' SADAQAT ALI KHAN, J.---The instant Criminal Appeal No.255/2011 has been filed by the present appellant/convict against the judgment dated 28-6-2012 passed by the learned Additional Sessions Judge Yazman, according to which appellant was convicted and sentenced to undergo imprisonment for life under section 365-B, P.P.C. With fine of Rs.100,000 (One hundred thousand rupees) in case of default of payment of fine the convict was directed to further undergo Si, for three months in case F.I.R. No.819/2009 dated 11-12-2009 under section 365-B, P.P.C. Police Station Yazman District Bahawalpur. However, benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. Brief facts of the instant case arising out of the written application Exh.PAA of Abdul Rehman complainant P.W.3 are that "I am a cultivator and resident of Chak No.41/DB. I have three sisters, out of whom Mst. Shumaila Bibi aged 13/14 year is studying in Class-V. Muhammad Qasim son of Muhammad Sharif, Caste Sial resident of Basti Mochian Mauza Gul Pur Ichrani was on visiting terms to my house, who developed illicit relations with my sister Mst. Shumaila Bibi. I forbade said Muhammad Qasim from coming to my house. On 1-12-2009 I along with my family members had gone to Yazman connection with some personal business while my sister Mst. Shumaila Bibi was alone in the house. When we returned back, my sister Mst. Shumaila Bibi was not present in the house. I, my father Muhammad Iqbal and Muhammad Ayub son of Sardar Ali went out for search.
During search we reached Lorry Adda, Bahawalpur where we met Sagheer Ahmad son of Wakeel Ahmad an Muhammad Adnan Bashir son of Bashir Ahmad, who told that they had seen Mk.
Shumaila Bibi along with Muhammad Qasim and one unknown person about one hour before at Lorry Adda, Bahawalpur waiting for a bus for Lahore. The above said witnesses further told that on their asking, they (Qasim, etc.) told. That mother of Mst. Shumaila Bibi was admitted in the Hospital at Lahore and they were going to see her. Whereupon I along with above said witnesses went to the house of Muhammad. Qasim in Mauza Gul Pur Ichrani. Muhammad Sharif, father of Muhammad Qasim was present in the house who told that his son had gone to Lahore one month ago in order to earn his livelihood. Despite best efforts we have failed to find any clue of my sister Mst. Shumaila Bibi and that Muhammad Qasim and one unknown person who have abducted her for the purpose of committing rape with her.
3. After completion of investigation challan was submitted in the trial Court and trial Court framed charge on 2-12-2010 after observing legal formalities as provided under Cr.P.C., against the present appellant Muhammad Qasim to which he pleaded not guilty and claimed trial. Prosecution evidence was summoned. Prosecution produced Saghir Ahmad, P.W.1, Dr. Zafar All Chaudhry, M.O., P.W.2, Abdul Rehman P.W.3, Mst. Shumaila P.W.4, Muhammad Ayub P.W.5, Liaqat Ali, ASI P.W.6, and also produced documents application of Abdul Rehman, complainant Exh.P-AA, F.I.R. Exh.P-AA/1, Application of Police Exh.A-1/1, Rough site plan Exh.P-B, Nikah Nama Exh.P-C, Affidavit Exh.P-C/1, Recovery memo of affidavit Exh.P-D, Application for medical examination of appellant Exh.P-E. The statement of the accused present appellant was recorded under section 342 of Cr.P.C. In which present appellant refuted the allegations levelled against him. He has not opted to produce himself under section 340(2) of Cr.P.C. However, he produced documents, copy of statements of Mst.
Shumaila recorded Under section 161, Cr.P.C. Exh.D-A, Copy of statement of Muhammad Ayub recorded under section 161, Cr.P.C. Exh.D-B, certified copy of Nikahnama of Muhammad Qasim with Mst. Shumaila Bibi dated 2-12-2009 Exh.D-C, Attested copy of letter. No.S.B.B. W.C.L/C/F/844/09.1.200 dated 10-12-2009 from Mrs. Rabia Usman, Managar, .Women, Center, Lahore to Superintendent, Darul Aman, Lahore Exh.D-D, attested copy of affidavit of Mst. Shumaila Iqbal Exh.D-E. In answer to the question why this case against you and why the P. Ws. Deposed against you present appellant replied as under:-- "Mst. Shumaila solemnized marriage with me with her free will and her family members were annoyed on this. Due to that grudge and pressure of her parents the P.Ws. Deposed against me."
4. After conclusion of the trial the learned trial Court convicted the appellant and sentenced him as stated above.
5. The learned counsel for the appellant contended
(i) that the prosecution could not prove its case against the present appellant beyond the shadow of doubt.
