' SHAHID HAMEED DAR, J.--Bilal Hussain-appellant was held guilty under section 365-A/134 P.P.C.
And under section 7(e) of the Anti-Terrorism Act, 1997, by the learned Judge, Anti-Terrorism Court No,1, Gujranwala, vide judgment dated 30-4-2012 and sentenced as under:--
(I) Under section 365-A/34, P.P.C.: to imprisonment for life with forfeiture of his property.
(II) Under section 7(e) of ATA, 1997: to imprisonment for life with forfeiture of his property.
' All the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
' His co-accused, Muhammad Waris and Muhammad Yousaf were, however, acquitted of the charge on extension of benefit of doubt.
2. The convict/appellant by filing the instant appeal (Criminal Appeal No,884 of 2012) has called in question his conviction and sentence under the impugned judgment, whereas Tariq Mehmood- complainant by filing Criminal Appeal No,1202 of 2012 has challenged the acquittal of Muhammad Waris and Muhammad Yousaf, co-accused of the appellant. We propose to dispose of both the matters together through this single judgment.
3. Precisely, the prosecution case as unfurled by Tariq Mehmood-complainant (P.W.7) in the written application (Exh.PA/1) moved by him before the SHO, Police Station Saddar Sialkot, was that at about 6.00 a.m. On 29-8-2011, his son Abu Huraira, aged nine, was returning to home after offering Fajar prayer and reciting Holy Qur'an from the mosque, Gulzar-eMadina; when he reached near the factory of Muhammad Waris (since acquitted), all of a sudden Bilal Hussain (appellant), holding chhura kidnapped him with intent to kill and demand ransom; he confined him in a room of the factory; he got worried when Abu Huraira did not return home; Khalid Mehmood P.W. (not produced) and Ansar Ali (P.W.5) informed him that they saw his son at about 6:00 a.m, in the company of Bilal Hussain accused; he received a call on his Mobile Phone, SIM No,0333-8603619 from cell phone-SIM No, 0322-5848836 at about 1:00 p.m.; the caller asked him not to worry and make arrangement of Rs,20,00,000, drop this amount at a place as directed by him, so as to save his son's life and warned him not to inform the police at all; he (complainant) told the caller that he was a man of limited means; ultimately ransom-amount was settled as Rs,5,00,000 after some dialogue; he was still arranging the ransom amount, when at about 4:00 p.m. His son suddenly reached home, badly perturbed and told him about the incident of his kidnapping by Bilal Hussain (appellant) and his companions Muhammad Waris and Muhammad Yousaf besides two unknown persons, who all carried arms then; on the basis of the complainant's application (Exh.PA/1), formal FIR (Exh.PA) was drawn up by Khalid Hussain SI (P.W.1), at 2.00 p.m., on 30-8-2011.
4. After registration of the case, investigation into the crime was entrusted to Muhammad Riaz, ASI (P.W.10), who proceeded to the place of occurrence, inspected it and prepared visual site plan (Exh.PJ); he searched for the accused; on 31-8-2011, he conducted a raid for arrest of the accused, but they ran away by leaving two motorcycles, which were seized under section 550, Cr.P.C. Vide recovery memo Exh.PE; on 16-9-2011, he arrested Bilal Hussain (appellant), who, during the course of investigation, led to the place of confinement of the kidnapped child and got recovered a string (P3), tape (P4) and shoe of the victim (P2), which were taken into possession vide memo Exh.PC, duly attested by Muhammad Tufail 685/C (P.W.2) and Ghulam Abbas 357/C P.W. (not produced); on 23-9-2011, Bilal Hussain (appellant) also led to the recovery of a chhura (P5) and a mobile- phone Nokia-1202 (P6), which were secured by the Investigating Officer vide memo Exh.PD, duly attested by Muhammad Tufail 685/C (P.W.2) and Muhammad Iqbal 817/C P.W. (not produced); thereafter investigation of the case was transferred to Tariq Mehmood Inspector (P.W.11), who again interrogated Bilal Hussain (appellant) and also joined previous Investigating Officer, Muhammad Riaz, ASI (P.W.10), three constables, the complainant, the kidnapped child, the eye-witnesses of the occurrence and Bilal Jamshaid, a computer operator, in the investigation; he recorded opinion of innocence in favour of Muhammad Waris and Muhammad Yousaf accused (since acquitted); on completion of investigation, he prepared the challan under section 173, Cr.P.C. And submitted it before the Court for trial of the accused in accordance with law.
