2023 Y L R Note 30
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
GUL ZAMAN and another ---Appellants
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 56 and Criminal Appeal No. 72 of 2021, decided on 6th June, 2022.
(a) Penal Code (XLV of 1860) ---
----Ss. 364- A, 368 & 34---Kidnapping, wrongfully concealing or keeping in confinement
kidnapped or abducted person, common intention---Appreciation of evidence ---Accused
were charged for kidnapping the minor daughter of the complainant ---Record showed that
the complainant of the case appeared as witness, who mostly reiterated the contents of his
fard-e-bayan ---Likewise, the statement of other witness was on the same footing to that of
complainant as that witness arrived at the house of complainant, wherein complainant
informed him about the occurrence ---Most important and the star witness of the occurrence
was abductee, who was the victim of the occurrence ---Since, abductee was minor aged about
7-years, thus in order to ascertain her mental condition and conscious, certain questions were
put upon her, which were replied correctly by that witness and thereafter her statement was
recorded ---Victim in her statement by pointing her fingers upon the accused stated that the
said person took her on his cycle and he was not a good person ---Said victim further added
that the accused had warned her that in case she disclosed her name or address to someone,
she would be murdered--- Whereafter, accused kept the victim in a place, from where she was
recovered by the police---Minor also added that the accused also slapped her ---
Circumstances established that the prosecution had succeeded in proving the charge against
the accused through direct and circumstantial evidence---Appeal against conviction was
dismissed accordingly. [Para. 4 of the judgment]
(b) Penal Code (XLV of 1860)---
----Ss. 364- A, 368 & 34---Kidnapping, wrongfully concealing or keeping in confinement
kidnapped or abducted person, common intention---Appreciation of evidence ---Minor
witness ---Scope ---Accused were charged for kidnapping the minor daughter of the
complainant ---Admittedly, victim was a minor, but at the time of her examination in chief
the Court asked several questions from her and found her mentally mature and fit to answer
the questions correctly---Even during cross -examination victim replied the questions
correctly, which established the soundness of her mind and her statement could not be
thrown aside merely on the ground of her being minor age of 7- years rather alone her
statement was enough to establish the charge against the culprits ---Nothing was available on
record showing that minor witness was tutored by her elders ---Nothing adverse had come on
record to disbelieve the evidence of victim ---Circumstances established that the prosecution
had succeeded in proving the charge against the accused
through direct and circumstantial evidence ---Appeal against conviction was dismissed
accordingly. [Para. 5 of the judgment]
Muzammil Shah v. State 1991 MLD 1944 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 364- A, 368 & 34 ---Qanun- e-Shahadat (10 of 1984), Art. 22---Kidnapping, wrongfully
concealing or keeping in confinement kidnapped or abducted person, common intention---
Appreciation of evidence --- Test identification parade--- Scope ---Accused were charged for
kidnapping the minor daughter of the complainant ---Moreover, it had also been observed that
soon after her recovery, the victim was produced before Judicial Magistrate, who recorded her statement under S. 164, Cr.P.C., wherein she narrated the story with regard to her abduction---Judicial Magistrate conducted the identification parade of the accused ---
Statement of Judicial Magistrate and the identification memo. confirmed that the victim soon after her recovery identified the accused during the course of identification parade---Circumstances established that the prosecution had succeeded in proving the charge against the accused through direct and circumstantial evidence---Appeal against conviction was dismissed accordingly. [Para. 6 of the judgment]
(d) Penal Code (XLV of 1860)---
----Ss. 364- A, 368 & 34---Kidnapping, wrongfully concealing or keeping in confinement
kidnapped or abducted person, common intention---Appreciation of evidence ---Abductee
was recovered on the disclosure of the accused ---Scope ---Accused were charged for
kidnapping the minor daughter of the complainant ---Comparative study of abductee,
Investigating Officer and Judicial Magistrate confirmed that the accused had abducted the minor ---Case of prosecution had further been strengthened from the disclosure of the accused
which was followed by the recovery of abductee from the house of other accused---Witness stated that the arrested accused during investigation disclosed before the Investigating Officer that he abducted the abductee from and after consultation with other accused kept the minor in his house, thus the disclosure of accused was reduced into writing and pursuant to such disclosure the accused was taken to the house of other accused from where the abductee was recovered ---Record showed that prior to the incident, the accused remained involved in
the abduction of children---Accused further disclosed that due to presence of other family members of other accused in the house, he could not commit zina with the child--- Accused
also pointed out the place from where the minor was abducted ---Circumstances established
that the prosecution had succeeded in proving the charge against the accused through direct and circumstantial evidence---Appeal against conviction was dismissed accordingly. [Para. 7 of the judgment]
(e) Penal Code (XLV of 1860)---
----Ss. 364- A, 368 & 34---Kidnapping, wrongfully concealing or keeping in confinement
kidnapped or abducted person, common intention---Appreciation of evidence--- Prosecution
witnesses were in line with each other ---Scope ---Accused was charged for kidnapping the
minor daughter of the complainant ---Record showed that all the witnesses recorded their
statements in line with each other and fully supported the case of prosecution---Identification
of accused in the Trial Court by the abductee, during investigation before Investigating
Officer and Judicial Magistrate as well as the identification of accused during Court statement had strengthened the case of prosecution--- Statements of witnesses were tested
through lengthy cross -examination, but all the witnesses remained firm in their deposition
and nothing beneficial had come on record in favour of defence ---Defence had made an
unsuccessful attempt to discredit the case of prosecution merely on the basis of minor discrepancies, but those were not enough to discredit the entire case of prosecution---Disclosure of accused followed by the recovery of minor from the house of other accused established their malice intention ---Circumstances established that the prosecution had
succeeded in proving the charge against the accused through direct and circumstantial evidence--- Appeal against conviction was dismissed accordingly. [Para. 8 of the judgment]
Ms. Humera Munir for Appellant (in Criminal Jail Appeal No. 56 of
2021) and Abdul Sattar Sherani for Appellant (in Criminal Jail Appeal No. 72 of 2021).
