'SYED AFSAR SHAH, J.---Since the instant Jail Criminal Appeal bearing No,469 of 2011 titled "Zahid Hussain v. The State" and J.Cr.A. No,463 of 2011 having the same title are outcome of the same incident, therefore, by way of this single judgment we would like to dispose of both the appeals.
2. The story of prosecution as discussed in the F.I.R. Exh.PA, which has been registered on the basis of murasila Ex.PA/1, may briefly be narrated as follows.
3. On 16-9-2008, Sher Aman, to Police Station Lund Khwar Mardan was on gusht of the Illaqas, when at about 730 hrs Saiful Islam made him a report to the effect that he is running a "Karyana" shop situated at Gul Maira and that on 15-9-2008 he was present there when got information from his house that his son, namely, Asadullah, a student of 6th class in Baizai Public School, on his way back to home, in Qingqi rickshaw has been abducted by five armed persons. That after hectic efforts and search, he had come to know that his son has been abducted by the appellant and his four other companions for the purpose of ransom. The complainant Saiful Islam in his report has charged the appellant along with four unknown accused.
4. Similarly, in the connected F.I.R. No,624, S.H.O. Sher Aman was on mobile gusht when informed by the informer about the presence of abductee near Shinkai Pull and hence he along with police nafri proceeded to there, whereafter, an encounter with the accused, the abductee was recovered and the appellant was also arrested fn an injured condition whereas his remaining companions succeeded in making their escape good from the spot. A separate F.I.R. Ifs respect of the above encounter was also registered against the appellant and four others.
5. Investigation was started in the case and on completion of the same challan was submitted to the Judge, Anti-Terrorism Court, Mardan in both the cases who on conclusion of the trial convicted and sentenced the appellant through separate judgments both dated 12-7-2011, which are as follows:--
(i) under section 365-A, P.P.C. Read with section 7(e) ATA to undergo imprisonment for life.
(ii) under section 353, P.P.C. Read with section 7(h) ATA to suffer 5 years' R.I. With a fine of Rs,10,000 or in default thereof to undergo 3 months' S.I.
(iii) under section 324, P.P.C. Read with section 7(b) ATA to suffer 10 years' R.I. With a fine of Rs,20,000 or in default thereof to undergo 6 months' S.I.
(iv) under section 419, P.P.C. To undergo 5 years' R.I., and
(v) under section 13 A.O. To suffer 7 years' R.I.
' All the sentences were directed to run concurrently, however, benefit of section 382-B, Cr.P.C. Was extended to the appellant.
6. In order to understand, the factual position of the case in its true perspective, it would be relevant to give a brief summary of the material/important prosecution witnesses.
7. Appearing as P.W.1 Sher Aran, S.H.O. Stated that on the day of occurrence he was on gusht of the Illaqa when in the meanwhile the complainant met him at village Darra and made him a report, which he reduced into the shape of murasila as Exh.PA/1. Here it is pertinent to dote that in case F.I.R. No,623, this witness was examined thrice. According to him, on the receipt of spy information with respect to the presence of abductee Asadullah, he raided Shinkai Pull and after an encounter not only made his recovery but also arrested the appellant in an injured condition. He further stated that the other companions of the appellant decamped from the spot. Again when he was examined on 11-6-2011 he stated that some material were not mentioned in his statement and there he stated about the arrest of the accused Bashar, recovery of motorcar from his possession and arrest of appellant with kalashnikov.
8. Gohar Khan, A.S.-I. Has been examined as P.W.5 and according to him on the information conveyed to the S.H.O. For the recovery of abductee Asadullah and arrest of the accused, he along with other police nafri conducted raid on Shinkai Pull where the accused were present. This witness has stated about the cross-firing between the police and the accused, injury on the person of the appellant and recovery of the abductee from the "Burj" where he was kept.
9. Tahir Shah Khan, S.I., who has been examined by the prosecution as P.W.6 has conducted the post occurrence investigation in the present case. Being an I.O. He has stated in support of the investigation, which he has conducted in the present case. He has recorded the statements of the P.W. Under section 161 Cr.P.C., got examined some of the P.Ws. Under section 164, Cr.P.C., made arrest of some of the accused, prepared the site plan, pointation memos, interrogated the accused, produced them in the concerned court for recording their confessional statements and thereafter sent them to the judicial lock-up.
