KHADIM HUSSAIN TUNIO, J.---Through instant Criminal Jail Appeal, the appellant named-above has impugned the judgment, dated 19.03.2015, passed by the learned Judge Anti-Terrorism Court, Larkana in Special Case No. 22 of 2013, arisen out of Crime No. 22 of 2013, registered at Police Station Waggan, District Kambar-Shandadkot under sections 365-A, 324, 353, 148, 149, P.P.C. r/w Sectibn 7 of the Anti-Terrorism Act, 1997, whereby the appellant and other co-accused were convicted and awarded sentences, as under:-- a) Accused Akbar and proclaimed offenders 1) Aijaz son of Mithal Janwari 2) Sikandar son of Khan Muhammad Janwari 3) Hakim Hakoo son of Mour Janwari 4) Barkat son of Ghulam Hyder Janwari 5) Manzoor son of Eidan Janwari 6) Nusrat son of Mehboob Janwari 7) Imdad @ Nang son of Hyder Mugheri and 8) Fida son of Baggan Mugheri are convicted for an offence punishable under section 365-A, r/w section 149, P.P.C. and sentenced to suffer imprisonment for life, and the properties of the accused are ordered to be forfeited to the Government. b) Accused Akbar and proclaimed offenders 1) Aijaz son of Mithal Janwari 2) Sikandar son of Khan Muhammad Janwari 3) Hakim @ Hakoo son of Mour Janwari 4) Barkat son of Ghulam Hyder Janwari 5) Manzoor son of.Eidan Janwari 6) Nusrat son of Mehboob Janwari 7) Imdqd @ Nang son of Hyder Mugheri and 8)Fida son of Baggan Mugheri are further convicted for an offence punishable under section 324 r/w section 149, P.P.C. and sentenced to suffer R.I. for ten years. c) Accused Akbar and proclaimed offenders 1) Aijaz son of Mithal Janwari 2) Sikandar son of Khan Muhammad Janwari 3) Hakim @ Hakoo son of Mour Janwari 4) Barkat son of Ghulam Hyder Janwari 5) Manzoor son of Eidan Janwari 6) Nusrat son of Mehboob Janwari 7) Imdad @ Nang son of Hyder Mugheri and 8) Fida son of Baggan Mugheri are also convicted for an offence punishable under section 353 read with section 149, P. P. C. and sentenced to suffer RI for two years. d) Accused Akbar and proclaimed offenders 1) Aijaz son of Mithal Janwari 2) Sikandar son of Khan Muhammad Janwari 3) Hakim Hakoo son of Mour Janwari 4) Barkat son of Chulam Hyder Janwari 5) Manzoor son of Eidan Janwari 6) Nusrat son of Mehboob Janwari 7) Imdad @ Nang son of Hyder Mugheri and 8) Fida son of Baggan Mugheri are also convicted for an offence punishable under section 148, P. P. C. and sentenced to suffer R.I. for two years. e) Accused Akbar and proclaimed offenders 1) Aijaz son of Mithal Janwari 2) Sikandar son of Khan Muhammad Janwari 3) Hakim @ Hakoo son of Mour Janwari 4) Barkat son of Ghulam Hyder Janwari 5) Manzoor son of Eidan Janwari 6) Nusrat son of Mehboob Janwari 7) Imdad @ Nang son of Hyder Mugheri and 8) Fida son of Baggan Mugheri are also convicted for an offence punishable under section 7(e) of Anti-Terrorism Act, 1997 and sentenced to suffer imprisonment for life. f) Accused Akbar and proclaimed offenders 1) Aijaz son of Mithal Janwari 2) Sikandar son of Khan Muhammad Janwari 3) Hakim @ Hakoo son of Mour Janwari 4) Barkat son of Ghulam Hyder Janwari 5) Manzoor son of Eidan Janwari 6) Nusrat son of Mehboob Janwari 7) Imdad @ Nang son of Hyder Mugheri and 8) Fida son of Baggan Mugheri are also convicted for an offence punishable under section 7(h) of Anti-Terrorism Act, 1997 and sentenced to suffer R.I. for five years. They are ordered to pay fine of Rs.20,000/= each and in case of default in payment of fine, they shall further suffer S.I. for six months.
2. Brief facts of the prosecution case, as disclosed in the FIR, are that on 08.04.2013, at about 2100 hours, complainant Ayaz Hussain, his nephews Mukhtiar Ali, Muhammad Ilyas and relative Qurban Ali were returning from village Khair Muhammad Mugheri in Toyota Corolla at about 8:00 p.m., when (i) Wali Dino son of Mehboob (2) Aijaz son of Mithal (3) Sikander son of Khan Muhammad (4)
Hakim @ Hakoo son of Mour (5) Barkat son of Ghulam Hyder (6) Manzoor son of Eidan (7) Nusrat son of Mehboob (8) Akbar son of Mithal and three unidentified persons, all duly armed with weapons, stopped them and abductted the complainant and his relative Qurban Ali; however, his nephews Mukhtiar Ali resisted, on that accused Sikander made straight fire from his Kalashnikov on Mukhtiar Ali, which hit him on the left side of his abdomen. The accused then dragged the complainant and Qurban Ali towards the Western side of the road; meanwhile, Wahid Bux Lashari, S.H.O., P.S, Waggan along with his subordinate staff reached there and asked the accused persons to surrender but they opened fire on the Police party. The accused dragged the complainant and his relative Qurban Ali for 11/2 kilometers and when they reached Phoroo Lakha, they made their escape good by leaving the complainant and Qurban Ali there.
