1. ' This appeal under section 410, Cr.P.C. Has been preferred against the judgment, dated 4th May, 1980 of the learned 1st Additional Sessions Judge, Dadu whereby the appellants have been convicted under section 148/452, P.P.0 read with section 149, P.P.C. And sentenced each one of them to suffer R.I. For one year under section 148, P.P.C. And to pay a fine of Rs,100 under section 452, P.P.C. One year R.I. And fine and in default of payment of fine of Rs,100 to suffer R.I.For one month more and under section 366, P.P.C. Read with section 149, P.P.C. To suffer R.I. For two years and to pay a fine of Rs,500 and in default of payment of fine to suffer R.I. For five months more and the sentence have been ordered to run concurrently.
2. ' The facts of the prosecution case are that one Mukhtar Ahmed son of Mohammad Jamil caste Wala resident of Aminabad of Dadu District lodged his F.I.R. (Exh.11) on 26-6-1976 at P.S., C.I.A., Dadu which reads as follows:- "I have got a katcha house in village Aminabad for residential purposes which is facing towards south. I have got two daughters by name Pukhraj and Naziran. I have got both of them married to my nephews namely Bashir Ahmed and Muhammad Hanif. About a month back, I and my both nephews Muhammad Hanif and Bashir were working at my land. My wife and my daughter Mst.
3. Pukhraj had gone in neighbour's house. Mst. Naziran was sitting alone in the house. All of a sudden, a jeep came from west and stopped at our door. Accused persons, namely Ahmed son of Dost Muhammad Jamali, Mehar Shah, Hassan Shah and Yousaf got down from it. Out of them Mehar Shah was armed with a gun and the rest of the accused were with hatchets. Two unknown persons whom we will identify when shown to us, also got down. Immediately on their arrival they forcibly dragged out Mst. Naziran from the house. They reached there while running but Mehar Shah aimed the gun at us and saw that in case we will come near, we will be killed. Due to fear, we stood at some distance. Mst. Naziran continued raising cries. On her cries Khurshid and other people of the village also came. The accused also threatened them. Thereafter, they forcibly seated Mst. Naziran wife of Muhammad Hanif into the jeep and went away towards west. Mst. Naziran had four gold- rings on her hands and gold ear-rings on her ears, and necklace around her neck. She had a silken suit of flower prints on her person.
4. ' After the departure of the accused we complained to respectable persons Choudhry Wali Muhammad, we took him to Hyder Shah and also complained to him. We complained to Haji Mohammad Bux Khan Jamali, and Rahim Khan Jamali and others, and went to them with Holy Quran. They kept us on promise for today and tomorrow but we have not received Mst. Naziran.
5. Accused Mehar Shah has built his Otaq near the well of the water and used to keep evil eye on the girls of the village. We had forbidden him, who became annoyed and has forcibly abducted my daughter Mst. Naziran, having conspired with other accused. I lodge complaint. Justice be done. I had got the ornaments prepared from Punjab, which were on the person of Mst. Naziran. These ornaments will be identified by my nephews Muhammad Hanif and Bashir."
6. ' Mr. Ghulam Mustafa, Inspector, C.I.A., Dadu, after recording the F.I.R. Proceeded to the scene of offence which was shown to him by the complainant, Mukhtar Ahmed. He visited it and prepared such Mashirnama (Exh.20) and recorded statement of Muhammad Hanif (P.W.4), Bashir Ahmed (P.W. 5), Mst. Pukhraj (P.W. 3), and Khursheed Ahmed under section 161, Cr.P.C. He arrested accused Yousuf in the presence of Mashirs Yar Muhammad and Muhammad Hussain and prepared such Mashirnama of arrest (Exh.27) on 7-8-1976 and recorded statements of Haji Mohammad Jamali, and Hyder Shah on 17-9-1975. He was then transferred and he handed over the case papers to Muhammad Ghani S.I., C.I.A., Dadu who on receipt of the papers proceeded to village Aminabad and arrested the accused, Hassan Shah in the presence of Mashirs Abdul Ghaffar and Muhammad Amin, and recovered a pistol and two live cartridges from his personal search, and on opening the pistol found one live cartridge from it. He sec'ired the pistol as well as cartridges and prepared such Mashirnama (Exh.21). He brought the accused and the property recovered from him to C.I.A. Police Station, Dadu and lodged a separate F.I.R. Under section 13-D of the Arms Act against him. On 8-4- 1977 the S.P., Dadu directed him as well as Messrs Qurban Ali Shah and Saeed Ahmed D.S.Ps. For arresting the accused Muhammad Mulla who was required in Crime No, 18 of 1978 and 20 of 1979 of Police Station Johi. When Police party raided the house of the accused Ahmed Jamali and other Jamalies Mst. Naziran during the raid came running from the house of Ahmed Jamali to the Police party and disclosed her sufferings by her at the hands of accused. He then recorded the statement of Mst. Naziran under section 161, Cr.P.C., secured her and prepared such Mashirnama (Exh.23) in presence of Mashirs Abdul Rasheed and Muhammad Sharif. He thereafter produced Mst. Naziran before the Resident Magistrate for recording her statement under section 164, Cr.P.C. Who did not record it as the accused were not produced before him. He, thereafter on 9-4-1977 produced Mst.
