Shehram Sarwar Ch., J.--Fazal Hssain (appellant) alongwith his co-accused namely Rasool Bakhsh was tried by the learned Judge, Ami-T errorism Court. Dera Ghazi Khan in case FIR 156 dated 08.04.2006, offence under Sections 365-A, 392, 109 PPC read with section 7 of the Anti-T errorism Act., 1997 registered at Police Station Kot Chutta District Dera Ghazi Khan. Vide judgment dated 02.06.2010 passed by the learned trial court, the appellant has been convicted under Section 365-A PPC read with Section 7(e) of the Anti Terrorism Act, 1997 and sentenced to imprisonment for life. The appellant was acquitted of the charge under Section 392 PPC. Benefit of Section 382- B, Cr.P.0 was extended to the appellant. Through the same judgment, Rasool Baskhsh, co-accused of the appellant was acquitted of the charge by extending him benefit of doubt and no appeal against his acquittal was filed either by the State or the complainan t, as conceded by learned Deputy District Public Prosecutor . Assailing the above conviction and sentence, the appellant has filed the appeal in hand.
2. Prosecution story , as set out in the FIR (Ex.P A/1) registered on the statement (Ex.P A) of Muhammad Hussain, complainant (PW.1) is that on 07.04.2006, he alongwith his brother Talib Hussain and maternal nephew Aurangzeb was going to his land situated at Chah Mochi Wala carrying meal and milk pot 6n motorcycle CD-70 model 2004. At about 10:00 p.m., when they reached at unpaved road near Chah Rakhy Wala within the area of Mouza Abrind, four persons namely Fazal Hussain, Allah Ditta both armed with Kalashnikovs, Abid Hussain and Mureed Hussain both armed with pistols emerged there who were identified in the light of motorbike. One motorcycle CG-125 was parked alongside the accused. The accu sed intercepted the complainant party on gunpoint and threatened them that they would be done to death if they raised alarm and due to fear, complainant and others did not make any noise. The accused pinned down the complainant party with the strings of their Shalwars. Allah Ditta and Fazal Hussain led complainant and others on gunpoint ahead whereas other two accused took motorbike without starting towards east where the complainant side was personally searched and brought out Rs,650/- as well as receipt of motorbike from complainant's Wallet and taken a wrist watch Casio. Similarly , the accused snatched wrist watch of Citizen company from Aurangzeb. The accused confined complainant and his companion Aurangzeb in a room of abandoned house of Inam Shah and then bolted the room from outside. The complainant and Aurangzeb saw through the hole of wall that Talib Hussain was tied from behind whose eyes were also closed by the accused with a safes and he was taken on motorbikes towards east on paved road known as Bund Shero Road wherefrom they took a turn towards north. The complainant and Aurangzeb released themselves and broke lock of the door. They made hue and cry which attached massive crowd from surrounding Abadi. It was alleged in the FIR that the accused has abducted Talib Hussain.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in the case. The appellant alongwith Rasool Bakhsh, co-accused was summoned by the learned Judge, Anti-T errorism Court, D.G. Khan to face the trial. Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against them on 06.11.2009, to which they pleaded not guilty and claimed trial. After the closure of prosecution evidence, statements of the appellant and his co-accused under Section 342, Code of Criminal Procedure was recorded on 27.04.2010, wherein they refuted all the allegations of prosecution and professed their innocence. In answer to a question as to why this case against him and why the prosecution witnesses had deposed against him, the appellant stated as under:-- "I have been falsely involved in this case on the asking of police."
The appellant neither opted to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2) Code of Criminal Procedure nor did he produce any evidence in his defence. However , after conclusion of the trial, the learned trial court convicted and sentenced the appellant and acquitted his co-accused, as detailed above. Hence this appeal.
