MANZOOR AHMAD MALIK, J.---Criminal M.A. No. 815 of 2019: For reasons mentioned in the application, the same is allowed and delay in filing J.P. No. 228 of 2019 is condoned.
2. Petitioners Muhammad Jabran, Zawar Husain, Adil Khan and Shams ul Haq (in both jail petitions) were indicted by the trial court to face trial in case FIR No. 263 dated 19.07.2016, offence under sections 393, 363, 364-A, P.P.C., registered at P.S. Saddar District Jhelum. On conclusion of trial, the learned trial court, vide its judgment dated 10.06.2017, convicted and sentenced the petitioners as under:-
(i) Convicted under section 343, P.P.C. and sentenced to RI for one year and fine of Rs.5000/ -, in default whereof to undergo SI for six months.
(ii) Convicted under section 393, P.P.C. and sentenced Y to RI for 03 years, with fine .of Rs.20,000/-, in default whereof to undergo SI for six months.
(iii) Convicted under section 363, P.P.C. and sentenced to RI for 05 years, with fine of Rs.50,000/ -, in default whereof to undergo SI for six months.
(iv) Convicted under section 364-A, P.P.C. and sentenced to RI for 10 years, with fine of Rs.50,000/ -, in default whereof to undergo SI for six months.
All the sentences were ordered to run concurrently and benefit of section 382-B, Code of Criminal Procedure was extended to them. Aggrieved of their convictions and sentences, the petitioners filed a joint criminal appeal which was dismissed by the learned Lahore High Court, Rawalpindi Bench, Rawalpindi, through the impugned judgment with the modification that on the basis of compromise between the parties, the conviction and sentence of petitioners under section 343, P.P.C. was set aside and they were acquitted Of the said charge; the conviction of petitioners under sections 363 and 393, P.P.C. was upheld and sentences of petitioners under the said penal heads were reduced to what they had already undergone; the conviction of petitioners under section 364-A, P.P.C. was maintained and sentence in lieu thereof was reduced to seven years each. Hence, the instant jail petitions for leave to appeal.
3. After hearing the learned counsel for the petitioner and learned Additional Prosecutor General Punjab at length and perusal of available record, it has been observed by us that the prosecution in order to bring home the guilt of petitioners produced complainant Muhammad Afzal (PW2) and Zulfigar Ali (PW3) as eye-witnesses, whereas Aurangzaib (PW4) stated in his examination in chief that after the occurrence he came to the house of complainant and untied the complainant Muhammad Afzal (PW2), Zulfiqar Ali (PW3) and Mst. Khalida Bibi (given up PW). The occurrence in this case, as per prosecution, had taken place on 19.07.2016 at 5.00 a.m. early in the morning. In the FIR and before trial court, the complainant Muhammad Afzal (PW2) and Zulfiqar Ali (PW3) stated that only petitioner Muhammad Jabran muffled his face with a Chaddar whereas the other three petitioners Zawar Hussain, Adil Khan and Shams ul Haq were identified by PWs as they had not muffled their faces; that when the petitioner Muhammad Jabran lifted the alleged abductee Muhammad Bilal, the latter started weeping and waived his legs and arms, as a result whereof Chaddar from the face of Muhammad Jabran was removed and they identified him as their neighbor. The complainant Muhammad Afzal (PW2) in his court statement also claimed that they already knew the names of Zawar Hussain, Adil Khan and Shams ul Haq as they used to visit the house of petitioner Muhammad Jabran, their neighbour. He has further claimed in his cross-examination that petitioners Shams ul Haq, Adil and Zawar Hussain were known to him one year prior to the occurrence. He has not disclosed how he knew the names of these petitioners whether they were introduced to him and his wife at some point of time by the petitioner Muhammad Jabran or whether they were also residing in the same vicinity. It does not appeal to commonsense that one out of four accused persons who had entered a house with intention to kidnap a child or for committing dacoity would muffle his face with the fear of identification and the other three would not do so. Moreover, Zulfiqar Ali (PW3) in his cross-examination admitted that they did not know the names of petitioners earlier and at the time of arrest of petitioners, they came to know about their names.
4. Zulfiqar Ali (PW3) is not the inmate of the house. The complainant Muhammad Afzal (PW2) in the FIR and in his examination-in-chief stated that on the fateful night, Zulfiqar Ali (PW3) was sleeping in his house. In his cross-examination, he admitted that Zulfiqar Ali (PW3) was married having three children and used to live at half kilometer away from the place of occurrence. Zulfiqar Ali (PW3) also stated in his cross-examination that the intervening distance between his house and the place of occurrence (house of complainant) was about 50 to 60 paces. The complainant (PW2) further stated in his cross-examination that on the fateful day he (complainant) was on duty. He volunteered that he arrived at home at 10.00 p.m. If this was so, it would have been natural for Zulfiqar Ali (PW3) to return to his home which was not far off from the place of occurrence particularly when there was no pressing reason for his stay in the house of the complainant.
5. The complainant Muhammad Afzal (PW2) stated in his cross-examination that at the time of occurrence, they were sleeping in the verandah of the house. However, Zulfiqar Ali (PW3) stated in his cross-examination that they were sleeping in a room at the time of occurrence and the room was closed. He further explained that wife of complainant had went out of the room to feed her son, when the petitioners entered the room.
