2026 M L D 451
[Balochistan]
Before Rozi Khan Barrech and Shaukat Ali Rakhshani, JJ
JAMAL -UD-DIN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 128 of 2024, decided on 26th May, 2025.
(a) Penal Code (XLV of 1860) ---
----S. 364- A---Criminal Procedure Code (V of 1898), S. 164---Kidnapping or abducting
a minor ---Appreciation of evidence ---Confessional statement of minor victim--- Scope ---
Accused -appellant was charged for kidnapping the minor granddaughter of the
complainant ---Minor got her statement recorded under S.164, Cr.P.C, before Judicial
Magistrate ---Minor victim in her statement recorded under S.164, Cr.P.C, categorically
nominated and indentified the appellant to be the culprit, who had abducted her ---Minor
victim stated that on 15.06.2022, when she came out of her school, the appellant asked
her to come with him, but she refused and as such the appellant forcibly took her on his motorbike, whereafter the Police Officials along with her grandfather in hot pursuit
arrested him and rescued her ---Admittedly, minor victim was a minor, but at the time of
her examination -in-chief, Judicial Magistrate asked several questions to her and found
her mentally mature and fit to answer the questions correctly, which established the soundness of her mind--- Minor victim, while testifying before the Court reiterated the
same story by deposing that she was abducted by the appellant forcibly and again identified the appellant in Court to be the culprit, who had abducted her ---Minor victim
was cross -examined at length, but the prosecution failed to shatter her testimony as
victim remained firm and consistent to her examination -in-chief ---Statement of minor
victim was enough to establish the charge against the appellant, thus, nothing adverse was on record to disbelieve her evidence ---Circumstances established that the
prosecution had proved its case against the appellant, but due to peculiar circumstances of the present case, the sentence awarded to him was reduced from 14 years to that of 07 years ---With said modification in sentence, appeal was dismissed, accordingly.
(b) Penal Code (XLV of 1860) ---
----S. 364- A---Kidnapping or abducting a minor ---Appreciation of evidence ---Accused -
appellant was charged for kidnapping the minor granddaughter of the complainant ---
Complainant testified that on 15.06.2022 as usual he went to pick her granddaughter from her school, where at 1:00 pm, the appellant forcibly kidnapped her on a motorbike, whereof he raised commotions, but he did not stop and upon hearing his hue and cry, the Police Officials were attracted, whereafter they chased the appellant and arrested him red handedly by recovering his granddaughter ---Complainant was cross -examined at
length, but nothing beneficial could be extracted by the defence as he remained firm and consistent, thus his testimony went unshaken--- Police Officer/recovery witness of the
abductee deposed that on the fateful day, he along with Police Officials were on patrol duty and upon hearing hue and cry of complainant, they stopped and complainant told them about abduction of his granddaughter, whereafter a hectic effort, they apprehended the appellant and rescued minor from his custody---Statements of complainant, recovery witness and minor victim were found to be confidence inspiring, truthful and trust worthy, confirming the fact that the appellant had abducted the minor from outside her school, which was followed by his arrest and subsequent recovery of minor victim ---
Circumstances established that the prosecution had proved its case against the appellant, but due to peculiar circumstances of the present case, the sentence awarded to him was reduced from 14 years to that of 07 years ---With said modification in sentence, appeal
was dismissed, accordingly.
(c) Penal Code (XLV of 1860) ---
----S. 364- A---Kidnapping or abducting a minor ---Appreciation of evidence ---Sentence,
quantum of ---Mitigating circumstances ---Accused -appellant was charged for kidnapping
the minor granddaughter of the complainant ---In the present case, the motive, had not
been proved, making the case of appellant one of mitigating circumstances, warranting
lesser punishment ---Circumstances established that the prosecution had proved its case
against the appellant, but due to peculiar circumstances of the present case, the sentence awarded to him was reduced from 14 years to that of 07 years ---With said modification
in sentence, appeal was dismissed, accordingly.
Ajmal Khanzada for Applicant.
Ms. Noor Jahan Kahoor, Additional Prosecutor General (“APG”) for the State.
Date of hearing: 12th May, 2025.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Appellant calls in question the veracity and
legality of judgment dated 08.04.2024 ("impugned judgment") drawn by learned Additional District and Sessions Judge, Kuchlak ("Trial Court"), pursuant to FIR No.51 of 2022 (Ex.P/7- A)
registered with Police Station New Kuchlak, Quetta, whereby the appellant was convicted and
sentenced under section 364- A of Pakistan Penal Code, 1860 ("P.P.C") to suffer R.I for fourteen
(14) years, inclusive of the premium of section 382- B of Cr.P.C.
