1. ' Z. C. VALIANI, J.-State and applicant (complainant) in above Acquittal Appeal and Criminal Revision Application respectively, being aggrieved by judgment, dated 19th July, 1980 of the learned Magistrate 1st Class, Court No, 1, West, Karachi, in Case No, 477/75, by which the said learned Magistrate acquitted the respondent Muhammad Rafeeque for offence under section 363, P. P. C., have filed the above Acquittal Appeal and Criminal Revision Petition, respectively, on the following facts and grounds :- ' The prosecution story briefly stated is, that the complainant Azhar Rasheed lodged report with police Nazimabad, on 15th September, 1975 at 14-40 hours, that he was residing in House No, 1B/53 Iqbal Town, Karachi, with his parents and his sister Mst. Asmat Tahira was also residing with them.
2. His sister Mst. Asmat Tahira was married to one Muhammad Sharif in May, 1973 but in November, 1973 she was divorced and she began to live with them. She had one child from Muhammad Sharif and that child was of one and a half years on that day. Muhammad Sharif and his family member' tried for so many times to kidnap that child. On that day at about 10 a.m. His sister had gone to school and her son namely Muhammad Adnan was playing in the compound of their Bungalow. All house inmates were busy with work in the house and suddenly they heard the weepings of the said child. He and Javed Akhtar came out and saw that Muhammad Rafeeque (respondent) was running away out of Bungalow compound, kidnapping that minor Muhammad Adnan. They also chased him. They saw Hakim Abdul Shakoor and Mehboob Ali Khan and other persons coming there and they surrounded the respondent Muhammad Rafeeque and caught him and took him to Thana, The police after completing investigation, challaned the respondent in the Court.
3. ' Formal charge under section 363, P. P. C. Was framed against respondent, on 12th February, 1976 and he pleaded not guilty to the charge.
4. ' The prosecution examined Azhar Rasheed complainant Exh. 3, P. W. Hakim Abdul Shakoor Exh. 4, P.
5. W. Mst. Asmat Tahira mother of boy Exh. 6, P. W. Mehboob Ali Khan Exh, 7, P. W. Choudhry Abdul Rashid grandfather of boy Exh. 8 and P. W. Muhammad javed Exh.
6. 9.
7. ' The statement of respondent was recorded under section 342, Cr. P. C., wherein he denied the allegations. He gave his brother Chaudhri Muhammad Sharif, father of the boy in his defence and this defence witness was examined.
8. ' The learned trial Court taking into consideration the evidence adduced before it, vide impugned judgment, dated 19th July, 1980 acquitted the respondent and consequently State as well as complainant have filed the above petitions, on the grounds mentioned in their respective petitions.
9. We propose to dispose of the above matters by this common judgment, as they arise out of common impugned judgment, dated 19th July, 1980.
10. ' The learned Advocate for the applicant and complainant in support of the above matters submitted, that the learned trial Court has wrongly considered independent P. Ws. As chance witnesses and discarded their statements, which fully corroborated the complainant and other eyewitnesses. In support of his contention the learned counsel for the complainant relied upon cases reported in PLD 1978 SC 114, 1979 P Cr. L J 1078 and 1980 P Cr. L .1 629.
11. ' The learned Advocate appearing for the respondent on the other hand submitted, that the learned trial Court has given cogent reasons for disbelieving the statements of prosecution witnesses and furthermore, it cannot be said, that the impugned judgment is based on complete misreading of the statements and contrary to the evidence on record. In view of this the learned counsel for the respondent submitted, that the scope in the above matters for interference is very much limited and both State as well as complainant have failed to make out any ground for such interference. In support of his contentions, the learned Advocate for the respondent has relied upon cases reported in A 1 R 1934 P C 227, PLD 1964 SC 422, PLD 1964 Kar. 356 and PLD 1967 Kar. 440 as well as on cases reported in 1972 P Cr. L J 1259 and 1976 P Cr. L J 443 and further submitted, that since the I.
