JAMES JOSEPH, J. -- Through this single judgment, we intend to dispose of criminal appeal No, 990 of 2013 filed by appellant Urva-tul-W usqa @ Arooti, Criminal Appeal No, 230-J of 2013 filed by Muhammad Mansha appellant and Criminal Appeal No, 247-J of 2013 filed by Hameed appellant against their conviction and sentences. As all these matters have arisen out of one and the same judgment dated 08.07.2013 passed by learned Special Judge, Anti-T errorism Court, Faisalabad in case F.I.R. No, 1061, dated 22.09.201 1, under Sections 365-A/395, P.P.C. registered at Police Station Jhang Bazar , District Faisalabad, whereby all the three appellants were convicted and sentenced as follows:--- Under Section 365-A, P .P.C.: Life imprisonment. Their movable and immovable property stand forfeited in favour of the State.
Under Section 452, P .P.C.: 06 years' R.I. with fine of Rs, 50,000/-. In default of payment of fine to further undergo 03 months' S.I.
Under Section 148, P .P.C.: 02 years' R.I. and fine of Rs, 20,000/-. In default 01 month's S.I.
Under Section 7-E, ATA: Life imprisonment with forfeiture of his movable and immovable property .
All sentences were ordered to run concurrently with benefit of Section 382-B, Cr .P.C.
2. The facts of the case have been stated by Rana Mazhar-ul-Haq, the then SHO Police Station Satiana, complainant PW-4 in his statement before the learned Trial Court and same statement is hereby reproduced for narration of the facts:--- "On 22.09.201 1, I was working as Inspector/SHO, Police Station Satiana. During the night of 20-21.09.201 1, I raided Chak No, 37, in the limits of Police Station Satiana. On getting tip off that the proclaimed offenders like Shehzad Bhatti, Nagash alias Kashi and their companions had been visiting that chak. There was encounter with them. F.I.R. No, 709/201 1 was registered to cover that occurrence, which is being tried by this Court. I caught the wife, sister , Saas and Sali of Shehzad Bhatti, in that case and got them sent on judicial remand. On 22.09.201 1, in two cars came Shehzad Bhatti, Kashi with his 6-7 companions came to my house in. Ayub Colony , Faisalabad.
They were wearing the police commando uniform and on gun point took away my wife, my elder brother and my daughter Mehwish aging 2 years. They also took away Rs, 1 lac and 10 tolas gold ornaments. My father informed me about the occurrence.
At the same time, Shehzad phoned me, threatening me that I had committed excess with him by lifting away his wife, sister , Sali and Saas and that he was taking away my wife elder brother and daughter and they would be released on payment of Rs, 20 lac. Upon this, I prepared application Exh.P .A for registration of the FIR. Younas and Naeem eye-witnessed the occurrence.
They had been phoning me to settle the amount of tawan and the deal was struck in the sum of Rs, 10 lac. I arranged the money and it was settled to be paid at Sukhekai interchange, I was going there on motorway , when short of the said interchange, I was signa led by two persons standing by the fence of the motorway , to stop. I paid Rs, 10 lac to them and I was told that my wife, daughter and brother would be released shortly at Guttwala Park. I immediately returned and reached Guttwala Park, where my near ones 's were present. I took them to the Police Station for joining them with the investigation.
On 17.02.2012, I again joined the investigation of this case. I nominated the accused Hameed, Naseer , Waqar, Attique-ur -Rehman and Mansha with the investigation."
3. After the registration of case investigation started and on completion of the same, Report under Section 173, Cr.P.C. was submitted in the Trial Court and learned Trial Court after observing the legal formalities provided under the Criminal Procedure Code framed the charge on 10.09.2012 against the accu sed persons/present appellants who pleaded to guilty and claimed trial.
4. The prosecution examined Attique-ur-Rehman 3297/HC PW-1, Saima Bibi PW-2, Fazal Haq PW-3, Mazhar- ul- Haq complainant PW-4, Muhammad Anwar , S.I. PW-5, Rizwan 1540/C PW-6, Muhammad Ashraf, S.I. PW-7, Ali Raza 1454/C PW-8, Farid Hussain, Inspector/I.O. PW-9, Shahid Abbas Kathia PW-10 and Mian Qaisar Javed PW-
11. PWs Abdul Haq, Muhammad Younas, Naeem, Muhammad. Yaqoob, Inspector were given up by the prosecution. The prosecution after tendering in evidence certain documents closed the prosecution case.