4. Learned counsel for the appellant, in support of this appeal contends that the appellant has falsely been implicated in this case; that there was a delay of about one hour and fifty minutes in reporting the matter to the police without there being any satisfactory explanation; that there is nothing on record as to from which source the complainant came to know about the name of the appellant; that no evidence is available on record which could show that the act done by the appellant had created sense of fear or insecurity in public and as such provisions of Section 7 of the Anti-T errorism Act, 1997 are not attracted in this case; that prosecution has failed to prove the charge of abduction Talib Hussain (PW.2) for the purpose of ransom against the appellant; that nothing was recovered from the appellant during the course of investigation; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Deputy District Public Prosecutor opposes this appeal on the grounds that there was no conscious or deliberate delay in reporting the matter to the police; that the appellant is nominated in the FIR; that the appellant has committed heinous offence by abducting Talib Hussain (PW.2) for the purpose of ransom; that there is sufficient evidence available on record which could show that the act done by the appellant created panic and insecurity amongst the people of vicinity and as such provisions of Sectio n 7 of the Anti-T errorism Act arc fully attracted in this case; that the prosecution has successfully brought home guilt against the appellant beyond any shadow of doubt and there is no merit in this appeal.
6. Arguments heard. Record perused.
7. As per contents of FIR, Fazal Hussain (appellant) alongwith his co-accused overpowered Muhammad Hussain complainant (PW. 1), his brother Talib Hussain (PW.2) and maternal nephew Aurangzeb when they were going to their fields on motorcycle situated at Chah Mochi Wala. They took out a purse having Rs,650/- and a receipt of motorcycle, from the pocket of complainant. Thereafter , the accused persons took them to the dera of Inam Shah and confined complainant and Aurangzeb in a room and bolted the door and subsequently took away Talib Hussain (PW.2) with them who were traced out by the complainant party with the help of foot prints of accused persons and got Talib Hussain released from their clutches. Admittedly , there is no mention in the FIR or brought on record as to from which source the complainant came to know about the name of appellant. It is also no mentioned in the FIR that Talib Hussain (PW.2) was abducted by the appellant and his co-accused for the purpose of ransom. Moreover , no amount of ransom allegedly demande d by the appellant from the complainant party was written in the FIR. In the FIR as well as before the learned trial Court it was the case of prosecution that on the fateful night the appellant and his co-accused stopped the complainant party when they were going to their fields on motorcycle and snatched a purse from complainant having Rs,650/- and a receipt of motorcycle. Charge under Section 392 PPC was framed against the appellant but he has been acquitted from the said charge by the learned trial Court and no appeal against his acquittal to that extent was filed either by the State or the complainant. The story of prosecution qua abduction of Talib Hussain (PW.2) by the appellant and his co-accused for the purpose of ransom does not appeal to a prudent mind becau se no demand was made by the appella nt and his co-accused from the complainant party for the release of the alleged abductee. It was also the claim of complainant that Talib Hussain (PW.2) was traced out with the help of foot prints of accused persons on the same night but no evidence in that regard was produced by the prosecution during the trial. Moreover , Talib Hussain the alleged abductee was not recovered at the instance of the appellant. Nothing was recovered from him during the course of investigation. Talib Hussain (PW.2) has stated in his examination that the accused persons asked him that they will receive ransom amount Rs,50,00,000/- from his relatives for his release but neither the appellant nor his co-accused made any telephonic call to the relatives of Talib Hussain qua ransom. Moreover , if the intention of the appellant and his co- accused was to extort money for the release of Talib Hussain then there should have been made demand from the complainant soon after his abduction but same was not done so which fact also creates doubt about the veracity of prosecution story .
8. As far as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.
9. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of 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 failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story . In "Muhammad Akram versus The State" (2009 SCMR 230 ), the Hon'ble Supreme Court of Pakistan, at page 236, was pleased to observe as under:-- "13. ...It is an axiomatic principle of law that in case of doubt, the benefit there of 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 Tariq Pervez v. The State 1995 SCMR 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."
10. For the foregoing reasons, Criminal Appeal No,25-A TA of 2011 filed by Fazal Hussain (appellant) is allowed, convictions and sentence awarded to the appellant vide judgment dated 02.06.201 0 passed by the learned Judge ATC, DG Khan are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Fazal Hussain, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
11. It is clarified that the observations made in this judgment are relevant only for the disposal of this appeal, which shall not prejudice the case of Allah Ditta, co-accused of the appellant, still absconding. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.