2017 P Cr (PLP)

MUSARRAT HILALI, J.

Called into question is the judgment of learned Judge Anti-Terrorism Court, Peshawar dated 20.1.2016 whereby the appellant was convicted under section 7-H of the Anti-Terrorism Act, 1997 and sentenced to five years' SI with benefit of section 382-B, Cr.P.C.

2. According to the prosecution version, the complainant Dr. Muslim Shah (PW-4) submitted an application to the local police, wherein, it was mentioned that he is a Homeopathic Doctor by profession. On 3.12.2014 at about 5.05 hrs, he received a threatening on his mobile bearing No.0334-9102594 from mobile bearing No.0320-9036466 by an unknown person, who disclosed himself to be representative of Tahrik-e-Taliban Khyber Agency and demanded Rs.10,00,000/- from him. In case of non-payment threats of dire consequences were extended to him.

3. Upon the said application, inquiry under section 156(3), Cr.P.C. was initiated during which it came on the surface that the complainant was extended the threatening calls from mobile bearing Nos.0320-9036466 and 0302-5565512 on the basis of which the FIR Ex.PA was chalked out. As per the data of the CKC, the threatening call Sim bearing No.0320-9036466 along with Sim bearing No.0302-5565512 and 0321-9367147 was possessed by the present Attaullah, who was arrested on the same date and nominated in the case.

4. After conclusion of investigation, challan was submitted against the appellant where he was charge sheeted to which he did not plead guilty and claimed trial.

5. At the trial, in order to substantiate its case, the prosecution produced 8 witnesses in all whereafter statement of accused was recorded under section 342, Cr.P.C., wherein, he claimed innocence and false implication. The trial culminated in conviction and sentence of the appellant, which is under challenge in the appeal in hand.

6. Learned counsel for the appellant contended that out of 8 witnesses examined by the prosecution at trial, 7 PWs were formal; that the prosecution remained only with one witness PW-(4) complainant who turned hostile and did not support the either side; that the learned trial court erred while convicting the appellant as none of the alleged pieces of circumstantial evidence could be proved by the prosecution; that the appellant is connected with the crime on the basis of inadmissible evidence; that no witness was examined to prove that the material collected by the Investigating Officer had been placed in safe custody. Learned counsel added that the conviction is totally based on conjectures and surmises, thus, liable to be set aside.

7. Per contra, learned AAG vehemently opposed this appeal and contended that appellant has been found guilty of committing the offence under section 7-H of the ATA. It was added that though the complainant turned hostile in this case but the case otherwise stood proved by circumstantial evidence. At the end, it was argued that the learned trial court has rightly convicted the appellant as such this appeal lacks merit and is liable to be dismissed.

8. The complainant did not turn up despite service, therefore, the matter is decided in his absence.

9. In criminal cases, in arriving at a conclusion about the guilt of an accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and animus of witnesses. An accused can be convicted only on legal evidence and not on surmises and conjectures. It is always the burden of prosecution to prove its case beyond reasonable doubts on the basis of legally accepted evidence.

10. It is an axiomatic principle of criminal administration of justice that whenever any case fortifies upon circumstantial evidence, then the prosecution has bounden duty to prove the same beyond shadow of doubt, more importantly each and every circumstance from the stage of infancy till its last will show final and conclusive result of guilt. The chain shall be in continued shape, every ring of it must attach with other magnetically; if it is so, then they have to show conclusively that one of its initial ring touch with the corpus delict and the last of it touch the neck of accused. In case of any doubt or in case of any missing in the chain so portrayed, the prosecution case shall be thrashed to trash without any hesitation, fear or favour. None of the ring of chain of circumstantial evidence shall be based upon presumption or inferences. In criminal jurisprudence, there is no room or space for drawing presumption in favour of prosecution. An acidic test, as laid down in the case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), (2015 SCMR 155) and Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622) is required in case of circumstantial evidence, which is as follows:- (i) Whether the circumstances from which the conclusion of guilt is to be drawn are fully established. The circumstances concerned 'must or should' and not 'may be' established; (ii) Whether the facts so established is consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) Whether the circumstances are of a conclusive nature and tendency; (iv) Whether the same exclude every possible hypothesis except the one to be proved; (v) Whether there is a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, and (vi) Whether the chain is so connected and the different piece of circumstantial evidence had made one chain, an unbroken one where one end of it touched the crime and other neck of the accused.

