Syed Shahbaz Ali Rizvi, J. Through this appeal, Muhammad Ilyas Mughal and Muhammad Shahbaz Mughal, appellants have assailed the judgment dated 26.05.2016 passed by the learned Judge, Anti-T errorism Court-I, Lahore in a private complaint filed by Mst. Noureen Masood Ihsan under Section 386 PPC read with Section 7 of the Anti-T errorism Act, 1997 and 25-D of the Telegraph Act, 1885 arisen out of case FIR No.1120 dated 09.12.2014 registered for offence above-mentioned at Police Station Defence, A, Lahore whereby , the appellants were convicted and sentenced as under: - "1. U/S 386/34 PPC for 7-Years RI with fine of Rs.1,00,000/- each and in default of payment of fine, each convict shall suf fer further imprisonment for six months RI.
2. U/S 506/34 PPC for two years RI with fine of Rs.50,000/- each and in default of payment of fine, each convict shall suf fer further imprisonment for three months RI.
3. U/S 7(h) of ATA, 1997 read with section 34 PPC for fourteen Years RI with fine of Rs.2-Lac each and in default of payment of fine, each convict shall suf fer further imprisonment for one year RI.
4. U/S. 25-D Telegraph Act for Two Years RI each with fine of Rs.30,000/- each and in case of default of payment of fine, each convict shall suf fer three months SI.
5. The property of each convict, if any, is forfeited in favour of the State u/s 7(2) of ATA, 1997 (added by Act XX of 2013 with effect from March 2013) and in case of sale of the property , Dr. Masood Ihsan is entitled to receive extorted amount of Rs.1,75,00,000/- from the sale proceeds.
6. Dr. Masood Ihsan suffered mental anguish due to blackmailing of Muhammad Ilyas Mughal and Muhammad Shahbaz Mughal in addition to giving them Bhatta, so is entitled to receive compensation u/s 544-A Cr.P.C. from the convicts, so each convict is directed to pay Rs.10-Lac to Dr. Masood Ihsan as compensation and in case of failure of payment of compensation, each convict shall suf fer further sentence of six months SI.
The sentences awarded to each convict shall run concurrently with benefit of Section 382-B Cr .P.C."
2. Per prosecution, the facts of the case, as disclosed by Mst. Noureen Masood Ihsan, complainant (PW-1) in her complaint on the basis of which formal crime report (Exh-PG) was registered, are that her husband Dr. Muhammad Masood Ihsan was an Orthopedic Surgeon serving the people in Gulab Devi Hospital, Ali Hospital, Main Boulevard, Lahore and Zainab Memorial Hospital, Lahore. Since 2007, some unknown persons were blackmailing them to whom they paid Rs.1,50,00,000/- as extortion money . They had sold their house-hold articles, jewelry and property to pay the extortion money .
After registration of crime report, the case was investigated and being dissatisfied with the investigation, the complainant filed private complaint (Exh-P A).
3. Muhammad Shahbaz Mughal and Muhammad Ilyas Mughal (appellants) were arrested in this case on 13.01.2015 and 01.02.2015, respectively by Syed Zahid Hussain, Inspector (CW-1). At the time of arrest, during personal search of Muhammad Shahbaz Mughal, appellant, Identity Card (P-3), Easypaisa Card (P-4), ATM card (P-5), Mobile Phones Nokia and China (P-6/1-2) were recovered from him. Muhammad Shahbaz Mughal (appellant), during interrogation, on 01.02.2015, 11.02.2015, 18.02.2015 and 25.02.2015, also got recovered Rs.4,00,000/-. After completion of investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted against the appellants. The learned trial court, after observing pre-trial codal formalities, framed the charge against them on 30.07.2015 to which they pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, produced as many as eleven witnesses during the trial. Syed Zahid Hussain, Inspector (CW-1) was examined as Court Witness. Mst. Noureen Masood, complainant (PW-1) and Dr. Muhammad Masood Ihsan (PW-2) furnished the ocular account. Dil Nawaz Ghouri (PW-3) and Muhammad Yousaf (PW-4) deposited amounts in the account of Muhammad Shahbaz Mughal (appellant) on behalf of PW-2. Asif Shahzad 16094/C (PW-6), Safdar Ali 21914/C (PW-7) and Muhammad Farooq 8048/C (PW-10) are the witnesses of recovery whereas, PW-11 Muhammad Usman, Manager (Operations), Bank of Punjab produced account statement of Muhammad Shahbaz Mughal, appellant and Syed Zahid Hussain, Inspector (CW-1) is the investigation of ficer of the case.
