JUDGMENT FAZAL-I-HAQ ABBASI, J.---Muhammad Zahir has filed this appeal under section 25 of the Anti-Terrorism Act, 1997 against the judgment dated 6-12-2010, passed by the learned Judge Anti- Terrorism Court-III Peshawar, whereby he was convicted under section 365-A, P.P.C. And sentenced to undergo rigorous imprisonment for life and his movable and immovable property was also confiscated to the State with benefit of section 382-B, Cr.P.C.
2. Qadeer (P.W.8) lodged a report on 31-3-2010 at 5-00 hours at P.S. Tehkal that one Hazrat Nabi, his relative, invited his friend Niaz Muhammad for dinner. Zahir accused (now appellant) along with Noshad son of Said Badshah, Noshad son of Fazal Karim residents of Tehkal Bala also came there.
At 2-00 a.m. The program ended. He along with Zahir, Noshad, Noshad and Niaz Muhammad sat in the Car driven by Zahir for dropping Noshad and Noshad at their respective residences. Both the Noshads were dropped near their houses at Tehkal. Accused Zahir while returning from Tehkal adopted a different route, which was objected by him, but Zahir replied that it is a shortcut. After covering some distance four persons armed with Kalashnikovs, having muffled faces appeared and stopped them and asked for lift up to the Road. One of them took the driving seat and Zahir was asked to sit on the rear seat. Two persons also sat on the rear seat of the Motor Car, while one with Niaz Muhammad in the front seat. After travelling about 45 minutes, the Motor Car was stopped at Kacha Road, during their personal search Nokia Mobile set 1600 and Rs.500 were snatched from the complainant by the said persons. Thereafter they deboarded him and Zahir accused from the Motor Car. One of the said persons stayed with them as guard, while the other three took Niaz Muhammad with them in the Motor Car. After an hour two persons came back in the Motor Car and handed over the same to them and asked Zahir accused to arrange for Rs.15,00,000 (fifteen lacs) as ransom for release of Niaz Muhammad. Complainant expressed his satisfaction, regarding involvement of Zahir accused in the whole drama and charged him along with four unknown persons for the commission of the offence. Case was registered vide F.I.R. No.235 dated 31-3-2010 under section 365-A, P.P.C. At PS Tehkal District Peshawar.
3. Salim Riaz Khan, Inspector (P.W.5 started investigation in the case, prepared the site plan Exh.P.B.
At the pointation of Qadeer (P.W.8), took into possession Motor Car bearing No.U-3768 Peshawar produced by Hazrat Nabi through memo Exh.P.W.4/1. As the Motor Car was not required in any case, the same was handed over back to Hazrat Nabi through memo Exh.P.W.5/1.
Gohar Zaman CIO (P.W.3) on 19-4-2010 raided the house of accused Zahir and arrested him through card of arrest Exh.P.W.3/1 and the accused was handed over to Salim Riaz Inspector (P.W.5) for interrogation and investigation. P.W.5 applied for physical remand of accused and accordingly 30 days custody was granted by the Court. He prepared pointation memo Exh.P.W.1/1 at the pointation of Zahir accused and made additions with red ink in the site plan. He also got recorded the statement of Niaz Muhammad, abductee (P.W.2) under section 164, Cr.P.C. And also recorded the statements of the P.Ws. After completion of investigation challan was submitted against Zahir accused in the court of Judge Anti-Terrorism Court-III Peshawar.
4. Learned trial Court after compliance of the legal formalities, framing of the charge recorded the statements of eight witnesses of the prosecution. Thereafter the prosecution closed its evidence.
Statement of accused was recorded under' section 342, Cr.P.0. However, he did not opt to appear as his on witness as required under section 340(2), Cr.P.C. Nor produced defence evidence.
5. After conclusion of the trial, the learned trial Court convicted and sentenced the accused- appellant as referred to above.
6. Learned counsel for the appellant argued that Niaz Muhammad abductee (P.W.2) charged the appellant in the light of the report made by Qadeer (P.W.8) and P.W.2 deposed that he is satisfied that the appellant is not involved in the occurrence.
He further submitted that the charge is based on suspicion and there is no evidence to connect the appellant with the commission of the offence, as such the appellant deserves acquittal.
