PLJ 2009 Cr.C. (Quetta) 531 (DB)
Present: Amanullah Khan Yasinzai, CJ. &
Akhtar Zaman Malghani, J.
Haji MUHAMMAD RAFIQ--Appellant
versus
TAWEEZ KHAN and others--Respondents
Crl. Acquittal Appeal No. 253 of 2007, decided on
25.11.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 265-K--Pakistan Penal Code, (XLV of 1860) Ss. 147,
148, 149 & 365--Appeal against acquittal--Determination of age--NADRA
record--Application regarding acquittal was allowed--Absconding accused
forcibly kidnapped daughter of appellant--Sessions Judge acquitted respondents
of charge on ground of delay in FIR--Abductee in her statement u/S. 161 Cr.P.C.
stated that she had gone alongwith accused with her own accord and married
him--Delay in FIR was very much explained in written report--Before taking into
consideration consent of abductee, Session Judge was under legal obligation to
have first determined her age because appellant in his Court deposition has
shown her age about 10-11 years--Appellant moved an application for calling
representative of NADRA to produce form but Sessions Judge without considering
said application or disposing it off at a pre-mature stage acquitted
respondents on their application u/S. 265-K Cr.P.C.--Before taking into
consideration consent of abductee Sessions Judge should have first determined
her age which could have been either ascertained from NADRA record or from
medical certificate--As such, before hearing arguments on application filed
u/S. 265-K, Cr.P.C., Sessions Judge should allowed application filed by
appellant u/S. 540, Cr.P.C. and have examined representative of NADRA and
medical officer who examined victim--Appeal allowed. [Pp. 533, 534 & 536] A, B, E, F & H
Criminal Procedure Code, 1898 (V of 1898)--
----S. 161--Statement recorded u/S. 161, Cr.P.C. is not
substantial piece of evidence but can be used for limited purpose of
contradicting a witness at trial. [P.
534] C
2007 MLD 372, rel.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 361--Minor girl--Removal from lawful guardian--Kidnapping
from lawful guardianship--Any minor girl under 16 years of age removed from
lawful guardian without consent of such guardian amounts to kidnapping and
consent of victim is of no avail. [P.
534] D
1986 SCMR 35, ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 265-K--Applicability of--Although recording of
evidence before order of acquittal u/S. 265-K is not requirement of law, yet S.
265-K Cr.P.C. could not be pressed into service to stiffle or thwart
prosecution as powers u/S. 265-K were not intended to be exercised arbitrarily
and capriciously without providing an opportunity to prosecution or complainant
to produce prosecution witnesses.
[P. 535] G
2005 SCMR 1544, ref.
Mr. Khushnood Ahmed, Advocate for Appellant.
Mr. Kamran Murtaza, Mr. Habib Jalib, Advocates and Malik
Sultan Mehmood, A.A.G. for Respondents.
Date of hearing: 6.11.2008.
Judgment
Akhtar Zaman Malghani, J.--This Criminal acquittal appeal
is directed against the order dated 29.08.2008 rendered by Sessions Judge,
Loralai whereby Respondents No. 1 to 4 were acquitted of the charge on their
application filed under Section 265-K Cr.P.C.
2. Briefly stated,
facts of case are that on 07.12.2005 a case under Sections 147/148/149 and 365
P.P.C was registered in Levies Station Mekhtar on the report of Haji Muhammad
Rafiq alleging therein that during the night in between 8th and 9th November,
2005 respondents alongwith absconding accused forcibly abducted his daughter
Kheyal Bibi aged about 10-11 years on account of previous enmity. It appears
from record that during investigation Respondents No. 1 to 4 were arrested
whereas police could not lay hand upon remaining nominated accused persons, as
such; a challan was submitted showing them absconders. On commencement of trial
charge was read over to respondents to which they pleaded not guilty whereafter
prosecution produced witnesses. In the meanwhile respondents moved an
application under Section 265-K Cr.P.C which was allowed and they were
acquitted of the charge.
3. We have heard
the learned counsel for appellant as well as learned counsel for respondents.
