' SADAQAT ALI KHAN, J.---The instant Criminal appeal has been filed by Kamran alias Bobi present appellant against the judgment dated 15.03.2007 passed by Special Judge Anti-Terrorism Court-II, Lahore according to which present appellant was convicted and sentenced as under:-- "Kamran alias Bobi was convicted under section 7(e) of ATA 1997 and sentenced to imprisonment for life and his moveable and immovable property was ordered to be forfeited in favour of the state"
' Benefit of section 382-B, Cr.P.0 was also given to the present appellant by the learned trial court in case FIR No, 487 dated 31.12.2002 under section 365-A, P.P.C. Police Station, Liaquat Abad, Lahore.
2. The facts of the case has been stated by Syed Ali Naqi/ complainant PW-3 in his statement before the learned trial court and same statement is hereby reproduced for narration of the facts:- - "That on 21.12.2002 I was present in my house. Altaf, the co-accused of Kamran accused along with two unknown played the bell of my house. When I opened the door Altaf accused (since convicted) took out his `Mauzer' and placed the same on the right side of the rib. Kamran accused present in the court took out his K.Kov and told me that if I will raise noise, I will be killed. Altaf accused (convicted accused) was my driver in those days. All the accused took me to the upper storey of my market. Altaf accused remained my driver for 2 years. That room where the accused took me was given by me to said Altaf for residence. Altaf accused had committed sodomy with me on gun point and the present accused was making the pictures of mine and was recording the voice in the cassettes. In the meanwhile the accused commanded me to pay Rs,10 lac and also commanded me to hand over the title deed of one shop. The accused further asked me that if I will not obey their command I will be killed and they further told me that they will publish the said pictures in the area. I promised with the accused that I will pay Rs,10 lac and also hand over the title deeds of one shop. The accused kept me 4 hours in their wrongful confinement. The moment they went out of the room I got the chance of escaping and I escaped. I remained mum for some time and during this period the accused were ringing me up that I should hand over Rs,10 lac to them and also the title deeds of the shop. I remained silent due to fear of my honour and dignity and thereafter I made an application Ex. PD to the police which is in my hand and is signed by me. I made the statement against the said Altaf accused in the court during his proceedings"
3.After the completion of the investigation, report under section 173, Cr.P.C. was submitted in the trial court and trial court after observing the legal formalities provided under the Criminal Procedure Code framed the charge on 28.11.2006 against appellant who pleaded not guilty and claimed trial.
4.Prosecution evidence was summoned and the prosecution produced Ghulam Dastgeer constable as PW-1, Atif Imran S.I PW-2, Syed Ali Naqi Shah complainant PW-3, Muhammad Jameel SI PW-4 whereas PWs namely Iftikhar ASI and Liaquat Ali were given up by the prosecution being unnecessary and after tendering in evidence i.e, recovery memo of Camera, Tape Recorder Ex.PA, recovery memo of Cassette Ex.PB, proclamation of the accused Ex.PC, complaint Ex.PD, FIR Ex.PDE/1 closed the evidence.
5.Statements of the present appellant under section 342, Cr.P.C. was recorded in which he refuted the allegations leveled against him and the appellant did not opt to record his own statement under section 340(2) Cr.P.C. and also did not produce the defence evidence.
6.After conclusion of the trial, learned trial court convicted the present appellant Kamran alias Bobi with above stated sentences. Hence this appeal.
7.Leaned counsel for the appellant contended that:--
(i) the judgment of the trial court dated 15.03.2007 is against law and facts on the file and is liable to be set-aside; (ii)it is submitted that the story of the prosecution is improbable and not believable; (iii)it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial court wrongly convicted present appellant in surmises and conjectures; (iv)further submitted that motive is not attributed to the present appellant and nothing was recovered from or on pointing out of the appellant and. lastly submitted for the acceptance of the appeal of the present appellant; 8.On the other hand, learned DPG assisted by learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:--
(i) prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.
9.We have heard the learned counsel for the parties and perused the record.
10.The detail of prosecution case as mentioned in the FIR Ex.PD/1 recorded on the written application Ex.PD of Syed Ali Naqi complainant PW-3 has already been given in paragraph No, 2 of this judgment, therefore, there is no need to repeat the same to avoid the repetition and duplication.
