Shehzad alias Shada, aged 18 years at the time of trial (Trial held in 1982) was charged and tried under section 364-A, P.P.C. For having abducted Mst. Shamuna Wisal aged 4 years and Mst.
Numera Shehzadi, aged 3/4 years, on 12-4-1982, by Additional Sessions Judge, Lahore. The learned Additional Sessions Judge vide order, dated 17-10-1982 convicted him under section 364-A, P.P.C.
And sentenced him to undergo R.I. For 14 years. He has also been awarded a sentence of 25 stripes under section 4(a) of the Whipping Act (Act IV of 1902), as amended by Whipping West Pakistan (Amendment) Ordinance, 1963.
2. The convict has filed appeal through jail. Since nobody represents him, I proceed to decide the appeal with the assistance of the learned counsel for the State.
3. Prosecution case, briefly, is that Muhammad Ayub (P.W. 2), Muhammad Saleem (P.W.3) and Muhammad Boota (P.W.4) had seen the appellant in Chowk Tollinton Market, going with one minor girl in his lap and the other walking beside him, at 4-30 p.m. On 12-4-1982. Since the girl who was walking wash weeping, the P.Ws. Felt suspicious. They stopped him and inquired about the minor girls. He replied that they were his girls, but when he was asked sternly after being slapped, he confessed that he had abducted them and was taking them to Ichhra canal to commit Zina-bil- Jabr with the .P.Ws. 2 to 4 alongwith given up P.W. Naseer took the appellant and the minor girls to Police Station Old Anarkali. Parents of the girls were informed. On their arrival, the appellant and the girls were taken to Police Station Lohari Gate where a case under section 363, P. P. C. Had already been registered at the instance of Wisal Ahmad Khan, father of Mst. Shamuna, aged 4 years
4. According to the F.I.R. Mst. Shamuna, daughter of the complainant and Mst. Numera Shehzadi, grand-daughter of Muhammad Ramzan, a neighbour of in-laws of Wisal Ahmad Khan, while playing in street Chiri Maran, were lost. When the complainant and Muhammad Ramian, grandfather of Numeera started searching them, they were told by the residents of the Mohalla that they had seen an 18 years old boy of wheatish complexion, curly hair, wearing pant and shirt, going towards Circular Road, with two girls.
5. At the trial, prosecution in all examined six witnesses. Muhammad Ayub (P.W.2), Muhammad Saleem (P.W.3) and Muhammad Boota, F.C. (P.W.4) stated while corroborating each other that they had seen the appellant carrying the two minor girls, one in lap and the other walking beside him at about 4-30 p. m. In Chowk Tollinton Market and that as the girl walking beside him was weaping feeling suspicious, they inquired from the appellant about the identity of the girls, whereupon first he claimed them to be his daughters, but later, on being slapped, he confessed that he had abducted them and was carrying them towards Ichhra canal for commission of Zina-bil-Jabr. He also confessed that he had thought, that after commission of Zina he would throw them in the canal. They also stated that the appellant and the two girls were taken to Police Station Old Anarkali, where the parents of the girls arrived on having been informed.
Muhammad Boota, F. C. (P.W.4) made a slightly different statement. According to him, the police of Police Station Old Anarkali had informed the Police Inspector of Lohari Gate. He also stated that Bashir Ahmad, S.I. Of Police Station Lohari Gate had accompanied the accused (appellant), the two minor girls and the other P.Ws. To Police Station Lohari Gate.
While Muhammad Ayub (P.W.2) stated that after having reached the Police Station Old Anarkali, they had approached the parents of the minors, on having got information from the accused and the two minor girls. He stated that thereafter all the P.Ws., the parents of the girls alongwith the girls had gone to Police Station Old Anarkali, where police of Lohari Gate Police Station also came and they took away the minor girls and their parents to Lohari Gate.
Somewhat similar statement in this connection has been made by Muhammad Saleem (P.W.3).
6. Wisal Ahmad Khan (P.W.1) stated that, alongwith his family, he had gone to see his in-laws, in street Chiri Maran inside Mori Gate, that his daughter Mst. Shamuna aged about 4 years, who was playing alongwith Mst. Numera, aged 3/4 years, was lost. He stated that he went out in search of the girls alongwith Muhammad Ramzan, grandfather of Mst. Numera, during which the inhabitants of the locality told them that they had seen the girls being carried by a boy of 18 years with curly hair. He stated that P.Ws. Of the case came to his house at 5-30 P.M. With both the babies and told them that they had caught the accused carrying the two babies and that the accused had been handed over to police of Police Station Old Anarkali. He stated that he went to P.S. Old Anarkali alongwith the said persons and babies and saw the accused sitting there. According to him, he was going to P.S. Lohari Gate for registration of case when he met the S.I. And made statement (Exh.P.A.).
