2020 Y L R 404
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
HAMAYOUN SAEED ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 203 of 2019, decided on 6th September, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 365- B, 346 & 34---Kidnapping, abducting or inducing woman to compel for marriage,
wrongful confinement in secret, common intention---Appreciation of evidence ---Benefit of
doubt ---Unnatural conduct of victim ---Scope ---Complainant alleged that his sister aged
13/14 years went out of the house and did not come back--- Complainant was, however,
informed by the witness that his sister was found by him near the forest ---Alleged abductee
was not abducted in the presence of witnesses thus, their testimony wa s not helpful to the
case---Alleged abductee, inter alia, stated before the court that she was coming from the
house of her sister at night; that due to fear she did not come to her house and voluntarily accompanied accused to his flat, where she was subjected to zina, while his friend (co -
accused) kissed her; that the flat of accused consisted of one room and it had no attached bathroom; that she remained with the accused for one month and seven days and that when she missed her mother, she left the flat o f the accused and went towards her house--- Alleged
abductee admitted during cross -examination that accused used to lock the flat from outside
and that during her retention in the flat she neither knocked the door loudly nor made any hue and cry---Investiga ting officer brought on record that the accused used to take the
alleged abductee on the roof of the building for nature's call ---Admission of the alleged
abductee clearly established that she was never abducted ---Building in which the alleged
abductee was confined had other inhabitants and she was taken out of the flat on daily basis
but even then she never tried to escape or call the inhabitants for her rescue ---Unnatural
conduct of the alleged abductee created serious doubts in the prosecution case ---Med ical
evidence though established defloration and non- existence of hymen of alleged victim but
did not confirm that the accused committed zina with her ---Medical evidence further
established that at the time of commission of offence alleged abductee had att ained puberty--
-Report of the swab sent to the Forensic Laboratory was not collected---Prosecution had
failed to establish its case beyond any shadow of doubt ---Appeal was accepted, in
circumstances.
Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
(b) Pen al Code (XLV of 1860) ---
----S. 365 -B---Kidnapping, abducting or inducing woman to compel for marriage, etc ---
Scope ---Prosecution, in order to establish the offence of abduction punishable under S. 365-
B, P.P.C. has to establish the removal of a woman by f orce from one place to another under
compulsion or through inducement by deceitful means and the object of such removal is to
compel her to marry any person against her will or in order to force or seduce her to illicit
intercourse.
Zeeshan and Abdul Wahab Buledi for Appellant.
Abdul Mateen, Deputy Prosecutor General for the State.
Date of hearing: 29th August, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---This appeal is directed against the judgment dated 29th
August 2019 ("impugned judgment") passed by learned Sessions Judge Zhob ("the trial
Court"), whereby the appellant Hamayoun Saced Son of Illahi Bakhsh was convicted under Section 365(B), P.P.C. and sentenced to suffer imprisonment for life with fine of Rs.50,000/ -
or in default thereof to further suffer six (06) months S.I. with the benefit of Section 382- B,
Cr.P.C., while co -accused Abdul Salam was acquitted of the charge.
2. Facts of the case are that on 9th July 2017, the complainant Hazrat Ali son of Dad
Ali, lodged FIR No.98 of 2017 at Police Station Zhob, under Sections 365- B, 346, 34,
P.P.C., stating therein that he is resident of Sherani Bazar Zhob and on 27th May 2017 at
about 11.00 a.m. his sister namely Zahira aged 13/14 years went out of home and did not come back. On 31st May 2017, he submitte d a written complaint before the police and
therefore he himself searched whereof of his sister. It is alleged that on 6th July, 2017 at about 08.00 p.m. he was informed by one Abdullah Jan resident of village Appozai that his sister Zahir was found by him near the forest. He was alone at home at that time and called
his relatives, after 1.00 a.m. he along with his relatives went to Police Station Zhob and informed the police. The police along with the complainant went and brought his sister in supervision of lady constable to Police Station. His sister disclosed that the accused
Hamayoun Saeed had confined and kept her secretly in a small room of City Centre Zhob and was committing illicit intercourse with her.
3. After completion of investigation challan w as submitted in the learned trial Court
against the appellant, acquitted -accused Abdul Salam and absconding accused Imran. At the
trial, the accused Imran was declared as proclaimed offender by the trial Court after initiating proceedings under sections 87 and 88, Cr.P.C. The appellant and acquitted accused denied
the charge, to which the prosecution examined eight witnesses, whereafter the appellant and acquitted accused were examined under section 342, Cr.P.C. whereas only the appellant has
recorded his s tatement on oath under section 340(2), Cr.P.C., but did not produce any
witness in his defence. On conclusion of trial and after hearing arguments, the trial Court through impugned judgment awarded conviction and sentence to the appellant, while acquitted the co -accused Abdul Salam. Whereafter, instant appeal has been filed.
