QAISAR AHMAD HAMIDI, J.- Appellant Abdul Jabbar was tried by Mr. Allah Bux Memon, Judge, Special Court, Suppression of Terrorist Activities, Hyderabad, for the offence under section 365-A PPC, who found him guilty and vide judgment dated 21st May 1991, sentenced him to imprisonment for life and forfeiture of his property. By this appeal filed under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the appellant has challenged his conviction and sentence.
2. Mst. Anwari Begum, a widow resided with her brother Jehangir in a house situated in Preetabad, Hyderabad. She has got a son by name Kamran who was about 6/7 years old when this incident took place. It is alleged that on 11.11.1989 Kamran disappeared after he had gone out of the house to play with his friends. A search was made for him, but with no result. Jehangir, brother of Mst. Anwari Begum returned from Karachi on 13.11.1989 when he was informed about the incident. He went to Phuleli P.S. For report but was directed .To come after some clue was found. On 18.11.1989 a letter was received by Jehangir from Turbat, Baluchistan, wherein the appellant is said to have desired to marry with Mst. Firdous daughter of Mst. Anwari Begum who had also admitted to have kidnapped Kamran and threatened to kill him if the hand of Mst. Firdous was not given to him. Jehangir took this letter to Phuleli P.S., where his report was registered (Crime No.174 of 1989), under section 364-A PPC. It is the case of the prosecution that the appellant who is distantly related to Mst. Anwari Begum wanted to marry her daughter Mst. Firdous and in order to put pressure upon her he had kidnapped Kamran, a minor boy of about 6/7 years of age. Muhammad Juman A.S.I, recorded the F.I.R, lodged by complainant Jehangir. On 19.11.1989 the police officer inspected the place of occurrence in presence of Muhammad Shabhir and Muhammad Iqbal. On the same day at 7.30 A.M. He arrested the appellant near Mirza Petrol Pump, Hyderabad and recovered Kamran from his custody. Such memo was prepared in presence of same mashirs. Kamran was handed over to complainant Jehangir who was present with the police party. After usual investigation the appellant was sent up to stand trial.
3. The appellant pleaded not guilty to the charge framed against him under section 365-A PPC, and claimed a trial. At the trial the prosecution examined Jehangir (P.W-1), Mst. Anwari Begum (P.W-2), Muhammad Yousif (P.W-3), Muhammad Iqbal (P.W-4), Muhammad Shabhir (P.W-5), and Muhammad Juman A.S.I. (P.W-6).
4. The appellant met the charge with a denial professing innocence. He has disputed the contents of the letter (Ex.6) by stating that he is an illiterate person. The appellant did not step into the witness box. He also led no defence.
5. On the assessm ent of evidence available on record the learned Judge found the appellant guilty and convicted him accordingly. It is in these circumstances that the present appeal has been filed.
6. The evidence against the appellant was three-fold. Firstly, there was the evidence of letter (Ex.6) wherein the appellant is said to have confessed his guilt. Secondly, there was the evidence of motive, which too has come on record through letter (Ex.6) Thirdly, there was the evidence of recovery of Kamran from the custody of appellant.
7. Complainant Jehangir (P.W-1) has produced the letter (Ex-6) alleged to have been sent by the appellant from Turbat situated in the Province of Baluchistan, wherein the appellant is said to have confessed his guilt. There is, however, nothing on record to connect the appellant with this letter.
The appellant who has put his L.T.I. On his statement recorded under section 342 Cr.P.C, has claimed to be an illiterate person. Admittedly no effort was made by police to trace the address of Turbat to connect the appellant with this letter. In fact no effort was made to prove the contents of letter (Ex.6) through any of the recognised mode. What, then, is the value of such letter? In the elegant words of B.Z. Kaikaus, J expressed in Messrs Jutoi Industries v. Messrs Continex Corporation, reported in P.L.D. 1959 Karachi 35.
"It is urged on behalf of the petitioner that these letters had not been proved and therefore should not be made the basis of any finding. Learned counsel for the opponent is unable to refer to any evidence proving these two letters. The letters had been simply produced without any evidence as to the hand-writing or the signature on the letters. However there is even a further difficulty in the way of the opponent. Supposing that the letters were proved they do not at all establish that there was a purchase and a sale. The letters are not evidence of the facts stated. It is only a statement made by a person in the witness-box that is an evidence unless the case falls under some clause of section 32 of the Evidence Act."
8. Except the letter (Ex.6) which is already discarded by us, there is no evidence on record to even faintly suggest that the appellant was interested to marry Mst. Firdous daughter of Mst. Anwari Begum (P.W-2) and in order to put pressure upon her he had kidnapped Kamran. The evidence recorded was very skimpy and scrappy so, that it is not clear what happened after Kamran was lost and why Mst. Anwari Begum arranged the marriages of her t\yo daughters during this period when her son Kamran was still missing. In criminal cases, proof of motive is never indispensable, but in estimating probabilities the existence of motive or its absence is a matter of some importance.
