Appellants Ghulam Rasool son of Imdad A.I Sheikh and Faiz Muhammad son of Sherali Mangwani were tried on charge under sections 363/368/34 P. P. C. By the Sessions Judge, Dadu, who by his judgment dated 30-5-70, convicted both of them under sections 363/34 P. P. C. And sentenced each of them to R. I. For two years and to pay a fine of Rs. 300-(in default R. I. For three months more). The appellants have filed a joint appeal through Mr. Abdul Karim Lakhani, Advocate, and the State has been represented before me by Mr. Fasihuddin, Advocate.
2. Briefly stated the facts of the cast are that Mst. Husna, said to be aged about twelve years was living with Amir Bux her step-father, as her mother after being divorced by her first husband Nabi Bux had married Amir Bux. On 15-1-69 at about 10 p.m. Mst. Husna came out of her house in the town of Khairpur Nathan Shah for the purpose of giving food to the dogs. She did not return for more than half an hour so that her step-father Amir Bux and her step-brother Rasool Bux came out of their house for search. Prosecution witness Shamsuddin met them in the street and told them that the two appellants had been seen by him dragging away the girl and in spite of his challenge they had not stopped. Since appellant Ghulam Rasool was the son of one Imdad A.I, the party consisting of Amir Bux, Rasool Bux and Shamsuddin went to the house of Imdad A.I and called him.
Inquiries were made from Imdad A.I but the witnesses did not succeed in getting the girl and therefore they returned from the house of Imdad A.I. While the witnesses were returning they saw a light burning in the otaq or godown belonging to Imdad A.I. The witnesses found the godown locked and therefore they gave a call when appellant Ghulam Rasool opened the door and seeing the witnesses ran away. The witnesses saw Mst. Husna in the Otaq and they also saw appellant Faizoo sitting inside. Faizoo also ran away. The witnesses thereafter brought Mst. Husna to their house and on inquiries Mst. Husna disclosed as follows :- " I was standing outside the door when Ghulam Rasool and Faizoo whom I already knew, passed from the street and they put a cloth over my mouth and started dragging me. They took me to that house and made me sit there from where you have recovered me."
(Extract from the F. I. R).
3. Amir Bux thereafter went to one Jumo Khan, the Chairman of the Town Committee of Khairpur Nathan Shah, and narrated the facts to him. Juma Khan advised Amir Bux to lodge a report with the Police, but since it was late at night and Amir Bux was not feeling well, the report was lodged only on the next day at noon time. This report which is Exh. 5 on the record was registered by S. H. O.
Fazal Hussain Shah, The Police Officer thereafter started investigation and examined Mst. Husna, Shamshuddin, Rasool Bux and also Juma Khan. The Police Officer visited the scene of occurrence which was in the street in front of the house of complainant Amir Bux. No foot prints were detected because the street had a pucca floor. The mashirnama of the scene of offence was produced in Sessions Court as Exh.
12. The Police Officer thereafter visited the godown from where Mst. Husna was recovered. This godown was pointed out by Mist. Husna. A cot with a. Bed over it was found to be lying in the godown and some sweetmeat wrapped in paper was also found to be lying there.
Mashirnama was prepared and the same was produced in Sessions Court as Exh.
13. The Police Officer also arrested the two appellants on 17-1-69. Mst. Husna was sent to Dr. Jaan Muhammad for examination as to her age. The doctor gave an opinion that Mst. Husna was aged about 12 years.
After completion of investigation the two appellants were sent up to stand trial which has resulted in their conviction as stated above.
4. At the trial the prosecution examined complainant Amir Bux, the step father of Mst. Husna (P. W.
1); Mst. Husna, the kidnapped girl (P. W. 5); Shamshuddin (P. W. 2) and Rasool Bux (P. W. 6) the persons who had gone in company of Amir Bux in search of Mst. Husna; Juma Khan, the Chairman who was informed of the incident by complainant Amir Bux (P. W. 3). The prosecution also examined Saddaruddin, mashir, (P. W. 4). Besides these witnesses S, H. O. Fazal Hussain Shah (P. W.
7) also gave evidence and the deposition of Dr. Jaan Muhammad given in the committal Court was brought on the record of the Sessions Court as Exh. 18.
