MUHAMMAD MUNIR KHAN-J. This Jail appeal arises from the judgment of learned Additional Sessions Judge Gujrat whereby he on 28.2.1990, while acquitting Ahmad Din appellant of the charge under section 364-A P.P.C convicted him under section 363 P.P.C for kidnapping Mst: Saima aged 5 years on 16.3.1989 at 4.30 P.M. In village Kasori Khurd of Police Station Pahrian-wala, Gujrat, and sentence him to 5 years R.I. And a fine of Rs. 2000/-, in default thereof six months S.I. He was also given benefit of the provisions of section 382- B Cr.P. C.
2. The prosecution case is that at the eventful time Ghulam Muhammad complainant P.W-2 with his daughter Sania aged 5 years had gone to participate in the fair at the shrine of Pir Muhammad Shah in the village. However, Mst. Saima disappeared in rush. So, he alongwith Shabhir Ahmad and Abdul Rehman started searching her. During the search they found Ahmad Din appellant running away carrying Mst. Saima on his shoulder. They apprehended him there and took the child from him and thereafter produced him at the police station where a case under section 364 P.P.C was registered on the report of Ghulam Muhammad P.W. 2, father of the child. After the investigation, the challan was submitted in the court. The appellant was charged under section 364-A Cr.P.C He denied the charge and claimed to be tried.
3. To prove its case prosecution produced 4 witnesses. Ghulam Muhammad P.W.2 and Abdul Rehman P.W.3 have given the ocular account of the occurrence. They claim to have seen the appellant taking away Mst. Saima aged 5 years with him. They supported-the prosecution case as stated above. Muhammad Sarwar AS1 P.W.1 recorded the FIR EX.PA. Muhammad Hussain S.I., P.W.4 had investigated the case.
4. When examined under section 342 Cr.P.C., the appellant denied all the incriminating circumstances. He gave evidence on Oath in disproof of the charge against him. The appellant produced Riaz Ahmad D. W.l in defence, who stated that the appellant was falsely involved at the instance of one Riaz Shah. Ahmad Din appellant appearing in his defence stated on Oath that he was falsely involved by Riaz Shah.
5 Believing the two eye-witnesses produced by the prosecution, the trial Court has convicted and sentenced the appellant as stated above.
6 This is Jail Appeal. I have gone through the evidence on record with the assistance of the learned counsel for the Slate. I have also considered the submissions made by him carefully. I find that according to the prosecution daughter of the complainant namely Mst. Saima aged 5 years got separated from Ghulam Muhammad complainant due to the rush in the fair being deliberated on the shrine of Pir Muhammad Shah. So she was not originally kidnapped by the appellant. In the peculiar circumstances of the case, I feel that although the appellant has not stated so, yet a reasonable possibility of his lifting the child who had been separated from her father in the fair, innocently and of the exaggeration of his conduct of running away to make his act criminal, cannot be excluded. If two inferences can be drawn from a particular situation then the inference which is beneficial to the accused/appellant has to be preferred. This being the position, I feel that the prosecution has not been able to prove its case of kidnapping against the appellant beyond reasonable doubt. No doubt, the eye-witnesses are independent, but the absence of enmity with the accused/appellant does not stamp the statement of a witness with truth and from the peculiar circumstances of the case, the accused/appellant appears to be entitled to the benefit of boubt, he shall get it, not as a matter of grace and concession but not as a matter of right.
7. Pursuant to the above discussion, while giving him the benefit of doubt, the appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other ease.