Abher Gul Khan, J. Zahid Hussain (accused/appellant) along with his co-accused namely Mafia Bibi, Razia Bibi, Asia Bibi, Kaneez Fatima, Talib Hussain, Nazir Ahmad alias Baba Neela and Adnan was tried by learned Additional Sessions Judge, Lahore in case FIR No.186 dated 07.05.2010, under section 363 PPC, Police Station Manawan, District Lahore and on conclusion of trial vide judgment dated 09.07.2019 was convicted and sentenced in following terms:- "Under section 363 PPC to undergo rigorous imprisonment for the period of four years along with fine of Rs.200,000/- and in default whereof to further undergo two months S.I. Benefit of section 382-B Cr.P.C was also extended to him.
Challenging his conviction and sentence, Zahid Hussain (appellant) preferred Criminal Appeal No.43770 of 2019, whereas Faqeer Hussain (since deceased and represented by Mst. Nasreen Bibi) preferred Criminal Appeal No.53561 of 2019 against the acquittal of co-accused. I propose to dispose of both the matters together through this single judgment.
2. Precisely stated the case of prosecution, as unveiled by Faqeer Hussain (PW-1) in FIR (Exh.PA/3) is to the effect that on 03.05.2007 when he was sleeping in his house, his minor son namely Muhammad Kareem was abducted from his house. He stated that Mst. Mafia (accused), his sister in law, got developed illicit relations with Zahid Hussain (appellant) and when he forbade her from doing so, she along with other co-accused abducted his minor son for the purpose of obtaining ransom.
3. During trial the prosecution, in order to prove its case against the appellant produced eight PWs including Faqeer Hussain (PW.1), as complainant, Muhammad Nawaz, S.I. (PW.2), Haider Ali (PW.4), Muhammad Aslam, S.I. (PW.5, Saif Ullah, S.I. (PW.6), Muhammad Afzal, A.S.I. (PW.7) and Captain Liaqat Ali Malik/PSP (PW.8), who investigated the case.
4. After the conclusion of prosecution evidence, the learned trial court also examined the appellant under section 342, Cr.P.C. during which questions were asked arising out of the prosecution evidence but he denied almost all such questions while pleading his innocence and false involvement in the case. Appellant neither opt to appear as of his own witness under section 340
(2) of Cr.P.C, nor produced evidence in defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence, the instant appeal.
5. Arguments heard and record perused.
6. Perusal of record reveals that regarding the occurrence which took place on 04.05.2010, F.I.R. was got registered on 07.05.2010 i.e. with the delay of three days. It is noted that complainant during cross examination has himself admitted that distance between the place of occurrence and Police Station Manawan is of 03-kilometers. Therefore, immediately after the incident the matter could conveniently be reported to the police by the complainant but no such effort was made in this regard. Even from the date of occurrence i.e. 04.05.2010 to 07.10.2010 neither complainant appeared before the investigating officer nor made any application for the registration of F.I.R. It is also not proved from record that investigating officer received any information about the occurrence from wireless or any source. I feel no hesitation in holding that the information regarding the incident was imparted to the police by the complainant after a considerable delay and that too after due consultation and deliberation. Thus, a cautious approach ought to be adopted by the Courts for evaluating the evidence. Reliance is placed upon the case reported as Muhammad Jahangir and another v. The State and others (2024 SCMR 1741), wherein the Supreme Court of Pakistan held as under: - "......perusal of record reveals that FIR was lodged after an unexplainable delay of 3 hours despite the fact that the distance of the police station from the place of occurrence was 5 km. The time of occurrence is around 05:00/05:30 pm and the matter is reported at 08:30 p.m. The complainant had a bike that he used to go to the police station. This delay has not been encountered through plausible explanation by the prosecution.
7. It is discernible from the record that initially the case was registered against Mafia Bibi, Razia Bibi, Asia Bibi and their brother namely Mithu, however, during the course of investigation, Faqeer Hussain (complainant) through supplementary statement implicated present appellant with the allegation that Mafia Bibi after kidnaping his son handed it over to Zahid Hussain and who shifted his son on motorbike into the house of Sharafat Ali (co-accused). Besides that, he also implicated accused namely Talib Hussain, Nazar Hussain s/o Wazir Hussain, Haji Fayyaz, Imran, Adnan, Ramzan and Nazeer alias Baba Neela. It is important to mention here that though complainant has implicated as many as sixteen individuals in this case, however, all of them, except the appellant, were either discharged during the police investigation or acquitted by the trial court and despite naming numerous individuals, the complainant has not attributed any specific roles to any of them or clearly identified the actions performed by each accused during the incident. In this regard, the admission made by the complainant during cross-examination is very much relevant who himself admitted that:- I cannot narrate the name of accused who actually abducted my child.
Similarly, Muhammad Nawaz, S.I. (PW.2) during his examination in chief has deposed about the innocence of the accused persons in the following manner:- No evidence could come on the record during the course of investigation against the above said accused persons.
The complainant submitted the written application for the registration of FIR, beside the complainant, no independent witness was produced before me.
8. It is important to note here that only incriminating material put-forth by the prosecution to connect present appellant with the commission of offence is the statement of Mst. Bushra Bibi wife of Sharafat Ali (co-acccused) incorporated by investigating officer in his case diary who deposed that her husband Sharafat Ali and Zahid Hussain brought the minor in her house and handed over it to Mst. Kausar Bibi. Significantly, Mst. Bushra Bibi would have been the best witness for the prosecution to strengthen their case, however, she was not called as a witness to give evidence for the prosecution and nor her any statement under section 161 Cr.P.C. was got recorded by the investigating officer. I have no doubt in my mind that non-associating of Bushra Bibi in investigation process was intentional, apparently to suppress the actual facts of the incident and had she appeared before the police or court, she would not have supported the case of prosecution. While drawing such inference, we are derived by Article 129 illustration (g) of Qanun- e-Shahadat Order 1984, which reads as under:- "129. Court may presume existence of certain facts. The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the public and private business, in their relation to the facts of the particular case.
Illustrations The court may presume:
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
The Hon'ble Supreme Court of Pakistan in the case of Muhammad Rafique, etc. v. State & others (PLJ 2011 SC 191) held as under:- "that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-e-Shahadat Order can fairly be drawn that if PW would have been examined, his evidence would have been unfavourable to the prosecution".
9. So far as the evidence of extra judicial confession made by Zahid Hussain (appellant) is concerned, the evidence of extra judicial confession is always regarded as weak in nature and is generally fabricated in cases where requisite incriminating evidence is lacking. For this good reason, the evidence of extra judicial confession is not considered sufficient for awarding conviction. The Court is also aware of the fact that the whereabouts of minor are still unknown and he is still missing but since the courts are creation of law, hence, have to decide the fate of cases in accordance with available evidence and not being driven through sentiments and emotions. No doubt conviction can be awarded to an accused on the basis of circumstantial evidence but if the incriminating circumstances are so knitted with each other and failure of one link apt to destroy the entire chain. In this case numerous shortcomings and lacunas are noticed which give rise to a reasonable doubt, the benefit of which cannot be withheld from the appellant. Resultantly, while allowing Criminal Appeal No.43770 of 2019, the conviction and sentence of Zahid Hussain (appellant) is set aside and the appellant is acquitted of the charge. He is on bail, his surety stands discharged from liability.
10. In view of my findings recorded above, Criminal Appeal No.53561 of 2019 against the acquittal of co-accused has become infructuous which is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.