SADIQ MAHMUD KHURRAM, J. The appellant (convict), namely , Ghulam Rasool alias Gudda son of Ahmad Din was tried by the learned Judge, Anti-T errorism Court, Bahawalpur , in case FIR No.309 of 2009, dated 20.04.2009, registered at Police Station Saddar Khanpur , District Rahim Yar Khan, in respect of offences under sections 365-A, 201, 148 and 149 PPC and sections 7 & 21-L of the Anti-T errorism Act, 1997. The learned trial court vide judgment dated 13.05.2016 convicted Ghulam Rasool alias Gudda (appellant) and sentenced him as infra: "(i) Under section 365-A PPC read with section 149 PPC: Imprisonment for life and forfeiture of all moveable and immoveable properties of the appellant;
(ii) Under section 7(e) of the Anti-terrorism Act, 1997 : Imprisonment for life and forfeiture of all moveable and immoveable properties of the appellant.
(iii) Under section 21-L of Anti-T errorism Act, 1997: Imprisonment for five years and fine of Rs.2,00,000/- and in default thereof, to undergo six months Simple Imprisonment.
(iv) Under section 201 of PPC: Imprisonment for five years and fine of Rs.2,00,000/- and in default thereof, to undergo six months Simple Imprisonment.
All the sentences were ordered to run concurrently and the benefit available under section 382-B Cr.P.C was also extended to the appellant.
2. Feeling aggrieved, Ghulam Rasool alias Gudda (convict) lodged the instant Criminal Appeal No.261-J-A TA of 2016 against his conviction and sentences.
3. Precisely the facts necessary , as divulged in the statement of Dr . Shahid Iqbal, (PW -3) are as under: "On 19.4.2009 prior to "Maghrib-waila" Muhammad Asif co-accused was wandering outside my clinic situated at Gharri Ikhtiar Khan. I and staff members of my clinic saw co-accused Asif. At about 8:00 pm I alongwith Suleman dispenser left my clinic for Sheikh Zayed Hospital Rahim Yar Khan on my Suzuki car and when we reached near the house of Ghulam Nabi Larr, a car suddenly came in front of our car, out of which co-accused Raees Mazhar, Raees Zafar alias Akmal, alighted, they were carrying Kalashnikovs in their hands, took out me from my car on gun point and put me in their car. In the meantime Suleman PW raised hue and cry and other two co-accused persons namely Asif and Faqeer Bakhsh while armed with Pistols alighted from the car and tortured Suleman and also put him in their car and decamped. On the way co-accused persons closed our eyes with pieces of cloth. On my asking that why they kidnapped us, the co-accused persons replied that we will teach a lesson to you for making relations. After some time co-accused Zafar asked his companions what to do with us. Raees Mazhar co-accused replied that their father Raees Manzoor had made telephonic call that some persons are present ahead. After an hour the co-accused alighted us from car at deserted place where from we walked for twenty minutes, thereafter the co-accused persons boarded us in another car wherein four unknown persons talking in Sindhi language were present who took us to unknown place and confined us in a room near Machka where our eyes and hands were un-tied by said persons and I saw accused Ghulam Rasool Guda present in court while holding me, he was armed with Kalashnikov. After 8/10 days of our confinement, accused Ghulam Rasool present in court made me to call to my brother many times and directed me to ask my brother to stop proceedings against Raees Mazhar and Akmal etc and also directed to arrange ransom amount for my release and I asked my brother accordingly many times. On 23.5.2009 my brother Javed Iqbal and Muhammad Zafar arranged ransom money of eight lac fifty thousand rupees and paid to accused persons. On the same day at evening time present accused Ghulam Rasool came to me and informed me that they had received ransom amount and will release us. He also made me to talk to my brother in this regard. On the same night at about 11:00 pm accused persons including present accused closed our eyes and boarded us on separate motorcycle and after covering distance of 20 minutes our eyes were unveiled, handed over our custody to some other persons who were boarding on motorcycle and thereafter said motorcyclists handed over us to other persons in a Jeep and said two persons boarded us and brought us at Obarru city in said Jeep where from SHO Akhtar Abbas and two constables brought us at Khanpur .
The motive of the occurrence is that two days prior to the occurrence, Akram son of Faqeer Bakhsh asked father of Suleman dispenser that Suleman should left the job of dispenser from me because some heinous offences were going to be committed against me. One month before a quarrel took place between Riaz goldsmith and co-accused Zafar and Mazhar and I helped Faiz Raso ol injured of that occurrence in getting medically examined from Hospital as a result of which Raees Zafar co-accu sed was sent to Jail and for this reason co-accused also used to extend threats on telephone and they nourished grudge. Police did not record my statement correctly because Munir SI/IO extended me threats and said that accused are political figures and asked me not to initiate legal proceedings against them so I got recorded my statement before Area Magistrate under Sec.164 CrPC.
