' SHAHID HAMEED DAR, J.---Abdul Samad-appellant was held guilty under sections 365, 337-F(i), 337-L(2), P.P.C. By the learned Judge, Anti-Terrorism Court No,II, Gujranwala, vide judgment dated 20-5-2009 and sentenced as under:--
(i) Under section 365, P.P.C.: to undergo rigorous imprisonment for seven years with fine of Rs,25,000 or in default thereof to further undergo simple imprisonment for one month.
(ii' Under section 337-F(i), P.P.C.: to undergo rigorous imprisonment for one year on two counts for causing injuries to Abdul Majeedcomplainant and his son Munib Ahmad, with Daman of Rs,10,000 on two counts or in default thereof to further undergo simple imprisonment for fifteen days on each count. Ii) Under section 337-L(2), P.P.C.: to undergo rigorous imprisonment for one year, with Daman of Rs,10,000 or in default thereof to further undergo simple imprisonment or fifteen days.
' All the sentences were ordered to run concurrently.
2. The convict-appellant by filing the instant appeal has called in question the impugned judgment.
3. The prosecution story in brief as unfolded by Abdul Majeed-complainant (P.W.1) in application (Exh.PA), is that he was resident of X-Block Peoples Colony Gujranwala and ran a shop in Rail Bazaar; on 22-1-2009, at evening time, he along with his son Munib Ahmad after closing the shop, as usual, left for their home by means of motorcycle bearing Registration No,7170/GAH; at about 8.15 p.m., when they reached near the house of Sh.Muhammad Islam in Street No, 16, X-Block, a white colour-Alto Car struck them from behind, as a result .Of which they fell on to the ground; three young boys of medium height and average physique, two of them armed with rifles and one with pistol alighted the car and started pulling his son towards the car; he tried to rescue his son and in result they beat and injured them both; the accused forcibly put Munib Ahrnad into their car at gunpoint and drove away; he submitted an application (Exh. PA) before the S.H.O., Police Station Peoples Colony, Gujranwala at 12.20 a.m. On 23-1-2009, on the basis whereof Muhammad Shabbir, SI (P.W.7) drew up formal F.I.R. (Exh.PA/2), the same day.
4. After registration of the case, its investigation was entrusted to Muhammad Iqbal S.I. (P.W.8), who immediately reached the place of occurrence, inspected it and prepared visual site plan (Exh.PF) thereof; the complainant produced before him his Medico-legal Report; he completed all legal formalities and started search of the unknown accused; on 27-1-2009, the complainant (P.W.1) produced before him telephone numbers, wherefrom he received calls from the accused demanding ransom; on 28-1-2009, he recorded supplementary statement of the complainant, wherein he nominated the accused-persons including name of the appellant; on 1-2-2009, at about 1.30 he received an information that in Madina Town, falling within the territorial jurisdiction of Police Station Civil Lines, one of the accused Muhammad Khalid had been killed in an encounter with the police and Munib Ahmad (abductee) had been got released, whereupon he reached there and recorded statement of the abductee under section 161, Cr.P.C.; as Munib Ahmad (abductee) was found injured, therefore, he got him medically examined on 2-2-2009 from the DHQ Hospital, Gujranwala and placed on record his Medico-legal Report (Exh.PC); on 9-2-2009, he joined Abdul Samad, accused/appellant in investigation, who was already in custody being involved in case F.I.R. No,415/2008, under section 365-A, P.P.C., registered at Police Station Peoples Colony, Gujranwala; he on pointedness of the accused/appellant secured car (P1) bearing Registration No,6463/LEF-07 vide recovery memo Exh.PD, duly attested by Mubashar Hussain 2675/C (P.W.5) and Javed Iqbal 2804/C P.W. (not produced); the accused/appellant also got recovered pistol .30- bore. (P2) loaded with five live bullets (P3/1-5) vide recovery memo Exh.PE, duly attested by Muhammad Sharif 2476/C and Hamid Abdullah 1940/C P.W. (not produced); on completion of investigation, he submitted incomplete report under section 173, Cr.P.C. Before the court for trial of the accused/appellant, whereas rest of the accused were declared proclaimed offenders.