10. Saiful Islam, the complainant and father of the abductee when appeared as P.W.3 has stated that on the day of occurrence he was present in his shop when got information from his house that his son Asadullah has been abducted by five armed persons for the purpose of ransom; that during the search he came to know that his son has been abducted by one Azmat of Mohmand Agency along with his four companions. According to him, later on during the course of investigation his statement was recorded in the court of Illaqa Magistrate where he disclosed the real name of the accused as Zahid Hussain along with his other companions Saeed Hussain, Akbar Ali, Shaukat Ali, Muhammad Ali, Izzat Gul and Bashar. This witness in his statement had made it clear that he had charged co-accused Shaukat for demanding ransom from him on his mobile and so far as the abductee Asadullah is concerned, when appeared as P.W.4, he stated that on 15- 9-2008 after the closing hours of the school he along with other persons were boarded in a Qingqi and on his way back to home when they reached near Shah Dhand Chowk, the appellant Zahid Hussain signaled them to stop; that he was deboarded from the Qingqi, whereafter he was taken to the sugarcane crops and then took him in a motorcar. He further stated that on the next day he was taken to a place where eucalyptus trees were standing and that in between degar-villa and evening time he was taken to a "Burj" when in the meanwhile the police party arrived there and as a result of exchange of firing he recovered from the "Burj" and also made arrest of the appellant.
According to him, the remaining accused succeeded in making their escape good from the spot.
' Arguments heard. Record perused.
11. The prosecution case mainly rests on the following categories of evidence:--
(i) Recovery of abductee.
(ii) Arrest of the appellant in an injured condition and encounter between the police party and accused.
(iii) Statement of the complainant and abductee Asadullah.
(iv) Identification parade of the appellant and his co-accused Shaukat and Izzat Gul.
12. It is in the evidence of P.W. Sher Aman that he was on gusht of the Illaqa when got information about the presence of abductee at Shinkai Railway Pull. According to him, on that day it was raining and there was complete dark but as against this Gohar Khan, A.S.-I. Who was also member of the raiding party by denying the version of Sher Amam, S.H.O. Stated that the weather was clear on the day of occurrence and it was not raining. Again it is in the cross-examination of P.W.1 that the exchange of firing between the police party and the accused took place for about ten minutes but as against this it is deposed by P.W.3 Gohar Khan, A.S.-I. That the firing continued for about thirty minutes. It is in the evidence of P.W.1 that he has not recovered any bloodstained earth from the place of the accused but P.W.3 has stated otherwise as according to him he took into possession some blood stained earth from the crime spot.
13. Tahir Shah Khan P.W., who has conducted post occurrence investigation in the present case, has stated about the recovery of some blood-stained earth from the place of the injured appellant and that too from inside the "Burj" as according to him after sustaining injuries he had gone inside the "Burj". Here it is pertinent to note that in the connected F.I.R., which was registered as a result of encounter, there the appellant was injured and examined by the doctor and that doctor has categorically stated in his court statement that by sustaining injuries like the one, the injured become incapable to move or for that matter even to walk. It is in the cross-examination of P.W.1 that the abductee was confined in a "Burj" and that by "Burj" he means the place like the trench having holes and walls used for security purposes; that at the time of firing the appellant had come out from "Burj" and here the question would be that when the "Burj" was having holes, what were the circumstances, which constrained the appellant to come out from the same as he could easily fire at the police party from the holes available there in the "Burj" and again in the circumstances he was not required to expose himself to the police. It is in the statement of P.W.
Sher Aman that at the time of firing the accused and the police party were in front of each other.
Admittedly, from both the sides sophisticated weapons have been used followed by an indiscriminate firing and the injury only on the person of the appellant is also not appealable to a prudent mind. The only inference that one could draw from such course of event is that the occurrence has not taken place the way and manner as stated by the prosecution. Not only this, it is in the cross-examination of Sher Aman, S.H.O. That it was raining on that day and there was a complete dark and that even at the time of firing darkness was prevailed.
