1. ' Appellants abovenamed being aggrieved by common judgment, dated 28th April, 1980 of learned VII the Additional Sessions Judge, Karachi, in Criminal Case No, 5553 of 1976, by which appellants have been convicted under section 366/34, P. P. C. And sentenced to suffer R. I. For 2 years each and pay fine of Rs, 1,000 each or in default to suffer further R. I. For 3 months, have filed the above 2 appeals separately, on the following facts and grounds :- ' Manzoor Ahmed the complainant in this case lodged his F. I. R. On 14th July-, 1975, at 7-30 p. m. At Manghopir Police Station, which reads as follows :- "I am resident of Gujranwala, I am in 30-H Co., Pakistan Army and serving as L/Nk. My No, is 265650.
2. About l months ago I was married to Mst. Abida Parveen, whom I brought for recreation. I am living with Ghulam Muhammad. Bufellowala in Zuber Colony, near Bismillah Hotel. Today I had come alongwith my wife to Mazar of Manghopir. After paying tributes at about 17-10 hours, we climbed the Hill of Mazar of Baba and on return when we reached the decline of the said Hill, where we were detained by 5-6 persons whose name are not known, but from their appearance they were Makrani Sindhis and after catching hold of my wife they started forcibly taking her towards the Hill. I came running to the Police Station. Those people would commit sexual intercourse with my wife. I have come for reporting the matter, the matter may be investigated."
3. ' The above F. I. R. Was taken down by P. W. 4, Atta Muhammad S. I. P., who registered a case under section 366/34, P. P. C. Against the appellants persons whose names were not mentioned in the F. I.
4. R. Exh. 4-A. He took up the investigation and alongwith the complainant Manzoor Ahmed and two mashirs Nawab Baig and Muhammad Rafique proceeded to Meenars Pehari, Deh Halqani on Manghopir, Karachi, for recovery of Mst. Abida Parveen, the wife of the complainant. He chased the culprits and recovered Abida Parveen from co-accused Ghulam Rasool, appellant Babu, co- accused Ramzan and Muhammad Zahid and prepared such mashirnama which is Exh. 6/B. He recorded the statement of abductee and arrested accused Rasool Bux and Deco Muhammad on the next day and prepared such mashirnama which is Exhs. 6/C. And 6/D. He also prepared the mashirnama of vardat, which is Exh. 6/A. And after completing the investigation, he submitted a challan in the lower Court.
5. ' The case proceeded in the lower Court, where Manzoor Ahmed the complainant, his wife Mst.
6. Abida Parveen, Nawab mashir were examined and cross-examined by co-accused as well as appellant persons. After the enforcement of Law Reforms Ordinance, in December, 1975, the case was sent upto the Court of Sessions, from where it was received by transfer in trial Court. The charge against all the accused as well as appellant under section 366/34, P. P. C. Was framed by my learned predecessor, Mr. Ghulam Hussain Memon, but he did not examine any witness as the process were received unserved. Since the process of the main witnesses which were repeatedly issued were received unserved, trial Court summoned process server Muhammad Iqbal Jafri P. C.
7. No, 346 and examined him as Court witness. He has in his statement Exh. 3 deposed on oath, that he was given bailable warrants of witnesses namely Manzoor Ahmed, Mst. Abida Parveen, Nawab Baig, Muhammad Rafique and Imamuddin, for service, but despite his best efforts these witnesses could not be served. These witnesses have left their place of residence to some other place and their present addresses were not known to any body. He returned these warrants unserved with his report and the statement of the persons of the locality. He has produced the report, the warrants and the statements of those presence, which were marked as Exhs. 3/A to 3/N. He stated on oath that these witnesses are not traceable.
8. ' On the application of the learned A. P. P., dated 4th March, 1980, trial Court brought the lower Court depositions of witnesses Manzoor Ahmed, Abida Parveen and Nawab Baig to the file of this Court, by virtue of section 33 of the Evidence Act. The deposition of P. W. Manzoor Ahmed is marked as Exh.
9. 4, Mst. Abida Parveen Exh. 5, Nawab Baig Exh. 6 and the mashirnamas are marked as Exhs. 6/A, 6/B, 6/C and 6/D. Trial Court recorded the evidence of P. W. 4, Atta Muhammad, the investigating Officer and the side of the prosecution was closed, vide statements Exh.
10. 8..