5. On the other hand statements of the appellants under Section 342, Cr.P.C. were recorded in which they refuted the allegations levelled against them and they did not opt to record their own statement under Section 340(2), Cr.P.C. and also did not produce any defence evidence. In reply to question "Why this case against you and why the PWs have deposed against you" all the three appellants replied as follows:--- "It is a false case. I have been involved in this case falsely . I was not present at the place of occurrence at the time of occurrence. Complainant entangles me in the instant case to show his efficiency , otherwise, I have no nexus at all with the occurrence. Neither I had abducted anybody nor I demanded any ransom. Rana Mazhar-ul-Haq, SHO, Police Station Satiana concocted this false story and got registered instant case to strengthen his version in case F.I.R. No, 709/201 1 of Police Station Satiana, in which he was also the complainant. PWs are inter-se related and they had deposed against me on the askin g of complainant Rana Mazhar-ul-Haq, SHO Police Station Satiana. I am innocent."
6. After conclusion of the trial, learned Trial Court convicted the present appellants with above-stated sentences.
Hence, this appeal.
7. Learned counsel for the appellants contends that the evidence produced by the prosecution was untrustworthy , unreliable and discrepant; that the learned Trial Court itself has disbelieved the evidence produced by the PWs; that nothing was recovered from the possession of the appellants; that the judgment passed by the learned Trial Court is the result of misreading and non-reading of evidence available on the file and is based on surmises and conjectures. Lastly prayed for the acceptance of the appeal filed by the appellants and for his acquittal from the charge.
8. Conversely the arguments advanced by learned counsel for the appellants have vehemently been opposed by learned Deputy District Public Prosecutor while maintaining that by producing trustworthy , confidence inspiring, reliable and consistent evidence the prosecution has successfully proved the charge against the appellants; that the judgment passed by the learned Trial Court has been delivered after thorough and proper evaluation of the evidence available on the file, therefore, does not call for any interference by this Court. Lastly prayed for the dismissal of the appeal filed by the appellant.
9. We have heard the arguments advanced by the learned counsel for the parties and perused the record.
10. The details of prosecution story has already been given in the preceding paragraphs of this judgment, therefore, there is no need to repeat the same; however , complainant Rana Mazhar-ul-Haq PW-4 appeared before the Court and reiterated the same facts as mentioned by him in complaint Exh.P A. Perusal of statement made by this PW reveals that he has not named any of the present appellant while lodging the complaint Exh.P A. However , he named the present appellants on the basis of supplementary statement on 17.02.2012 i,e, after about 05 months of the occurrence and during cross-examination he candidly admitted in the following manner:-- "I did not state before the investigating officer , as to how I had come to know about the names of these accused."
He further stated during cross-examination as follows:-- "I detailed the occurrence in Exh.P A, on revelation of my father ."
11. Thus it is clear that the occurrence was informed to him by his father and surprisingly father of the complainant PW-4 has not been cited as witness of this case. Further PW-4 has not stated even a single word as to whether the appellants were present when the abductee were released, therefore, to our mind his evidence is not worth of reliance and credence and is not suf ficient to connect the appellants with the present occurrence.
12. In order to corroborate the version of the complainant, Saima Bibi PW-2 appeared before the Court and reiterated the same facts. Perusal of her statement recorded before the police reveals that she did not name any of the present appellants. While making her examination-in-chief she never pointed out towards the appellants. She never uttered a single word about the role played by the appellants in the instan t case. However , during cross- examination she admitted in the following manner:--- "I do not know the names of the accused persons even today . Volunteers, I can only identify . I had not seen the photographs of the accused persons, before coining to the Court. I had not stated before the investigating officer that I saw the photographs of the abductors and, therefrom, identified them (confronted with her statement before the investigating officer , which is Exh.DA, wherein so recorded)".
