Tariq Saleem Sheikh, J. The Appellant, Ghulam Shabbir alias Shabbira, was booked in case FIR No. 160/2003 dated 24.7.2003 registered at Police Station Saddar Alipur , District Muzaf fargarh, for offences under Sections 365- A, 398, PPC and Section 7(c) of the Anti-T errorism Act, 1997 (the "ATA"). He was tried by the learned Judge, Anti- Terrorism Court, Dera Ghazi Khan, who vide judgment dated 19.10.2010 convicted and sentenced him as under: i) Convicted under Section 365-A, PPC and sentenced to imprisonment for life and forfeiture of his movable and immovable property . ii) Convicted under Section 7(e) of the ATA and sentenced to imprisonment for life and forfeiture of his movable and immovable property . iii) Convicted under Section 398, PPC and sentenced to rigorous imprisonment for seven years. iv) All the sentence were ordered to run concurrently and benefit of Section 382-B, Cr .P.C was extended to him.
2. Brief facts of the case are that on 24.7.2003 Complainant Safdar Abbas (PW-1) made a statement Exh.PA before Dir Muhammad/Inspector (PW-4) to the effect that he was an agriculturist. At about 5:00 a.m., he received a telephonic call from Bahawalpur that his paternal uncle Haq Nawaz (PW-2) had been abducted by seven/eight unknown armed men. On receipt of this information, he along with Riaz Hussain (PW-3) and PW Muhammad All (not produced) reached the Dera of Haq Nawaz where his servant Muhammad Kabir alias Wazeer (PW-5) told them that at about midnight seven/eight persons, who were armed with Kalashnikovs and, rifles and had muffled their faces came at the Dera, tied him with ropes and abducted Haq Nawaz leaving a message for Fazal Khan and Safdar Khan to arrange ransom in the sum of Rs.20,00,000/-. He along with his companions went out in his search and reached near tubewell of Ch. Muhammad Rafique where Azam told them that on the preceding night seven/eight persons had taken away his Massey-240 tractor after looking him in the room attached with the tube-well and leaving three/four armed persons to guard till morning. Safdar Abbas further stated that when he and PWs Riaz Hussain and Muhammad Ali reached near Sultanpur they found the tractor of Azam stuck in a watercourse. Thereafter, they went towards River Indus at Pattan of Gabar Arain where some residents of the locality told them that half an hour ago they had seen the accused taking the abductee on a boat in the river. Din Muhammad/Inspector (PW-4) reduced his statement to writing (complaint Exh.PA) and dispatched it to the police station through Abdul Razzaq 681/C for registration of a case.
Muhammad Akbar 221/HC received it and penned FIR (Exh.PA/1) on the same day at 8:20 p.m.
3. Investigation of this case was also entrusted to Din Muhammad Inspector (PW-4) who inspected the place from where Haq Nawaz was allegedly abducted, and prepared its rough site plan (Exh.PB). He then went to the place from where the accused snatched the tractor from Azam on gunpoint and prepared its site plan Exh.PC. He also recorded the statements of witnesses under Section 161, Cr.P.C. Thereafter , the investigation was entrusted to the SHO of the police station who got issued non-bailable warrants of arrest against the Appellant, Ghulam Shabbir alias Shabbira, and his co-accused and handed over the same for execution to Naseem Ahmad/ASI (PW-7) on 19.10.2003. However , that could not be traced regarding which report Exh.PE was submitted to the Area Magistrate. On 7.11.2003, he handed over proclamation against the Appellant to Muhammad Aslam/ASI (PW-8) who executed the same and filed his report Exh.PE/1. On 9.10.2009, Nazar Hussain/SI (PW-9) arrested the Appellant who was a proclaimed offender in case FIR No. 34/2004 of Police Station Khairpur Sadat. He obtained his physical remand during the course of which he got recovered rifle P-1 which he seized vide Recovery Memo Exh.PD. The Appellant disclosed that he had used the said weapon in many offences, including the case in hand. A separate case under the Arms Ordinanc e was registered against him. On 17.10.2009, investigation of this case was entrusted to Muhammad Iqbal/SI (PW-10) who sought permission vide application Exh.PE to interrogate the Appellant and then formally arrested him. During interrogation the Appellant disclosed that he had already got recovered rifle 7 mm P-1 in case FIR No 34/2004. The Investigating Officer brough t on record copy of the recovery memo and rough site plan. He recorded statements of the witnesses under Section 161, Cr.P.C. During his investigation he found the Appellant involved, in the occurrence. Report under Section 173, Cr.P.C. was submitted accordingly .
