Sadaqat All Khan, J.--The instant Criminal appeal has been filed by Nazir Ahmad appellant again st (his conviction) judgment dated 28.03.2013 passed by learned Trial Court, according to which, the appellant (Nazir Ahmad ) was convicted and sentenced as under:- i. U/S. 365-A, PPC: He was convicted and sentenced to imprisonment for life with forfeiture of his property in favour of State. ii. U/S. 7 (e) Anti-T errorism Act, 1997: - He was also convicted and sentenced to imprisonment for life with forfeiture of his property in favour of State.
All the sentences were ordered to be run concurrently with benefit of Section 382-B, Cr .P.C. in case FIR No. 1450 dated 20.12.2010 under Section 365-A, PPC Police Station Nawan Kot, District Lahore.
2. The facts of the case have been stated by Muhammad Athar , complainant PW-6 in his statement (examination- in-chief) before the learned trial Court, which is hereby reproduced for narration of the facts: "Mohammad Azhar s/o Nawab Din r/o 1047 Sabza Zaar, Lahore is my real brother . On 17-12-2010 at about 07.30 p.m. he went after telling us that he was going to Sadiq Abad. We did not have any contact with him for two days as his mobile was close. On 19-12-2010 at about 07.30 p.m. from the phone number of Mohammad Azhar i.e. 0300- 4263585 some unknown persons called on mobile number of wife of Azhar which is 0321- 8835412 and told her that they have abducted her husband and asked her to arrange for a ransom of Rs. 01/- Crore if she want to get her husband back. Mrs. Azhar asked the caller to put her through to her husband. Mohammad Azhar talked to his wife and confirmed the fact of his abduction. Azhar also told his wife that his motorcycle LWE-3582 was parked opposite to Niazi Bus Stand, Lahore and that his abductors were subjecting him to torture. Azhar asked his wife to get him free at any cost. Then I moved a written application Ex.PA to police. Police then registered FIR # 1450 dated 20-12-2010. After negotiations with the abductors, deal 'was struck at Rs. 13/- Lac. I arranged Rs. 13/- Lac and went to my relatives namely Shafee Ullah s/o Mohammad Shall. We were in contact with the abductors who told us about a place for delivery of ransom. Then I reached at that place along with Mohammad Iqbal s/o Hazoor Bakhsh and Mohammad Shafee Ullah. Two persons came there, one of them is Nazir Ahmed accused present in the Court. Accused said to me that he had abducted my brother and asked about the settled amount of Rs. 13/- Lac. I handed over Rs. 13/- Lac to accused Nazir Ahmed present in the Court. Then accused released my brother after two hours. We taking my brother with us returned to Khanpur . Then after 2/3 days, we returned to Lahore. On 29-12-2010, I made statement before the Investigating Officer Faiz Rasool Inspector and told him all the facts.
Thereafter , I did not joint the investigation."
3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.C. was submitted in the trial Court.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 03.04.2012 against the appellant in offences under Section 7 (e) Anti-T errorism Act, 1997 read with Section 365-A, PPC to which he pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Ijaz Ahmad Khan SI PW-1, Akhtar Ali S.I PW-2, Muhammad Nawaz S.I. PW-3, Hadayat Ullah 70/C2 PW-4, Munir Ahmad S.I. PW-5, Muhammad Athar (complainant) PW-6, Muhammad Azhar (abductee)
PW-7, Shafee Ullah PW-8, Hasnain Khalid PW-9, Faiz Rasool Inspector PW-10, Nazir Ahmed Inspector PW-11, Shaista Azhar PW-12, Ghulam Abid PW-13, Jaseem Ahmed Inspector PW-14, and Muhammad Yahya 3506/c PW- 15 whereas PWs namely Gohar Ali 149/c, Ahmed Saleem and Muhammad Iqbal were given up by the prosecution being unnecessary and after tendering documents Exh.P A to Exh.PJ, closed the prosecution evidence.
6. On the other hand, statement of Nazir Ahmad appellant was recorded under Section 342, Cr.P.C. who refuted the allegations so leveled against him. The appellant did not opt to appear as witness under Section 340(2), Cr.P.C.
However , he produced photo copy of Robkar dated 17.01.2013 Mark-A in his defence evidence. Whereas certain documents have also been produced during evidence as Exh.DA to Exh.DF . In reply to question "Why this case against you and why the PWs deposed against you?" Nazir Ahmad appellant replied as under: "All the Pws are related, interested witness. He was show to PWs by the I.0 prior to identification parade. At that time I was in District Jail, Bahawalpur . During this period the jail authorities was produced me before ATC Court. I was involved in this false case on the suspicions and just to strengthen the prosecution case."
