MOHAMMAD KARIM KHAN AGHA, J.---Accused Sarfraz alias Bhoora was tried by learned Judge, Anti-T errorism Court No.II, Karachi in Special Case No. 182 of 2011 arising out of Crime No. 634/201 1 under section 365-A/34, P.P.C. read with section 7 of ATA, 1997 and Special Case No.170/201 1 arising out Crime No.635/ 3011 under sections 353/324/186/34, P.P.C. registere d at Police Station Aziz Bhatti (AVCC/CIA). After trial vide judgment dated 23.04.2015 appellant Sarfraz alias Bhoora son of Sakhi Muhammad was convicted under section 7 subsection (1) clauses (e) and (h) of Anti-T errorism Act, 1997 for life imprisonment for offence under section 365-A/34, P.P.C. as well as conviction of Life Imprisonment for offence under section 6 subsection (2) clause (m) for offence under section 353/ 324/186/34, P.P.C . Both the sentences were ordered to run concurrently . The benefit of section 382(b) was also extended to the appellant.
2. Being aggrieved and dissatisfied by the judgment passed by learned. Judge, Anti-T errorism Court No.II Karachi, these appeals have been preferred by the appellant against his convictions.
3. The brief facts according to the , FIR No.634/201 1 filed on 22.10.201 1 at about 1250 hours by Qaiser Banglani are that he lives in House No.R-246 Sindhi Para in Gali No.15, Dalmia, Karachi and was present in his house when he received on his mobile a phone call from mobile No. 0341-3153210 whereby the caller gave his name as Shan saying that he is talking from Aman Com mittee and that he along with his other accomplices had kidnapped his nephews Ayaz son of Nazar Muhammad and Sultan son of Wali Muhammad at about 11:30 am from outside their house and that to bring Rs.20 Lacs as ransom to the office and in return his nephews will be released. He immediately informed at 15 and had come to P.S. to report for kidnapping his nephews against Shan son of unknown and his companions for kidnapping his nephews as such to take action against them.
The police of PS Aziz Bhatti had immedia tely come into action. Inspector SHO Ahsanullah Jatt was on illaqa gushat along with police party in search of the accused persons when he received spy information that the abductees have been kept at Dalmia by the accused persons therefore on this information SHO along with his police party had reached at 1415 hours whereupon the accused persons to deter them from carrying out their official duty started firing at the police party to kill them with their fire arms. Station House Officer in self defence ordered to retaliate to arrest the accused persons but while firing at the police party the culprits had made their escape good by using the narrow lanes. The abductees Ayaz son of Nazar Muhammad and Sultan son of Wali Muhammad were recovered from a simple constructed house where they were found blind folded and their hands and. feet had been tied by ropes. They had also been tortured. The abductees were released who disclosed that the accused persons while talking to each other were taking the names of Shan, Waqas Foji, Qadir Gagan, Mehmood Kala, Sameer Cabenwala, Sunny , Asif Foji and along with them there were other accomplices. At the instance of the relatives of the abductees they were sent to the hospital as such SHO had come to PS and registered the FIR No.635/201 1 at about 1520 hours.
4. After registration of the FIRs, one concerning kidnapping for ransom and the other concerning attempt to murder and police encounter , usual investigations were carried out and thereafter a joint charge was framed in respect of both FIR's against accused Sarfraz on 31.07.2012 to which he pleaded not guilty and claimed to be tried.
6. To prove its case the prosecution examined 10 prosecution witnesses and exhibited numerous documents and other items and thereafter the side of the prosecution was closed. The statement of the accused under section 342, Cr.P.C. was recorded in which he had claimed that he is innocent and had been falsely implicated by the police on his failure to pay a bribe to them. He did not examine himself on oath or call any witness in support of his defense case.
7. Learned Judge, Anti-T errorism Court No.II, Karachi, after hearing the learned counsel for the parties and assessment of evidence available on record, vide the impugned judgment dated 23.04.2015, convicted and sentenced the appellant as stated above, hence these appeals have been filed by the appellant against his convictions.
8. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment, therefore, the same are not reproduced here so as to avoid duplication and unnecessary repetition.
