1. ' MUHAMMAD NADIR KHAN DURRANI, J.--- 'This appeal under section 410, Cr.P.C. Is directed against the judgment, dated 21-5-2001 passed by Sessions Judge, Loralai, (hereinafter referred to as the trial Court) whereby the appellant has been convicted under section 364-A, P.P.C. And sentenced to 10 years and fine of Rs,10,000 in default of payment of fine to suffer S.I. For five months. Benefit of section 382-B, Cr.P.C. Has been extended to the appellant.
2. ' Briefly stated the facts of the case are that F.I.R. No,58 of 2000 under sections 337/354/364-A, P.P.C.
3. Was registered with Police Station Loralai on 19-4-2000 at 2-55 p.m. On the report of Habibullah, who at the relevant time was serving as Headmaster Yagi Middle School Loralai. According to the complainant at about 1-00 p.m. He returned to his house where his brother Samiullah informed him that his daughter Aisha, age 4-1/2 years,' is missing. He was further informed that at about 10-30 a.m. On the knock of door the child went out and thereafter did not come back. According to the complainant he left in search of the child on his motoicycle, while all the people of Mohallah also joined the search. Complainant further stated that when he came towards the police station his daughter Aisha being unconscious and accused whose name was subsequently, known as Akhtar, were also brought to the police station. Accused was caught by Haji Nazar Muhammad, S.-I. Naseer Khan Head Constable and other people of Mohallah. According to the complainant his daughter has been given some intoxicant causing serious danger to her life while the accused allegedly molested the chastity of the child.
4. ' P.W.11 Muhammad Akram Khan, D.S.P. Was entrusted with the investigation of the case, after formal investigation he submitted the challan Exh.P.11. Appellant was sent to the Court of Sessions Judge, Loralai. On the stated allegations formal charge under sections 364-A/337-J, P.P.C. Was framed which was read over to the appellant on 5-6-2000 to which he pleaded not guilty. Prosecution in order to prove the accusations examined as many as 11 witnesses namely:-- ' P.W.1 Habibullah complainant reiterated the averment of his report Exh. P . 1/A .
5. ' P.W.2 Mukhtar Ahmed, P.W.3 Nazar Muhammad, S.-I. And P.W.4 Muhammad Rafiq were amongst the persons who caught the accused when he was found taking away Aisha who was unconscious.
6. ' P.W.5 Waqar Aslam was posted as A.C./S.D.M., Loralai. He supervised the raid/search of the room of the house occupied by accused, which resulted in recovery of 38 items listed in Exh. P .5/A .
7. ' P.W.6 Mir Sanad, S.-I., at the relevant time was posted as S.H.O. Police Station Loralai, he registered the F.I.R. Exh.P.6/A and stated about recovery of Aisha P.W.6 stated about receiving of clothes of Aisha at hospital which handed over to Investigating Officer vide memo. Exh.P.6/B. He also produced the memo. Exh.P.6/C about search of the room of accused.
8. ' P.W.7 Dr. Tariq Mehmood stated about medical examination of Aisha and issuance of medical certificate Exh.P.7 ' P.W.8 Dr. Abdul Qadir Mengal issued certificate Exh.P.8/A about the medicines allegedly recovered from the room of the accused.
9. ' P.W.9 Dr. Ghulam Raza examined the accused and issued-medical certificate Exh.P.9/A.
10. ' P.W.10 Fateh Ullah constable witness to the seizure of the clothes of Aisha, was also witness to the search of the room of the house occupied by accused and seizure of the silk handkerchief, TV, VCR and five video cassettes recovered from the room of the accused. P.W.10 identified his signatures on the memos. Exh. P 10/A , Exh. P . 10/B and Exh. P . 10/C ' P.W.11 Muhammad Akram Khan D.S.P. Conducted formal investigation during which he inspected the place of incident and prepared memo. Exh.P.11/A. He obtained the medical certificates about examination of Aisha and accused, the report of Chemical Examiner Exh.P.11/B about examination of clothes of Aisha and the silk handkerchief. On completion of investigation he submitted challan Exh.P.11/C.
