2008 P Cr (PLP)

HAZIQUL KHAIRI, C.J.

By this judgment, I will dispose of Jail Criminal Appeal No.36/K of 2007 filed by Abdul Ghaffar and Jail Criminal Appeal No.37/K of 2007 filed by Mst. Azeeman alias Azmat, whereby the appellants have impugned the judgment, dated 16-12-2006 of the learned Sessions Judge, Larkana convicting them under section 365, P.P.C. and sentencing each of them to undergo rigorous imprisonment for five years and fine of Rs.10,000 each or default thereof to further undergo R.I. for three months with benefit under section 382-B, Cr.P.C.

2. Brief facts of the case as per F.I.R. are that on 1-7-2005, at about 1200 hours, Mir Muhammad complainant (P. W.1) lodged report at Police Station Airport, Jacobabad, that his daughter Mst. Jamila, aged about 28/29 years, was married to Mehrab Jakhrani. Out of wedlock a son was born named Aamir alias Bilu aged 8 years. Due to tense marital relations, Mst. Jamila left her husband's house along with her son Aamir to live with him. On 19-5-2005, at about (sic) p.m. his sister-in-law Mst. Azeeman came to his house and sought permission to take Mst. Jamila to a wedding ceremony of her relative which permission was given by the complainant. Since his daughter did not come back, therefore, he looked for her and came to know that there was no wedding at all. In the meantime his brother Nazir Ahmad (P.W.2) and cousin Ghulam Hussain (not produced) met him and told him that at noon time they had seen his daughter Mst. Jamila and Mst. Azeeman with appellant Ghaffar (Mst. Azeeman's former husband) going towards bus stand side. After 12 days Aamir complainant's grandson came back to his house and informed him that his mother Mst. Jamila, Mst. Azeeman and appellant Ghaffar Ladhro were residing together in an unknown house. Since he did not find any clue to the unknown house from Aamir, he lodged F.I.R. that the appellant had enticed away his daughter with intention to commit Zina and he had also kidnapped her son the said Aamir.

3. The prosecution produced eight witnesses. P.W.5 Amanat Ali was A.S.-I., Airport Jacobabad. He registered the FIR. P.W.1 Mir Muhammad, complainant lodged the F.I.R. he reiterated what he had stated in his F.I.R. and deposed that after 12 days at about 2-30 p.m. his son Ghulam Yasin saw Aamir alias Bilu outside the house and inquired from him as to how he came back and was informed by Aamir that Ghaffar, appellant husband of Mst. Azeeman left him there. On further inquiry he was told by Aamir that Ghaffar left him and had gone towards street side. His son followed the appellant and gave "Hakal" to appellant Ghaffar, whereupon Ghaffar ran away and could not be held up. Aamir also disclosed that appellant Mst. Azeeman took them away in a rickshaw towards the shop of appellant Ghaffar and from there towards bus stand and finally in a taxi towards a village.

4. P.W.2 Nazir Ahmad, P.W.3 Ghulam Yasin and P.W.4 Akhtar Ali produced Mashirnama of place of incident and Mashirnama of arrest of appellant Mst. Azeeman.

5. P.W.7 Sultan Ahmad, Investigating Officer/A.S.-I., Incharge, Police Station Airport conducted the investigation with effect from 1-7-2005. He visited the place of incident of Sheedi Mohallah, Jacobabad in the presence of Mashir Ghulam Yasin (P.W.3) and Ayyaz Ahmad (P.W.6). He recorded statements of witnesses under section 161, Cr.P.C. He arrested appellant Mst. Azeeman and produced copy of F.I.R. P.W.6 Ayyaz Ahmad produced Mashirnamas of arrest of appellant Ghaffar and search. P.W.8 A.S.-I. Aijaz Ali, A.S.-I. was working at the Police Station Airport, Jacobabad on 15-3-2005. On the day he arrested appellant Ghaffar who was declared a proclaimed offender. He prepared Mashirnama of his arrest in the presence of P.W.6.

6. Statements of appellants under section 342, Cr.P.C. were recorded. According to them the P.Ws. are relatives of the complainant and have deposed against them at his instance and gave false statements. They neither examined themselves as D.W. on oath under section 340(2), Cr.P.C. nor they examined any other D.W. in their defence. Mst. Azeeman, appellant stated that the complainant forced her for remarriage, but she refused him. Abdul Ghaffar, appellant stated that the complainant is dangerous person, who pressurized him as he is relative of the wife of complainant. He had given divorce to appellant Mst. Azeeman who is sister-in-law of the complainant.

7. At the outset it may be stated her that abductee Mst. Jamila was neither examined by the prosecution nor even recovered. Similarly her son Aamir alias Bilu, aged 8 years, was not produced by the prosecution. The story of the prosecution is that Mst. Jamila was seen on the road at a public place where there was lot of traffic but she raised no hue and cry. The deposition of Mir Muhammad complainant (P.W.1) is reliable only to the extent that he did not find his daughter Mst. Jamil when he came back home but no credibility could be attached to his testimony as he has failed to establish that appellant Mst. Azeeman came to his house and deceitfully abducted his daughter. In regard to the deposition that after 12 days of occurrence his son Ghulam Yasin (P.W.3) saw Aamir alias Bilu outside the house and was told that the appellant Ghaffar had left him there and that his son had followed him duly supported by testimony of P.W.3 has no evidentiary value as the prosecution has failed to produce Aamir.

8. In order to bring the case within ambit of section 365 of Pakistan Penal Code, it is incumbent that a person is kidnapped or abducted with intention to cause that person to be confined secretly and wrongfully in respect of which there is no evidence at all. The abductee Mst. Jamila was not recovered from the custody of appellants nor there is any evidence on record that they had confined her and her son secretly and wrongfully.

9. As a result the appeal is accepted and the impugned judgment, dated 16-12-2006, passed by the learned Sessions Judge, Larkana is set aside with direction to jail authorities to release the appellants forthwith unless they are required in some other criminal case. H.B.T./35/FSC Appeal accepted.