' SHAKEEL AHMED BALOCH, J.---This common judgment disposes of Criminal Appeals Nos.80, 87, 93 of 2014 and Criminal Jail Appeal No,25 of 2014, filed by the appellants against the judgment dated 28th March, 2013 (hereinafter referred as, ("the impugned judgment") passed by the learned Special Judge, Anti-Terrorism Court, Khuzdar (hereinafter referred as, "the trial Court"), whereby the appellants along with absconding accused were convicted under sections 365-A/34, P.P.C. Read with section 6(e) and 7(e) of Anti-Terrorism Act, 1997 and sentenced to suffer life imprisonment each, besides all the moveable and immovable properties owned by the convicts were also directed to be forfeited in favour of State, with the benefit of section 382-B, Cr.P.C.
2. Facts of the prosecution case are that on 23rd November 2012 the complainant Muhammad Jan son of Haji Wahid Bakhsh, lodged F.I.R. No,15/2012 at Levies Station Khuzdar under section 365-A, P.P.C., stating therein that on 22nd November 2013 he alongwith Abdul Rehman son of Sher Muhammad loaded Chromite in their ten wheeler truck in Muslim Bagh and were proceeding to Karachi; that Haji Abdul Rehman also seated with him on the said truck; that after crossing Peer Umer, a silver color Surf vehicle appeared from Khuzdar side and stopped the truck by overtaking, from which five persons with muffled faces alighted, out of whom four persons were having Kalashnikovs, who boarded down Abdul Rehman from the truck and forcibly made him seated in the surf vehicle and proceeded towards Khuzdar side. The complainant further alleged that he along with the driver namely Ali Muhammad, cleaner Abdul Latif and cleaner Zahoor Ahmed tried to rescue Haji Abdul Rehman from the clutches of accused persons, but they being armed with Kalashnikovs threatened them for life and abducted Haji Abdul Rehman.
' On 2nd December, 2012 the complainant submitted his supplementary statement Exh.P/1-B, whereby he nominated the appellants and the absconding accused in the commission of offence on the ground that after registration on of F.I.R. They through their own sources made inquiries and it has come to their knowledge that the appellants along with absconding accused are involved in the abduction of Haji Abdul Rehman.
3. In pursuance of above F.I.R. And supplementary statement Exh.P/1-B, the I.O./P.W.9, Naib Tehsildar Manzoor Ahmed conducted raid at the house of appellants situated at Balina Kattan, but they made firing upon the raiding party and after retaliation by the raiding party appellant Liaquat Ali was arrested in injured condition, while the appellants Zameer Ahmed, Bashir Ahmed and Atta Ullah were also arrested from the said house and recovery of arms and ammunition were also effected from their possession and separate F.I.R. No,40/2012 was registered under sections 324, 353, 186, 189, 34, P.P.C. After their arrest, the appellants were subjected to investigation; statements of witnesses under section 161, Cr.P.C. Were recorded; site map was prepared; P.W.10/the 2nd I.O.
Conducted the identification parade of the accused persons and prepared memo of identification parade. On completion of investigation challan was submitted.
4. At the trial, co-accused Ali Akbar and Younas were declared as proclaimed offenders, whereas charge was framed and read over to appellants and in support of charge the prosecution produced 10 witnesses. The appellants were examined under section 342, Cr.P.C. The appellants neither recorded their statements on oath under section 340(2), Cr.P.C. Nor produced any witness in their defence. After concluding evidence and hearing arguments, the trial Court awarded conviction to the appellants as mentioned in para No,1 above.
5. Learned counsel for the appellants stated that the impugned judgment is result of misreading, non-reading and mis-appreciation of evidence available on record; that all the prosecution witnesses have made contradictory statements and did not support the prosecution version; that neither any ransom was paid nor the alleged abductee was recovered from the custody of the appellants.
6. Learned Deputy Prosecutor-General while supporting the conviction stated that the prosecution through consistent and confidence inspiring evidence has proved the charge against the appellants beyond any shadow of doubt; that merely on the basis of relationship of the witnesses with the complainant their testimony cannot be disbelieved.
7. Heard the learned counsel for parties and perused the available record. According to the complainant he along with abductee Abdul Rehman, driver and cleaners after loading Chromite in their ten wheeler truck proceeded from Muslim Bagh to Karachi; that five accused persons with muffled faces armed with Kalashnikovs riding in a Surf vehicle intercepted them around Pir Umer and abducted Abdul Rehman and proceeded towards Khuzdar. Perusal of fard-e-bayan Exh.P/1-A discloses that the accused persons were with muffled faces. Neither the complainant nor anybody else identified, the kidnappers. Admittedly, the alleged incident took place on 22nd November, 2012 at about 6.00 p.m. The distance of Levies Thana from the alleged place of occurrence is 30 KMs and it takes 30 to 40 minutes to reach there, but the F.I.R. Was lodged on the next day. Even otherwise, it has come on record that there is a Levies Check Post nearby the place of alleged occurrence, but the complainant did not inform the personnel deployed on the Levies Post. The perusal of statement of PW1 /complainant shows that the F.I.R. Was lodged with consultation and afterthought. The main purpose of lodging F.I.R. Is to set criminal law in motion and to bring on record firsthand information about the occurrence of a crime as well as to provide a sound basis for carrying out investigation in the right direction excluding the possibility of fabrication of any false story. In view of the circumstances of present case, delay in lodging F.I.R. Cannot be taken lightly and it casts serious doubt in the case of the prosecution. It is a settled principle of law that delay in lodging the F.I.R. Can only be condoned when such delay has been adequately explained but in the instant case, there is no explanation for inordinate delay in lodging F. I. R .
