Ihsanullah Vs The State.

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i, c OURT PESH AWAR.

Bl:FORE Th IE PE HA\ I'AR HtGH i;:

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q r.A Dpeal N ,,edg -"/*ru ti iir u,

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t, ?+ llrsanullah s/o Muhammed Asif Fi iG Rtgnanistan Present'y residing at Appellant ET {)ethi Town t'eshawar' ' it'"i

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VERSUS

(n'-i :tl tii"l t,'+ ,_.

l|i'. 1) The State a

, zi -' Rau Nawaz Khan s/o Mir Mat Khan fir rio rttlJ' sn"im"n l'mir Abad Yakatoot' Peshawar.Respondents fri.:

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i.,i' ;-Y-:i Case FIR No 54 Dated 311112014 U/S 365-A-PP'l/ 7-ATA P.S CTD (Peshawa0

Aorteal aqainr;t the iudgment and order dated Peshawar siiizoro pessed bv JSC/ATC and il;;il HIJ-impugned order iudgment. .the of LIFE L awfrded punishmetrt ""r"ri""t imprisonment ,.r/ 365-A PPC

an'd' Lt#-i;;risonment u/s 7

(e)of the Anti- Terrorism Act 1997 .

=t:========:'===========

PRAYR IN APPEAT.

judgrnent.and For setting a:;ide the impugned *O fcr the acquittal of the appellant' ",0"i = ==========--= =====--====

G UI{D SOFAP PEAL.

'i't.).,I)ii,iril!7, law and facts on the file' f 't' i il ia: A. That the inrpugned ludgment is against rt hence dese,rves to be set aside ' failed to prove the case B. That the prosecution has miserably ot OouLt" fh" learned .trial court while not behvond shadow 'in" L""iiit-Jioouois nas acted asainst the law and Hi#;t justice.

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JT. ENT SHEET

IN'TIIE I,ESHA WARHIGH COURT,

PESHAWAR.:

(iudic ia I D epar: t m ent)

al al No.26 8-Pt20t6

JUDGMENT

Date of hearing: 13.1 .2011

Appeliant (s): hsanulla h b Mr. Hus sain AIi Advocate

Respondent(s): Statc b Mr. Rabn:rw az Khan

AAG

!4gIL,lMMp_u IRAH IM KHA N. J.- Accused appellant Ihsanullah was jointly put to trial alongwith

. co-accused Idrees, Salman and Sheraz Afridi in case FIR No.54 dated'03.U.2014 u/s 365_A/7_ATA, p.S i ClD, .?eshawar, ,rhereby charge was framed against

them on 2l .A4.2015 thar on 03.10.2014 from

tholoul3hfar.e of Afl.idi Ghari, falling within the

A!{iin -iI jurisdir:tion of pclice Station, alongra,ith the co-absconding accused CTD, pesharvar, they

'./ r.ch Muhammad r Khan alias Maley, Zubair, Niaz Muhammad and

Alarn ,iul shared their common intention to abduct

g^ t). Waqas Khan tbr r:ensom. Tiris offence falls within the

purvierv of Sectio.i 365-A ppc read wittr Section 7(e)

of AIA 1997 unCer cotrmon charge of Section srfltuiuEt!

c PPC. Out of the accused Salman died during trial and proceedings against him went abated. Accused Sheraz and Idress were acquitted from the charges and accused Ihsanullah was convicted vide impugned judgment in case No. 3"112015 announced on 09.04.2016. The sentences passed by the leamed Judge, ATC are punishments for life imprisonment u/s 365-4' PPC and 7(e) ATA, 1997 on two counts.

Both the sentences were to run concwrently. Benefit ol'Section 382-8 Cr.P.C was extended to the accused appellant.

2 According to the charge framed all the accused narned in ttre FIR giving them specific role are said to have abducted Waqas Khan for ransom. The prosecution then examined PW-1 Yahya Shah, SI, pS C'ID, Peshawar, PW-2 Asif Nawaz, PW-3 Kareem Dad, PW-4 Farah l/-ada, PW-5 Ayaz Constable, PW-6 Muhamrnad Fiaz Khan, Judicial Magistrate, Swat, PW- \V 7 Gul Muharnma<I, PW-8 Muhammad Ibrahim, SI, Police [,ines, Pesahwar, PW-9 Rabnawaz Khan (father of abductee), PW-l0 Waqas Khan (abductee) and pW- 11 Hastarn Khan, Inspector, PS, CTD, Peshawar. All ')DofHo.'blGrr ic. trlhn Xh.nrl & Hon bt.,!iieMohtrrlrd tbnhin Kh.a

e these acr:used facing trial inclucling the present accused

rvere exrrmined uls 342 Cr.p.C. .fhe accused appellant

negated the answenr and posed inaocence.