6. In their court statements, complainant Muhammad Afzal (PW2) and Zulfiqar Ali (PW3) claimed that on 22.07.2016, they were present in the police station, when Muhammad Nadeem ASI (PW6) received a telephonic call and the caller informed him about weeping voice of a child from a deserted room in Ashiana Housing Scheme at Rathian. They further claimed that they along with police in official vehicle went there, where the abductee Muhammad Bilal was recovered and petitioners were arrested. However, investigating officer Muhammad Nadeem ASI (PW6) stated in his cross-examination that he went to recover abductee Muhammad Bilal after receiving call from a spy informer and the complainant Muhammad Afzal was called later on at the place of recovery. He further stated that the complainant came at the spot of recovery after fifteen minutes; that he first arrested the petitioners, prepared site plan and then the complainant came at the spot and identified his abducted son. He further stated that the petitioners were arrested from the courtyard of the house whereas it was the claim of the complainant Muhammad Afzal (PW2) and Zulfiqar Ali (PW3) that petitioners were apprehended by the police while they were running from the place of recovery. He (PW6) further clarified in his cross-examination that he did not call any other person except the complainant at the place of recovery.
7. The prosecution has also produced Aurangzaib (PW4) to corroborate the version of complainant Muhammad Afzal (PW2) and Zulfiqar Ali (PW3). In the FIR and in his examination-in-chief, the complainant Muhammad Afzal. (PW2) did not mention the reason why his younger brother Aurangzaib (PW4) had come to their house after the occurrence. Zulfiqar Ali (PW3) also did not mention the reason in his examination in chief why Aurangzaib (PW4) had come to the house of the complainant after the occurrence. He (PW4) in his cross- examination stated that Aurangzaib (PW4) used to provide milk and for this purpose, on the fateful day, he had come to the house of the complainant. On the other hand, Aurangzaib (PW4) in his cross-examination admitted that he was not owner of any buffalo, however, he had some goats but he did not sell goat milk. He did not disclose as to how he used to provide milk to the house of complainant daily. It has further been observed by us that Aurangzaib (PW4) also claimed that he was accompanying the complainant Muhammad Afzal (PW2) and Zulfiqar Ali (PW3) along with police party to the place of recovery of abductee Muhammad Bilal. However, neither the complainant Muhammad Afzal (PW2) and Zulfiqar Ali '(PW3) mentioned this fact in their court statements. More so, as earlier pointed out, the investigating officer Muhammad Nadeem (PW6) stated before the trial court that the police party was not accompanied by any private person when they raided for recovery of Muhammad Bilal and they informed the complainant afterwards, who alone reached at the place of recovery and identified his abducted son, Muhammad Bilal.
8. It has also been observed by us that inmate of the house Mst. Khalida Bibi, who was the mother of abducted child Muhammad Bilal was given up by the prosecution as being unnecessary. In the circumstances, she could have been the most natural witness of the occurrence and an adverse inference can legitimately be drawn under Article 129(g) of the Qanun-e-Shahadat Order, 1984 that had she been produced, she would not have supported the case of the prosecution.
9. So far as recovery of pistols 30 bore from petitioners Muhammad Jabran and Zawar Hussain is concerned, it has been observed by us that the complainant Muhammad Afzal (PW2) and Zuliqar Ali (PW3) stated before the trial court that the pistols were recovered from the petitioners at the time of their arrest at the place of recovery.
However, the investigating officer Muhammad Nadeem (PW6) and Musaddaq Sultan 881/C (PW5) stated in their court statements that pistols were recovered from petitioners Muhammad Jabran and Zawar Hussain on their disclosure from an open place during the course of interrogation. As regards recovery of Churri from petitioner Shams ul Haq and Danda from Adil Khan, the investigating officer Muhammad Nadeem (PW6) stated before the trial court that the same were recovered from Rathian Bridge near railway line. There is nothing on record that the said place of recovery was owned or in possession of either of the petitioners.
10. There is absolutely nothing on record that after abduction of Muhammad Bilal, the petitioners allegedly demanded ransom for his release or any amount as ransom was paid to the petitioners by the complainant. The prosecution has not brought on record what was the purpose of alleged abduction of Muhammad Mal at the hands of the petitioners. The investigating officer Muhammad Nadeem (PW6) admitted in his cross- examination that the petitioners had made no demand of ransom from the complainant. He further stated in his cross-examination that no TV or other valuable articles were stolen from the place of occurrence (house of the complainant).
11. Another important aspect of the matter is that the learned High Court has observed in the impugned judgment that an affidavit was filed by the complainant before the learned High Court that he had forgiven the petitioners and had no objection if they were acquitted. In this behalf, statement of complainant was also recorded before the learned High Court, on the basis whereof the petitioners were acquitted by the learned High Court for charge under section 343, P.P.C., which is compoundable.
12. For what has been discussed above, we have no hesitation to hold that prosecution case against the petitioners is doubtful from its very inception. Therefore, the instant jail petitions are converted into appeals and the same are allowed. Consequently, the convictions and sentences of appellants Muhammad Jabran, Zawar Husain, Adil Khan and Shams ul Haq are set aside. They are acquitted of the charges framed against them.
They are behind the bars and are ordered to be released forthwith, if not required to be detained in any other case.