The appellant has challenged his conviction under section 365, P.P.C. and sentence of seven years R.I. and a fine of Rs,10,000 in default whereof he was to undergo further 6 months R.I. vide judgment dated 20-7-2000 passed by learned Judge of Special Court under Anti Terrorist Act, 1997, Gujranwala. This judgment has been passed in case F.I.R. No,198 of 1999 registered on 7-6-1999 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 342, P.P.C. at Police Station Gakhar Mandi, Gujranwala.
2. Brief facts of the prosecution case as narrated by Arshad Iqbal, P.W.3, are that he is Sheller Fitter by profession; Tabinda victim is a daughter of his sister, for the purpose of education she came to Gakhar. Mandi and got admission in Government Girls High School Gakhar; the appellant Shahid Iqbal is residing in front of his house; the appellant used to tease her sister's daughter, when she used to go to school and she complained to him about the activities of Shahid, appellant and the complainant approached father of appellant and comnlained about the attitude of appellant, who promised to forbid his son from teasing. He was not present in his house on the night between 2/3rd June, 1999 as he had gone to Larkana, Mst. Tabinda victim and minor children were sleeping on the roof; at about 1-30 a.m. the appellant Shahid abducted her on gun-point by fixing a stair- case with the house and took Tabinda to his house and confined her in a room. On the next morning, when Mst. Tabinda was not found present on her cot, wife of complainant and his uncle Nazir Ahmad searched for her at about 2-30 p.m. his wife suspected the activities of the parents of Shahid, appellant and sent Khalid Raoof with her mother to the, house of Shahid for search of the house of Shahid, appellant. Khalid Raoof and his mother found Mst. Tabinda in eastern Baithak of the house which was locked outside, the same was got unlocked and Mst. Tabinda was found lying on a cot whose hands and legs were tied with the help of cloth. In the meanwhile Ghulam Mustafa son of Nazam Din, Caste Arain who runs a shop in the same lane also arrived there and had witnessed Mst. Tabinda in tied position. They untied Mst. Tabinda and brought her out from the room. It is further alleged that the appellant has abducted Mst. Tabinda for committing Zina-bil- Jabr. The complainant was informed on telephone and when he came back he moved application Exh.P.A to D.S.P., who ordered for registration of case on the basis of which formal F.I.R. Exh.P.A/1 was recorded by Ghulam Abbas, A.S.I, P.W.1. The appellant was arrested on 18-6-1999 and after completion of investigation, challan was submitted in the Court of Special Judge Anti-Terrorist Court, who framed charge under section .365, P.P.C., which was denied by the appellant and he claimed to be tried. The prosecution in order to prove the guilt of the appellant has produced Mst.Tabinda Ishaque victim as P.W.1 , Mst. Safia Bibi, wife of Nazir Ahmad Saleerni, P.W.2, Arshad Iqbal, P.W.3 is the complainant and maternal uncle of Mst. Tabinda, P.W.4 is Khalid Rauf and P.W.5, Ghulam Abbas, A.S.I., recorded the formal F.I.R. Exh.P.A/1 and also partly investigated the case including the arrest of the appellant on 18-6-1999. The appellant in his statement under section 342, Cr.P.C. has denied the allegation and on question that 'why this case against you he made following statement:-- "A quarrel took place between Gulzar and myself. Gulzar is servant of Ghulam Mustafa who is related to Mst. Tabinda abductee and due to grudge Ghulam Mustafa also quarreled with myself and on the next day he with the connivance of complainant lodged a false case against me."
He has produced Muhammad Aslam, Junior Clerk, District Education Officer (Male) Gujranwala to prove that Middle Girls School Mansoorwalai, Tehsil Wazirabad was upgraded from 1-5-1989 as D,W.2. Head Master of Government Primary School, Gakhar Mandi was also produced as D.W.2. After hearing the arguments of the counsel for parties the impugned judgment has been passed.