The two appellants, led no defence. However, in their statements both the appellants denied each and every allegation made in the prosecution case and attributed their implication to interestedness and hostility of the pro--secution witnesses. Appellant Faizoo had however stated that he had been implicated because of his friendship with appellant Ghulam Rasool with whom the prosecution witnesses had enmity.
5. The-case that the prosecution had intended to build up was one of forcible taking of Ma. Husna.
The evidence in this respect was given by Shamsbuddin and Mst. Husna the kidnapped girl.
Shamsbuddin who is a nephew of complainant Amir Bux has stated that he was returning from the mosque and saw that the appellants had placed a cloth over the face and mouth of Mst. Husna and were dragging her. He stated that he challenged the two appellants but they did not listen to him and therefore he started going to the house of complainant Amir Bux for giving him information regarding the incident. Mst. Husna has in her evidence stated that when she had gone out of her house to feed the street dogs, the two appellants who had concealed themselves by the side of the wall of her house suddenly appeared. Appellant Ghulam Rasool placed his hand over her mouth, appellant Faizoo caught hold of her legs. She further stated that she tried to raise cries but the appellants gagged her and threatened to kill her if she raised cries. According to her the two appellants forcibly carried her to the godown.
6. On a careful reading of the evidence of Shamshuddin and Mst. Husna and on consideration of the surrounding circumstances of this case I am of the view that this is not a case of forcible taking.
The evidence of P. W. Shamshuddin is not reliable or true. The incident bad occurred in the middle of the month of January and in this month the last prayer is over by about 9 p.m. Shamshuddin stated that he was returning from the mosque after saying his prayers. The case of the prosecution is that Mst. Husna left her house after 10 p.m. The presence of Shamshuddin as shown by him in his evidence has not convinced me. Furthermore, Shamshuddin has seriously contradicted himself in his evidence with regard to the manner in which Mst. Husna was being forcibly taken away. In his examination-in---chief he has stated that he identified the two appellants on the street light and he has also identified Mst. Husna whose mouth had been covered with a piece of cloth. However, in his cross-examination he has stated that he had seen the girl being carried away from a distance of twelve paces and at that time her whole face and her mouth was covered with a piece of cloth.
If the face and mouth was covered he could not have possibly seen Mst. Husna. Moreover.
Admittedly Shamshuddin is a nephew of Amir Bux, complainant. If he had seen Mst. Husna who is the step-daughter of Amir Bux being forcibly carried away he would have at once raised cries in order to attract the attention of the residents of the locality. He has clearly stated in his evidence that he did not raise any cries. This statement has been made by him in contradiction of what he had stated in his examination in-chief to the effect that he had challenged the appellants. In fact if he had challenged the appellants in the street from where the girl is said to have been kidnapped, having houses on both sides of it, some persons would have come on the cries. Moreover, Mst.
Husna in her evidence has stated that when she was recovered from the godown Shamshuddin was not present. Even in her police statement Mst. Husna had not stated that Shamshuddin bad seen her being carried away by the appellants.
Moreover, the mode of taking as described by Mst. Husna and Shamshuddin is discrepant and different. While Shamshuddin says that Mst. Husna was being dragged. Mst. Husna's evidence indicates that appellant Faizoo lifted her by her legs while Ghulam Rasool appellant lifted her by her arms. Moreover, if Mst. Husna had been forcibly carried away there should have been some mark of injury on her person or the person of the appellants. Significantly there is no such mark.
There is a further circumstance indicating that the removal of Mst. Husna was not forcible. Rasool Bux in his evidence has stated that they had started search for Mst. Husna after thirty to forty-five minutes of her going out of the house. This statement clearly shows that Mst. Husna was out of her house for more than half an hour. And, if she had been forcibly carried away she would have created some noise or raised cries but in this case no person living in the locality was attracted.
There is a further reason for disbelieving the evidence of Shamshuddin in so far as he states to have witnessed the forcible carrying away of Mst. Husna. The evidence of witnesses is that after Shamshuddin met Amir Bux and Rasool Bux he did not tell them the name of the girl who was being forcibly carried away. This is clearly stated by Rasool Bux in his evidence. If Shamshuddin had seen Mst. Husna being forcibly carried away he should have disclosed her name to Amir Bux and Rasool Bux when he met them in the street. Moreover, Amir Bux also stated in his evidence that it was he who first made inquiry from Shamshuddin in regard to the girl. Further--more, the evidence discloses that the complainant party went to the house of Imdad A.I to enquire about the girl. It is stated that Imdad A.I initially admitted that the girl was in his house and thereafter went away inside the house and did not return. The evidence discloses that although Imdad A.I did not return, the complainant and his companions who were searching the girl did nothing more but to come away. This appears to be very unnatural and indicates that the story which is being given by Shamshuddin in relation to witnessing the forcible taking away of the girl is not true. If Shamshuddin bad seen the girl the complainant party would have raised a quarrel at the house of Imdad A.I.
