P L D 2009 Quetta 7 (PLP)

AKHTAR ZAMAN MALGHANI, J.

This Criminal acquittal appeal is directed against the order dated 29-8-2008 rendered by Sessions Judge, Loralai whereby respondents No.1 to 4 were acquitted of the charge on their application filed under section 265-K, Cr.P.C.

2. Briefly stated, facts of case are that on 7-12-2005 a case under sections 147/148/149 and 365, P.P.C. was registered in Levies Station Mekhtar on the report of Haji Muhammad Rafiq alleging therein that during the night in between 8th and 9th November, 2005 respondents along with absconding accused forcibly abducted his daughter Kheyal Bibi aged about 10-11 years on account of previous enmity. It appears from record that during investigation respondents No.1 to 4 were arrested whereas police could not lay hand upon remaining nominated accused persons, as such; a challan was submitted showing them absconders. On commencement of trial charge was read over to respondents to which they pleaded not guilty whereafter prosecution produced witnesses. In the meanwhile respondents moved an application under section 265-K, Cr.P.C. which was allowed and they were acquitted of the charge.

3. We have heard the learned counsel for appellant as well as learned counsel for respondents. Learned counsel for appellant vehemently contended that Sessions Judge acquitted the respondents at a pre-mature stage without appreciating peculiar facts and circumstances of instant case mainly on the ground of delay in F.I.R. and taking into consideration statement of abductee recorded under section 161, Cr.P.C. thereby coming to the conclusion that she had gone along with Dad Muhammad at her own accord and she was not forcibly abducted which conclusion was contrary to record and law as admittedly Kheyal Bibi was below 16 years age and her consent was immaterial. He further contended that delay in F.I.R. was explained by complainant in his statement, as such; same could not have been made basis for acquittal. He further argued that during trial an application was moved under section 540, Cr.P.C. for calling representative of NADRA and Medical Officer who examined abductee and issued medical certificate in order to ascertain age of abductee but without deciding such application learned Sessions Judge in hurried manner acquitted respondents of the charge which findings being perverse are liable to be set aside. On the other hand learned counsel for respondents vehemently contended that there was no evidence on record to implicate respondents in the commission of offence, as such; they were rightly acquitted of the charge as alleged abductee herself gone along with absconding accused Dad Muhammad and married him. He further contended that respondents carried double presumption of innocence, as such; acquittal order was not liable to be interfered with. In support of his contentions learned counsel referred to judgments reported in 2006 PCr.LJ 1292 and 2007 PCr.LJ 1288.

4. We have carefully considered the contentions put forth by parties' learned counsel and have also gone through the impugned judgment as well as evidence on record. According to prosecution version respondents along with absconding accused forcibly kidnapped daughter of appellant namely Kheyal Bibi during the night between 8th and 9th November, 2005. Perusal of judgment would indicate that Sessions Judge, Loralai acquitted respondents of the charge on the ground of delay in F.I.R, abductee in her statement under section 161, Cr.P.C. stated that she had gone along with Dad Muhammad with her own accord and married him and `Nikah Nama'.

5. As regards delay in F.I.R. same was very much explained in written report Exh.P/1-A which was reproduced by Sessions Judge in his judgment wherein it was stated that on 9-11-2005 he informed about incident whereafter he filed an application before Sessions Court on 24-11-2005 complaining against respondents for kidnapping his daughter aged about 10-11 years which facts were also reiterated by him in his Court deposition but Sessions Judge by overlooking said facts illegally took into consideration delay in lodging F.I.R. for making it basis for acquittal by making reference to an incomplete answer given by appellant in cross-examination without considering his explanation that no officer was ready to entertain his application complaining about kidnapping of his daughter.

6. Similarly reliance on the statement of Kheyal Bibi recorded under section 161, Cr.P.C. without her examination in the Court was based on ignorance of law as it is well settled that statement recorded under section 161, Cr.P.C. is not substantial piece of evidence but can be used for limited purpose of contradicting a witness at the trial. In the judgment reported in 2007 MLD 372 in this regard it was held as under:- "In view of above statement of eye-witnesses discussed, the contention of learned counsel for appellant Azam that complainant had tried to improve his 154, Cr.P.C. statement in his statement on oath as he had not disclosed in his 154, Cr.P.C. statement that the event happened 2, 3 days prior to the day of incident were disclosed to him by his sister, mother and deceased. So also P.Ws. have not given the detailed features in their 161, Cr.P.C. statement to justify that they could recognize the appellants at later stage. That might be so but the statement under section 161, Cr.P.C. is not a substantive piece of evidence, however it can be used for the purpose of contradiction."

