1. The appellant (brother of Imamdin who is still absconding) was charged for an offence under sections 453, 366 and 368, P. P. C. as well as under section 13(d). West Pakistan Arms Ordinance, but he was convicted for an offence under sections 452 and 366, P. P. C. and with regard to the offence under section 368, P. P. C. it was observed by the learned Sessions Judge that jurisdiction for that offence vested in the Courts at Jacobabad as the wrong ful confinement had taken place in that District, The abduction had taken place in Nawabshah District where the case was tried by the learned Sessions Judge, Nawabshah. The sentence awarded under section 452 was 2 years' R. 1. and fine of Rs. 500 or in default to undergo R. I. for 6 months while the sentence passed under section 366, P. P C. was 5 years' R. I. and a line of Rs. 500 or in default to undergo R. I. for o months, ordering the substantive sentences to run concurrently.
2. The incident had taken place on 19-8-1968 at bapahri in the house of the complainant Safar from where four ladies Mst. Huzuri, Mm. Sakina, Ms/. Rasti and Mst. Mariam along with a child Mst. Asia aged about 4 months were abducted by four persons armed with fire-arms and one of them was said to be the present appellant. The first report was lodged at 9-30 p.tn. at Kandiaro Police Station situated at a distance of 4 miles from the scene of offence and it was recorded by Mr. Abdul Hassan S. H. O. The scene of offence is situated in Nawabshah District while the women were recovered on 9-10-1968 from a house in some village situated in Jacobabad District. The appellant is Channa by caste while the complainant is Kori by caste.
3. The relations between the parties were strained from a long time and there had been some criminal cases. About 30 years back Mst. Bhani mother of Gullan who is related to Muhammad Safar complainant was enticed away by Bachal Channa who was related to the appellant, and at that time Mst: Bhani was pregnant and subsequently a daughter Mst. Azima was married to Pinjal and she gave birth to Mst. Pathani and two other daughters. Mst. Pathani was married to absconding accused Imamdin. Gullan who was the son of Mst. Bhani got back his mother Mst.
4. Bhani andsister Mst. Azima after the death of Bachal. Through the intervention of Martial Law authorities, Mst. Bhani and Mst. Azima after restoration were staying with Gullan. On account of that grudge Pinjal husband of Mst Azima along with the present appellant, rmaindin, absconding accused, Pathan and others abducted Mst. Rahima wife of Avub who was uncle of the complainant, as well as Mst. Haial daughter of Ayub and Mst. Zadi niece of Ayub. Consequently a report svas lodged at Kandiaro Police Station. The police recovered the women. The appellant as well as others were challaned but they were acquitted. About 1J years ago Imamdin along with other companions murdered Gullan, Mst. Arbab Khatoon, Ladho and Buxali Maharjat and a report was lodged at Kandiaro Police Station. Imamdin absconded while the remaining accused persons were challaned and that case was pending in the Court of Session, Nawabshah at the time of this incident.
5. On 19-8-1968 at about bepahri when Safar, Bahadur, Saleh, Usman, Mst. Huzuri, Mst. Sakina, Mst.
6. Rasti, Mst. Mariam and Mst. Asia were in their houses having a common courtyard four persons appeared with fire-arms, one of them was the present appellant, and he had a gun, the other was his brother Imamdin who is still absconding and he had a revolver, the remain ing two persons who were not identified had guns. Soon after their arrival they challenged the inmates and Imamdin fired shots in the air to terrorise them. Then the four ladies and the baby were secured and forcibly dragged out. None of the inmates mustered up courage to intervene on account of fear. The ladies were put in a jeep which was parked at a short distance and taken away in spite of the cries raised by the ladies and the resistence offered by them. The complainant went to inform his Zatnindar liaji Alt Ahmed Channar but he was not available. Consequently the complainant went to the police station and lodged the first report, in which it was stated that Imamdin was identified while the other culprits would be identified if shown.
