' MIAN FASIH-UL-MULK, J.---Convicts appellants Gul Rauf son of Tayab Khan, Muhammad Yaseen son of Amal Noor, Waseem son of Faridullah and Junaid son of Mir Qalam were tried by learned Additional Sessions Judge, Karak at Takht-e-Nasrati. They were convicted and sentenced under section 367 P.P.C. To suffer 3 years' R.I. With a fine of Rs,10,000 each in default of payment of fine 3 months' S.I. And under section 342, P.P.C. One year's R.I. With a fine of Rs,200 each and in default whereof one month's S.I. Vide judgment dated 29-6-2011. The appellants have filed Criminal Appeal 417 of 2011 against their conviction and sentences whereas Nasir Zaman has preferred Criminal Revision 106 of 2011 for enhancement of sentences. Both the matters have arisen out of one F.I.R.
And impugned judgment, therefore, they are disposed of by this single judgment.
2. The prosecution story as narrated in the F.I.R. Is that on 5-12-2009 the complainant Nazir Khan made a report in Police Station Takht-e-Nasrati to the'effect that his cousin Arshad Zaman, a student of LLB. Peshawar University had come to house for winter vacations, who left the house at 8-00 a.m. For attending court at Takht-e-Nasrati. The complainant contacted him after some time on his cellular phone but found the same powered off. He again tried to contact him but found no reply. It was further reported that the complainant and his brother traced Arshad Zaman on every likely place but could not succeed. He was unaware as to whether Arshad Zaman was abducted by some one or was missing for some other reason. He, therefore, did not nominate any one and stated that he would inform the local police, if traced.
' The report was initially entered vide Mad .No,9 Daily Diary of Police Station but Arshad Zaman on his release charged four accused persons (appellants) for taking him away to their house and putting him in illegal confinement vide F.I.R. No,332 dated 5-12-2009 under sections 367/342/34, P.P.C. At Police Station Takht-e-Nasrati.
3. After completion of investigation, complete challan was submitted before court for trial. Charge was framed against the accused, who professed innocence, false implication and claimed trial.
4. The prosecution in support of its case examined 9 witnesses in all followed by recording statements of accused appellants under section 342, Cr.P.C. The accused/appellants neither produced defence evidence nor opted to be examined on oath as contemplated under section 340(2), Cr.R.C.
5. On assessm ent of evidence, the appellants were found guilty and were convicted and sentenced as mentioned above.
6. Learned counsel for appellants contended that the charge against the appellants based on prosecution evidence cannot be held proved as per requirement of law. It was argued that the learned trial court has wrongly reached to the conclusion by improper appreciation of evidence resulting in grave miscarriage of justice. Learned counsel added that the entire prosecution story is based on hearsay evidence with no eye-witness account and as a result of admitted consultations and deliberations of the Investigating Officers and that of complainant party. He was also of the view that the only independent witness i.e, P.W.3 has negated the version of prosecution. The said impartial witness also deposed that his statement recorded by police is not the one, which he recorded rather was exaggerated by the Investigating Officer. Learned counsel while concluding his arguments submitted that both the appellants and complainant party are locked in civil as well as criminal litigation and that in the given background of the prosecution story no offence is either constituted under section 367, P.P.C. Or wrongful restraint under section 342, P.P.C., thus prayed for acquittal of the appellants.
7. On the contrary, learned counsel for complainant party Mr.Ishtiaq Ibrahim, advocate argued that the trial court has considered the entire evidence in its true perspective where no material discrepancies or contradictions were noticed. Appellants were rightly charged under sections 367 and 342 P.P.C. The statement of P.W.3, who is an impartial witness conforms the statement of abductee P.W.7. It was further argued that even the sole statement of abductee, if. Is confidence inspiring is sufficient for recording conviction in such like heinous offences. Learned counsel further submitted that the trial court was, however, not justified to award lesser punishment as there was not a single mitigating circumstance which could entitle the accused/- appellants for a lenient sentence. Learned counsel while concluding his arguments contended that the prosecution has proved its case beyond reasonable doubt and the sentences be enhanced to the one provided by law.
8. The prosecution case mainly hinges upon the testimony of P.W.1, 3, 7 and 8. P.W.1 is Dr.Gul Sanat Shah, SMO Civil Hospital Takht-e-Nasrati, who deposed on oath to the effect that on 5-12-2009 at 1- 00 p.m. He had examined Arshad Zaman aged about 24/25 years son of Nawab Zaman and found the following wounds on his person:--
(1) Swelling and redness of right eye with painful eye.