8. The accused persons allegedly participating in the commission of offences were with muffled faces and they were not earlier known to the complainant and other eye-witnesses. However, for the first time, the names of the appellants and absconding accused came in picture through the supplementary statement Exh.P/1-B of the complainant on the ground that they themselves made inquiries and came to know that the appellants are involved in the abduction of Abdul Rehman.
P.W.1 in his cross-examination admitted that after six days of alleged incident it had come to their knowledge that the appellants are involved in the commission of offence, but despite alleged knowledge the supplementary statement was submitted on 2nd December, 2012 i.e, after delay of 5 days from the date of alleged knowledge. Therefore, neither the fard-e-bayan Exh.P/1-A is reliable nor the supplementary statement Exh.P/1-B is worth credence being not filed promptly and in the circumstances false implication of appellants cannot be ruled out of consideration.
9. As far as the story narrated by the complainant/P.W.1 and other witnesses with regard to making phone call by accused Muhammad Younas to P.W.2 and demanding Rs,10 Million as ransom for release of abductee as well as arranging meeting of P.W.1, P.W.2, and other witnesses with the abductee Abdul Rehman, is concerned, such story does not appeal to the logic. P.W.2 in statement stated that on receipt of telephonic call from accused Younas on 3rd December 2012 he along with Ghulam Farooq, Abdul. Ghafoor and Muhammad Jan went to Kattan and met accused Younas, who blindfolded their eyes and made them seated in a Surf vehicle and after travelling for half an hour went to a house, where they found Haji Abdul Rehman, whose feet were fasten with chains and four accused persons were guarding him, whom he identified. P.W.2 further stated that they also spoke to Haji Abdul Rehman and informed him that the accused are demanding Rs,10 million as ransom for his release, to which he told them 'to sale his entire property and get him released.
He further stated that thereafter they sold the property of Haji Abdul Rehman, but despite such fact the amount of Rs,One Crore could not be managed, whereafter on 8th December 2012 they informed the Levies Authorities.
10. From the perusal of statement of P.W.2 it is evident that the same is not worth credence and it appears that the said witness has concealed the actual dispute between the parties. The P.W.2 has also failed to give the details of Cell Phone, from which the accused Younas made him phone call and demanded the amount. Even otherwise, at the time of filing of supplementary statement the prosecution witnesses have also failed to give the cell number to the I.O. To conduct inquiry and trace out the caller. Non-provision of cell number to the I.O. And even non-conducting of investigation in such behalf creates sufficient doubts in the case of prosecution.
11. Another important aspect of the case is that all the prosecution witnesses are interrelated with each other. P.W.1 is close relative of the alleged abductee (P.W.5). P.W.2 and P.W.3 are the nephews of P.W.5, whereas P.W.4 and P.W.6 are the paternal cousin of P.W.5. P.W.8.Is the cleaner and employee of the alleged abductee. The prosecution has failed to produce any single independent witness to corroborate the prosecution case. All the prosecution witnesses are closely related to each other. The I.O. Has made P.W.4 as the witness of recovery and said P.W.4. Is also paternal cousin of alleged abductee. The prosecution version is lacking independent corroboration and the appellants cannot be assumed to be culprits solely on the statements of witnesses that are interested and are closely related to the alleged abductee.
12. So far so, the recovery of abductee is concerned, suffice to state here that after nomination of appellants by P.W.1, the Levies Authorities conducted raid on their house and arrested all the nominated accused persons on 29th December 2012, but the recovery of abductee was neither effected from their possession nor on their pointation whilst in Levies custody rather P.W.5 himself reached to his house. It has further come on record that no ransom amount was paid for release of the abductee. It transpires from the record that the abductee recorded his statement before the I.O. After a considerable delay after his alleged release/recovery without any explanation, which creates serious doubt about his abduction by the appellants. All the witnesses have admitted to have recorded their statements after consultation with each other.
13. The identification parade so conducted by the prosecution is also of no avail to the case of prosecution as the complainant of the case in the supplementary statement Exh.P/1-B has failed to give the description of the accused persons, with whom they met at the area of Kattan. Even otherwise, while conducting the identification parade, the legal formalities were not complied with and followed by P.W.7 Abdul Khalid, Judicial Magistrate.
14. Thus in view of the above discussion, the statements of witnesses are not free from doubts same are suffering from sufficient infirmities, dishonest improvements and contradictions. It is settled principle of criminal jurisprudence that the prosecution has to stand on K its own legs and any doubt arising out of the case, has to be extended in favour of an accused. The case in hand, entirely rests on the statements of the alleged eye-witnesses, whose statements are contradictory to each other. The prosecution has failed to prove the charge against the appellants beyond any shadow of doubt. While delivering the impugned judgment the trial Court has failed to consider the evidence available on record.
In view of the above circumstances, the appeals are accepted. The judgment impugned dated 28th March, 2013 passed by the learned Special Judge Special Judge, Anti-Terrorism Court, Khuzdar to the extent of the appellants is set aside and while extending the benefit of doubts the appellant Bashir Ahmed son of Muhammad Anwar, Atta Ullah son of Sher Muhammad, Liaquat Ali son of Shah Wali and Zamir Ahmed son of Bashir Ahmed are acquitted of the charge under sections 365-A/34, P.P.C. Read with section 6(e) and 7(e) of Anti-Terrorism Act, 1997 in F.I.R.
No,15/2012 at Levies Station Khuzdar in ATA case No,19/2013. The appellants being in custody, are ordered to be released forthwith if not required in any other case.
' Above are the reasons of our short order dated 29th October 2014.