Ch. Muhammad Younis, J.--This appeal has been filed against the conviction recorded by Mr. Javed Iqbal Judge Anti-Terrorism Court No, II Multan against the appellant in case FIR No, 1050 dated 23.9.2010, registered under Sections 365-A, PPC and 7 of the Anti-Terrorism Act, 1997 at Police Station Gulgasht, District Multan.
2. Briefly stated the allegations as contained in the complaint Exh.PA and the FIR Exh.PA/1 against the appellant are that PW-1 Hafeez Ullah complainant of this case was informed on 20.9.2010 by his wife on telephone at about 10:25 a.m. that his minor son Shehzad is missing. The complainant got announcement made in the Mosques and searched for the minor but his whereabouts could not be found. Meanwhile at 12:50 p.m. from Mobile Phone No, 03027408878 a call was received by him on his Mobile phone asking him to arrange the ransom of Rs, 3,00,000/- for release of his son who had been kidnapped by the caller. After about two hours the complainant received another call at 3:51 p.m. from another Mobile Phone No, 03088605052 whereby the caller asked the complainant as to whether he had arranged the amount of ransom at which the complainant asked the caller that he has arranged the amount and he may be informed where to come for payment of the ransom and for return of his minor son. He was asked to reach Kalru bridge Nawabpur at which the complainant alongwith his brothers-in-law Muhammad Ramzan and Allah Dewaya PWs reathed there at about 5:30 p.m. and found the appellant Majid alias Mak, on his Motorcycle alongwith the abductee minor Shehzad who was pr sent on the fuel tank of the Motorcycle. The appellant leaving the Motorcycle and the minor at the spot fled away. After registration of the case the investigation was carried out and the appellant was challaned and sent up for trial. The learned trial Court framed the charge on 14.1.2011 to which the appellant pleaded not guilty so the prosecution was directed to produce its evidence.
3. In order to prove its case the prosecution produced five PWs, namely PW-1 Hafeez Ullah (Complainant), PW-2 Allah Dewaya, PW-3 Muhammad Shehzad constable an attesting witness of recovery memo. Exh.PB whereby the I.O. had taken into possession the Motorcycle of the appellant on 26.9.2010, PW-4 Muhammad Ashraf ASI a formal witness who recorded the FIR on receipt of the complaint and PW-5 Sadiq Ali Investigating Officer of this case.
4. After concluding the prosecution evidence the appellant was examined under Section 342, Cr.P.C. wherein he claimed to be innocent. However he opted not to produce any defence evidence or get his statement recorded under Section 340(2), Cr.P.C. in disproof of the allegations against him. The learned trial Court vide impugned judgment dated 6.7.2011 convicted the appellant under Section 7(e) of Anti-Terrorism Act, 1997 and sentenced him to imprisonment for life alongwith the forfeiture of his property. However benefit of Section 382B, Cr.P.C. was extended to him. Feeling aggrieved of his conviction the petitioner has filed the instant appeal.
5. The learned counsel for the appellant argued that the prosecution had miserably failed to prove its case and there were material contradictions in the prosecution evidence but inspite of it the learned Court illegally convicted the appellant. The learned counsel maintained that no one except the complainant had heard the telephone call whereby ransom ,-.as demanded. The amount of ransom was neither paid by the complainant nor recovered from the appellant The I.O. did not collect the data of the Mobile Phones of the appellant. The provisions of Section 166(3) and (4), Cr.P.C. were also violated because the recovery was allegedly effected from the limits of Police Station Alpa whereas the FIR was lodged at Police .Station Gulgasht. The learned counsel maintained that there is glaring contradiction in the statement of the complainant and the I.O. regarding the receiving of second phone call from the appellant in which the ransom was demanded. The offence under Section 365-A, PPC was neither made out nor proved. In fact the complainant and the appellant were residents of the same locality and the appellant had demanded the hand of the daughter of the complainant which was refused and due to it the appellant was falsely implicated in this case. The learned counsel prayed for acquittal of the appellant.
6. The complainant is present alongwith the learned counsel. They have not opposed the appeal and the complainant argued that he had no objection to the acceptance of the appeal and the acquittal of the appellant.