7. Furthermore; under section 361, P.P.C. any minor girl under 16 years of age removed from lawful guardian without consent of such guardian amounts to kidnapping and consent of victim is of no avail as held by Honourable Supreme Court in the judgment reported in 1986 SCMR 35 wherein it was observed as under:-- "The arguments with regard to consent would not be of any avail to the petitioner as the victim of the crime was of age specified in the definition of "kidnapping from lawful guardianship" in section 361, P.P.C. namely, sixteen years and the said section according to the law is to be read for discovering the definition of kidnapping for purpose of section 11 of the Ordinance." Therefore, before taking into consideration consent of Kheyal Bibi, Sessions fudge was under legal obligation to have first determined her age because appellant in his Court deposition has shown her age about 10-11 years and has moved and application for calling representative of NADRA to produce the form but Sessions Judge without considering the said application or disposing it of at a pre-mature stage acquitted the respondents on their application under section 265-K; Cr.P.C. It may be observed that under section 540, Cr.P.C. the Court or Magistrate is under legal obligation to examine any witness whose evidence appears to be essential for just decision of case and in the instant case consent of Kheyal Bibi gained vital importance, therefore, before taking into consideration such consent learned Sessions Judge should have first determined her age which could have been either ascertained from NADRA record or from medical certificate, as such; before hearing arguments on the application filed under section 265-K, Cr.P.C. Sessions Judge should have allowed application filed by appellant under section 540, Cr.P.C. and have examined representative of NADRA and medical officer who examined the victim.

8. The record further reveals that Kheyal Bibi was also examined by Judicial Magistrate, Kohlu who has shown her age as 15 years, as such; her such statement should have also been brought on record.

9. Although recording of evidence before order of acquittal under section 265-K, Cr.P.C. is not requirement of law; yet section 265-K, Cr.P.C. could not be pressed into service to stifle or thwart prosecution as powers under section 265-K, Cr.P.C. were not intended to be exercised arbitrarily and capriciously without providing an opportunity to prosecution or complainant to produce prosecution witnesses. The Honourable Supreme Court in the judgment reported in 2005 SCMR 1544 held as under:-- "On consideration of agreement of Dr. Qazi Khalid Ali, Additional Advocate-General and Ch. Aitzaz Ahsan, Senior Advocate Supreme Court and the case-law relied upon by both of them in support of their respective contentions, there can be no dispute that an application under section 249-A, Cr.P.C. can be filed, taken up for hearing and decided at any time or stage of the proceedings and the words "at any stage" denote that the application under section 249-A, Cr.P.C. can be filed even before prosecution evidence had been recorded or while the exercise of recording of evidence is going or when the exercise is over. It is, however, to be noted that though there is no bar for an accused person to file application under section 249-A, Cr.P.C. at any stage of the proceedings of the case yet the facts and circumstances of the prosecution case will have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage. The special or peculiar facts and circumstances of a prosecution case may not warrant filing of an application at a stage when the entire prosecution evidence had been recorded and the case was fixed for recording of statement of the accused under section 342, Cr.P.C. This Court in the cases of Bashir Ahmed v. Zafar ul Islam PLD 2004 SC 298 and Muhammad Sharif v. The State and another PLD 1999 SC 1063 (supra) did not approve decision of criminal cases on an application under section 249-A, Cr.P.C. or such allied or similar provisions of law, namely, section 265-K, Cr.P.C. and observed that usually a criminal case should be allowed to be disposed of on merits after recording of the prosecution evidence, statement of the accused under section 342, Cr.P.C., recording of statement of accused under section 340(2), Cr.P.C. if so desired by the accused persons and hearing the arguments of the counsel of the parties and that the provisions of section 249-A, section 265-K and section 561-A of the, Cr.P.C. should not normally be pressed into action for decision of fate of a criminal case."

10. The judgments referred to by learned counsel for respondents are distinguishable on facts and circumstances as in the judgment reported in 2007 PCr.LJ 1288 there was un-explained delay whereas in the instant case, as already observed the delay was sufficiently explained.

11. Similarly the judgment reported in 2006 PCr.LJ 1292 is also distinguishable because in the` instant case in view of what have been discussed prima facie respondents were involved in the offence, however; they were acquitted by Sessions Judge on the basis of inadmissible evidence as well as by mis-reading evidence on record.

12. Before parting with the judgment we would like to observe that conduct of investigation officer is also not above board because despite recovery of Kheyal Bibi he neither produced her before any medical officer to ascertain her age and allowed her to go along with absconding accused without arresting that accused or taking permission from Court with regard to her custody, as such; copy of this judgment be forwarded to the senior MBR for enquiry and initiating proceedings against him in accordance with law.

13. For the foregoing reasons, we are inclined to allow this appeal and after setting aside the judgment/order dated 29-8-2008 rendered by Sessions Judge, Loralai remand the ease with direction to call for record from NADRA as well as statement of Kheyal Bibi recorded under section 164, Cr.P.C. by Judicial Magistrate, Kohlu and examine medical officer who issued medico-legal certificate of victim and thereafter proceed in the matter in accordance with law. Appeal is disposed of accordingly. H.B.T.6/Q Case remanded.