1982 P Cr (PLP)

9. P. W. 1 Mohammad Farid is a Taxi Driver, who in his deposition before the learned trial Court stated, that on the day of incident, he was engaged by appellant No. 2, on hourly basis and thereafter appellant No. 2 went to Orangi Town in his Taxi and picked up appellant No. 1 and from there he was asked to go to Banaras Colony, from where said appellants picked up appellant No. 3 and came to Nazimabad No. 2, where the appel lants had their meals from hotel, in taxi. After this, he was asked by the appellants to go to Shafiq Colony, F.B Area, and there he was asked to wait in taxi near the road, as appellants were going to Jirga for settlement of their dispute and three appellants left together. This witness has further deposed that after about 15 minutes, he saw lot of people coming towards his taxi, together with three appellants. These persons, according to this witness were saying, that appellants and he had, come to abduct girl. On this according to this witness, he explained to them that he had nothing to do with such abduction and he was there, because his taxi was hired by the appellants. Thereafter according to this witness crowd took away the three appellants and did not permit him to go and as such he waited till Police came on the spot. He further stated, that Police took all the three appellants to police station in his taxi and recorded his statement as well. In cross‑examination, he denied having seen any weapon in the hands of the appellants at any time.

10. P. W. 2 Mst. Shamshad in her deposition before the learned trial Court has stated; that on 21st April, 1979 at about 7‑30 p.m., she was at her house alongwith her mother and father, when appellant No. 3 knocked at their door and stated that her arm was fractured and she wanted some help. On this, according to this witness, her father P. W. 3 Akram opened the door, on which appellant No. 3 and other two appellants entered their house. Appellants were accompanied by two other persons as well. According to this witness, appellant No. 3 wrapped a dopatta around her neck and dragged her out of their house. The other two appellants caught hold of per father Akram and threw him on cot. This witness has further deposed, that on their cries Mohallah people came, but in the meantime, she was dragged upto taxi and was put in taxi by appellant No. 3 and appellant No. I pressed me on seat. In the meantime, according to this witness, she was rescued by Mohallah people, and she only knew the name of one Haji from those people. She has further deposed that appellant No. 1 was armed with pistol, while appellant No. 2 was armed with dagger. She further deposed, that she was examined by doctor and her statement was recorded by Police. She further stated, that she did not know, why she was being kidnapped. She identified pistol and dagger before the learned trial Court, as well as burqa Article `C' belonging to appellant No. 3 In her cross‑examination, she denied, that she was engaged to appellant No.

1. She further stated, that she saw pistol being fired by appellant No. 1, at her father. She further denied, that she voluntarily came out of house with appellant No.

3. She admitted, that there was no electricity in her house. She further stated, that she was not put to identification test. She admitted, that she had not seen the two male appellants before the incident at any time. She further stated, that her father gave her the names of two male appellants and their identity. She further admitted, that after the said incident, she had seen these male appellants only in Court on that day.

11. P. W. 3 Mohammad Akram in his deposition before the learned trial Court stated, that on 21st April, 1979 at about 8‑30 p.m., he was sitting in the house with his wife and daughter. P. W. 2. when appellant No. 3 knocked at their door and stated that her arm was fractured and she needed help and as such he opened the door, and as a result thereof all the three appellants entered their house. He further depos ed that appellant No. I was armed with pistol, while appellant No. 2 was armed with dagger. He further stated, that he was pushed on cot and he saw appellant No. 3 dragging P. W. 2, his daughter, outside the house and his daughter raised cries. On this the male appellants left him and went towards his daughter and took her towards taxi. He further deposed, that on their cries, Mohallah people collected and from amongst them, he recognised Nausher, Wazir, Syed and Muzaffar. He further stated that Mohallah people rescued his daughter from taxi and detained the appellants. He further deposed, that thereafter be, alongwith one P. W. Muzafar went to Gulberg Police Station and brought Police at wardat, who arrested three appellants and took them in Taxi to Police Station, where hr. also went and then lodged F. I. R. Exh.

7. He further deposed, that appellant No. 3 bad visited their house about 3 months ago and demanded the hand of P. W. 2 for her husband, appellant No. l; but they had refused, due to the age of P. W.