5. The appellant as well as his acquitted co-accused on indictment (pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced eleven witnesses, namely, Khalid Hussain A.S.-I. (P.W.1), Muhammad Tufail 685/C (P.W.2), Muhammad Shafique (P.W.3), Yaqoob Ali Bhatti (P.W.4), Ansar Ali (P.W.5), Gul Nawaz (P.W.6), Tariq Mehmood-complainant (P.W.7), Abu Huraira-kidnapped-child (P.W.8), Bilal Jamshaid 1567/C (P.W.9), Muhammad Riaz ASI (P.W.10) and Tariq Mehmood Inspector (P.W.11). Thereafter, the accused were examined under section 342, Cr.P.C., whereby they professed their absolute innocence in the matter and denied all the charges against them. They did not opt to depose under section 340(2), Cr.P.C. Nor they opted to adduce any evidence in defence. The contention adopted by Bilal Hussain (appellant) in reply to question as to why this case against him and why the P.Ws. Deposed against him, read as under:- "I am innocent. The complainant of this case belongs to my village. He had money dispute with my father. My father had paid the whole amount to him and he refused to return the cheque to my father which he had given to the complainant as guarantee. My father is in Saudi Arabia for earning his livelihood. In his absence my uncles Muhammad Yousaf and Waris (co-accused) before registration of this case asked the complainant to return the cheque but he refused and a false case was registered against me and my co-accused the P. Ws. Have deposed falsely being interested and in league with the complainant."
' The learned trial Judge on conclusion of the trial held the appellant guilty of the offences charged and sentenced him as mentioned hereinabove.
6. Learned counsel for the appellant has contended that the story qua kidnapping of his son Abu Huraira (P.W.8) has been fabricated by the complainant (P.W.7) under a conspiracy, so as to evade his liability to return the guarantee-cheque, given to him by the father of the appellant; the evidence on the record has been misread and misappraised by the learned trial court for holding the appellant guilty and awarding him the sentence under appeal; the prosecution miserably failed to prove its case during trial beyond reasonable shadow of doubt and for this reason the impugned judgment is not sustainable in the eyes of law; the evidence rendered by the prosecution witnesses is deficient as well as discrepant and learned trial court's reliance on it has caused gross miscarriage of justice.
7. The learned counsel appearing on behalf of the complainant argued that there existed no enmity between the parties nor there was any on the part of the complainant to falsely involve the appellant in this case; the evidence tendered by the complainant (P.W.7) and the minor kidnapped child (P.W.8) cannot be brushed aside as incredible nor any such element of un-believability floats across their testimonies; each accused commits the crime with a particular frame of mind: therefore, crime so enacted cannot be adjudged in the light of whimsical improbabilities imagined by the other side.
8. Learned Deputy Prosecutor General Punjab submitted that charge against the appellant stood fully proven, beyond any doubt, therefore, the impugned judgment may not be declared faulty nor it may be undone on the basis of imaginary fallacies, as pointed to by the accused.
9. We have minutely gone through the entire record and attentively considered the submissions of the learned counsel for the parties.
' It all started when Abu Huraira (P.W.8), the minor son of Tariq Mehmoodcomplainant (P.W.7) after offering fajar prayer and reciting the Holy Qur'an did not return to his house from the mosque, Gulzar-e-Madina on 29-8-2011 as, he on way to his house was kidnapped by Bilal Hussain (appellant), who held a Chhura then and after kidnapping him with intent to kill and demand ransom, he forcibly took him to factory of Waris accused (since acquitted) where he confined him in a room. The worries of the complainant (P.W.7) multiplied when Khalid Mehmood P.W. (not produced) and Ansar Ali (P.W.5) informed him that his son had been witnessed by them in the company of the accused/appellant, followed by receipt of a phone-call (SIM No,0322-5848836) from an unknown caller, on his cell-phone (SIM No,0333-8603619), who demanded ransom of Rs,20,00,000 for releasing his minor son. The strange aspect of the case is that the complainant (P.W.7), on one hand, settled the ransom amount with the kidnapper as Rs,5,00,000 after some telephonic-dialogue with him and on the other hand his kidnapped child unexpectedly reached home at 4.00 p.m., the same day panting and he looked highly perturbed. He told his father that he had been kidnapped by Bilal Hussain (appellant) and his crime-partners Muhammad Waris and Muhammad Yousaf (since acquitted), joined by two unknown persons, all armed with firearms. This is what written application (Exh.PA/1), moved by the complainant (P.W.7) on 30-8-2011 and formal FIR (Exh.PA) tell us about the occurrence qua kidnapping of minor Abu Huraira (P.W.8). The FIR suffers from unexplained delay of about thirty two (32) hours and by no way, it can be termed a promptly lodged case. The FIR (Exh.PA) discloses the distance of the place of occurrence from the police station three kilometers, which may not be the distance, more than a crow's flight and could easily have been covered by the complainant within a few minutes. The complainant preferred to keep silent as to the delay caused, which renders his conduct a bit dubious. He learnt about the kidnapping of his son by the appellant and he also learnt about the place, where, after kidnapping, he had been taken to, followed by his telephonic-contact with the kidnapper(s) by 1.00 p.m. On 29- 8-2011. What else he needed to report the crime to the police? He appears to have indulged himself in long consultations and deliberations before Submitting the written application (Exh.PA/1) to the police at 2.00 p.m. On 30-8-2011. Even in his testimony, he bothered not to explain the circumstances, which compelled him to delay reporting of crime to the police. The unexplained inordinate delay in registration of the FIR causes eyebrow-raising and signals at the mala fide of the complainant, which certainly does no good to the prosecution's case.
