' SYED AFSAR SHAH, J.---This criminal appeal is directed against the judgment dated 27.4.2016 rendered by learned Judge, Anti Terrorism Court-II, Peshawar, whereby the accused-appellants were convicted under section 387, P.P.C. And sentenced to imprisonment for three years each with fine of Rs. 50,000/- each or in default thereof to undergo six months further each. They were also convicted under section 7-H of the Anti Terrorisim Act and sentenced to imprisonment for five years each with fine of Rs. 50 000/- each or in default thereof to undergo three months further each. Similarly, Co-appellant Ghani-ur-Rehman was convicted under section 15AA and sentenced to imprisonment for five years. Benefit of section 382-B, Cr.P.C. Was extended to both the appellants.
2. Briefly stated facts of the instant criminal appeal as spelt out from the record are that Javaid Mansoor, a lawyer by profession, submitted an application to the SHO of Police Station, Hayatabad, Peshawar, to the effect that he is residing in Phase-IV, Hayatabad, and that on 11.7.2015 he received a threatening call from SIM No. 0335-8377791 for payment of "Batha". The caller posed himself to be a member of banned outfit of Tahreek-eTaliban Barra. On 13.7.2015 he received another threatening call from SIM No . 0331-8153412 where a similar demand was repeated.
3. The report was, initially, recorded in Daily Diary No. 30 dated 14.7.2015. Inquiry under section 156(3), Cr.P.C. Was initiated in the case. In pursuance of the inquiry, FIR No. 70 dated 05.8.2015 was registered against the accused-appellants under sections 7 ATA/387, P.P.C. In Police Station, CTD, Peshawar and, accordingly, investigation was started in the case. On completion of the investigation, conducted by Police Station, CTD, Peshawar, complete Challan was submitted against the accused-appellants to the Court of learned Judge, Anti Terrorism, Peshawar, where at the commencement of trial, the prosecution produced as many as ten (10) witnesses, whose statements were recorded and placed on file. On close of the prosecution evidence appellants were examined under section 342, Cr.P.C, wherein they denied the charges, professed innocence and stated to have falsely been implicated in the case. They, however, wished to produce no defence nor to examine themselves on oath as required under section 340(2), Cr.P.C. The learned trial Court, on conclusion of the trial convicted and sentenced the appellants, vide judgment herein impugned.
4. Arguments heard and record perused
5. Admittedly and as is evident from the record in the present case the FIR was registered in pursuance of the application submitted by Javaid Mansoor, a lawyer by profession, to the SHO of Police Station, Hayatabad, Peshawar. The application as Ex.PW-4/1 is available on file and perusal of the same would show that as per version of Javaid Mansoor Khan, Advocate, he is residing in house No.164 street No. 07, sector-1 Phase No. V, Hayatabad, Peshawar. By profession, he is an Advocate and on 11.7.2015, he received a threatening call with respect to the payment of Batha from Cell No. 0335 8377791. The caller posed himself as member of banned outfit known as Tahreek-e- Taliban. On 13.7.2015, he received another, threatening call from Cell No. 0331-8153412. As per version of the applicant, in case of his failure to surrender to the demands of the caller, he was given threats of dire consequences. When examined in the Court as PW-4, he stated in support of his stance, however, when put to cross-examination by learned counsel for the appellants, he set the ball rolling in their favour by deposing that the accused-appellants are innocent; that during the course of investigation, the I.O. Recorded statements of owners of demand/threat SIM No. 0331- 8153412 and SIM No. 0335-8377791, namely, Muhammad Umar and Fazal Hadi. He admitted that he has not charged the owners of the said SIMs. He further admitted that he had charged the appellants at the instance of the. Investigating Officer. Simple is that in the present case the complaint in his court statement has exonerated the accusal-appellants from the charge.
' Since the offence with which the appellants are charged is not compoundable, therefore, we would refer to the other evidence/material collected by the prosecution during investigation of the case.
6. Appearing as PW-1, Hazrat Ali, SI to Police Station, CTD, Peshawar, stated that in his presence the Investigating Officer recovered and took into possession one pistol of 30 bore, two Q mobile Cell phone bearing IMEI Nos. 358245062236652, 358245062236657 containing SIMs Nos. 0300-9027423, 0351-18399614, Ex. P-3 as Ex. P-4 and P-5, while the second recovered Cell phone bearing IMEI No. 356019050834167, 356019050834162 which was without SIM is Ex. P-6. He further stated that the I.O.
Also recovered SIM bearing No. 0331-8153412 from the trouser string of co-accused Ghani ur Rehman. Here it is pertinent to note that the complainant in his application had stated that he received a threatening call from SIM No. 0331-8153412 allegedly recovered from the possession of co-appellant Ghani ur Rehman. During the cross-examination, he deposed that the above demand SIM was not in the Cell phone, recovered from the accused, rather it was kept inside the fold of his shalwar.
