' This is an appeal against the judgment, dated 3-11-1994 passed by Mian Jalal-ud-Din Akbar, learned Additional Sessions Judge, Faisalabad whereby, he accepted the appeal and set aside the judgment, dated 5-10-1994 passed by Ch. Abdul Ghafoor, M.I.C. (Judicial), Faisalabad, whereby, Sardar Khan respondent No,1 was convicted for an offence under section 342, P.P.C. And sentenced him to six months' R.I. And a fine of Rs,500 or in default to undergo further S.I. For one month.
2. The brief facts are that the appellant/complainant filed a report with police that she was in possession of Ihata in Chak No,188/R.B., Tehsil Chak Jhumra, District Faisalabad which was given to her by her maternal-uncle Barkat Ali during his lifetime. The aforesaid Barkat Ali died on 7-11-1988 and was burried in agricultural land belonging to him, whereas, his wife died on 11-3-1989 and was buried in the Ihata in question. The complainant further contended that her husband was serving in Saudi Arabia and she was residing in her house in Faisalabad and used to visit Chak No,188/R.B.
Occasionally. She came in the Chak on 15-11-1991 and found that some persons were baking breads in the oven installed at the aforesaid Ihata. She asked from the aforesaid persons as to from whom they had obtained the key of the Ihata to which those persons replied that they .Had got it from Sardar Khan respondent. She asked _ them to call Sardar Khan respondent who came there at about 2-30 p.m. And started abusing her. He also took away the breads alongwith the persons ,who were baking them and confined her in the Ihata by putting lock on its door. She started raising noise, whereupon, her tenant Mukhtar Ahmad P.W. And his son Manzoor Ahmad came there and released her from the illegal confinement at about 5-00 p.m. According to the F.1.R., the aforesaid Mukhtar Ahmad and Manzoor Ahmad had seen the alleged occurrence. She, however, lodged the report with the police on 20-11-1991 regarding the alleged occurrence. The police found Sardar Khan aforesaid guilty and sent him up for trial, whereupon, he was convicted by the learned trial Magistrate as aforesaid. He filed an appeal before the learned Additional Sessions Judge who while setting aside the conviction and sentence passed upon the respondent Sardar Khan accepted the appeal and acquitted him. Against that acquittal, the present appeal has been filed.
3. It is contended by learned counsel for the appellant that the prosecution evidence clearly proved that the appellant was illegally confined in the Ihata in question but the learned Additional Sessions Judge misconstrued the evidence to come to some different conclusion. In this connection, a reference was made to paragraph No,12 of the impugned judgment passed by the learned Additional Sessions Judge, wherein it was said that according to the prosecution case, Mst. Azra Parveen was confined within the four walls of the compound but it cannot be said with certainty that she was restrained to go out of the compound. While referring to this part of the impugned judgment, learned counsel for the appellant has submitted that since the respondent Sardar Khan had put lock on the door of the Ihata, therefore, the complainant Mst. Azra Parveen was definitely restrained from proceeding towards any direction in which she had right to proceed and as such, it would amount to wrongful confinement as defined in section 340, P.P.C. And punishable under section 342, P.P.C. Hence, it was contended that the judgment of the learned appellate Court was bad in the eyes of law and the conviction and sentence recorded by the learned 'Magistrate were rightly made.
4. Learned A.A.-G. Assisted by learned counsel for the respondent/accused contended that the F.I.R.
Was delayed by about five days and no cause was shown for the delay in the F.I.R. Itself. Although the complainant Mst. Azra Parveen while appearing as P.W.1 during the trial offered an explanation that she protested against the conduct of the accused and had brought it to the notice of elders of the village but since nobody helped her, therefore, she reported the matter to the police with some delay. However, there is nothing on record except the bald statement of the complainant that actually the delay had occurred as she was seeking ventilation of her grievance from the respectables of the village nor any evidence to that effect was brought on record. Secondly, it was submitted that there was admittedly a civil litigation in respect of right of possession of the disputed Ihata between the complainant and the accused/respondent and others and as such, it was not clear as to who was actually in possession of Ihata. Thirdly the respondent was involved in a case due to enmity on account of civil litigation and that the P.Ws. Were also the witnesses of that case against him. Lastly, it was contended that the prosecution did not examine any independent witness to prove its case although it was in evidence that the place of occurrence was surrounded by populated houses but none came there during the alleged confinement of the complainant while she was raising alarm. Hence it was submitted that the entire occurrence was concocted which took five days to prepare the case and thereafter, the F.I.R. Was got registered with the help of the police. While closing the arguments, learned counsel for the respondent pointed out that the prosecution witnesses were not given proper oath when they were cross- examined. In this respect, it was alleged that their statements were recorded on solemn affirmation instead of prescribed oath and as such, the conviction recorded by the trial Magistrate was bad in the eyes of law even on that ground.
5. I have considered the foregoing submissions and find that there is civil litigation between the parties in respect of Ihata in dispute. It is the case of the respondent that due to burial of wife of maternal-uncle of the complainant in the aforesaid Ihata, it has become a public place as it was being treated as Mazaar. This facts finds support from cross-examination of the complainant as P.W.1 where she admitted as correct that the Additional District Judge had allowed to spend the profit money on the maintenance of aforesaid Mazaar, however, such permission was allegedly not given regarding Mela to be held on that mazaar. This shows that grave of Mst. Bibi was being treated as tomb (Mazaar), and if it is so it would be treated as a public place. It is perhaps for that reason that some people were baking breads at the oven (Tanoor) installed in the premises of Ihata and they had allegedly left alongwith Sardar respondent when the complainant arrived there and challenged their presence.
6. The delay in filing the F.I.R. Is material in this case because it was never explained in the F.I.R. And the explanation given later by the complainant in her statement was not supported from any evidence by examining any of the notables of the village to show that the complainant had been trying to get her grievance ventilated through the Elders Body (Punchayat) of the village. The possibility, therefore, cannot be ruled out that the case was cooked up as a counter-blast to the civil litigation between the parties by examining the interested witnesses who were also witnesses in civil suit. If any occurrence had actually taken place, it was not difficult for the complainant to cite any independent witness from the Village Body and particularly from the neighbours of the Ihata who had inhabited houses around it. The complainant remained confined for about 2-1/2 hours and was crying but strangely enough no independent person from the neighbourhood came there to see this sort of occurrence. This makes the whole prosecution story fairly doubtful which remained unsupported by any independent witness from the neighbourhood. The observation made by the learned Additional Sessions Judge regarding confinement is not without substance.
The prosecution failed to produce any lock which was placed by the respondent Sardar Khan on the door of the Ihata nor any witness supported the prosecution version except the complainant herself that door of the Ihata was locked by the respondent in his presence. This fact was also pointed out by the learned Additional Sessions Judge while making observation that there may be confinement but there was no restraint if the complainant wanted to proceed to any direction of her choice. As such the ingredients of section 340, P.P.C. Defining wrongful confinement appear to be missing so as to attract the punishment provided under section 342, P.P.C. For the aforesaid offence. The respondent Sardar was, therefore, rightly acquitted. The finding of acquittal recorded by the learned Court below does not suffer from any illegality, misreading of evidence nor it is capricious or arbitrary so as to call for any interference in appeal.
7. In view of the foregoing discussion, the appeal is dismissed.