2. He identified pistol and churri. He admitted, that he had not told his daughter P. W. 2, about this proposal. In his cross‑examination, he denied that P. W. 2 was engaged to appellant No. 1. although he had demanded her‑hand. He also denied that he had handed over clothes to P. W. Muzaffar, for returning to appellant No. 1; which were given at the time of alleged engagement. He also denied the suggestion of the appellants' counsel that on the day of incident, the appellants bad come to his house for Jirga to arrange for "Rukhsati" of his daughter and on his refusal, there arose a quarrel and as such he has falsely implicated the appellants in this case.

12. P. W. 4 Muzaffar in his deposition before the learned trial Court stated, that on 21st April, 1979 at about 7‑30 p m. he was sitting in his house and taking meals. He further deposed, that the house of complainant Akram is about 40 paces away from his house. He further deposed, that on hearing commotion, he came out from his house and saw Mohallah people having surrounded the taxi and he further saw them taking out and rescuing the daughter of complainant Akram from taxi. He further deposed, that he saw two male appellants b‑ink caught by the persons and there was a female without dopatta and as such he brought the said female into his house. He further deposed, that the daughter of the complainant was rescued and taken to the house of the complainant and the male appellants were made to sit in a hotel, near the road. He further deposed, that he alongwith the complainant went in a taxi to Gulberg Police Station and brought three Policemen to wardat, who arrested the appellants and took them to Thana. He further deposed, that no report was lodged at the Gulberg Police Station, when they went there for the first time and brought three Police Constables. He further deposed that his statement was recorded by the Police on next day. He further deposed, that he was called at the Thana and shown a pistol and knife and informed that the same were recovered from male appellants. He further stated, that Police inspected the house of the complainant and prepared mashirnama, which be produced as Exh.

9. He further deposed, that Police had taken possession of a burqa, from the house of complainant. He identified burqa, pistol and knife. He further deposed, that appellant No. 1 was known to him prior to the incident, but the other two appellants, he saw them for the first time in the incident. He further stated, that he was not aware, if the daughter of the complainant was betrothed to appellant No.

1. He further stated, that he was not aware of any Jirga being held in the house of the complainant on the day of incident. He further denied to be a member of said Jirga and also denied, that he returned any clothes to appellant No.

1. He also produced mashfrnama of seizure of the articles as Exh. 10 and identified his signatures and stated the same to be correct. In his cross‑examination he stated that nothing was secured from the possession of the appellant in his presence.

13. P. W. 5 Nazir Saeed in his deposition before the learned trial Court stated, that on the day of incident, he was going for Isha prayers to the mosque, when he beard commotion and saw two male appellants, who were surrounded by Mohallah people and he also saw taxi parked nearby., He further deposed, that he had not seen the fem ale appellant nor the daughter of the complainant Akram, at that time. He further deposed, that P. Ws. Akram and Muzaffar told him, that appellants had abducted the daughter of P. W. 3 Akram and have been caught near the Taxi. The two male appellants were made to sit near the hotel and P. Ws. Akram and Muzaffar went to the police station, for report accord ing to him. He further deposed, that his statement was recorded by Police on the next day. He further deposed that Police came on the wardat and took away all the three appellants and the taxi driver with them. In his cross‑examination he stated, that he did not see any weapons in the hands of any male appellants.

14. P. W. 6 Mst. Gulnar in her deposition, before the learned trial Court stated, that she was the wife of P. W. .3 Akram, the complainant and further stated, that her daughter Mst. Shamshad is aged about 11 years and resides with them. She further deposed, that appellants were previously known to her. She further stated, that appellant No. 1 had demanded the hand of her daughter. She further deposed, that on 21st April, 19%9 at about 8‑30 p.m., she was present in her house with her husband and. children, when appellant Taj Rehan knocked at the door and stated that her arm got fractured and as such she needed our help, and as such her husband opened the door. She further deposed ‑that as soon as the door was opened, appellant Mst. Taj Rehan and two other appellants forcibly entered their house and appellant Mst. Taj Rehan placed a dopatta around the neck of her daughter Mst. Shamsbad and started dragging her out from the house. She further stated, that appellant No. 2 was armed with big churri, while appellant No. 1 Hussain Shah was armed with pistol. She further deposed, that the two male appellants placed their weapons on her husband, while appellant Mst. Taj Rehan forcibly dragged her daughter Mst. Shamshad out of‑the house. She further deposed, that she tried to save her daughter, but appellant Taj Rehan bited her with her teeth She further deposed that her daughter was dragged upto taxi, which was standing near the house. She further deposed, that they came out of the house raising cries, on which people collected and saved her daughter. She further deposed, that her husband went to Thana and brought the Police and Police recorded her statement after two days. She further deposed, that she was medically examined. She further deposed, that appellant Taj Rehan had left a brown colour burqa in her house. 1n her cross‑examination, she stated that appellant No. 1 and appellant No. 3 had twice asked for the hand of their daughter for appellant No. 1, but they, had declined, on account of the tender age of P. W.

