ANW AARUL HAQ PANNUN, J. Through this criminal appeal filed under Section 25 of the Anti-T errorism Act, 1997, the appellant Rashid Ali has called in question the vires of judgment dated 23.12.2014, passed on conclusion of the trial in case/FIR No.187, dated 11.107. 2014, offence under Section 365-A PPC, registered at Police Station Mankera, District Bhakkar by the learned Special Judge, Anti-T errorism Court, Sargodha, whereby he has been convicted and sentenced as under:- (Under Section 365-A PPC) "to undergo imprisonment for life with forfeiture of his property . He shall pay a sum of Rs.1,00,000/- as compensation to the complainant Naubahar Shah, real father of the minor abduct ee, as envisaged under Section 544-A Cr.P.C, in default thereof, he shall also undergo three months' SI."
(Under Section 7 (e) of the Anti-T errorism Act, 1997) "to undergo imprisonment for life with forfeiture of his property ."
"The sentence of imprisonment awarded to the accused for both the offences shall run concurrently and he shall also be entitled to benefit under section 382-B Cr . P.C."
2. The prosecution' s story unfolded through FIR (Ex.P A/1) lodged on the complaint (Exh.P A) of one Naubahar Shah (PW-6) is to the effect that during his posting as Principal at Government College Mankera, on 11.07.2014 at 10.18 a.m. while on duty, he received a call on his Cellular phone having SIM No.03334900797 from No. 03341725739, made by an unknown person, demanding an amount of Rs.5,00,000/- as ransom for the release of his son Muhammad Zaryab, who was in the caller 's captivity , while extending threats that in case of non-payment of ransom amount, till 12:00 Noono, the minor will be done to death or shall be sold.
3. Registration of the case, arrest of the accused, and after its usual investigation encapsulated into a report under Section 173 Cr.P.C, duly submitted before the learned trial court, the appellant, after supplying him with the copies of incriminating material under Section 265(c) Cr.P.C, the accused was charged sheeted to which he denied and pleaded not guilty , while professing his innocence, and claimed trial, the prosecution produced as many as 11 witnesses besides tendering, in evidence, report of Punjab Forensic Science Agency , Lahore (Exh.PP). When examined under Section 342 Cr.P.C., the appellant denied every bit of incriminati ng material so produced. While replying the question that as to why this case against him and why the prosecution witnesses had deposed against him, he replied as follows:- "I belong to Pattoki and had been residing with my paternal uncle Ibrahim who had a land dispute with father of Khalid Zaman PW and also with Ahmad Hussain Ex-Chairman of Union Council Mankera and both said persons belong to the party of Ghazanfar Cheena. Madah PW had been driver of Ahmad Hassan and all these PWs were produced during investigation by Ghazanfar Cheena. Many other persons had been joined in investigation but they were let off at the instance of Ghazanfar Cheena and I was substituted to grab the land of my paternal uncle Ibrahim."
The appellant did not examine him as witness under section 340(2) Cr.P.C, however , produced Ibrahim (DW-1) in his defence. The learned trial court, on conclusion of the trial, proceeded to convict the appellant as aforesaid.
Hence, the titled appeal.
4. Arguments heard. Record perused.
5. Normally reasonable prompt in reportin g a crime presumably excludes the possibility of concoction and making up of a besuiting story etc., but at the same time, the over promptness casts suspicion not only about the story but all over the circumstances of the case set out by the prosecution. In the instant case, on 11.7.2014 at about 10.18 a.m., the complainant on his duty at Govt. College Mankera, received a phone call from an unknown person regarding abduction of his son Muhamm ad Zaryab, reported the occurrence within an hour, allegedly with great promptitude, to the police at 11.15 a.m. on the same day, vide zimini No.7. Naubahar Shah, the complainant (PW- 6) nowhere has stated that the accused threatened him that in case he imparted the information about the occurrence to the police, the abductee will be done to death. Had there been any threat, given by the accused to the complainant, the story regarding making "arrangement" of private PWs, instead of police personnel, for identification of accused, at the time, the accused had allegedly picked the ransom amount, could have been believed, therefore, depositions of PW-6 and PW-7 create doubt about their genuineness. The contradictory depositions of the PWs are also generating the doubt about the un-natural flow of events, which the prosecution has tried to prove. Khalid Zaman (PW-5) did not disclose his relationship with the complainant (PW-6) as well as justification of his availability with the complainant at the relevant time. He deposed that "We remained at complainant' s house till Asr time. In our presence, the complainant again received a call for ransom of Rs.500,000/- to be left at a berry tree on a "Katcha Path" ahead of Degree College and thereafter the child would be returned." Contrary to the above, the complainant (PW-6) deposed that "he arranged the ransom money of Rs.500,000/- and then informed the kidnapper on the same cell number asking him the place where I was supposed to bring the month." Khalid Zaman (PW-5) deposed that "the complainant asked me and Madah PW to remain concealed at the aforesaid place in order to identify the culprit whereupon we did so. After sometime, the complainant came there on a motorbike and left the money wrapped in a black & yellow cloth/handkerchief under the aforesaid tree and left. After about 10/15 minutes accused Rashid, present in court, came there on a motorbike bearing No.L YC-1065 whom we knew before. He took the money and left. We informed the complainant on phone about this fact who asked us to stay concealed over there. After about 5 minutes, accused Rashid brought the minor abductee to the same tree and left him there. After about 10 minutes, the complainant came there. Thereafter , we all left from there and informed the police." Although Naubahar Shah, complainant (PW-6) had almost narrated the above story as stated by PW-5, but it is important to note that despite lodging the FIR relatively with over promptitude, astonishingly the complainant did not inform the police about the place of payment of ransom amount fixed between him and the accused, rather , he secured the services of Khalid Zaman (PW-5) and Maddah (given up PW) for the identification of the accused, while concealing their identity and presence, to witness the payment of ransom amount where-after , the abductee was to be set at liberty . It is also not understandable that why they have not either made any effort to overpower him or to make a noise seeking help from police or passerby , when the accused had set the abductee free, at the relevant place.