11. According to the FIR, occurrence took place on 21.12.2002 but no time of occurrence is mentioned whereas FIR Ex.PD/1 was registered on 31.12.2002 at 2:15 pm on written application Ex.PD moved by Syed Ali Naqi Shah complainant PW-3 with unexplained delay of about A 10-days which itself creates doubt in the prosecution story.
12.No specific role has been attributed to the present appellant in the FIR Ex.PD/1. However, Syed Ali Naqi Shah complainant PW-3 stated before the trial court regarding role of the present petitioner with dishonest improvement as under:-- "present accused was making the pictures of mine and was recording the voice in the cassettes"
13. During interrogation, nothing was recovered form the possession of the present appellant. The allegation of committing sodomy with complainant Syed Ali Naqi Shah PW-3 was against Altaf co- accused. Camera P-1, cassette player P-2 and cassette P-3 were recovered from the possession of Altaf Khan co-accused who has been acquitted by Hon'ble Supreme Court of Pakistan on 5.1.2012 by accepting his criminal appeal No, 462/09 which is hereby B reproduced:-- "The allegation against Altaf Khan appellant was that he had abducted his master namely Syed Ali Naqi complainant (PW-2) and thereafter the complainant was confined in a room, his obscene pictures were taken, he was subjected to sodomy by the appellant and he was released within matter of four hours with a demand for ransom. The learned trial court had disbelieved the allegation of sodomy leveled by the complainant against the appellant. No independent witness of the alleged abduction had been produced by the complainant before the learned trial court. The conduct of the complainant regarding his failure to raise protest at the time of abduction was apparently quite unusual. No proof had been produced by the complainant before the learned trial court regarding demand of ransom by the appellant. Admittedly no ransom had ever been paid to the appellant by the complainant or anybody else. The complainant had never been recovered from the appellant's custody and the story of his private escape had never been substantiated through any independent evidence. During the investigation no obscene picture of the complainant had been recovered and the alleged recovery of a cassette, cassette-player and camera from the appellant's possession had been discarded by the learned trial court itself. In these circumstances all that the prosecution was left with was a mere word of mouth of the complainant against the verbal denial by the appellant. As the complainant has already been found by the learned courts below to have leveled exaggerated allegations against the appellant on account of his failure on my critical aspects alleged by him, therefore, we find that it was unsafe to convict and sentence the appellant on the solitary basis of an oral statement of the complainant. Even otherwise, the case in hand has originated in the year 2003 and the appellant has remained behind the bars for the past more than nine years.
' For what has been discussed above a conclusion is unavoidable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. The delay in filing of this appeal is, therefore, condoned, this appeal is allowed, the conviction and sentence of the appellant recorded and upheld by the learned courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case"
14. In view of the above, main accused has been acquitted by Hon'ble Supreme Court of Pakistan by disbelieving the evidence of the prosecution and on the same evidence present appellant with lesser role could not be convicted. Learned trial court convicted present appellant mainly on the basis of his absconsion. According to FIR, occurrence took place on 21.12.2002 and FIR was registered on 31.12.2002 whereas present appellant was arrested on 18.9.2003. Absconsion itself is not conclusive proof of guilt of an accused person. It could be a suspicious circumstance against an accused that he was found guilty of an offence but at the same time we observed that suspicions remain always suspicions and cannot take place of proof. However, the value of the absconsion depends on the facts of each case but an accused couldoset be convicted on the basis of absconsion only in absence of confidence inspiring evidence which is missing in the present case. Reliance is placed on case (PLD 2009 SC 53) in which Hon'ble Supreme Court of Pakistan has observed at page 57 as under:-- "Adverting to the question of abscondance, it may be stated that mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent which is to be decided keeping in view overall facts of the case. In the instant case, the respondents appeared before the investigating officer of their own and they were not arrested".
15. Further reliance is placed on case Sabir Hussain v. The State (2014 SCM R 794).
16.In view of the above discussion, prosecution has badly failed to prove its case against the present appellant beyond reasonable doubt. The evidence produced is not believable and the same is hereby disbelieved. For the foregoing reasons, the instant Criminal Appeal No,1844 of 2007 filed by Kamran alias Bobi present appellant is accepted and conviction and sentence awarded by the learned trial court through judgment dated 15.03.2007 against him is set-aside and the appellant is ordered to be acquitted of the charge in case FIR No, 487 dated 31.12.2002 under section 365-A, P.P.C. and under section 7(e) of ATA 1997, police station, Liaquat Abad, Lahore. He is directed to be released forthwith if not required in any other case.