AQEEL AHMED ABBASI, J.---These two Criminal Appeals arise out of the impugned judgment dated 20-5-2006 passed by the learned with Additional Sessions Judge (Judicial Complex) Karachi East in Sessions Case No, 186 of 2002 in Crime No, 258 of 2002 registered under sections 364-A, 369, 34, P.P.C. at Police Station Gulshan-e-lqbal, Karachi East, whereby a common judgment the present appellants along with two other accused persons have been convicted for an offence punishable under section 369, P.P.C. and have been sentenced to suffer rigorous imprisonment for a period of seven (7) years each and to pay a fine of Rs,1,00,000 and in case of nonpayment of fine, each accused further requires to undergo rigorous im-prisonment for a period of one year more. Benefit of section 382-B, Cr.P.C. has been given.
2. Briefly the facts of the prosecution case as depicted in the F.I.R. lodged by SIP Tariq Ali on 15-3- 2002, are as follows:-- "Today on 15-3-2002, I, SIP Tariq Ali was present at Police Station Gulshan-e-lqbal, as duty officer, when with reference to report' No,22, Nazim Yasin Nagori and councilor Muhammad Younus appeared at the Police Station and informed that at bungalow No, A-29, Block 13-D/1, Gulshan-e- lqbal some ladies and gents are present who have infant Babies brought from unknown places and going to smuggle them abroad. On receiving this information, I along with staff i.e, HC Farrukh 511, PC Taj Bibi 4554 and above said informants went to the pointed place in mobile and conducted 4 ladies and 3 men were presents there. Their names were (1) Dennis Charles son of Derrick Marshal Charles, (2) Derrick Charles son of Derrick Marshal Charles, (3) Joseph Aziz son of Aziz Masih, (4) Shazia wife of John Masih, (5) Nasreen wife of Shafqat, (6) Parveen wife of Saleem Masih and (7) Nazeeran wife of Shahzad. On the floor of the room four boys and 7 girls all infants aged from 15 days to one year were lying. On inquiry about the parents of infants, Dennis Charles disclosed that he used to come here along with his brother Duke and mother Joinse. The persons whose names and residence are not known to him have brought the infants from different-areas- during the period of two months. For the task he used to pay remuneration to those persons. He has taken away infants to a foreign country Malta with the help of his brother Derrick and his wife Cheta, where they sell them to issue less persons again monitory consideration of Rs,1500/200 American Dollars, In the past he took away several children abroad. On search from the corner of room, 7 passports of the kids were recovered. The recovered Babies were ill and feeble and one Baby was in drowsiness, therefore Abdul Sattar Edhi was informed. On this, Abdul Sattar Edhi and Bilquees Edhi reached at the spot immediately and the recovered Babies were delivered to them for looking after them. The offence against accused Dennis Charles and his accomplices falls under sections 109/420/468/469/364-A and 363, P.P.C. Therefore, the case is registered against accused stated hereinabove. Copy of F.I.R. along with copy of memo of arrest and recovery of kids is delivered to SIP Waseem Shah of Investigation-II for the purpose of investigation."
3. SIP Waseem Shah, during investigation, interrogated accused persons and also got verified the Passports, statements under section 164, Cr.P.C. of Police Station Muhammad Yaseen Nagori, Nazim U.C-8, Gulshan-e-Iqbal, P.W. Sajjad Masih and Mst. Safia were got recorded by the I.O. before the learned IVth Judicial Magistrate, Karachi, East, on 27-3-2002. The I.O. served notice upon P. Ws.
Musarrat Parveen and Muhammad Younus for getting recorded their 164, Cr.P.C. statements, but they did not appear before the Court of learned Judicial Magistrate I.O. also examined some heirs of the kids regarding the conduct of the accused persons. The I.O. has concluded of his investigation that against accused (1) Joseph Aziz, (2) Mst. Nasreen, (3) Mst. Parveen, (4) Shaziz and (5) Mst. Nazeeran, there is no evidence except that they were servants of Dennis Charles.
Cochena Charles, Derrick and Mrs. Joyce, therefore, they were released under section 497(2), Cr.P.C.
4. After usual investigation, the I.O. challaned both the accused namely, Denis Charles and Derrick Charles to face their trial under sections 363, 364-A, 369, 420, 368, 109, P.P.C. but he could not lay his hands upon absconding accused (1) Mst. Conija wife of Denis Charles, (2) Mst. Shahnaz wife of Pitrus, (3) Mst. Samina wife of lstekhar, (4) Mst. Martha wife of Malik Taj, (5) Istekhar son of Bashir,
(6) Mst. Maqbool wife of Shoukat and (7) Padri Abbas son of not known, and showing them in the challan under section 512, Cr.P.C.