7. However the learned DPG has vehemently opposed the appeal and argued that although there are some contradictions in the prosecution evidence but the same are of trivial nature and cannot change the fate of the case. The appellant has committed a heinous, offence and deserves no leniency. The learned trial Court has already taken a lenient view against him while awarding the sentence. The complainant had no enmity with the appellant and he had absolutely no motive to falsely implicate him in this case. He prayed for dismissal of appeal.
8. We have considered the arguments advanced from both the sides and perused the record.
9. Although serious allegations for committing a heinous offence had been levelled against the appellant but the prosecution failed to prove its case beyond any shadow of doubt. Admittedly neither the Mobile Phone or SIM wherefrom the appellant allegedly made calls for demanding the ransom was taken into possession nor any data of the calls was procured by the Investigating Officer and we find it to be a serious lapse on the part of the I.O. It was the basic information to connect the appellant with the commission of offence. There are only three important witnesses in this case, namely the complainant PW-1 Hafeez Ullah, PW-2 Allah Dewaya and PW-5 Sadiq Ali S.I/I.O. The remaining witnesses are formal ones. According to PW-1 Hafeez Ullah the police had come to his house at about 11:45 a.m. but his statement was recorded in the evening. He further deposed in cross-examination that when he received second call at 3:51 p.m. from the appellant SHO was present at that time and he handed over the phone to the SHO to note down the address given by the caller. This fact has not been mentioned in the complaint Exh.PA, The I.O. while appearing as PW-5 in the witness box denied to have ever heard any call of the appellant/accused person. Similarly the complainant categorically stated that when he reached bridge Kalru and alighted from the vehicle alongwith the police his son was found to be sitting on the ground near the Motorcycle and the appellant was present at a distance of 300 feets from the Motorcycle and his son and no police official or the PW tried to chase the accused to arrest him. This version of the complainant is again negated by PW-5 Sadiq Ali, S. I./Investigating Officer who stated that the police had chased the accused for about one kilometer but he managed to escape. PW-5 Sadiq All S. I. further contradicted the complainant while stating that the appellant was present near the Motorcycle while the minor was sitting on the fuel tank of the Motorcycle and the accused had fled away leaving the child there. PW-2 Allah Dewaya deposed that the appellant had fled away on Motorcycle by leaving the minor at the spot but in cross-examination he changed his version and stated that the accused had fled away by leaving his Motorcycle there so the statement of this witness on this point is self contradictory. Admittedly he happens to be brother-in-law of the complainant. Similarly the evidence of the complainant PW-1 Hafeez Ullah is also self contradictory.
In his examination-in-chief he deposed that his son was sitting on the Motorcycle when he alongwith police party reached bridge Kalru and the accused was also standing near his Motorcycle but in the later part of his statement he changed his version and stated that his son was sitting on the ground and the accused had left him there after seeing the police vehicle. PW-3 Muhammad Shehzad claimed that on 26.9.2010 Motorcycle was taken into possession by the I.O. vide recovery memo, Exh.PB. If the-accused had fled away after leaving the Motorcycle on 23.9.2010 at the spot the question arises as to why the same was not taken into possession on the same day.
It has been admitted by the I.O. that Kalru bridge falls within the jurisdiction of P.S. Alpa Multan whereas the police party belonged to P.S. Gulgasht. The I.O. admitted that they had never approached the concerned SHO and got no entry made in the roznamcha of P.S. Alpa so the violation of Section 168 (3) and (4), Cr.P.C. was established for which the I.O. had no explanation.
10. In the light of the above discussion we have reached an irresistible conclusion that' there are some fatal contradictions and material discrepancies in the prosecution case. The prosecution has miserably failed to prove its case beyond any shadow of doubt. The I.O. carried out defective investigation. He has given no explanation for not taking into possession the Mobile Phones and the SIMs wherefrom the calls in question were made for demanding ransom. No data of the calls in question was collected by him from the concerned Mobile Phone Companies. The prosecution failed to connect the appellant with the commission of offence but the learned trial Court has ignored and brushed aside all the material contradictions in the prosecution case. The conviction recorded by the trial Court is thus not sustainable in the eye of law. So the appeal is allowed and the appellant is acquitted by giving him benefit of doubt. He be released forthwith if not required in any other case.