Syed Muhammad Kazim Raza Shamsi, J.--This criminal appeal filed by Munir Ahmad under Section 25 of the Anti-Terrorism Act, 1997 is directed against judgment dated 11.11.2010 passed by the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan, whereby he was tried in case arising out of FIR No, 188, dated 2.7.2009 registered under Section 365-A, PPC read with section 7(e) of Anti- Terrorism Act, 1997 with Police Station Darahma, District D.G Khan. Under both heads of the charge the appellant was convicted and awarded sentence of imprisonment for life under each head.
Moveable and immovable property belonging to the appellant was also ordered to be confiscated in favour of the State. Both the sentences were ordered to run concurrently with the benefit of Section 382-B, Cr.P.C.
2. The criminal machinery in this case was set into motion on the statement of one Muhammad Asif stating that on 27.6.2009 his aunt Mst. Zakia Bibi by summoning the complainant at her house told that Muhammad Suleman, his son, who was working in the workshop of Mustafa Lashari was kidnapped by one Munir Ahmad, who was seen by Ghulam Akbar taking the victim in a 'Dala'. She further told that Muhammad Suleman on 25.6.2009 had told her that Munir Ahmad had allured him to go to Dubai where he may earn handsome amount. It is further narrated that at 11. p.m on that day Mst. Zakia received mobile call whereby she was informed that Suleman was residing with that person and demanded Rs,200,000/- for the release of Suleman. When Mst. Zakia inquired the name of the caller it was told that Munir Qureshi was talking. In this backdrop the instant FIR was lodged initially under Section 365, PPC and subsequently offence under Section 365-A, PPC read with section 7(e) of Anti-Terrorism Act, 1997 was added.
3. The Police after conducting the investigations sent report under Section 173, Cr.P.C. to the Court concerned for trial. It is pertinent to mention that Muhammad Suleman subsequently returned to his home and joined investigation with the Police where he made a statement under Section 161, Cr.P.C.
4. Learned trial Court after framing the formal charge against Munir Ahmad appellant recorded the requisite evidence consisting upon the statements of six PWs, which was confronted to the appellant. The appellant set up his defence in his statement recorded under Section 342, Cr.P.C. in the following words:-- "Suleman abductee paid amount to the persons for going Dubai but those persons usurped the amount of abductee who were my acquaintance. Abductee and complainant asked him to get return the amount which I refused to do so and I have been falsey implicated in this case. All the PWs are relatives of the complainant. They have deposed against me due to their relationship."
5. He did not appear as his own witness under Section 340(2), Cr.P.C. nor opted to produce any defence evidence. After conclusion of the trial, learned trial Court convicted the appellant and sentenced him in above terms.
6. It is contended by the learned counsel for the appellant that the prosecution could not produce convincing and cogent evidence to establish that the victim was abducted by the petitioner nor any data of the calls allegedly made by the appellant to Mst. Zakia Bibi was collected as such the charge of abduction and demanding ransom of Rs,200,000/- could not be established on the record. It is pointed out by the learned counsel that the learned trial Court has misread the prosecution evidence for reaching at a conclusion of conviction against him.
7. On the other hand, learned DPG termed that the prosecution has successfully established the charge against the appellant by producing corroborative and cogent evidence proving that the appellant had kidnapped Muhammad Suleman for the purpose of obtaining ransom for his release as such his appeal is liable to be dismissed.
8. We have considered the submissions made by learned counsel for the parties and examined the evidence. According to the allegations levelled in the FIR (Ex.PA/1) one Ghulam Akbar had seen the abductee in the company of the appellant, who is a material witness of the case but the Police did not join him in the investigations nor recorded his statement under Section 161, Cr.P.C. Said Ghulam Akbar also did not appear as a witness during the trial. This material evidence is lacking in the prosecution case through which, if produced, it could be proved that the abductee was seen lastly in the company of the appellant. This fact of seeing the abductee in the company of Munir is also not supported from the statement of Muhammad Suleman abductee, who deposed as PW.4 in the Court. Further when the prosecution evidence is examined minutely it is noticed that the abductee himself returned to his house voluntarily meaning thereby that his release from the clutches of the appellant was not due to the payment of the ransom demanded by him, rather he without any restriction returned to his house. When no money was transferred for the release of the abductee, in our opinion, offence under Section 365-A, PPC is not made out, thus the charge framed under that section has rendered groundless. Further it was the allegation of Mst. Zakia Bibi that she had received a call on her mobile number given in the FIR whereby the caller shown his identification as Munir Qureshi and demanded Rs,200,000/- from her. The Police neither had taken into possession the mobile phone of Mst. Zakia Bibi nor had collected any data from the mobile company for proving that any call was received by the lady at her mobile and that call was made by the appellant demanding the cash amount. It is also oozed out from the evidence available on the record that the abductee with his own free will had gone somewhere else and was never kidnapped by the appellant. Similarly the statement of Mustafa Lashari, the person with whom the alleged abductee was working in his workshop is also very important witness of the case but his statement was not recorded either by the Police nor he was produced in the Court for proving the allegations contained in the first information report. In this backdrop, we are of the candid view that the prosecution evidence was neither sufficient nor cogent to prove the charges framed against the appellant. In view of this scanty evidence, we are constrained to differ with the findings of conviction recorded by the learned trial Court.
9. In view of the above discussion, the appeal filed by the appellant Munir Ahmad is accepted setting aside the conviction and sentence awarded to him. The appellant shall be released from the jail forthwith, if not required in any other criminal case.