Learned counsel for appellant vehemently contended that Sessions Judge
acquitted the respondents at a pre-mature stage without appreciating peculiar
facts and circumstances of instant case mainly on the ground of delay in FIR
and taking into consideration statement of abductee recorded under Section 161
Cr.P.C thereby coming to the conclusion that she had gone alongwith Dad
Muhammad at her own accord and she was not forcibly abducted which conclusion
was contrary to record and law as admittedly
Kheyal Bibi was below 16 years age and her consent was immaterial. He
further contended that delay in FIR was explained by complainant in his
statement, as such; same could not have been made basis for acquittal. He
further argued that during trial an application was moved under Section 540
Cr.P.C for calling representative of NADRA and Medical Officer who examined
abductee and issued medical certificate in order to ascertain age of abductee
but without deciding such application learned Sessions Judge in hurried manner
acquitted respondents of the charge which findings being perverse are liable to
be set aside.
On the other hand learned counsel for respondents
vehemently contended that there was no evidence on record to implicate
respondents in the commission of offence, as such; they were rightly acquitted
of the charge as alleged abductee herself gone alongwith absconding accused Dad
Muhammad and married him. He further contended that respondents carried double
presumption of innocence, as such; acquittal order was not liable to be
interfered with. In support of his contentions learned counsel referred to
judgments reported in 2006 P.Cr.L.J 1292 and 2007 P.Cr.L.J 1288.
4. We have
carefully considered the contentions put forth by parties' learned counsel and
have also gone through the impugned judgment as well as evidence on record.
According to prosecution version respondents alongwith absconding accused
forcibly kidnapped daughter of appellant namely Kheyal Bibi during the night
between 8th and 9th November, 2005. Perusal of judgment would indicate that
Sessions Judge, Loralai acquitted respondents of the charge on the ground of
delay in FIR, abductee in her statement under Section 161 Cr.P.C stated that
she had gone alongwith Dad Muhammad with her own accord and married him and
`Nikah Nama'.
5. As regards
delay in FIR same was very much explained in written report Ex.P/1-A which was
reproduced by Sessions Judge in his judgment wherein it was stated that on
09.11.2005 he informed about incident whereafter he filed an application before
Sessions Court on 24.11.2005 complaining against respondents for kidnapping his
daughter aged about 10-11 years which facts were also reiterated by him in his
Court deposition but Sessions Judge by over looking said facts illegally took
into consideration delay in lodging FIR for making it basis for acquittal by
making reference to an incomplete answer given by appellant in
cross-examiantion without considering his explanation that no officer was ready
to entertain his application complaining about kidnapping of his daughter.
6. Similarly
reliance on the statement of Kheyal Bibi recorded under Section 161 Cr.P.C
without her examination in the Court was based on ignorance of law as it is
well settled that statement recorded under Section 161 Cr.P.C is not
substantial piece of evidence but can be used for limited purpose of
contradicting a witness at the trial. In the judgment reported in 2007 MLD 372
in this regard it was held as under:-
"In view of above statement of eye-witnesses
discussed, the contention of learned counsel for appellant Azam that
complainant had tried to improve his 154, Cr.P.C statement in his statement on
oath as he had not disclosed in his 154, Cr.P.C statement that the event
happened 2, 3 days prior to the day of incident were disclosed to him by his
sister, mother and deceased. So also P.Ws. have not given the detailed features
in their 161, Cr.P.C statement to justify that they could recognize the
appellants at later stage. That might be so but the statement under Section
161, Cr.P.C statement is not a substantive piece of evidence, however it can be
used for the purpose of contradiction".
7. Furthermore;
under Section 361 P.P.C any minor girl under 16 years of age removed from
lawful guardian without consent of such guardian amounts to kidnapping and
consent of victim is of no avail as held by Hon'ble Supreme Court in the
judgment reported in 1986 SCMR 35 wherein it was observed as under:--
"The arguments with regard to consent would not be
of any avail to the petitioner as the victim of the crime was of age specified
in the definition of "kidnapping from lawful guardianship" in Section
361, P.P.C namely, sixteen years and the said section according to the law is
to be read for discovering the definition of kidnapping for purpose of Section
11 of the Ordinance".
Therefore, before taking into consideration consent of
Kheyal Bibi, Sessions Judge was under legal obligation to have first determined
her age because appellant in his Court deposition has shown her age about 10-11
years and has moved an application for calling representative of NADRA to
produce the form but Sessions Judge without considering the said application or
disposing it off at a pre-mature stage acquitted the respondents on their
application under Section 265-K Cr.P.C. It may be observed that under Section
540 Cr.P.C the Court or Magistrate is under legal obligation to examine any
witness whose evidence appears to be essential for just decision of case and in
the instant case consent of Kheyal Bibi gained vital importance, therefore,
before taking into consideration such consent learned Sessions Judge should
have first determined her age
which could have
been either ascertained
from NADRA record or from medical certificate, as such; before hearing arguments
on the application filed under Section 265-K Cr.P.C, Sessions Judge should have
allowed application filed by appellant under Section 540 Cr.P.C and have
examined representative of NADRA and medical officer who examined the victim.