5. Absconding accused Mst. Samina and Istekhar obtained interim bail before arrest vide Bail Applications Nos. 343 of 2002 and 344 of 2002, which was later on confirmed. Thereafter, they joined the trial of this case.
6. After conducting the proceedings against the remaining five absconding accused named above, vide Exh.1 to Exh.1-C, copies as required under the provisions of section 265-C, Cr.P.C. were supplied to the above-named four accused vide receipt as Exh.2.
7. A formal charge was framed, against the above named four accused as Exh.3, to which, they pleaded not guilty and claimed to be tried, vide their pleas as Exh.4 to Exh.7 respectively.
8. The prosecution has examined P.W.1 H.C. Syed Farrah Hussain as Exh.8, who produced memo of the place of offence as memo of arrest of accused Dennis and Derrick and recovery of 11 kids, passports and other documents as Exh.10-A, Co-mashir P.W.3 Muhammad Younus was given up by the learned DDA, vide his statement as Exh.10-B, P.W.4 SIP Waseem Ahmed Shah the I.O. of the case, who produced some letters/notices as Exh.11-A to Exh.11-C, P.W.5 Mst. Yasmeen Nursing Instructor at Civil Hospital, Karachi, as Exh.12, P.W.6 SIP Tariq Ali as Exh.13, who produced letter addressed to Mr. Abdul Sattar Edhi for handing over the kids to him as Exh.13-A original memo of arrest of accused Dennis and Derrick and recovery of 11 kids, passports and other documents as Exh.13-B and the F.I.R. as Exh.13-C, P.W. HC Muhammad Aslam was given-up by the learned DDA vide his statement as Exh.14, Statement of accused Mst. Samina for not cross examining P.W.6 complainant SIP Tariq Ali as Exh.15. Thereafter, the side of the prosecution was closed by the learned DDA vide his statement as Exh.16.
9. The statements of the above named accused persons under section 342, Cr.P.C. have been recorded as Exh.17 to Exh.20 respectively, in which, they have denied the allegations of the prosecution. They have further added that they have not committed any offence. They have claimed themselves to be innocent and prayed for justice. However, they have neither examined themselves on Oath nor produced any witness in their evidence.
10. Learned trial Court formulated the following points for determination and for decision thereon:-- (1)Whether the four above named accused persons along with absconding accused Knoija, Malta, Shahnaz, Martha, Maqbool and Padri Abbas and discharged accused persons under section 497(2), Cr.P.C. by the police namely, Joseph Aziz, Shazia, Saulat, Nazeeran, Parveen and Nasreen kidnapped eleven kids under the age of ten in order that they may be murdered or subjected to grievous hurt, or slavery or may be so disposed of as to be put in danger of being murdered?
(2)Whether the above-named four accused persons along with absconding accused and discharged accused under section 497(2), Cr.P.C. by the police named above kidnapped the kids under the age of 10 years with intention of taking dishonestly from their respective parents for smuggling to abroad?
(3)What offence, if any, the above named accused has committed?
11. Learned trial Court after examining the evidence, has decided all the points against accused persons including the present appellants who have been convicted under section 369, P.P.C.
12. Mr. Shamshad Ali Qureshi, learned counsel for appellant in Appeal No,236 of 2006 and Ms Shahida Jatoi, learned counsel for the appellant in Criminal Appeal No,251 of 2006 have seriously assailed the conviction of the present appellants by the learned trial Court by asserting that since there was no ocular or documentary direct evidence produced by the prosecution against the appellants their conviction under the circumstances was not justified. It is submitted that the appellants have neither been nominated in the F.I.R. nor any specific role has been assigned to them. Learned counsel argued that none of the prosecution witness, including the complainant, has implicated the present appellants in the alleged crime nor any incriminating material or evidence has been produced by the prosecution against the appellants. It has been argued that neither the appellants were employee of the main accused persons namely Dennis Charles nor they were arrested from the place of incidence. Learned counsel further argued that investigation of the instant crime has been conducted in violation of the provisions of Criminal Procedure Code, whereby the persons who were arrested from the place of incident and were found to be the employees of main accused persons, were released by the prosecution under section 497(2), Cr.P.C. Learned counsel after having read out the. F.I.R. and the evidence of the prosecution witnesses submitted that no offence whatsoever under section 369, P.P.C. is attracted against the present appellants as all the ingredients of such offence are missing altogether. Learned counsel further argued that the only allegation against the present appellants is that their passports were allegedly found from the place of the incidence along with passport of the children wherein the present appellants have been mentioned as their parents and an attempt was being made to transport these children abroad. Per learned counsel, from perusal of the provision of section 369, P.P.C. and the evidence of the prosecution of the instant case, including the evidence of complainant, it is clear that no offence under section 369, P.P.C. is made out, as it has come on record that the custody of the children allegedly abducted, was given to the main accused persons voluntarily by their parents, whereas there is no such allegation regarding abduction of the children against the present appellants. Learned counsel has read out the evidence of the prosecution witnesses available on the paper book to show that none of the prosecution witnesses including the complainant has implicated the present appellants in the instant crime. Per learned counsel, no recovery has been affected from the appellants of the abductees or the alleged passports which were not even sent for verification of their genuineness from the passport authority. It has been argued that the impugned judgment is silent about the role of the present appellants in the alleged crime, whereas the present appellants have been connected with the main accused persons whose role in the instant crime is entirely different as distinguishable.
