' IQBAL HAMEEDUR RAHMAN, J.---Through these instant appeals, we intend to decide Criminal Appeals Nos. 96 & 97/2005 filed by the appellants/convicts against the judgment dated 17.4.2003 passed by the learned Lahore High Court, Lahore in Criminal Appeals Nos. 1759 & 1764/2002 & M.R.
No, 86-T/2002 whereby the learned High Court has maintained the convictions and sentences of the appellants awarded by the learned Special Judge, Anti-Terrorism Court No, IV, Lahore, vide its judgment dated 27.9.2002.'Leave was granted by this Court vide order dated 15.4.2005, which reads as under:-- "After hearing the learned counsel in both these petitions, we grant leave,to appeal to reappraise the evidence in the interest of safe administration of criminal justice."
2. The facts giving rise to the instant appeals are that Muhammad Amin, complainant, the uncle of the abductee Muhammad Bilal, through an application (Exh.P.S.) alleged that his nephew, Muhammad Bilal, aged about 8 years, a student of Nusrat Model School, went to school on 24.10.2001 at about 8:00 a.m. Thereafter, while he was returning home with his companion, Zain, after the school was closed at 1:30 p.m. An unknown person stopped them and took Muhammad Bilal while leaving behind, Zain. When Muhammad Bilal did not reach home until evening. The complainant and one Waqar Ahmed went out to search for him but he could not be found. It was further alleged by the complainant in the FIR that on the same night at about 8:00 p.m. An unknown person gave a telephonic message to Muhammad Arshad, father of Muhammad Bilal abductee, to arrange Rs, 1,000,000/- failing which he should be ready to face consequences. It was further alleged that the said unknown person kept on making efforts to complete the deal and also threatened that his son would not be returned if the Police was informed, therefore, no information was given to the Police. When despite best efforts the abductee could 'not be recovered, the complainant moved an application (Exh. P.B.) to the Police for the registration of a case on the basis of the above-mentioned circumstances and accordingly case FIR No, 385/2001 was registered at P.S. Ravi Road, Lahore, on 30.10.2001 under Section 365-1A, PPC read with Section 7(e) of the Anti-Terrorism Act, .1497 against unknown persons. The Police, after completing n cessary formalities, arrested Muhammad Abbas @ Tanveer, uhammad Tayyab, Muhammad Ashfaq @ Pappu, Muhammad Rashid and Muhammad Nawaz @ Fauji, who, it was alleged, disclosed about the abduction of Muhammad Bilal. During investigation, they got recovered the Motorcycle used in the alleged occurrence alongwith partial ransom mount and school uniform of the abductee while three accused persons namely Abdul Sattar @ Kala, Muhammad Yasir and Muhammad Asif Khan were not arrested and were placed in Column No, 2 of the Challan as absconders. Muhammad Asif Khan, co-accused, was arrested later on. On completion of the investigation by the investigating agency, the Challan was submitted and charge was framed against the appellants and Muhammad Asif Khan, co-accused. The. Prosecution in order to prove its case produced as many as 13 witnesses including the I.O., Muhammad Bilal abductee and other relevant persons.
Thereafter, the appellants/accused in their statements under Section .342, Cr.P.C. Pleaded their innocence. The learned Trial Court, after appraisal of the evidence, convicted all the appellants and Muhammad Asif Khan, co-accused, under Section 7(e) of the Anti-Terrorism Act, 1997 and sentenced them to death. They were also convicted under Section 342, PPC and sentenced to one year's R.I. With fine of Rs, 1,000/-each or in default thereof to further undergo one month's S.I.
However, benefit of Section 382-B, Cr.P.C. Was extended to all of them. Thereafter on filing appeal' by the appellants and Muhammad Asif Khan, co-accused, before the High Court, the learned High Court acquitted Muhammad Asif Khan, co-accused, by holding that his case is totally different from other co-convicts for the reasons that he was not the person who abducted Muhammad Bilal.