The Complainant gave up Safdar Ali 4522/C, Hameed Iqbal 3499/C, Sultan Ahmad 6863/C, Muhammad Iqbal, Sajid Adnan, Inspector and Imran Haider , Inspector being unnecessary , tendered in evidence Computer Forensic Analysis Report of Punjab Forensic Science Agency (Exh-PL/1-6) and closed her evidence.
5. The statements of the appellants under Section 342 of the Code of Criminal Procedure, 1898, were recorded wherein, they refuted the allegations levelled against them, professed their innocence and maintained that they had falsely been implicated in this case as they were asking for compensation for Zain alias Uzair Bilal (shemale) from Dr. Muhammad Masood Ihsan who was operated upon by him to change her/his gender . They did not opt to appear as their own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled agains t them. Muhammad Ilyas Mughal, appella nt did not produce any defence evidence however , Muhammad Shahbaz Mughal, appellant produced attested copy of complaint filed by Aziz Bilal alias Zain (Exh-DF) and attested copy of his/her cursory statement (Exh-DG).
6. The learned trial Court vide its judgment dated 26.05.2016, found the appellants guilty , convicted and sentenced them as mentioned above.
7. We have heard the arguments of learned counsel for the appellants, learned Deputy Prosecutor General, learned counsel for the complainant and also scanned the record with their assistance.
8. To prove the alleged intimidating telephonic communication between Dr. Muham mad Masood Ihsan (PW-2) and the appellants, the prosecution has failed to bring on record the proof of ownership or registration of cell phone numbers of the appellants allegedly used by them for the purpose. Even no foren sic report is available on record sufficient to prove that the mobile phones recovered during the investigation at the instance of Muhammad Shahbaz Mughal, appellant carried the SIM cards of the numbers allegedly used by him to intimidate PW-2. Even the recovery memo (Exh-PB) is silent about the availability of SIM cards in the two allegedly recovered cell phones from the possession of the appellant. Even no SIM card of the appellant could be produced in evidence. Mere availability of Call Data Record produced in evidence during the trial is not sufficient to prove the alleged connection of appellants with the complainant unless the ownership or otherwise any link of subject numbers with them is established. In this view of the matter , we are of the opinion that the fact of telephonic communication between the appellants and Dr. Muhammad Masood Ihsan (PW-2) could not be established by the prosecution.
During the arguments, learned Prosecutor as well as learned counsel appearin g on behalf of the complainant concede that both Mst. Noureen Masood, complainant (PW-1) and Dr. Muhammad Masood Ihsan (PW-2), in their statements before the learned trial court, have not stated that they were threatened by the appellants to cause their death or grievous hurt to them to extor t money . Instead, focus of the prosecution case is that the appellants exacted money from PW-2 by putting him under the fear of his false incrimination in criminal cases and damage to his reputation. Even if statement of PW-2, noticed by this Court, to the effect that Muhammad Shahbaz Mughal, appellant intimidated on telephone that he had got murdered his nephew Asmar Ihsan through an accident and that if Asmar Ihsan could be murdered, he (PW-2) could also be murdered along with his wife, is considered for the purpose of culpability of the appellants for offences punishable under Section 386 PPC and Section 7[1](h) of the Anti-T errorism Act, 1997 read with Section 25-D of the Telegraph Act, 1885 even then, as the telephonic communication between the two parties could not be proved by the prosecution as observed above, mere allegation in his statement that too without corroboration by PW-1, cannot be taken as a proof sufficient to substantiate the charge. Threat to cause death or grievous hurt are the elements required to constitute the offence punishable under Section 386 PPC. Threat to cause mere injury to reputation etc. to extort property etc. composes the offence punishable under Section 384 PPC. We find it advantageous to reproduce the text of Section 386 PPC that goes as under: - "386. Extortion by putting a person in fear of death or grievous hurt. Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other , shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
While Section 383 PPC punishable under Section 384 PPC reads as under: -
383. Extortion. Whoever intentionally puts any person in fear of any injury to that person, or to any other , and thereby dishonestly induces the person so put in fear to deliver to any person any property or value security or anything signed or sealed which may be converted into a valuable security , commits "extortion".
Illustrations
(a) A threatens to publish a defamatory libel concerning Z unless Z gives him money . He thus induces Z to give him money . A has committed extortion.