Perusal of record further reveals that she was one of the star witnesses of the occurrence but she never participated in the investigation nor she made any separate statement during investigation while naming the present appellants. Thus to our mind her statement is also not worth of credence and reliance.
13. In order to further corroborate the version of PW-2 & PW-4, Fazal Haq PW-3 appeared before the Court and almost reiterated the same facts as mentioned by PW-2 & PW-4, however , he went on to add that on 19.12.201 1 and 24.03.2012 he identified appellant Urva-tul-W usqa and Hameed respectively .
14. It would be pertinent to mention here that PW-3 was declared hostile by the learned Trial Court and was allowed to cross-examine by the learned Public Prosecutor and during cross-examination conducted by learned prosecutor he admitted in the following manner:--- "I had made statement before the Police during investigation. I had not named any accused person in my statement. Volunteers, the photographs were shown to me, which I identified and then, the investigating officer , on his own, mentioned the names of those identified photographs."
15. Perusal of identification parade reveals that an objection was raised by appellant Hameed that he was shown to the PWs and his photograph was also taken while he was locked in the police lock-up. The proceedings of the identification parade conducted on 24.03.2012 in respect of Hameed appellant further reveals that no role is attributed to him rather he deviated from his previous statement by stating before the learned supervising Magistrate that the accused was having a fruit basket in his hand but this fact was not recorded in his statement.
Similarly perusal of proceedings of identi fication parade Exh.PB in respect of Urva-tul-W usqa reveals that neither any role is ascribed to appellant Urva-tul-W usqa by this PW nor any statement in this regard is available on the file that how he identified the present appellant.
16. Perusal of record further reveals that in the statement of PW-3 as recorded under . Section 161, Cr.P.C. no description and features of any of the appellant has been mentioned therein, thus to our mind the identification parade does not help the prosecution's case. Therefore, to our mind evidence produced in order to establish the ocular account is un-natural and not worthy of credence and reliance, thus the same is discarded. Even otherwise the learned Trial Court in paras No, 13, 14 & 15 of the judgment has observed in the following manner:--- "13. Now comes the question of motive. The complainant alleged that there was the demand of 'tawan ' in the sum of Rs, 20 lac and then, it was commuted to Rs, 10 lac. That he was going for paym ent of `tawan' and by the side of the Motorway near Sukheke, it was accepted from him. No other PW appeared to corroborate the complainant. It leaves me flabbergasted that the complainant did not inform the police at all, before leaving for payment of `tawan'.
He is an Inspector and against all norms of investigation and detection of the criminals, he quietly went as alleged and paid the `tawan'. He did not immediately inform the police about the payment. This is non-professional approach and irrational, too. The added insult to the injury is that the complainan t did not produce any evidence about the payment of `tawan'. There is no eye-witness or any other proof of the payment of 'tawan The motive to this extent becomes extremely doubtful.
14. During investigation also, the Joint Investigation Team found that there was no life in the allegations of payment of `tawan" and of dacoity and that it was a simple case of retribution and vengeance by Shehzad Bhatti, Naqqash and their team. Mst. Saima is the wife of the complainant and she too kept mute about dacoity . Complainant was not at home. So there remains the sole statement of Fazel-e-Haq PW. The compl ainant withheld his father . In the circumstances of this case, I am not inclined to believe Fazal-e-Haq, as far as the commission of dacoity is concerned. No recovery could be effecte d from the accused persons either . The Joint Investigation Team was having the members,. who were the colleagues of the complainant. They too did not see eye to eye with the complainant on these aspects. Even the details of the gold ornaments could not be furnished by Fazal-e-Haq or the complainant. T o this extent, both these PWs are not truthful.
15. I have every reason to believe that the element of `tawan' was introduced in this case simply to make it more heinous and amenable to the jurisdiction of this Court. The intent behind it was to get inflicted deterrent punishment on the guilt persons, but I am afraid that the complainant and all those concerned were not mindful, in extenso, the provisions of section 365-A of PPC In the complaint, it was disclosed that during the preceding night of this occurrence, there was a police encount er in Chak No, 37, in the limits of Police Station Satiana, where the complainant was serving as SHO. The Saas, wife, Sali and sister of Shahzad accused (since killed) were lifted away by the said complainant. Next day, this occurrence was committed. The complainant further stated that Shahzad also phoned to see himself the result of his act. As PW-4 he reiterated the allegation. In fact, it is crystallized that the motive behind this abduction was the hauling up by complainant of the four women of the family of Shahzad Bhatti. The purpose behind was obviously to get them released. From the prosecution evidence, it can be gathered that on the next day of their arrest, all the four women were got bailed out. The police later, prepared the report to get them discharged. It is apparent that all happened, out of barter , between both the sides.