Bashir Ahmad, S.I., who recorded the statement (Exh.P.A.) and investigated the case, appeared as P.W.5. He did not corroborate the statement of the complainant about the girls having been recovered before the registration of the case. He, however, stated that the case was registered on the basis of statement (Exh.P.A.) made by the complainant.
7. The appellant during his statement under section 342, Cr.P.C., denied the charge and in answer to the question, why this case against you, stated as under:- "I was a balloon seller. On the day of occurrence while I was selling balloon outside Lohari Gate Chowk. There I saw two minor girls namely Shamuna Wasal and Numera Shahzadi who were weaping. I asked them their whereabouts but they could not tell me so I took them to police station to hand over them to the police officer where the police arrested me and this case has been planted upon me."
8. It is apparent from the record that the version of the complainant about the registration of the case is entirely different from that of the police. According to the F.I.R. Recorded at P.S. Lohari Gate, the complainant at the time of making his statement (Exh. P.A.) had no knowledge about the recovery of the girls, nor did he know the name of the accused.
The case of the complainant is, that he had got the case registered after the recovery of the two girls and after the accused had been taken into custody, while Bashir Ahmad, S.I. (P.W.5) stated that he had learnt, about the presence of the accused alongwith the minor girls at P.S. Old Anarkali, after the registration of the case, when he was present near Nila Gumbad. According to him, he had thereafter gone to P.S. Old Anarkali, where the complainant, P.Ws. 2 to 4 and Naseer Ahmad, F.C. Were present alongwith the accused and the minor girls. He also stated that he had arrested the accused there, after having recorded the statements of the witnesses. According to him, the accused was examined on his application by Dr. Muhammad Anees Sheikh. Who appeared as P.W.6, and deposed that he did not find anything to suggest that the accused-appellant was important.
8. Learned counsel appearing for the State frankly stated that the case of the prosecution seems to be doubtful and the whole evidence of the prosecution is of suspicious nature.
10. The fact of the police and the complainant being widely opposed to each other, regarding the sequence of events, which led to the registration of case, really is a matter of concern, in this case.
According to the S.I. (P.W.5), he had learnt about the recovery of the babies ands of the accused having been taken into custody sometime after the case had been registered at the instance of Wasal Ahmad Khan when he was near the area of Nile Gumbad, while according to the statement of Wasal Ahmad Khan, he had made the statement (Exh.P.A.) to the S.I. After the girls had already been recovered from the appellant and he had already been taken into custody. The two stories cuts each other in such a manner that one has to be disregarded if the other is to be relied upon. In fact, the two cannot co-exist. The statement of Wasal Ahmed carries weight as against the stand taken by the S.I. In view of the fact that the other three witnesses do lend him some support.
The other doubtful characters of the prosecution case are that the extra-judicial confession alleged to have been made by the appellant before P.Ws. 2 to 4 seems to be of a doubtful nature, for the simple B reason that it is not believable that the appellant would have been carrying the two girls for commission of Zina. He could well have abducted two girls at the same moment and could have been carrying both with intention to dispose them of by way of sale etc. But he could not have been carrying the two girls for commission of Zina and that too so openly to a place like Ichhra canal, which itself is thickly in habited.
Apart from the fact that it seems to be very difficult to place any reliance on the facts mentioned in the F.I.R., the other important thing is that the fact mentioned in the F.I.R that the boy who was C seen carrying the two girls had curls in the hair, were not noted by the trial Court at the time of trial.
In fact, it is noted that the hair of the appellant were not curled. Curies normally are the sequence of nature and if the appellant had curly hair in April, there would have been curies in the hair of the appellant in October, in the same year, also.
The point to be considered is not as to whether the appellant has been able to prove his innocence or whether the plea taken by him is true? The matter which requires consideration is whether the prosecution has been able to prove its case or not?
The apparent conclusion which flows from the enunciation of the prosecution evidence noted above is, that there is something inherently wrong with the evidence of the prosecution. Apart from being of a doubtful nature, it is contradictory to each other as well. In the circumstances, doubts have arisen in my mind about the prosecution having proved the case against the appellant without reasonable shadows of doubt. The appeal is, therefore accepted. The appellant is acquitted by way of grant of benefit of doubt. He shall be released forthwith, if not required for any other case.