MUHAMMAD ZAFAR YASIN, J.--- Through this appeal, the appellants have challenged the impugned judgment, dated 11-5-2006 passed by learned Additional Sessions Judge, Kashmore, whereby all the four appellants have been acquitted of the charge under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979. However, they have been found guilty under section 365-A, P.P.C. And each of the appellants has been sentenced to suffer nine (9) years rigorous imprisonment.
2. The appellants were tried by the Court on the basis of direct complaint filed by Mst. Razia Bibi widow of Riaz Hussain alias Waheed Shah. The facts in the direct complaint briefly are as under:-- "Complainant, complains that I am residing in Town Kashmore. My husband Riaz Hussain Shah expired about one year back. Out of this wedlock, I have two children namely Hanif Abbas Shah aged about 5 years and one daughter Shahidan Bibi aged about 10 years, and maintained them by doing household work. About 8 months back, in the morning at about 8-00 hours, I along with my children and relative Shabir Hussain Shah son of Wazir Hussain Shah were sitting in the house, where Rahim Bux alias Mastano son of Khan (2) Dhani Bux, (3) Rano, both sons of Rahim Bux alias Mastano resident of Soomro Muhallah, Kashmore, (4) Bahram Shah son of unknown by caste Sayed, resident of Badani Town, all were armed with TT pistols entered into my house. On their arrival Bahram Shah said to me that today they will not spare me as their money was towards my husband, on which I told them that nothing is outstanding towards my husband because he has not informed me. Thereafter all the accused entered in the room of my house and broke the bags and took out cash Rs,12,000 golden Wala 8 numbers, weighing one Tola, two numbers of foot-Kari of silver, weighing 1/3 Kg., and they dragged my two children outside of my house on the force of weapons, on which we raised cries which attracted to Sanaullah son of Bijar Khan by caste Khoso who came running on which Shabbir Shah and Sanaullah Khoso entreated the accused not to commit cruelty but they heard nothing of them and took the children in red colour jeep, parked outside, but Bahram Shah was saying that my children were being taken to Badani Town and my daughter Shahidan will marry to anybody by force and my son would be murdered if her raise any cry against them. There I and Shabir Hussain Shah on next day went to Badani where they entreated to Baharam Shah for the return of articles, cash and children but he refused. Later on. I approached Nekmards and Zamindars of locality for my help. My witness Shabbir Shah went to Badani towards Bahram Shah to whom Bahram Shah said that children are with him he met Shabir Shah with children who were confined in a room. Bahram Shah also said Shabir Shah that they vacate the premises where I am residing thereafter they will return my children. I then went to S.H.O.
Kashmor for registration of my F.I.R., who kept me on false hopes because the accused are influential persons hence S.H.O. Did not register my F.I.R. I then submitted such application to higher authorities, but up to lodging of the direct complaint no fruitful result has received by me, and appeared in this Honourable Court by filing this direct complaint for seeking justice."
3. On 15-5-2004 charge against the appellants was framed to which they pleaded not guilty and claimed trial.
4. Prosecution produced complainant P.W.1 Mst. Razia Bibi, P.W.2 Shabir Hussain Shah and P.W.3 Sanaullah, while on the other hand the accused appellants produced in their defence Syed Zulfigar Ali Shah D.W.1 and Syed Naseer Hussain Shah as D.W.2.
5. Learned, trial Court taking into consideration the defence version that Mst. Rani alias, Shahida and her minor brother Hanif alias Hasnain Abbas are with the accused party, hence they have been convicted and sentenced as noted above. The defence version was put forward through oral evidence as well as photocopy of document of Qaboliatnama' of engagement of Mst. Rani alias Shahida aged 12 years with Gul Hassan Shah dated 19-9-2002 had been produced, which is on the file of the trial Court at page No,97. This document bears the signatures of Riaz Hussain (now dead) and the thumb-impression of his wife of Mst. Razia Bibi, the complainant, as well as Gul Hassan Shah and other witnesses. This Qaboliatnama fully supports the defence version that in fact Riaz Hussain with the consent of his wife Mst. Razia Bibi, complainant, agreed to give in marriage his daughter Mst. Rani to Gul Hassan son of Haji Syed Shah the real brother of appellant Bahram Shah.
Hence the defence version that Mst. Rani's engagement was celebrated by Mst. Razia Bibi, as well as Riaz Shah on 19th October, 2002 is beyond doubt. Today I have recorded the statement of Mst.
Rani as Court-witness, has duly been identified by the counsel for the appellant. Furthermore, I have also satisfied myself regarding her identity from the affidavit duly attested by the Oath Commissioner dated 19th of March, 2003 whereupon the attested photograph of Mst. Rani is affixed. Today in her statement she has categorically deposed that she was never kidnapped by the appellants nor her younger brother Hanif alias Hasnain Abbas was ever kidnapped by the appellants. She has deposed that as she was engaged with Gul Hassan Shah by her father and mother. Therefore, with her free-will, being of marriageable age, has contracted marriage with Gul Hassan on 20-3-2003 which was registered on 25th of May, 2003. Photocopy of the said Nikahnama has been produced today in Court and copy thereof had also been produced in the trial Court which is at page No,101. She further deposed that out of her wedlock she has got two children. She has also deposed that her minor brother namely Hanif alias Hasnain Abbas had come with her when she had gone to see her mother after her marriage and her mother has not turned up to take away her son with her as after contracting her second marriage she has gone to Punjab, hence her minor brother namely Hanif alias Hasnain Abbas is ever since residing with her.
The prosecution witnesses have. Rightly been disbelieved by the learned trial Court and all the accused have been acquitted of the charge under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
6. In view of the statement of Mst. Rani alias Shahida Bibi alleged abductee, recorded today as Court-witness, and the stand taken by the defence earlier. I have come to the conclusion that ingredients of offence punishable under section 361-A or 361, P.P.C. Are not made out and the appellants have thus committed no offence, therefore, the conviction and sentence awarded to the appellants by the trial Court is not sustainable under the law.
7. I accept the appeal and set aside the conviction passed by the trial Court under the impugned judgment. All the four appellants shall be set at liberty forthwith if not required in any other criminal case.