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Petitioner: Arz Muhammad alias Arzoo VS Respondent: StateHonorable Justice Ali Haider 'Ada'Shabbir Ali Bozdar
2025 Y L R 2742 [Sindh (Sukkur Bench)] Before Ali Haider 'Ada', J Arz Muhammad alias Arzoo and others---Appellants Versus The State---Respondent Criminal Appeals Nos. S-38, S-39, S-40 and S-41 of 2024, decided on 24th March, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 365-B, 148 & 149---Kidnapping, abduction, or inducing of a woman to compel her to marry a person against her will or to engage in illicit intercourse, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradictions in the identification of accused persons---Accused were charged for abducting the daughter of complainant forcibly---Investigating Officer, who recorded the statement of the abductee, deposed that she disclosed the names of the accused as AR, AW, KB, and AM, but did not mention the names of AH, GB, or Q---In contrast, the complainant, in her testimony, stated that her daughter (the abductee) disclosed the names of the accused as AR, Q, KB, and GB---Furthermore, another prosecution witness, the brother of the abductee, deposed that his sister named AR, A, KB, AW and AM as the accused---Such glaring inconsistencies raised serious doubts about the veracity of the prosecution's version---Evidently, abductee did not consistently or correctly identify the accused persons---Even before the trial Court, abductee failed to make any statement identifying accused A, from whom her alleged Nikah was performed---Appeal against the conviction of accused persons was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 365-B, 148 & 149---Kidnapping, abduction, or inducing of a woman to compel her to marry a person against her will or to engage in illicit intercourse, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Credibility of complainant doubtful---Accused were charged for abducting the daughter of complainant forcibly---Complainant deposed that her daughter had left the house to visit a relative and when a considerable time had passed and she did not return, then they began searching for her---Such version was also affirmed by the abductee herself, who stated that she had set out to meet a relative but was subsequently kidnapped---Prosecution witness disclosed that the name of the said relative was "Z"---However, what raised serious doubt was the surprising fact that when the abductee did not return, the family did not immediately approaching "Z"'s house to confirm her whereabouts, it created a significant gap in the prosecution story and casted doubt on its credibility---Appeal against the conviction of accused persons was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 365-B, 148 & 149---Kidnapping, abduction, or inducing of a woman to compel her to marry a person against her will or to engage in illicit intercourse, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Admission of abductee---Accused were charged for abducting the daughter of complainant forcibly---Admission made by the abductee in her deposition undermined the credibility of the prosecution's case---Abductee categorically admitted that she did not implicate accused persons "KB" and "AR" in the commission of the alleged offence---Furthermore, abductee also admitted that she had filed a constitutional petition before the Lahore High Court against her own father and brother---Said admission not only created doubt on her version but also indicated a false implication or manipulation of facts---Appeal against the conviction of accused persons was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 365-B, 148 & 149---Kidnapping, abduction, or inducing of a woman to compel her to marry a person against her will or to engage in illicit intercourse, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of 15-days in lodging the FIR---Consequential---Accused were charged for abducting the daughter of complainant forcibly---In this case, there was an unexplained delay of approximately 15 days in the registration of the FIR---Despite the serious nature of the allegation that a young lady was kidnapped by the accused party and one of the accused was allegedly identified by the complainant, no immediate report was made to the police---Such inordinate and unexplained delay in lodging the FIR formed serious doubt about the genuineness of the prosecution story---Furthermore, the abductee herself claimed that she managed to escape from the custody of the accused, which in itself raised a significant question that under what circumstances she was able to escape unassisted, if she had indeed been kept under forceful confinement---Adding to that doubt was the fact that although abductee appeared before the police on 17-07-2017, her judicial statement under S.164, Cr.P.C., was recorded after delay of five days---Said sequence of delays, both in FIR registration and in recording of the statement under