2. She further deposed, that appellant No. 3 had demanded the hand of my daughter, because they have no issue from their wedlock. She denied, that on the day of incident, the appellants bad come to their house to attend the Jirga. She further deposed, that she identified the appellants in the light of lantern and she did not hear any pistol fire. She further denied, that appellant No. 1 had given any articles for her daughter or that she had returned the same.

15. P. W. 7 Dr. Mohammad Ibrahim in his deposition before the learned trial Court stated, that on 23rd April, 1979, he was a Medical Officer. Casualty Department Abbasi Shaheed Hospital, Karachi where at about 2‑15 p. m. Gulberg Police Station referred Mst. Gulnar and Mst. Shamshad for examination and treatment. He further deposed, that he examined Mst. Shamshad who was aged about 12 years and found two simple injuries on her person and as such he issued a certificate Exh. 14, which he produced and stated the same was correct. He further deposed, that on the same day, he had examined Mst. Gulnar, on her, he found one simple injury and issued certificate, which he produced as Exh. 15 and stated to tie correct.

16. P. W. 8 Abdul Rashid, S. I. P. in his deposition before the learned trial Court stated, that on 21st April, 1979 he was posted at Gulberg Police Station as S. I. P. and recorded F. I. R. Exh. 7 which was lodged by P. W. 3 Akram, the complainant. He further deposed, that all the three appellants were produced at the police station by witnesses and as such he arrested them. He further deposed, that he secured a pistol from appellant No. 1 alongwith 4 live bullets and big knife from the appellant No. 2 and he identified the said articles in Court: He further deposed, that since appellant No. I had no license of the Pistol, and appellant No. 2 had no license of churri, he registered a separate case against each of theta, under section 13‑D of the Arms Ordinance. He further deposed, that on the same night he inspected the place of wardat in Shafiq Colony, in presence of mashirs Muzaffar and Nausher vide Mashirnama Exh.

9. He further deposed, that he secured burqa of 'brown "colour which was produced by Mst. Gulnar, the wife of the complainant, and she stated, that it was felt by appellant No. 3 in their house. He also identified the said burqa. He further deposed, that be also recorded the statements of P. Ws. Akram, Mst. Shamshad, Mst. Gulnar, Nausher, Farid Khan and Muzaffar on the same night. He further deposed, that since Mst. Gulnar and her daughter Mst. Shamshad had minor injuries on them, he referred them to the Abbasi Shaheed Hospital for treatment and for the certificate. He further deposed, that after completing investigation, he challaned the appellants in Court. In his cross‑examination he stated, that F. I. R. Exh. 7 was recorded at 9.30 p. m. He denied, that he recorded the statement of P. W. Muzaffar on the next day. He also denied, that he recorded the statement of P. W. Wazir Syed, on the next day. He also denied, that he recorded the statement of Mst. Shamshad after two days and that Mst. Gulnar after 3 days. He further deposed that taxi driver had no concern with the appellants and he made him a witness in this case. He also denied, that he recorded the statement of prosecution witnesses at the house of the complainant. He asserted, that he recorded their statements at the police station.

17. The appellants in their defence examined D. W. 1 Aitbar Shah who in his deposition before the learned trial Court stated, that he knew all the 3 appellants and on 21st April 1979, appellant No. 3 came to him and asked him to attend the Jirga at the house of Akram, complainant. He further deposed, that he alongwith Sherdil and others and the appellant No. 2 reached the house of P. W. 3 Akram at 7 p. m. He further deposed, that there were 9 persons in the said Jirga, on reaching the house of the appellant, they asked appellant Taj Rehan to call complainant, on which she went inside and 'after about 2/3 minutes, she came back weeping and stated, that P. W. Akram has told her to ask appellant No. I to divorce appellant No. 3, if she wanted them to marry their daughter to appellant No. 1 and according to this witness, appellant No. 3 stated, that she has declined the proposal of P. W. Akram. This witness has further deposed, that they again asked appellant No. 3 to go and bring P. W. Akram to the Jirga and as such she went again and soon after they heard commotion coming from inside the house. He further deposed, that appellant No. 3 came out from the house and they saw her weeping. He further deposed, that several people of Mohallah collected, to whom P. W. Akram stated, that appellants have come to forcibly take their daughter and consequently Mohallah people detained all of us. He further deposed, that after about 30 minutes. Police arrived and they arrested the 3 appellants, at the instance of P, W. Akram. He further deposed, that he did not see any weapons in the hands of the appellants and nor seen dragging of the daughter of the P. W. Akram. In his cross‑examination this witness denied his relationship with the appellants.