On 06.5.2015 I joined Identification Para de proceedings held at New Central Jail Bahawalpur and during said identification parade I identified Ghulam Rasool alias Guda accused present in court as accused who closed my eyes alongwith my co-victim with pieces of cloth and then took us to unknown place and detained there in a room for 36 days. Accused Ghulam Rasool Guda also remained present while armed with Kalashnikov during our confinement and threatened us to kill in failure of payment of ransom and he also informed me regarding receiving of ransom amount and made me to talk lastly to my brother regarding receiving of ransom and my release. Present accused Ghulam Rasool alias Guda is my real culprit."
4. The learned trial court framed charge against the appellant on 29.09.2015 to which he pleaded not guilty and the learned trial court proceeded to examine the prosecution witnesses.
5. The prosecution in order to prove its case got recorded statements of ten witnesses. Dr. Shahid Iqbal (PW-3) and Muhammad Suleman (PW-4) are the abductees of the case. Shamsud Din ASI (PW-1) stated that he investigated the case from 26.07.2009 till 29.10.2009 and detailed the facts of his investigation in his statement before the learned trial court. Muhammad Irshad (PW-2) stated that on 19.04.2009, after the abduction of Dr. Shahid Iqbal (PW-3) and Muhammad Suleman (PW-4), he filed an application Exh.PE for registration of the case and after 36-days of the occurrence, the abductees were released. Abbas Akhtar Inspector/SHO (PW-5) investigated the case from 24.04.2015 till 20.05.2015 and detailed the facts of his investigation in his statement before the learned trial court. Bashir Ahmad S.I (PW-6) stated that on 24.04.2015, he arrested the appellant.
Ghulam Fareed (PW-7) stated that on 20.04.2009, he recorded the formal FIR (Exh.PE/2). He further stated that he investigated the case from 20.04.2009 till 31.05.2009 and detailed the facts of his investigation in his statement before the learned trial court. Muhammad Javed, Judicial Magistrate (PW-8) stated that on 28.04.2015, he received the order of the District & Sessions Judge, Rahim Yar Khan regarding conducting of the identification parade of the appellant, whereupon, on 06.05.2015, he supervised the identification parade proceedings (Exh.PJ). Muhammad Javed (PW-9) stated that on 19.04.2009, he handed over the ransom amount of Rs.8,50,000/- to two persons including the appellant. Saeed Akhtar , Senior Civil Judge (PW 10) stated that on 18.06.2009, he recorded the statements of the abductees (Exh.PK and Exh.PL).
6. On 09.12.2015, the learned DPG gave up PWs Maqbool Ahmad ASI and Muhammad Arshad S.I/SHO being unnecessary and on 05.01.2016 the learn ed DPG gave up PWs Asmat Javed ASI, Anwar S.I, Rana Safdar S.I and Arshad Khan S.I being unnecessary . The learned DPG closed the prosecution evidence on 14.03.2016.
7. After the closure of prosecution evidence, the learned trial court examined Ghulam Rasool alias Gudda (appellant) under section 342 Cr.P.C. and in answer to question "why this case against you and why the PWs have deposed against you", the appellant claimed that he had been falsely involved in this case and was innocent. The appellant opted not to get himself examined under Section 340(2) Cr.P.C. nor he adduced any evidence in his defence.
8. On the conclusion of the trial, learned Judge, Anti-T errorism Court, Bahawalpur , convicted and sentenced the appellant as referred to above.
9. The contention of the learned counsels for the appellant precisely is that whole case is fabricated and false.
The learned counsels contended that the prosecution remained unable to prove the facts and did not produce any unimpeachable, admissible and relevant evidence. The learned counsels further contended that the statements of prosecution witnesses are not worthy of reliance. The learned counsels also argued that there was no corroborative evidence supportive of the prosecution case. The learned counsels finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt and prayed for acceptance of appeal lodged by the appellant.
10. On the other hand, learned Deputy Prosecutor General along with the learned counsel appearing on behalf of complainant contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. They further submitted that there was no untoward delay in lodging the FIR. They contended that the appellant had no previous enmity with the prosecution witnesses and there was no occasion for the prosecution witnesses to substitute the real offenders with the innocent ones in this case. Lastly , they prayed for the rejection of the appeal.
11. We have heard the learned counsels for the appellant and learned Deputy Prosecutor General along with the learned counsel appearing on behalf of complainant and with their assistance have carefully perused the record and evidence recorded during the trial.
