' MAZHAR ALAM KHAN MIANKHEL, J.---The appellant has filed this appeal against the judgment/order dated 20-9-2012 of learned Special Judge Anti-Terrorism Court-III, Peshawar vide which the appellant was convicted and sentenced to three months' S.I.
2. Concise facts of the case are that one Maroof Shah lodged F.I.R. No. 391 dated 13-10-2009 under section 365-A, P.P.C. Of Police Station Badhber, Peshawar against unknown accused alleging therein that his son Abbas Khan aged about 10 years was coming from school on 13-10-2009, when he reached near the place of occurrence, one black coloured 2D motorcar bearing registration No.NY-587 came there and the persons therein picked up his son and abducted him for ransom.
Soon after lodging of report, abductee was allegedly recovered by political authorities in the area of Jamrud on the same date and thereafter handed over to the SHO of police station concerned.
The accused Bilal Ahmed and Abdur Rauf belonging to tribal area of Shalobar Khel and Qamber Khel of Bara respectively were also handed over to the SHO of the police station concerned by Tehsildar Jamrud. The learned Judge Anti-Terrorism Court-III, Peshawar issued notice to the accused appellant, who was I.O. In that case, for his defective investigation constituting offence under section 27, Anti-Terrorism Act, 1997 and initiated his trial. On conclusion of trial, the appellant was found guilty of defective investigation and was convicted and sentenced to three months' S.I.
3. Learned counsel for the appellant contended that the judgment of the learned trial Court is illegal, against the facts, based on surmises and conjectures. The learned counsel next contended that there is no evidence on the record to support the charge of defective investigation against the appellant. The learned counsel further contended that right of defence has not been given to the appellant and was condemned unheard. The learned counsel lastly argued that the section of law under which the appellant has been punished is in conflict with Article 175 of the Constitution.
4. As against that, Mr. Zakir Hayat, Advocate, appeared on behalf of the State in a lukewarm manner conceded that the impugned order is nullity in the eye of law.
5. Arguments of the learned counsel for the parties were heard and record of the case was perused.
6. Perusal of the impugned judgment reveals that the learned trial Court has observed that the I.O.
Has committed certain lapses and when those were pointed out to him, he was unable to properly answer the same. Thus the appellant was tried for defective investigation and ultimately convicted and sentenced as stated in the opening part of the judgment. Perusal of the record would further reveal that reply filed by the appellant to the notice of the Court was an elaborate reply and has explained each and every observation of the Court along with the copies of the correspondence with Political Agent Khyber Agency during the period he remained Incharge of the investigation.
The lapses in the investigation so referred by the Court cannot be attributed to the appellant alone.
Besides the above all, the record of the case is silent with regard to the fact that the lapses, referred to, were the result of bad faith or for any extraneous consideration. Similarly, there is nothing to the effect that the appellant being an investigating officer had acted intentionally and improperly, without due diligence and had acted in breach of his duties. All the details have again been given in his statement before the Court but the judgment/order of conviction would reveal that the reply and the statement along with all the documents have not been considered and appreciated by the Court and the findings appear to be presumptive. In view of the above discussion, the charge against him becomes doubtful and in the circumstances, the appellant cannot be convicted and sentenced. Reliance in this regard can be placed on the cases of Muhammad Sharif Shar v. The State (2000 PCr.LJ 1882) and Coliar Ali v. The State (2002 YLR 432).
7. Accordingly, this appeal is allowed and the impugned order being illegal is set aside. The appellant is present on bail who is hereby absolved of the liability of the bail bonds.