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Criminal Appeal No. 730 of 1970, heard on 6th April, 1981.

------S. 410 read with Penal Code (XLV of 1860), S. 363-Appeal (cri minal)-Benefit of doubt-Accused convicted for offence of kidnap ping a young boy but victim not disclosing such a mishap even to his father-Occurrence although taking place in a densely populated area with shops around yet no shopkeeper of area pro duced by prosecution in support of its case-Accused given benefit of doubt and acquitted, in circumstances.---[Benefit of doubt].

Nazir Ahmad Shami for Appellant.

Muhammad Arshad Khan for the State.

Date of hearing : 6th April, 1981.

Muhammad Shafi (23) son of Muhammad Din, caste Mughal, resident of Sialkot was tried by the learned Sessions Judge, Sialkot, under section 364-A of the Pakistan Penal Code who, by his judgment, dated 3^rdOctober 1970, convicted him under section 363, P. P. C. and sentenced him to rigorous imprisonment for five years and a fine of Rs. 1,000 or in default in the payment thereof to suffer further R. I. for four months. He has appealed.

2. The case of the prosecution was that on 11^thJune, 1965, at about 5-15 p.m. Muhammad Sarwar complainant and Muhammad Aslam P.W., son of Muhammad Hussain, were present at the shop of Abdul Ghani in Mohallah Arainyan, Sialkot, when the appellant came there carrying a boy, aged 5-6 Years. The boy started weeping and when Muhammad Sarwar complainant looked towards the appellant, his face turned pale. He enquired from him as to who that boy was, to which he could not give any satisfactory reply. The boy told the complainant that when he was playing near the Fort the appellant lifted him. The appellant thereupon confessed his guilt before the complainant and Muhammad Aslam P, W., son of Muhammad Hussain and requested to be forgiven, but they took him to the police station and produced him there along with the child, namely, Khalid. A case was registered on the report of Muhammad Sarwar complainant.

3. The appellant pleaded not guilty to the charge and denied the prosecution allegations. When asked why this case against him, he made the following statement:-

"I went to the shop of Abdul Ghani, to purchase Cigarettes. Muhammad Aslam and Muhammad Sarwar P. Ws. were present there. They picked up a quarrel with me. Both of them happen to be bad characters. They threatend to teach me a lesson for picking up a quarrel with them and forcibly took me to the police station where they involved me in this false case. Khalid C. W. was not with them when I was forcibly taken to the police station."

He tendered his certificate of Intermediate Examination (Exh. D. 1) in defence.

4. In, support of its case the prosecution examined three eye-witnesses, namely, Muhammad Sarwar, Muhammad Aslam, son of Muhammad Hussain and Muhammad Aslam, son of Barkat Ali. The child, namely. Khalid, and his father Mazhar Hussain were examined as Court witnesses.

5. The learned trial Judge disbelieved Muhammad Aslam, son of Barkat Ali and, it appears, relying on the evidence of Muhammad Sarwar and Muhammad Aslam, son of Muhammad Hussain he convicted and sentenced the appellant as mentioned above.

6. I have heard the learned counsel for the parties and gone through the record. Muhammad Sarwar, P. W. admitted that he was asked to serve in the Police Lines because the Superintendent of Police suspected him for keeping company with the scoundrels. Muhammad Aslam, son of Muhammad Hussain (P. W. 2) admitted that he was a friend of the com plainant and lived in his Mohallah. He also admitted that the place between the Fort and shop of Abdul Ghani was densely populated. No shop-keeper of that area was produced by the prosecution in support of its case. Muhammad Aslam (P. W. 2) further stated that the accused confessed his guilt in the presence of nearly one hundred persons, but none of them was produced to prove the confession. Appearing as C, W. 2 the child namely, Khalid, stated that he did not remember as to who had abducted him and when he was abducted because he was a small child at that time. His father Mazhar Hussain (C, W. 1) stated that Khalid did not narrate him the incident of abduction. He saw the accused at the police station but no body told him that he was the person who had abducted his son. There is sufficient force in the argument of the learned counsel for the appellant that if Khalid had been abducted he must have narrated the incident to his father and he must also have been informed by some one at the police station that the appellant was the abductor. In the circumstances. I am of the view that the case of that prosecution is not tree from doubt and it would be unsafe to maintain the conviction of the appellant on the evidence of Muhammad Sarwar and Muhammad Aslam, son of Muhammad Hussain P. Ws.

7. For the foregoing reasons, I allow this appeal, set aside the con viction and sentence of the appellant and acquit him of the charge, is on bail. He shall be discharged from his bail bond.

Appeal allowed.

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