1984 P Cr (PLP)

This jail appeal has arisen from the order, dated 24th February, 1979 passed by Sessions Judge, Multan, convicting the appellant under sec tion 364-A, P. P. C. for having kidnapped Mst. Shah Jehan, a minor girl aged 5 years, and sentenced to life imprisonment.

2. The prosecution case briefly is that on 13th April, 1978 at 12 noon Nizamuddin (P. W, 1) went to the shop of Shaukat Ali at Adda Khanewal to get his Rehri repaired. At that time his daughter Mst. Shah Jehan aged 5 years was also with him. She started playing there. After some time the complainant found her missing and started searching her. He combed the whole of Multan city but all in vain. On 15th April, 1978 at 1-00 p. m., Nizamuddin (P. W. 1) and his brother-in-law Muhammad Iqbal P. W. (given up) went to Chowk Kumbaranwala in search of the girl, where they saw the appellant (whose name they subsequently came to know as Abdul Hameed son of Siddique resident of Delhi Gate, Multan) carrying on his shoulder Mst. Shah Jehan wrapped in a cloth. They raised alarm which attracted Muhammad Shafi (P. W. 2) and Manzoor Hussain (P. W. 4), residents of the locality. They apprehended the appel lant and recovered the girl from him. The witnesses then took the appel lant towards the police station but in the way near "Eidgah" they met A. S. I. Muhammad Sadiq (P. W. 5). Nizamuddin father of the girl lodged complaint Exh. P. A. with him, who referred it to the police station, on the basis of which a formal F. I. R. Exh. P. B. was drawn up by Maqbool Ahmad (P. W. 3).

3. The A. S. I. arrested the appellant and from his personal search recovered a cap P. 1 and amount of Rs. 27.94 P. 2 to P. 5/1-87 under memo. Exh. P. C. He prepared a rough site plan Exh. P. E. recorded the statements of Manzoor Hussain, Muhammad Shafi and Iqbal P. Ws. and having completed the investigation challaned the appellant.

4. At the trial, 5 witnesses in all were examined by the prosecution in support of its case. The prosecution mainly relied on the evidence of Nizamuddin (P. W. 1), the informant, Muhammad Shafi (P. W. 2) and Manzoor Hussain Shah (P. W. 4) who had recovered the kidnapped child from possession of the appellant. When examined, the appellant denied the allegations levelled against him and explained his implication in the case in the following words :- I was in employment of one Nazra who is maternal-uncle of Nizamuddin P. W. for a period of 8 months at the rate of Rs. 100 p. m. He did not pay any amount on my demand and on account of this an altercation between me and him took place. Nazar Muhammad beat me and subsequently involved me in this case." He, however, did not adduce any evidence in his defence.

5. Nizamuddin (P. W. 1), father of the kidnapped child, is the most important witness in this case. He stated that on 13th April, 1978, at about 12 noon, he went to Adda Khanewal to get his Rehri repaired. His daughter Mst. Shah Jehan, aged 5 years, was also with him. As he got absorbed in the work, his daughter started playing. After about ten minutes he found her missing. He searched for her but all in vain. On third day i.e. 15th April, 1978, he and his brother-in-law Muhammad Iqbal were searching the child near Chowk Kumharanwala when they found the appellant carrying the girl (Mat. Shah Jehan) wrapped in a cloth, on his shoulder towards Khanewal. Seeing his daughter being carried away, he raised alarm. Manzoor Hussain and Muhammad Shafi P. Ws. were attracted. All of them apprehended the appellant and recovered the girl from his possession. While they were taking the appellant to the police they met A. S. I. near Eidgah and narrated the incident to him. The A. S. I. took down Nizamuddin P. S's. statement Exh. P. A. and accom panied them to the spot from where the girl had been kidnapped. In his cross-examination he stated that he had reported to Moharrir of Police Station Old Kotwali about the incident of disappearance of his child who recorded a report and told him that he be informed as and when the girl is found and in case the police succeeded in tracing out the child they would inform him. At the time of recovery of the girl, the appellant had wrapped her in a cloth but her face was visible and she was crying, the appellant claimed the child as his niece. After Muhammad lqbal had captured the appellant he got himself released and ran towards a hotel, but Manaoor Hussain and Muhammad Shafi P. Ws. chased him and arres ted him near the hotel. He admitted that his statement Exh. P. A. was recorded at Police Station Old Kotwali after he had narrated the incident to the Inspector Incharge of the Police Station. He further stated that in his opinion the appellant had kidnapped the child in order to sell her away. He admitted that Nazar Kumhar was his uncle who had his shop at Bosan Road near Old Tehsil. lie repelled the suggestion that the appellant was in the employment of aforesaid Nazar at the wages of Rs. 100 p. m. and when the appellant demanded his wages, he was beaten up by Nazar and was involved in this false case.