3. The learned counsel- for appellant has contended that the case is totally false and the version of the prosecution is improbable. The appellant had not abducted the victim and has been falsely involved in this case by concealing true facts. It is further contended that the eye-witnesses are related inter se and no independent witness has been produced and nothing was taken into possession by the Investigating Officer; as the cloth by which the mouth of victim was wrapped and was tied has not been taken into possession. It is further contended that no other person of locality was produced which is sufficient to hold that the prosecution case is based on close and interested witnesses and their statements are contradictory on material points and this appeal is liable to be accepted by acquitting the appellant from the charge. It is further contended that the delay of four days in lodging the F.I.R. is itself sufficient to hold that the alleged story of abduction is a concocted story, which was fabricated with due consultation.
4. The learned State counsel has opposed this appeal and supported the prosecution case and contended that the prosecution witnesses are reliable though they are interested witnesses, but they had no previous enmity to falsely implicate the appellant in this case.
5. I have heard the learned counsel for parties and perused the entire evidence produced by the prosecution in this case. So far as the delay is concerned it has been duly explained by P.W.3, Arshad Iqbal, complainant, that he had gone to Larkana and when he came back, the parents of the appellant had been trying to patch up the matter. Even otherwise, the 'delay inlodging of F.I.R. in the case of abduction in which the honour and dignity of the family members of victim is involved is not material. The parties usually take time in discussing whether the case should be registered or not. In such circumstances, the delay is not material in abduction cases, especially where a young girl is abducted and kept in illegal confinement for the purpose of commission of Zina. So far the statements of four P.Ws. are concerned, who had witnessed the abduction of Mst. Tabinda, they have supported the prosecution case. P.W.1 has stated that she was abducted by the appellant alongwith two unknown persons and he came on the roof of the house through stair, which was fixed by him in a street and kept her in his house and also tried to commit rape with her. On her hue and cry other family members of the appellant attracted to the room and he could not rape her due to their intervention. The other witnesses have also supported her. She was subjected tolengthy cross-examination, but nothing could be gained from her cross-examination except some confrontation in her earlier statement Exh.D.A, which are not material. Similary P.W.2, Mst.
Safia, wife of Nazir Saleemi has made a statement that she is resident of adjacent house of Arshad Iqbal and wife of Arshad Iqbal came to her and told her that Mst. Tabinda was not present on her cot and they searched, for Tabinda, and they suspected activities of the parents of the appellant; her son Khalid Rauf, and her husband Nazir Saleemi went to the house of Shahid Iqbal, appellant andsearched for the victim and she was recovered while locked in a room. She was also subjected to lengthly cross examination, but no enmity or grudge has been even suggested to her to falsely implicate the appellant in this case. Similarly, Arshad Iqbal, has also supported his version mentioned in the F.I.R. P.W. 4.. Khalid Rauf, who is neighbourer also made similar type of statement and supported the prosecution version. He was also subjected to lengthy cross-examination, but there is no substantial contradiction in his statement made earlier before the police or with other witnesses. In these circumstances, from the statements of these witnesses it is proved that the occurrence had taken place. P.W.3 Arshad Iqbal, complainant is supported by P.W.4 Khalid Rauf who is neighbourer and they had supported the statement of abductee Mst. Tabinda and also supported her recovery from the house of appellant while she was locked in a room. In these circumstances, the prosecution evidence is consistent on material points and is not contradictory to each other. No enmity or grudge has been established to falsely implicate the appellant in this case by the victim or other witnesses. In such circumstances, when all the three witnesses above have shown their presence at the time of occurrence and supported the prosecution case, I have no hesitation to accept their statements truthful witnesses and has relied upon them in holding that the offence under section 365, P.P.C. has been established in view of these statements. Their statements have been supported by the statement of P.W.3, complainant who has got lodged F.I.R.
In such circumstances, the conviction under section 365, P.P.C. is based on evidence on record and is liable to be maintained. As the victim was abducted only and was taken to the neighbouring house and that the appellant is a young lad of about 20 years and also being first offender the sentence of seven years seems to be harsh as full sentence as is provided under section 365, P.P.C. has been awarded. The appellant has remained in Jail for substantial period. Hence his sentence is reduced from seven years to 4-1/2 years. However; the fine of Rs,10,000 is maintained but he shall further undergo R.I. for three months instead of six months in case of default in payment of fine. The benefit of section 382-B, Cr.P.C, shall also be given to the appellant. With the above said modification in the quantum of sentence, the appeal is dismissed.