According to learned counsel for the appellants, both the appellants are the victims of circumstances and have been falsely implicated in the instant crime, whereas there is no evidence which may connect the appellants in the instant crime. It has been finally argued that in the absence of nomination in the F.1.R. and any direct or incriminating evidence against the present appellants, connecting them with the alleged crime, the appellants were .entitled to the benefit of doubt and thus were required to be acquitted from the instant charge, instead of having been convicted without assigning any reasons. In support of their arguments reliance has been placed on the following judgments:-- (1)Faheem Ahmed Farooqui v. The State 2008 SCM R 1572 (2)Ghulam Qadir v. The State 2008 SCM R 1221 (3)Yasin alias Ghulam Mustafa v. The State 2008 SCM R 336 (4)Siraj-ul-Haq v. The State 2008 SCM R 302 (5)Tayyab Hussain v. Ansari Ali and another 2008 SCM R 90 (6)Abdul Majeed v. The State 2008 SCM R 71 (7)Muhammad Suleman Chanda v. The State 1994 PCr.LJ 596 (8)Muhammad Safdar v. The State-2008 YLR 2878.
13.Conversely, learned A.P.-G. has supported the impugned judgment and submitted that all the appellants, with common intention, were involved in the instant crime whereby the children after abduction were being attempted to be transported aboard. It is further argued that since the plea of sending passports of the appellants for verification was never raised before the learned trial Court, the same cannot be allowed to be raised at this stage. Learned A.P.-G. further submitted that there is no error in the impugned judgment which requires no interference by this Court.
14.I have heard both the learned counsel for the appellants as well as A.P.-G. and perused the record and the case law referred herein. Since both the appeals arise out of the common judgment emanating from the same F.I.R. involving the same offence and witnesses, I intend to dispose of both these appeals by a common judgment.
15.From perusal of the F.I.R. bearing No, 258 of 2002 registered under sections 363/364-A, 369, 468, 420, 109, P.P.C. at Police Station Gulshan-e-Iqbal, Karachi, it appears that the name of the present appellants is not included along with seven accused persons who were found at the place of incidence, whereas no direct role has been assigned to present appellants regarding commission of offences alleged therein. The charge-sheet in the instant case was submitted before the learned trial Court wherein accused Dennis Charles and Derrick Charles have been shown in custody, whereas other accused persons have been shown in column No,2 including the present appellants. The prosecution has examined six witnesses whose testimony along with documents is available as Exh.8 to Exh.16 in the paper book, whereas statement of the accused persons under section 342, Cr.P.C. was also recorded as Exh.17 to Exh.20 respectively wherein the allegations of the prosecution were denied, however, the accused persons did not examine themselves on Oath nor produced any witness in their defence. On examination of prosecution witnesses available at pages 71 to 97 of the paper book, the contention of the counsel for the appellants regarding absence of the name of the appellants in the F.I.R. and no assignment of the direct role in the alleged crime, appears to be correct. It will not be out of place to reproduce the cross- examination of the main prosecution witness i.e, complainant Naseem Sajjad son of Sadiq Masih P.W.2 as Exh.9, which reads as under:-- "It is correct to suggest that Sadiq Masih is my father. <u>It is correct to suggest that I had given to my two sons to Martha through New United Christian. Foundation, Karachi (Malta) for their better future. It is correct to suggest that while making such decision by me, my father and my wife had also consented. </u>It is correct to suggest that it was told by the said Foundation that after handing over the custody of my sons to the said foundation, they will keep with them for one year in Pakistan and after one year they will sent to Malta. It is correct to suggest that after handing over their custody to the said foundation, police arrested accused persons, even before expiry of one year. It is correct to suggest that the police had recovered children including my sons from bungalow No,A-29, Gulshan-e-Iqbal, Karachi, which was being run by the said foundation as a Nursing Home. It is correct to suggest that in the bungalow, Nurses who called sisters used to be there for looking-after the children. Voluntarily says that after 10 days of handing over custody, I had gone to the said bungalow to see my sons, but I was not allowed to see them. It is incorrect to suggest that I had never demanded my sons back from the said foundation. It is incorrect to suggest that I was told by the police that in fact I had sold out my sons to the said foundation and I was threatened that in the present case I will also be arrested and implicated in this case as co- accused, with the result I changed my statement. It is incorrect to suggest that I am deposing falsely."