S.164, Cr.P.C., casted serious doubt upon prosecution case---Appeal against the conviction of accused persons was allowed, in circumstances. Faiz Muhammad alias Faiz v. The State 2023 PCr.LJ 121; Fida Hussain and others v. The State and others 2023 PCr.LJ 1546 and Ahsan v. The State 2024 YLR 578 ref. (e) Penal Code (XLV of 1860)--- ----Ss. 365-B, 148 & 149---Kidnapping, abduction, or inducing of a woman to compel her to marry a person against her will or to engage in illicit intercourse, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Defective investigation---Accused were charged for abducting the daughter of complainant forcibly---As per the contents of the FIR, the complainant disclosed that he had obtained the mobile numbers of accused "Q", but despite attempts, he could not make contact---Once the mobile numbers came into the knowledge of the police, there was no explanation or record of any concrete steps taken by the Investigating Agency to trace the culprits through geo-location, Call Data Records (CDRs), or by approaching the concerned Mobile Service Providers to determine the location or ownership details of said numbers---Conduct of the police gave the impression that no proactive investigation was undertaken and that they merely waited for the abductee to reappear, rather than making timely and serious efforts to recover her or apprehend the alleged accused---Moreover, the complainant did not make any serious or effective efforts to locate the accused by utilizing modern means of communication and investigation, despite being in possession of the mobile numbers allegedly used by the accused---In the present digital age, where location tracking, call record analysis and mobile surveillance are readily available as investigative tools, the complainant's failure to initiate or request any such steps further weakened the prosecution's stance---Appeal against the conviction of accused persons was allowed, in circumstances. (f) Penal Code (XLV of 1860)--- ----Ss. 365-B, 148 & 149---Kidnapping, abduction, or inducing of a woman to compel her to marry a person against her will or to engage in illicit intercourse, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Contradictions in the statements of witnesses---Accused were charged for abducting the daughter of complainant forcibly---According to the FIR, the complainant specifically alleged that one woman, along with accused "MQ" and two unidentified persons, abducted his daughter in a car---However, entire prosecution story thereafter remained silent regarding the presence of any woman among the accused, the abductee herself stated that she was kidnapped by five male accused persons and she did not mention the involvement or presence of any woman during the commission of the alleged offence---Such material contradiction between the FIR and the statement of the abductee struck at the root of the prosecution case and created serious doubt regarding the truthfulness and consistency of the allegations---In his deposition, the brother of the abductee stated that immediately after the incident, his father (the complainant) informed the police within one and a half hours and the police visited the place of occurrence and recorded his statement---Said witness further deposed that his initial statement was recorded by the police on 08-05-2017, the date of the incident and that his further statement was recorded two days later---However, that version was entirely contradictory to the main prosecution case---Firstly, neither the complainant nor the Investigating Officer had corroborated the claim that the police were informed on the day of the incident---In fact, the FIR itself was lodged after a delay of 15 days---Secondly, statement of brother of abductee that his further statement was recorded two days after the incident was belied by the prosecution record---Further statement, as exhibited in Court, bore the date 17-07-2017, which was a delay of more than 52 days from the date of the FIR---Said significant flaw indicated fabrication of evidence and lack of truthful testimony---Appeal against the conviction of accused persons was allowed, in circumstances. (g) Penal Code (XLV of 1860)--- ----Ss. 365-B, 148 & 149---Criminal Procedure Code (V of 1898), S. 164---Kidnapping, abduction, or inducing of a woman to compel her to marry a person against her will or to engage in illicit intercourse, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Confessional statement of abductee---Accused were charged for abducting the daughter of complainant forcibly---In her statement recorded under S.164, Cr.P.C., abductee stated that when she was presented before the Lahore High Court, she was in an unconscious state---Abductee specifically deposed that she was produced and made to appear before the Judge of the High Court in an unconscious condition---However, a bare perusal of the order of the Lahore High Court revealed no such observation or indication that the abductee was unconscious at the time of her appearance---On the contrary, the order clearly recorded that the counsel along with the petitioner (abductee) appeared before the Court, as it directly pertained to the mental and physical capacity of the abductee to appear and be heard---Such inconsistency strongly suggested that the abductee's claim of unconsciousness was an afterthought, seemingly designed to discredit or discard the legal effect of the judicial proceedings and documents recorded in that case---Appeal against the conviction of accused persons was allowed, in circumstances.