6. Muhammad Shafi (P. W. 2) stated that about ten months back he was sitting on the hotel of Fazal at 1.00 p. m. when he heard the alarm and saw that Nizamuddin and Muhammad Iqbal P. Ws. were snatching away a child from the appellant. On their enquiry the appellant told that the child belonged to him while Nizamuddin asserted that the child was his. They made the appellant sit in a tonga and started towards the police station but in front of Eidgah, an Assistant Sub-Inspector, Police, met them whom they informed about the incident. The Assistant Sub Inspector took them to Adda Khanewal from where the child was kidnapped. In his presence, the person of the appellant was searched and a cap P. 1 and money P. 2 to P. 5/1-87 was recovered and taken into possession under memo. Exh. P. C. The child when recovered was wrapped in a cloth but her face was visible. He stated that he did not remember as if that cloth was seized by the police or not. The child was in senses but could not talk. He asserted that the appellant after having been apprehended neither got himself released and run away nor he and Manzoor chased and apprehended him. The appellant was handcuffed near Eidgah Chowk by the police and the statement of Nizamuddin was also recorded there. The A. S. I. did not take him to the police station. He emphatically denied to have gone to the police station at all.

7. Haji Manzoor Hussain Shah (P. W. 4) stated that he was present at his shop at 12/1.0 p. in. On the alarm raised by Nizamuddin and lqbal P. Ws. they had caught the appellant who was in possession of the child. The appellant claimed that the child was his while Nizamuddin P. W. stated that the appellant had kidnapped his child: When the appellant was being taken in a tonga towards police station, they met an Assistant Sub Inspector on the way and reported the incident to him. Cap P. 1 and currency P. 2 to P. 5/1-87 were recovered from his personal search which were seized through memo. Exh. P. C. attested by him. In cross-examina tion he stated that when he reached he found the girl with her father Nizamnddin P. W. and at that time the child was wrapped in a cloth which was coloured one and the same was seized by the police alongwith cap P. I and cash Exh. P. 2to P. 5/1-87. He confidently asserted that the child was not weeping at that time. He denied that the appellant had got him self released from Nizamuddin and Iqbal, P. Ws. and ran away or that he and Muhammad Shafi chased him and captured him near the hotel. He stated that he did not visit the police station on 15th April, 1978.

8. A. S.-I. Muhammad Sadiq (P. W. 5) stated that on 15th April, 1978 at about 4 p. m. he was present near Eidgah when Nizamuddin P. W. alongwith the appellant and the kidnapped girl Shah Jehan met him. At that time. Iqbal, Manzoor and Muhammad Shafi, P. Ws. were also with them. He recorded the statement Exh. P. A. of Nizamuddin. He recovered cap P. 1 and cash P. 2 to P. 5/1-87 and secured them through memo. Exh. P. C. attested by Manzoor Hussain and Muhammad Shafi P. Ws. He visited the spot, prepared a rough site plan Exh. P. D. He prepared another site plan Exh. P. E. of the place where the girl was recovered from the appellant and having completed the investigation challaned him. He candidly admitted that he did not try to know about the appellant's profession, and there was no evidence to show that the appellant had kidnapped the girl for selling her away. He stated that the cloth in which the girl was stated to have been wrapped was not taken into possession by him as he did not deem it necessary to do so. He repelled the suggestion that he had involved the appellant in the case being in collusion with Nizamuddin P. W.