12. The whole prosecution case revolv es around the statements of Dr.Shahid Iqbal (PW-3) and Muhammad Suleman (PW-4), the abductees of the case. We have observed that Dr.Shahid Iqbal (PW-3) and Muhammad Suleman (PW-4), the abductees of the case, have saddled the appellant with the responsibility of being present at the place of confinement when they were brought there by the co-accused Raees Mazhar , Raees Zafar alias Akmal, Asif and Faqeer Bakhsh (all since acquitted ). The witnesses, namely , Dr.Shahid Iqbal (PW-3) and Muhammad Suleman (PW-4) statedly identified the appellant in an identification parade held after six years of the occurrence. During the cross-examination, Dr. Shahid Iqbal (PW-3) admitted that he had got recorded his statement that the accused persons kept their faces muffled. He was further confronted with his previous statement Exh.DC, wherein, removing of muffles from the faces of the accused was not mentioned. This witness further admitted during his cross-examination that he never pointed out the place of his confinement to the police during the investigation of the case. He also admitted that he had not described the features of unknown accused in his statement recorded by the Magistrate and in his written statement produced before the police. Similarly, Muhammad Suleman (PW-4) admitted during his cross-examination that except for 24.05.2009, he never joined the investigation of the case. He also admitted to this fact that during the period wherein he was abducted, his parents never got registered an FIR regarding his abduction. He was confronted with his previous statement Exh.DD, got recorded in the private complaint titled "Irshad Vs. Raees Manzoor, etc.", wherein, he had stated that he used to pursue the case on the advice of Dr.Shahid Iqbal (PW-3) and he used to say same things which he was asked to say by Dr.Shahid Iqbal (PW-3). This witness also stated during cross-examination that the accused never talked with him during the confinement of 36-days. He also admitted to this fact that he did not point out the place of confinement to the police. During cross-examination, this witness was further confronted with his previous statement Exh.DD, wherein, he had stated that he had not made any statement to the police ever. In absence of this disclosure of the features, physiques and complexions of any of the unknown accused persons in their statements recorded on 30.05.2009 by the Investigating Officer, the identification of the appellant in the identification parade held on 06.05.2015 loses all its efficacy. The absence of descriptive features through which they could be identified is conspicuous by its absence. Ghulam Fareed S.I/Investigating Officer (PW-7) admitted during cross-examination as under:- "It is correct that both alleged abductees got recorded their statements under sec 161 Cr.P.C before I.O on 30.05.2009, wherein they did not disclose the features, physiques and complexions of any of the unknown accused persons."
As such the test identification parade loses its authenticity and has no value in the eye of law. Reliance is placed upon a binding judgment of the august Supreme Court of Pakistan in the case titled "Muhammad Afzal alias Abdullah v . The State and others" (2009 SCMR 436 ), wherein, it has been held as under: "Absence of such details in FIR militated against the bona fides of prosecution and greatly marred evidentiary value of test identification parade."
Reliance is also placed on the case of "Javed Khan alias Bacha and another Vs. The State and another" (2017 SCMR 524 ), wherein, it has been held as under:- "The Complainant (PW-5) had not mentioned any features of the assailants either in the FIR or in his statement recorded under section 161, Cr.P.C. therefore there was no benchmark against which to test whether the appellants, who he had identified after over a year of the crime, and who he had fleetingly seen, were in fact the actual culprits. Neither of the two Magistrates had certified that in the identification proceedings the other persons, amongst whom the appellants were placed, were of similar age, height, built and colouring. The main object of identification proceedings is to enable a witness to properly identify a person involved in a crime and to exclude the possibility of a witness simply confirming a faint recollection or impression, that is, of an old, young, tall, short, fat, thin, dark or fair suspect."
Similarly in the case of "Sabir Ali alias Fauji v. The State" (2011 SCMR 563) the Hon'ble Supreme Court of Pakistan at page 570 was pleased to observe as under:- "...It is also settled principle that identification test is of no value when description/feature of accused is not given in the contents of the F.I.R. It appears from the record that accused persons are complete strangers to the prosecution witnesses, therefore, in the absence of description in the contents of F.I.R., the benefit of doubt be given to the accused persons...."
13. We have also noticed that the co-accused, namely, Raees Mazhar, Raees Zafar alias Akmal, Asif and Faqeer Bakhsh (since acquitted), who were saddled with the responsibility of abducting the abductees, namely, Dr.Shahid Iqbal (PW-3) and Muhammad Suleman (PW-4), were acquitted by the learned trial court. It is also a fact that during the investigation of the case, the above said co-accused, namely, Raees Mazhar, Raees Zafar alias Akmal, Asif and Faqeer Bakhsh (since acquitted) were declared innocent in the case and their involvement in the case was found to be based on a false narrative. The witnesses who were rejected to the extent of the co-accused could not be believed to the extent of the present appellant. The august Supreme Court of Pakistan as recently held that partial truth cannot be allowed and perjury is a serious crime. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 has enunciated the following principles:- "We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury."
