KHALIL-UR-REHMAN RAMDAY, J. - Maqbool and Zubair were tried by a learned Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act of 1975 at Faisalabad for having kidnapped Shabhir Hussain aged about 10/11 years for the purpose of extorting money from the father of this kidnapee. Through its judgment dated 5.8.1991, the said learned Court acquitted Zubair and finding Maqbool guilty of the said charge, convicted him u/S. 365 P.P.C, and punished him with imprisonment for life. The said convict impugns, through Crl.A.No.89/J-91, the said conviction and punishment recorded against him.
2. The alleged kidnapping had taken place on 4.9.1990 from outside the school where the said alleged kidnapee was studying, located in the area of Chak No.229/G.B. About five miles from Police Station, SAT YANA of District Faisalabad and the said occurrence had been reported by the father of the said alleged kidnapee, namely, Ibrar Hussain to Muhammad Hassan, S.I. (P.W-5) on 6.9.1990 at about 1.00 p.m. Ibrar Hussain complainant had mentioned that he was a resident of Chak No.229/G.B. And was running a grocery shop. He had added that about ten days prior to the alleged kidnapping, he had found an envelop lying in the court-yard of his house when he got up in the morning which carried a letter saying that if he did not send Rs.10,000/- to OTHER GRAVEYARD within five days, then his son would be kidnapped. He had further claimed that about two days prior to the lodging of the report with the police, the complainant's son, namely, Shabhir Hussain aged about 11/12 years went out of the house for playing but did not return till the evening which alarmed the complainant who started a search for his said son during the course of which, Manzoor Hussain paternal uncle of the kidnapee (given up) and Abdul Jabbar, a son of Manzoor Hussain (given up) informed the complainant that they had seen Maqbool appellant and Zubair accused taking away Shabhir Hussain with them. The complainant had further reported that when he reached the above-mentioned grave-yard with Manzoor (given up) and Abdul Jabbar (given up), they saw Maqbool appellant armed with a REVOLVER and Zubair accused empty handed sitting under a tree with the alleged kidnapee and on his questioning the appellant, asked the complainant to pay the money and to take' away his son otherwise, they will murder the alleged kidnapee. The complainant had further disclosed that he entreated the appellant saying that he was a poor man and could not arrange the money and that he would pay the amount in question some-times later at which the appellant handed over the alleged kidnapee to the complainant whereafter the alleged kidnapee informed the complainant that the appellant had enticed him away and had taken him to the railway station and had then taken him to various places.
3. During the course of investigation, Zubair accused was arrested on 25.9.1990 while Maqbool appellant was arrested on 26.9.1990 whereafter a REVOLVER P-1 with two live bullets P-2/1-2 were recovered from him vide Emilio. Exh.PB.
4. When confronted with the prosecution case u/S. 342 Cr.P.C., Maqbool appellant pleaded that he had been falsely involved in the case because a paternal uncle of the kidnapee, namely, Manzoor Hussain (given up) had asked for the hand of his sister and on refusal he had been falsely implicated in the case.
5. Shabhir Hussain kidnapee entered the witness-box as P.W.2 and deposed that on the day of occurrence he was playing outside his school after the school hours when Maqbool appellant and Zubair accused asked him to accompany them to the railway station on the pretext that his father had called him to that place; that on reaching the railway station and on asking about his father, Maqbool appellant took a pistol from Zubair accused and placing the same on the temporal area of. The kidnapee asked him to accompany them to the grave-yard which he did. It has also come on record that Maqbool appellant is a nephew of the CHACHI of the alleged kidnapee and is thus closely related to him.
6. The prosecution story does not inspire confidence. It is not believable that the culprits would take the kidnapee from the railway station to the graveyard with a pistol put on his head and nobody would notice the same or intervene on the way. Especially when the culprits of the alleged kidnapee were covering this distance on foot. It is strange that a paternal uncle, namely, Manzoor Hussain (given up) and a paternal cousin, namely, Abdul Jabbar (given up) would see the culprits taking the alleged kidnapee and would not intervene and would instead go and report the matter to the complainant. These two witnesses who were the only ones who had seen the alleged taking away of the kidnapee by the appellant did not enter the witness-box to support the prosecution case and were thus given up. It is also strange that the culprits would take such a big risk of kidnapping Shabhir Hussain and would then leave him only on the request made by the complainant and his elder. It is also not believable that having kidnapped the young boy, the culprits would keep him in the graveyard which is a place open to public and would not conceal him at some secret place where they would not be exposed to public. The envelop P-3 and the letter P-4 were never produced during the course of investigation nor were they sent to the Handwriting Expert to determine as to who had written the same.
7. In the circumstances, we find that the prosecution case is not free from doubt and the benefit of the doubts which have crept into the prosecution case, must be resolved in favour of the appellant.
8. Consequently, Crl. Appeal No.89/J-91 is allowed. The impugned conviction and punishment recorded against Maqbool appellant are set-aside. He is acquitted of the said charge and shall be set at liberty forthwith if not required to be detained in any other case.