All the four appellants were tried for offences under section 366, P. P. C. For allegedly kidnapping one Mst. Rajul, and sentenced to five years' R. I. Each, appellants Habibullah and Saleh were further sentenced under section 13-D of the West Pakistan Arms Act, to undergo sit month,' R. I. Each by the learned Extra Joint Civil Judge & Section 30-Magistrate, Larkana by his judgment dated 27th February 1970. All the appellants have filed appeals against this judgment which I will dispose of by this single judgment.
2. The facts briefly are that one Yar Mohammad filed an F. I. R. With Police Station Bakrani District Larkana on 17-9-1969, stating that three months back he married with Mst. Rajul according to 'Shariat' and he is in possession of Nikahnama. His wife since was living with him when last Saturday (i.e. 3 days before the incident) when he was sleeping with his wife at about 2 a.m. There was some noise and on the sound, he, his brother Arbab and cousin Muhammad Nawaz who were also sleeping in the house, woke up, flashed torch and saw the present four appellants, out of whom Habibullah and Saleh sons of Nural were armed with guns, and Saleh son of Allah Rakhio and the 4th person, was not previously known to him, had hatchets, they entered the house and Habibullah opened gun-fire in the air and challenged them giving Hakals not to get up and they did not move due to fear. While the other three appellants held his wife who raised cries, lifted her holding her legs and arms and took her away. The incident was witnessed by neighbours who came on noise, namely, Lal Bux, Ghulam Haider, Ghulam Rasool and Tharo. On their arrival other gunshots were fired by Habibullah as well and threatened them. Thereafter, they put his wife in a jeep and went along the road of Jerelo. The appellants were identified by the complainant party and they narrated the facts to the above cited witnesses as well. The complainant stayed in his house that night and in the morning ho went with his relations in search of the woman to the village of appellants but could not get a clue. Previously, Mst. Rajul was married to Saleh Son of Allah Rakhio but had filed a divorce suit against her husband Saleh and obtained a divorce decree on 29-7-1968 with an order of the Court, a copy of which is produced and further stated that Saleh used to threaten them with the abduction of Mst. Rajul on account of his marriage with Mst. Rajul, the accused party bore a grudge and abducted his wife and have illicit intercourses with her. His wife is running four months pregnancy.
3. S. H. O. Bakrani, recorded the F. I. R. And on next day he went to the wardat shown by the complainant, recorded state--ments of Arbab, Nawaz, Gul Mohammed and Mohammed Bux, arrested the appellants. On the same day i.e. 18-9-1969, Wali Mohammed father of Mst. Rajul produced her before him from his own house, she was secured in presence of Mashirs Khamiso and Gul Hassan and mashirnama Exh. 6-D was prepared. No incriminating articles, such as tire- arms etc. Were recovered from the appellant's houses by this witness, neither he states in his state--ment that there were any tyre marks of a jeep as allegedly has been used in kidnapping Mst. Rajul nor alleged jeep was recovered from anybody.
4. The prosecution case is chiefly based on the evidence of Yar Mohammed complainant P. W. 1, whose statement before the Court is materially different than that in the F. I. R. In his statement he states that he married Mst. Rajul 6-7 months back while in the F. I. R. He states only 2-3 months. His statement that Mohammed Nawaz received injuries at the hands of the appellants is not supported by any medical certificate His statement that after 4-5 days the Police recovered his wife is contra--dicted by P. W. Itrat Hussain, S. H. O. Who has earlier stated that the very next day of filing the F. I. R. The woman was produced by her father Wali Mohammed. In his cross-examina-- petition he states that 15-20 village people had collected and in his F. I. R. He gave the names of 4- 5 persons who are stated to have witnessed the incident of kidnapping but not a single witness was examined by the prosecution and no explanation is given either by the prosecution side as to why these co-villagers were not examined. It is unbelievable that a hus5and whose wife has been kidnapped would sleep that night over in his house as admitted by the complainant in his F. I. R.
