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Criminal Appeal No. 243 of 1978, decided on 21st August, 1983.

-- S. 363/366--Kidnapping-Age of victim not proved by prosecution to be below sixteen years-Delay of one week in lodging First Information Report not satisfactorily explained -Possibility of victim voluntarily accompanying accused not ruled out-No allega tion or medical record available to show that she was subjected to rape-Statement of complainant before trial Court different from one mentioned in First Information Report - Accused alleging enmity against complainant-Prosecution witnesses closely related to complainant and their statements not independently corroborat ed-Case against accused not established beyond reasonable doubt-Conviction and sentence set aside.

P L D 1960 Dacca 23 ref.

M. L. Shahani for Appellants.

Agha Ghulam Ali for the State.

Date of hearing : 16th August, 1983.

Appellants abovenamed, being aggrieved by judgment, dated 16th October, 1978 of the learned 1st Additional Sessions Judge, Larkana in Sessions Case No. 69/74 by which appellants have been convicted under section 363, P. P. C. and sentenced to undergo R. I. for 3 years' each and to pay fine of Rs. 1,000 each of in default to suffer further R. I. for 6 months, have preferred the above appeal, on the following facts and grounds :-

The above-named appellants are related inter se and have been involved in a case filed by complainant Mullan Bijjar regarding the kid napping of his daughter Mst. Habiban. The offence against the appellants had been registered under section 363, P. P. C. vide F. I. R. No. 7 of 1974, dated 21st February, 1974, at Warah Police Station.

On the basis of the above F. I. R. Exh. 5 the appellants were sent- up to the Court of Sessions to be tried according to law. The charge for an offence under section 363, P. P. C. had been read and explained to the appellants to which they had pleaded not guilty, further claimed to be tried according to law.

The prosecution had examined Mullan Bijjar (P. W. 1) Exh. 4, Noor Khatoon (P. W. 2) Exh. 7, Mst. Habiban (P. W. 3) Exh. 8, Trooh (P. W. 4) Exh. 9, Raza Muhammad (P. W. 5) Exh. 10, Dr. Wahid Bux (P. W. 6) Exh. 13 and Muhammad Mithal (P. W. 7) Exh. 15, to prove the case against the appellants. The appellants have led evidence of D. W. Mst. Dahyani Exh. 28, in their favour to rebute the evidence collected against them.

The learned trial Court taking into consideration the evidence adduced before it, while acquitting co-accused Qaimuddin and Gul Muhammad convicted the appellants abovenamed as hereinbefore mentioned and con sequently the appellants have flied the above appeal, on the grounds mentioned in the memo, of appeal.

The learned Advocate for the appellants in support of the above appeal submitted as under:-

(a) That the age of the victim was over 16 years and as such question of kidnapping does not arise at all.

(b) That there was delay of nearly one week in lodging of F. I. R. which has not been satisfactorily explained.

(c) That on account of admitted enmity between the parties over domestic disputes, the statement of the prosecution witnesses required independent corroboration, but the same is not at all available in the present case.

(d) That the P. Ws. are closely related to each other. The alleged first husband of the victim was not produced and examined before the learned trial Court nor the Nikahnama was proved in accordance with the law and as such prosecution has failed to establish its case beyond reasonable doubt.

(e) That the appellant Nazir had legally married the victim and had produced her before the police alongwith, the Nikahnama and as such prosecution has failed to establish its case against any of the appellants.

In support of the above contentions the learned Advocate relied upon a case reported in P L D 1960 Dacca 23 and further submitted, that the parties had compromised the incident in question which is evident from the fact that application under section 494, Cr. P. C. was moved before the District Magistrate, but unfortunately the said application was rejected.

The learned Advocate appearing for the State on the other hand sub mitted. that no doubt there is an admitted enmity between the parties, but the recovery of the victim girl from the possession of appellant Nazir at least proves the case of abduction against all the appellants, as the age of the victim girl prima facie was over 16 years and further more she has alleged no rape etc. against appellant Nazir.

I have taken into consideration the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court and the impugned judgment and the cases cited by the learned Advocate for the appellant before me.

I have carefully gone through the statement of Dr. Waheed Bux in respect of the age of Mst. Habiban. The answers given by P. W. Dr. Waheed Bux in his cross-examination create doubts about his conclusion regarding the age. According to P. W. No. 1 Mullan Bijjar, the age of Mst. Habiban at the time of incident was 15 or 16 years. In view of this, I am of the opinion that the prosecution has failed to establish beyond reasonable doubt, that the age of Mst. Habiban at the time of the incident was below 16 years as rightly conceded by the learned Advocate appear ing for the State and as such in my opinion prosecution has failed to establish its case under section 363, P. P. C. The case reported in P L D 1960 Dacca 23 cited by the learned counsel for the appellant supports my contention regarding her age, being not free from doubt, at the time of incident in question.

In view of my above conclusion, the only offence with which the appel lants can be charged would .be under section 366, P. P. C. However, in this connection it may be noted, that there was delay in lodging of F. I R. of nearly one week, which is not satisfactorily explained and the statement of P. W. Mst. Habiban clearly shows, that although she had opportunity to seek help, if she was being taken against her will, she did not do so and consequently it cannot be ruled out, that she voluntarily accompanied Mst. Khairan and appellant Nazir and other appellants. Mst. Habiban has alleged no rape against the appellant Nazir nor there is any medical record to show, that she was subjected to intercourse. The statement of P. W. Mullan Bijjar given before the learned trial Court, is different from on as mentioned in F. I. R. The appellants have alleged enmity against the complainant which has not been denied and consequently the statements o all the prosecution witnesses who are closely related to the complainant require independent corroboration, which is not at all available in the present case. In addition to this it was appellant Nazir, who produced Mst. Habiban before the police alongwith Nikahnama and consequently in my opinion prosecution has failed to establish its case beyond reasonable .doubt against the appellants.

Therefore, I allow the above appeal and set aside convictions and sentences awarded to the appellants by the impugned judgment, dated 16th1c October, 1978 and acquit them by giving them benefit of doubt and discharge bail bonds executed by the appellants in the above appeal.

M. Y . H..

Appeal accepted.

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