14. The learned Deputy Prosecutor General along with the learned counsel appearin g on behalf of complainant have also relied upon the statement of Muhammad Javed (PW-9), who stated that he went to pay the ransom amount to the two accused including the appellant. Muhammad Javed (PW-9) admitted during cross-examination that his statement was not recorded by the police. He further admitted during cross-examination that he did not produce any bank statement before the police or gave any written details of the source through which the ransom amount was paid. Though this witness had stated in his examination-in-chief that he and his brother, namely, Irshad received many calls from the abductors and thereafter, the amount of ransom was settled between them and the accused persons, however, it is an admitted fact that the prosecution failed to produce the Call Data Record of this witness or any voice record transcript of any conversation between the abductors and the witness. This failure of prosecution to produce the Call Data Record of the cell phone of the witness forces us to disbelieve this witness. Similarly, Dr.Shahid Iqbal (PW-3) stated in his examination-in-chief that the accused settled the ransom amount with his this brother on telephone. He further stated that the appellant told him about the payment of ransom and also called his brother and in his presence, he had a conversation with his brother. Muhammad Suleman (PW-4) who was being held in captivity alongwith Dr.Shahid Iqbal (PW 3), however, stated that the ransom amount was not paid in his presence. It appears that no arrangements were made before the ransom money was to be paid, whether on payment of the ransom amount the abductees, namely, Dr.Shahid Iqbal (PW-3) and Muhammad Suleman (PW-4), were to be released or how their release was to be effected. That at the time of payment even no inquiry was made with regard to the welfare and whereabouts of the abductees which is very odd and puzzling and confuses the human mind that how a prudent man, who is making payment of Rs.8,50,000/-, can without any arrangement of any sort make the payment of huge amount in absence of any assurance of the release of abductees on making of payment. No doubt the allegation is that the ransom amount was paid on 23.05.2009 and the abductees were released on the same evening, but considering the same in the given circumstances discussed above, a doubt is created in the prosecution case, the benefit of which cannot be denied to the appellant. Reliance is placed on the case of "Azeem Khan and another Vs. Mujahid Khan and others" (2016 SCMR 274), wherein, it has been held as under:- "The cell phone call data collected is of no help to the prosecution for the reasons that numerous calls have been made indicating continuous interaction between the two cell phones, contrary to the evidence given by Muhammad Wali (PW-3), who has stated at the trial that the unknown caller made calls on his cell phone four times. No competent witness was produced at the trial, who provided the call data, Ex.P-1 to Ex.P-5. No voice record transcript has been brought on record. Similarly from which area the caller made the calls, is also not shown in it. Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In this view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner."
15. We have also deliberated the fact that Dr.Shahid Iqbal (PW-3) and Muhammad Suleman (PW-4), the abductees of the case, were released on 23.05.2009, however , their statements were recorded by the Munir Ahmad S.I/Investigating Officer (since dead ) on 30.05.2009. There is no explanation on their part as to why their statements were recorded with such a delay . There is no reason mentioned by them for this deferral. This delay in recording the statements under section 161 Cr.P.C., is revealing of the fact that said witnesses were not truthful witness. The august Supreme Court of Pakistan in the case of "Abdul Khaliq Vs. The State " ( 1996 SCMR 1553 ) has held as under: "It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nill unless there is plausible explanation for such delay".
The august Supreme Court of Pakistan in the case of "Muhammad Khan Vs. Maula Bakhsh " (1998 SCMR 570) has held as under: "It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C is recorded with delay without offering any plausible explanation".
The august Supreme Court of Pakistan in the case of "Syed Saeed Muhammad Shah and another Vs. The State " (1993 SCMR 550 ) at page 571 has held as under: "In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. In this case unsatisfactory explanation which is not substantiated can be equated with no explanation".
16. The learned Deputy Prosecutor General alongwith learned counsel for the complainant has also laid much premium on the abscondence of the appellant as proof of his guilt. Suffice is to say that abscondence has never been considered in isolation and is only a corroborative piece of evidence. Reliance is placed on the cases of "Muhammad Farooq and another Vs. The State" (2006 SCMR 1707) and "Rohtas Khan Vs. The State" (2010 SCMR 566).
17. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Ghulam Rasool @ Gudda (appellant), in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a pruden t person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha Vs. The State" (2018 SCMR 772 ) has enunciated the following principle:- "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan titled as "Muhammad Akram Vs. The State" (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra:- "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 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".
18. For what has been discussed above, Criminal Appeal No.261-J ATA of 2016 lodged by Ghulam Rasool alias Gudda is accepted and the conviction and sentences of the appellant awarded by the learned trial court through the impugned judgment dated 13.05.2016 are hereby set-aside. The appellant, namely , Ghulam Rasool alias Gudda is ordered to be acquitted. He is directed to be released forthwith, if not required in any other case.