8. The record
further reveals that Kheyal Bibi was also examined by Judicial Magistrate,
Kohlu who has shown her age as 15 years, as such; her such statement should have
also been brought on record.
9. Although
recording of evidence before order of acquittal under Section 265-K Cr.P.C is
not requirement of law; yet Section 265-K Cr.P.C could not be pressed into
service to stiffle or thwart prosecution as powers under Section 265-K Cr.P.C
were not intended to be exercised arbitrarily and capriciously without
providing an opportunity to prosecution or complainant to produce prosecution
witnesses. The Hon'ble Supreme Court in the judgment reported in 2005 SCMR 1544
held as under:--
"On consideration of arguments of Dr. Qazi Khalid
Ali, Additional Advocate-General and Ch. Aitzaz Ahsan, Senior Advocate Supreme
Court and the case-law relied upon by both of them in support of their
respective contentions, there can be no dispute that an application under
Section 249-A, Cr.P.C can be filed, taken up for hearing and decided at any
time or stage of the proceedings and the words nat any stage" `denote that
the application under Section 249-A, Cr.P.C can be filed even before prosecution
evidence had been recorded or while the exercise of recording of evidence is
going or when the exercise is over. It is, however, to be noted that though
there is no bar for an accused person to file application under Section 249-A,
Cr.P.C. at any stage of the proceedings of the case yet the facts and
circumstances of the prosecution case will have to be kept in mind and
considered in deciding the viability or feasibility of filing an application at
any particular stage. The special or peculiar facts and circumstances of a
prosecution case may not warrant filling of an application at a stage when the
entire prosecution evidence had been recorded and the case was fixed for
recording of statement of the accused under Section 342, Cr.P.C. This Court in
the cases of Bashir Ahmed v. Zafar Ul Islam PLD 2004 SC 298 and Muhammad Sharif
v. The State and another PLD 1999 SC 1063 (supra) did not approve decision of
criminal cases on an application under Section 249-A, Cr.P.C or such allied or
similar provisions of law, namely, Section 265-K Cr.P.C and observed that
usually a criminal case should be allowed to be disposed of on merits after
recording of the prosecution evidence, statement of the accused under Section
342, Cr.P.C, recording of statement of accused under Section 340 (2), Cr.P.C.
if so desired by the accused persons and hearing the arguments of the counsel
of the parties and that the provisions of Section 249-A, Section 265-K and
Section 561-A of the Cr.P.C should not normally be pressed into action for decision
of fate of a criminal case".
10. The judgments
referred to by learned counsel for respondents are distinguishable on facts and
circumstances as in the judgment reported in 2007 P.Cr.L.J 1288 there was
un-explained delay whereas in the instant case, as already observed the delay
was sufficiently explained.
11. Similarly the
judgment reported in 2006 P.Cr.L.J 1292 is also distinguishable because in the
instant case in view of what have been discussed prima facie respondents were
involved in the offence, however; they were acquitted by Sessions Judge on the
basis of inadmissible evidence as well as by mis-reading evidence on record.
12. Before parting
with the judgment we would like to observe that conduct of investigation
officer is also not above board because despite recovery of Kheyal Bibi he
neither produced her before any medical officer to ascertain her age and
allowed her to go alongwith absconding accused without arresting that accused
or taking permission from Court with regard to her custody, as such; copy of
this judgment be forwarded to the Senior MBR for enquiry and initiating
proceedings against him in accordance with law.
For the fore going reasons, we are inclined to allow this
appeal and after setting aside the judgment/order dated 29.8.2008 rendered by
Sessions Judge, Loralai remand the case with direction to call for record from
NADRA as well as statement of Kheyal Bibi recorded under Section 164 Cr.P.C by
Judicial Magistrate, Kohlu and examine medical officer who issued medical lego
certificate of victim and thereafter proceed in the matter in accordance with
law.
Appeal is disposed of accordingly.
(Sh.A.S.) Appeal allowed