2. Tersely, facts of the case in hand are that complainant Abdul Razaq (PW -1) got lodged
the FIR ibid with the averments that on 15.06.2022, he dropped his granddaughter namely Bibi Jalwa (PW- 3) aged about 8- 9 years at her school and that at 1:00 pm, when he went to pick her
back, a pillion rider forcibly kidnapped his daughter on a motorbike and took her towards
Bostan, thus he started chasing him and upon hearing his hue and cry, the police officials came and they apprehended the appellant near Killi Mughatiyan after hectic efforts and recovered his granddaughter.
3. After usual investigation, the appellant was put on trial, where he entered the plea of
denial, thus, the prosecution in order to bring home the charge produced seven (7) witnesses. After closure of the prosecution side, the appellant was examined under section 342 of Cr.P.C, who neither got recorded his statement on oath nor produced defence, henceforth, the Trial Court vide impugned judgment convicted and sentenced the appellant in the terms mentioned in para supra.
4. Learned counsel for the appellant inter alia contended that the essential ingredients of the
charge of kidnapping were missing and that that there is no iota of evidence adduced by the prosecution pointing out that it was a case of kidnapping of the minor girl. Further argued that the appellant neither committed Zina -bil-Jabr with the minor nor there was any attempt on his
part to commit said offence and that nothing has been brought on record, which may suggest the intention of the appellant to abduct the minor. He also argued that the reasons drawn by the Trial Court are result of misreading of evidence, making the impugned judgment a nullity, thus requested for setting at naught the impugned judgment, and in consequence thereof, the appellant be acquitted of the charge. He relied on the judgments reported as 2001 SCMR 424, PLD 1972 374 and 2024 PCr.LJ 1841.
Conversely, learned APG vigorously opposed the contentions so put -forth by learned
counsel for the appellant and urged that the appellant was shamefully attempting to satisfy his
lust with the minor, but she was saved due to her grandfather's prompt efforts and that the minor was saved timely by the police in a hot pursuit, which resulted into arrest of the appellant red handedly, thus urged that the judgment of the Trial Court is based on well reasoning, which does not require to be meddled with, and lastly prayed for dismissal of the appeal.
5. Heard. Record vetted.
6. The paramount consideration in the case in hand is that whether minor Bibi Jalwa (PW -3)
aged about 8- 9 years was abducted by appellant Jamal -ud-Din and was rightly convicted by the
Trial Court under section 364- A of P.P.C.
7. In the instant case, the appellant was arrested by the police red handedly, while
taking away minor Bibi Jalwa (PW -3). Minor Bibi Jalwa (PW -3) got recorded her
statement under section 164 of Cr.P.C before Mr. Mohibullah (PW -4), learned Judicial
Magistrate ("JM") Kuchlak. JM (PW -4) produced sealeu envelope, Proforma of
Questionnaire, statement and certificate thereof as (Ex.P/4 -A) and (Ex.P/4 -B) respectively.
Bibi Jalwa (PW -3) in her statement recorded under section 164 of Cr.P.C categorically
nominated and indentified the appellant to be the culprit, who had abducted her. She stated
that on 15.06.2022, when she came out of her school, the appellant asked her to come with him, but she refused, and as such the appellant forcibly took her on his motorbike, whereafter the police officials along with her grandfather in hot pursuit arrested him and rescued her. Admittedly, Bibi Jalwa (PW -3) is a minor, but at the time of her examination-
in-chief, JM (PW -4) asked several questions from her and found her mentally mature and
fit to answer the questions correctly, which establishes the soundness of her mind. Bibi Jalwa (PW -3), while testifying before the court, reiterated the above story by deposing that
she was abducted by the appellant forcibly and again identified the appellant in court to be the culprit, who had abducted her. She was cross -examined at length, but the prosecution
failed to shatter her testimony as Bibi Jalwa (PW- 3) remained firm and consistent to her
examination -in-chief. Statement of minor Bibi Jalwa (PW -3) is enough to establish the
charge against the appellant, thus, nothing adverse has come on record to disbelieve her evidence.
8. Complainant Abdul Razaq (PW -1) corroborated the statement of Bibi Jalwa (PW -3), who
in clear words testified that on 15.06.2022 as usual he went to pick her granddaughter Bibi Jalwa (PW-3) from her school, where at 1:00 pm, the appellant forcibly kidnapped her on a motorbike,
whereof he raised commotions, but he did not stop and upon hearing his hue and cry, the police officials were attracted, whereafter they chased the appellant and arrested him red handedly by recovering his granddaughter near Killi Mughatiyan. He was cross -examined at length, but
nothing beneficial could be extracted by the defence as he remained firm and consistent, thus his testimony went unshaken.