9. To bring home the charge under section 364-A, P. P. C. it way essential for the prosecution to establish beyond reasonable doubt that the minor girl (Mst. Shah Jehan) was kidnapped by the appellant for being murdered or subjected to grievous hurt or slavery or to lust of any person or that she was to be disposed of for any of the aforesaid purposes. It is pertinent to note that not a single prosecution witness has deposed to this effect. The appellant had allegedly kept the girl for two days in his custody yet be did not commit violence of any kind whatsoever with her. The essential ingredients of section 364-A, P. P, C. being completely missing from the evidence brought on record by the prosecution, this charge against the appellant, therefore, fails.

10. The next question which falls for determination is if the evidence appearing on record discloses an offence of "kidnapping" under sec tion 363, P. P. C. against the appellant. The prosecution witnesses have B contradicted each other on material points, as to the child's recovery from` the appellant e. g. whether the girl was weeping at the time of her recovery from the appellant. Whether the appellant after his arrest by the wit nesses got himself released and ran away and was given chase by Manzoor and Muhammad Shah, P. Ws. and rearrested him? Whether Muhammad Shah and Manzoor P. W. in the company of complainant Nizamuddin took the appellant and handed him over to A. S. 1. near Eidgah and returned from that place or that they went with him to the police station on 15th April, 1978 ? Whether the appellant had wrapped the girl in a piece of cloth at the time of her recovery and the same was seized by the police? Whether Nizamuddin's statement (F. I. R. Exh. P. A.) was recorded near Eidgah or at the police station and also that money Exhs. P. 2 to P. 5/1-87 and cap P. 1 was recovered from the appellant at Eidgah ? Learned trial' Judge did not attach any importance to these discrepancies considering them to be of minor nature. I would have agreed with him provided the prosecution story had otherwise inspired confidence, but it is not so.

11. There is delay of two days in reporting the matter to the police. The F. I. R. does not seem to have been recorded at Eidgah as claimed by the prosecution, because Nizamuddin, the first informant has himself admitted that the Inspector incharge of the police station had after hearing the story asked his Assistant Sub-Inspector to record the F. I. R. Exh. P. A. at the police station. To the contrary, the other witnesses, namely, Muhammad Shafi and Manzoor Hussain Shah have stated that they accompanied Nizamuddin upto Eidgah, where Nizamuddin's statement was recorded by the Assistant Sub-Inspector who also recovered articles and cash from the person of the appellant and seized them under memo. Exh. P. C. Muhammad Shafi and Manzoor Hussain Shah P. Ws., have emphatically denied to have gone to police station with Nizamuddin on that date, which means that they returned home from Eidgah. These dis crepancies when put together, cast grave doubt about their claim that they recovered the girl from the appellant at Chowk Kumbaranwala, apprehend added the appellant and took him to the police in the company of the complainant Nizamuddin, father of the child.

2. Nazar Muhammad about whom the appellant stated that in order to avoid payment of wages he was involved in this case is admittedly the maternal-uncle of the complainant who is a shopkeeper. The important fact which is weighing heavily with me against the prosecution is that the appellant was not short of funds for running out of Multan as about twenty-five rupees were recovered from him at the time of his arrest, yet he did not take her out of the city. There is no explanation as to why should he remain in Multan after kidnapping the girl if he had any design to dispose her of. He could disappear at night time by train or by some other transport frequently available round the clock in Multan. It look queer to me that the appellant carrying the kidnapped child on his shoulder with her face open would travel to Khanewal on foot through a busy place like Chowk Kumharanwala which is part of Multan city. Mere absence of enmity between the appellant and the prosecution witnesses would not essentially mean that their evidence is truthful. It is always the intrinsic value of a witness's testimony which is taken into consideration. I may say here that the story of arrest of the appellant and recovery of the girl from him by the witnesses in the circumstances enumerated above does not appear to me as true.

13. As the prosecution story suffers from grave improbabilities, the witnesses have contradicted each other on material points ; and also the unexplained delay of two days in reporting the incident to the police, therefore, I am led to the view that the conviction of the appellant is not sustainable. I have, thus no option but to allow this appeal. Consequently I set aside the conviction and sentence of the appellant and acquit him. He is directed to be released forthwith, if not wanted in any other case. M. Y. H. Appeal allowed.