' SYED SHAHBAZ ALI RIZVI, J.---Through this appeal, Rizwan, appellant has assailed the judgment dated 19.03.2009 passed by the learned Special Judge, Anti Terrorism Court-II, Rawalpindi whereby, the appellant was convicted under Section 7(e) of the Anti Terrorism Act, 1997 read with Section 365-A, P.P.C. And sentenced to imprisonment for life along with forfeiture of his entire property in case FIR No,455 dated 15.07.2008, offence under Section 365-A, P.P.C. Registered at police station Wah Cantt District Rawalpindi. He was, however extended the benefit of Section 382-B of the Code of Criminal Procedure, 1898.
2. Brief facts of the case, as disclosed by Rehmat Ullah Khan, complainant (PW-2) in his application (Exh-PA) dated 15.07.2008, on the basis of which formal FIR (Exh-PA/1) was registered, are that Qadir Khan (PW-5) son of his maternal uncle Inam Gul (PW-3) was resident of Tola Mangli Tehsil Isa Khail District Mianwali and student of Wah British Institute. On the evening of Saturday, Qadir Khan was kidnapped from Wah and the kidnappers were demanding Rs,5,00,000/-. They were calling the complainant from the mobile phone of Qadir Khan (PW-5).
3. Rizwan (appellant) was arrested in this case on 06.08.2008 by Abdul Sattar, Inspector/CID (PW- 10) and during his personal search Rs,10130/-, mobile phone, driving license, a watch and other documents/ papers were recovered from his possession which were taken by the investigation officer vide recovery memo Exh-PB. After completion of the investigation report under Section 173 of the Code of Criminal Procedure, 1898 was submitted. Learned trial court after observing all the pre- trial codal formalities, charge sheeted the appellant to which he pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution produced as many as eleven witnesses. Khalid Pervaiz SI (PW-1) Rehmat Ullah, complainant (PW-2), Inam Gul, father of the abductee Muhammad Qadir Khan (PW-3), Muhammad Asif Khan (PW-4), Muhammad Qadir Khan, abductee (PW-5), Muhammad Nasim Jan (PW-6), Mr. Rashid Akhtar, Special Judicial Magistrate (PW-7), Muhammad Iqbal Khan Khattak, Inspector (PW-8), Tariq Mehmood 2179/C (PW-9), Abdul Sattar, Inspector/CID, Investigation Officer (PW-10) and Muhammad Yousaf Khan Khattak (PW-11) appeared to substantiate the prosecution case against the appellant.
5. The prosecution gave up Shafqat Ullah, Nadim Anwar, Bank Manager being unnecessary and closed its evidence.
6. Statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898 was recorded on 04.03.2009. In reply to the question as to "Why this case against you and why the PWs have deposed against you", the appellant replied as under:-- "I was falsely implicated in this case by Abdul Qadir by taking advantage of my only by chance meeting with him at Shah Faisal Mosque Islamabad which was only for 10 to 12 minutes. He staged this drama of his alleged abduction with the help of his friends to fetch money from his parents.
PWs in support of said drama of Abdul Qadir and believed him and falsely deposed against me."
7. The appellant neither opted to make statement on oath as his own witness in disproof of the allegations levelled against him as provided under Section 340(2) of the Code of Criminal Procedure, 1898 nor did he produce evidence in his defence.
8. After conclusion of trial, the appellant was convicted and sentenced as mentioned above by the learned trial Court; hence the instant appeal.
9. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case; that there is an unexplained delay of three days in reporting the matter to the police; that the prosecution witnesses made dishonest improvements in their previous statements; that there are contradictions in the statement of the prosecution witnesses; that statement of Muhammad Qadir Khan, the alleged abductee (PW-5) was recorded with the delay of about eight days without any explanation and similarly, Muhammad Yousaf Khan Khattak (PW-11) also joined the investigation with an inordinate delay; that nothing belonging to the alleged abductee was recovered at the instance of the appellant during the investigation; that the alleged recovery of Rs,10310/- from the appellant is of no avail to the prosecution as the amount given as ransom was not tainted; that four unknown persons were also implicated by the prosecution but till today, none of them could be digged out; that the prosecution has failed to prove its case against the appellant beyond any shadow of reasonable doubt. Finally, craves that this appeal may be accepted and the appellant be acquitted of the charge levelled against him.
10. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the appellant and maintains that the delay in reporting the matter to the police is not fatal for the prosecution case; that no material improvement has been made by the prosecution witnesses rather they had explained the events; that the 'prosecution witnesses were having no mala fide or previous ill will against the appellant to falsely implicate him in this case; that prosecution case is also corroborated by the partial recovery of ransom amount of Rs,10310/- from the possession of the appellant; that prosecution has fully proved its case beyond any shadow of reasonable doubt against the appellant and finally submits that the appeal in hand may be dismissed being devoid of merits.