9. Now we are left with the evidence of recovery of Kamran from the custody of appellant. The evidence led by the prosecution to prove this aspect of the case is equally worthless. Muhammad Juman A.S.I. (P..W-6) who has made the alleged recovery of Kamran on 19.11.1989 at 7.30 A.M. Has testified as follows:- "On spy information, I alongwith the complainant went to Mirpurkhas road. When we came to Mirza petrol pump the complainant pointed out at the accused who was standing on the road alongwith the boy. We were in police van. The accused seeing us started running. We followed him and caught him alongwith the boy. He disclosed his name as Abdul Jabbar. I arrested him and recovered the boy."
10. The mashirnama of recovery (Ex-12) which was prepared in presence of mashirs Muhammad Shabhir and Muhammad Iqbal is also on the same line. However, this version of Muhammad Juman A.S.I. (P.W-6) on the point of alleged recovery of Kamran from the custody of appellant is contradicted by almost all the witnesses examined by the prosecution. Complainant Jehangir (P.W-1) who according to police officer was present at the time of recovery has deposed as under:- "On 19.11.1989 I was informed that police had recovered the boy. I went to the Thana and the boy was handed over to me."
11. Mst. Anwari Begum (P.W-2) who is mother of Kamran has, however, come out with a new story which is as follows:- " After 8 days my boy was brought by the relatives of accused Jabbar. My brother Jehangir brought the boy from the relatives of accused. Again says the accused had taken the boy to Thana and produced him before police."
12. Muhammad Yousif (P.W-3) who is also a brother of Mst. Anwari Begum has contradicted all the above witnesses by stating that Kamran was recovered from the house of the sister of appellant, where he was brought by the appellant.
13. Muhammad Iqbal (P.W-4) a relative of complainant Jehangir who is a mashir of recovery has no supported the case of the prosecution. Muhammad Shabhir, the co-mashir (P.W-5) who is also related to complainant Jehangir does not agree with any of the above witnesses on the point of recovery of Kamran. The manner in which Kamran was recovered is unfolded by him before the trial Court in the following words:- "The boy Kamran was secured by me and one other person in presence of so many neighbours from the house of one Ghaffar, who is relative of present accused. We had produced the boy before the police at the police station. We had recovered Kamran. The present accused was also there. We had caught hold of him and taken him to the Thana alongwith the boy."
14. The evidence of all the six witnesses examined by the prosecution on the point of recovery of Kamran from the custody of the appellant is inconsistent and does not inspire any confidence. As observed in the case of Muhammad Luqman v. The State, reported in P.L.D. 1970 S.C. 10," a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Superior Courts, will be reduced to a naught."
15. Quite admittedly Kamran who was about 7 or 8 years old at the time when the case proceeded against the appellant was not examined in this case. There is nothing on record to show the reason as to why he was not put in the witness box. The evidence of Muhammad Yousif (P.W-3) makes it clear that " Kamran had given him the facts of the case. Article 3 of the Qanoon-e-Shaadat, 1984, which corresponds to section 118 of the Evidence Act 1872, (since repealed) provides in clear terms that the evidence of a child witness is as good as that of any other witness, but it will be considered so only if the Court regards such testimony as reliable. It has been very rightly pointed out by Mr. Justice Brewer in George L. Wheeler v. United States (1895) 159 U.S. 523), that there is no precise age which determines the competency of a witness. He observes that:- "This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood as well as of his duty to tell the former. The decision of this question rests primarily with the Trial Judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the Trial Judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous."
(Reproduced with approval in Field's Law of Evidence, 10th Edition, at page 5249).
16. It was, therefore, obligatory on the part of the prosecution to have put Kam ran in the witness box to provide an opportunity to the trial Judge to examine him in an attempt to find out if he was a competent witness. It may be added that a child's evidence is not inadmissible merely because no oath was administered to such a witness. The prosecution, therefore, must face the adverse inference arising from this omission.
17. The evidence of Mst. Anwari Begum (P.W-2), who is the mother of Kamran, the alleged victim further reveals that some children had informed her about the kidnapping of her son by the appellant. The names of these children were, however, not disclosed by her. At any rate on the face of this evidence the delay in lodging FIR by about a week is a suspicion circumstance and cannot be brushed aside lightly. The evidence of Mst. Anwari Begum (P.W-2) was tinged with hatred against the appellant and she has undoubtedly spared no efforts to paint him as black as possible.
18. In a criminal case the onus is on the prosecution to prove its case beyond any reasonable doubt and the accused cannot be convicted merely because he has failed to prove any enmity with the prosecution witnesses. The learned Judge has, therefore, gone wrong in convicting the accused on account of weakness of his defence.
19. On consideration of the entire evidence as discussed above, we are fully satisfied that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt. The impugned judgment is, therefore, set aside and the appellant is acquitted. He is in custody and be released forthwith, if not required in any other case.
20. By a short order dated 25th September, 1991, we had allowed this appeal and these are reasons for the said order.