11. Now adverting to the case, as per prosecution version, the complainant namely Dr. Muslim Shah (PW-4) allegedly received demand calls on his Cell No.0334-9102594 from No.0320-9036466, which was later on foisted against appellant but astonishingly the prosecution did not take any pains to prove the ownership of cell No. 0334-9102594, which was allegedly shown to be of the complainant Dr. Muslim Shah. Moreover, the SIM, mobile set and possession thereof from the complainant has not been proved through recovery memo. Likewise, no record of the concerned mobile network company has been produced by the prosecution showing the use, possession and ownership of said cell number by the appellant at the relevant time, hence, the important link goes missing in the prosecution case and which gives strength to the case of the appellant.

12. The prosecution case erect upon the alleged recovery of SIMs No. 0320-9036466 and 0302-556512 from the appellant on 12-01-2015 at the time of his arrest, however, the same is very much doubtful for the reason that from the day one the defence has taken a stance that the appellant was in illegal custody of police prior to 12.01.2015 and when the complainant recorded his statement under section 164, Cr.P.C. and formally nominated the appellant on 12.01.2015, then the appellant was shown arrested on the same day i.e. 12.01.2015.

13. Defence stance is appealable to a prudent mind, let alone a judicial mind, because if the appellant was not in custody, then how the complainant was able to nominate him with full name, parentage and address, which lead the court to strong presumption that the appellant was in illegal custody of the police.

14. In the instant case, the defence stance has also been admitted by the complainant Dr. Muslim Shah (PW-4) before the learned trial Court during cross examination, wherein, he stated that "approximately after one week of the arrest of the accused, his statement under section 164, Cr.P.C. was recorded", hence, illegal custody of an accused person trash all the proceedings conducted by the police like recoveries, discoveries, confessional statements and identification parade etc.

15. Again, as per the documentary evidence, having overriding effect upon the oral evidence as per Article 102 of the Qanun-e-Shahadat Order, 1984, the alleged recovered SIMs are not in the ownership of the appellant and it is admitted by the Investigation Officer, namely, Inspector Israr Khan (PW-5) that SIM No.0320-9036466 was registered in the name of one Qismat-ur-Rehman of District Bannu while the other allegedly recovered SIM No.0302-5565512 stood registered in the name of one Noor Haleem of District Charsadda but the prosecution has neither made them accused under section 109, P.P.C. read with 21-I of Anti-Terrorism Act nor produced them as prosecution witnesses to explain stalemate, hence, adverse inference under Article 129-(g) of Qanun-e-Shahadat Order can easily be drawn.

16. Another crucial aspect of the alleged recoveries is that the same have not been sealed on the spot and even were produced before the learned trial court in open condition, which is clear violation of Rule 22.16 of the Police Rules, 1934 where it is mandatory that each and every incriminating article shall be sealed on the spot. Furthermore, the alleged recovery has not been entered in the Relevant Register-19, which too is mandatory under Rule 22.70 of the Police Rules, 1934. Reference may be made to the case titled Imam Bux alias IMOO v. The State (2013 YLR 30), Rahim Bakhsh v. The State (2010 PCr.LJ 642) and Meer Janvri v. The State (2010 PCr.LJ 1646).

17. In order to prove the movement of the police officer/officials and to make transparent the proceedings and recovery etc, the Police Rules, 1934 has provided a mechanism under Rule 22.48 where it is mandatory that every police officer/official shall make an entry of departure, arrival and of all proceedings conducted between the intervening period of departure and arrival in the PS but in the instant case the same is absent, hence, movement of the police of PS CTD to the jurisdiction of PS Pishtakhara and arrest and recovery therefrom has been shrouded in mystery. Reference can be made to the case titled Abdul Sattar and others v. The State (2002 PCr.LJ 51).

