ABDULLAH BALOCH, J. This judgment disposes of Criminal Jail Revision Petition No.31 of 2023 filed by the petitioners Dadli wife of Nadir Ali, Nadir Ali son of Aslam and Aslam son of Resham through Superintendent Jail Gaddani, against the judgment dated 27th March 2023 ("impugned judgment") passed by learned Judicial Magistrate-I Hub ("the trial Court"), whereby the petitioners were convicted under Sections 365/34 P.P.C. and sentenced to suffer three years R. I., with fine of Rs.
25,000/- or in default whereof, they have to suffer Six (06) months S.I. The benefit of Section 382(B)
Cr.P.C was also extended in their favour. The appeal filed by the petitioners was also rejected, vide judgment dated 15th April 2023 passed by learned Additional Sessions Judge-I Hub ("the appellate Court").
2. Facts of the case are that on 6th September 2022, the complainant Zowaid Ahmed son of Muhammad Ishaq lodged FIR No.77/2022 at Police Station Berote Hub, under Sections 365, 34 P.P.C., with the averments that he is resident of street No.10 Akram Colony, Hub and his cousin namely Ayan son of Shabir aged 04-years was playing outside the house, while a veiled woman arrived and abducted the said child.
3. In pursuance of the above FIR, the petitioners were arrested, investigated and were challaned in the trial Court, which indicated the charge, which was refuted by the petitioners, thus the prosecution in order to establish the charge has produced the evidence of Ten witnesses. The petitioners were examined under Section 342 Cr.P.C., however, neither they recorded their statements on oath under Section 340(2) Cr.P.C. nor produced any witness in their defence. On conclusion of trial and hearing arguments, the trial Court awarded conviction to the petitioners as mentioned in para-1 above, whereafter the appeal filed by the petitioners was also rejected/dismissed by the learned Additional Sessions Judge-1 Quetta. Whereafter they preferred instant Criminal Jail Revision Petition through Superintendent Central Jail Gaddani.
4. Heard the learned counsel and perused the available record. In order to substantiate the case, the prosecution has produced the evidence of Ten (10) witnesses. The complainant of the case appeared in the Court as PW-1. who fully reiterated the contents of FIR and narrated the entire story in line with his Fard-e-Bayan Ex.P/1-A and the FIR. PW- 1 narrated the whole story with regard to abduction of Child by an unknown veiled woman. Though this witness has not directly involved the petitioners in the crime, but since he brought the criminal machinery into motion, where after during investigation the police recovered the child from the possession of petitioners.
5. Till registration of FIR, the complainant party had no idea about abduction of minor Ayan, thus question arises as to how it has come to the knowledge of prosecution that the petitioner (accused) Dadli is involved in the abduction of minor Ayan. In order to resolve such question, the prosecution produced the evidence of Ghulam Murtaza, who appeared in the Court as PW-3 and stated that on the said date he was present in his shop situated at Dubai Plaza Sakran Road and came across with a news through social media that a child was abducted by a woman, however, he ignored this news, but when he came to his house and was informed that a child was weeping outside their house, to which he shown the picture of child to his family members, who confirmed the abducted child, where after he informed the family members of abductee by stating that his nephew was flying kite at top roof of his house, who saw the child weeping with the petitioner (accused) Dadli, thus the police arrived at the site and on checking, the house of petitioners was found locked. Admittedly, this witness has neither any relationship with the complainant party nor any enmity or grudge with the accused persons rather this witness has given clue to the prosecution to investigate the matter at right direction by tracing out the real culprits.
6. In order to confirm whether the petitioner (accused) Dadli was the resident of vicinity or otherwise, the prosecution produced the evidence of Mir ,Hamza, who brought on record that he rented out the house to petitioners through one Zafar, but subsequently on 6th September 2022, the said tenants were disappeared and he was informed by the police that the tenants after doing some illegal act have locked the house, thus the police demanded details of abductee, to which he brought the guarantor PW-2 Zafar Ali before police. PW-2 Zafar Ali provided the mobile numbers of petitioner Nadir Ali. The statements of PW-2 and PW-6 confirmed the renting out of the house to the petitioners, who at the night of occurrence disappeared and locked their house.
7. Thereafter, the police traced out the location of petitioners through their Cell Number and along with PW-2 Zafar Ali. PW-4 Jalil Akbar, PW-5 Muhammad Jasim, PW-9 Muhammad Naeem ASI and PW- 10 Mahiwal Khan, IP/IO, reached at the huts nearby the Sariab Customs, whereby the police and CTD officials encircled the huts and recovered the abductee Ayan from the possession of petitioners.