7. After conclusion of the trial, learned trial Court convicted Nazir Ahmad appellant with above said sentences.
Hence this appeal.
8. Learned counsel for the appellant has contended that:
(i) the judgment of the trial Court dated 28.03.2013 is against law and facts on the file and is liable to be set-aside.
(ii) that the prosecution has failed to prove its case against the appellant/convict as there are many major discrepancies in the statements of the PWs and the learned trial Court has wrong ly convicted and sentenced the appellant on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial Court is not maintainable in the eyes of law;
(iv) lastly submitted that instant appeal may be accepted and the judgment of the trial Court dated 28.03.2013 may kindly be set aside and appellant/ convict may be . acquitted.
9. On the other hand, learned law DPG has vehemently opposed the appeal and submitted that:
(i) the prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the appeal.
10. W e have heard the learned counsel for the appellant as well as learned DPG and perused the record.
11. Muhammad Athar complainant PW-6 (real brother of Muhammad Azhar abductee PW-7 aged 35-years) by moving Written application Exh.P A on 20.12.2010 for registration of FIR Exh.P A/1 stated therein that on 17.12.2010 at about 7.30/8.00 p.m. his brother Muhammad Azhar abductee PW-7 left his house for Sadiqabad in connection with some work, his cell phone remained off for two days, on 19.12.2010 at 7.30 p.m. a call received on cell Phone No. 0321-8835412 belonging to Shaista Azhar PW-12 (wife of Muhammad Azhar abductee PW-7) from cell phone No. 03004263585 of Muhammad Azhar abductee PW-7, some One informed his (Muhammad Azhar abductee PW- 7) wife that Muhammad Azhar (abducte e PW-7) had been abducted, be arranged 1-Crore. Muhammad Azhar abductee PW-7 also got talked with her by saying that his motor cycle No. 3582 -LWE is parked in front of Niazi Adda. Muhammad Athar complainant PW-6 further stated that on 20.12.2010, after negotiation with abductors, deal was struck at Rs. 13-lacs, arranged Rs. 13-lacs, went to the house of his relative Shafee Ullah PW-8, they were in contact with the abductors who told them about a place for delivery of ransom and reached at that place along with Muhammad Iqbal (since given up) and Shafee Ullah PW-8. Two persons came there one of them is Nazir Ahmad appellant, who said that he had abducted his brother (Muhammad Azhar FW-7), asked ransom, he (Muhammad Athar complainant PW-6) handed over Rs. 13-lacs to. Nazir Ahmad appellant, then accused released his brother after two hours, they along with Muhammad Azhar abductee PW-7 returned to Khanpur , stayed there for 2/3 days, then returned to Lahore and on 29.12.2010, he made statement before the police. This witness did not disclose time, date and place of delivery of ransom. Shafee Ullah PW-8 stated in his statement (examination-in-chief) that on 23.12.2010 he along with Muhammad Athar complainant PW-6 at about 10/11 a.m. left for Sadiq Abad- on the asking of abductors who told them to reach Nawaz Abad Noor Minor , when they reached Noor Minor , appellant came there on motorcycle along with other person. Appellant Nazir Ahmad took ransom amount Rs. 13-lacs.
Muhammad Azhar abductee PW-7 stated in his statement (examination-in-chief) that about 15/20 days prior to the present Occurrence i.e. 17.12.2010, he (Muhammad Azhar abductee PW-7) received a call from cell phone No. 0300-3508740, caller told her name as Miss Saira resident of Sadiqabad, she kept on conversating with him 2/3 times daily, her aunt also talked to him, they both asked him to visit them, whenever he (Muhammad Azhar abductee PW-7) came to Sadiq-abad. On their forceful persuation, he (Muhammad Azhar abductee PW-7) decided to visit Sadiq Abad, so that he (Muhammad Azhar abductee PW-7) could also meet his customers there. On 17.12.2010 at about 8.30 a.m. he (Muhammad Azhar abductee PW-7) left his house on his motorcycle, parked his motorcycle in parking lot of Niazi Bus Stand, boarded the bus for Bahawalur , talke d to Saira on his way 2/3 times.