Shabbir Ali Bozdar for Appellant (in Criminal Appeal No. S-38 of 2024). Shabbir Ali Bozdar for Appellant (in Criminal Appeal No. S-39 of 2024). Sajjad Ahmed Khokhar for Appellants (in Criminal Appeal No. S-40 of 2024). Rukhsar Ahmed Junejo for Appellant (in Criminal Appeal No. S-41 of 2024). Munwar Ali Shaikh for the Complainant. Mansoor Ahmed Shaikh, Deputy Prosecutor General for the State. Date of hearing: 24th March, 2025. Judgment Ali Haider 'Ada', J.---The appellants named above through the captioned appeals assailed the judgment Dated 30-04-2024 passed by learned IVth Additional Sessions Judge/Gender Based Violence Court Khairpur (Trial Court) in Sessions Case No. 01/2018 Re. (The State v. Ashiq Hussain and others), under Crime No. 54/2017, for offences punishable under section 365-B, 148, 149 P.P.C. registered at Police Station Kumb, whereby the appellants named above were convicted and sentenced to suffer rigorous imprisonment for life and to pay compensation amount of Rs. 50,000/- (fifty thousand) each to the victim Gul Bano, in case of default in payment whereof, they shall suffer S.I for six months more with benefit of section 382-B, Cr.P.C. 2. Brief facts of the prosecution case are that Complainant Khan Muhammad lodged the FIR on 08-05-2017 alleging therein that Gul Bano aged about 27/28 years is his unmarried daughter. On the day of report at about 1500 hours she went in the neighborhood but did not came back, hence complainant along with his son Zahid Hussain and brother Muhammad Hassan went to search Gul Bano by a motorcycle. At about 4-00 pm when they reached near village Jindal Juno situated at link road leading from Nangreja to Ranipur, where they saw that accused Muhammad Qabil son of Moula Bux along with two other male persons and one woman were forcibly restrained Gul Bano and made to sit in the car, but she was crying, but accused persons abducted away Gul Bano in the car. The complainant party was searching of his daughter and also contacted accused Muhammad Qabil through his mobile numbers 0303-2946386 and 0303-3720181 but failed. Ultimately appeared at Police Station and lodged the above said FIR. After recovery of victim her statement under section 164, Cr.P.C was recorded, wherein she disclosed the names of other culprits as Adloo, Arzoo, Wahidoo, Ghous Bux and Ashiq Hussain. The PW Zahid Hussain recorded his further statement and nominated accused namely Allah Rakhio, Ashiq Hussain, Khuda Bux, Adloo and Arzoo. 3. After completion of usual investigation, the I.O submitted the challan before the Court of law. Learned Judicial Magistrate-II, Kotdiji, after completing formalities against absconding accused (Exhs. 1 to 3), sent up the case to the Learned Sessions Judge, Khairpur, wherefrom it was entrusted to Trial Court for disposal. It is pertinent to mention here that the learned Judicial Magistrate during proceedings against absconding accused, in his order dated 23.10.2017 passed on the statement of process server HC Liaquat Ali, observed and treated the accused Adloo and Wahid are one and same person and his complete name is Abdul Wahid alias Adloo son of Allah Rakhio. 4. After supplying the case papers to accused Ashiq Hussain, Allah Rakhio, Khuda Bux, Adul Wahid alias Adloo and Arz Muhammad alias Arzoo a formal charge against them was framed at Ex.4, to which they pleaded not guilty and claimed their trial. Thereafter, accused Ghous Bux joined trial, therefore, case papers were supplied to him and then amended charge was framed against accused, to which they pleaded not guilty and claimed to be tried vide their pleas recorded at Exs.12 to 17. 5. During trial, the prosecution examined PW/1 SIP Loung Khan at Exh.18, he produced mashirnama of site inspection and roznamcha entries Nos.14 and 21. PW/2 complainant Khan Muhammad examined at Exh.19, who produced FIR, PW/3 victim Gul Bano at Exh.20, she produced her statement under section 164, Cr.PC. PW/4 Zahid Hussain Juno at Exh.21/A, he produced his further statement, PW/5 ASI Ameer Ali Shar at Exh.22, he produced mashirnama of arrest of accused, PW/6 ASI Dattar Dino Shar at Exh.23, PW/7 Muhammad Hassan Juno at Exh.24, PW/8 Abdul Hakeem Sangi, learned Judicial Magistrate (through video link) at Exh.25, he produced letter of SIO at Exh.25/A. Thereafter, learned ADPP for the State closed the side of prosecution vide his statement at Exh.26. 