14. Tahir Shah Khan, P.W., who as stated earlier, has conducted post occurrence investigation in the present case has deposed in his cross-examination; that he has not inquired from the complainant as to from whom he came to know about the appellant. He has stated about the recording of statement of the Qingqi driver under section 161, Cr.P.C. On 27-10-2008 after a delay of more than one month. Admittedly, statement under section 161, Cr.P.C. Is irrelevant but such an abnormal delay in recording the statement of the driver of the Qingqi caused further doubt on the prosecution version and one could drawn an inference that he was not ready to give his statement according to their whims. Here it is pertinent to note that the said Qingqi driver an important witness of the incident has not been examined by the prosecution.
15. It is in the cross-examination of the complainant Saiful Islam that he was informed by his wife in respect of the occurrence through telephonic message but it is with dismay she has not been examined. Again, he stated that other children/companions of the abductee had informed her mother and so far as the abductee is concerned, he has categorically stated that neither his relatives nor other students of his village were studying with him in the said school. This version of the abductee not only makes the version of his father doubtful but also his very admission in the Baizai School becomes doubtful. He has neither produced any Certificate recording his studying in the said School nor even evidence to the effect that on the day of occurrence he was marked present, if at all, he was student of the said School.
16. According to the abductee he had not seen the police with his own eyes. When the place where he was kept were having holes and when he was not chained, how he did not see the police party.
17. The circumstances do reveal and we may put it another way that, firstly, he was not present there in the "Burj" and secondly, if at all, the was there, he has suppressed the actual facts and has totally twisted the manner in which the occurrence really took place.
18. It is in the evidence of the complainant Saiful Islam that at the time of encounter with the police he was present with them and had also identified the appellant but as against this none of the prosecution witness has stated even a single word to the effect that at . The time of encounter between the police party and the accused, father of the abductee was also with them and which fact is further clear from the statement of Sher Aman P.W. That on the day of occurrence when he got information about the presence of abductee at Shinkai Railway Pull, he along with police nafri including Gohar Khan, A.S.-I. Proceeded to there where the encounter took place. Again it is deposed by P.W. Saiful Islam that the weather was clear at that time and the accused were visible but this version, as discussed earlier, has been denied by P.W. Sher Aman that it was raining on that day and there was a complete dark.
19. Above all, the complainant has failed to disclose the source of his information as to how and from whom he came to know about the culprits. His this version that he had made inquiry regarding the involvement of the appellant from different criminal groups of the locality is an improvement because the F.I.R. In this respect is silent. Even, otherwise, it stands to no sound reason.
' Again it is in the statement of the complainant that accused Shaukat (since acquitted) has made a demand of ransom from him on his mobile but on record no such data of the mobile is available.
20. So far as the identification parade of the appellant and his co-accused is concerned, it is in the cross-examination of P.W.6 that the appellant was known to the abductee prior to the identification parade and that the prade was conducted after more than two months of the occurrence.
' When the appellant was already known to the person through whom he was identified I and when the parade was conducted afte such an abnormal delay, it has got no evidentiary value at all in the eyes of law.
21. From the above discussed evidence, we are clear in our mind that there is glaring contradiction between the version of the star witnesses of the case and as observed by the apex court in the case of "Tariq Pervez v. State" (1995 SCM R 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubt. If there is circumstance, which created reasonable doubt in a prudent mind about the guilt of the accused, then he would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.
22. In the attending circumstances of the case, we failed to understand the logic adopted by the trial Court for convicting the appellant without looking at the substance of evidence adduced at the trial, hence the impugned judgments are absolutely unsustainable in the eyes of law and have caused miscarriage of justice, resultantly, this and the connected appeal are allowed, the conviction and sentence recorded by learned Judge, Anti-Terrorism Court, Mardan vide impugned judgments both dated 12-7-2011 are set aside. The appellant is acquitted from all the charges levelled against him and hence be set at liberty forthwith, if not required in any other case.
' These are the detailed reasons for our short order of even date.