Rauf Ahmad Sheikh, J.--The appellants, namely Anwar-ulHaq, Bashir Ahmad, Zameer Hussain, Muhammad Hayat and Malko have assailed the wires of judgment dated 30.06.2008 passed by .the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan, in cases FIR No, 15/2008 dated 22.1.2008 under Section 365-A, PPC read with Section 7(c) of the Anti-Terrorism Act, 1997, FIR No, 16/2008 dated 22.01.2008 under Sections 324/353, PPC read with Section 7 of the Anti-Terrorism Act, 1997, FIR No, 38/2008 under Section 13 of the Pakistan Arms Ordinance, 1965, FIR No, 39/2008 dated 15.2.2008 under Section 13 of Ordinance No, XX of 1965, FIR No, 40/2008 dated 15.2.2008 under Section 13 of Ordinance No, XX of 1965 and FIR No, 70/2008 dated 15.3.2008 under Section 13 of Ordinance No, XX of 1965, P.S. Sarwar Shaheed, District Muzaffargarh, whereby they were convicted and sentenced as under:--
(i) Anwar-ul-Haq, Bashir Ahmad, Zameer Hussain, Malko and Muhammad Hayat accused/appellants. Convicted under Section 365-A, PPC read with Section 7(e) of the Anti-Terrorism Act, 1997 and sentenced to imprisonment for life each.
(ii) Anwar-ul-Haq, Bashir Ahmad, Malko and Zameer Hussain accused/appellants.
Convicted under Section 324, PPC. read with Section 7 of the Anti-Terrorism Act, .1997 and sentenced to ten years R.I. each with fine of Rs,25,000/- each. If fine is realized half of the amount would be paid to Allah Ditta, S.I. (PW 4). In case of non-payment, the defaulter would undergo S.I. for two years. All the abovementioned four appellants were further ordered to pay compensation to the injured PW-4 under Section 544-A, Cr.P.C. to-the tune of Rs,40,000/- i,e, Rs,10,000/- each. This compensation will be paid to the victim Allah Ditta; S.I. PW-4. In case of non-payment, the defaulter would undergo S.I. for six months.
(iii) All of them. were convicted under Section 13 of Arms Ordinance, 1965 and were sentenced to tine of Rs, 500U each and in case of default in payment thereof, the defaulter would undergo S.I. for one year.
2. Briefly stated the prosecution version as embodied in the FIR (Ex.PAA/1) recorded on the statement of Nasir Ahmad son of Ghulain Nabi, Caste Jat Warriach, Cultivator/Commission Agent. resident of Chak No, 605/TDA, P.S. Sarwai Shaheed, District Muzaffargarh, is that his father'Ghulam Nabi resides with him, whereas his three brothers Muhammad Ansar, Muhammad Zafar and Muhammad Aslam are carrying on business in Kuwait, On 20.1.2008 his father went to Mosque to offer 'Fajar' prayer in routine and when he was collecting water troin the hand-pump of the Mosque, three unknown young persons of moderate height. who were wearing Shalwars and Qarmzes and holding Rifles alighted from an unnumbered white colour 2-D car, which was standing in the eastern side Mosque. The driver kept on sitting in it. All the three persons caught hold of his father and put him in the can per force and drove it towards Sarwar Shaheed. The unknown persons abducted his father after making consultation with an intent to confine him at secret place Muhammad Arshad and Muhammad Arif had also witnessed the occurrence.
3. FIR No, 16/08 (Ex.PC/1) was registered at the instance of Liaqat Ali Ayaz, Inspector/SHO, wherein it was stated that he alongwith Allah Ditta, S.I., Nazir Ahmad, ASI, Mushtaq Ahmad, ASI, Mumtaz Hussain, Muhammad Shoaib and Nazir Ahmad, Constables was present in Sarwar Shaheed, Adda Jamwala, Rangpur road, Mauza Petal Munda Sharaqi in connection with the investigation of case FIR No 15/08 P.S. Samar Shaheed, under Section 365-A, PPC read. with Section 7(c) of the Anti- Terrorism Act, 1997. A spy information was received that three unknown persons armed with fire arms were coming towards Rangpur alongwith an old person aged about 75/76 years and there was strong suspicion that he was Ghulam Nabi Warraich abductee of the said case. As the source was reliable so a picket was formed on the road side but the car was not seen. Another information was subsequently received that unknown persons had left the car and were moving towards river Chenab. In the meanwhile the sun disappeared and darkness spread all over. He alongwith other employees chased the accused persons and arrived in the bushes grown in the Jungle and saw that unknown persons were dragging Ghulam Nabi and they opened firing on the Police party. The Police employees also made firing. After cross-firing for about 10/15 minutes, one fire made by the accused persons hit Allah Ditta, S.I. on his right arm and after crossing through it, the same landed on his left flank. The accused persons fled away while leaving the abductee there. They were chased but could not be apprehended. Allah Ditta was removed to the Hospital.