19. D. W. 2 Sher Ali in his deposition before the learned trial Court stated, that he knew all the 3 appellants and had participated in engagement ceremony of P. W. Akram in Shafiq Colony. He further deposed that on, 21st April 1979, he had gone with appellants and other persons to hold a Jirga, where they reached at 7 or 7‑30 p. m. and sat on cot outside the house of P. W. Akram. After sometime, appellant No. 3, came running from the house of P. W. Akram and was weeping and stated, that P w. Akram's wife demanded, that appellant No. 1 must first divorce appellant No. 3 We again sent appellant No. 3 inside the house to call P. W. Akram in order to attend Jirga. Appellant No. 3 returned back, when her white colour burga was torn from back. He further deposed, that one of the neighbour took away appellant No. 3 to his house, as she could not sit in Jirga with male. He further deposed, that some persons of the Colony asked them to sit and take tea, while they were taking tea, P. W. Akram brought the Police, who arrested the appellants and took them to police station. In his cross‑examination he stated, that P. W. Akram had come out of the house, and provided them cots to sit. He further deposed, that they were 8/9 persons who had come to attend Jirga. He further deposed, that Jirga vas held outside the house of P. W Akram.

20. Learned counsel for the appellants submitted before me, that the prosecution case on the face of it was improbable and there were material contradictions in the evidence of prosecution witness. He further stated that F. I. R. Exh 7 was inadmissible in evidence He further stated, that the learned trial Court has not considered version given by the appellants and as such appellants were entitled to benefit of doubt. In the alternate, learned counsel submitted, that even if the prosecution witnesses are believed, then too the offence at the most would amount to an attempt to abduct and as such under section 18 of the Hudood Ordinance, the ,punishment would be half and as such the conviction and sentence awarded to the appellants, under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 were not at all maintainable. Learned counsel further submitted, that learned trial Court did not believe the evidence of prosecution witnesses regarding recovery of the alleged weapons from the possession of 2 male appellants and as such they have been acquitted in respect of charge under section 13‑D of Arms Ordinance, but these very witnesses have been believed, for the other charges against the appellants.

21. Learned counsel for the appellants further submitted, that P. W, 2 Mst. Shamshad in her deposition has stated, that beside the appellants; 2 other persons came inside the house and a shot was fired in the house. But this statement of P. W. 2 Mst. Shamshad is not at all supported by P. W. 3 Akram as well as P. W. 6 Mst. Gulnar and this material contradiction between these witnesses has not at all been considered by the learned trial Court. He further submitted that medical examination of P. W. 1 Mst. Shamshad and P. W. 6 Mst. Gulnar, after 3 day; of the incident, was afterthought and injuries alleged to have been or their persons were simple injuries and could have been self inflicted, in order to support alleged dragging of P. W. 2 Mst. Shamshad, from her house to the taxi. In support of his contentions, learned counsel for the appellants relied upon cases reported in P L D 1950 Lah. 147, P L D 1971 Lah. 883 and P L D 1976 Kar. 209.

21. Learned counsel appearing for the State has supported the conviction of the appellants and stated, that statements of P. W. 2 Mst. Shamshad, P. W. 3 Akram and P. W. 6 Mst. Gulnar have been corroborated by the statements of P. W. 4 Muzaffar and P. W.

5. Wazir Syed. He further submitted, that even if F. I. R. Exh. 7 is held to be inadmissible, it does not affect the prosecution case learned State counsel, however, submitted, that the prosecution case discloses only an attempt to abduct and as such the punishment awarded to the appellant should have been half of what has been awarded and in support of this, learned State counsel relied upon case reported in A I R 1916 Lah. 230.