11. ' The appellant in his statement under section 342, Cr. P. C. Had denied he allegation of prosecution against them and some of them have examined defence witnesses namely D. W. 1, Imam Bux, D. W.
12. 2, Ghulam Zainul Abidin and D. W. 3 Muhammad Qasim.
13. ' Learned trial Court taking into consideration evidence adduced before it, while acquitting 4 co- accused convicted both appellants abovenamed as hereinbefore mentioned and consequently both these appellants have been filed the above 2 appeals against the said common judgment, on the grounds mentioned in respective memo. Of appeals. Since both these appeals arise out of common judgment, I propose to dispose of both these appeals by this common judgment.
14. ' The learned Advocate of the appellants in support of the above appeals submitted as under :-
(a) That evidence of P. Ws. Manzoor Ahmed, Mst. Abida Khatoon, Nawab Baig was illegally brought on record under section 33 of the Evidence Act. In support of this learned counsels relied upon cases reported in PLD 1958 Lah. 468, PLD 1958 SC 290 and 1971 P Cr. L J 1331.
(b) That complaint alleged beating, but no medical certificate was produced at all.
(c) That on point of alleged recovery P. W. Nawab Baig does not support prosecution case at all. In support of this learned counsels relied upon case reported in PLD 1969 Kar.
15. 635.
(d) Ingredients of section 366 not at all proved by prosecution and hence conviction of the appellants cannot be maintained.
16. ' The learned counsel for the State on the other hand submitted that appellant Babu was arrested on the spot. However, learned counsel submitted that since appellants are on bail from 17th May, 1980, sentence of imprisonment awarded to them be reduced to period already undergone by them.
17. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court as well as impugned judgment and cases cited by the learned Advocates for appellants.
18. ' I find no force in the contention of the learned Advocate for appellants that the statements of P.
19. Ws. Manzoor Ahmed and Mst. Abida Khatoon and Nawab Baig were illegally brought on record as the learned trial Court examined Muhammad Iqbal Jafery as Court witness who actually went to serve the processes to these witnesses and stated on oath, that present whereabouts of these witnesses were not known. This witness also produced the statements of the people of locality in support of his inquiry. The cases cited by the learned Advocate for the appellants in this connection are not at all applicable to the facts of the present case. It is true that the complainant and abductee alleged some beating by first and dragging but they were not sent from medical examination by police. It is clear from the statement of P. W. Manzoor Ahmed, complainant, and abductee Mst. Abida Khatoon that beating by fist and dragging was not such, which would cause injuries and perhaps prima facie were not injuries on person of these two P. Ws. And consequently the police did not send them for medical examination.
20. ' I find that the prosecution case for the allege incident rest on the statement of P. W. Manzoor Ahmed and P. W. Mst. Abida Parveen and the 1.
0. Of the cases. The appellants have alleged no enmity against these P. Ws. At all. However P. W.
21. Manzoor Ahmed in his deposition before the committal Court stated, that he was not sure that the appellant Babu was gone of those six persons, who forcibly took away his wife. However, P. W. Abida Parveen in her statement before the committal Court no doubt identified appellants as well as other co-accused in Court. It may be noted that the names of the appellants and co-accused were not given in the F. I. R. And the P. Ws. Were not put to the identification test of the appellants as co-accused persons.
22. ' P. W. Nawab Baig the alleged mashir of the arrest of the present appellants and acquitted co- accused did not support the prosecution case and as such was declared hostile and as such the prosecution case completely rest on the statement of P. W. Manzoor Ahmed and his wife Mst. Abida Parveen and the I.
0. Of the case. D. W. Muhammad Kassim produced by appellant Muhammad Ramzan stated, that appellant Muhammad Ramzan was working upto evening and after half an hour of that he was taken away by police. Keeping in view these facts and the statements of P. Ws. On record, P. W.
23. Manzoor Ahmed stated before the committal Court, that he was not sure whether Babu was one of the persons arrested by police with his wife, whereas appellant Muhammad Ramzan by examining P. W. 3 Qassim has created a doubt about his arrest with abductee as this D. W. Was not cross- examined by A. P. P. At all. In these circumstances in my opinion prosecution has failed to establish its case against both the appellants beyond reasonable doubt.
24. ' Therefore, I allow both the above appeals and set aside convictions and sentences awarded to both these appellants by impugned judgment and acquit them by giving benefit of doubt and discharge the bail bonds executed by them in their respective above appeals. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.