Mrs. Noor Jahan Kahoor, D.P.G. for the State.
Date of hearing: 2nd June, 2022.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgement disposes of Criminal Jail
Appeal No.56 of 2021 filed by the appellant (convict) Gul Zaman son of Muhammad Yousaf
through Superintendent Central Prison Mach and Criminal Appeal No.72 of 2021 filed by the appellant Imran son of Shado, respectively, against the judgement dated 16th October 2021 ("the impugned judgment") passed by learned Additional Sessions Judge -IX/Child Court,
Quetta, ("the trial Court"), whereby the appellant Gul Zaman was convicted under section
364- A, P.P.C. and sentenced to suffer R.I. for fourteen (14) years, while the appellant Imran
was convicted under sections 364- A, 34, P.P.C. and sentenced to suffer seven (07) years R.I.
The benefit of section 382- B, Cr.P.C. has also been extended in favour of appellants.
2. Facts of the case are that on 24th August 2020, the complainant Syed Rasool Shah,
lodged FIR No. 157/2020 at Police Station Civil Line, Quetta, under sections 364- A, 368, 34,
P.P.C., with the averments that on the day of occurrence at about 9.45 a.m. he went to Railway Hospital for check -up and returned home at about 10.45 a.m. and found his family
members crying, while his minor son Muhammad Daqeeb aged 4 -years informed him that he
along with his sister Laraib were playing outside, when a persion came and abducted Laraib in a Cycle, hence he along with his relatives searched for abductee, but could not trace out her location.
3. Pursuant to the above FIR, the police arrested the appellants, who were investigated
and on completion thereof, challaned in the trial Court, which indicated the charge and after denial by the appellants, the prosecution produced ten (10) witnesses. The appellants were examined under section 342, Cr.P.C. However, they neither recorded their statements on oath
under section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion of
trial and after hearing arguments, the trial Court convicted and sentenced the appellants as mentioned above. Whereafter, instant appeals have been filed.
4. Heard the learned counsel and perused the available record. The prosecution in order
to establish the charge has produced sufficient incriminatory evidence establishing the abduction of abductee from the place of occurrence and her recovery on the pointation of appellant Gul Zaman from the house of appellant Imran. The complainant of the case namely Syed Rasool Shah appeared as PW -1, who mostly reiterated the contents of his fard -e-bayan
Ex.P/1- A. Likewise, the statement of PW -5 Syed Saeed Ahmed Shah, is on the same footings
to that of PW -1, as this witness arrived at the house of PW -1, wherein PW -1 informed him
about the occurrence. The most important and the star witness of the occurrence is PW -2
Laraib, who is the victim of the occurrence. Since, PW- 2 is minor aged about 7- years, thus in
order to ascertain her mental condition and conscious, certain questions were put. upon her, which were replied correctly by this witness and thereafter her statement was recorded. PW -2
in her statement by pointing her fingers upon the appellant Gul Zaman stated that the said person took her on his cycle and he is not a good person. She further added that the appellant had warned her that in case if she disclosed her name or address to someone, she would be
murdered. Whereafter, he kept her in a place, from where she was recovered by the police.
The minor also added that the appellant also slapped her.
