ABDULLAH BALOCH, J.---This appeal is directed against the judgment dated 29th August 2019 ("impugned judgment") passed by learned Sessions Judge Zhob ("the trial Court"), whereby the appellant. Hamayoun Saced Son of Illahi Bakhsh was convicted under Section 365(B), P.P.C. and sentenced to suffer imprisonment for life with fine of Rs.50,000/- or in default thereof to further suffer six (06) months S.I. with the benefit of Section 382-B, Cr.P.C., while co-accused Abdul Salam was acquitted of the charge.
2. Facts of the case are that on 9th July 2017, the complainant Hazrat Ali son of Dad Ali, lodged FIR No.98 of 2017 at Police Station Zhob, under Sections 365 B, 346, 34, P.P.C., stating therein that he is resident of Sherani Bazar Zhob and on 27th May 2017 at about 11.00 a.m. his sister namely Zahira aged 13/14 years went out of home and did not come back. On 31st May 2017, he submitted a written complaint before the police and therefore he himself searched whereof of his sister. It is alleged that on 6th July, 2017 at about 08.00 p.m. he was informed by one Abdullah Jan resident of village Appozai that his sister Zahir was found by him near the forest. He was alone at home at that time and called his relatives, after 1.00 a.m. he along with his relatives went to Police Station Zhob and informed the police. The police along with the complainant went and brought his sister in supervision of lady constable to Police Station. His sister disclosed that the accused Hamayoun Saeed had confined and kept her secretly in a small room of City Centre Zhob and was committing illicit intercourse with her.
3. After completion of investigation challan was submitted in the learned trial Court against the appellant, acquitted- accused Abdul Salam and absconding accused Imran. At the trial, the accused Imran was declared as proclaimed offender by the trial Court after initiating proceedings under sections 87 and 88, Cr.P.C. The appellant and acquitted accused denied the charge, to which the prosecution examined eight witnesses , whereafter the appellant and acquitted accused were examined under section 342, Cr.P.C. whereas only the appellant has recorded his statement on oath under section 340(2), Cr.P.C., but did not produce any witness in his defence. On conclusion of trial and after hearing arguments, the trial Court through impugned judgment awarded conviction and sentence to the appellant, while acquitted the co-accused Abdul Salam. Whereafter , instant appeal has been filed.
4. Heard the learned counsel and perused the available record. In order to establish the charge the prosecution has produced the evidence of eight witnesses. The complainant of the case Hazrat Ali appeared as PW-1, who narrated the story with regard to missing of his sister and subsequently his recovery by the police from the house of P.W.2 Abdullah Jan. Likewise PW-2 Abdullah Jan on seeing the alleged abductee alone in fields took her to his house and informed the complainant. Since, the abduction was not taken in presence of both the witnesses, thus their testimony is not helpful to the case of prosecution. However, the prosecution has produced the alleged abductee PW-5 Zahira Bibi, who stated before the Court that on 27th May 2017 she went to the house of her sister Juma Bakhta and whilst returning at about 9.00 A a.m. she found a person namely Islam son of Laiq and on his invitation she accompanied him in his vehicle, who brought him back nearby her house at about 11.30 a.m., but due to fear she did not go to her house and went towards Bazar, where she met with the appellant Hamayoun Saeed, who offered her that he having a house and she went with him to his flat situated at City Center Zhob, where she was kept by the appellant, who used to commit Zina with her, while his friend Imran kissed her. According to this witness the flat of the appellant was consisting upon one room and the same was having no attach bath room. PW-5 brought on record that she remained with the appellant for one month and seven days. Whereafter, she was missing her mother, due to which she left the flat of the appellant and went towards a village, where she met with two person, who informed her brother. PW-5 in her cross-examination has brought on record that after leaving the flat/room the appellant used to lock her from outside. She further admitted during his retention in the flat she neither knock the door loudly nor made any hue and cries. Likewise, the Investigating Officer Hameedullah, Inspector (PW-07) has brought on record that for natural call the appellant used to take her on the bath room of the building located on the top of roof of the building and on some occasion she was taken nearby the Ford ({{URDU TEXT}}).
5. The above admission of the alleged abdcutee as well as the Investigating Officer of the case clearly establishes that the abductee has never been abducted by the appellant rather the alleged abductee willfully initially went out of her house with one Islam Son of Laiq and also admitted that they have family relations with Islam's family and often used to visit the houses of each other, however, on account of disclosure of such facts of illicit relations she introduced a new story. It has further come on record that the building where the abductee was allegedly detained, other inhabitants/families were also residing in the said building. As per sketch the room is shown on third story, while as per PW-5 the room was on second floor, but even then she never tried to escape or call the inhabitants for her rescue and even she during long period of one month and 7 days never loudly knocked the door or shouted or made hue and cries and more particularly on daily basis she was taken to the washroom situated on the top of roof of the building and even nearby the Ford, from where too she never made any attempt to escape or call for her rescue to someone else. These facts clearly establish the unnatural conduct of abdcutee, creates serious doubts in prosecution case as the real facts were concealed and a concocted story was introduced.
6. So far as the allegations of forcible intercourse is concerned, it has come on record that at the first instance the alleged abdcutee joined one Islam son of Laiq and she remained with him for hours, thus there is every likelihood that such intercourse had been committed with her by someone else, who otherwise was not associated with the investigation. Furthermore, the medical evidence so produced by the prosecution though established defloration and non-existence of hymen of alleged abdcutee, but nothing has come on record that the appellant had committed such Zina with her. The C medical evidence further establishes that at the time of commission of offence the alleged abductee having attained puberty. Even otherwise, the swab sent to Forensic Laboratory have not been collected the report to support the version of abdcutee.
7. Legally, in order to establish the offence of abduction punishable under Section 365(B), P.P.C. as defined under Section 362, P.P.C. it is necessary for the prosecution to established the removal of a woman by force from one place to another under compulsion or through inducement by deceitful means and the objection of such removal must be to compel her to marry any person against her will or in order that she could be forced or seduced to illicit intercourse.
Even otherwise, the actual age of abdcutee was not determined through any substantive piece of evidence.
Mere mentioning of her age as 16-years by the doctor is not enough.
8. In view of above it has been established that the prosecution has miserably failed to establish on record that either the alleged abductee was abducted by the appellant or the appellant detained her in his house and forcibly committed Zina with her. The learned trial Court has miserably failed to properly appreciate the evidence in its true sense and perspective and it appears that the impugned judgment suffers from misreading, non-reading and misappreciation of evidence available on record.
Hence, we have no hesitation to hold that the prosecution has miserably failed to substantiate the charge against the appellant beyond any shadow of doubt, whereas series of doubts have come on record, but the trial Court has wrongly withheld the benefits of such doubts in favour of the appellant. Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held as under: "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt it is not necessary that there should he many circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
For the above reasons, this Court while extending the benefit of doubt set-aside the impugned judgment to the extent of the appellant, vide order dated 29th August 2019, which reads as under: For the above reasons, this Court while extending the benefit of doubt set-aside the impugned judgment to the extent of the appellant, vide order dated 29th August 2019, which reads as under: "For the reasons to be recorded separately, the appeal is accepted. The impugned judgment dated 23rd May, 2019, passed by the learned Sessions Judge, Zhob in P.P.C. case No.11/2017, is set aside, the appellant Hamayoun Saeed son of Illahi Bakhsh, is acquitted of the charge under section 365(B), P.P. C. in Crime No.98/2017, Police Station Zhob. The appellant is in custody, he be released forthwith if not required in any other case."