appellants is liable to be dismissed.
10. We have considered the above submissions and also perused the evidence adduced by the prosecution before trial Court. The complainant Abdul Ghafoor (P.W.3) during his evidence deposed before trial Court that on 10-7-2006 he, his son Abdul Razzak and other family members including victim child Abdul Rehman son of Abdul Razzak were present at their house where accused Khizar Hayat who is son of his brother-in-law, came at evening time and when the complainant returned back to his house after offering Nimaz-e-Esha he saw that accused Khizar Hayat was sitting in TV Longe together with victim child Abdul Rehman but after sometime when the complainant came from his bedroom, he found that accused Khizar Hayat and the victim child were not available there therefore, they started making search of them. The complainant further deposed that meanwhile a call came at mobile phone number 0300-2117475 of his son Abdul Razzak that their children are kidnapped and for their release they should arrange for Rs,10 lacs as ransom. The complainant further deposed that culprits also said that place of receipt of ransom and return of children would be informed by them later on. He further deposed that thereafter he went to P.S Aziz Bhatti and lodged report. In this regard he specifically deposed that "I see F.I.R. At Exh.6-A and say it is same, correct to the extent now I deposed and bears my signature."
Complainant further deposed that his son Abdul Razzak and nephew Ghulam Sarwar remained in contact with police and victim child was delivered to him by the police on 11-7-2006 at 6-45 a.m and the police informed him that the victim child was, recovered from accused Khizar Hayat and Shahzad. He also deposed that he does not know if the present appellant Khizar Hayat and Shahzad are real culprits or not.
' During his cross-examination the complainant also deposed that the contents of his F.I.R. Exh.6-A were not read over to him by the police before obtaining his signature there on.
11. The P.W.4 Abdul Razzak who is son of the complainant, also deposed before the trial Court that on 10-7-2006 after Nimaz-e-Maghrib time he was at his shop situated at Suhrab Goth and when he was leaving his shop, he received telephone call on his mobile phone number 0300-2117475 from his wife who informed that accused Khizar Hayat had come at their house since morning and had taken victim child Abdul Rehman at about Maghrib prayer time for getting him refreshed but for sufficient time he has not turned up with the child. He further deposed that after about 15-20 minutes after Nimaz-e-Esha he received call on his mobile telephone coming from mobile telephone number 0300-3604289 which is known to be in the name of Khizar Hayat, that both Khizar Hayat and Abdul Rehman were under captivity of the callers and that they should arrange for payment of Rs,10 lacs as ransom for their release. P.W Abdul Razzak further deposed that he at once informed police at its help line number 15 and then he rushed to his house and reached there at about 9-00 p.m but his father Abdul Ghafoor had left the house for Police Station to lodge the report prior to his arrival. He further deposed that the unknown culprits were contacting him on his mobile telephone after every half an hour time and were demanding ransom and at last they agreed to accept Rs,300,000 as ransom. He further deposed that police started making efforts for recovery of Khizar Hayat and victim child and in the morning of 11-7-2006 the police informed them that the children were recovered. He also deposed that police required him to sign mashirnama of recovery of victim child Abdul Rehman and arrest of Accused Khizar Hayat and Shahzad but he insisted that the child Abdul Rehman be provided medical aid first. He further deposed that the police prepared the memo of recovery and arrest as Exh.7-A at Police Station and obtained his signature thereon without reading over its contents to him. In view of this evidence of P.W. Abdul Razzak, he was declared by the prosecution as hostile. During his cross-examination by the Prosecutor, he denied recovery of victim child by the police from accused Khizar Hayat and Shahzad. He also denied the recovery of unlicensed pistols and one mobile phone from the possession of accused in his presence.
12. Likewise P.W.5 Ghulam Sarwar who was nephew of the complainant also deposed before the trial Court that on 10-7-2006 at about 10-30 p.m. He came to know that Abdul Rehman was missing from house of complainant who lodged such report. He further deposed that he, P.W. Abdul Razzak and complainant were at Police Station Aziz Bhatti when the police informed them that victim child Abdul Rehman was recovered by them. He further deposed that the police obtained his signature and that of P.W. Abdul Razzak on some papers without rending over to them the contents thereof.
He also deposed that the police had not recovered child Abdul Rehman and unlicensed weapons from accused Khizar. Hayat and Shahzad. He also deposed that these accused were not arrested by the police in their presence and that he had not sinned relevant memo at Exh.7-A at the spot. In view of this evidence of P.W. Ghulam Sarwar he was also declared hostile by the prosecution and during its cross-examination this witness also denied the question relating to the involvement of the accused persons in commission of the alleged crime.
13. It appears from record that the case of prosecution is based upon the following main points:--
(a) Kidnapping of child.
(b) Demand of ransom.
(c) Recovery of child.
But, it is a matter of record that none has deposed to have seen accused Khizar Hayat or anybody else while kidnapping or taking away the victim child with intention to kidnap him. It is also the matter of record that none has deposed if the person who was repeatedly demanding ransom on mobile phone of the father of victim child was the accused Khizar Hayat or Shahzad. It is also an admitted fact that none of the two mashirs/recovery witnesses namely Abdul Razzak and Ghulam Sarwar has deposed about the recovery of victim child etc. From the possession of the accused/appellants. In view of such position the contention raised by learned counsel for the appellants, nets support from the case of Haqnawaz and 2 others v. The State (PLD 1983 Lah. 682), the relevant portion of which is reproduced below:--
(a) Penal Code (XLV of 1860)---S.302/34---Appreciation of evidence-Eye-witnesses and recovery witnesses turning hostile---Sifting of grain from chaff---How made. (Evidence).