11. We have heard the learned counsel for the appellant, learned Deputy Prosecutor General assisted by learned counsel for the complainant, gone through the record with their able assistance and observed that Muhammad Qadir Khan, abductee (PW-5) is the sole witness of his abduction by the appellant on 11.07.2008 from Wah. Though, the testimony of a solitary witness can be considered sufficient to prove a fact, if it inspires confidence yet we have carefully discerned that the story narrated by abductee (PW-5) qua his enticement by the appellant is not probable and confidence inspiring. The abductee PW-5 was having only eleven days acquaintance with the appellant as he met him only once at Faisal mosque as per chance for the first time on 01.07.2008 but surprisingly on 11.07.2008 on telephone call, he became ready to accompany the appellant to Peshawar for nothing. During the whole investigation, aductee Muhammad Qadir Khan (PW-5) did never point out any of the places where he was taken by the appellant. The statement of the said witness is also pregnant with the dishonest improvements. Even otherwise, as per prosecution case, the abductee was released on 19.07.2008 but without any explanation furnished by the prosecution throughout the investigation and trial, he joined the investigation for the first time to get his statement under Section 161 of the Code of Criminal Procedure, 1898 recorded on 27.07.2008 i.e, with the delay of eight days and such delay in recording the statement of a star witness and that too with no plausible reason, castes serious doubts about the veracity of the same. Reference in this regard can respectfully be made to the venerated judgments passed by the Hon'ble Supreme Court of Pakistan in the cases of Syed Saeed Muhammad Shah and another v. The State (1993 SCM R: 550), Muhammad Khan v. Maula Bakhsh and another (1998 SCM R 570) and Rahat All v. The State (2010 SCM R 584). In the case of Rahat Ali supra, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:-- "9. ...Thus there is inordinate delay of silence of P.W.2 which creates doubt about his veracity. Delay of 24 hours, 4 days and 15/20 days in reporting the matter to the police or recording the statement of witnesses by the police has been found adversely affecting the veracity of witnesses as held in the cases of Muhammad Sadiq v. The State PLD 1960 SC 223, Sahib Gul v. Ziarat Gul 1976 SCM R 236 and Muhammad Iqbal v. State 1984 SCM R 930, respectively. It has also been observed by this Court that delay in recording the statement without furnishing any plausible explanation is also fatal to the prosecution case and the statement of such witness was not relied upon in the case of Syed Muhammad Shah v. State 1993 SCM R 550..."
12. As per narration of Muhammad Qadir Khan (PW-5), he was confined by the appellant as well as four unknown persons who were armed with Kalashnikov and the appellant remained on extensive physical remand with the investigation agency but no disclosure regarding unknown persons, the place of confinement of the abductee or the car allegedly used by the appellant could be surfaced that reflects adverse to the probity of the testimony of the abductee Muhammad Qadir Khan (PW- 5) qua his abduction and detention by the appellant.
13. So far as the evidence of demand of ransom amount by the appellant is concerned, we have observed that no credible incriminating evidence connecting the appellant with the offence is available on record. As per prosecution case, ransom was demanded by the culprits telephonically through the mobile cell number of the abductee Muhammad Qadir Khan (PW-5) but no call data record of the said mobile cell phone number and that of Inam Gul (PW-3), father of the abductee is available on record to prove the communication between Inam Gul (PW-3) and the culprits, the given locations of both and also to confirm the date and time of the alleged phone calls in absence of which the fact of demand of ransom cannot be deemed proved. Inam Gul (PW-3) has also improved his statement which is duly got confronted by the defence during the cross examination regarding the use of another mobile phone number by the culprits to extend the demand of ransom but no call data record is available in the prosecution evidence to prove the same fact. Even otherwise, admittedly, the call was not even recorded by the complainant that could easily be used against the appellant after its comparison with his voice. In this view of the matter, it cannot be said with certainty that it was the appellant who demanded the ransom from Inam Gul (PW-3). We have also taken notice of the fact that during the physical custody of the appellant, belongings of the abductee Muhammad Qadir Khan (PW-5) i.e, mobile phone and the SIM card etc. Could not be recovered at his instance. Similarly, the prosecution, to prove the payment of ransom amount of Rs,4,00,000/- to the appellant produced Inam Gul (PW-3) and Muhammad Yousaf Khan Khattak (PW-11) but their testimony is also not free from doubts as their statements also bear dishonest and material improvements duly got confronted by the defence.
