This is an appeal against the judgment of Sessions Judge, Dadu, convicting the appellants for an offence under sections 366, 392 read with sections 397, 452, 342, 343, P. P. C. And 13(d) of West Pakistan Arms Ordinance and sentencing them to various terms- of imprisonment with fine, ordering the sentences of imprisonment to run concurrently. Khan Muhammad accused who has been acquitted wanted the marriage of his grandson with Mst. Nawab Zadi but his request was rejected and instead Nawab Zadi was given in marriage to Muhammad Kasim step-son of complainant Limon. On 25-4-1966 at about sun-set the complainant, his two, wives and Mst.
Nawab Zadi were sitting in the house when three persons came. Out of them the present two appellants were identified. Appellant Muhammad had a hatchet, Ghulam Kadir a pistol and the third culprit had a gun. The culprits tied Limon, his son 'Safdar, his Tonga Driver Bacho and compelled Limon to give them his licenced gun and cartridges. The horse was also removed from their house and thereafter the culprits forcibly removed Mst. Azima Khatoon wife of Limon and Mst.
Nawab Zadi with her, baby and mounted them on the horse. Then after firing a gun shot in the air they left. Ramzan and Ghulam Haider witnesses came from the hotel and witnessed the incident.
Limon went to Nazir nekmard of the village and informed him and then proceeded to the Police Station where first report was lodged at 9-00 a. m. The police station is situated at a distance of about 2 miles. In the meantime Nazir Hussain and others formed a tracking party and pursued the culprits. The Police after recording the first report proceeded to the scene of offence and some police men were also sent to follow the tracking party. On the way Mst. Azima was dropped by the .
Culprits and she returned to the house late at night. Her statement was recorded by the police.
2. The police party and other persons who were tracking the prints crossed the river and on 29th they found the present two appellants with the abducted lady. Appellant Muhammad was riding with the lady on the horse while Ghulam Kadir appellant was on foot. Muhammad was captured while Ghulam Kadir escaped. The stolen horse, cartridges, and stolen gun were recovered.
Appellant Muhammad was taken to the police station. On 1-5-1966 Khan Muhammad was arrested and his licensed gun was secured. Interim challan was sent on 14-5-1966. Ghulam Kadir was arrested on 12-11-1966 and he was also sent up. Appellant Muhammad is son of Khan Muhammad while Ghulam Kadir appellant is sisters' son of Khan Muhammad.
The appellants proclaimed their innocence and denied the allegations. Muhammad appellant stated that he was 3 before the police by Wali Muhammad, Sultan and Muhammad Ibrahim and it was not true that he was secured along with the woman. It was further pleaded that Khan Muhammad had dispute with Nazir Hussain and Sarfraz over business of grain and, therefore, they had been implicated.
4. The prosecution examined Limon, Mst. Nawab Zadi, Ghulam Haider, Mst. Azima, Mr. Shah Jehan Khan, Fire arm Expert, Bachho, Ramzan, Anwar Din Mashir, Nazir Hussain, Wali Dino H. C. Muhammad Parial, Mr. Abdul Majid A. S. I. P. Mr. Haji Savan Khan S. H. O. And Imam Bux mashir. On the other hand the appellants examined Wali Muhammad; Muhammad Ibrahim, Muhammad Sultan and Khair Muhammad. On the assessm ent of the evidence the learned Sessions Judge acquitted Khan Muhammad while convicted and sentenced the appellants.
5. From the evidence recorded in the lower Court it is clear that there are six eye-witnesses and they are Union, Mst. Nawab Zadi, Ghulam Haider, Mst. Azima, Bachu and Ramzan. Limon stated that he along with the ladies was sitting in the house when three persons came armed with different weapons and after tying them removed the horse, gun and forcibly took away Mst. Nawab Zadi and Mst. Azima. Out of those three culprits he identified the present appel--lant Muhammad.
However, subsequently Ghulam Haider and Ramzan told them that they had identified Muhammad and Ghulam Kadir. Thereafter he lodged the first report, Sometime at mid night Mst. Azima returned to the house and she said that she had been left by the culprits. She also disclosed that she identified Muhammad and Ghulam Kadir. He admit--ted that he had not disclosed in- his first report that Ramzan and Ghulam Haider said that they had identified Ghulam Kadir. Mst. Nawab Zadi and Mst. Azima are the two ladies who had been forcibly removed. They implicated both the appellants and stated that they had identified them. Mst. Azima was dropped on the way while Mst.
Nawab Zadi was taken away by the appellants and she was rescued by the police and other persons who had pursued the culprits. Muhammad was secured while Ghulam Haider ran away.
Ghulam Haider and Bachu had come on cries and had witnessed the incident. They too identified the present two appellants. They further stated that they had disclosed their names to the complainant. However, it was not disclosed in the first report that the name of Ghulam Kadir was disclosed by them. Ramzan at the time of this incident was sitting at a hotel and watched the' incident from there. He had also identified the present two appellants. According to him there were 4 culprits and he could not identify the other two. Then is the evidence of Nazir Hussain who was informed by the complainant. He too stated that the complainant told him that Muhammad and Ghulam Kadir along with two un--identified persons had forcibly taken away the two ladies and further told him that Muhammad and Ghulam Kadir were also identified by Ghulam Haider and Ramzan. He was also with the tracking party and had secured appellant Muhammad with the woman on the 3rd day of the incident. According to him the other culprit was Ghulam Kadir who escaped. The recovery of Mst. Nawab Zadi and the arrest of Muhammad are further supported by the police officer who had accompa--nied the tracking party. He of course did not know Ghulam Kadir but his name was disclosed to him by the persons who were accompanying him.