9. Gul Muhammad S.I (PW -2) is the recovery witness of the abductee, who deposed that on
the fateful day, he along with police officials were on patrol duty on Bostan Road and upon
hearing hue and cry of complainant, they stopped and complainant Abdul Razaq (PW -1) told
them about abduction of his granddaughter, whereafter a hectic effort, they apprehended the appellant and rescued minor Bibi Jalwa (PW -3) from his custody. We have examined the
testimony of the afore -referred witness, which has been found by us to be truthful as he remained
firm and consistent to his examination -in-chief despite extensive cross -examination.
10. After critical analysis of the statements of complainant Abdul Razaq (PW -1), Gul
Muhammad S.I (PW -2) and Bibi Jalwa (PW -3), we have found their statements to be confidence
inspiring, truthful and trust worthy, confirming the fact that the appellant had abducted the minor from outside her school, which was followed by his arrest and subsequent recovery of Bibi Jalwa (PW-3) from him.
11. As far as disclosure of appellant (Ex.P/5- A) is concerned, it is inadmissible as in
consequence of such disclosure, no new or fresh facts have been surfaced as the facts narrated thereof were already known to the police officials, which amounts to confession before the police, having no evidentiary value, as contemplated under Articles 38 and 39 of Qanun- e-
Shahadat Order, 1984 ("QSO of 1984"), squaring out of the preview of Article 40 of the QSO of 1984. In this regard, we are fortified with the view expounded by the apex court in the case of "Hayatullah v. The State" (2018 SCMR 2092). For ready reference, the relevant portion of para No.4 of Hayatullah's case is reproduced herein below;
"The main evidence which was unfortunately relied upon by the trial court and the
Federal Shariat Court was a confession before the I.O. under the supervision of DSP Rasool Bakhsh. A memo. of disclosure was prepared on the same day. It is astonishing that the trial court while recording the statements of the witnesses (police officials) regarding the confession before the police, recorded each and every word of the appellant before the police
and also exhibited the memo. of disclosure. The said statement before the police and the said
memo. of disclosure were absolutely inadmissible hit by Article 39 of the Oanun -e-Shahadat
Order, 1984. In order to give a cover of Article 40 of Qanun -e-Shahadat Order, 1984, the
Investigating Officer recovered a pistol on the same day and all the witnesses claimed that thereafter the appellant pointed out the place of occurrence and the place from where the
dead -body was earlier recovered. We are conscious of the fact that after making such
disclosure before the police no new fact was discovered because it is already in the knowledge
of the police on 11.02.2006 that the deceased had received a bullet injury and from the place of occurrence an empty of .30 bore pistol was also recovered. So the recovery of pistol after the said disclosure was not a new fact or not a fact which was not in the knowledge of police. Likewise, the place of occurrence and the place where dead -body was thrown while dragging
it from the said place, was already in the knowledge of the police and such pointing out of the place after said disclosure is worthless, irrelevant and inadmissible as the said place was already in the knowledge of the police and a site plan of the same place had already been prepared on 11.02.2006. Likewise, the memo. of pointing out of the place from where the
motorcycle was recovered is also irrelevant as the motorcycle was recovered much prior to the
disclosure and pointing out of the said place which was already in the knowledge of the
police.
[Underline is ours]
12. We have irresistibly arrived at the conclusion that the prosecution has successfully
proved the indictment against the appellant on the basis of evidence of complainant Abdul Razaq (PW-1), Gul Muhammad S.I (PW -2) and Bibi Jalwa (PW -3), which has rightly been appraised
by the Trial Court, while rendering the impugned judgment.
However, we do not concur with the quantum of punishment awarded by the Trial Court
to the appellant, which seems harsh and unwarranted, while considering the peculiar
circumstances of the instant case, more particularly the motive, which has not been proved,
making the case of appellant one of mitigating circumstances, warranting lesser punishment.
13. The judgments referred by the learned counsel for the appellant do not apply in the
instant case as the facts and circumstances of the instant case are distinguishable.
14. For the forgoing reasons, the appeal is dismissed, and the conviction and sentence
awarded to the appellant by the Trial Court vide impugned judgment dated 08.04.2024 is upheld
but modified, considering the peculiar circumstances of the instant case and as such, the sentence awarded under section 364- A of P.P.C from fourteen (14) years R.I is reduced to that of seven
(7) years R.I with the premium of section 382- B of Cr.P.C.
JK/92/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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