HAIDER ALI KHAN, J.---This judgment shall also dispose of connected criminal appeal bearing Cr.
A. No,181-M of 2014, as both the appeals arise out of one and the same judgment dated 23-5-2014 of the learned Additional Sessions Judge-III/Izafi Zilla Qazi, Swat, delivered in case FIR No,36 dated 8-1-2013, under sections 496-A, 496-B, 328, P.P.C. Of police station Tor Gul Shaheed, Saidu Sharif, District Swat, whereby accused Ibrar Ahmad has been convicted under section 496-A, P.P.C. And sentenced to rigorous imprisonment of seven years and to pay fine worth Rs,30,000 or in default thereof to further undergo one month S.I. Likewise, accused Mst. Sheema has been convicted under section 328, P.P.C. And sentenced to seven years rigorous imprisonment and also to pay fine of Rs,30,000 or in default thereof to suffer one month's S.I. Benefit of section 382-B, Cr.P.C. Has been extended to both the convicts.
2. Brief facts of the case are that vide Daily Diary No,27 dated 26-12-2012, complainant Mst. Noor Jehan made report to local police to the effect that on said date she along with her granddaughter Sohana and daughter-in-law Mst. Sheema had gone to Central Hospital, Saidu Sharif, Swat and after medical checkup of the ailing kid, they were returning to their home; that they when reached the main gate of hospital complainant fell down and was helped by her granddaughter Sidra in getting up; that in the meanwhile, when she looked behind, her daughter-in-law accused Mst.
Sheema was boarding a black colour motorcar and went towards Mingora. On this inquiry, under section 156(3), Cr.P.C. Ensued during course of which Mst. Sheema was produced to local police by elders of the locality on 16-1-2013. On 17-1-2013 complainant recorded her statement' under section 164, Cr.P.C., wherein she charged accused Ibrar Ahmad for the commission of offence, whereas accused Sheema also recorded her statement on the said date wherein she admitted her relations with accused Ibrar Ahmad. On the basis of such inquiry, the aforementioned case was registered.
3. After completion of investigation, complete challan was submitted to the trial Court, which indicted the accused for the offence but they pleaded not guilty and claimed trial. The prosecution to substantiate its case, produced and examined as many as twelve witnesses, whereafter statements of accused under section 342, Cr.P.C. Were recorded wherein they professed innocence, however, neither they produced defence evidence, nor opted to be examined in terms of section 340(2), Cr.P.C. It is worth mentioning that the learned Judicial Magistrate vide order dated 15-3-2014 sent the case file to learned Sessions Judge with the observation that the case warranted severe punishment which was beyond his jurisdiction, therefore, the case filed was entrusted to the Court Additional Sessions Judge-III/Izafi Zilla Qazi, Swat, who after hearing the arguments, convicted the accused, as mentioned above. Hence, the instant appeal.
4. Learned counsel for the appellants contended that the impugned conviction and sentences are the outcome of mis-appreciation and non-appreciation of the evidence and other material available on the file; that the occurrence is unseen and there is also unexplained delay in lodging of the report; that in view of the observation of learned trial Court with regard to dishonest investigation, both the appellants deserved outright acquittal; that the alleged confessional statement does not hold any water because same has been recorded by violating provision of section 364(2), Cr.P.C; that statement of Mst. Noor Jehan recorded as P.W.9 before the trial Court is not in line with the statement recorded under section 164, Cr.P.C. Because she while appearing before the Court did not charge anyone; that the statement under section 164, Cr.P.C. Of Mst.
Sheema was recorded on 17-1-2013 i.e, after 23 days of the occurrence; that the recovery memo Exh.P.W.6/2 vide which Sidra Bibi produced certain articles/gifts to the Investigating Officer is fake and bogus for .The reason that though her statement under section 161, Cr.P.C. Was recorded by the I.O., but during course of trial she was not produced before the Court; that as Sidra Bibi was stated to be the witness of receiving gifts by her mother from convict-appellant Ibrar Ahmad, therefore, she could possibly identify accused Ibrar and her non production, before trial Court has created a serious dent in the prosecution case. Learned counsel also referred to the confessional statement of convict-appellant Ibrar Ahmad and stated that the same is based on duress and coercion which could not be made base for his conviction. Learned counsel concluded that keeping in view the facts and circumstances of the case, the impugned convictions and sentences are liable to be set aside.
5. Conversely, learned A.A.G. Assisted by learned counsel for the complainant argued that in the light of evidence and material available on the file, the prosecution successfully proved its case against the accused, therefore, the learned trial Court has rightly passed the judgment of conviction which is based on sound reasons and needs no interference.