(ii) He further contended that the learned trial court convicted the appellant in surmises and conjectures.
(iii) He further contended that there are major discrepancies in statements of P.Ws.
(iv) He contended that in view of the documentary evidence Exhs.DA to Exh.D-E produced by the present appellant in his statement during the trial negates the story of the prosecution.
(v) He further contended that prosecution, has miserably failed to prove the case against him.
(vi) He further submitted that the judgment of the trial Court dated 28-6-2012 be set aside and he may be acquitted.
6. On the other hand the learned Deputy Prosecutor-General assisted by the complainant submitted that the prosecution has proved its case with solid evidence. He further submitted that the victim herself implicated the appellant. He further submitted that the judgment of the trial Court is well reasoning and lastly submitted that appeal may be dismissed.
5.(sic.) I have heard the learned counsel for the parties' and', have perused the record.
6. According to the complaint Exh.P-AA lodged by P.W.3 Abdul Rehman complainant, occurrence took place on 1-12-2009; whereas F.I.R. Was got registered on 11-12-2009 with the delay of ten days which has not been explained properly in the F.I.R. As well as before the trial Court. The statement of the appellant was recorded under section 342, Cr.P.C. On 8-3-2012 and in answer to question No.2 you have kidnapped Mst. Shumaila on 1-12-2009 he replied as under:-- "it is a false allegation as Mst. Shumaila got married with me with her own free will."
' In answer to the question why this case against you and why P.Ws. Have deposed against you he replied as follows:-- "Mst. Shumaila solemnized marriage with me with her free will and her family members were annoyed on this. Due to that grudge and pressure of her parents the P.Ws. Deposed against me."
7. The document Exh.D-C produced by the appellant is a Nikah Nama showing marriage of alleged abductee of Mst. Shumaila with present appellant on 2-12-2009. Exh.D-D is a letter issued by Women Centre to the Superintendent, Dar-ul-Aman, Multan Road Lahore, wherein it is stated that Mst. Shumaila Bibi wife of Muhammad Qasim is registered applicant of S.B.B Women Centre, Lahore and needs protection and shelter you are requested to provide shelter for one month. Exh.D-E is an affidavit executed by Mst. Shumaila, alleged abductee in which she admitted her marriage with present appellant. P.W.1 in his statement before the court reiterated the story of the F.I.R. In cross- examination P.W.1 admitted that, he is brother-in-law of Mst. Shumaila alleged abductee. He admitted in cross-examination that his marriage with Mst. Sumera was a love marriage and in his Nikahnama the parents of the Mst. Sumera sister of Mst. Shumaila were not witnesses of marriage.
He admitted that Qasim Khan and his family was not visited terms with the family of his in-laws. He admitted in cross-examination that he had tendered affidavit at Dar-ul-Aman Lahore and that affidavit had got attested from Notary Public and he had signed the same. He admitted that management of Dar-ul-Aman had read over the statement of Mst. Shumaila Bibi to us, on the basis of which Mst. Shumaila Bibi was lodged in Dar-ul-Aman. He denied the suggestion that Mst.
Shumaila Bibi contracted Nikah with the appellant. He also denied the suggestion that Mst.
Shumaila Bibi abductee a legal wedded wife of appellant. He also denied the suggestion that Mst.
Sumaila Bibi had not consented for medical examination because she was wife of appellant but in volunteer portion he stated that she did not give consent for medical examination, since appellant had not committed zina with her.
8. Abdul Rehman appeared as P.W.3 who also reiterated the contents of his application Exh.P-AA on which F.I.R. Was lodged. He denied the suggestion that Mst. Shumaila alleged victim contracted marriage with the present appellant.
9. P.W.4 is Mst. Shumaila alleged abductee/victim. She stated in her statement that on 1-12-2009 she was present in her house alone. Mst. Irshad Bibi gave her mobile and asked to talk with appellant but she was not agreed. Mst. Irshad Bibi extended threats to her that if she would not talk with appellant, she will disclose the whole story to her parents. She further stated that she went to the house of Mst. Irshad Bibi giving her gold ornaments of her mother who forcibly made her sit and asked the victim to accompany appellant and extended above stated threats. She stated that present appellant shut her mouth and took her to Lahore due to which she could not raise hue and cry. She stated that in the Lahore appellant made telephone call to some one that he has brought a girl and if they want to take her they should contact him. P.W.4 victim stated that she finding a chance made phone call to her `Behnoi' P.W.1 Saghir Ahmed to take her back. She stated that on having come to know this fact present appellant got her lodged in Dar-ul-Aman. She stated that appellant kept her for three days in Lahore. She stated that then her `Behnoi' brought back her from Dar-ul-Aman and her statement was not recorded by the police. She stated that accused has administered to her intoxicant and committed (Ziadti) with her. She stated that she recorded her statement on return from Lahore at Bahawalpur. She stated that appellant along with some unknown persons kidnapped her and committed (Ziadti). P.W.1 in cross-examination specifically stated that medical examination of the victim Mst. Shumaila Bibi was not conducted as appellant had not committed Zina with her whereas, in the above statement of P.W.4 Mst. Shumaila Bibi has levelled allegations of (Ziadti) but her evidence has not been supported by the medical evidence as in this case medical examination of Mst. Shumaila was not conducted with her consent.