10. It was Ansar Ali (P.W.5) and his co-witness Khalid Mehmood (not produced), who as per contents of the FIR informed the complainant that they had seen his son Abu Huraira at 6.00 a.m.
On 29-8-2011 in the company of Bilal Hussain (appellant) and this is what the complainant deposed about in his testimony. Ansar Ali (P.W.5), however, did not corroborate the said fact in entirety as he did not name his co-witness Khalid Mehmood to have seen the said incident nor he stated about the appellant and kidnapped child going together and what he said was that he saw his son Abu Huraira with Bilal near his dera. He (P.W.5) categorically stated in his testimony that Tariq Mehmood-complainant visited his factory at 11.30 a.m. When he disclosed to him the aforesaid position of his missing son. This P.W. Did not join investigation for four/five days, which fact has been admitted by him in his testimony, nor did he put forth any explanation for having not done so. The delayed joining of this P.W. With the investigation reduces the efficacy of his statement almost to nothing. The prosecution, as noted earlier, did not produce Khalid Mehmood P.W. To corroborate the aforesaid factum, as stated by Ansar Ali (P.W.5).
11. The kidnapping/abduction for ransom is certainly a serious charge wherein many actors, on and off and behind the scene, participate and perform. Here in this case, Abu Huraira (P.W.8) was forcibly taken away by Bilal Hussain (appellant) at about 6.00 a.m. On 29-8-2011, whereafter according to the allegations he was confined by the accused in bathroom of the factory of Muhammad Waris (since acquitted) by putting an adhesive tape on his mouth and by tying his hands and legs with a string. The cumulative contention of Tariq Mehmood-complainant (P.W.7) and Abu Huraira (P.W.8) makes the prosecution case one of escape of the child from the captivity of the accused at about 4.00 p.m., the same day. The complainant contended in his testimony that on return of his son, he took the police to the factory of the accused, where, the bathroom, wherein the child was confined, was found locked and main gate of the factory was open. He further said that the lock of the room, wherein his son was confined was opened by the police by fetching a key from the accused and they observed the "ventilator" through which his son had managed his escape. This bathroom, as told by P.W.7, was 8/8-1/2 feet high and there was a hole in the roof of the said bathroom and not in any of its walls. This bathroom was fitted with a basin as well as a mirror and basin was fixed in a wall at the height of about 3/3-1/2 feet from the floor. The kidnapped child testified in this case as P.W.8, after he was found prudent enough to depose by the trial court. His statement does not inspire confidence at all. It is simply unimaginable that being a child of about 8/9 years of age, he without the help of any, untied his hands and legs and climbed the roof of the bathroom, wherein he was statedly confined. The complainant has stated that his son remained confined in the said room for ten/fifteen minutes. If so, the kidnapped child should have returned to his house hours before 4.00 p.m. As he was abducted by the accused at 6.00 a.m.