' Nusrat Ali, who is marginal witness to the above recovery, when examined as PW-1, has also admitted that the place, wherefrom the accused Ghani ur Rehman was arrested, is a thickly populated and busy place; that the said recovered mobile are easily available in the open market.
He made it clear that accused Ghani ur Rehman was not known to him previously. Recovery memo as Ex. PW-1/2 is available on record and perusal of the same would show that it is witnessed by the police officials. Despite the facts that area/place, wherefrom the accused Ghani ur Rehman was arrested and recovery was made from his immediate possession, was thickly populated but the Investigating Officer has not associated any private person to witness the recovery, specially, of SIM bearing No. 0331-8153412.
' Wilyat Khan Inspector, who is 1.0. Of the present case, when appeared as PW-5, has stated in support of the investigation, which he conducted in the present case. During the cross- examination, he admitted that the recovered mobile sets and SIMs are easily available in the open market. He also admitted that both the demand SIMs are not registered in the names of the accused/appellants. With respect to the demand SIM No. 0335-8377791, it-is stated by the I.O. That it is in the name of Fazal Hadi, who has not been made an accused in the case. Similarly, in.
Respect of another demand SIM No. 0331-8153412, it is stated by the I.O. That the same is the ownership of Muhammad Umar, who has also not been made an accused in the case. Again, it is in the evidence of the I.O. That no report has been made by the owners with respect to the missing of SIMs. Besides the threatening SIM bearing No. 03318153412, the complainant in his application has also made reference to another SIM from which he received a threatening call and which is 0335- 9377791 and in which respect the I.O. Has admitted that the said SIM has not been recovered by him so far. With respect to the co-appellant Abdur Rehman, the I.O. Has categorically admitted that he had not recovered anything from his possessions.
' From the statement of the I.O. And marginal witness of the recovery, it is more than clear that the demand SIMs were not registered in the names of the appellants and so far as its recovery from possession of the appellant, Ghani-ur-Rehman, is concerned, the evidence in this respect is not worth reliance, most particularly, in the circumstances when no independent witness from the locality has been associated with the recovery and, again, its recovery, from the trouser string of the shalwar of the co-appellant, Ghani ur Rehman, in the circumstances, is also not appealable to the prudent mind.
7. The prosecution in support of its case has also got examined Fazal Hadi as PW6, who is stated to have purchased one of the demands SIM number, i.e., 0335-8377791 from the Ufone Franchise.
According to him, the above SIM was taken from him by co-appellant Abdur Rehman on the pretext that he would return the same to him, but, later on, the same was not returned to him by the co-appellant Abdur Rehman. During the cross-examination he admitted that he is registered owner of the above SIM but failed to disclose as to in whose presence the above SIM was given by him to the co-appellant Abdur Relunan. The version of PW Fazal Hadi regarding taking of one of the demand SIMs by co-accused Abdur Rehman from him, in the given position of the case, most particularly, his cross-examination is of no help in deciding the question under consideration.
8. Another witness of the prosecution is Haji Muhammad Tahir. He has been examined as PW-9.
According to him, in the month of last "Ramadan", he received a threatening call from SIM No. 03318153412 regarding payment of "Batha", which he arranged and, as such, made its payment to co-accused Ghani ur Rehman. During the cross-examination, he admitted that he himself has not made any payment to the caller of the above SIM; that the payment was made by his driver. As against that the prosecution has not examined the driver of PW Haji Muhammad Tahir, who could say about the payment of "Batha" to the caller of the SIM No. 0331-8153412 and then to face the cross-examination from the other side.
9. From the above discussed evidence, it appears that Javaid Mansoor, complainant of the case, had exonerated both the appellants from the charges levelled against them in the present case.
Both the demands SIMs are not registered in the names of the appellants and so far as its owners are concerned none of them have been made an accused. The owners of the SIMs were examined but their testimony is not of that caliber on the basis of which the appellants could be punished.
With respect to the recovery made by the I.O. During the investigation of the case, suffice it to say that it is not proved beyond reasonable doubt.
10. It is settled law that the prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same mist go to the accused and it would be sufficient to discredit the prosecution story. It is well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind is sufficient for acquittal of the accused. Reliance is placed on a case law Tariq Parvez v. The State (1995 SCM R 1345). The same principle was reinforced by the Hon'able Supreme Court in a case titled Muhammad Akram v. The State (2009 SCM R 230).
' The present case, as discussed earlier, besides the obliging statement of the complainant, is full of doubts.
11. In view of the above, we while giving benefit of doubt to the accused-appellants accept the appeal, set aside the conviction and sentences recorded by the learned trial Court and acquit them of the charges leveled against them in the present case. They shall be released forthwith if not required in any other case.
' Above are the reasons for our short order of even date.