' This witness was also cross examined by appellant Mst. Samina in Criminal Appeal No, 236 of 2006, which is reproduced as follows:-- "It is correct to suggest that till the date of the challan of the case I had not seen you any where, except in this Court after challan of this case. I cannot say if you have rightly been challaned in this case or not."
16.From perusal of the evidence of P.W.3, namely, Muhammad Yasin, Nazim of. U.C-8, Jamali Colony, Gulshan-e-Iqbal, Karachi, it appears that he has also not implicated the present appellants directly in the instance crime. He was the witness of mashirnama of arrest and recovery, however, it appears that present appellants have not been shown as accused persons who were arrested from the place of incidence. While inquired about the role of the present appellants he has stated that "accused Derrick Charles and Dennis Charles present in Court are same, whereas I cannot say if I had seen accused, Istekhar at the time of raid in the said bungalow, who is present in the Court is same. The incidence taken place about 1-1/2 year back. I cannot Identify accused Mst. Samina if at the time of raid in the bungalow she was also present or not 17.P.W.4 S.i. Waseem Ahmed Shah, has also not implicated the present appellants directly in the instant crime, whereas in his cross-examination by the counsel for the appellant Samina he stated that "it is correct to say that I did not arrest the accused Samina from the spot. It is correct to say that P.W. Sajjad did not disclose the name of accused Samina in his statement under section 164, Cr.P.C. It is correct to say that accused Samina is Muslim woman and not the wife of Istekhar." This witness while cross-examined by the learned counsel for the appellant Istekhar has stated that "I have sent a letter for verification but no reply received, however separate case against present accused was registered. I did not send NIC and I did not receive the same. I know that no passport can be issued without NIC. I cannot say whether the passports of 3 kids were issued on the basis of NIC of accused Istekhar".
18.P.W.5 Mst Yasmeen has also not implicated the present appellants in the instant crime. P.W.6, S.I. Tariq Ali, I.O. of the case produced the F.I.R. and other documents, however, the present appellants appear to have not been implicated in the alleged crime. Statement of the accused under section 342, Cr.P.0 was recorded wherein the appellants accused pleaded not guilty.
19.From perusal of examination of the prosecution witnesses, it appears that the only allegation and material which has been used against the appellants appears to be passports of the minor children wherein the names of the present appellants have been shown as mother and father respectively. It also appears that no recovery whatsoever including the alleged abductees and the passports was made from the present appellants, whereas such passports were admittedly not sent for verification to the concerned,authority. It further appears that except the complainant namely Naseem Sajjad none of the parents of the alleged abductees has come forward to depose even against the main accused persons, whereas it has come on record that the custody of the minors was given by the respective parents voluntarily to the main accused and their foundation (NGO). No evidence has been brought on record by the prosecution which could relate the present appellants with the main accused persons named hereinabove or which reflects upon the common intention to commit the alleged offence which could implicate the present appellants in the alleged offence falling under section 369, P.P.C., the ingredient of which, under the facts and circumstances of the case, appears to be missing otherwise.
20.Record reveals that prosecution has failed to bring any reliable evidence or any incriminating material against the present appellants which could implicate them in the instant crime. It also appears that the prosecution has not been able to make out a case against the present appellants without reasonable doubt. The solitary material i.e, name of the appellants appearing in the passport of the minor children i.e, the alleged abductees, in the absence of any verification about their genuineness from the concerned authorities, by itself cannot be considered as reliable and sufficient evidence to connect the present appellants with the alleged offence in terms of section 369, P.P.C. Nobody is to be punished unless proved guilty on the basis of reliable evidence and benefit of reasonable doubt, if any, must go to accused persons. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Mere conjectures and probabilities cannot take place of proof. Reference in this regard can be made to the case of Ghulam Qadir and 2 others v. The State 2008 SCM R 1221, Siraj-ul-Haq v. The State SCMR 302 (sic.), Faheem Ahmed Siddiqui v. The State 2008 SCM R 1572 and Muhammad Luqman v. The State PLD 1970 SC 10.
21.In the absence of nomination of the present appellants in the F.I.R., no specific role having been assigned to them by the prosecution witnesses, no direct reliable evidence, either ocular or documentary having been produced by the prosecution and even the absence of ingredients of provision of section 369, P.P.C. in the case of appellants, the impugned conviction against the present appellants cannot be maintained.
22. In view of hereinabove, while extending benefit of doubt in favour of the appellants in the given facts and circumstances of the case, they have been found entitled to earn acquittal. Resultantly, both the appeals are accepted, the conviction and sentence recorded by the learned trial Court against the present appellants is hereby set aside. Both the appellants are acquitted of the charge(s), they are on bail, their bail bonds stand discharged.
' Both the appeals are allowed in the above terms.