7. Naziran before the S.P., Dadu who directed him to hand over her to her father Mukhtiar Ahmed and he 'did it accordingly, and challaned the accused in the Court of Civil Judge and F.C.M., Dadu.
8. ' The prosecution case mainly is based on ocular testimony of the complainant Mukhtiar Ahmed, his daughters Mst. Pukhraj and Mst. Naziran (the abductee) Bashir Ahmed and Muhammad Hanif, corroborative evidence of Wali Muhammad (P.W. 6), Mashirs Abdul Ghaffar (P.W. 7), and Muhammad Amin (P.W. 9), recovery of the pistol and live cartridges from the appellant Hassan Shah, medical evidence of Investigating Officers, Mushtaq Ahmed, Inspector, C.I.A., and Muhammad Ghani, Sub-Inspector, C.I.A., Dadu.
9. ' The accused, however, denied all the allegations against them and claimed to have been falsely implicated due to enmity of the complainant party. In order to establish their enmity with the complainant party they produced true copy of F.I.R. (Exh.31), Challan (Exh.32) and judgment in Criminal Case No, 59 of 1970 (Exh.33). The accused has also examined Dost Mohammad (D.W. 1) in his defence.
10. ' The question, therefore, for determination is whether the accused armed with deadly weapons formed unlawful assembly and in furtherance of common object in the said Assembly kidnapped Mst. Naziran from the house of the complainant Mukhtiar Ahmed to compel her marriage or to cause her defilement, etc., and also committed house trespass.
11. ' I would, therefore, first of all, examine the evidence of Mst. Naziran (P.W. 2) (Abductee) and her sister, Mst. Pukhraj Bibi (P.W.3). Mst. Naziran in her statement before the trial Court, has stated that her sister Pukhraj Bibi had gone to the neighbouring house, and her mother had gone to Punjab. At about 3.00 p.m., on the day of incident, about 6/7 persons came in her house, and she identified them to be the accused/appellants and one Ahmed Jamali. She could not identify others. Out of them, Mehar Shah was armed with a gun and the rest with hatchets. They caught hold of her by arms and legs, took her out, and put her in the jeep. She raised cries which attracted her sister, Pukhraj Bibi who came immediately and raised cries. Other persons also came on the cries but the accused Mehar Shah threatened them on gun point not to go near them. She, however, was not in a position to give names of the other persons who had come on her cries as the accused had closed her face. They took her in the jeep to jungle where the accused, Mehar Shah committed rape on her. The other accused went away from the jungle, except the appellant, Mehar Shah who kept her in the jungle for about two to three days and thereafter the accused Ahmed Jamali took her to his house and committed rape on her and kept her in his house for about nine months. She was secured by the Police from his house. When she was confronted in cross-examination if she stated about her detention and rape by the appellant, Mehar Shah, in her statement before the police, she replied in affirmative. She also denied if she stated in her police statement that the accused persons, after taking her away in the jeep to jungle, had left her after covering about half a mile from her village. They left her and Ahmed Jamali there and the others went away in the jeep.