4. On 3.12.2009, the learned trial Court framed charge against the Appellant to which he pleaded not guilty and claimed trial. In order to prove its case the prosecution produced 10 witnesses. Complainant Safdar Abbas (PW-1), Riaz Hussain (PW-3) and Muhammad Kabir alias Wazeer (PW-5) supported the story as contained in the FIR (Exh.P A/1). Haq Nawaz (PW-2) testified about his abduction by the Appellant and his co-accused and then his escape from their custody . Muhammad Tariq 1475/C (PW-6) deposed about the recovery of rifle P-1 (Exh.PD). The Investigating Officers, Din Muhammad/Inspector (PW-4), Nazar Hussain/SI (PW-9) and Muhammad Iqbal/SI (PW- 10), gave the details of their investigation and the evidence they collected in this case.
5. After the prosecution was through with its evidence the learned trial Court recorded the statement of the Appellant under Section 342, Cr.P.C. and confronted him with all the incriminating material that was brought against him during the trial. The Appellant refuted the same and professed innocence. He maintained: "I am innocent in this case and my name was not mentioned in the complaint Exh.P A No identification parade was held after my arrest. My co-accused Fiaz and Farid alias Farida have already been acquitted by this Court and on the same evidence, I was roped in this case by the police connivance of the Complainant."
6. The Appellant neither opted to make statement on oath under Section 340(2), Cr.P.C. nor examined any witness in his defence. On conclusion of the trial, vide impugned judgment dated 19.10.2010, the learned trial Court convicted and sentenced the Appellant as mentioned hereinbefore. Hence, this appeal.
7. In support of this appeal the learned counsel for the Appellant contended that the prosecution had failed to prove its case against the Appellant beyond a shadow of doubt. The learned trial Court had failed to appreciate the evidence properly which had caused serious miscarriage of justice. He argued that the entire prosecution case rested on the testimony of Haq Nawaz (PW-2), the alleged abductec, which did not inspire confidence. It was unsafe to rely on it without strong corrobo ratory evidence which was missing. In the first round co-accused Fayyaz and Fareed alias Fareeda were tried and were acquitted on the basis of the same evidence. The learned trial Court erred in distinguishing the Appellant is case on the ground that he had absconded because that was never established. Even otherwise, it was only a suspicious circumstance and not a conclusive proof of guilt of an accused person. He prayed that this appeal be accepted and the Appellant be acquitted of the charge.
8. On the other hand, the learned Deputy District Public Prosecutor assisted by the learned counsel for the Complainant controverted the above contentions and supported the impugned judgment. He contended that the prosecution had proved its case to the hilt. The PWs had no enmity or against the Appellant. As such, there was no reason for them to falsely implicate him in this case. He prayed that this appeal be dismissed and the Appellant's conviction be upheld.
9. We have heard the learned counsel for the parties and examined the record with their able assistance.
10. According to the prosecution, seven/eight armed inen abducted Haq Nawaz (PW-2) from his Dera in Mauza Azmatpur , Tehsil. Alipur , District Muzaf fargarh, during the night between .23/24.7.2003 at about 11:00 p.m/12:00 a.m. His servant Muhammad Kabir (PW-5) was there at that time. The accused tied him with ropes and asked him to give a message to Fazal Khan and Safdar Khan to arrange ransom in the sun of Rs.20,00,000/-. Complainant Safdar Abbas (PW-1) learnt about this incident at about 5:00 a.m. next morning when somebody called him from Bahawalpur . On receipt of that information he along with PW-3 Riaz Hussain and PW Muhammad Ali (not produced) went to the Dera of Haq Nawaz where Muhammad Kabir (PW-5) narrated the incident to them. Safdar Abbas and Riaz Hussain set out in searc h of Haq Nawaz and learnt that the accused had taken him across the Indus. On the way they snatched a tractor from Azam to ease their journey but abandoned it when stuck up in mud.