(b) A threatens Z that he will keep Z's child in wrongful confinement, unless Z will sign and deliver to A a promissory note binding Z to pay certain money to A. Z signs and delivers that note. A has committed extortion.
(c) A threatens to send club-men to plough up Z's field unless Z will sign and deliver to B a bond binding Z under a penalty to deliver certain produce to B, and thereby induces Z to sign and deliver the bond. A has committed extortion.
(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or affix his seal to a blank paper and deliver it to A. Z signs and delivers the paper to A. Here, as the paper so signed may be converted into a valuable security . A has committed extortion.
It is evident from the illustration (a) of Section 383 PPC that injury includes threat to publish a defamatory libel. This transpires that the evidence produced against the appellants does not establ ish the perpetration of offence punishable under Section 386 PPC.
9. Now adverting to the further appraisal of evidence to the extent of extortion made by the appellants and intimidation caused by them, we are of the opinion that case of both the appellants is distinguishable from each other hence, it would be appropriate if their case is discussed separately .
Taking stock of the whole case to the extent of Muhammad Shahbaz Mughal, appellant, it has been noticed that allegation of extortion simplicitor against him stands substantiated by the prosecution through the direct evidence furnished by Dr. Muhammad Masood Ihsan (PW-2), the actual victim, qua appellant' s intimidating meetings with him and payment of different amounts on different occasions, that finds sufficient corroboration from the statements of Dil Nawaz Ghouri (PW-3) and Muhammad Yousaf (PW-4) who being employees of (PW-2) had been transmitting different amounts on different dates in to the account of Muhammad Shah baz Mughal, appellant. PW-11 Muhammad Usman, Operations Manager of the concerned Bank of the appellant joined the proceedings of trial and got his (PW-2) bank account' s statement (P-12/1-20) proved in evidence. Similarly , during his physical custody , the appellant also led to the recovery of cash amount on four different dates regarding which, Asif Shahzad 16094/C (PW-6), Safdar Ali 21914/C (PW-7), Muhammad Farooq 8048/C (PW-10) besides Syed Zahid Hussain, Inspector (CW-1), the investigation officer rendered their consistent statements. The evidence, oral as well as documentary , regarding transfer of huge amounts by Dr. Muhammad Maso od Ihsan (PW-2) to appellant Muhammad Shahbaz Mughal in consequence of intimidation, available on record could not be shaken by the defence. The appellant also remained unable to establish any other reason for receiving such amounts from PW-2.
During the investigation appellant Muhammad Shahbaz Mughal was also found very well connected with the alleged of fence.
For all mentioned above, we are convinced to hold that, the prosecution story to the extent of appellant Muhammad Shahbaz Mughal, causing criminal intimidation with regard to the victim' s reputation, his involvement in false criminal cases and extraction of the money , stands proved beyond the shadow of a reasonable doubt. Therefore, this appeal to his extent is partly dismissed and while converting his conviction and sentence under section 386 PPC to section 384 PPC, he is convicte d and sentenced to rigorous imprisonment for three years with fine of Rs.10,00,000/- and in default thereof to further undergo simple imprisonment for six months. He is acquitted of the charge under Section 386 PPC. However , he is also convicted under Section 506(I) PPC for causing criminal intimidation to PW-2 and sentenced to rigorous imprisonment for two years with fine of Rs.5,00,000/- and in default thereof, to further undergo simple imprisonment for two months.
Both the sentences shall run concurrently . Benefit of Section 382-B of the Code of Criminal Procedure, 1898 is also extended to him. His conviction and sentence under section 25-D of the Telegraph Act, 1885 and 7(h) of the Anti- Terrorism Act, 1997 are also set aside and he is acquitted of the said charges levelled against him, consequently order passed under Section 7(2) of the Anti-T errorism Act, 1997 is also set aside.
10. So far as the case of Muhammad Ilyas Mughal, appellant is concerned, we have noticed that the prosecution remained fail to prove payment of any amount to him beyond the shadow of a reasonable doubt. During his physical custody , nothing could be recovered at his instance. There remains no cavil about the proposition that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused. For what has been discussed above, this appeal, to the extent of Muhammad Ilyas Mughal, appellant is allowed, his convictions and sentences awarded by the learned trial court are set aside and he is acquitted of the charges levelled against him. He is in custody , be released forthwith if not required to be detained in any other criminal case.
11. This appeal stands disposed of, as such.