18. Another blot in the prosecution case emerge when inquiry officer (PW-1), namely, Tahir Khan and Investigation Officer Inspector Israr Khan (PW-5) have admitted that complainant was having call record (voice record) and duly heard by them, then why the same voice recording was not converted to CD for matching with the voice of the appellant before the learned Magistrate or any other expert to prove the identity of the real culprit. It can, thus, be assumed that since the voice was not matching with the voice of appellant, therefore, the same was not placed on file, hence strong inference under Article 129-G of Qanun-e-Shahadat Order can be drawn. In this regard reference may be made to the recent view of the august Supreme Court in the case of "Azeem Khan" reported in (2016 SCMR 274) and Lal Khan v. The State (2006 SCMR 1846).

19. In the instant case, the star witness i.e. the complainant Dr. Muslim Shah (PW-4) has been declared as hostile on the request of prosecution. As held by the Hon'ble Supreme Court in case titled Muhammad Boota and another v. The State and another (1984 SCMR 560) and Muhammad Sadiq v. Muhammad Sarwar and 2 others (1979 SCMR 214) that it is not necessary to declare a witness as hostile if his averments is based on truth and the prosecution could not be permitted to cross-examine such like witness.

20. Be that as it may, when the star witness has been declared as hostile, then the prosecution is empty handed as evidence of a hostile witness is ignorable and cannot be used in favour of prosecution or defence. Reference may be made to the case titled Dr. Javaid Akhtar v. The State (PLD 2007 SC 249), Muhammadullah v. The State (PLD 1963 (W.P.) Peshawar 161), Talib Hussain and 2 others v. The State (1982 PCr.LJ 635) and Muhammad Ayub and another v. The State (1983 PCr.LJ 710).

21. It is well established principle of Law of Evidence that benefit, if so creeps from the evidence, must be given to the accused as a matter of right and not as matter of grace and further that bundle of doubts are not necessary rather even a solitary and slightest doubt is more than enough to discard the whole prosecution case. Reference can be made to case titled Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State and others (2014 SCMR 749). Extension of benefit of doubt is not only the golden principle of English Law but this wisdom has been drawn from the words of our Holy Prophet (PBUH) that "Mistake of Qazi to acquit ten guilty persons is better than his mistake to convict a single innocent person". Reference may be made to case titled Ayub Masih v. The State (PLD 2002 SC 1048), Muhammad Karim v. Abd-u-Sattar and another (2016 PCr.LJ (Peshawar) 250) and Muhammad Noor v. Riaz Shah and another (2016 MLD 757 (Peshawar).

22. The learned trial Court has swayed with certain admissions on the part of defence during cross examination, hence, erred in law as in criminal case accused person cannot be condemned on the admissions made by his counsel unless and until he made admission in his statement recorded under section 342, Cr.P.C. Reference may be made to the case titled Abdul Khaliq v. The State (1996 SCMR 1553). The court should not and must not disturb its judicial mind with gruesome nature or heinousness of offence rather to appreciate the evidence in a proper and legal rhythm, otherwise any such influence might lead the Judges to a patently wrong conclusion. Reference may be made to the case titled Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274). The court should not derail from the settled principle that in case of possibility of two interpretations of evidence, one favouring the prosecution and other favouring the accused, the latter one should be acted upon. Reference can be made to the case titled Muhammad Shah v. The State (2010 SCMR 1009).

23. From the combined study of material on record, it is established that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. The lacunas pointed out in the prosecution version have not been taken into consideration by the learned trial court while convicting the appellant rendering the impugned judgment nullity in law, which requires reversal.

24. For the aforementioned reasons, this appeal is allowed, conviction and sentence of the appellant recorded by learned Judge Anti-Terrorism Court, Peshawar vide impugned judgment dated 20.1.2016 is set aside. He is acquitted of the charge/charges leveled against him and be set at liberty forthwith, if not required/wanted in any other case. These are the detail reasons for our short order of even date. JK/328/P Appeal allowe