And in his state--ment. The F. I. R. Was filed after a couple of days and no such satisfactory explanation has been given by this complainant for this delay. He denied the suggestion in cross- examination that Mst. Rajul went on her own free will to her father and was recovered from her father's house. He denied the suggestion that he had managed with the police to get the hand of Mst. Rajul by filing the false case and bringing pressure on the appellant not to lay any claim over her and he had not paid the considera--petition to his father-in-law for the hand of Mst. Rajul.
Statement of this witness who is the first informant and incidentally the alleged husband of Mst.
Rajul Inspires no confidence and it is full of contradictions and contrary to the statement of the prosecution witness the S. H. O., his filing F. I. R. Couple of days later and then not producing co- villagers although named in the F. I. R. Who can be said at least independent to some extent, goes to show that this witness is telling simple lies and I give no credence to his statement.
5. The next witnesses produced by the prosecution are brother and cousin of Yar Mohammed, first informant, namely, his brother Arbab and cousin Mohammed Nawaz. Statements of these two P.
Ws. Who are near relations of the complainant is of a general nature and not dis-similar to that of the complainant and no credence can be attached to their version of the incident either. In fact P.
W. Arbab, brother of the complainant makes no mention of the co-villagers who supposed to have seen the incident while the complainant did mention in the F. I. R. Some names although not examined. In his cross-examina--petition this witness states that the next evening the complainant i.e. His brother came back and told him that Saleh son of Allah Rakhio has refused to give back Mst. Rajul to them, one wonder why instead of going to the police station, the complainant went to the appellant Saleh for return of his wife. No husband or for that matter any near relation of him in the rural area in our society as the things are, with a bit of self-respect, would go and beg return of a kidnapped woman, instead it is known that most of the murders are committed in retaliation of such Incidents involving woman. In the present case, if Yar Mohammed was the real husband of the woman there was no reason for him to delay in filing the report or otherwise go and beg appellant Saleh son of Allah Rakhio to return the woman. I see no substance in the statement of this witness. The other witness Mohammed Nawaz is a cousin of the first informant Yar Mohammed and P. W. Arbab, actually has no value he is supposed to have suffered some injuries at the hands of the appellant but he was not examined by a Doctor nor any medical certificate was produced, although it is alleged that the guns were fired but not a single empty was recovered by the police from the wardat nor any other incriminating arms etc. Were produced. If in fact a scuffle and fight and in such circumstances resistance by Yar Mohammad and his two relations with the appellants who are stated to have come and kidnapped the woman by force, was expected, but nothing happened and no resistance it appears, to have occurred. This further goes to show that witnesses are simply telling lies and their statements are not worth any credence. An alleged Nikahnama Exh. 1-A was produced` but none of the witnesses of the Nikah i.e. The Moulvi was produced to prove that in fact marriage had taken place With a Mst. Rajul. It was for the prosecution to establish first of ail the existing legal marriage between Yar Muhammad and Mst. Rajul, to establish offence under section 366, P. P. C. In which the prosecution has utterly failed.
No Haqmeher is shown in the Nikahnama nor any name of vakil is shown neither the witnesses of the marriage were produced. It appears to me that fake docu--ments have been produced in support of the case. No doubt an ex parte decree for dissolution of marriage between Mst. Raju1 and Saleh son of Allah Rakhio Exh. 2-A in Civil Suit No. 5 of 1968 from Civil Judge Family Court Khairpur dated 22.8-1968, C was produced. I find that even the ex parts decree has beer; obtained with design by using false name of the respondent, obviously it could not be served because the suit is captioned a Mst. Rajul versus Mohammed Saleh son of Allahbux Buriro resident of Kabirali Khan Taluka Kambar District Larkana Now the father's name of the real husband is not Allahbux but Allah Rakhio; therefore, the summons could not be served. Not only this one falls to understand and it was urged by counsel for the appellants that the husband was living in Larkana District but the suit for dissolution was filed in Khairpur for the simple purpose of obtaining an ex parse decree for dissolution which could not come within the knowledge of the husband and this may have been done with the assistance and instigation of Yar Mohammed, the first informant, by Mst. Rajul, because it is stated by father of Mst. Rajul that Yar Mohammed had developed illicit relations with his daughter; therefore, even this decree has no legal force.