6. Statements of accused as provided under section 342, Cr.PC were recorded at Ex.27 to 32, wherein they denied the allegations of prosecution and prayed for justice. Accused neither examined themselves on oath under section 340(2), Cr.P.C nor produced any witness in their defense. Accused took plea that they have not abducted Mst. Gul Bano but she has contracted Nikah with accused Ashiq Hussain with her own wish and will; accused Ashiq during his statement produced some documents at Exhs.27/A to 27/E. They prayed for acquittal. 7. On 21-08-2024 the complainant along with alleged abductee appeared before this Court through their counsel and has sworn their affidavits that they have no objection if the said appeals are hereby allowed. 8. Learned counsel for appellants argued that appellants are falsely implicated while alleged abductee of her own free will performed Nikah with one co-accused namely Ashiq Hussain and they were produced before Learned Lahore High Court Bench at Bahawalpur and alleged abductee filed petition against father who was complainant in this case but later on after returning home she changed her version. They further argued that FIR was lodged after delay of 15 days without any explanation and alleged abductee appeared before police on 17-07-2017 while her 164 statement was recorded after delay of 05 days. The reliance placed by the parties on the case of Faiz Muhammad alias Faiz v. The State, reported in 2023 PCr.LJ. 121, Fida Hussain and others v. The State and others, reported in 2023 PCr.LJ. 1546 and Ahsan v. The State, reported in 2024 YLR 578. Finally, prayed for acquittal. 9. On the other hand Learned State Counsel opposed the appeals and supported the impugned verdict and further contended that statement recorded under section 164, Cr.P.C is fully supported and abduction is proved against the appellants and she sworn affidavits before Lahore High Court Bench in Bahawalpur under pressure according to her deposition, finally he prays to maintain the conviction of the appellants. 10. Heard Arguments and perused the material available on record. 11. From the very outset, the prosecution case becomes doubtful due to material contradictions in the identification of the accused persons. The Investigating Officer, who recorded the statement of the abductee, deposed that she disclosed the names of the accused as Allah Rakhio, Adloo (Abdul Wahid), Khuda Bux, and Arzoo (Arz Muhammad), but did not mention the names of Ashiq Hussain, Ghous Bux, or Qabil. In contrast, the complainant, in her testimony, stated that her daughter (the abductee) disclosed the names of the accused as Allah Rakhio, Qabil, Khuda Bux, and Ghous Bux. Furthermore, another prosecution witness, the brother of the abductee, deposed that his sister named Allah Rakhio, Ashiq, Khuda Bux, Adloo, and Arzoo as the accused. These glaring inconsistencies raise serious doubts about the veracity of the prosecution's version. It is evident that the abductee did not consistently or correctly identify the accused persons. Even before the trial court, she failed to make any statement identifying accused Ashiq, from whom her alleged Nikah was performed. 12. The second significant aspect casting doubt on the prosecution case is the statement of the complainant, who deposed that her daughter had left the house to visit a relative. When a considerable time had passed and she did not return, then they began searching for her. This version was also affirmed by the abductee herself, who stated that she had set out to meet a relative but was subsequently kidnapped. A prosecution witness, namely Hassan, disclosed that the name of the said relative was Zahida. However, what raises serious doubt is the surprising fact that when the abductee did not return, the family, did not immediately approaching Zahida's house to confirm her whereabouts, it creates a significant gap in the prosecution story and cast doubt on its credibility. 13. Another serious point that undermines the credibility of the prosecution's case is the admission made by the abductee in her deposition. She categorically admitted that she did not implicate accused persons Khuda Bux and Allah Rakhio in the commission of the alleged offence. Furthermore, she also admitted that she had filed a constitutional petition before the Hon'ble Lahore High Court, Bahawalpur Bench, against her own father and brother. This admission not only creates doubt on her version but also indicates a false implication or manipulation of facts. 