Even he was not identified by Muhammad Bilal in the Court. Moreover, Muhammad Bilal did not even tell that Muhammad Asif Khan was either present in the house of Muhammad Nawaz @ Fauji or he visited his house during the 14 days' illegal confinement. However, the !Earned High Court maintained the convictions and sentences of the present appellants awarded by the Trial Court, hence these appeals.
3. Sardar Muhammad Latif Khan Khosa, learned counsel for the appellants in Criminal Appeal No, 97/2005 and Mr. Muhammad Zaman Bhatti, learned counsel for the appellant in Criminal Appeal No, 96/2005,. After going through the evidence, asserted that it is a case of no evidence. That the appellants have falsely been implicated in the instant case and in this regard they adverted our attention towards delay in lodging of FIR which was lodged after a period of six days and that too not by the father of the abductee but by his uncle, Muhammad Amin. Learned counsels for the appellants further vehemently asserted that the instant case becomes doubtful in the absence of any identification parade. Moreover, there are two versions given by the prosecution with regard to receiving of ransom amount i.e,, one is that Muhammad Abbas @ Tanveer alongwith Muhammad Asif Khan received it, while the other is that Muhammad Abbas @ Tanveer alongwith Abdul Sattar @ Kala received the same as such there is a serious dent in the-prosecution case. That the prosecution has withheld the best evidence by not producing Zain, friend of the abductee, who was accompanying Muhammad Bilal at the time of occurrence. Had he been produced, he was supported the prosecution case. That on perusing the 1 indicates that the appellants were in the custody of P.S. Tibu , Lahore, at the time of their arrest and in order to get away from the instant case as well as releasing the pressure of the complainant party, the Police falsely implicated the appellants in this ease. That the evidence available on record is insufficient in quality and quantity to-maintain, conviction and sentence of the appellants on a capital punishment of death. That as per the prosecution case, the alleged abductee was kept in the house of Muhammad Nawaz @ Fauji where his wife was present but he only has been accused In this case and his wife, to whom a similar role exists, has not been made accused in the case, therefore, it clearly shows mala fide inteni of the prosecution.
4. On the other hand, the learned Additional Prosecutor General for the State submitted that the delay has duly been explained as Muhammad Arshad, father of the abductee Muhammad Bilal.
Moreover, the abductee, who is a star witness, fully supported the prosecution case. The appellant, Muhammad Ashfaq, also got recovered Rs, 40,000/- from his house. Alongwith the uniform of the abductee Muhammad Bilal, which was identified .By the abductee and his father. In view of the same, the prosecution has fully proved its case beyond any shadow of doubt.
5. Heard. With the able assistance of the learned counsels for the appellants as well as Additional Prosecutor General, we have gone through the judgments of the Courts below and have reappraised the evidence as well as other material available on record with due diligence and acumen of judicial mind.
6. That admittedly the occurrence had taken place on 24.10.2001 whereas the instant. FIR was lodged with a delay of six days i.e,, on 30.1.2001, and that too not by the father of the abductee but by his uncle, Muhammad Amin, PW-2. Inspite . Of the fact that the father of the abductee was repeatedly receiving threats during this period for which neither any plausible explanation has been furnished by the prosecution. Nor any evidence has been brought on record Further that in the first instance the' FIR had been lodged against unknown persons without naming the appellants and other co-accused. It is only through supplementary statements dated 4.11.2001 and 5.11.2001 that the rimes of the appellants and other co-accused had been disclosed which also gives rise to doubt regarding false implication of the appellants and other co-accused while taking into account the delay caused in lodging of the FIR. As such, deliberations and false implication of the appellants cannot be ruled out, therefore, in these circumstances it gives rise to doubt which goes in favour of the appellants. It is .Settled 'principle that in such-like cases, E unexplained delay in lodging of FIR is fatal to the case of the prosecution and in this regard reliance can be placed on the case of Akhtar Ali and others v. The State (2008 SCM R 6) wherein in similar circumstances it has been held as under: - "5....... It is also an admitted fact that the FIR was lodged by the complainant after considerable delay of 10/11 hours without explaining the said delay. The F.I.R. Was also not lodged at police station as mentioned above. 10/11. Hours' delay in lodging of F.I.R. Provides sufficient time for deliberation and consultation when complainant had given no explanation for delay in lodging the F.I.R. 'It is enough time for complainant to fabricate the story even then the complainant did not nominate _appellants and their acquitted co-convicts, therefore, possibility cannot be ruled out qua false implication of the appellants. It is also a settled law that delay of 10/11 hours in making F.I.R rot explained leads to inference that the occurrence was un-witnessed , .."
