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Criminal Appeal No. 358 of 1965, decided on 14th February 1968.

S. 368--‑Wrongfully confining or concealing woman‑‑Conviction based on evidence of witnesses closely related to complainant‑Prosecution, despite having opportunity to do so, not examining an independent witness referred to in First Information Report‑--Evidence of prosecution witnesses contradictory and far from convincing‑--Conviction and sentence of accused set aside.

Azizullah Shaikh for Appellant.

Abdul Karim Lakhan for the State.

Date of hearing: 14^th February 1968,

The appellant has been convicted by the learned Sessions Judge, Jacobabad by his order dated 23‑11‑65 under section 368, P. P. C. and sentenced to R. I. for two years and to a fine of Rs. 2,000 in default further R. I. for six months. The appellant and one Gut Hassan were challaned in respect of an offence involving Mst. Sahja and her minor daughter, the prosecution case being that on the 8th August 1964, this young woman with her minor daughter were abducted by Gut Hasan from the house of Yar Shah at about breakfast time, Gul Hasan's intention being to marry her against her will or to force her to illicit intercourse, the prosecution case also being that at the time this Gut Hasan was armed with a pistol, for which he had no valid licence. The present appellant Jan Muhammad was charged with having wrongfully concealed and confined this Mst. Sahja knowing or having reason to believe that she was so abducted. Before the proceedings terminated in the Sessions Court Gut Hasan died and the appellant after trial was convicted.

2. The relevant facts are that Mst. Sahja is the wife of the complainant Allahdino, P. W. Bachoo is Allahdino's brother and Gabol is Sahja's father: It may be mentioned that there is an absconding accused in this case namely Malhoo a cousin of Gabol who lived with Gul Hasan and that Allahdino and Gabol had brought Bachoo who was ailing to Jacobabad and stayed in the Otak of Yar Shah their Mursheed and Sardar. On the morn ing of the day of the incident Allahdino went to see Dr. Manzoor and on his return to Yar Shah's Otak at about 10 a: m. found the door of his room bolted from outside and on opening it the tiling Bachoo informed him that Gut Hasan and the absconding accused Malhoo had forcibly taken away Mst. Sahjo and her minor daughter at the point of pistol. Gabol also present repeated the same story. Allahdino complained to Yar Shah who made enquiries from Gabol and Bachoo and advised a search for the woman privately. The complainant party returned to their village and after some time were informed that Mst. Sahja lived in Ghotki under the protection of this appellant Jan Muhammad who is a Pir and Murshid of Gut Hassan and Malhoo. Allahdino's evidence is that he and Gabol went to Yar Shah, told him of what information they had and then accompanied by Yar Shah went to Ghotki to this appellant who refused to return Mst. Sahja whereupon the complainant party returned and lodged a report at the City Police Station at Jacobabad on the 17th August 1964. The investigation was conducted by the head constable who visited the scene and prepared the usual mashirnamas in the presence of mashirs. He then went to the house of the absconding accused along with Gabol but Malhoo was not available there. Thereafter they went to Kashmore to secure Gut Hasan in his house but Gut Hasan seeing them made himself scare. Thereafter, Gabol again went to appellant Jan Muhammad Shah and pleaded with him on the Holy Quran and as a result Sahja was returned with her baby and Gabol brought her to his village Nabibad from where he took them to Shandadkote and informed the police. The investigating head constable armed with a search warrant secured Mst. Sahja and produced her before the A. D. M., Jacobabad on the 23rd November 1904, where her section 164 statement was re corded. Thereafter various places connected with this alleged crime were pointed out to the police and search was made for this appel lant but he was not available. This appellant was challaned on 15‑12‑64. The case of the prosecution is that absconding Malhoo used to commit rape on Mst. Sahja during the night and that during the day this Jan Muhammad Shah confined her deliberately with the necessary knowledge and intention.

3. The present appellant in defence stated that he know nothing of the affair, that the P. Ws. were inter‑related and were Mureeds of Yar Shah with whom he had dispute over Jagir and at whose behest he had been implicated.

4. The learned Sessions Judge framed three points for determination holding that Mst. Sahja had been abducted, that this appellant had wrongfully confined Mst. Sahja knowing that she had been abducted and in consequence convicted him under section 368.