5. Admittedly, PW -2 is a minor, but at the time of her examination in chief the Court
asked several questions from her and found her mentally mature and fit to answer the questions correctly and even during cross -examination she replied the questions correctly,
which establishes the soundness of her mind and her statement cannot be thrown aside
merely on the ground of her being minor age of 7- years rather alone her statement is enough
to establish the charge against the culprits. Even otherwise, there is nothing on record showing that this witness was tutored by her elders. Thus, nothing adverse has come on record to disbelieve the evidence of PW -2. Reliance in this regard is placed on the case of
Muzammil Shah v. State 1991 MLD 1944, wherein it has been held as under:
"10. We have gone through the evidence of Mst. Irshad (P. W.5) with care. Before recording her statement, the learned trial Judge had recorded a note after putting her certain questions that he was satisfied that the witness was intelligent and was capable of making rational answers to questions put to her. Besides, she has been subjected to fairly lengthy cross -examination which she had withstood to an astonishing degree. A
perusal of her statement shows that she made the statement in a frank and straight forward manner. Curiously there was no suggestion to her in her cross -
examination that she did not know the appellant. Then there are no circumstances to indicate that she might have been tutored. She had seen the appellant in the course of committing sodomy over the victim with his trousers loosened. She was intelligent enough to understand as to what had been done to her brother and neither she nor her father had any motive to falsely implicate him. We see no reason whatsoever why the statement of such a child witness should not be believed though a suggestion was made to Naeem Gul (P.W.4) that there was enmity of her relatives with the appellant. Nonetheless, the appellant when examined under section 342, Cr.P.C. did not take up this plea. We have not been able to discover any valid reason to reject the testimony
of Mst. Irshad (PW.5)."
6. It has also been observed that soon after her recovery, the victim was produced before
PW-6 Wasila Kakar, Judicial Magistrate- X Quetta, who recorded her statement under section
164, Cr.P.C. wherein she narrated the story with regard to her abduction. PW -8 Muhammad
Anwar Mengal, Judicial Magistrate -III/MFC, Quetta conducted the identification parade of
the appellant through PW -2. The statement of PW -8 and the identification memo. Ex.P/8- A
confirms that the victim soon after her recovery identified the appellant Gul Zaman during
the course of identification parade.
7. The comparative study of PW -2, PW -6 and PW -8 confirms that the appellant Gul
Zaman was the culprit, who had abducted the minor Laraib from Railway Colony. The case
of prosecution has further been strengthened from the disclosure of the appellant Gul Zaman, which was followed by the recovery of abductee from the house of appellant Imran. PW -4
stated that the arrested accused during investigation disclosed before the Investigating Officer that he abducted the abductee from Joint Road and after consultation with appellant Imran, kept the minor in the house of Imran, thus the disclosure of appellant was reduced into writing and pursuant to such disclosure the appellant Gul Zaman was taken to the house appellant Imran, from where the abductee Laraib was recovered. It has also come on record that prior to instant incident, the appellant remained involved in the abduction of children. The appellant Gul Zaman further disclosed that due to presence of other family members of appellant Imran in the house, he could not commit Zina with the child. The appellant also pointed out the place from where the minor was abducted.
8. The reappraisal of statement of all prosecution witnesses would establish the charge
against the appellants Gul Zaman and Imran that the appellant Gul Zaman was the culprit,
who had abducted the minor from Railway colony Joint Road Quetta and after consultation with appellant Imran kept .the minor in the house of appellant Imran and he had also intention to commit Zina with the minor, but he failed in his scheme due to presence of other family members of appellant Imran in the House. All the PWs recorded their statements in line with each other and fully supported the case of Prosecution. The identification of appellant in the trial Court by the abductee during investigation before PW -6 and PW -8 as
well as the identification of appellant Gul Zaman during Court statement has strengthened the case of prosecution. The statements of PWs were tested through lengthy cross -
examination, but all the PWs remained firm in their deposition and nothing beneficial has come on record in favour of defence. The learned counsel for the appellant has made an unsuccessful attempt to discredit the case of prosecution merely on the basis of minor discrepancies, but in our view, those are not enough to discredit the entire case of prosecution. The disclosure of appellant Gul Zaman followed by the recovery of minor from the house of appellant Imran establishes their malice intention.
9. Adverting to the defence plea of the appellant, suffice to observe here that the
appellants throughout the case have not taken any specific plea of their false implication by the abductee rather simply denied the commission of crime. Mere denial of the appellants is not enough to brush- aside the entire prosecution evidence, which is based upon solid and
concrete grounds. Thus, we have no hesitation to hold that the prosecution has succeeded in
proving the charge against the appellants through direct and circumstantial evidence. No
major contradiction or dishonest improvement has been pointed out by the learned defence counsel in the statements of prosecution witnesses to discredit the statements of PWs. The learned trial Court has discussed and dilated upon each and every aspect of the case and rightly convicted the appellants through the impugned judgment, which otherwise is not open
for interference of this Court.
For the above reasons, the appeals being devoid of merits are hereby dismissed.
JK/82/Bal. Appeals 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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