' The appellant was arrested on 23-10-1991 by Police of Police Station City Gojra in case of F.I.R.
No,383/91 under section 364-A/511, P.P.C. The appellant was tried by the Additional Sessions Judge, Toba Tek Singh and charged him under section 364-A, P.P.C. And convicted him on 24-6-1992 for the offence under section 363, P.P.C. And was sentenced to undergo R.I. For five years with a fine of Rs,5,000. In case of default the appellant was to undergo further R.I. For one year. He was given the benefit of section 382-B, Cr.P.C.
2. The appellant was charged on 22-6-1992 for the offence under section 364-A, P.P.C. The charge was put to him. The appellant denied the charge and claimed trial.
3. During trial prosecution has produced Nazir Ahmed, M.H.C. Who had recorded the formal F.I.R.
Exh.PA on the receipt of complaint; Muhammad Ashraf P.W.2, the complainant who made statement Exh.PA. To Muhammad Iqbal P.W.6; Ali Muhammad P.W.3 and Muhammad Aslam P.W.5 were the eye-witnesses whereas Mst. Nazia minor was produced as P.W.4. The trial Court believed P.W.3, P.W.4 and P.W.S. P.W.3 and P.W.5 were eye-witnesses who had seen the appellant taking away the minor P.W.4.
4. P.W.4 was a minor of seven years of age on the date she was examined and the date of occurrence was almost eight months earlier. The minor was put certain questions to know as to whether she could be a competent witness to make the statement. It would be interesting to note down the questions and answers:- Q.No,l. Do you know God Almighty?
Ans. Yes.
Q.No,2. Do you know Holy Prophet (peace be upon him)?
Ans. Yes.
Q.No,3 Do you know Kalma?
Ans. Yes the child has recited the Kalma Tayyaba Q.No,4. Do you know that tell lie a sin?
Ans. Yes, the child has replied in positive.
Q.No,5. Do you know to tell truth is.Good?
Ans. Yes, the child replied in the positive.
Q.No,6. Where are you standing today?
Ans. I am standing on a chair in the Court room.
Q.No,7. Why you have come in Court today?
Ans. To make the statement.
5. Suffice it to say that all the questions were suggested and may be if those questions were put to a four years child answers would be the same. After perusing the questions and answers I am satisfied that the questions put to the child witness did not amount to bring out any I.Q. Of the minor and it is common knowledge that if you put two alternates to the minor the latter part of the question could be attorned to. The test to which the witness was put was not sufficient to arrive at a conclusion. That the minor could be a competent witness and on that score I exclude the evidence of P.W.4 from consideration.
6. P.W.2 Muhammad Ashraf was the father of the minor and he had not seen the occurrence. He simply was the first informant on the basis of information that he received regarding the alleged abduction of his daughter. The source was not disclosed by him.
7. There remains only two witnesses to be considered. P.W.3 has made the following statement relevant to the commission of the offence:-- "The accused present in Court was taking away Mst. Nazia aged about 7 years by dragging."
' Muhammad Aslam P.W. 5 made the following statement against the appellant:-- ".... The accused present in Court caught hold Mst. Nazia P.W. From her right shoulder."
8. P.W.6 was Muhammad Iqbal, A.S.I. Who recorded the statement of Muhammad Ashraf P.W.
Exh.PA. Abdur Rehman appellant was produced before him. Mst. Nazia P.W. Was also with them. He formally arrested the appellant and took into possession articles belonging to the appellant vide memo. Exh.PB. Those articles have not been produced in Court as noted by the trial Court and cannot be given any consideration. The Investigating Officer inspected the spot and prepared the site plan Exh.PC. And challaned the appellant.
9. There is a very scanty evidence on the file. The offence alleged against the appellant entailed capital punishment. Mst. Nazia was introduced as a prosecution witness in the case for the first time on 22-6-1992 when an application was made by the Special Public Prosecutor and the Court not only allowed her examination as a prosecution witness but also recorded her statement the same day without affording reasonable opportunity to the counsel for the appellant to seek instructions and prepare his brief. The expeditious trial and disposal of cases are appreciable but it should not happen at the expense of justice. The proceedings adopted in the case are hasty and I am afraid to remark that the trial Court adopted hasty steps. The accused, who was a poor man and had not engaged his own counsel was thus prejudiced. The Courts shall take proper care to afford proper opportunities and should nor, give any impression of undue haste or rush up with the disposal at the expense of its fair name. There appears to be absolutely no motive on the part of the trial Court but anxiety to dispose of cases should be bridled with care and caution.
10. The statements of P.W.3 and P.W.5 are contradictory. P.W.3 states that that was the appellant taking over the minor by dragging, whereas P.W.5 states that the appellant had caught hold of the minor from right shoulder. The victim raised hue and cry and they caught hold of the appellant .And took him to the police station. This was all the evidence against the appellant in the case.
Another circumstance which requires due notice was that none of the witnesses appeared of their own in the Court. P.W.2, P.W.3 and P.W.5 were brought to the Court in compliance of the non- bailable warrants of arrest issued by the Court on 21-6-1992. The coercive measures adopted by the Court also show the quantum of haste that was employed. The charge was framed on 22-6- 1992. The evidence was recorded on 22-6-1992, and the trial was almost concluded the same day except that the evidence of P.W.6 could not be recorded which was recorded on 24-6-1992. On 24- 6-1992 the statement of Investigating Officer was recorded. The statement of, the accused/appellant under section 342, Cr.P.C. Was also recorded the same day and it appears that without hearing the arguments of the learned counsel for the defence the judgment was announced.
11. The undue haste amounted to unholy haste in the circumstances of the case and I am of the view that undue haste by trial Court had predetermined the case of the appellant.
12. As referred supra the evidence of P.W.3 and P.W.5 is scanty and contradictory and was not sufficient to warrant conviction. The statement of P.W.4, the minor has already been excluded from consideration and in view of the above the prosecution has failed to prove its case beyond reasonable doubt. The appellant is given the benefit of doubt. The appeal is accepted. The conviction and sentence passed by the trial Court against the appellant on 24-6-1992 is set aside.
The appellant is acquitted of the charge and be released forthwith if not required in any other case.