5. The appellant on indictment pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced eight witnesses, namely, Abdul Majeed-complainant (P. W .1), Munib Ahmad-abductee (P.W.2), Dr. Manzoor Ahmad Butt (P.W.3), Dr. Mubashar Yaqoob (P.W.4), Mubashar Hussain 2675/C (P. W .5), Muhammad Sharif 2476/C (P.W.6), Muhammad Shabbir S.I.
(P.W.7) and Muhammad Iqbal S.I. (P.W.8). Thereafter, the appellant was examined under section 342, Cr.P.C., whereby he professed his absolute innocence in the matter and denied all the charges against him. He did not opt either to depose under section 340(2), Cr.P.C. Or to adduce evidence in defence. The contention adopted by him in reply to question as to why this case against him and why the P.Ws. Deposed against him, reads as under:- "I am innocent. I am general secretary of Khatm-e-Nabuwat organization, Gujranwala and Khateeb in Mosque where I delivered sermon against Ahmdees as complainant of this case and his son both are also Ahmdees and they nourished grudge against me and falsely involved me in this case in connivance with local police. Neither pistol nor live bullets and nor car as alleged by the prosecution witnesses was recovered from me or at my instance and these articles have been falsely planted upon me only to strengthen the prosecution case against me and I am innocent. 1 am not related to the house from where allegedly abductee was recovered. My resident is in Usman Colony, Chicherwali, which is at about 213 kilo meters from the said place within the jurisdiction of Police Station Satellite Town, Gujranwala."
' The learned trial Judge on conclusion of the trial held him guilty of the offence charged and sentenced him as mentioned hereinabove.
6. Learned counsel for the appellant has contended that the prosecution case is filled with countless contradictions, pitfalls and inconsistencies, which have not been attended to by the learned trial court while passing the impugned judgment; it is virtually a case of no evidence and appellant has been held guilty and awarded sentence by the learned trial court merely on conjectures and surmises; the prosecution has badly failed to bring home the guilt of the appellant beyond reasonable shadow of doubt, hence, the impugned judgment may be set aside and appellant may be acquitted of the charge.
7. In negation to the above, learned Deputy Prosecutor-General Punjab assisted by learned counsel for the complainant has submitted that the abductee, Munib Ahmad appeared as P.W.2 during trial and his testimony is well-corroborated by the statement of the complainant Abdul Majeed (P.W.1) and Dr.Mubashir Yaqoob (P.W.4), coupled with the statement of the Investigating Officer Muhammad Iqbal SI (P.W.8); the prosecution did its duty well at the trial and proved the guilt of the appellant beyond all shadows of doubts, hence, the impugned judgment may be maintained and appeal-in-hand may be dismissed.
8. We have heard learned counsel for the parties and gone through the relevant record. The written application (Exh.PA) submitted by Abdul Majeed (complainant/ P.W.1) relates to forcible abduction of his son Munib Ahmad (P.W.2), a young man of 25/26 years of age, at about 8.15 p.m. On 22-1- 2009, by three unknown armed men, in his presence, as he also rode Motorcycle No,7170/GAH together with his son at the crucial hour. The unknown accused sped away their car along with the abductee. The complainant (P.W.1) reported the crime to the police pretty quickly as is evident from the formal F.I.R. (Exh.PA/2), which shows the time of its registration, 12.20 a.m. On 23-1-2009, about four hours after the occurrence. By looking at the prosecution case as a whole, we find that the ocular account has been furnished by Abdul Majeed-complainant (P.W.1) and his abducted son Munib Ahmad (P.W.2), whereas the evidence of recovery of a few articles, a car bearing Registration No,LEF-6463 (P1) and pistol .30-bore (P2) with five live bullets (P3/1-5) has been furnished by Mubashar Hussain 2675/C (P.W.5), Muhammad Sharif 2476/C (P.W.6) and Muhammad Iqbal S.H.O. (P.W.8), whereas medical evidence has been tendered by Dr.Manzoor Ahmad Butt (P.W.3), who after medically examining Abdul Majeed-complainant (P.W.1) issued Medico-legal Report (Exh.PB) and Dr.Mubashar Yaqoob (P.W.4), who after examining the injuries of Munib Ahmad (P.W.2) on 2-2-2009 issued Medico-legal Report (Exh.PC) in respect thereto.
