MUHAMMAD SHARIB Versus State
IRSHAD ALI SHAH, J.--- The appellants by preferring the captioned appeals have impugned judgment dated 18.09.2018 passed by learned Judge, Anti-Terrorism Court No. I, Karachi whereby they for offence punishable under section 7(e) of Anti-Terrorism Act, 1997 have been convicted and sentenced to imprisonment for life with forfeiture of their properties and with benefit of section 382(b), Cr.P.C.
2. It is the case of the prosecution that the appellants together with absconding accused Khalid and Ali in furtherance of their common intention abducted PW Nabeel, the boy aged about nine years and then demanded ransom of Rupees two crores from his father complainant Muhammad Rauf, for his release, for that they were booked and reported upon.
3. At trial, the appellants did not plead guilty to the charge and prosecution to prove it, examined complainant Muhammad Rauf and his witnesses and then closed the side.
4. The appellant in their statements recorded under section 342, Cr.P.C., denied the prosecution allegation by pleading innocence but did not examine anyone in their defense or themselves on oath.
5. On evaluation of evidence so produced by the prosecution, learned trial Court convicted and sentenced the appellants by way of impugned Judgment is stated above.
6. It is contended by the learned counsel for appellants that the appellants being innocent have been involved in this falsely by the complainant; the FIR of the incident has been lodged with delay of about two days; the abductee has not been recovered from the appellants; no ransom is paid for the release of the abductee; the appellants had been convicted and sentenced by learned trial Court on the basis of improper assessment of evidence; they as such are liable to be acquitted on point of doubt.
7. Learned DPG for the state has formally supported the impugned judgment.
8. We have considered the above arguments and perused the record.
9. In first instance, the complainant reported the incident to Citizen Police Liaison Committee stating therein that his son Nabeel is missing from hs house. Nabeel then returned to him on second day of his missing by two Police Constables. He was found sustaining some injuries. None of that Police Constable is examined by the prosecution. The inference which councel be drawn of their non-examination prima facie would be that they were not going to support the case of the prosecution. Subsequently, the FIR of the incident was lodged by the complainant with the police with delay of about two days without explaining the same plausibly, alleging therein that appellant Adeel has abducted his son Nabeel for ransom. On asking, the complainant was fair enough to admit that appellant Sharib has been involved in this case on the basis of statement of appellant Adeel. The involvement of the one person on the basis of statement of other person could hardly be sustained on legal premises. No doubt, appellant Sharib has been identified by PW Nabeel to be one of the culprit of the incident during course of identification parade held before Magistrate (Mr. Mirza Tauseef Ahmed) but there could be made no denial to the fact that such exercise was undertaken with delay of about eight days to arrest of appellant Sharib. No explanation to such delay is offered by the prosecution which has made the very identification parade to be doubtful one. No ransom admittedly for the release of the PW Nabeel has been paid to anyone. PW Nabeel has been brought back to his house by two Police Constables in mysterious circumstances, who have not been examined by the prosecution. When, where and who caused injuries to PW Nabeel? His evidence in that respect is silent. The telephone number whereby the demand for ransom for release of PW Nabeel was made with the complainant as per CDR report collected during the course of investigation by the police has been found to be registered in name of Waqas. Who this man was? It is not made known by the prosecution. The appellant Adeel admittedly is tenant of the complainant. The dispute between the complainant and appellant Adeel on rent is also suggested at trial. In these circumstances, the conclusion which could be drawn of the above discussion, would be that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and they are found entitled to such benefit.
10. In case of Muhammad Mansha v. The State (2018 SCMR 772), it has been observed by the Hon'ble Supreme Court of Pakistan that;
"4....Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
11. In view of the facts and reasons discussed above, the conviction and sentence recorded against the appellants together with the impugned judgment are set-aside. Consequently, the appellants are acquitted of the offence, for which they have been charged, tried and convicted by learned trial Court. The appellants shall be released forthwith in the present case.
12. The captioned Appeals are disposed of in above terms.
SA/M-63/Sindh Order accordingly.