4. Heard the learned counsel and perused the available record. In order to establish the
charge the prosecution has produced the evidence of eight witnesses. The complainant of the
case Hazrat Ali appeared as PW- 1, who narrated the story with regard to missing of his sister
and subsequently his recovery by the police from the house of P.W.2 Abdullah Jan. Likewise PW-2 Abdullah Jan on seeing the alleged abductee alone in fields took her t o his house and
informed the complainant. Since, the abduction was not taken in presence of both the
witnesses, thus their testimony is not helpful to the case of prosecution. However, the
prosecution has produced the alleged abductee PW -5 Zahira Bibi, who stated before the
Court that on 27th May 2017 she went to the house of her sister Juma Bakhta and whilst returning at about 9.00 a.m. she found a person namely Islam son of Laiq and on his invitation she accompanied him in his vehicle, who brought him bac k nearby her house at
about 11.30 a.m., but due to fear she did not go to her house and went towards Bazar, where she met with the appellant Hamayoun Saeed, who offered her that he having a house and she went with him to his flat situated at City Center Zh ob, where she was kept by the appellant,
who used to commit Zina with her, while his friend Imran kissed her. According to this witness the flat of the appellant was consisting upon one room and the same was having no attach bath room. PW -5 brought on record that she remained with the appellant for one
month and seven days. Whereafter, she was missing her mother, due to which she left the flat of the appellant and went towards a village, where she met with two person, who informed her brother. PW -5 in her c ross-examination has brought on record that after leaving the
flat/room the appellant used to lock her from outside. She further admitted during his retention in the flat she neither knock the door loudly nor made any hue and cries. Likewise, the Investiga ting Officer Hameedullah, Inspector (PW -07) has brought on record that for
natural call the appellant used to take her on the bath room of the building located on the top of roof of the building and on some occasion she was taken nearby the Ford ( ).
5. The above admission of the alleged abdcutee as well as the Investigating Officer of
the case clearly establishes that the abductee has never been abducted by the appellant rather the alleged abductee willfully initially went out of her house with one Islam Son of Laiq and
also admitted that they have family relations with Islam's family and often used to visit the houses of each other, however, on account of disclosure of such facts of illicit relations she introduced a new story. It has further come on rec ord that the building where the abductee
was allegedly detained, other inhabitants/families were also residing in the said building. As per sketch the room is shown on third story, while as per PW -5 the room was on second
floor, but even then she never tri ed to escape or call the inhabitants for her rescue and even
she during long period of one month and 7 days never loudly knocked the door or shouted or made hue and cries and more particularly on daily basis she was taken to the washroom situated on the top of roof of the building and even nearby the Ford, from where too she never made any attempt to escape or call for her rescue to someone else. These facts clearly establish the unnatural conduct of abdcutee, creates serious doubts in prosecution case as t he
real facts were concealed and a concocted story was introduced.
6. So far as the allegations of forcible intercourse is concerned, it has come on record
that at the first instance the alleged abdcutee joined one Islam son of Laiq and she remained with h im for hours, thus there is every likelihood that such intercourse had been committed
with her by someone else, who otherwise was not associated with the investigation.
Furthermore, the medical evidence so produced by the prosecution though established
defloration and non- existence of hymen of alleged abdcutee, but nothing has come on record
that the appellant had committed such Zina with her. The medical evidence further establishes that at the time of commission of offence the alleged abductee having attained puberty. Even otherwise, the swab sent to Forensic Laboratory have not been collected the
report to support the version of abdcutee.
7. Legally, in order to establish the offence of abduction punishable under Section
365(B), P.P.C. as defined under Se ction 362, P.P.C. it is necessary for the prosecution to
established the removal of a woman by force from one place to another under compulsion or
through inducement by deceitful means and the objection of such removal must be to compel her to marry any pe rson against her will or in order that she could be forced or seduced to
illicit intercourse. Even otherwise, the actual age of abdcutee was not determined through any substantive piece of evidence. Mere mentioning of her age as 16 -years by the doctor is
not enough.
8. In view of above it has been established that the prosecution has miserably failed to
establish on record that either the alleged abductee was abducted by the appellant or the appellant detained her in his house and forcibly committed Zina with her. The le arned trial
Court has miserably failed to properly appreciate the evidence in its true sense and perspective and it appears that the impugned judgment suffers from misreading, non- reading
and misappreciation of evidence available on record. Hence, we have no hesitation to hold
that the prosecution has miserably failed to substantiate the charge against the appellant beyond any shadow of doubt, whereas series of doubts have come on record, but the trial Court has wrongly withheld the benefits of such doubts in favour of the appellant. Reliance
in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'b1e Supreme Court has held as under:
"The concept of benefit of doubt to an accused is deep- rooted in our country. For
giving him benefit of doubt it is not necessary that there should he many circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit n ot as a matter of grace and concession but as a matter of right."
For the above reasons, this Court while extending the benefit of doubt set -aside the
impugned judgment to the extent of the appellant, vide order dated 29th August 2019, which reads as under:
"For the reasons to be recorded separately, the appeal is accepted. The impugned judgment dated 23rd May, 2019, passed by the learned Sessions Judge, Zhob in P.P.C. case No.11/2017, is set aside, the appellant Hamayoun Saeed son of Illahi Bakhsh, is ac quitted of the charge under section 365(B), P.P.C. in Crime No.98/2017,
Police Station Zhob. The appellant is in custody, he be released forthwith if not required in any other case."
SA/109/Bal. Appeal accepted.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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