11. ' After prosecution closed its side, accused was examined under section 342, Cr.P.C. Wherein he denied the case of prosecution and pleaded to be innocent. Accused got recorded his statement on oath within the purview of section 340(2), Cr.P.C. Wherein he stated that on the day of incident he remained in college from 8-30 a.m. To 1-00 p.m. According to accused he was going to the clinic of Dr. Sattar where he worked in evening hours and on his way he found the child who was unconscious, whom he picked and while he was taking her to the mosque, he was caught by police. Accused further stated that he did not kidnap the child. Accused supported his plea by examining D.W.1 Muhammad Riaz Assistant Professor Degree College, Loralai, D.W.2 Tariq Mehmood Lecturer and D.W.3 Abdul Wadood Librarian.
12. ' The learned trial Court concluded the proceedings by means of judgment, dated 21-5-2001, whereby the appellant has been convicted and sentenced in the aforementioned terms.
13. ' Ch. Mumtaz Yousaf, the learned counsel for the appellant challenging the conviction of the appellant argued that no evidence, whatsoever could be brought on record to connect the appellant with the commission of offence. There is no eye-witness of the incident about kidnapping of the child by accused and the statement of victim was not recorded. So much so that the appellant was not got identified by her, in absence of which appellant cannot be connected with the crime. The search and recoveries allegedly made from the room of the house allegedly occupied by the appellant was in violation of provisions of section 103, Cr.P.C. Evidence of prosecution is contradictory, while the defence plea was totally ignored. According to the learned counsel for the appellant the findings of the learned trial Court based on misappreciation of evidence and against the settled principles of administration of_ criminal justice cannot hold the field.
14. ' Mr. Anianullah Khan Tareen, the learned Assistant Advocate-General supported the impugned judgment and argued that the child in unconsciousness condition was recovered from the custody of accused who further led to the recovery of anesthetic medicine and other articles including TV, VCR and video cassettes containing pornographic material which coupled with the report of Chemical Examiner about handkerchief being stained with semen connects the appellant with the commission of offence who has already been convicted for a similar crime, hence the findings and the conclusion drawn by the trial Court being inconsonance with the evidence available on the record call for no interference.
15. ' The submissions made by the learned counsel for the parties considered, record of the case perused. The case of prosecution is that on 19-4-2000 at about 10-30 a.m. Aisha went missing and subsequently at about 2-15 p.m. Appellant was found carrying her, while she was unconscious and appellant allegedly after administering anesthetic drug to her also got himself discharged on her.
16. On the other hand, defence without disputing the recovery of Aisha in unconscious condition from the possession of accused, pleaded that he remained in the college from 8-30 a.m. To 1-00 p.m.
17. While Aisha was found by him lying unconscious on the road when he was on his way to the clinic of Dr. Sattar and he was taking her to the mosque.
18. ' However, prosecution in order to prove the recovery of the child from the custody of appellant examined 3 witnesses namely P.W.2 Mukhtar Ahmed, P.W.3 Nazar Muhammad S.-I. And P.W.4 Muhammad Rafiq who in their statements stated about making search for Aisha who reportedly went missing at about 10-30 a.m. After she went to answer the knock on the door. According to P.Ws. At about 2-15 p.m. When they reached near Al-Jamiat School they saw appellant carrying Aisha, appellant was caught and the child was taken from him who at the relevant time was unconscious. In cross-examination P.W.2 admitted that Jamal mosque is on the way, where appellant was going. He further admitted that announcement about missing children are made from the mosque, however, P.W.2 denied that appellant disclosed that he was taking the child to Jamal mosque for making announcement and the witness voluntarily added that the appellant had already crossed Jamal mosque. P.W.2 admitted that prior to the said incident, another child was kidnapped who was murdered and police was being pressurized by the public. P.W.2 stated that he was informed by the family of the child that she went missing at 10-00 a.m., however, he expressed his ignorance about appellant being in college from 9-00 a.m. To 12-30 p.m. P.W.2 in cross-examination admitted that announcements for lost/missing children are made in the mosque, he further admitted that on the said date announcement about Aisha was made from number of the mosque. P.W. 3 also admitted that a week before the said incident another child was kidnapped who was murdered, however, he expressed his lack of knowledge that police was provided period of one week for arrest of accused involved in the murder of Khadeeja Bibi. P.W.