8. If the statements of above referred witnesses are taken into consideration, it has been established that the petitioners Dadli and Nadir Ali were spouses and were residing in a rental house at Sakran Road Hub, from where they abducted the child Ayan and came to Quetta. Now question arises that what was reason behind the abduction of Child Ayan? The prospection in order to resolve this issue has produced the evidence of PW-7 Yahya Khan, ASI who brought on record that on 19th September 2022 during investigation, the petitioner Nadir Ali got recorded his extra judicial confession by confessing his guilt and stated that he was married with petitioner (accused) Dadli and were residing at the rented house of Hamza. The petitioner further disclosed that since there was no labour work etc. in Hub thus he contacted with petitioner Muhammad Aslam, who was at Quetta who advised him for shifting to Quetta. Anyhow, since out of their wedlock no child was born, thus they decided to abduct a child and thereafter to shift to Quetta and ultimately they abducted the minor Ayan and were shifted to Quetta, wherein they also disclosed about the abduction of child to petitioner (accused) Aslam, where after the police came, recovered the child and arrested them. PW-8 Abdul Rasheed, AS!, also confirmed that in his presence the petitioner (accused) Dadli recorded her extra judicial confession by confessing of her guilt for abduction of minor Ayan, bringing the child to Quetta and their arrest by the police and also recovered the minor from their possession. The comparison of extra judicial confession of petitioners Dadli and Nadir Ali confirmed that they recorded their statements in line with each other. Under Articles 37 to 39 of the Qanun-e-Shahadat Order, 1984, a confession made by an accused, while he is in police custody, is not admissible. However, if something related to the case is recovered or any fact is discovered in consequence of the information conveyed by the accused person, then the information so received would be admissible in evidence within the purview of Article 40 of the Qanun-e-Shahadat Order, 1984 because then the presumption would be towards its truthfulness. It would be advantageous to reproduce herein below the said Article which reads as follows:-- "40. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
9. The comparative study of statements of all the witnesses would disclose the fact that the prosecution has established the charge against the petitioner through consistent and confidence inspiring evidence. The prosecution has established that the petitioner (accused) Dadli along with her husband Nadir All was residing at Hub in a rented house and out of wedlock they had no child, thus they decided to abduct a child and after succeeding in their conspiracy, they shifted to Quetta and disclosed the fact of abduction of child to petitioner (accused) Muhammad Aslam, who despite knowing the fact of abduction of child by the petitioner, gave shelter to the main culprits, thus it can be said with certainty that the accused Aslam also actively participated in the crime, otherwise he could have informed the police. The role of petitioner (accused) has specifically fall within the domain of Section 34 P.P.C. In this regard reliance is placed on the case titled Muhammad Akram v. The State 2007 SCMR 1539. The relevant portion reads as follows: "4. ... It is a settled law that the ingredients of section 34. P.P.C. embodies his participation in some action with the common intention of committing a crime, once such participation is established, section 34 is at once attracted. See Shahadat khan's case PLD 1969 SC 158, J.M. Desai's case AIR 1960 SC 889, Banwarilal's case AIR 1956 All. 341. Majeed's case 1971 SCMR 693, Imam Bakhsh's case PLD 1983 SC 35. It is an admitted fact that accused party had come at the spot along with their respective weapons. The respondent No.2 and principal accused Muhammad Asghar had inflicted injuries to the deceased with their respective weapons, therefore, section 34 is attracted in the case in hand in all respects. See I Amir's case 1987 SCMR 270 and Mahbub Shah's case AIR 1945 PC 118. The learned High Court erred in law to decide the case on wrong premises without adverting to the ingredients of section 34, P.P.C. and the facts of the case in hand and the law laid down by tell this Court in various pronouncements. See Hayat's case PLD 1957 SC (Pak.). 207. It is a settled law that in order to determine the intention of a person qua the commission of offence, it is very rare phenomenon that one can expect to find positive affirmative evidence, generally speaking, the intention is to be gathered from the conduct of the person and the attending circumstances. See Bahar's case PLD 1954 FC 77. The evidence on record in the case in hand clearly depicts that all the accused came fully prepared and that common intention to take the revenge from the deceased. Therefore, they were held vicariously liable for the murder of Mukhtar deceased. See Seraj Mia's case 1969 SCMR 490, Muhammad Arshad's case PLD 1996 SC 122 Muhammad Siddiqui's case 1993 SCMR 2114 and Khushi Muhammad's case 1969 SCMR 599."
10. As far as non-production of minor Child Ayan in the trial Court is concerned, suffice to state here that the statements of all the prosecution witnesses are confidence-inspiring and ring true, while the abductee was 4-years of age at the time of his abduction and a child at this stage rarely can identify his blood relations, even cannot utter the exact names of his blood relations and also cannot identify the exact location of his house and being so innocent he is unaware of his abduction by the culprits, otherwise he could have resisted and that was the reason that the petitioners planned to abduct a minor child so that he can be adjusted into their lives easily.
According to hadith of Holy Prophet Muhammad (SAW), "teach your child to pray, when he becomes seven, and punish him for not obeying it from the age of ten". Thus, it would be un- justice to expect from a child of 4-years to narrate the story of his abduction before the Court and to identify the culprits in the Court, when at that age it cannot be expected from him to pronounce the names of his parents correctly. Admittedly, the petitioners soon after the occurrence left their house and shifted to Quetta, from where the child was recovered from their possession and the petitioners have failed to bring on record any single iota of evidence to justify the custody of minor from their possession which establishes their ill intention and even otherwise the PWs have recorded their statements in line with each other, they have no past enmity or ill-will against the petitioners. Thus, under the circumstances the non-production of child being innocent was immaterial and this sole ground cannot help the culprits.
11. Throughout the case, the petitioners have failed to take any specific plea with regard to their false implication. In their examination under Section 342 Cr.P.C., they simply denied the allegations and even did not record their statements on oath and also not produced any witness in their defence, whereas on the other hand the prosecution has produced direct solid evidence, hence the direct evidence so produced by the prosecution cannot be brushed aside merely on the basis of bald denial of the petitioners. Both the Courts below have rightly and properly appreciated the evidence in its true perspective. The learned counsel for the petitioners has failed to point out any misreading and non-reading of evidence and major contradiction in the statements of PWs or any material illegality or Gly in the impugned judgments, warranting interference by this Court For the above reasons, the petition being devoid of merits is dismissed.