10. So the allegation of (Ziadti) is not proved in any manner against the present appellant, and was not put to appellant while recording the statement under section 342, Cr.P.C. Being incriminatory evidence, so far as the allegation of P.W.4 Mst. Shumaila Bibi against appellant that he had administered her intoxicant is also baseless. No such evidence in the shape of medical report is available on the record. She herself admitted in cross-examination that she did not move any application to authority for her medical examination. She stated in cross-examination that she does not remember whether she got recorded statement before the police, that appellant administered intoxicant and committed (Ziadti) with her. The statement recorded under section 161, Cr.P.C. Was confronted to P.W.4 as Exh.D-A where no such allegation has been levelled against present appellant or any other. The learned trial Court convicted the present appellant under section 365-B, P.P.C. Which is reproduced as under:-- "whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced, or seduced to illicit intercourse, or knowing, it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life, and shall also be liable to fine; and whoever by means of criminal intimidation as defied in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
11. In view of the above provision of law P.W.4 victim never stated in her examination-in-chief before the Court that she was compelled during the alleged kidnapping period of marry against her will with appellant and further simple alleged kidnapping was put to appellant in a statement under section 342, Cr.P.C., which allegation also could not proved in view of above stated evidence. The statement of appellant recorded under section 342, Cr.P.C. Is as under:-- ' Q. No.2. It is in the prosecution evidence that on 1-12-2009 you have named accused kidnapped Mst. Shumaila from the lawful guardianship. ' What do you say about it?
' Answer. It is false allegation on me. But Mst. Shumaila got married with me with her own free will.
' Q.No.3. It is in prosecution evidence that an application' Exh.P-E was moved by the Investigating Officer of this case to the Medical Officer, on which the concerned Medical Officer examined you and issued a medical report Exh.P-A about your potency. What do you say about it?
' Answer. Yes. It is correct.
' Q.No.4. Why this case against you and why the P.Ws. Have deposed against you?
' Answer. Mst. Shumaila solemnized marriage with me with her free will and her family members were annoyed on this. Due to that grudge and pressure of her parents the P.Ws. Deposed against me.
' Q.No.5. Will you produce any defence evidence?
' Answer. Yes.
' Q.No.6. Will you appear as your own witness in terms of section 340(2), Cr.P.C., and give evidence in disproof of the allegations levelled against?
' Answer No ' Q.No.7. Have you anything else to say?
' Answer I am innocent.
' It is held in case titled "Muhammad Shah v. The State" (2010 SCM R 1009) as under:-- "It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. Then the same cannot be used against him for his conviction."
12. In the instant case neither the allegation of (Ziadti), stated by P.W.4 in her statement nor abduction for compelling her to marry with appellant against her will was put to present appellant under section 342, Cr.P.C. So on such evidence present appellant could not be convicted.
13. From the facts and circumstances narrated above I am persuaded to hold that prosecution has badly failed to bring the guilt of the appellant to the hilt and the learned trial Court was not justified in convicting the appellant while basing upon untrustworthy and uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradictions specially unreliable story deposed by P.W.4 Mst. Shumaila Bibi victim unexplained delay in lodging the crime report in the absence of medical evidence: As per dictates of law benefit of every doubt is to be extended in favour of the accused.
14. Resultantly salutary principle of benefit of doubt is extended in favour of the appellant. This Criminal Appeal No.255 of 2012 filed by Muhammad Qasim son of Muhammad Sharif is accepted and conviction and sentence recorded by the learned trial Court vide judgment dated 28-6-2012 is set aside as a consequence whereof the present appellant is ordered to be acquitted of the charges in case F.I.R. No.819/2009 dated 11-12-2009 under section 365-B, P.P.C. Police Station Yazman District Bahawalpur and directed to be released forthwith if not required in any other case.