CH. MUHAMMAD YOUNIS, J.---The appellant Ghulam Hussain has preferred the instant appeal against the judgment dated 14-2-2011 passed by Mr. Javed Iqbal Warraich, learned Additional Sessions Judge Gujar Khan, whereby he convicted him under section 496-A, P.P.C. And sentenced to 2 years' R.I. And a fine of Rs.5,000 and in default of payment of fine he was required to undergo further 2 months' S.I. The benefit under section 382-B, Cr.P.C. Was however extended to him.
2. The appellant was challaned and sent up for trial in case F.I.R. No.209 dated 16-4-2010 registered at P.S. Gujar Khan under section 365-B, P.P.C. The charge was framed against the appellant on 28- 10-2010 under section 365-B, P.P.C. To which the appellant pleaded not guilty and the prosecution was directed to produce its evidence. The prosecution produced only 3 witnesses in support of its version. P.W.1 Sh. Abdul Hameed who happens to be the real father of the victim P.W.2 Mst. Aneela Ambreen, is the complainant of this case. He deposed that Mst. Shaheen Akhtar came to his house and asked his daughter P.W.2 Mst. Aneela Ambreen aged about 22 years to accompany her to hospital so his daughter left the house with Mst. Shaheen Akhtar and when she did not return for a considerable time he and his son Tahir Hameed starting searching for her and at Hayatsir Road they found a carry van in which the appellant Ghulam Hussain was present along with the co- accused Ansar Mahmood, Mst. Shaheen Akhtar and Ghazanfar. They were taking away his daughter in the said vehicle. He made hue and cry and chased the vehicle in Rikshaw but in vain so he lodged the F.I.R. Exh.PA/1 by moving complaint Exh.PA to the police. P.W.2 Mst. Aneela Ambreen the star witness of this case being the alleged abductee. She stated that she was taken away. By the appellant and the co-accused in a deceitful manner to Muzaffarabad, Azad Kashmir where she was confined in a room and the appellant asked her to marry him but she refused to do so and on the same night finding an opportunity she managed to escape through a window, came on the road, got a bus and in the next morning she reached her house. She also got her statement recorded with the Investigating Officer after few days and also made a statement under section 164, Cr.P.C. Before the Magistrate which is Exh.PB. The third witness is the Investigating Officer Anwar Javed, Javed, SI who on receipt of complaint Exh.PA scribed the formal F.I.R. Exh.PA/1, visited the place of occurrence and prepared the site plan Ex-PC. He recorded the statements of the P.Ws. And on 21-4-2010 the complainant informed him about the return of the abudctee and on the same day he recorded her statement under section 161, Cr.P.C. Later on her statement was got recorded under section 164, Cr.P.C. On 26-4-2010 the complainant moved an application along with an affidavit exonerating Mst. Shaheen Akhtar, Ansar and Ghazanfar who were also found innocent during the investigation. After concluding the trial the appellant was examined under section 342, Cr.P.C. Who took the following defence plea in response to the question No.8.
"Mst. Aneela Ambreen daughter of complainant was in love with me and wanted to marry me. I also love Mst. Aneela Ambreen with true faith of my heart. I have sent my parent and relatives to the house of the complainant to demand hand of Mst. Aneela Ambreen, but he refused as I belong to different caste and a poor man. Despite refusal of complainant Mst. Aneela Ambreen remained in contact with me and used to write lover letters to me. When this fact came into the knowledge of complainant he became annoyed and forbade me and Mst. Aneela Ambreen to have any connection. But even then I continuously remained in contact with Mst. Aneela Ambreen as I love her with true faith of my heart. In order to remove me from the life of Mst. Aneela Ambreen, the complainant cooked up this concocted story of abduction of Mst. Aneela Ambreen. I love Mst. Aneela Ambreen and could not even think to abduct her. Story of taking of Mst. Aneela Ambreen by Mst. Shaheen Akhtar for taking medicine and her abduction from Hayatsir Road and taking her to Muzaffarabad is nothing but a garbage of life.
Due to above stated grudge the complainant had deposed against me and also threatened Mst.
Aneela Ambreen of (done to) death to make her to depose against me. She has only become a false witness against me because of pressure and threat of her father."
3. The learned trial Court after hearing the arguments proceeded to amend the charge under section 496-A, P.P.C. As from the evidence on the record the offence under 365-B, P.P.C. Was not made out so he convicted the appellant to 2 years' R.I. And a fine of Rs.5,000.
4. Feeling aggrieved of his conviction the appellant has assailed the judgment dated 14-2-2011 on the grounds that the prosecution had miserably failed to prove its case against him but in spite of it the learned trial court illegally convicted him under section 496-A, P.P.C. The prosecution version is full of material contradictions so the impugned judgment is not sustainable in the eye of law.