14. Now, coming to the factual array of the case, there is an unexplained delay of approximately 15 days in the registration of the FIR. Despite the serious nature of the allegation that a young lady was kidnapped by the accused party and one of the accused was allegedly identified by the complainant. Whilst no immediate report was made to the police. This inordinate and unexplained delay in lodging the FIR forms serious doubt about the genuineness of the prosecution story. Furthermore, the abductee herself claimed that she managed to escape from the custody of the accused, which in itself raises a significant question that under what circumstances she able to escape unassisted, if she had indeed been kept under forceful confinement. Adding to this doubt is the fact that although she appeared before the police on 17-07-2017, her judicial statement under Section 164 Cr.P.C was recorded after delay of five days. This sequence of delays, both in FIR registration and in recording of the statement under Section 164 Cr.P.C casts serious doubt upon prosecution case. 15. As per the contents of the FIR, the complainant disclosed that he had obtained the mobile numbers of accused Qabil, specifically 0303-3720181 and 0303-2946386, but despite attempts, he could not make contact. A important point of concern arises here, once these mobile numbers came into the knowledge of the police, there is no explanation or record of any concrete steps taken by the investigating agency to trace the culprits through geo-location, Call Data Records (CDRs), or by approaching the concerned Mobile Service Providers to determine the location or ownership details of said numbers. The conduct of the police gives the impression that no proactive investigation was undertaken and that they merely waited for the abductee to reappear, rather than making timely and serious efforts to recover her or apprehend the alleged accused. Moreover, it is also noteworthy that even the complainant did not make any serious or effective efforts to locate the accused by utilizing modern means of communication and investigation, despite being in possession of the mobile numbers allegedly used by the accused. In the present digital age, where location tracking, call record analysis, and mobile surveillance are readily available investigative tools, the complainant's failure to initiate or request any such steps further weakens the prosecution's stance. 16. According to the FIR, the complainant specifically alleged that one woman, along with accused Muhammad Qabil and two unidentified persons, abducted his daughter in a car. However, entire prosecution story thereafter remains silent regarding the presence of any woman among the accused, the abductee herself, stated that she was kidnapped by five male accused persons; and she did not mention the involvement or presence of any woman during the commission of the alleged offence. This material contradiction between the FIR and the statement of the abductee strikes at the root of the prosecution case and creates serious doubt regarding the truthfulness and consistency of the allegations. 17. A new fact emerges in the prosecution case from the statement of the abductee recorded under Section 164 Cr.P.C, wherein she stated that when she was presented before the Hon'ble Lahore High Court, Bahawalpur Bench, she was in an unconscious state. She specifically deposed, "I was produced and made to appear before the Honourable Judge of the Court in an unconscious condition." However, a bare perusal of the order of the Lahore High Court, Bahawalpur Bench revealed that no such observation or indication that the abductee was unconscious at the time of her appearance. On the contrary, the order clearly records that the learned counsel along with the petitioner (abductee) appeared before the Court, as it directly pertained to the mental and physical capacity of the abductee to appear and be heard. This inconsistency strongly suggests that the abductee's claim of unconsciousness was an afterthought, seemingly designed to discredit or discard the legal effect of the judicial proceedings and documents recorded in that case. 18. The prosecution also relies upon the testimony of Witness Zahid Hussain, the brother of the abductee. In his deposition, he stated that immediately after the incident, his father (the complainant) informed the police within one and a half hours and the police visited the place of occurrence and recorded his statement. He further deposed that his initial statement was recorded by the police on 08-05-2017, the date of the incident, and that his further statement was recorded two days later. However, this version is entirely contradictory to the main prosecution case. Firstly, neither the complainant nor the investigating officer has corroborated the claim that the police were informed on the day of the incident. In fact, the FIR itself was lodged after a delay of 15days, Secondly, Zahid Hussain's statement that his further statement was recorded two days after the incident is belied by the prosecution record. The further statement, as exhibited in court, bears the date 17-07-2017, which is a delay of more than 52 days from the date of the FIR. This significant flaw indicates fabrication of evidence and lack of truthful testimony. 19. During the…
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