P L D 1952 Baghdad﷓ul﷓Jadid 64 (PLP)

ABDUL HAMID MALIK, J.‑The petitioner, Mst. Arfan, was convicted under section 366, Pakistan P. C., by the learned A. D. M., Bahawalpur, and sentenced to two .years' rigorous imprisonment and a fine Rs. 100 ; in default to further rigorous imprisonment for three months. The remaining three petitioners Muhammad Nawaz, Khuda Bakhsh and Hasan Bakhsh were also convicted under section 368, Pakistan P. C., by the aforesaid Court and sentenced each to 2 years rigo rous imprisonment. On appeal, the learned Sessions Judge Bahawalpur, did not interfere with the convictions and sen tences of Mst. Arfan and Muhammad Nawaz. Regarding the other two petitioners (Khuda Bakhsh and Hasan Bakhsh) the conviction was upheld but sentence was reduced to the period already undergone by them. All the four petitioners have now come in revision before this Court. The case of the prosecution is that about 20‑24 days preceding the lodging of the F. I. R., the petitioner, Mst. Arfan accompained by one, Mst. Niamat, went to the mother of Mst. Nazir Ilahi‑the alleged abducted girl‑and told her that she should send her daughter along with them to the Bahawal canal so that she should help them in washing their clothes. Accord ingly, Mst. Nazir Ilahi was sent. It is further alleged that Mst. Arfan took Mst. Nazir Ilahi to the Bahawal canal where the remaining three petitioners took hold of the girl and forcibly put her on a bicycle and carried her off to Multan side. On enquiry by the mother of Mst. Nazir Ilahi, no clue regarding the where abouts of the girl was given by Mst. Arfan. It was on the 9th September 1949 that a case under section 363 Pakistan P. C. was registered against all the petitioners at the instance of Allah Bakhsh, father of Mst. Nazir Ilahi. The police then reco vered the girl from Multan and the petitioners were eventually challaned. The prosecution produced Sharaf Din, P. W. to prove that Mst. Nazir Ilahi was seen going with Mst. Arfan and Mst. Niamat on the day of occurrence. This witness is a son‑in‑law to Allah Bakhsh and therefore it is surprising to note that no mention of this witness was made in the F. I. R., which was lodged by Allah Bakhsh. The other witness Shamas Din who is a real brother to Sharaf Din, P. W., stated in the trial Court that he had seen Nazoo, Khuda Bakhsh and Hasan going on two bicycles along with a woman. The name of this witness also does not find place in the F. I. R. The third pro secution witness was Noor Muhammad whose evidence in Court was that he had seen Nazoo, Khuda Bakhsh and Hasan standing near the canal with two bicycles and that he had also seen Mst. Niamat, Mst. Nazir Ilahi accompanied by one other woman going towards the canal. Likewise the name of this witness was also left out from the F. I. R. Sh. Nisar Ahmad, the learned counsel for the petitioners, has strenuously urged that the omission of the names of three important prosecution witnesses referred to above clearly connotes that the case was boistered up one and though the report of the alleged occurrence was made after due deliberation yet the names of the witnesses were not mentioned the F. I. R. The counsel contended that the omission of names leads to the inevitable conclusion that the witnesses were brought forth later on and that they had knowingly cooked up a false story to support the prosecution case. I must say that the contention of the learned counsel has considerable force. There seems to be no rhyme or reason as to why the names of such important witnesses were not mentioned in the F. I. R. I am, therefore, constrained to agree with the defence counsel. Under the circumstances no reliance can be placed on the belated testimony of all the three witnesses noted above. Besides this, it was stated in the F.I.R., that Mst. Noor Ilahi was taken with the permission of her mother. This being so, the mother of the alleged abducted girl was an important witness to prove that Mst. Noor Ilahi was taken by Mst. Arfan on the pretest that she would help her in washing the clothes. It transpires from the record that mother of the girl was never produced as a witness. This noon production of the mother as a witness raises, an adverse inference against the prosecution namely that she was not prepared to support the prosecution story. It is obvious that the important link in the chain of prosecution story is missing. It has, therefore, not been proved by the prosecution that the girl, Mst. Noor Ilahi, was taken by deceitful means by Mst. Arfan to the canal side. The petitioners stated in their defence that Mst. Nazir Ilahi had accompanied them with the consent of her mother as her father wanted to marry her to an old man. They have also produced mass of evidence in defence to prove that the girl went to her free will and nowhere she ever complained that she was abducted. Mst. Noor Ilahi‑the alleged abducted girl has appeared before this Court to‑day at the time when the revision petition was being argued and submitted in writing that she was never abducted by the petitioners, that her age is 23/24 years, that she entered into matrimonial alliance with Muhammad Nawaz Khan on her free will and that her statement in the trial Court was the result of coercion and pressure on the part of the police. She further added that she was putting up in the house of Muhammad Nawaz as his legally wedded wife. I may again repeat that the delay in lodging the F. I. R. coupled with the omission of names of material witnesses knocks the bottom out of the case. I am led to presume that the mother of the girl was a. consenting party to this affair otherwise she must have come forward to support the pro secution case. My suspicions regarding the bogus nature of the case are further confirmed by the statement of Mst. Nazir Ilahi which she has, made to‑day before this Court. . I am, therefore, of the opinion that Mst. Noor Ilahi willingly accompanied the petitioners and that she was never abducted. Allah Bakhsh, the father of the girl, then invented a cock and bull story of abduction which he hopelessly failed to substan tiate. The learned Government Advocate was correct in conceding that the prosecution had failed to prove this case against the petitioners. I, accordingly, accept this revision petition, set aside the conviction and sentences and acquit the petitioners. Announced. A. H. Petition accepted.