In my humble view, the consideration for the abduction was to force the police to release the four women of Shehzad Bhatti. The negligence and imprinting the actual motive, as stated above the false allegation of `tawan' was levelled. This speaks volumes of the capabilities of all those connected with this case. It is a pity. Section 365- A of 'P.P.C. provides that the abduction for the purpose of getting fulfilled a demand other than money is also constituting the offence. In the given circumstances, I am constrained to observe that though payment of `tawan' was not proved, neither the dacoity in the house of complainant could be substantiated, but still the offence is coverable under Section 365-A of P.P.C. This motive supplants the prosecution case."
17. Admittedly according to prosecution's own story the motive of this occurrence as mentioned by the complainant in his complaint Exh.P A is that mother-in-law , wife, sister-in-law and sister of co-accused Shehzad alias Shehzado and Naqqas were arrested by the complainant and a case F.I.R. No, 709/201 1, dated 21.09.201 1 under Sections 324/353/186/440/148/149, P.P.C. read with Section 7 of the Anti-T errorism Act, 1997 was registered at Police Station Satiana at the instance of PW-4 and the registration of the F.I.R. become the motive of present occurrence.
Admittedly neither any relative of the present appellants was arrested by the complainant nor any reason for their participation in the occurrence has been brought on the file. It has further not been brought on the file that present appellants have any link or relation with the afore-mentioned co-accused (Shahzad and Naqqas) or were involved in any other case prior to the instant occurrence, thus motive to our mind was not attributed to the present appellants.
18. Un-deniable nothing was recovered from the possession of the appellants in the instant case. Although fire- arms are stated to have been recovered from the possession of the appellants but statement of Muhammad Anwar , S.I. PW-5, Rizwan 1540/C PW-6 and Muhammad Ashraf, S.I. PW-7 reveals that the same were recovered during the investigation in some other cases which are not related to the present case. As such according to the settled principle of law evidence of one case cannot be used in the other case, therefore, evidence of recovery is of no much help to the prosecution.
19. On the other hand the stance taken by the appellants while making his statements under Section 342, Cr.P.C. seems to be more plausible which is worth of reliance and credence, in the afore-mentioned facts and circumstances.
20. From the above-mentioned facts and circumstances it is observed that the evidence produced by the prosecution is stuffed with many discrepancies, lacking confidence inspiring substance evidence qua the appellants. It is well-settled by now that to extend the benefit of doubt many infirm ities are not required rather one single circumstance creating doubt in a prudent mind regarding the involvement of the accused in the occurrence would be sufficient to extend him the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on the case titled as "Muhammad Akram v. The State " (2009 SCMR 230) wherein their lordship were pleased to hold as follow:-- "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 forgiving 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."
21. For what has been discussed above it is held that the prosecution was not having any sufficient evidence and remained unable to prove the charge against the appellants and the learned Trial Court was not justified in convicting the appellants on the basis of evidence produced by the prosecution. Resultantly salutary principle of benefit of doubt is extended in favour of the appellants Urva-tul-W usqa, Muhamm ad Mansha and Hameed, thus criminal appeals bearing No, 990 of 2013, 230-J-2013 and 247-J-2013 filed by the appellants Urva-tul- Wusqa, Muhammad Mansha and Hameed, respectively in case F.I.R. No, 1061, dated 22.09.201 1, under Sections 365-A, 395, P.P.C. registered at Police Station Jhang Bazar , Faisalabad are allowed and the appellants Urva-tul-W usqa alias Arooti, Hameed and Muhammad Mansha are acquitted of the charge. They are behind the bars. They be released forthwith if not required in any other criminal case or proceedings.