INAYAT MASIH Versus THE STATE

Inayat Masih (70) son of Nathu, resident of Peoples Colony, Faisalabad, and Buta (35) son of Dina resident of Chak No: 205/RB, were tried by the learned Additional Sessions Judge, Faisalabad, under sections 364‑A and 342/34, P.P.C. By judgment, dated 21st October, 1981 both of them were convicted under section 342/34, P.P.C. and sentenced to rigorous imprisonment for three months each. Inayat Masih was further convicted under section 364‑A, P.P.C. and sentenced to R.I. for fourteen years. His sentences were to run concurrently. He was also ordered to pay Rs.20,000 as compensation to the mother of the abductee. He has appealed.

2. The brief facts of the prosecution case are that Mst. Samina Bibi, aged 6/7 years, used to accompany her mother to the grave of her father in the graveyard of Peoples Colony, Faisalabad. On 3rd April, 1978 at about 8 a.m. Mst. Samina was playing in Hurianwala Chowk, Faisalabad, when Inayat Masih induced her to accompany him saying that he will give her sweets. Mst. Samina accompanied him and he confined her inside his Kotha in the graveyard. Buta accused was also there sitting outside the Kotha. Inayat Masih accused told Mst. Samina inside the Kotha that if she raised alarm, she would be given Chhura blow. He also gave her a fist blow. As Mst. Samina did not return home, her cousin Zulfiqar Ali, her grandmother Mst. Nawab Bibi and her aunt Mst. Kaniz Fatima went to the graveyard where Buta accused met them. They enquired about Mst. Samina and he told them that she had not come there. In the meantime Inayat Masih came out of the Kotha, followed by Mst. Samina who informed them that Inayat Masih had brought her there from Chowk Harianwala where she was playing. She also told them that Inayat Masih had confined her in the room.

After the recovery of Mst. Samina, Zulfiqar Ali complainant started for the police station for lodging a report. Ejaz Hussain. A.S.I. met him on the way and he reported the occurrence to him at 7 p.m. vide his statement Exh.P.B. on the basis of which formal F.I.R. Exh . P.B./1 was recorded at the police station at 7‑15 p.m.

3. The Assistant Sub‑Inspector reached the spot and arrested Inayat Masih accused on the same day. Buta accused was arrested on 13th May, 1978. After the investigation, both of them were challaned.

4. The case of the prosecution rests on the evidence of Mst. Samina, Zulfiqar Ali and Mst. Nawab Bibi. Mst. Kaniz Fatima was given up as unnecessary.

5. The appellant pleaded not guilty to the charge and came up with the version that he was falsely implicated at the instance of Manager, Habib Bank, who asked him to look after his car but he refused to do so and he got annoyed with him. He examined two witnesses in defence who supported his version that the Manager of the Bank had falsely implicated him.

6. The learned trial Judge accepted the prosecution evidence against the appellant and sentenced him as mentioned above.

7. The learned counsel for the appellant contends that the F.I.R. is delayed and it was recorded after the preliminary investigation. It is further submitted that the uncorroborated solitary statement of child witness was not sufficient to warrant the conviction, particularly when the same has been contradicted by other P.Ws. in material particulars.

The learned counsel for the State, on the other hand, submits that the P.Ws. had no motive for false implication, therefore, their evidence has been rightly relied upon by the trial Court.

8. According to the prosecution, Mst. Samina disappeared at about 8 a. m. and Zulfiqar Ali complainant allegedly reported the occurrence to Ijaz Hussain, A.S.I., on the same day at 7‑00 p.m. in D‑Ground of Peoples Colony, Faisalabad. In cases where FA.R. is not recorded at the police station, the ordinary presumption is that it was recorded at the spot after the preliminary investigation. In this case there is evidence on the record that the F.I.R. was recorded after entire investigation had been completed. Zulfiqar Ali (P.W.4) admitted in cross‑examination that Thanedar had completed the investigation before sunset. On the day of occurrence sunset time at Lahore was 6‑26 p.m. It is, therefore, fully established that F.I.R. was recorded after the investigation had been completed.

9. The case of the appellant from the very beginning was that the police had falsely implicated him at the instance of the Bank Manager whose house was close to the graveyard where the appellant was residing. Suggestions to the effect were put to Mst. Nawab Bibi (P.W.3), Zulfiqar Ali (P.W.4) and Mst. Samina (P.W.5). Mst. Nawab Bibi admitted that statements (before the police) were got recorded by the Bank Manager. Mst. Samina is a child witness. In cross-examination she also admitted that the Bank Manager had given her instructions regarding the manner in which statement was to be made before the police. This fact alone should be enough to reject her statement regarding the charge of abduction as it does not find corroboration from any other piece of evidence. It will be unsafe to base the conviction on the solitary statement of the child witness. The conviction and sentence of the appellant under section 364‑A, P.P.C. is, therefore, set aside.

10. As regards the charge under section 342, P.P.C. the evidence produced by the prosecution is discrepant in material particulars. Kist. Nawab Bibi stated that on reaching the graveyard they (she and her companions) enquired from co‑accused Boota whether he had seen Mst. Samina and he straightway told them that no girl had come there. They were still in the graveyard when they heard the noise of weeping of Mst. Samina from inside the Kotha, the door of which was closed. Inayat accused came out of that Kotha followed by Mst. Samina who was weeping. According to her, she and her companions reached the graveyard at 9 a. m. and visited the police station at 10/11 a.m. after the recovery of Mst. Samina. Zulfiqar Ali (P.W.4) has given a different version altogether. He stated that Mst. Samina did not return home till 10/11 a.m. and they went to the graveyard where co‑accused Boota told them that 'Mst. Samina was playing with their Malang', upon which they came back. Mst. Samina did not come back till 2 p.m. and they again went to the graveyard and enquired about her from co‑accused Boota who told them that Mst. Samina had not yet come back after playing. Then they asked Boota accused to open the door of the Kotha and thereupon Inayat accused came out of the Kotha alongwith Mst. Samina who was weeping.

Mst. Nawab Bibi stated that after the recovery of Mst. Samina she and her companions reached the police station at 10/11 a.m. and after recording the. F.I.R. the Thanedar came to the house of the Manager alongwith the complainant where she and others were sitting. Zulfiqar Ali P.W. on the other hand, stated that he, alongwith Mst. Nawab Bibi and Mst. Sardaran, was standing outside the bungalow of the Manager when the Thanedar came there. He investigated the case and recorded their statements and the F.I.R. at that place. In examination‑in‑chief he stated that after the recovery they brought back Mst. Samina in D‑Ground where Thanedar recorded his statement. He denied having stated before the police that after the recovery he 4 took Mst. Samina to his house. He was confronted with his statement Exh.P.B. where it was so recorded. Mst. Samina, on the other hand, stated that after recovery she was brought to the house of Bank Manager. Thus, the evidence of the P.Ws. is discrepant in material particulars and does not inspire confidence.

11. For the foregoing reasons I feel inclined to the view that the case of the prosecution is fraught with serious doubt and the appellant is entitled to acquittal. This appeal is, therefore, allowed, the conviction and sentence of the appellant is set aside and he is acquitted of the charges. He is on bail. He shall be discharged from his bail bond.

S. A./I‑78/L Appeal accepted.