On the complaint (Exh.P A) of Safdar Abbas, FIR No. 160/2003 was registered. Admittedly , neither he nor Riaz Hussain (PW-3) were the eyewitnesses of any of these events. Their testimony is nothing but hearsay which is inadmissible in evidence.
11. Haq Nawaz (PW-2), the abductee, was the star witness of the prosecution. He reiterated the contents of the FIR. In his examination-in-chief he speci fically named the Appellant as one of the accused and added that after crossing the Indus they took him to their hide-out where they kept him for 13/14 day. He tried to escape from their clutches but they caught and physically tortured him. He became unconscious whereupon the accused left him and fled. A resident of the locality helped him reach home. During cross-examination he conceded I that no ransom was paid for his release. The testimony of Haq Nawaz does not inspire confidence. The accused could not have left him like that. His medico-legal certificate could have brought some credibility to his version but he was not medically examined. Even the person who helped him in getting home was neither produced before the Investigating Officer nor the Court during the trial.
12. This is not all. No identification test parade was held in the instant case. As already stated, the prosecution alleged that when the Appellant and his co-accused were taking Haq Nawaz they snatched tractor from Azam on their way to ease their journey but aband oned it when it got stuck up. Thereafter they boarded a boat near Pattan of Gabar Arain to cross the Indus where some people had seen them. Neither Azam nor any person from the aforesaid place was examined at the trial.
13. The prosecution heavily relies on the testimony of Muhammad Kabir (PW-5) for corroboration because he is stated to be the servant of Haq Nawaz and was allegedly present at the Dera when he was abducted. We are afraid, his testimony is of little avail to it because he categorically admitted that the accused had muffled their faces and he could not identify them.
14. Previously the police arrested Fayyaz and Fareed alias Fareeda and challaned them in this case. Both of them were acquitted on the same evidence. The Appellant's case is sought to be distinguished from them on the ground that he absconded. The questio n as to whether abscondence is a conclusive proof of the guilt of an accused person has been debated by jurists in our country and there is a general consensus that it is not. In Aminullah v. The State (PLD 1976 SC 629), the Hon'ble Supreme Court of Pakistan approvingly quoted the following statement from Munir's book Law of Evidence (1974 Edition): The conduct of a person in absconding after the commission of the offence is evidence to show that he was concerned in the offence, but it is usually a very small item in the evidence on which a conviction can be based.
Absconding is equally consistent with innocence and guilt. It is a proper matter to be .considered along with the other facts of the case, whether they bear upon guilt or upon innocence. It is well known that different persons are differently constituted, and that some accused persons, though innocent, deliberately abscond rather than fear the ordeal of a criminal trial."
In Liaqat Hussain and others v . Falak Sher and others (2003 SCMR 61 1), the Hon'ble Supreme Court held: "Disappearance of an accused person could have ordinarily offered useful corrob oration to the prosecution case.
But this is so only in a situation where the prosecution case is reasonably believa ble to some extent and requires some corroboration for proof of the same."
In Rahimullah Jan v . Kashif and another (PLD 2008 SC 298 ) apex Court ruled: "Insofar as the absecondence of respondent Kashif is concerned, I may be stated that mere absconsion is not conclusive proof of guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However , suspicions after all are suspicions. The same cannot take the place of proof.
The value of abscondence, therefore, depends on the facts of each case. The Courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case."
15. On reappraisal of evidence we have found that the prosecution has not been able to prove its case against the Appellant beyond doubt. It is a cardinal principle of criminal jurisprudence that in case of doubt its benefit must be extended to the accused as of right and not as a matter of grace. In Muhammad Mansha v. The State (2018 SCMR 772 ), the Honble Supreme Court of Pakistan held: "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 a 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. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent person be convicted'. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 13-45), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State (2009 SCMR 230 ) and Muhammad Zaman v . The State (2014 SCMR 749 )."
16. For what has been discussed above we allow this appeal and set aside the impugne d judgment dated 19.10.2010. The Appellant, Ghulam Shabbir alias Shabbira is acquitted of the charge. Presently , he is in jail. He shall be released forthwith if not required to be detained in any other case.