12. She denied to have said in her statement before police that Ahmed Jamali told her that he would commit rape on her and on her refusal, he forcibly committed rape on her on the following night at 9.00 p.m. She also denied to have said before the police that the accused, Ahmed Jamali kept her on his land for a day and took her to the house for the night and, as and When he used to go out, she was used to be confined in the room which was to be locked from outside. She also denied if she had been pregnant from the accused, Ahmed Jamali and was having pregnancy of eight months. She also denied to have given statement in the Court of Civil Judge and F.C.M. Mehar to the effect that she had gone with the accused on her own accord, and had married him. She also denied to have said before the police that the accused, Ahmed Jamali and Mehar Shah took her away in the Court at Mehar and obtained her signature on a blank piece of paper. It will be very interesting to note that Muhammad Ghani, Sub-Inspector of Police who recorded her statement under section 161, Cr. P.C., during the course of investigation of this case, has contradicted her on all these points, i,e,, she had neither said about her detention by Mehar Shah in jungle for about three to four days nor commission of rape on her by him. Muhammad Ghani also admitted that she had said before him that the accused persons took her away in the jeep to Jungle, and covering about half a mile from her village, they left her and the accused, Ahmed Jamali there. He also admitted that she had stated before him that the accused, Ahmed Jamali told her that he would commit rape on her; but she refused and the accused forcibly committed rape upon her there on the following night at 9.00 p.m. Muhammad Ghani has also said that she, in her statement under section 161, Cr. P.C. Had stated that she had pregnancy of eight months from the accused, Ahmed Jamali, and that the accused Ahmed Jamali had obtained her signature on a piece of blank paper and produced the same in the Court of Mehar. Mst. Pukhraj Bibi who is sister of Naziran (abductee) has corroborated Mst. Naziran in respect of commission of the incident and has further stated that her father, Mukhtiar Ahmed, P.W. Muhammad Hand, Bashir Ahmed and other neighbours also came running on the cries raised by her as well as her sister, Naziran. She has also stated that Naziran was taken away by the accused in the jeep with the intention to commit rape on her by the appellants and that Naziran was restored after nine months of the incident.
13. ' The complainant, Mukhtiar Ahmed who is father of the above-said two witnesses, has supported them. He has, however, stated that his wife Mst. Sardaran and his daughter, Mst. Pukhraj, at the time of incident, had gone to a neighbouring house of Muhammad Yousuf, and they came running on cries of his daughter, Naziran. He has also stated that P.W. Khurshid came running to him at the land, and the accused within his sight, dragged Naziran and put her in the jeep and went to jungle.
14. He has also stated that Naziran had necklace and ear-rings of gold on her person, including four finger ring's of gold. She was taken by the accused alongwith ornaments of gold which she was wearing at the time of incident. He has also admitted that there were about 14 to 15 houses in his village. The house of Saadat Khan is on the west of his house. He has further stated that first of all, he went to inform Wali Mohammad and then took the Holy "Quran Majeed" and went to Haji Muhammad Bux Jamali alongwith 10 to 15 persons who met them in Dadu Town. They requested him to get Mst. Naziran restored to them in the name of the Holy Quran. Mukhtiar Ahmed has denied that Naziran had illicit terms with Ahmed Jamali and she had gone with him.
15. ' Bashir Ahmed (P.W. 5) who is husband of Pukhraj Bibi (P.W.3) and nephew of the complainant has supported the complainant on the point of commission of offence and taking away of Mst. Naziran forcibly in the jeep. He has also stated about the facts in which the incident took place as was given to him by his wife, Pukhraj Bibi. He also admitted that Yousuf, Mukhtiar and others subsequently came on the scene of offence. He has also admitted that his wife, Pukhraj Bibi called them from outside the house. He went together with the complainant on the 'vardat' on cries. He has also stated that jeep was about two miles away from them when they saw it. Yousuf had reached the 'Vardat' before him and he told him that he had seen the accused taking away Mst.