(2) 1" x 2" contused wound on mastoid bone.
(3) Scratches on frond of neck and upper chest. X-Ray left hand AP and later view were found normal.
' Kind of weapon............... Blunt ' Nature of injury............... Simple as per final opinion.
' Duration of injury........... Within four hours.
9. Maulana Fazal Wadood was examined as P.W.3. He stated that I heard that the abductee Arshad Zaman was caught hold by accused party and the accused were going to give him beating. He along with Abdul Sattar, Muhammad Khan and Umar Farooq went to "Daggar" where Arshad Zaman was handed over to them by Amal Noor and Taj Malook along with two mobile sets, so they took the abductee from the said "Daggar" to his house. The elders of the family of the complainant showed satisfaction over the return of the complainant along with the mobile sets and thereafter they left for their village. In cross-examination he admitted it correct that Arshad Zaman was not handed over to them in tied position. He further admitted that he had heard about the beating of Arshad Zaman by the accused at 9-30 a.m., however, he showed ignorance to the date of occurrence but stated it was month of December. The witness volunteered that both the parties had taken their position with their fire arms and their places were visible to them from their village.
He further admitted that the statement recorded by the police was not given by him in the form in which it was written by the police. The witness further volunteered that after 30/40 minutes of the occurrence they had handed over Arshad Zaman to their elders.
10. P.W.7, namely, Arshad Zaman son of Nawab Zaman, the alleged abductee, entered into witness box and submitted that accused/appellants are his co-villagers. He had come to home for winter vacation and on 5-12-2009 left his house at 8-00 a.m. For Takhi-eNasrati in connection of bail application of his brother. When reached Fateh Sheri Chowk and therefrom he started proceeding towards Takhte-Nasrati on metal road and after covering the distance of about three hundred yards, a Motorcar No,LD/765 emerged from the Sarkandays/ reeds. Accused Yaseen, Junaid, Waseem and Gul Rauf alighted from the said motor. Accused Gul Rauf was having double barrel shot gun and all the four accused started him beating with fists and blows and he also scuffled with them. Accused Gul Rauf gave him blow with the butt of his shot gun on his ear. Accused Waseem gave him blow on his eye and as a result of the said blows he became unconscious. All the four accused placed him in the motor car and took him to his village where beside the four accused, some 18 other persons with their fire arms were waiting for them in the Hujra. The accused told him that if he and other members of his family did not stop the proceedings initiated under section 145 Cr.P.C. In the court against the accused, the same may result into a murder case. The accused put a Burqa via upon him and tied his hand with a rope, fastened his one leg with the rope and took him to the house of. Sheda, the brother of appellant Yaseen. The appellants then shifted him to the house of Attaullah. Accused Yaseen, Gul Rauf and Amal Noor father of Yaseen, handed him over to four persons of village Soli Khel, namely, Fazal Wadood, Abdul Sattar, Muhammad Khan, Muhammad Farooq at vacant plot/dagger of the house of accused Yaseen and Gul Rauf. His two mobile sets were delivered to the said persons. The aforesaid four persons, the elders of the area took him to his Hujra and handed him over to his cousin. The police headed by DSP came to their Hujra and took him from his Hujra to Police Station. His statement was recorded in the Police Station and he has seen it, which correctly bears his signature. The statement is Exh.P.W.7/1 consisting of two pages: The witness went on to say that he had pointed out the place of occurrence to the I.O.
Who prepared the site plan at his pointation. He charged the appellants and was taken back to his Hujra at about 4-00 p.m..
' In cross-examination the witness stated that his statement/ complaint Exh.P.W.7/1 was recorded by the police at about 11-45 p.m. He further stated that his statement was recorded by the DSP in the Police Station. The DSP came to their Hujra at 11-20 a.m. And his statement was not recorded by him there. The witness admitted that they and the accused party were having dispute over the land. He further admitted in cross-examination that he has not charged the accused Sheda, Amal Noor and Attaullah. He did not remember the time of his bringing to the house of Sheda but was kept there for one hour. He was also kept in the house of Attaullah for one hour, however, was not taken to the house of Amal Noor. He further stated that accused Gul Rauf, Yaseen and Amal Noor handed over him to the elders of the area. The site plan was prepared at his instance on the date of occurrence i.e, 5-12-2009. The witness volunteered that at 3-00/4-00 p,m. He pointed out the place of occurrence.