7. Mr. Abulhasan after recording the first report repaired to the scene of offence. As it became late the investigation could not be carried out. On 20th morning masiiirnama Exh. 6 of the scene of offence was prepared. Nothing particular was noticed. Inquiries were made from Bahadur, Saleh, Andal, Yakoob, Usman and Adur. There were wheel marks at some distance and mashirnamu Exh. 7 was prepared. No empty shell was recovered. Thereafter the papers were handed over to Mr. Ziauddin S. H. O. who has not been examined and, therefore, it is not known what investi gation was made by him. Later Mr. Tasadduq Hussain S. H. O. was posted at Kandiaro Police Station. He went to Jacobabad to hold further investigation On 9th October 1968 he received some spy information and sought the help of Kandiaro Police. Two mashirs Shah Muhammad and Ata Muhammad were picked up. They went to the village Jerma Tibo and surrounded the house of the appellant and his brother Imamdin. On entering the house they found the appellant as well as all the four ladies and the infant. They were secured and two mashimamas were prepared. One is Exh. 36 in respect of the recovery of the ladies and the other Exh. 3 7 in respect of the arrest of the appellant. The statements of the ladies were recorded and the appellant was interrogated. Then they were taken to Kandiaro Police Station. The statements of the ladies were recorded under section 164, Cr. P. C. Further investigation was made by Mr. Muhammad Khan A. S. I. P. On 24th October interim challan was sent. Thereafter Mr. Tasadduq Hussain was transferred and, therefore, the final challan was submitted by Mr. Qamarul Hassan on 8-11-1960. The appellant proclaimed his innocence and denied having abducted the ladies. He ascribed his implication due to enmity. He pleaded that he was involved in a number of cases and in all those cases he was acquitted. He further pleaded that he was implicated by the S. H. O. as he was unable to produce his brother Imamdin. He also denied that he had wrongfully detained the ladies or his brother resided with him. According to him his brother was absconder and his whereabouts were not known since long. He did not examine any witness in defence.
8. There can be no doubt that the incident had taken place and four ladies and one baby were forcibly removed from the house of Safar complainant. Subsequently the ladies were recovered from Jacobabad District situated at a distance of about 200 miles from the scene of offence. To establish the abducation there is the evidence of Muhammad Safar, Yakub, Mst. Huzuri, Mst. Sakina, Mst. Rasti and Mst, Mariam. Recovery has been established by the evidence of Shah Muhammad Masliir and Mr. Tasadduq Hussain S. 11. O. corroborated by the mashirnama Exh. 36 prepared to that effect.
9. As regards the identity of the appellant with the crime the ocular testimony consists of Muhammad Safar, Mst. Huzuri, Mst. Sakina, Mst. Rasti and Mst. Mariam. They were present in the house when the four ladies were abducted. Muhammad Safar stated that at about Triphari when they were sitting in the house four persons armed with fire-arms appeared and one of them was identified to be the absconding accused imamdin, and the other three were not identified, caught hold of the women and forcibly took them away after tiring shots in the air to terrorise the inmates and other people.
10. The appellant was subsequently arrested and he was also implicated by Muhammad Safar as one of the culprits who had abducted tbe ladies. Then there is the evidence of the four ladies who too stated that the appellant was one of the persons who had joined the other culprits in removing the women from the house and taken them from place to place and finally lodged them in the house from where they were recovered by the police.
11. The evidence of various witnesses was believed by the learned Sessions Judge. I have considered their evidence and 1 am of me view that no reliance could be placed upon their evidence for the simple reason that appellant was known to the complainant and there had been cases between the parties and in some cases the appellant was an accused person but the name of the appellant was not disclosed in the first report. The omission of the name of the appellant in the first report is a material infirmity and cannot be ignored. No explanation has been given why the name of the appellant was not disclosed in the first report. The complainant who had lodged the lirst report was himself an eye-witness and was present in the house when the ladies had been abducted. The complainant had clearly stated in the lirst report that barring the absconding accused none was identified. The incident had taken place in broad daylight. The subsequent implication of the appellant by the complainant 0s not sustainable. In the previous cases his claim that the appellant was not known can be given no credence. Indeed the ladies who were subsequently recovered by the police had implicated the appellant but apart from the omission of the name of the appellant in the first report their evidence too is not beyond suspicion. It has been admitted by all the four ladies that they were taken to Kandiaro Police Station and thereafter their statements were recorded by the police. It is further in evidence that all the relations had gathered at the police station. It is, therefore, not unlikely that since the appellant was secured along with the ladies from the house he was implicated by the ladies at the instance of their relations.
12. Thus there remains only the other circumstances appear ing against the appellant and this is his presence alongwith the ladies in the house when the house was raided by the police and they were secured. Since I have held that the appellant had not participated in the abduction of the ladies, the presence of the appellant at the time of the recovery of the ladies in the house would constitute an offence under section 368, P. P. C. for having wrongfully confuted the ladies with the knowledge that those ladies had been abducted, but no conviction under section 368 can be recorded by me as although the appellant was charged for an offence under section 368 but the learned Sessions Judge did not record any Ending on the ground that with regard to this offence the jurisdiction vested in the Courts at Jacobabad. He, therefore, convicted the appellant for an offence under sections 452 and 366, P. P. C. which conviction is not sustainable for the reasons already stated.
13. 1, therefore, allow the appeal and set aside the conviction and sentence passed against the appellant and acquit him. He is in custody and should be set at liberty forthwith. .