16. Naziran. He has also stated that Mehar Shah used to manage commission of theft of cattle through his men.
17. ' Muhammad Hanif (P.W. 4) is husband of Mst. Naziran, and son-in-law of the complainant, Mukhtiar Ahmed and brother of Bashir Ahmed (P.W. 5). He has stated that he was in the land alongwith his brother and father-in-law, Mukhtiar Ahmed and that on cries of his wife, Naziran, they went running there and saw a jeep from some distance. Mst. Pukhraj told him about the accused, taking away Naziran forcibly. He has also stated that the complainant Mukhtiar Ahmad approached one Rais Muhammad Bux Jamali who advised him not to lodge report with the police and consoled him that he would get Naziran restored to him. He, however, admitted that he had not gone with Mukhtiar Ahmad; but Mukhtiar Ahmad lodged report with the police after about 15/16 days when Muhammad Bux Jamali failed to get Mst. Naziran restored to them. He also stated that he did not know as to why the accused persons took away Naziran. He has also stated that neither he enquired from Mst. Naziran as to what happened to her nor she told anything about it to anybody. In cross-examination to defence counsel, he has stated that neither he knew if any case had proceeded against Sultan, Waryam and Khamisa in the Court of Civil Judge and F.C.M. Dadu in which they were acquitted, nor he was one of the injured in that case. He has also stated that the appellant, Mehar Shah used to bring 'Goondas' in their village. Mehar Shah was asked by them not to bring 'Goondas' in, the village and it was on account of it that they had displeasure with him.
18. ' Waii Mohammad (P.W. 6) has supported the complainant on the point that the complainant had gone to him after the incident and narrated the facts which have been deposed to by the complainant before the trial Court. He has also stated that he alongwith the complainant Mukhtiar Ahmad, Muhammad Sharif, Abdul Rasheed and some other persons went to Muhammad Bux Jamali and narrated him the facts of incident who consoled them that he would try to get Mst.
19. Naziran restored to them. He has, however, stated in cross-examination that the complainant went to him at about 2.00 p.m. On the day of incident whereas the incident, according to the complainant party is alleged to have taken place at about 3.00 p.m. He has also admitted that he was residing about two miles away from the scene of offence and the complainant was not related to him; but he was friendly with him.
20. ' Abdul Ghaffar (P.W. 7) and Muhammad Amin (P.W. 8) are the Mashirs of arrest of the accused Hassan Shah vide Mashirnama (Exh.20) and securing of a pistol and three live cartridges from him (Exh.21). Both of them have not supported the prosecution case on the points of arrest, and securing of a pistol and have, therefore, been declared hostile by the prosecution.
21. ' Muhammad Ghani, Sub-Inspector of Police, Dadu who is an Investigating Officer has deposed to in respect of arrest of the accused, Hassan Shah in presence of the Mashirs, A. Ghaffar and Muhammad Amin and securing of a pistol and two live cartridges from him. He has also secured Mst. Naziran from the house of the accused, Ahmed Jamali (deceased) and recorded her statement under section 161, Cr.P.C. His evidence is to the effect of his investigations.
22. ' P.W. Ghulam Mustafa, Inspector, C.I.A., Dadu has deposed to in respect of recording of F.I.R., visiting scene of offence, recording statement of P.W.5, and arrest of the accused, Muhammad Yousuf.
23. ' The learned counsel for the appellants have contended that there is an inodinate delay of about a month in lodging the F.I.R., and the explanation advanced by the complainant, is not satisfactory so as to accept it. He has also pointed out that the F.I.R. Of the case, in spite of delay, has not been lodged either at the Police Station within whose jurisdiction the offence took place, or even at Dadu Town which was only a mile away from the scene of offence. The complainant has chosen C.I.A. For lodging his report which cast a shadow of doubt as to why the complainant preferred it in comparison to other two police stations. The only conclusion that could be drawn was that he did not like to have a clear deal as Mst, Naziran had left her house on her own accord with Ahmed Jamali and he wanted her restoration by some underhand method. It is furhter contended that Mst.
24. Naziran was allegedly secured by Police after about nine months and it was the duty of the prosecution to have her statement recorded before a Magistrate under section 164, Cr.P.C. So as to get her independent version but instead Mst. Naziran was handed over to her father under the orders of the S.P. Without getting her statement recorded under section 164, Cr.P.C. Muhammad Ghani Sub-Inspector of Police has advanced an explanation that he did produce her before the learned Resident Magistrate, Dadu, who did not record her statement as the accused were not before him. This explanation cannot be accepted particularly when he had arrested the accused on the same day and they could have been produced before the Magistrate either on that day or on the next day. All the P.Ws. On the material points are closely connected with each other, and no independent witness has been produced on the point of abduction though there were houses of other persons in the village who were said to have come on hearing the cries. They being family members and their versions with such contradictions cannot be accepted without independent corroboration. P.W. Muhammad Hanif who is husband of Mst. Naziran (abductee) has been declared hostile. The evidence of Mst. Naziran herself on the point of rape, etc., against the accused Mehar Shah looks afterthought as she did not state such facts, in her statement under section 161, Cr. P.C.