19. Denied that the child was recovered from the appellant in populated area and Jamal mosque was situated nearby, he voluntarily stated that the appellant had gone a furlong away from Jamal mosque towards the graveyard. P.W.3 stated that he was informed by the family of the child that she went missing at about 10-00 a.m. And he expressed his ignorance that on the day of incident appellant was in the college from 9-00 a.m. To 1-00 p.m. P.W.4 in cross-examination admitted that announcement about Aisha was made from the mosques. P.W.4 admitted that the mosque is situated nearby Al-Jamiat School however, he voluntarily added that appellant after crossing the mosque was going forward. P.W.4 was, confronted with his statement under section 161, Cr.P.C.
20. Wherein he did not state that the appellant was carrying the child on a bicycle. P.W.4 admitted that in connection with kidnapping and murder of Khadeeja, police was under pressure, however, he expressed his ignorance that police is rewarded for arrest of an accused. According to P.W.4 subsequent to the incident he came to know that appellant Akhtar Muhammad is student in Degree College Loralai. He further stated that the parents of the child informed him that the child went missing at 10-30 a.m. He further stated about his lack of knowledge that appellant was in college from 9-00 arm. To 1-00 p.m.
21. ' Statements of P.Ws.2, 3 and 4 and their cross-examination by defence reflect that the fact that Aisha being in unconscious condition, was recovered from possession of appellant has not been disputed; the said fact is rather admitted, whereas the plea of appellant that he was taking Aisha to Jamal mosque has been denied by all the three P.Ws. By stating that accused had already crossed the mosque.
22. ' Before examining the circumstantial evidence such as recovery of anesthetic drug, TV, VCR and report of Chemical Examiner, the defence plea about appellant being in college at the relevant time needs to be dealt with as the appellant who is admittedly student of B.Sc. In Degree College Loralai, claimed that he remained in the college from. 8-30 a.m. To 1-00 p.m. And to support his plea he examined three witnesses. D.W.1 Muhammad Riaz, Assistant Professor in his statement stated that appellant is known to him. According to D.W.1 on 19-4-2000 his period was from 10-30 a.m. To 11-10 a.m. He produced the photocopy of the register Exh D.1/A, wherein appellant was marked present on 19-4-2000. D.W.1 excluded possibility of leaving of any student after marking his attendance. D.W.3 Abdul Wadood Lecturer produced the photocopy of the register Exh.D.3, wherein appellant was shown to be present. In cross-examination D.W.3 stated that his period was from 9- 10 a.m. To 9-50 a.m., D.W.3 admitted that even after making the student present, he can leave the class and he further expressed his ignorance that appellant after marking his presence left the class.
23. ' In addition to above defence examined D.W.3 Tariq Mehmood Librarian, who produced the photocopy of register Exh.D.2 according to which on 19-4-2000 the appellant was issued book "Guria Gaar". In cross-examination D.W.3 admitted that time of issuance of the book is not mentioned in Exh.D.2.
24. ' The defence evidence if believed as it is, does not explain that except attending of two periods from 9-10 a.m. To 9-50 a.m. And 10-30 a.m. To 11-30 a.m. How the remaining time from 8-30 a.m. To 1-00 p.m. Was spent by the appellant, while statement of D.W.3 negates the statement of D.W.1 about exclusion of possibility of leaving of class by the appellant even after marking him present.