0. And police officer, who recorded the F.
1. R. Was not produced or examined before the learned trial Court, on this ground alone, the learned trial Court could have justified in acquitting the respondent, in addition to other cogent reasons given by the learned trial Court.
12. We have carefully considered the above submissions made by the learned Advocates before us and have gone through record proceeding of the learned trial Court as well as cases cited by the learned counsels of the applicant and complainant before us.
13. ' Prosecution case rests upon the statements of P. W. Azhar Rashi (complainant), P. W. Javed, P. W.
14. Hakim Abdul Shakoor and P. W. Mehboob Ali Khan, the alleged eye-witnesses of the alleged kidnappin and arrest of the respondent with child.
15. ' P. W. Azhar Rashid and P. W. Jawed are closely related to P. W. Mst. Asmat Tahira, the mother of the alleged kidnapped boy. It is an admitted position, that on account of matrimonial disputes between Mst. Asmat Tahira and her ex-husband D. W. Ch. Muhammad Sharif, whic ultimately, soon after the alleged incident resulted divorce of the parties, and in view of the fact, that there was delay in lodging of F. I. R. And non-production of the alleged kidnapped boy at police station, alongwith respondent, it would be unsafe to rely on their statements, without independent corroboration, as laid down in many cases by Hon'ble Supreme Court and this Court. PLD 1981 Kar.
16. 1 decision of this Court also fully supports our this conclusion.
17. ' Learned Advocates of State and complainant for purposes of corroboration have relied upon the statements of P. W. Hakim Abdu Shakoor and P. W. Mehboob Ali Khan and submitted, that learned trial Court has wrongly discarded their statements as chance witnesses. We have carefully gone through their statements and find their statements not convincing regarding their presence, at the alleged time of arrest of the respondent, with boy, as alleged by prosecution. P. W. Mehboob Al Khan, is not the resident of locality nor he works near the alleged vardat. According to him, he worked at petrol pump, but admitted that he did not know the name of the said pump, though he had been working for years, on the said petrol pump. P. W. Hakim Abdul Shakoor on his own statement had come to vardat to see some patient. He is definitely also a chance witness and his statement does not inspire confidence an all. He also stated, that respondent was taken away in Taxi, but do not say anything about what happened to the kidnapped boy. Both the P. Ws.
18. Admitted, that many people of the locality had gathered, at the time of alleged arrest of respondent, but prosecution did not produce on actual resident of vardat, in support of its case, which is significant. In view of this, we see no reason to disagree with the conclusions and finding of learned trial Court, that both these P. Ws. Were chance witnesses and as such the presence was doubtful and consequently for having discarded their statements. Once statements of these alleged two independent P. Ws. Are discarded, we are left with the statements of 2 P. Ws., who a closely related Mst. Asmat and inimical to respondent on account o matrimonial disputes between the brother of respondent and P. W. Asmat Tahira, the mother of the alleged kidnapped boy, as hereinbefore mentioned and as such it would be unsafe to rely on their uncorroborate statements, especially on account of delay in lodging of F. L R., which in our opinion has not satisfactorily been explained and for non-production of kidnapped boy, alongwith respondent at police station. This view fully supported by D. B. Decision of this Court reported in PLD 1981 Kar.
1. In addition to this neither 1.
0. Nor Police Official who recorded the F. L It. And conducted investigation were examined by prosecution a trial and consequently respondent was seriously prejudiced and in our opinion trial was vitiated on this ground, as well. Cases reported in 1972 P Cr. L J 1259 and 1976 P Cr. L I 443 are fully applicable to the facts of present case, in this connection. We are in respectful agreement with these two judgments, for the reasons given in the said judgments.
19. ' We find cases cited by the learned Advocate for respondent are fully applicable to the present case, whereas cases cited by the learned State counsel and counsel for the complainant are based on different facts and as such not applicable to the facts of the present case. In view of our above conclusions, we see no reason to interfere with the impugned judgment, dated 19th July, 1980 of the learned trial Court.
20. ' Therefore, we dismiss the above Acquittal Appeal as well as Criminal Revision Petition and discharge the bail bonds executed by respondent in both the above matters.