9. First of all, we take up the ocular account, comprising statements of Abdul Majeed-complainant (P.W.1) and Munib Ahmad, the abductee (P.W.2). Does this particular account inspire confidence or does it ingrain an element of believability are the crucial questions, the answer to which would mean a lot to the outcome of this case. Abdul Majeed (P.W.1), who as per his written application (Exh.PA) failed to nominate any of the abductors of his son except for alleging therein that his son was abducted by three unknown young armed men. He astonishingly, did not talk about his supplementary statement as pointed to by the Investigating Officer in his examination-in-chief as P.W.8, but he uttered a very crucial sentence therein that Abdul Samad accused had been identified by him. When and where, no clue to it was hinted at by him. Did he mean that Abdul Samad (appellant) was previously known to him? He removed this ambiguity in his testimony by deposing that the appellant used to visit his Mohallah before the occurrence and he had heard that he was teaching in the Karimia-mosque, which was at a distance of about one furlong from his house. He further claimed in his testimony that he had identified Abdul Samad accused (appellant) at the spot. He, however, in his statement contradicted himself when he said that he did not know Abdul Samad accused before the occurrence and that he saw him for the first time at Police Station Civil Lines, after his arrest on 1-2-2009. Munib Ahmad, the abductee, who appeared as P.W.2 stated in his testimony that Abdul Samad accused (appellant) was one of the three abductors who abducted him on 22-1-2009; his father, like him, was thrashed by them during the occurrence; they confined and chained him in a room and snatched from him cash Rs,1200, the documents of his motorcycle and his national identity card. He also deposed that the wife of Abdul Samad (appellant) used to provide him meals during the period of his confinement. He further stated in his testimony that the accused had threatened, if their demand of ransom was not met with, they would murder him. About his rescue from the clutches of the accused, he categorically stated that an encounter took place on 31-1-2009 between the police and the accused, during the course of which a companion of Abdul Samad (appellant), namely, Khalid was killed and rest of the accused including the appellant fled the spot under the cover of darkness through the backdoor of the house and as a result of this clash, he was recovered and released by the police.
' Both the witnesses of ocular account admitted in their statements that they were Ahmadees by faith. Both of them showed obliviousness rather they seemingly denied the suggestion that Abdul Samad (appellant) had made a speech against the Ahmadees and for this reason he had been falsely involved in this case by the complainant. As narrated earlier, the complainant did not nominate anyone in the F.I.R. It can easily be gathered from his testimony that he was well acquainted with the appellant prior to the occurrence as he (appellant) taught in a mosque of the locality, which was at the distance of a crow's flight from his house. It may not be a surprising factor, if he being a teacher/muallam in a mosque, situated close to the locality where many a houses of Ahmadees were situated, he delivered a speech or speeches against them and for this reason the complainant and his son might have felt annoyed over it. Being a teacher in the said mosque and being a visitor to the Mohallah of the complainant, it was reasonably believable that he was well-known to the complainant side prior to the occurrence. That's why the sentence uttered by the complainant in his testimony that he "identified Abdul Sarnad accused on the spot" does not convey any other meaning than the one, mentioned herein earlier. The appellant's name as an abductor of Munib Ahmad, would have got into the F.I.R. Straightaway, had he been linked with the said abduction-incident in any manner. The complainant by having categorically mentioned the age, the height and general physique of the unknown abductors in the crime-report (Ex.PA/2) gave clear signal that the perpetrators of the crime were not previously known to him and in this backdrop, the implication of the accused-appellant in the instant case looks dubious and skeptical. The same mohallah, the same vicinity, the profession of being a teacher in a nearby mosque, the complainant's admission and that of his son that they were Ahmadees, are such factors, which lead to believe that the elements of deliberations and consultations could not be ruled out in respect of involvement of the appellant in the instant case. The learned trial court appears to have overlooked the startling contention of the complainant about having identified Abdul Samad (appellant) at the spot and still not naming him in the F.I.R., so casually that one could feel sorry for such a careless and irresponsible way of misreading the prosecution evidence.
The complainant failed to highlight the circumstance in his testimony through which he involved the appellant in the instant case nor he burdened him anywhere in his testimony, if he ever demanded any ransom amount from him either telephonically or otherwise. In brief, the nomination of the appellant in the instant case as an accused is enveloped in a thick layer of haze, which has eclipsed the veracity of the case, set up by the prosecution against the appellant.