' That there is another important aspect of the case which has not been explained by the prosecution why the prosecution did rot produce Zain. Who at the time of abduction of Muhammad Bilal, was accompanying him. As such the assertion of the appellants' counsels, that, had he been produced his evidence would have gone in favour of the appellants, cannot be ruled out as it is quite apparent from the prosecution evidence that the abductee Muhammad Bilal neither accompanied Muhammad Abbas @ Tanveer, appellant, with resistance nor any threat was extended to him-rather ne departed on his own choice and had said goodbye to his friend Zain by telling him that he is accompanying Muhammad Abbas @ Tanveer to have an ice-cream. By taking the same into consideration, the case, of the prosecution becomes doubtful with regard to abduction of Muhammad Bilal for ransom which creates a dent in the prosecution case.
' Moreover, a serious 'doubt arises.In this case with regard to the payment of ransom amount of Rs, 500,000/- at Garhi Shahu. Bridge, which is a densely populated area, and it appears that no arrangements were made before the ransom money was to be paid, whether on payment of the ransom amount the abductee was to be released or how his release was to be effected. That at the time of payment even no inquiry was made with regard to the welfare and wherebouts of the abductee which is very strange and confusing and boggles the human mind that how a prudent man, who is making payment of Rs, 500.000/-, can without any arrangement of any sort make the payment of huge amount in absence of any assurance of the release of an abductee on making of payment. No doubt the ransom amount was paid on 5.11.2001 and the abductee was released on 6.11.2001, but considering the same in the given circumstances. a doubt is created in the prosecution case, the benefit of which cannot be denied to the appellants. Moreover, there are two different versions given by the prosecution as to the persons receiving the ransom amount.
' According to one version Muhammad Abbas @ Tanvecr alongwith Muhammad Asif Khan received the ransom amount, while the other version is that Muhammad Abbas @ Tanveer alongwith Abdul Sattar @ Kala received it.
' That another dent appears in the prosecution case when no identification parade had been held in the instant case for the. Identification of the accused through Muhammad Arshad and Muhammad Rafique Khawar, PW-9 & PW-3. Even when the abductee Muhammad Bilal was summoned by the Police to take part in the identification parade in jail, an objection was raised that he is a small boy as such what prevailed upon them to name the accused persons and' how the names of the accused persons were identified and how their actual names came to the knowledge of Muhammad Arshad, PW-9, which facilitated the prosecution to implicate the accused persons and also facilitated the I.O. To bring the accused persons from P.S. Tibbi city on 6.1.2002, is a mystery and the prosecution in this regard has not produced any substantial evidence. In the absence whereof, the appellants cannot be connected with the commission of the crime.
7. In the above perspective, we find that the prosecution has not been able' to prove its case beyond any reasonable shadow of doubt, which could entail the awarding of a capital punishment.
As such, we are of the considered view that the Courts below, while imparting their respective judgments, have fallen into error by not properly appraising the evidence, therefore, the same cannot ?Sustain. Resultantly, we set aside the judgment of the Trial Court dated 27.9.2002 as well as the judgment of the High Court dated 17.4.2003 and allow these appeals. All the appellants are acquitted from all the charges levelled against them. Consequently, they are ordered to be released from jail forthwith, if not required in any other case.
Conviction/Death /Appeals Allowed/ Acquittal Ordered.