' ABDUL LATIF KHAN, J.---Through this single judgment we intend to dispose of instant Cr.A. No,37- P/14 filed by State through Advocate General, KPK, Peshawar and connected Cr.A. No,40-P/14 filed by appellant/complainant Amin Jan, as both the appeals are outcome of one and same FIR and filed against the judgment dated 12.12.2013, passed by learned Judge, Anti-Terrorism Court-III, Peshawar, whereby the respondents Behram Khan, Rahmat, Hanif and Muhammad Zubair, charged in case FIR No,455 dated 23.4.2013, under section 365-A, P.P.C., Police Station Bhana Mari, were acquitted of the charges leveled against them.
2. As per prosecution case, one Hashmat Ullah son of complainant Ameen Jan, after deboarding from Flying Coach at Kohat Adda, Peshawar was abducted by the respondents in a Motorcar.
Lateron demand of Two Crore Rupees as ransom was received by complainant on his Cell phone from Cell No,0303-7169035, the caller disclosing himself to be member of Taliban Movement and fixed five days time for payment of the same but the complainant after collecting data of referred cell number, submitted written application to the local police on the basis of which instant FIR was registered. The respondents were arrested and the abductee was recovered.
3. After completion of investigation, challan was submitted against accused where respondents were produced in custody while proceedings under section 512, Cr.P.C. Were initiated against absconding co-accused Abdul Waris, Mohammad Jamal and Fazalullah. After framing of formal charge against respondents, the prosecution in order to prove its case examined 10 witnesses along with CW1 Abidur Rehman whereas the respondents also recorded their statements on oath and produced defence witnesses. At conclusion of trial the learned trial Court, acquitted the respondents from the charges leveled against them, hence the instant Criminal Appeal as well as connected Cr. Appeal have been filed by the State and complainant respectively.
' Arguments heard and record perused.
4. Perusal of record reveals that the private CDR produced by complainant regarding tracing of call data of accused, on the basis of which the instant FIR was registered, has not been placed on file.
The said CDR was also having no signature of issuing authority nor verified from the concerned authorities.
5. The recovery of abductee is also doubtful as he was allegedly abducted on 24.4.2013 but he was recovered on 16.5.2013 and during that period the complainant kept mum about the incidence though he repeatedly was allegedly contacted in respect of ransom amount but he did not bother to lodge any report to the local police rather tried himself to trace out the accused through CDR data, which bears no signature or stamp of issuing authority, making the case doubtful.
6. The abductee was allegedly abducted from Kohat Adda, Peshawar at noon time which is a busy place and it is not appealable to a prudent mind that how in such a busy place having rush every time being transport Adda, four persons came there and abducted the abductee who made no hue and cry in order to attract the people towards them who were present there at the time of occurrence.
7. As per contents of report of complainant, the accused were arrested by Abidur Rehman Inspector on the data of CDR produced by complainant and recovered the abductee from their clutches which version in F.,IR No,421 of the same date under section 13 A.O, was also affirmed showing that during raid at the hujra of respondent Behram Khan, the abductee was recovered and respondents Behram Khan, Hanif, Raehmat Ullah were arrested and pistols .30 bore and Repeater 12 bore were recovered from their possession but according to statements of abductee recorded under section 164, Cr.P.C. And before trial Court, he fled away from the clutches of respondents on the pretext of offering prayer and went to the P.S. The statements of abductee under section 164, Cr.P.C. And before trial Court are also contradictory to each other C as in statement recorded before trial Court as PW.7, he stated that after decamping from the clutches of accused, he went to a nearby mosque where he met Imam of the mosque, who took him to P.S. Badaber but this fact of reaching to mosque, meeting the Imam and taking him to the P.S., has not been mentioned in his statement under section 164, Cr.P.C. Recorded after delay of about 6 days but neither the said Imam has been mentioned in the recovery memo of abductee nor he was examined by the prosecution. He also stated in his Court statement that when he reached to the P.S., his family members were already present there but in a latter portion he stated that his father reached to the P.S. At evening time though the report of complainant has been lodged at 15.30 hours which. Is not evening time. The abductee also stated that he reached to the P.S. At 14.00 PM so when he reached the P.S., at 14.00 hours then why his report was not lodged at that time despite presence of his family members in the P.S. And later on the report was lodged by complainant which is also not trustworthy as his presence is not established in the P.S, at the time of lodging the report because the report was lodged at 15.30 hours but as per abductee, he reached to P.S. At evening time.
8. As per Court statement of CW.1, Abidur Rehman Inspector, he has not verified the CDR produced by the complainant from the concerned quarters/mobile company nor inquired about the telephone numbers of accused. The data in respect of cell numbers of complainant and abductee have also not been collected by the I.O., which could show that they were called by the abductors on that numbers. The recovery memo in respect of mobile phones recovered from possession of respondents at the time of their arrest has also not been prepared. It was also admitted by CW.1 that he conducted raid on the premises without search warrant and further admitted that he cannot conduct raid at a house without a warrant or FIR, meaning thereby that the raid was conducted illegally.
9. It is also very strange that the abductee had been released on 16.5.2013 but his supplementary statement was recorded under section 164, Cr.P.C. On 22.5.2013 after delay of six days due to which consultation and deliberation of complainant party for involving the accused cannot be ruled out.
The identification parade has been conducted on 30.5.2013 after delay of 15 days despite the fact that the accused were arrested on 16.5.2014, and abductee was also recovered on that date for which no plausible explanation has been mentioned by the prosecution. Besides, the said identification is also not in accordance with law as joint identification parade was conducted which is not requirement of law because the identification of each accused to be conducted separately and not jointly so it also creates dint in the prosecution case.
10. The respondents have not made any confession before the competent Court nor the alleged abductee has been recovered from their immediate possession and the prosecution has badly failed to prove its case against respondents beyond any shadow of doubt, so as per settled law a single circumstance is sufficient for creating doubt and not so many circumstances are essential for creating doubt, the benefit of which must go to the accused. Though apart from above, there other many contradictions and loopholes in the prosecution evidence, mentioning of which would be a futile exercise as the discussion made above are sufficient for discarding the version of prosecution.
11. Apart from above, as per settled law after earning the acquittal from the Trial Court, double presumption of innocence is acquired by an accused. While Court sitting in appeal against acquittal must be slow in reversing the judgment of acquittal, unless it is found to be arbitrary fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the instant case, no such infirmity has been found in the impugned judgment therefore the learned Trial Court has rightly acquitted the respondents/accused by extending them benefit of doubt, after proper appraisal of evidence for which no exception can be taken.
For the aforesaid reasons, the instant Criminal appeal (Cr.A. No,37-P/14) along with connected Cr.A.
No,40-P/14 are dismissed.