6. Arguments heard and record perused from cover to cover.
7. Admittedly, vide Daily Diary No,27 dated 26-12-2012, report regarding the elopement of convict Mst. Sheema was lodged by Mst. Noor Jehan P.W.9 against unknown accused, whereafter inquiry under section 156(3), Cr.P.C. Began which culminated in registration of present case. The inquiry conducted by Ijaz Khan ASI, P.W.8, is of immense importance because the whole case hinges upon said inquiry. During course of inquiry, Baghiram Jan, husband of the complainant produced two cellular phones, Exh. PA and Exh.PB and recovery memo. Exh.P.W.6/1 was prepared. P.W.8 also took into possession certain articles i.e. Vase, purse, necklace exhibited as Exh.PC, which were handed over to him by Sidra Bibi and to this effect he prepared recovery memo. Exh.P.W.6/2. So, keeping in view the above recoveries, it was required by the Inquiry Officer to have collected the CDR data of the SIMs installed in Exh PA and Exh.PB, but he did not bother to do the needful in spite of opinion to that effect by the concerned Public Prosecutor. Even Rasool Khan.- ASI, P.W.10, conducted the investigation, but he also, did not make inquiry as to on whose name the SIMs were registered, nor he collected the CDR data pertaining to the same. Similarly, the FSL report regarding the swabs was not obtained and placed on the file by the I.O. (P.W.10). Likewise, no effort was made by both the P.W.8 and P.W.9 to have collected any evidence from Peshawar and Karachi, where the convicts alleged to have stayed for twenty days. Moreover, Sidra Bibi daughter of convict Sheema although was examined under section 161, Cr.P.C. With respect to alleged gifts, as mentioned above, but she was not produced before the Court. Had she been deposed before the Court, it could be the best evidence available with the prosecution.
8. Complainant Mst. Noor Jehan deposed before the Court as P.W.9 and exhibited her report as Exh.P.W.9/1, in which she had charged accused Ibrar, but while appearing before the Court, she, in her examination-in-chief, did not charge anyone.
9. However, despite the shortcomings and failings on the part of prosecution, the ocular testimony stood corroborated by the judicial confession of appellant Ibrar Ahmad recorded by Akbar Ali Khan, Judicial Magistrate/Illaqa Qazi (P.W.11). The questionnaire, confessional statement and certificate are Exh.P.W:11/1 to Exh.P.W.11/3, respectively. Learned Judicial Magistrate stated before the trial Court that he has complied with legal formalities while B recording confessional statement and when he was satisfied that the appellant wants to record his confession voluntarily, without any duress then he recorded his confession. No doubt, the appellant retracted from his confession in his statement recorded under section 342, Cr.P.C. But mere retraction by the accused from his confessional statement, by itself, is not sufficient to affect its validity because it has now been settled that conviction can be based on confession alone even though retracted, if the same is found to be true and voluntary. Reliance can be placed on the case titled Muhammad Ismail and another v. The State (1995 SCMR 1615) and Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others (2001 SCMR 988).
10. In view of the above facts and circumstances in the backdrop of prosecution evidence, it is held that the prosecution was successful in bringing home the charge under section 496-A, P.P.C., however, keeping in view the tender age of convict Ibrar Ahmad and also that he has no criminal record, while maintaining the conviction, the sentence is reduced from the maximum of seven years given by the trial Court to three years' R.I. And fine is also reduced to Rs.10,000 and in default to further undergo ten days.
11. Now coming to the facts surrounding the conviction against appellant-convict Mst. Sheema, who was charged under section 328, P.P.C. In order to have clear-cut understanding of the offence she stood charged with, it is important to reproduce section 328, P.P.C., which is herein below:-
328. Exposure and abandonment of child under twelve years by parent or person having care of it. ---Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both".
The careful reading of the above-quoted section reveals that emphasis has been placed on "exposure" of the child which presupposes the element of eminent and real danger or threat and also. "with intention of wholly abandoning the child". I am afraid it was not the case of the exposure and the abandonment of the two minor daughters of the convict because this is the case of prosecution that the complainant and the appellant-convict in the company, of her two minor daughters Sidra Bibi and Sohana, had gone to the hospital wherefrom she eloped with her co- accused. According to the statement of complainant, after the elopement of her daughter-in-law and the mother of her two granddaughters she called her husband and they went to the police station. She further admitted in her cross-examination that the above-said two daughters and one son of the appellant-convict are well taken care of and live in a joint family with their paternal uncles and aunts and they are not suffering in any respect from the elopement of their mother. In view of the above, I am left with no choice but to hold that a temporary neglect is not sufficient to record conviction and the expression abandoning the child in the given circumstances does not come within the contemplation of section 328, P.P.C. The said children of the convict E appellant, at the time of commission of the offence were in the immediate care of their grandmother and were protected as such. It is also important to hold that mere going away from the children, as in the present case, is not sufficient to press into service the provisions of section 328, P.P.C. It is also an admitted principle of F interpretation of penal law that it has to be construed and interpreted in a very strict manner and more liberal and broad interpretation is to be avoided for the safe administration of justice. Therefore, keeping in view the facts and circumstances of the case the sentence awarded to appellant Mst. Sheema is set aside and she is acquitted of the charge levelled against her. She be released forthwith, if not required to be detained in any other case.
12. Above are the reasons of my short order dated 27-1-2015 in Cr. A. No.181-M of 2014.