11. P.W.8 Mir Khan, S.-I. Police Takht-e-Nasrati is Investigation Officer, who stated that on 5-12-2009 complainant Nazir Zaman made a report to him about the occurrence and took the same vide Mad No,9 dated 5-12-2009. He obtained permission under section 156(3), Cr.P.C. In the case and thereafter went to the spot. After obtaining permission from court he came back to the Police Station where he found the abductee Arshad Zaman present there. There were scratches on the body of the complainant, so he prepared the injury sheet of the abductee, which is Exh.P.W.8/2 and referred him for the medical examination. The abductee submitted written statement to him in the Police Station, which has already been exhibited as Exh.P.W.7/1, wherein, he charged the appellants.
The abductee thereafter accompanied him to the spot and after preparation of the site plan Exh.PB at the pointation of complainant and abductee, he went to village Khojaki Kalle where he recorded the statements of Muhammad Khan, Abdul Sattar, Fazal Wadood and Umar Farooq under section 162, Cr.P.C. And placed the same on file.
' In cross-examination the witness stated that he was accompanied by one or two police constables while leaving the Police Station for the spot, however, he did not remember the names of those police constables. He further stated that first he came to the court for obtaining the permission under section 156(3), Cr.P.C. And thereafter went to the spot. Further stated that he had come to the court at about 10-00 a.m. For getting permission under section 156(3), Cr:P.C. Then he first went to the police station from the court and thereafter proceeded to the spot. The witness admitted that after the court he went to the police station for obtaining the information/consultation with the S.H.O. Regarding the present occurrence. He might have reached the police station at 11-00 a.m. And remained with S.H.O. Regarding consultation for about 10/15 minutes. He, however, denied that the contents of statement of the abductee Exh.P.W.7/1 were written by him rather it was scribed by Arshad Zaman abductee himself and handed over to him in the police station. The I.O. Also denied the suggestion that the elders who had given their statements under section 162, Cr.P.C. Were unaware of the names of the accused. He had written at the end of the statement under section 162, Cr.P.C. On behalf of elders of the locality that they were unaware of the accused. Witness volunteered that at that time the elders of the area disclosed to him that they- were unaware of the accused presently. The word told "BATLAYA" has been subsequently added in the statement of elders of the locality, which is Exh.8/3. The I.O. Showed his ignorance about the said word in Exh.P.W.8/3. The I.O. Further admitted that he has not recorded the statements of the. Elders of the area under section 161, Cr.P.C. He has also neither recorded the statements of complainant Nasir Zaman nor that of Arshad Zaman, the abductee under section 161, Cr.P.C. Witness volunteered that his statement Exh.P.W.7/1 was obtained by him. He further stated that he has neither recovered the mobile sets from the abductee nor got verified the incoming and outgoing calls from it.
12. Admittedly, there is no eye-witness, who could testify to the ocular account. The sole statement of P.W.7, the alleged abductee, is not corroborated by any witness rather P.W.3 has contradicted him to the extent of his release and handing him over by the accused persons. In the statement of P.W.3, the names of appellants do not figure anywhere. P. W.7, the abductee has stated that his statement was recorded by DSP whereas the I.O. Has categorically stated that he had presented a pre- A written statement Exh.P.W.7/3 in police station. The prosecution did not produce the other three independent witnesses as mentioned in the statements of P. Ws. 3 and 7 to whom the abductee was handed over. It is cardinal principle that conviction can only be recorded on the basis of unimpeachable and confidence inspiring evidence. Deliberations and consultations are apparent on record in the instant case and the possibility of false implication cannot be ruled out because of enmity and in view of criminal and civil litigation pending between the parties.
13. In the wake of what has been discussed above and in the facts and circumstances of the case, it is held that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt. In this view of the matter, while extending benefit of doubt, the appellants deserve acquittal.
14. Consequently, instant appeal is accepted. The conviction and sentences of the appellants are set aside. They are acquitted of the charges levelled against them. Appellant No,1 is on bail, therefore, his sureties are discharged from liability of bail bond while the other appellants be set at liberty forthwith if not required in any other case.
' Criminal Revision 106 of 2011 filed by Nasir Zaman for enhancement of sentences of appellants in the circumstances has become infructuous, therefore, stands dismissed.