And taken straight to the said factory, which fact is evident from the testimony of Abu Huraira (P.W.8). The minor has nowhere alleged in his testimony that he was kidnapped by the accused while holding a chhura in his hand and what he contended is that the accused threatened him by means of a chhuri, at the time of his confinement in the bathroom. The complainant admitted that his minor son, on return to the house, did not bear any mark of violence/torture on his body. It also oozes from his testimony that the police did not collect any call-data of his cell-phone/SIM during investigation. He also admitted in his testimony to have some money dispute with The father of Bilal Hussain accused/appellant, on account of which he had lodged a criminal case against him regarding "dishonour of cheque". He further admitted that father of Bilal Hussain accused had obtained loan of Rs,2,00,000 from him and he repaid an amount of Rs,1,28,000 in instalments to him and for rest of the amount he issued to him a cheque, which was dishonoured by the bank. The appellant also referred to a money dispute between his father, who lived in Saudi Arabia for earning livelihood and the complainant, in his statement under section 342, Cr.P.C, with the elaboration that his father had defrayed the entire amount to the complainant, who, however, did not return the cheque to his father whereon his uncles Muhammad Yousaf and Muhammad Waris (since acquitted) asked him to return it but he refused and instead, he got a false case registered against him and his co-accused. Who knows that aforesaid contention of the appellant may be wholly true.
12. So far as the statement of Muhammad Riaz, ASI/I0 (P.W.10) is concerned, he has contended that child Abu Huraira could not touch the roof of the bathroom while standing on the floor of the bathroom as he was 4/4.05 feet in height. He, however, introduced unlike the statement of the complainant and the abducted-child, that he found a table, stool and chairs inside the bathroom, when he visited it on day one. The visual-site-plan (Exh.PC/1) does not show any hole in the roof of the bathroom and this fact has been mentioned by the Investigating Officer (P.W.10) in his testimony. Ansar Ali (P.W.5), Tariq Mehmood-complainant (P.W.7) and Abu Huraira, the kidnapped- child (P.W.8) do not paint an unblemished picture qua the prosecution case, as there testimonies are inconsistent, discrepant and contradictory inter se besides entailing countless improbabilities, hence, liable to be brushed aside.
13. Insofar as the recovery of calldetails-record (CDR) (P1), vide memo Exh.PB, attested by Muhammad Tufail 685/C (P.W.2) and Muhammad Iqbal 817/C (not produced) is concerned, it hardly connects the appellant with the cell-phone of the complainant as it relates to the cell- phones/SIMs of Dalawar Hussain and Gul Nawaz (P.W.6). The prosecution in their bid to prove the case against the appellant also produced Gul Nawaz (P.W.6), whose testimony virtually means nothing to the story of kidnapping, escape and return of the minor Abu Huraira from the bathroom of the factory owned by the accused, nor does it create any link between the cell-phone/SIM of the appellant and that of the complainant. The contention of this witness that a copy of his national identity card had been used by the accused/appellant to fetch a SIM for his own use, remains uncorroborated and it does not inspire confidence in any manner. The Investigating Officer Muhammad Riaz ASI (P.W.10) visited the room of confinement of Abu Huraira again on 19-9-2011 to recover shoe (P2) of the kidnapped-child, rope (P3) and crystal tape (P4) vide recovery memo Exh.PC, which was attested by Muhammad Tufail 685/C (P.W.2) and Muhammad Iqbal 817/C (not produced). The recovery of these items is hardly believable and an element of mischief in its provision cannot be ruled out. The Investigating Officer had visited the said cell/room, on the very day of the registration of the FIR together with the complainant and the kidnapped child but nothing of the sort was recovered on that occasion. The repeated visit of the said room by the Investigating Officer resulted in recovery of the aforesaid items, which cannot be believed a circumstance, worth reliance or worth credence. The prosecution cannot offer any plausible explanation as to how the first visit of the Investigating Officer to the said cell remained unproductive. There is a couple of other items, churra (P5) and mobilephone-Nokia (P6) alleged to have been recovered at the instance of the appellant from his house on 23-9-2011. This piece of evidence virtually adds nothing to the prosecution case, which, as already held in the preceding paragraphs of this judgment, has gone unsubstantiated and unproved.
14. All, what has been discussed above, sounds us to be more of a cock and bull story as far as involvement of the appellant in this case is concerned. His conviction and sentence, therefore, cannot be maintained on this quality of evidence. For the discussion supra, we allow this appeal, set aside the conviction and sentences of the appellant recorded by the trial court and acquit him of the charge. He be released forthwith if not required in any other case.
15. Insofar as Criminal Appeal No,1202 of 2012, filed by the complainant against acquittal of the respondent-accused, Muhammad Waris and Muhammad Yousaf, is concerned it has no legs to