I have been taken through the R & P with the assistance of the learned counsel for the State. The relevant witnesses with regard to this appellant and his implication in the offence are the first informant P. W: 1 Allahdino, Gabol P. W. 3, Bachoo P. W. 4 and Mst. Sahja P. W. 2. We are not concerned with the evidence of Bachoo as he has only testified to the actual taking away of Mst. Sahja on the day of the incident and did not join Allahdino, Gabol in the search of Mst. Sahja.

6. It appears to me that there are grave contradictions is the testimony of P. Ws. Allandino and Gabol in respect of this appellant which throws a grave doubt on the authenticity of the prosecution case and the veracity of these witnesses. There is no doubt that the learned Sessions Judge has relied on their evidence. Primarily it is extremely important to note that in the F. I: R. filed by Allahdino on the 17th August 1964, no mention has been made of this appellant Jan Muhammad Shah. This has to be read in the context of his evidence that after he was informed of the alleged abduction of his wife by Bachoo and Gabol, they returned to their village where he was informed that Sahjo lived in the village of Rahmoowali and he had informed Yar Shah of this and accompanied by this Syed and Gabol again went to Ghotki to this appellant who refused to hand over his wife when he returned thereafter and lodged the F. I. R. This lacuna has not been explained by Allahdino in the F. I. R. Besides Allahdino and Gabol say that Yar Shah had accompanied them to Ghotki on their first visit to plead on their behalf and when this appellant had refused to hand over Sahjr, but Yar Shah P. W. 8 in his evidence denies that he had ever gone to the village of this appellant. There are obvious exaggerations in the evidence of P. W. Allahdino and it has been rightly contended that P. W. Gabol does not support the story or allegation of rape against this appellant and the allegation made by Allahdini in the course of his testimony. Allahdino has stated that Sahja complained to hips that Jan Muhammad used to commit rape on her during the day and the absconding Malhoo at night. P. W Gabol does not support this version and Mst. Sahja merely state; that although she .had informed this appellant that she was married to Allahdino and had been forcibly taken away this appellant used to confine and threaten her and at night hand hey over to Malhoo who used to commit rape on her in a room adjacent to the house of this appellant. In cross‑examination, however, Sahjo stated that the house in which Malhoo lived with her was outside the Haveli of Jan Muhammad Shah, that she had not seen her husband or anyone else in Ghotki before her father brought the Holy Quran to Jan Muhammad and that a number of women used to come to Jan Muhammad Shah and she made no attempt to run away from Malhoo for fear because she did not know where to go. Sahjo is a grown up woman described by the learned Sessions Judge as a very beautiful woman who has the prosecution case would show had lived in the village of the appellant for about a month. It is not believ able and in the admitted circumstances of Sahjo's ‑,wn evidence that living outside the Haveli of Jan Muhammad S;tah and having contacts with a number of women that she could not be able to complain to anyone of her being allegedly abducted by Malhoo and Gul Hasan. There is an admission by Sahjo in her cross -examination that absconding accused Malhoo used to make overtures to her much before the incident which she resisted but that site did not complain to her husband of these overtures as according to her these are not affairs which should be given currency to. The parties are, however, very closely related, Malhoo being a cousin of Allahdino and similarly Gabol related to Malhoo and also to Allahdino. Gul Hasan accused who is alleged to have jointly abducted Sahjo and who died during the proceedings had abducted the mother of Malhoo absconder where after Malhoo lived with this Gul Hasan. The further suspicious circumstances are that although Sahjo states that she complained to this appellant when brought to him that she wets married, in her section 164 statement which was recorded on the 23rd November 1964 before the A. D. M. she did not aver nor state that she stated to this appellant that she had been abducted nor did she specifically state that this appellant had wrongfully confined her. Admittedly, the prosecution case and the conviction of this appellant is based on the evidence of Allahdino and Gabol both of them as already stated are closely related. The prosecution had the opportunity of examining an independent witness refer to in the first report as Gaman son of Muhammad Bux Lasha who is alleged to have been attracted to the scene on the cries raised by Bachoo and Gabol, yet this witness was not examined and the presumption must, therefore, be against the prosecution. In my view these contradictions which I have detailed are sufficient to make the case against this appellant of wrongfully confining o concealing Mst. Sahja extremely doubtful. The testimony of these witnesses is far from convincing arid it is this evidence on which the learned Sessions Judge has relied and in my opinion quite unjustifiably. I, therefore, allow this appeal, set aside the conviction and sentence of this appellant. He is on bail. Hi bail bonds are hereby cancelled and he is set at liberty forthwith.

Appeal accepted.

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