6. There is another important loophole in the prosecution' s case. The prosecution has withheld the evidence of minor abductee by not producing him/ abductee before the Court enabling it to assess his capability and credibility for making the statement. The argument of learned counsel that due to the tende r age of the abductee, he could not have been produced in the Court, cannot be entertained because it was the prerogative of the Court and not the prosecution, to determine capability of making statement due to his tender age. The minor should have been produced before the Court. According to PW-6, "my son would clearly tell if he is abducted by somebody .....
The minor is competent enough to disclose whether he was maltreated or provided milk or kept in confinement." As per Article 3 of Qanun-e-Shahadat Order , 1984, all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. So much so, neither the I.O recorded the statement of the minor abductee under Section 161 Cr.P.C nor cited him in the calendar of witnesses for the reasons best known to him. It is well settled that if best piece of evidence lying with the prosecution is withheld, then an adverse inference under Article 129(g) of Qanun-e-Shahadat Order 1984 can be drawn against the party withholding such witness, that had such witness been produced, he would have not supported the prosecution' s case. Thus the self-harming act of the complainant, for retaining its cards quite close to his chest had given rise to an occasion for drawing an adverse presumption against the prosecution' s case, the benefit of which irresistibility has to be extended to the defence. The prosecution, as discussed above, is guilty of withholding the best available evidence, therefore, it is presumed that had the minor abductee been produced, he would have not supported the prosecution' s version.
The learned trial Court had also failed to exercise its power under Section 540 Cr.P.C, such exercise of power could have been validly made in the circumstances of the instant case, in the larger interest of justice.
7. Last but not the least, perusal of complaint (Exh.P A) reveals that the accused made telephone call to the complainant from the mobile having SIM No.0334-1725739 (P-9). The said SIM number has not been issued in the name of the accused, rather it was in the name of one Mst. Naseem Bibi. The I.O (PW-11) during cross examination admitted it to be correct that "during investigation it came on surface that SIM No.0334-1725739 is in the name of one Mst. Naseem Bibi." The said Mst. Naseem Bibi was found no connected with the occurrence of this case. The prosecution' s failure into establishing any nexus of the appellant with the said SIM, also creates doubt about the veracity of the prosecution' s case.
8. So far as recoveries of motorcycle (P-10), pistol 30 bore (P-13) and cash amounting to Rs.5,00,000/-(P12/1-500) are concerned, these are of no avail to the prosecution for the reasons that motorc ycle (P-10) did not belong to the accused/appellant and same was owned by one Muhammad Asif. The I.O (PW-11) during cross-examination deposed that "It is correct that the motorcycle alleged recovered from accused Rashid had belonged to one Asif".
The I.O did not associate said Asif during investigation to ascertain the factual position as to whether said motorcycle remained under the use of the accused Rashid or not at the time of the alleged occurrence. The recovery of Pisto.30 bore (P-13) is nothing but a robe, it was allegedly recovered from an open place, easily accessible to all and sundry . Coming to the recovery of cash amount (P12/1-500) allegedly recovered on pointing out the appellant, the I.O (PW-11) deposed that the accused Rashid Ali after making disclosure got recovered Rs.500,000/- (P12/1-500) as a ransom meony which were wrapped in a polythene bag and also in a black & yellow colour handkerchief, from the shed of drawing room of his house situated in Mankera, which was taken into possession vide recovery memo (Exh.PI). Riaz Hussain SI/SHO/recovery witness (PW-7) deposed that "the owner of the house, from which the ransom amount was allegedly recovered, is Ibrahim Bhatti". The I.O (PW 11) stated during cross-examination that "the owner of said house is Ibrahim. The said Ibrahim was not present at the time of recovery proceedings but he had joined the investigation." The I.O did not join any person from the house or the locality during the recovery proceedings. The place wherefrom the alleged ransom amount was recovered is not in exclusive possession of the appellant, therefore, the recovery of ransom amount (P12/1-500) is of no avail to the prosecution.
9. The nutshell of the above discussion is that the prosecution' s case is full of doubts, benefit of which must resolve in favour of the accused as the Hon'ble Supreme Court of Pakistan has held in case titled "Muhammad Khan and another Vs. State" (PLJ 2000 SC 1041) that "it is axiomatic and universal recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in prosecution case must be resolved in favour of accused". Moreover it is cardinal principle of criminal jurisprudence that a single instance caused a reasonable doubt in the mind of Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on case law titled as "Muhammad Akram versus The State" (2009 SCMR 230). Reliance is also placed upon the case titled "Tariq Pervaiz Vs. The State" ( 1995 SCMR 1345 ).
10. For what has been discussed above, the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. Resultantly , the instant appeal is allowed, the conviction and sentence of the appellant Rashid Ali, awarded by learned trial Court vide impugned judgment dated 23.12.2014 is set aside and he is acquitted of the charge by extending him the benefit of doubt. The appellant Rashid Ali is directed to be released forthwith, if not required in any other case.