9. Learned counsel for the appellant has contended that with regard to the kidnapping that the appellant is not named in the FIR, that neither abductee recognized the appellant, that there was no evidence of any ransom demand and no evidence whatsoever that the appellant was involved in either the kidnapping for ransom or encounter with the police when the police rescued the abductees from where they had been held captive and as such based on the evidence on record the appellant be acquitted of the charge by extending him the benefit of the doubt.
10. On the other hand learned Additional Prosecutor General has fully supported the impugned judgment and has contended that based on the evidence of the PW's which was reliable, trustworthy and confidence inspiring, the recovery of the abductees along with the rope in which they were tied and the recovery of empties at the scene the prosecution had proved beyond a reasonable doubt that the appellant had kidnapped for ransom the abductees along with his accomplices and had entered into an encounter with the police whilst they made their escape good from the place where the abductees were held captive before being arrested later on and as such the prosecution had proved its case beyond a reasonable doubt and the appeals be dismissed.
11. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant, the impugned judgment with their able assis tance and have considered the relevant law .
12. In our view after our reassessment of the evidence based on the evidence of the PW's and the .abductees we are satisfied that the prosecution has proved beyond a reasonable ,doubt that on 22.10.1 1 Ayaz and Sultan were kidnapped and held captive in a house known as Dubai House in Gali No.15 of Dalmia and that on the same day they were rescued from captivity by the police following an encounter between the culprits and the police during which the culprits escaped from the scene.
13. The only issues therefore, in our view, left before us are (a) whether the appellant was one of the persons who kidnapped the abductees for ransom and (b) whether the appellant was one of the persons involved in the encounter with the police when the police came to rescue the abductees and thereby made his escape good before being arrested.
14. In our view after our reassessment of the evidence we find that the prosecution has NOT been able to prove beyond a reasonable doubt that the appellant was one of the persons who kidnapp ed for ransom the abductees or was involved in the police encounter at the time the police rescued the abductees and hereby set aside the impugned judgment and allow the appeal for the following reasons;
(a) Although the FIR was registered with promptitude the appellant is not named in the FIR but others are so named. It appears that his name only came up during the police inquiry .
(b) That there 'were two eye-witnesses who could identify the kidnappers both of whom were the abductees Sultan and Ayaz. Sultan did not give evidence and PW 6 Ayaz during his evidence in chief specifically states that, "The accused present in the court is not the same person whom I had identified at the police station who had kidnapped me and beaten me up" He was declared hostile and was cross-examined by the prosecution. No other witness including the police PW's or the complainant PW 4 Haji Banglani who was the complainant and accompanied the police on the raid saw the appellant at the time of the raid when the police rescued the abductees. Even otherwise the complainant was declared hostile and was cross-examined by the prosecution as in his evidence he had stated that he had forgiven the appellant. Furthermore, the rope found at the scene of the offense does not connect the appellant to the kidnapping and no PW actually witnessed the kidnapping of the abductees.
(c) With regard to the ransom demand. No ransom was paid and although the CDR indicated that the complainant had received a call which might have concerned ransom the number/SIM which this call was made from had no connection with the appellant. There was also no recording of any ransom demand.
(d) Although we have found that an enco unter did take place between the police and the culprits at the time when the abductees were rescued by the police there is no evidence that the appellant was involved in that encounter .
15. It is a golden principle of criminal jurisprudence that the prosecution must prove its case against the accused beyond a reasonable doubt and that the benefit of doubt must go to the accused by way of right as opposed to concession. In this respect reliance is placed on the case of Tariq Pervez v. The State (1995 SCMR 1345 ), wherein the Supreme Court has observed as follows:- "It is settled law that it is not necessary that there should be many circumstance s creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt-of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
16. Thus, based on the above discussion we find doubt in the case of the prosecution that the appellant was involved in either the kidnapping for ransom of the abductees who were both rescued and the encounter which followed and thus by extending the benefit of the doubt to the appellant we hereby allow his appeal, acquit him of the charge and set aside the impugned judgment.
Consequently the appellant shall be released unless he is wanted in any other custody case.
17. The appeals stand disposed of in the above terms.