4. After arrest of the accused persons, Kalashnikovs were allegedly recovered from Anwar-ul-Haq and Bashir Ahmad, whereas Pistols were recovered at the instance of Zameer Hussain and Malko appellants. Separate cases bearing FIR No, 38/08 (Ex.PM/1), FIR No, 39/08 (Ex.PN/1), FIR No, 40/08 (Ex.PP/1) and FIR No, 74/08 (Ex.PT/1) P.S. Sarwar Shaheed were registered under Section 13 of the Pakistan Arms Ordinance, 1965 (Ordinance XX of 1965). The accused persons were sent up to face the trial in all the above-mentioned eases.
5. They were charged under Sections 365-A, PPC read with Section 7(e) of the Anti-Terrorism Act, 1997, Sections 324/353m, PPC read with Section 7 of the Anti-Terrorism Act, 1997 and Section 13 of the Arms Ordinance, 1965 by the learned Arial Court. They pleaded not guilty and claimed the trial.
6. The prosecution examined five witnesses in support of its allegations in addition to the documentary evidence. After conclusion of the trial, the learned trial Court proceeded on, to convict and sentence appellants as mentioned above.
7. Learned counsel for the appellants has contended that the learned trial Court committed material irregularity by holding a joint trial of different cases registered on different dates with distinct allegations; that no evidence worth reliance was produced by the prosecution; that there are material discrepancies in the statements of PW-2 and PW-3; that admittedly Anwar-ul-,Haq appellant and other accused persons were known to the complainant and Ghulam Nabi (PW3) but their names were 'not mentioned either in the complaint or in the statement under Section 161, Cr.P.C. made by Ghulam Nab& (PW-3); that dishonest improvements have been made by both the PWs-2 and 3 so their statements could have not been relied upon; that admittedly the occurrence mentioned in FIR. No, 16/08 dated 22,01.2008 P.S. Sarwar Shaheed, took place in the darkness of the night and in the Jungle, where no source of light was available so the identification of the accused was not possible; that the appellants were very well known to PWs-2 and 3 as Anwarul-Haq appellant had sold his land to the son of the abductee Ghulam Nabi and brother of the complainant Nasir Ahmad and there was a dispute regarding payment of the remaining price so had they been involved in the case, neither the complainant would have hesitated in mentioning their names in the FIR nor the PWs would have concealed the same in their statements under Section 161, Cr.P.C.; that the independent witnesses, who had allegedly seen the occurrence were given up without any lawful excuse; that the persons, who had allegedly Witnessed the recoveries have also been given up so there is no corroborative evidence available and that the complainant and victim have entered into compromise. which shows that they were also not, sure about the involvement of the appellants in the commission of the offence.
8. Learned counsel for the complainant has stated that the complainant and the abductee have entered into compromise with the appellants. He frankly conceded that no reliable evidence could be collected or produced during the trial and urged that the Court may decide the appeal on the basis of the evidence available on the record.
9. Learned DPG has vehemently opposed the contentions raised at the bar by learned counsel for the appellants and contended that the offence is not compoundable and that reliable evidence was produced: to prove that the appellants are connected with the commission of heinous offence so do not deserve any leniency.