22. I have carefully considered the submissions made by the learned counsel for the parties and have gone through the depositions of all the witnesses, who were produced before the learned trial Court as well as through the impugned judgment. I have also gone through the authorities cited by the learned counsel for the appellants as well as for the State. 23. 1t may be noted, that appellants have not denied their presence at wardat, on the day and time of the incident and the fact that all of them were arrested by Police on the site soon after the alleged incident. The appellants have tried to explain their presence on the wardat, on the basis that Jirga was to be held, at the house of complainant Akram, P. W. 3, in connection with Rukhsati of P. W. 2 Mst. Shamshad, on account of her engagement with appellant No.

1. In support of this plea, the appellants relied upon the statements, of two D. Ws. namely, Aitbar Shah and Sher Ali.

24. I have gone through the evidence of above two defence witnesses and find material contradictions between their statements. Learned trial Court has appraised their evidence and has come to the conclusion, that their evidence does, not inspire confidence, for the cogent reasons given by the learned trial Court in its impugned judgment. I see no reason to disagree with this finding of the learned trial Court and I am of the opinion, that the evidence of these two defence witnesses cannot be relied upon, in view of material contradictions in their statements, before the learned trial Court and in view of the statement of P. W. 1 Muhammad Fari9, the taxi driver, that all the 3 appellants alone came in his taxi to Shafiq Colony. No question was put to this witness regarding second taxi, in which it is alleged, that the other alleged members of the Jirga came to wardat. Therefore, plea of the appellants, that they came to wardat for purposes of Jirga, in my opinion has no substance.

25. In view of my above conclusion, I will now proceed to deal with the prosecution witnesses regarding the incident in question. The statement of P. W. 3 Akram, regarding manner in which the appellants made their entry in the house of the complainant and thereafter dragging of P. W. 2 Mst. Shamshad from the house to taxi, outside into which she was pushed, is fully supported by the statements of P. W. 2 Mst. Shamshad and P. W. 6 Mst. Gulnar. Beside this the statement of P. W. 4 Muzaffar, who is an independent witness of the locality, that he saw P. W. 2 Mst. Shamshad being rescued from the taxi by Mohallah people, also corroborates the statements of these 3 prosecution witnesses. Further evidence of P. W. 5 Wazir Syed and admission of the appellants that they were detained by the Mohallah people and thereafter police came on the spot and arrested them also corroborates, the statements of P. W. 2 Mst. Shamshad, P. W. 3 Akram and P. W. 6 Mst. Gulnar. It may be noted, that evidence of these prosecution witnesses has not been shaken in their cross‑examination on any material points. The minor contradictions in the statements of all these prosecution witnesses, which have been pointed out by the learned counsel for the appellants, are not such, as to completely disregarded their statements, given before the learned trial Court. In view of ibis, I see no reason to disagree with the appraisal of the evidence of these prosecution witnesses made by the learned trial Court and the conclusions arrived at by the learned trial court, on the basis of their statements. There fore, I am of the opinion, that appellants have been rightly held to be guilty of having entered the house of complainant P. W. 3 Akram, for purposes of abducting P. W. Mst. Shamshad, as alleged by the prosecution.

26. The only question which requires consideration whether the offence of abduction, for which the appellants have been convicted was a complete offence or an attempt only, which did not succeed. Admittedly. P. W. 2 Mst. Shamshad, before she could be abducted in a taxi, by the present appellants, was rescued by the Mohallah people and as such in my opinion the offence of abduction was not complete and as such the act of the appellants was merely an attempt to abduct Mst. Shamshad, which did .not succeed as such, the conviction of the appellants, under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not warranted. In my opinion appellants could have been convicted only, under section 18 of the said Ordinance for an attempt to abduct and consequently the punishment that could have been awarded to them would be half of one provided under section

11. In this connection learned counsel for the appellants has relied on cases reported in P L D 1950 Lab. 147, 1973 S C M R 108, and the learned State counsel relied on case reported in A I R 1916 Lab. 213, which cases in my opinion support the contentions of the learned counsel for the appellants as well as State, that the offence committed by the appellants was at the most an attempt to abduct.

27. Therefore, I alter the convictions of the appellants, from one under section 11 of the Zina (Enforcement of Hudood) Ordinance, 1979 to one under section 18 of the said Ordinance and reduce sentences awarded each one of them to rigorous imprisonment for five years only and set aside their conviction under section 11 of the Hudood Ordinance, 1979 and sentences awarded to them, there under by impugned judgment. With this modification, I uphold the impugned judgment and other conviction and sentences awarded to the appellants under section 452/34, P. P. C. under the said judgment and further order that all the sentences awarded to the appellants shall run concurrently. The above appeal is disposed off in the terms of above order. Order accordingly.