3.I{aving heard arguments of leamed counsel for

the appellant and learned AAG, the record has gone t

4.The pnme consideration for conviction or acquittar wourd squarery rest with the statement of pw

10 Waqas Khan, the abductee together with the statcment of his father pW_9 Rabnwaz Khan. These

statements are to be followed in view of the statement

of PW-6 Ivluhammrrd Fiaz Khan, Judicial Magistrate,

Swat furrctioning ar; Judicial Magistrate_Vl, peshawar

during the days ra,hen identification parade of the

accused was made. ,[he rest statements of pWs are also

of significance but the most important statement is of

the PWI I Hastarn Khan, Inspector, pS,

CTD,

Peshawar. PW l0 is Waqas Khan, the abductee who

has stated that on the day of occurrence ,, at I l:00 p.M he came out of his house as was called by his friend

.:::ir1 Gul Muhammad on mobile phone. He went alongwith

him to the cattle nrarket and after :ttllch taking meal they

DO {Ho('ht. r{ bG L.l rrn XhnBk & Hon,bt. llrie Mohmo.d tbnhin (ll.r

e were on the way back when reached to Masjid near Aftidi Gliari, they rvere being chased by a motorcar., There twc persons 'rere deboarded from the said car and they were forr:ibly picked up and taken away towards li.ing Road. On reaching to Kohat pull on Ring Road the eyes of P'il-l Waqas Khan (abr,luctee) were tightened, both of them travelled for an hour and theleafter shifted to a honse having many rooms.. One of the person by the name of Alam Gul disclosed that it

rvas the centre of 'I'aliban. pW I was asked for the rnobile riumber of his father. and at theii instance. he

contacted his father and placed a demand of Five crore rupees tc hiru. Laler on the r.ausom amount for the abduction of co ab,juctee was distributed amongst the abductors ir-rcludin6l the accused appellant. His friend Shahbaz was set free and he rvas shifted to another place. After spending l2l13 days his father was again contacted for ransrtm, he got over escaped from the c house whete he was kept by jumping over the wall and ran away. This abductee in his cr.oss examination has 'iz' r..",F"'-{ squarell' admined that it is correct that tili today i.e. on f' .: i .,..,;

:i "r tt '' :'r'l the da11 of examination in the Court he has not ,,r.r rl Bench

'" -j'1'3t.

)D of tlon ble ruiicc L.l trn Khillk & ti&,bt. .ts c MoEmm.J ll,!.ritr, Xt.h

s -5

mention()d the names of the person who abducted him

from the sport. Thr:re was a business deal in between the father ofthe abcluctee and father ofsheraz and they

had friendly terms sharing their business proceeds. The

abductee was nevor in the knowledge of name of accused appellant alongwith his other partners who are

the other. accused in this case but it has been admitted

that the names of all the culpr.its were disclosed by the

local police and thereafter they were charged. The

abductee was never in the knowledge that the accused

appellant alongwith his co_accused were being charged

with consultation arrd deliberation with all other family

nrembers including his father and patemal uncle. Later

this abductee has al;o been re_examined on 16.02.2016 where this witness is cross-examined, stated that he has

not seen the accused namely Ihsanullah and Sheraz

during the identificrrtion parade in the police custody.

,I During recording of his statement in the trial he has ,u lV - previotLsly said that he had seen the accused appellant g..^ in policq custody before identification parade. Now AYT'Ft:,r"" coming to the statement of the father of abductee :.r'r.:ir Waqas Khan as pri/_9 Rab Nawaz Khan. He admits

D0 d tlc. bl. ,t.licc lrt ,r. KhrMl A Boo.bt. ,!rlB Mch.E6.d tbnhih KnM

e -6-

that he is not the e.ie witness of the occurrence, that the

I abduotee himself came to his house I and he has not paid

i any ransom to any one. This witness I has categorically

I

admitterl this fact .fiat since he

I

t was not the witness to

the occumence therefore, he cannot say with certainty

that whether the ar:cused Ihsanullah is involved in the offence or not and that he has charged him at the

instance of local police. All those who have been

charged aiongwith the accused appellant are named to

hirn by .rhe local police. .Ihe most impo.tlnt admission

has so fhr been that it is a fact that after the arrest of accused' appellant the local police informed him regarding their anest. He then alongwith his son visited the police station and there they saw the accused who

were in the polir:e custody. Now coming to the statement of pW_(, Muhammad Fiaz Khan, Judicial Magisfrate, he has also been cross_examined at length who has also aclmitted ce(ain facts r- d detrimental holding, the identification which are

parade to have

not beeu conducted in accordance j:, ?..r- with law. This a.- {" "i- witness has also categorically admitted that he has not ll l:r cit mentioned the ages of the accused; ''''' ill. that he has not De ofHutbt. ri,rie L.U.il(hrnr\ & Hon,bt. Juni.. Moh.n@d lb, !DXhr4

.;td

a, mentioned names, .F.arentages of the dummies percons even volunteered tf.at he has mentioned their similar getups irr his report. lhere is no prescription in the report regarding the specification of colours of the garn'rents of the accused as they are dummies persons.