10. The main contention raised by the learned counsel for the appellants is that the trial stands vitiated as the appellants were tried for commission of different offences allegedly committed at different tunes and places: As per contents of the FIRs (Ex.PC/1), (Ex.PM/1), (Ex. PN/1), (Ex.PP/1) and (ELPT/1), after the occurrence reported vide FIR No, 15/08 P.S. sarwar Shaheed, District Muzaffargarh (Ex.PAA/1) the subsequent events were direct consequences of the same and ensued there-from. If a chain of offences is committed during same transaction and the acts are connected inter se resulting into more than one offence, such offenders can lawfully be tried in one trial in view of the provisions of Section 235, Cr.P.C. The objection that the trial is vitiated on this ground has, therefore, no force.
11. In the cross-examination, PW-2 stated that Anwar-ul-Haq appellant and other members of his family are well known to him. Similar statement is made by Ghulam Nabi (PW-3). It is also an admitted fact that the parties were on visiting terms to each other. In this scenario, the omission to give the names of the appellants in the FIR (Ex.PAA/1) becomes significant and a serious doubt arises as to correctness of the prosecution allegations. PW-2 tried to make up this deficiency by stating that three accused persons had muffled their faces. When confronted with Ex.PAA, it .was found that he did not make any such statement before the Police. Ghulam Nabi (PW-3) stated that he had identified the accused persons at the time of his abduction and narrated so before the Police. When confronted with Ex.DA, it was found that he had not mentioned so therein. PW-2 stated that 45 minutes after abduction of his father, he received a telephone call through which the demand for ransom was made and categorically stated that this fact was mentioned by him before the Police. When confronted with Ex.PAA, it was found that he had not made any such statement. The occurrence took place on 20.01.2008, whereas the FIR was lodged on 22.01.2008. Had his statement been true this fact definitely would have been mentioned in the FIR. He further stated that he did not mention the names of any of the accused persons before the Police till recovery of his father. According to him & his father on one hand and the appellant Anwar-ul-Haq and other members of his family on the other hand were very well known to each other. Had there been any truth in it, he would have clearly mentioned his name in the FIR. In the FIR it was mentioned that four persons including the driver had abducted Ghulam Nabi (PW-3) but five appellants have been convicted for commission of the same offence. From this angle, even according to the version of the complainant one of them was certainly not involved in the abduction. It is not clear as to who he was and as such the involvement all the five persons becomes doubtful on this score also.
Ghulam Nabi (PW-3) has stated in the cross-examination that he did not nominate any one of the accused persons in his statement recorded in the Police Station after his recovery. It is also an admitted fact that Anwar-ul-Haq appellant and other members of his family were well known to him so there was no reason for withholding the names of the persons responsible for his abduction even after his release. In these circumstances, the involvement of the appellants in abduction of Ghulam Nabi for ransom or otherwise is not proved.
12. It is true that Allah Ditta, received an injury at the time of alleged recovery of Ghulam Nabi by the police but it is an admitted fact and is also clear from the statements of the PWs that this part of the occurrence had taken place in the darkness of the night. The FIR (Ex.PC/1) reveals that the alleged encounter had taken place after 7.00 p.m. on 22.01.2008. In the month of January at 7.00 p.m. in a Jungle, where no source of light was available, the identification of any person from distance of 15/20 'Kann's' was not possible. The alleged recovery of the weapons of offence at the instance of the appellants is also not proved and doesn't connect them with the commission of the offence as none of the recovery, witnesses has entered the witness box. The recoveries of mobile phones and arms are not proved by producing the attesting witnesses of the memos. Above all Muhammad Arshad and Muhammad Arif, who had allegedly witnessed the occurrence, were also not produced in addition to all the witnesses of all the recovery memos. These facts also caste a serious doubt as to correctness of the prosecution allegations against the appellants.
13. For all what has been observed above, we are of the considered view that the learned trial Court failed to appreciate the evidence in its true perspective and erred in recording convictions and awarding the sentences to the appellants. The impugned judgment is not sustainable in the eyes of law.
14. For the reasons supra, the appeal in hand succeeds and the same is hereby accepted.
Consequently, the impugned judgment is set at naught and convictions recorded and sentences awarded to the appellants are set aside. Anwar-ul-Haq, Bashir Ahmad, Zameer Hussain and Malko appellants are in the Jail. They be released forthwith if not required to be detained in any other case. Muhammad Hayat appellant is on bail and is discharged of his bail bonds.