3. After usual investigation, challan was submitted by the police against the accused. A formal charge was framed against the present appellant, to which he pleaded not guilty and claimed to be tried.
4. To prove its case, the prosecution examined P.W-1 S.I.P. Azizullah, the duty officer at Ex-15, who produced FIR at Ex-15-A and attested copies of Roznamcha Entries Nos. 31 and 32 at Ex-15-B and 15-C, respectively; P.W.-2 A.S.I. Akhtar Ali, arresting officer, at Ex-16, who produced mashirnama of treating arrest of accused Mustoo Ghulam Mustafa at Ex. 16-A; P.W-3 Ayaz Hussain, complainant, at Ex. 18; P.W-4 Muhammad Ilyas at Ex. 19; P.W-5 P.C. Ghulam Sarwar, mashir, at Ex-21, who produced the attested copy of mashirnama of imaginary arrest of accused Akbar at Ex.21-A; P.W-6 P.C.
Akhtar Ali, corpse bearer, at Ex.23, who produced the attested photo copy of receipt of dead body of deceased co-accused Wali Dino at Ex.23-A; P.W-7 S.I.P. Wahid Bux Lashari, Investigating Officer, at Ex.24, who produced the mashirnama of place of vardat at Ex.24-A, the mashirnama of seeing the injuries of injured at Ex.24-B, the mashirnama of arrest of accused Wali Dino at Ex.24-C, letter No. 39 dated 10-4-2013 issued by Senior Superintendent of Police, Qamber-Shandadkot for constituting the Joint Investigation Team at Ex.24-D, mashirnama of imaginary arrest of accused Akbar Buledi at Ex.24-E, P.W-8 Dr. Ramesh Lal, Senior Medical Officer, at Ex.26, who produced the attested photocopy of police letter at Ex.26-A, post mortem report of deceased Wali Dino Janwari at Ex. 26-B. The statement of appellant/accused was recorded under section 342, Cr.P.C. in which he denied the allegation levelled against him and claimed to be innocent. The learned Trial Court on the assessm ent of evidence on the record convicted the appellant and absconding co- accused and sentenced them, vide judgment dated 19.03.2015, as mentioned above.
5. Learned counsel for the appellant has contended that the parties were inimical to each other and the complainant at number of times issued threats to appellant illegally to compel his to leave his village and lastly he involved him in this false case; that the prosecution failed to prove its case against the appellant/accused beyond any shadow of doubt but even then the appellant was convicted by the trial Court; hence, the impugned judgment is against the law and facts on record that the private witnesses were interested witnesses who, admittedly, have inimical relations with the accused persons and are hostile towards them; that the trial Court did not appraise and appreciate the evidence in its true perspective and even the alleged motive for alleged commission of offence has come from the mouth of the same interested witnesses, whose testimony itself require corroboration; that since o the judgment is not sustainable under law, it is liable to be set aside in the larger interest of justice. In support of his contentions, the learned counsel has referred to case-law reported as 2008 SCM R 1572, 1997 SCM R 25, 1999 SCM R 1030, 1995 SCM R 599, 1993 SCM R 550, 2001 SCMR 420, 1996 SCM R 167, PLD 2006 Kar. 206 and 2017 SCM R 622.
6. Learned D.P.G. for the State, has vehemently opposed the acquittal of the appellant on the ground that appellant is nominated in the FIR with specific role and the learned trial Court has rightly convicted the appellant while relying on the evidence of prosecution witnesses.
7. We have given due consideration to the submissions of learned counsel for the appellant and the learned D.P.G. and have perused the evidence available on the record
8. It appears that main witnesses, namely, Qurdan Ali, the alleged abductee and Mulchtiar Ali, the injured, have -not been examined by the prosecution; as such, the prosecution withheld its best evidence. It is well-settled principle of law that if the best piece of evidence is available and the same is withheld by a party, then it is presumed that the party has some ill motive behind non- production of such evidence. The alleged incident is stated to have been taken place on a road, but police failed to associate any person from the locality as witness. It is an admitted A position that none of two abductees was recovered from the possession of the appellant. Besides, as per prosecution case, a police party headed Wahid Bux Lashari S.H.O. PS. Waggan also reached the spot and an encounter took place in between police party and accused persons which lasted 20 to 25 minutes but nobody from either side sustained any injury. However, the said S.H.O. in his statement has deposed nothing about reaching the spot; chasing the accused and taking place any such encounter on the alleged day. It may also be observed the co-accused Mustoo alias Ghulam Mustafa has been acquitted by the trial Court of the charge, vide impugned judgment, on the basis of same set of evidence.
9. It has now well-settled principle of law that the conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. In the instant case, the evidence available on record are not of such a character which could be relied upon to convict a person as the testimony of the witnesses are having material contradictions, which even do not corroborate with the content's of FIR, hence, in such case the benefit of doubt would go to the appellant. It is also well settled legal principle that for giving benefit of doubt to an accused, there need not be a number of circumstances to prove the innocence of accused; even single circumstance creating reasonable doubt is sufficient for the acquittal of an accused. As the prosecution has failed to prove the guilt against the appellant beyond any shadow of doubt, his conviction cannot be maintained.
10. For what has been discussed above, the appeal is allowed and the conviction and sentence awarded by the trial Court to the appellant vide impugned judgment is set aside and the appellant/accused is acquitted of the charge. He is directed to be released forthwith, if his custody is not required by any other court in any other Crime/Offence.
11. Above are the reasons of our short order, dated 05.12.2017, whereby instant appeal was allowed.