From Bahawalpur , he (Muhammad Azhar abductee PW-7) boarded an Suzuki APV Van, went to Sadiq Abad, after reaching Sadiq Abad, he. (Muhammad Azhar abductee PW-7) contacted Saira and told her that he (Muhammad Azhar abductee PW-7) had reached in Sadiq Abad. Saira told him that a person namely Ali was coming to take him then one person who came there was the appellant who made him .sit behind him on the motorcycle and started moving outside the city, he took him in the sugarcane crop where 4/5 persons armed with firearms were already present there who snatched his wallet, mobile phone etc. They made him sit in the sugarcane crop after tying his hands with iron chain, in the night, appel lant along with other accused took him to their Dera. Two children were already present there. Appellant Nazir Ahmad contacted from his cell phone with his wife and demanded ransom Rs. 1-Crore. During the said period accused used to commit sodomy with above said children after Smoking Charas. On 23.12.2010 he (Muhammad Azhar abductee PW-7) was released at about 03.30/04.00 p.m., thereafter he (Muhammad Azhar abductee PW-7) came to the house of his in-laws situated at Khanpur with his brother Muhammad Athar complainant PW-6, stayed there for 2/3 days, thereafter on 29.12.2010 he (Muhammad Azhar abductee PW-7) got recorded his statem ent before the police. Muhammad Azha r abductee PW-7 stated in his statement (examination-in-chief) that on 28.07.201 1 he received a telephonic call from the police official to come and identify the accused. He (Muhammad Azhar abductee PW-7) went to camp jail Lahore and identified Nazir Ahmad appellant during the proceedings of the identification parade. Muhammad Athar complainant PW-6 and Shafee Ullah PW-8 who statedly had handed over ransom amount Rs. 13-lass to appellant did not participate, in the proceedings of identification parade. Rather Shafee Ullah PW-8 stated in his statement (examination-in-chief) that he being resident of Rahim Yar Khan kept on striving to trace out the accused, came to know that some accused of abduction for ransom were arrested by the police station Bhong, they went there and identified Nazir Ahmad appellant as they had paid him the ransom amount. Considering this, it is very hard to believe that Muhammad Azhar abductee PW-7 would not have visited the police station Bhong where appellant was confined before the identification parade, hence proceedings of identification parade dated 29.07.201 1 has lost its evidentiary value. Shafee Ullah PW-8 and Muhammad Azhar abductee PW-7 further stated in their statements (examination-in-chief) that on 14.08.201 1 Nazir Ahmad appellant during interrogation disclosed and got recovered Rs. 2-lacs from his house situated in Nawaz Abad police station Bhong. Admittedly , above said recovered notes were not marked and the serial number of the notes paid as ransom were not recorded. So it could not be said with certainty that the recovered amount was the same which was delivered at the time of release of Muhammad Azhar abductee PW-7. Reliance is placed on case titled "Muhammad Akram v. The State " (2009 SCMR 230). Recovery of Kalashnikov P1 on pointing of Nazir Ahmad appellant during the interrogation of another case FIR No. 143 dated 04.06.201 1 under Section 365-A/324/34/, PPC and 7 Anti-T errorism Act, 1997 P.S Bhong is inconsequential in the present case. Learned DPG submits that no call data has been collected to establish the allegation of conversation of Muhammad Azhar abductee PW -7 with lady accused.
12. In view of the above discussion, the above mentioned story with delayed, contradictory and improved statements of above stated PWs is neither plausible nor believable, we entertain serious doubt in our minds regarding participation of Nazir Ahmad 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 many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported as "Muhammad Akram vs. The State " (2009 SCMR 230), in which Hon'ble Supreme Court of Pakistan has observed in para No. 13 of page 236 as under:
13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. 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 necessa ry 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."
13. For the foregoing reasons, Criminal Appeal filed by Nazir Ahmad appellant is accepted and conviction and sentences of Nazir Ahmad appellant awarded by the learned Trial Court through the impugned judgment are hereby set aside. Nazir Ahmad appellant is acquitted of the charges. Nazir Ahmad appellant be released forthwith if not required in any other case.
14. Before parting with this judgment, it is observed that case of Samina Bibi, ElahiBakhs, Mehrab, Imam Bakhsh, Sohrab, Lala, Khuda Bakhsh, Lakhu and Shamas @ Samu (since P.O.) co-accused of the appellant, shall be decided by the learned trial Court on its own merits without being influenced from this judgment on their arrest.