7. I am not even impressed by the evidence of Mst. Husna when she alleges forcible remove. Most of the reasons for my conclusion are the same as have been stated by me in the preceding paragraphs wherein I have dealt with the evidence of Shamshuddin. It must not be forgotten that Mst. Husna is an unmarried young girl. It is not uncommon or unnatural that young, unmarried girls when found to have been taken by strangers or having accompanied strangers, do make out a story of forcible removal. This is generally resorted to with a desire to save the reputation both of the girl as well as the family. It appears in the evidence of Mst. Husna that she was trembling and weeping at the time of her examination by the police officer. It is also in evidence that the Police Officer slapped her before recording her statement. Moreover, she did not raise any cries at the time of her alleged forcible removal. No doubt she said that she was gagged and a piece of cloth was put on her mouth but this does not appear to be a, true or convincing explanation. Moreover, she was found sitting on a cot in the godown and even sweet-meat was lying there. All these circumstances, coupled with .The fact of the absence of any injuries or scratches on her person clearly go to show that she was not forcibly taken as is alleged.
8. But the matter does not rest there because Mst. Husna was a minor at the time of the incident.
Dr. Jaan Mohammad had examined her on the day following her kidnapping and he gave an opinion that she was-aged about 12 years. Mst. Husna showed her age to be 16 years at the time of giving evidence before the Sessions Court. She was examined in the Sessions Court after sixteen months of the occurrence and therefore her age according to her would be fourteen and a half years at the time of incident. Moreover, evidence discloses that she was only one year old when her mother Mst. Sultana was divorced by her first husband Nabi Bux. Mst. Sultana had been married to her second husband Amir Bust since ten or eleven years. Amir Bux has clearly stated that Mst.
Husna was aged twelve years at the time of this incident. At the time of hearing of this appeal I found that the evidence of Dr. Jaan Mohammed who had examined Mst. Husan as to her age had been recorded in a slip-shod manner. All that -was said by Dr. Jaan Muhammad was that from clinical examination he was of the opinion that the age of Mst. Husna was twelve years. Since the evidence of Dr. Jaan Muhammad was opinion evidence, receivable under section 45 of the Evidence Act, it was necessary for the Medical Officer to give the data and the reasons for his opinion. In view of this defect I have examined Dr. Jaan Muhammad under section 428, Cr. P. C. He has stated before me that he had recorded his observations. He has stated that Mst. Husna had twenty-eight teeth, she was four feet and eight and half inches tall and her weight was 78 lbs. He has further stated that her breast was undeve--loped and pubic hair and axillary hair were absent.
He has stated that on the basis of this data he came to the conclusion that the age of Mst. Husna was twelve years. He has however stated that his opinion is subject to the margin of two years on the upper side and therefore the age of the girl is less than fourteen years. The document prepared by Dr. Jaan Muhammad at the time of examination has also been produced by him as Exh. C I. He has explained that this document was available with him even at the time when he appeared for evidence before the Court of the Magistrate but he did not produce the same because he was not asked to do so. In cross---examination nothing has emerged to cast any doubt on the evidence of Dr. Jaan Muhammad in regard to age of Mst. Husna. The facts therefore, stand proved that Mst.
Husna was on the date of incident aged about fourteen years and as such a minor within the concept of section 363 P. P. C. The law is well established that any person taking a minor from the keep in of the lawful guardian even without the opposition of the minor would be guilty of an offence under section 363, P. P. C.
9. Coming to the merits of the case it is conclusively established on the evidence that Mat. Husna was taken by the two appellants and was recovered from the godown of appellant Ghulam Rasool.
The entire story is stated in the First Information Report and the prosecution witnesses namely Amir Bux, complainant, his son Rasool Bux and Mst. Husna have thoroughly established this fact of kidnapping.