25. The statements of D.W.1 and D.W.3 coupled with as the evidence of D.W.2 about issuance of a book to the appellant on 19-4-2000 without mentioning the time; could prove presence of accused/appellant in the college from 8-30 a.m. To 1-00 p.m. So as to make it improbable for accused to kidnap the child as there remains gap of time which accused could not account for and no evidence was produced to show that accused did not leave the college during the uncounted gap. Furthermore plea of appellant that he was taking Aisha to the mosque to make announcement has been repelled by all the P.Ws. Who stated that appellant had already crossed the mosque. So much so that P.W.3 stated that appellant after crossing the mosque had travelled about one furlong towards the graveyard and appellant who failed to confront any of the P.Ws.
26. About the place wherefrom he picked Aisha in unconscious condition, in the stated circumstances cannot be believed to be taking the child to the mosque.
27. ' Adverting to the recoveries made from the room which was allegedly in exclusive possession of appellant. The evidence of P.W.5 Waqar Aslam who at the relevant time was posted as AC/SDM Loralai stated that on 19-4-2000 he supervised the raid conducted on the house of appellant; during the raid 38 items were recovered from the room of appellant. According to P.W.5 the room was locked and was opened by appellant himself. P.W.5 stated that the raid was conducted only after 10 minutes of arrest of appellant. P.W.5 produced Exh.P.5/A the list of items recovered from the room of appellant. Similar statements have been made by P.W.6 Mir Sanad S.-I. And P.W.11 Muhammad Akram D.S.P. All the above three P.Ws. Were cross-examined at length but nothing beneficial to the defence could be brought on record. The objection of defence about non- associating of any public person/resident of locality is found to be having no substance as the raid and search of house of appellant was supervised by a Magistrate and appellant himself was present at the relevant time. The circumstances reflect that it was not a search to attract the provisions of section 103, Cr.P.C. Therefore, the said lapse on the part of Investigating Officer cannot be considered fatal to the case of prosecution when the evidence of P.Ws.5, 6 and 11 against whom defence failed to bring on record any material reflecting their personal grudge or ill motive for false involvement of the appellant in the crime, proves the recovery of the item mentioned in Exh.P.5/A from the room of the house which was in exclusive possession and control of the appellant. At this stage we feel (it necessary) to observe that the evidence and cross-examination of the P.Ws.
28. Reflect that the house was occupied by the appellant and his parents only and there is no evidence to show that appellant was having any brother or sister residing in the house, while mother of appellant as per his own showing is midwife in the hospital and father is also employed in the hospital and presence of either of them or any other person at the time of raid and recovery is not reflected from the evidence and they are also found to be not available in the house during morning hours.
29. ' The recovered items including "Kataiar" injection and "Ethyle Chloride spray" which according to P.W.8 are anesthetic agents. The appellant made an attempt to show that the said items were used by his mother who is a midwife/Dai but the said plea of appellant was negated by P.W.8 who stated that the said drugs are not used by Dai/Midwife. Besides the mother of appellant did not come forward to support the appellant in said regard. The plea of accused reflects his implied admission of recovery of the said drugs. Furthermore, 38 items recovered from the room of appellant includes silk clothe/handkerchief which was allegedly stained with semen, which fact has been confirmed by Exh.P.11/B the report of Chemical Examiner which fact could not be disputed by the defence. In addition to above TV, VCR and video cassettes containing pornographic material were also recovered from the room of appellant who admitted the recovery of TV, VCR but denied the recovery of video cassettes containing obscene/pornographic material but as already stated the said recovery stands proved from the evidence of P.Ws.5, 6 and 11 and the admission of appellant about recovery of TV, VCR, further supports the said recovery.
30. ' The evidence of prosecution and the defence plea after due appraisal of evidence in view of the discussion made hereinabove portrays that appellant was found carrying Aisha who was unconscious and was being taken towards the graveyard, while from the room of appellant in addition to anesthetic injection and spray certain other items such as clothe(s) stained with semen and obscene video cassette were recovered. The collective outcome of the above circumstances leave no room to doubt about involvement of appellant in commission of offence under section 364-A, P.P.C. Prosecution is therefore, found to have proved the charge against accused/appellant without any shadow of doubt and we find no circumstance to interfere either in the conviction order or the sentence awarded to the appellant by the trial Court.
31. ' The appeal thus, having no merits is dismissed.