25. ' The learned counsel for the appellants lastly contended that there being no satisfactory evidence on record, against the appellants the prosecution has failed to prove the case against them beyond reasonable doubt. They are, therefore, entitled to benefit of doubt in view of insufficient and unsatisfactory evidence against them.
26. ' Mr. Makhdoom A. Wali, the learned counsel for the State, very frankly stated that there being no independent witness in the case and the version given by Mst. Naziran also being contradictory with her statement before police, the accused were entitled to benefit of doubt.
27. ' I have heard the learned counsel for the appellant as well as State. I have very carefully gone through the evidence, and the circumstances under which Mst. Naziran is alleged to have been abducted and recovered from the accused Ahmad Jamali (deceased) by the police. It is of paramount importance that the complainant has remained quiet for such a long period of about a month without lodging the F.I.R., though the incident was of a broad-daylight. He has not been supported by any independent witness from the village. The F.I.R. For such incidents is always lodged at the Police Station within whose jurisdiction the offence is committed. One could only go to the higher authorities, or other agencies when the officers of the concerned Police Station either refuse to register the F.I.R. , or do not investigate the case properly. There were no such circumstances in this case where the complainant went to lodge his F.I.R. And it was not registered, or no proper investigation was carried out. But he himself preferred not to lodge the F.I.R. Either immediately after the incident was committed, or even after it. The fact that Mst. Naziran (abductee) was not produced before the learned Magistrate, or even after her production, her statement under section 164, Cr. P.C. Was not recorded. It obviously created a shadow of doubt, and led to a conclusion that she was perhaps reluctant to support the prosecution case as put in by her father. Moreover, the charges levelled against the appellant, Mehar Shah to the effect that he committed rape on her, do not find place in her statement under section 161, Cr.P.C. She has also denied if she became pregnant as a result of her stay with Ahmed Jamali though she had given such statement before police. Her statements before the trial Court and the C.I.A. Are so much contradictory with each other that it is not at all safe to accept her version. The evidence of the complainant is also not free from doubts and so also of Mst. Pukhraj Bibi. It has been admitted by the prosecution witnesses that there were about 15 to 16 houses in the village, and the house of the complainant was surrounded by the houses of others, still no one from the village has been produced to support the prosecution case.
28. ' Bashir Ahmed (P.W. 5) and Mohammad Hanif (P.W. 4) are also interested witnesses on the one hand, and the versions given by them do not inspire confidence. Muhammad Hanif who is said to be husband of Mst. Naziran (abductee) has deposed in such a manner that he has been declared hostile by the prosecution.
29. ' I have examined the evidence of Wall Mohammad which also does not inspire me as according to him, the complainant on the day of incident, went to inform him at about 2.00 p.m. At his village which is at about two miles away from the scene of offence; but according to others, the same village is four to five miles away from the scene of offence. The incident, according to the complainant and other witnesses, had taken place at about 3.00 p.m. And it is difficult under the circumstances to accept as to how the complainant went to Wali Mohammad before the time of incident.
30. ' Abdul Ghaffar (P.W. 7), Muhammad Amin (P.W. 9) are the Mashirs who have not supported the prosecution case at all, and have been, therefore, declared hostile. The accused have produced the copies of F.I.R., Challan and Judgment in Criminal Case No,51 of 1979, and have also examined Dost Mohammad in defence.
31. I have gone through all the documents and there is no doubt that there was a quarrel over the rotation of water. P.W. Muhammad Hanif who denied even to be injured in the incident, figured as a injured witness in this case. The evidence of Dost Muhammad also shows that Naziran had gone with Ahmed Jamali on her own accord. It has not been established by evidence on the record that Mst. Naziran had been taken away from her house in a way as the prosecution case was set by the witnesses who are the members of the same family.
32. ' In the result, there being no satisfactory evidence to uphold the conviction and sentences awarded to the appellants, their appeal was, therefore, allowed acquitting the accused by a short order after hearing the learned counsel for the appellants and State, and these are reasons for it.