7. Learned counsel appearing for the State and the complainant argued that the present appellant was the Mastermind of the occurrence and this was the reason that on return he changed the route with specific purpose. They further argued that the accused pointed out place of occurrence to the Investigating Officer and as such the additions were made in the site plan with red ink, which shows the clear involvement of the accused in the commission of the offence. They also submitted that the appellant cannot derive any benefit from the obliging concessions made by Niaz Muhammad abductee (P.W.2) in his cross-examination. They further argued that the prosecution successfully proved its case beyond reasonable doubt and the appeal is liable to be dismissed.
8. Arguments heard and record perused.
9. Qadeer (P.W.8) supported the version given in the F.I.R. However, in his examination-in-chief he stated:-- "at about 2-00 a.m. Accused Zahir and his friends requested for return to their respective houses and asked Hazrat Nabi to arrange for that. Hazrat Nabi offered his Motor Cgr. I along with Niaz Muhammad, both the Noshad and Zahir sat in the said Motor Car."
It is clear from his narration that accused Zahir did not ask Qadeer (P.W.8) or Niaz Muhammad abductee (P.W.2) to sit in the Motor Car or to accompany them. It is further stated in the examination in chief of Qadeer (P.W.8):- - "On reaching the spot both the two unknown accused directed accused Zahir to arrange Rs.15,00,000 (fifteen lac) as ransom money, otherwise they will shift Niaz Muhammad abductee to Tahira T.T.".
It further shows that if Zahir accuse was involved in abduction of Niaz Muhammad (P.W.2), there was no reason for the said persons to ask him for arranging the ransom amount. In cross- examination Qadeer (P.W.8) stated:-- "As accused Zahir while driving the Motor Car changed the route, therefore, I suspected him to be fully involved in this incident".
10. Niaz Muhammad (P.W.2) supported the version given in the F.I.R. However, in his examination-in-chief he stated:-- "thereafter I was blind-folded and taken away by the three accused and one of them remained there aiming his weapon on accused Zahir and Qadar".
In his cross-examination he admitted:- "the abductors had also aimed weapons on accused Zahir and had also abducted him along with me".
He further stated:-- "It is correct that in the light of report I had charged accused in my statement recorded under section 164, Cr.P.C. It is correct that I had charged accused Zahir merely on this ground that he has changed the way".
It is quite clear that Zahir appellant was charged by the complainant (P.W.8) and Niaz Muhammad (P.W.2) due to suspicion, which even if strong, same could not be taken as substitute of legal evidence.
11. As far as the submission of learned counsel for the State and complainant that no benefit of the obliging concessions made by Niaz Muhammad (P.W.2) can be given to the accused is concerned, the prosecution did not declare Niaz Muhammad (P.W.2) as hostile. If in the opinion of prosecution he was making any obliging concessions, it was the duty of prosecution to declare him as hostile witness. As such this argument is not sustainable.
12. As far the pointation of the place of occurrence through memo Exh.P.W.1/1 by the accused is concerned, under Article 40 of Qanun-e-Shahadat Order, 1984 only that much information received from the accused can be proved against him on the basis of which some fact deposed by him led to some discovery, which the police was not in knowledge of the same and was first derived from the disclosure made by the accused. Place of occurrence was already in the knowledge of police and the accused also did not deny his presence at the spot at the time of occurrence, therefore, pointation of the place of occurrence by the accused cannot be termed as discovery of a new fact. According to the addition made with red ink in the site plan Exh.P.B.
Presence of four unknown persons, namely Qadar, Sajjad, Salahuddin and Kamran, who committed the offence, was pointed out by Zahir accused, but the Investigating Officer neither tried to trace out the said persons nor mentioned them as accused in the complete challan.
13. It is highly unsafe to maintain conviction and sentence passed against the appellant by the learned trial Court, on the basis of above referred evidence, as the prosecution failed to prove its case beyond reasonable doubt against the accused. It is well-settled now that many reasons are not required, but even a single reason creating reasonable doubt in a prudent mind is sufficient for acquittal. We, therefore, while extending the benefit of doubt to the appellant, accept this appeal, set aside the conviction and sentence awarded to the appellant Muhammad Zahir by the learned Judge Anti-Terrorism Court No.III Peshawar, vide judgment dated 6-12-2010 and acquit him of the charges levelled against him He be set free forthwith, if not required in any other case. These are the reasons for our short order of even date.