10. So far as the recovery and release of the abductee on 31-1-2009 in consequence to a police encounter is concerned, suffice it to say, we find no corroboration to the said claim of the abductee (P.W.2), according to which he ,burdened the appellant and his co-accused, to have fired at the police-party and run away from the hot-spot under the sheath of darkness by leaving behind the dead body of their crime-partner, Khalid. Who conducted the raid, who were the members of the raiding-party and what weaponry they possessed at that time, how and when the raiding-party reached the place of confinement of the abductee, how the encounter started and finished, how did Khalid die and what was the evidence to believe as to his cause of death are the questions, the prosecution has failed to tender any answer in respect thereto. It definitely leads to creating certain breaches not only in the evidence of the eyewitnesses but also in the case as a whole. We find on the record, though not a part of the prosecution evidence, a photocopy of an application, having been written by the Inspector/S.H.O. On 1-2-2009, pertaining to the above stated police-encounter, which led to registration of case-F.I.R. No,55/2009, under sections 324, 353, 148, 149, 212 P.P.C. Read with sections 6/7 of the Anti-Terrorism Act, 1997 and section 13 of the Pakistan Arms Ordinance, XX of 1965, at Police Station Civil Lines, Oujranwala, but none of the police-officials, twenty nine (29) in all, has been produced as a prosecution witness in the instant case. The testimony of the abductee for want of corroboration is held unbelievable and untrustworthy. The ocular account, therefore, is brushed aside being a hollow and incredible affair.
11. Insofar as the recovery of pistol .30-bore (P2) along with five live bullets (P3/1-5) on 20-2-2009 at the instance of the appellant is concerned, though we find an unexhibited report of Forensic Science Laboratory on the record, it is of no consequence as Investigating Officer Muhammad Iqbal SI (P.W.8) failed to collect any crime empty (-ies) from the place of abduction/occurrence at the time of spot-inspection. The prosecution appears to have withheld the report of the Forensic Science Laboratory for the said reason. The recovery of car (P1) bearing Registration No,6463/LEF is equally inconsequential as complainant did not mention any such registration number in the F.I.R.
Even in their testimonies, both the prosecution witnesses failed to mention the said registration number. How could it be connected with the commission of offence, remains an unresolved question. Interestingly, we find from the statements of Abdul Majeed-complainant (P.W.1) and Munib Ahmad (P.W.2) that they rode a Honda Motorcycle, 7170/GAH, at the time of the occurrence of abduction of the latter, which according to the allegations had not been snatched by the accused, was not produced by the complainant during the course of investigation or trial. The evidence of the recoveries of the noted-articles, tendered by Mubashar Hussain 2675/C (P.W.5), Muhammad Sharif 2476/C (P.W.6) and Muhammad Iqbal SI (P.W.8), does not convey any sense and means less than nothing qua the case-inhand,
12. Now, we are only left with the medical evidence, tendered by Dr.Manzoor Ahmad (P.W.3), who vide Medico-legal Report Exh.PB medically examined Abdul Majeed (complainant) at about 1.00 p.m. On 23-1-2009 and Dr. Mubashar Yaqoob (P.W .4), who examined the injuries of Munib Ahniad (P.W. 2) at 6.05 p.m. On 2-2-2009. The blunt-weapon-injuries, three in number, of Abdul Majeed (P.W.1) were declared as Shajjah-i-hashimah (337-A(iii) P.P.C.), Shajjah-i-Khafifah (337-A(i) P.P.C.) and Ghayr-jaifah-damiyah (337-F(i) P.P.C.), whereas one of those of Munib Ahmad-abductee (P.W.2) was declared as Ghayr-jaifah-damiyah (337-F(i), P.P.C.) and the rest three were declared to fall within the definition of section 337-L(2), P.P.C. Both the witnesses were left uncross-examined by the defence and rightly so. It has been held time and again that the medical evidence may provide all the necessary informations about the bodily injuries of a living or a dead person, but it cannot identify as to who authored them.
' The medical evidence thus also runs inconsequential like rest of the prosecution evidence, as discussed earlier.
13. For the discussion (supra), we conclude that the prosecution has badly failed to bring home the guilt of the accused-appellant beyond reasonable shadows of doubt. The impugned judgment passed by the learned trial court suffers from misreading, non-reading and misunderstanding the evidence, available on the record. No other option is left but to accept this appeal, which is accordingly done. The conviction/sentence of the appellant is set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case.