6. From the above evidence it is clear that all the witnesses are in agreement so far appellant Muhammad is concerned. All of them claim that he was one of the culprits and was identified at the spot. His name also appears in the first report. There is additional strong corroborative evidence against him. Mst. Nawab Zadi was secured from his posses--sion and he was also arrested at the same place. According A to the evidence the appellant and Mst. Nawab Zadi were riding on the horse. Thus the story' of abduction of the two ladies and the participation of appellant Muhammad are fully established. There is absolutely n4 reason to disbelieve the evidence of the witnesses.
7. The appellant pleaded enmity. It was stated that on account of the dispute of his father with Nazir and Sarfraz over the business of grain he was implicated. There is no doubt that such a dispute had arisen but it is not possible to accept that on account of that dispute the appellant was falsely implicated. It may be further mentioned that the dispute had taken place about a year before this incident and it was also settled. So the question of false implication of the appellant on that account did not arise.
8. The contention of the appellant that he was not secured with the woman but he was subsequently produced by Wali Muhammad, Muhammad Ibrahim and Muhammad Sultan at the police station was rejected by the learned Sessions Judge and I see no reason to disagree with him. All three witnesses are interested in the appellant. Wall Muhammad stated that about 2 years ago the appellant Muhammad had cone to him to purchase grain from him and passed night with him. Next morning Parial came and informed him that a case had been fled against the appellant and he was required by the police. So the appellant requested him to accompany him. He, therefore, took the appellant to the otuk of Sultan where Sultan and Muhammad Ibrahim were present and all the three accompanied the appellant to the police station. He further stated that on that day the appellant purchased about 150 maunds of paddy and paid the price also. This is a cock and bull story and unbelievable. Muhammad Ibrahim and Sultan live in the same village.
Sultan stated that the police had come to his village to arrest Muhammad, the appellant, and, therefore, he sent for Muhammad who came along with Wali Muhammad. But before his arrival the police had already left and, therefore, he, as well as Wali Muhammad and Muhammad Ibrahim took the appellant to the police station. It is ridiculous that all the three should go with him simply for his production. Moreover, the evidence of the police officer who had gone with the tracking party and had secures the appellant along with the woman has not been assistance on any ground. He has no connection with the complainant party nor he has any grudge against the appellant. Nothing has been alleged against him .Why he would give false evidence. The fact that the appellant and woman were secured was also mentioned in the mashirnama which was.
Prepared at the spot.
9. Now I take up the evidence of Khair Muhammad who was the boat man. He stated that some persons had crossed the river in his boat along with one lady but he did not identify them. He further stated that after sometime Nazir Hussain and others as well as the police came to the ferry .
And crossed the river. After about 4 days the police returned with one lady. He did not implicate any of the appellants. He stated that they were not the persons who had taken away the lady and appellant Muhammad was not with the police when the police returned with the lady. .It clearly appears that he had been won-over by the appellants and, therefore, he was not prepared to speak the truth. Originally he was prosecution witness and was given up as having turned hostile.
He was, therefore, examined in defence.
10. Thus, there can be no manner of doubt that appel--lant Muhammad was one of the persons who committed the robbery. And forcibly removed the two ladies from their house.
11. So far the other appellant Ghulam Kadir is concerned the case against him is not free from doubt. Admittedly he was already known to the complainant as well as other witnesses but his name did not appear in the first report. The complainant admitted in his evidence that out of the three culprits he had identified only one, namely; Muhammad appellant. So if appellant Ghulam Kadir had been one of the culprits there is no reason why the complainant should have failed to identify him. The statement of the other witnesses that before the complainant, proceeded to lodge the report the name of this appellant was disclosed to him is unaccep--table. Similarly the statement of Nazir Hussain that the name of this appellant was disclosed to him must also be rejected. The -complainant for his 'failure to identify Ghulam Kadir attempted to offer an explanation to the effect that although he knew the appellant but he could not identify him on account of fear. This is also un-acceptable. He has given do explanation why he did not disclose the name of the appellant in the first report when his name was disclosed to him by other witnesses. There is also no consistency about the time of the incident. Some of the witnesses stated that the incident took place after sunset when it was dark. It was also stated by witness Ghulam Haider that the faces of the accused were muffled. Of course the two ladies as well as Nazir Hussain anti others stated that appellant was also with Muhammad and the lady when the latter two were secured by the police but because of the faltering evidence regarding the identification of the appellant at the time of the incident, this evidence cannot be accepted without any independent corroboration. No such corroboration is avail--able. The police officer who had accompanied the tracking party did not know the appellant, and the culprit whoever he may be, had escaped oil seeing the police and other persons. The appellant was arrested after a long time and no identification through the police officer was held. Thus the evidence of the police officer does not in any way help the prosecution so far as the case against the appellant Ghulam Kadir is concerned. I am therefore inclined to give benefit of doubt.
12. Lastly the learned counsel for the appellant urged that the offence, if at all, fell under section 365 and not under section 366, P. P. C. I find no force in this contention. The woman was forcibly removed not merely for the purpose of wrongful confinement but looking to the background the intention must be to subject her to illicit intercourse. Approaches were made for her marriage with the grandson of Khan Muhammad father of appellant Muhammad but the relations of the woman did not agree and instead she was d given in marriage to the step-son of the complainant. It is not the case that the woman had not been detained simply for the purpose of some compensation, or for some purpose other than the illicit intercourse. It is true that she was no subjected to any , such illicit intercourse till she was apprehended but it does not mean that, an such intention was absent.
13. In the result the appeal of appellant Ghulam Kadir is allowed and the conviction and-sentence passed against him are set aside, while the conviction and sentence passed against the appellant Muhammad are maintained and his appeal is dismissed. Appellant Ghulam Kadir is in custody and should be set at liberty forthwith, if not required in any other case.