6. The appellants have denied their participation in the offence and appellant Saleh son of Allah Rakhio has denied the allegations and filed a copy of the written statement when ques--tioned under section 342, Cr. P. C. Wherein he states that Mst. Rajul is his wife from whom he has six children and she was living with him. Complainant Yar Mohammed developed illicit intimacy with Mst. Rajul whereupon on his prevening, Mst. Rajul started living with his father Wali Mohammed.
Complainant Yar Mohammed after filing the false complaint against him got Mst. Rajul through police to keep her with him. Mst. Rajul was produced before the police by her father Wali Mohamed.
All the prosecution witnesses are relations and Interested and they have enmity with him. Appellant Saleh son of Noorul denied the allegations and stated that P. Ws. Deposed D against him due to enmity and that he is related to co-accused Saleh son of Allah Rakhio, that is why he is involved.
Equail) Habibullah denied the allegations and stated that Saleh son of Allah Rakhio is his father-in- law. He is involved by the complainant patty falsely. Appellant Ghulam Rasool stated that Saleh son of Allah Rakhio is his maternal uncle and due to relationship with Saleh son of Allah Rakhio, he has been involved.
7. Appellants produced in defence Wali Mohammed father of Mst. Rajul who stated that Mst. Rajul is his daughter, she was married to accused Saleh son of Allah Rakhio and got two sons and three daughters from Saleh. He know Yar Mohammed complainant who used to coma to their village. He picked up illicit relations with Mst. Rajul therefore, he prevented Yar Mohammed from coming to his village. His daughter Mst. Rajul used to live with him and Saleh son of Allah Rakhio has not divorced his wife. About 2 or 4 months back police came and he produced Mst. Rajul before them. He further stated that he produced Mst. Rajul at Police Station Bakrani. He was emphatic that Mst. Rajul was not married with complainant Yar Mohammed. This witness, it may be noted, was not cross- examined by the prosecution to bring out anything contradictory. Otherwise, the statement of this witness must be accepted to tots with regard to her existing marriage with Saleh and not being married to Yar Mohammed complainant. Even otherwise statement of this witness must be given credence who is the father of kidnapped woman. No father in normal circumstances would say that his daughter has developed illicit relations with a stranger unless he is highly aggrieved and compelled to say so as in this case. I give full credence to the statement of this witness.
8. With regard to the statement of Mst. Rajul who it appears got infatuated with this man Yar Mohammed, all I can say is that this woman has crossed all the limits of decency and morality, and admittedly has planned to run away from her house and live illegally with Yar Mohammed complainant and obtained ex parte decree of dissolution of her marriage as well as subsequent fake marriage with Yar Mohammed has been done with connivance of Yar Mohammed her paramour. But such scheming as done in this case by this woman and Yar Mohammed does not amount to dissolution of marriage under the Muhammadan Law and in fact no dissolution of marriage exists. She is I am of the opinion the legally wedded wife of appellant Saleh son of Allah Rakhio unless she obtains a properly divorce according to Shariat which so far as per record does not exist. As regards to the veracity of this witness she admits that she was married with appellant Saleh 10-12 years back but she has no issue from her husband. But it may be noted that her own father has stated in his statement that she has two sons and three daughters from Saleh son of Allah Rakhio her husband. What credit can be given to the statement of this woman, who goes to the extent of denying, the existence of her own sons and daughters from her husband Saleh la sheer blindness of infatua--petition this woman denied such natural ties as do exist between mother and children. Her husband Saleh states the existence of the children but this woman even refutes the statement of her husband and father with regard to children. No credence whatsoever can be given to this witness. I wonder how in the circumstances of such prosecution evidence which is on the face of it, not worth giving any credence, the learned trial Court convicted the appellants and I out informed that the appellants have already suffered 20 months R. I. Before their bail application was granted by this Court.
9. For the reasons given above I am of the opinion that, the prosecution has materially failed to bring home the alleged guilt against the appellants. I accept their appeals, set aside P the judgment of Mr. Azizur Rehman Jaffer Ally Shaikh, Extra Joint Civil Judge and Section 30 Magistrate, Larkana dated 27th February 1973 and acquit the appellants. Bail bonds if any stand cancelled.