10. In cross-examination the appellants have tried to make out a case that they had been implicated on account of enmity. The enmity according to them is that whereas complainant Amir Bux is the supporter of Juma Khan, the Chairman of the Town Committee; Imdad A.I the father of appellant Ghulam Rasool is a supporter of Shamshuddin Sheikh who had contested basic democracy election against Juma Khan. I have not been impressed by this allegation. The evidence of the prosecution discloses that complainant went to Juma Khan and told him all the facts. All that Juma Khan did was to advise the complainant to lodge a report. If Juma Khan and Shamshuddin were on terms of enmity or if Juma Khan were prejudiced against Imdad A.I, the father of appellant Ghulam Rasool, he would have at least accompanied complainant Amir Bux to the Police Station. Besides for establishing this allegation it has to be assumed that Amir Bux, who is a respectable shopkeeper would go to the extent of incurring disgrace for his step-daughter just to oblige Juma Khan. This does not stand to reason. I therefore hold that this allegation of enmity made by the appellants is entirely misconceived.
11. The appellants have also alleged that Gajoo, a servant of Amir Bux had quarrelled with appellant Ghulam Rasool three or four years before the incident. I do not think that on account of a quarrel between a servant of complainant Amir Bux and the appellant the complainant would go to the extent of disgracing his step-daughter by making false allegation regarding her kidnapping. These allegations of appellant in regard to enmity of the complainant are not believable.
12. The other argument raised by the learned advocate for the appellants was that the First Information Report was belated. There is no doubt that the report was belated. The Incident occurred at 10 p.m. And the girl was recovered by I1 p.m. But the report was lodged on the next day at noon time viz., after nearly thirteen hours of the recovery of Mst. Husna. In this context the circumstance of the complainant having informed Juma Khan on the very night of the incident cannot be lost sight of. Juma Khan has stated that complainant had come and informed him about the kidnapping of Mst. Husna that very night. I see no reason to disbelieve Juma Khan who as witnesses state is a respectable man and Chairman of the Town Committee. However, the complainant has in his evidence stated that he was not well on the night of incident and therefore did not lodge the report. To a question in cross-examination the complainant said that he did not send his son Rasool Bux to lodge the report on consideration of his honour. To my mind the reason for delay is only a desire on the part of the complainant to save his honour. He has taken time to consider whether he should lodge the report or not. On consideration and on a second thought he thought it fit to report. One cannot forget that in cases of kidnapping perpetual ignominy attaches to the kidnapped girl and the relatives and often times the parents conceal the fact of kidnapping even though they are, convinced of the fact of kidnapping. Even in this case the cause of delay seems to me to be double mindedness of complainant Amir Bux in respect of lodging of report.
However, in the circumstances of this case I find. That the delay is not fatal to the prosecution. The prosecution case has been satisfactorily proved on evidence.
13. The learned Advocate for the appellants has relied on an admission made in the evidence of complainant Amir Bux to the effect that he had made an application presumably to the District Magistrate for withdrawal of the case. It is suggested that this application was made because the case was a false case. I cannot understand the logic of this argument. If the case were false the complainant would have a motive to file the same, and in that case, it is not expected that the complainant would make an applica--petition for withdrawal of the case. Moreover, the complainant stated in his evidence that he had made that application because the accused had come to him with a Quran which would imply that the accused bad begged pardon of the complainant for their misdeed.
It is further argued that Mst. Husna had left her house voluntarily as she was being maltreated.
Implication of the argument appears to be that Mst. Husna wanted to abandon the guardianship.
This argument has also not impressed me because there appears to be no reason for Mst. Husna to abandon the house where she was living with her mother and step-father. This does not appear to be a cogent or reasonable interpretation of the circumstances of the case. To say the least there is nothing on the record to indicate that Mst. Husna was being maltreated.
14. For all these reasons I am of the view that the guilt of the appellants is satisfactorily proved and I see no reason to interfere with the conviction. However, since the case of forcible removal of Mst.
Husna has been disbelieved by me and since I have come to the conclusion that the minor girl had not been taken by the appellants against her will substantial reduction in sentence is called for.
Looking to all the circumstances of the case I am of the view that a sentence of nine months R. I.
Will meet the ends of justice. The sentence as far as fine is concerned is also set aside. Both the appellants shall suffer R. I. For nine months.
15. With this modification in sentence the appeal is dismissed. The appellants are on bail. They shall be arrested forthwith and remanded to custody.