' No doubt, the trial Court is permitted to sift grain from the chaff on the overall appreciation of the entire evidence but in doing so it cannot ignore the material part of the evidence going against the prosecution. Lives and liberties of accused cannot be imperiled on mere conjectures and suspicions and the decision must rest upon legal proof based on legal testimony. The rule that the Courts may draw its own inference and may not be deferred from the incompleteness of the tale given by each .Party is not applicable where both the eye-witnesses and the recovery witnesses have turned hostile and have not supported the prosecution. The conclusion to be arrived at should have some nexus with the evidence and not based on mere speculations."
' Although both the material witnesses namely Abdul Razzak and Ghulam Sarwar, who are also shown to be the recovery witnesses were turned hostile yet the prosecution case was also not supported similarly by the evidence of complainant Abdul Ghafoor but he was not declared hostile, meaning thereby that his testimony was accepted/relied upon by the prosecution through the same also destroyed the case of prosecution being not supported in any way by the undisputed evidence of the complainant itself. There is also no statement of any witness recorded under section 164 Cr.P.C. During the investigation of this case so as to strengthen the case of prosecution.
14. Apart from above the evidence of A.S.-I. Javed Akhtar (P.W.1) who had recorded the F.I.R. Of the complainant and also prepared the memo of inspection of the place of incident/house of the complainant and so also the evidence of Dr. Muhammad Shafi (P.W.6) who had examined the victim child after his recovery in question and issued such Medical Certificate, is of no consequences in circumstances of this case. However, the P.W.2 S.I.P. Dost Muhammad S.H.O. Of Police Station Aziz Bhatti who had also conducted investigation of the case initially., has deposed in support of the mashirnama of arrest and recovery Exh.7-A but his evidence alone, without corroboration from any other witness, is also of no legal effect as both witnesses of recovery inquestion namely Abdul Razzak and Ghulam Sarwar were turned hostile. There is however, no explanation as to how the prosecution failed to examine any other member of the police party who had conducted the raid, arrest and recovery inquestion under the supervision of S.I.P. Dost Muhammad. Even otherwise, this mashirnama of arrest and recovery Exh.7-A shows that the police party had reached at the spot on the basis of spy, information but the evidence of S.I.P. Dost Muhammad shows that they reached there as per the telephone calls received by P.W. Abdul Razzak. In this regard, the P.W. Abdul Razzak has not supported the prosecution in any way. This SIP Dost Muhammad initially deposed during evidenced that he had apprehended one Imran before the arrest of accused Khizar Hayat and Muhammad Shahzad but thereafter, he stated in his same deposition that he arrested two accused namely Khizar Hayat and Muhammad Shahzad and prepared memo. Of their arrest as Exh.7-A. It appears from the evidence of Inspector Muhammad Babar (P.W.7) who conducted further investigation in the case, that this Imran was let off by the police though the police after apprehending him first, had arrived at the room where the victim child was kept. Inspector Muhammad Babar also deposed that the mobile phone number 0300- 3604289 allegedly recovered by SIP Dost Muhammad from accused Khizar Hayat, was in the name of one Kashif Hussain but in this regard he admitted in his evidence that the details of said mobile telephone indicated complete address and PTCL Telephone number of said Kashif Hussain but he was not called and examined during investigation of the case. This Muhammad Babar further stated before the trial Court that he had not inspected the place of incident or the place of recovery however, according to him, he had called and examined complainant Abdul Ghafoor, P.W.
Abdul Razzak and P.W. Ghulam Sarwar on 13-7-2006 and also interrogated the accused persons.
But, he has no where stated as to what was disclosed by the accused and the complainant party before him and even it is also not said by him during evidence if the complainant party had supported the version of the prosecution, as disclosed by the S.I.P. Dost Muhammad. It has also not come during the prosecution evidence as to who was the person who repeatedly demanded the ransom from P.W. Abdul Razzak on his mobile telephone as it is no where alleged if such person was the accused Khizar Hayat or Muhammad Shahzad who both being related to the complainant party were known to them previously.
15. In view of the above material available on record of this case, the prosecution can not claim to have proved its case against accused beyond any reasonable doubt nor the recovery in question can be said to have been proved against the accused in absence of the evidence of any recovery witness. In such a situation, the contention of learned A.P.-G, in respect of the defence plea of the accused carries no legal force in view of the case of Ali Sher v. The State and 3 others (PLD 1980 SC 317) which provides that defence version if found and to be unconvincing can not lead to conviction of accused and the case against accused still requires to be proved by the prosecution.
In another case of Noorul Haq v. The State (1992 SCMR 1451) it was held that plea taken by an accused may be false but he can not be convicted on such false plea as the person charged with criminal offence is to be saddled with the liability only if prosecution has established its case against him beyond any shadow of reasonable doubts. It is also held in the case of Zaheeruddin v.
The State (1993 SCMR 1628) that the fact that the accused failed to prove his plea raised in defence can neither reduce the burden of the prosecution to prove the case against him beyond shadow of reasonable doubts nor it can be taken into consideration as a proof in support of the prosecution case.
For the aforesaid reasons, we find that the appellants/accused could not be denied or deprived of the 'benefit of doubt created in their favour in the above cases which could not be proved by the prosecution beyond any shadow of reasonable doubt and as such the impugned judgment of conviction passed by the trial Court on 27-7-2007 can not sustain in law and therefore, the same calls for interference by this Court, which is accordingly set aside in circumstances of this case. This appeal is, therefore, allowed and consequently, the appellants are acquitted of the charges and they are directed to be released forthwith if not required in any other case.