Inam Gul (PW-3), during his statement, has not uttered even a single word regarding the payment of alleged amount of ransom to the appellant. The relevant portion of his examination in chief reads as under:-- "...The ballheaded person was sitting on the driving seat and I paid amount to him. He counted the money and took away the amount..."
' Even during his statement before the court, Inam Gul (PW-3), as per prosecution case, the person who actually paid the amount to the culprit, has not identified the appellant as the person who received the ransom amount from him. Muhammad Yousaf Khan Khattak (PW-11) though, identified the appellant before the learned trial court yet the fact remains that the appellant was the only accused who was facing trial when the statement of Muhammad Yousaf Khan Khattak (PW-11) was recorded on 20.02.2009 prior to which the appellant had been appearing before the court for many dates of hearing. It is also an admitted fact that no identification parade of the appellant was conducted during the investigation and in such circumstances, identification of the appellant, the sole accused in the box, by Muhammad Yousaf Khan Khattak (PW-11) cannot be given weight and no sanctity or creditability can be attached to such pointation or identification.
Even otherwise, despite being a material witness of this case, he did not prefer to get his statement under Section 161 of the Code of Criminal Procedure, 1898 recorded by the Investigation Officer and it was only after the arrest of the appellant on 06.08.2008 when he joined the investigation for the first time and his statement was recorded. This belated statement does not carry any judicial certainty as explained supra.
' It is also an admitted fact on record that during the extensive physical remand of the appellant, nothing connecting the appellant with the alleged offence could be recovered and similarly no disclosure regarding the place of confinement of the abductee, the car allegedly used by the appellant when he received the ransom amount and about his four co-accused persons could be obtained to corroborate the prosecution story furnished by the prosecution witnesses Inam Gul (PW-3), Muhammad Qadir Khan (PW-11) and Muhammad Yousaf Khan Khattak (PW-11).
14. As regards the alleged partial recovery of ransom amount of Rs,10,310/- from the possession of the appellant at the time of his arrest on 06.08.2008, we are of the opinion that the amount was not tainted and is of no consequence to the prosecution case being not sufficient to connect the appellant with the commission of alleged offence. Likewise, during the whole investigation, the place where the ransom was paid by Inam Gul (PW-3) and Muhammad Yousaf Khan Khattak (PW- 11) to the appellant could not be pointed out by them.
' As far as the bank statement (P-11) regarding the withdrawal of Rs,4,00,000/- by Muhammad Asif Khan (PW-4), brother of the alleged abductee to pay the same as ransom money to the culprits on 19.07.2008, taken into possession by the Investigation Officer on 30.10.2008 is concerned, we have noticed that P-11 is a handwritten document and the same has not been proved by the prosecution through its scribe and even the concerned bank manager has not been brought to the witness box by the prosecution to prove the same rather he was given up being unnecessary which also affect the prosecution story regarding the payment of ransom amount to the appellant adversely.
' All the above mentioned circumstances lead us to hold that the prosecution's case put forth mainly by Inam Gul (PW-3), Muhammad Qadir Khan, alleged abductee (PW-5) and Muhammad Yousaf Khan Khattak (PW-11) does not carry judicial certainty and circumstantial confirmation, being so the same is not to be relied upon as is held by the Hon'ble Supreme Court of Pakistan in the case of Basharat v. The State (1995 SCM R 1735) at page 270 as under:-- "9. ...There is no judicial certainty or circumstantial guarantee about the presence of the eye- witnesses on the spot. On the other hand, there are cogent reasons to doubt that the eyewitnesses were present on the spot and seen the occurrence. So, there is no option but to exclude the ocular evidence from consideration."
15. After considering all the pros and cons of the case, we have come to an irresistible conclusion that the prosecution has failed to prove its case against the appellant beyond any shadow of reasonable doubt. It is, by now, well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained fail to discharge its responsibility of proving the case against the appellant. There is no cavil to the established proposition that if there is a single circumstance which creates reasonable and cogent doubt regarding the prosecution case, the same is sufficient to ,give benefit of the same to the accused, whereas, the instant .Case is replete with circumstances which have rendered serious doubts about the prosecution story. In the case of Tariq Pervez v. The State (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-- "5. ...The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
' The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of Muhammad Akram v. The State (2009 SCM R 230), at page 236, observed as under:-- "13. ...It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Teirid Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of' grace and concession but as a matter of right."
16. In the light of above discussion, we are of the considered view that the prosecution could not discharge its liability to prove its case against the appellant successfully, therefore, we accept Criminal Appeal No,109 of 2009 filed by Rizwan (appellant), set aside his conviction and C sentence recorded by the learned trial court and acquit him of the charge levelled against him by extending him the benefit of doubt. He is in custody, be released forthwith it' not required in any other case.