It is furthel comect rhat that this Judicial Magistrate has not recolded statem)nts of identifier to the extent of the role plal.ed by the accused dtrring the commission of I the offei,ce. No such siatement of the identifier was recorded. In or.der ,:o confirm the identification parade in the jail premises neither the statement of the,jail authorities have be:n recorded nor even the certificate to that ('lfect has been furnisherd. Last but not lcast is the statel'nent of thl important witness prM 1 I Hastam Khan, 'Inspector, PS. CTD, peshawar, who has conduct':d entire irrvestigation. He has also come out with admission like that it is correct that the instant a

I

case, accordiqg to avaiiable record, is that the report was locged after ,tne month of the occ.urrence. It is further r:orrect that during investigation period between 4r"t-5 "ifr the date of occurrr:nce and <iate of report no report in shape o[DD or otherwise has been made to the police - -"!.h

t

)B oaHs bl.lqticc Lrl lrn xtrnr! & Hm.u. ru rk. Mohmo.tt tb. no (h.r

a The CDR. data has also not been made available regarding the calls being received by the abductee and whether it pedains to any calls on behalfofthe accused appellant. Rather the sim No. 03059002439 has not been four.rd with any contact on the mobile sim of the complainant in the light of CDR data. The Investigation Officr:r is totally ignorant of the fact regarding any ranscm communication so much so that he even does not know that the abductee has retumed his house with or without payment of any ransom. The Investigation Officer has admitted that their were four

(4)pelsons who abducted the abductee (Waqas Khan) i and his friend Sheraz whereas the abductee statement PW-10 is by sayirrg that only two (2) persons have abducteri him. The Investigation Officer has in his cross-examination admitted that no ransom has ever been paid as per lersion of the complainant even the , c)- sit plan was prepared after one month of making of

LZ /'

s- the report. At all the Investigation Officer has failed to l recover or discov:r lrom the accused appeltant any ciLre. This import:tnt witness being the Investigation i

Officer unable to recover any threatening demand from 4".,,,l:t

DB olHc!'H.,uqi.G Lrl ,m Ln llrr & Hd,bt.,r{k Moh66rd tbnfiim (h.!

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the accused appellirnt and that is why the accused t appellant has not ma.de any confession.

5 I'he abducte e is said to be a drug addict using 'Charas' as intoxication according to the statement of PW-7 Gul Muhamtnad. The prosecution evidence on reapplaisal of the r:vidence is quite silent to the fact that the accused apoellant has any involvement in the crirne for abductior for the purpose of ransom and whele the witnessesr PW-9 & 10 (father and son) have utterly stated that they have been named at the instance of police officials rvhere the identification parade was also doubtful wittrout a certificate required to be fumished by the le.lmed Judicial Magistrate and even recording of the proceedings in the jail by recording statements of Jail Authorities.

6.rve are of the consistent view that the accused t appellant has wr.ongly been sentenced to life d v/''-' imprisonment on each count whose case is even beyond the scop: of a sirrgular doubt rather the prosecution version is densely doubted.

'E '1"'i- , ,r^

7.Iror what has been discussed above, this " .r.ltcriminal appeal is allowed, thereby setting aside the Dn otBodbl.,ur'rc Lrt,!. Khrtrrr & Ho. bl.,!rieMon n d tb..Iim Kh.n

o impugned judgrnent of learned trial Court and acquittirrg the appt,llant from the charges leveled against hirn. He is irt ctrstody, be released forthrvith if the case registered ogainst him uis 14 Foreigners Act 1946, has, also been clecided, acquitted accordingly and is not lequired in an'7 other case.

8.'l'he above ere the reasons ofour short order of today reproduce here:

"For the reasons lo be recorded luteron, lhis criminal aPPeal is ollowttl, the impugned iudgtnent of conviclion & sentence daletl 9.4.2t116 rentlered by learned lrial Courl/ Judge, Anli Terrc'rism Court-III Peshawar is sel aside antl lhe appe;lant/convict involved in case FIR No.54 dated 3.11.2014 u/s i65-A PPC/ 7 ATA, Police Stathrn CTD, Peshawar, is acqaitted of lhe charges leveled agahrst him. He is in custodY, be relenserl forthwith the case if regislered ogainst him 14 ils Foreigners Acl 1946, has also been. deckleil, acquilled accortlingly ond is not requiretl in otry other case."

Annourrced

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Certlfi'i.{ lrq l,r

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JUDGE

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/ ild:,{/ OB ol H6'bL lutlic. L.l ,.tr Khr di&Hoitl.rlik Moh.nmd lb.rhih Kh"