5. The learned counsel for the appellant argued that the story concocted by the complainant and P.W.2 Mst. Aneela Ambreen was quite un-natural and unbelievable. She was never recovered from the custody of the appellant nor any abduction was proved. He never made any effort to have sexual intercourse with her. If she had returned on the very next day her statement should have been recorded on the same day but up to 22-4-2010 her statement was not recorded. She remained with her parents during this period and her statement was recorded after due deliberation and with an inordinate delay which could not be relied upon. Similarly, her statement under section 164, Cr.P.C. Was not proved in accordance with law. Moreover, it was recorded after a delay of 9 days so the same carries no weight. On the basis of same evidence the co-accused were acquitted. The application moved by the complainant (Exh.DA) itself makes the case doubtful and the conviction cannot be, sustained.
6. The complainant did not turn up in spite of service. 'However, Mr. M. Usman, learned DPG has vehemently opposed the appeal and argued that in the light of evidence on the record the prosecution has successfully proved its case regarding abduction of Mst. Aneela Ambreen for the purpose of forcing her to contract marriage with the appellant. As regards the delay in recording the statement of Mst. Aneela Ambreen, she was mentally disturbed so she could not get her statement recorded immediately after her return. In her statement under section 164, Cr.P.C. She fully implicates the appellant and the co-accused in this case. The learned DPG while defending the judgment of conviction argued that sole statement of the abductee was enough to convict the appellant so the learned trial court has rightly convicted and sentenced him and the impugned judgment warrants no interference by this Court as the same suffers from no legal infirmity.
7. I have considered the arguments advanced from both the sides.
8. There are only important two witnesses i.e. P.W.1 Sh. Abdul Hameed (complainant) and P.W.2 Mst.
Aneela Ambreen (abductee) on whose testimony the fate of the entire prosecution case depends.
It is proved on the record that the alleged abductee left the house of her parents with her own free consent. According to her statement she had come to know after a short time that she was being taken away to Muzaffarabad. During such a long journey she never resisted or informed anyone about her abduction at the Toll Plaza or the police pickets. There is no evidence on the record that the abductee was ever compelled to contract marriage. The appellant only proposed her to marry which she refused. There is no element of force having been used against the abductee for fulfilling this object by the appellant. While appearing as P.W.2 in the witness box she made several dishonest improvements to bring the case in line with the prosecution story. Some love letter Mark- A to Mark-E were also put to her having been written by her to the appellant. Although she denied the same but the fact remains that the defence version when put in juxta position with the prosecution version seems to be more probable. There is nothing on the record to suggest that the appellant had any intention to outrage her modesty or commit sexual intercourse with her. There is no plausible explanation on the record for not making the statement to the police on 16-4-2010 when she returned or at the most on the next day. She and the complainant kept silent for 6 days and as per statement of the complainant he even did not inform the Investigating Officer about the return of his daughter till 21-4-2010. The alleged abductee remained in custody of her father for long 6 days and the statement made by her on 22-4-2010 and 24-4-2010 before the Investigating Officer and the Magistrate are nothing but afterthought and result of due deliberation. The complainant also made several dishonest improvements in his statement while appearing as P.W.
In the witness box and taking into consideration their conduct the learned trial Court has rightly observed that the evidence of P.W.1 and P.W.2 was not trustworthy. The complainant himself negated the entire prosecution story by moving an application Exh.DA by exonerating the co- accused Mst. Shaheen Akhtar, Ansar and Ghazanfar. The testimony of the complainant is quite unbelievable as he claims to BE accompanied by his son Tahir Hameed and they had seen the appellant and the co-accused taking away the abductee in a carry van. Admittedly, both of them had mobile phones with them but they never informed the police or Rescue 15 Center though the same was located nearby and transport (Rickshaw) was also available as per version of the complainant. The learned trial court came to the conclusion that the offence under section 365-B, P.P.C. Was not made out but it is very strange that he convicted the appellant under section 496-A, P.P.C. Which is attracted only in case where the woman is enticed away with the intent that she may have illicit intercourse with any person, or is concealed or detained with that intent. The ingredients of this section are not attracted in the present case. There is absolutely no allegation by the abductee that she was ever forced to have sexual intercourse with the appellant or that she was abducted for this purpose because if it was so there was nothing to prevent the appellant to fulfil his desire. There is not even allegation of an attempt by the appellant to have sexual intercourse with the abductee in spite of fact that she was completely at the mercy of the appellant.
9. In the light of the above discussion, I have reached an irresistible conclusion that the prosecution has miserably failed to prove its case beyond any shadow of doubt against the appellant and the conviction recorded by the learned trial Court through the impugned judgment is not sustainable in the eye of law. The prosecution case, was full of material discrepancies and fatal contradictions so keeping in view the facts and circumstances of the case the appeal is allowed, the impugned judgment is set aside and the appellant who is on bail is hereby acquitted. He as well the surety stand discharged of their liability.