MUHAMMAD ZUBAIR KHAN Versus State
RAJA SHAHID MEHMOOD ABBASI, J.--- Through this appeal, Muhammad Zubair Khan (appellant) has assailed the vires of judgment dated 05.01.2017 passed by the learned Additional Sessions Judge, Mianwali, in case FIR No.266, dated 03.07.2014, under Section 364-A, P.P.C., Police Station City Mianwali, whereby the appellant was convicted under Section 364-A, P.P.C. and sentenced to undergo rigorous imprisonment for 14-years. The appellant was also extended the benefit of Section 382-B of the Code of Criminal Procedure Code, 1898.
2. Brief facts of the case as disclosed by Malik Mushtaq Ahmed complainant (PW-1), in his application (Ex.PA) on the basis of which FIR (Ex.PA/1) was registered, are that on 03.07.2014 he was present in his house situated in Wandhi Ghundwali when at about 10:00 AM he found Mst. Aela Nawaz daughter of his son Ameer Nawaz aged about 6 years missing from the house. He searched for Aela Nawaz in the neighbouring house but could not find. He informed his brother Liagat Ali and his son Ameer Nawaz about disappearance of Aela Nawaz and all the three of them, started searching the missing child. Ameer Nawaz his son informed the police. The complainant, Ameer Nawaz and Liaqat Ali, PWs went toward south on the Kacha path running alongside western Patri of Thal Canal. After going some distance they met Sanaullah son of Muhammad Yar, PW who told them that he had seen person with small beard carrying Aela Nawaz and going toward south on the same passage that they were following. They chased along with Sanaullah PW toward south on the same passage and at some distance, they saw Muhammad Zubair accused lifting Aela Nawaz, his grand-daughter (Poti). Upon seeing the complainant party, the accused tried to flee away but was over-powered by the prosecution witnesses. On inquiry, accused told that he kidnapped Aela Nawaz with intention to subject her to his sexual lust and thereafter selling her to some other person for the sale purpose. In the meanwhile, police party on official vehicle also came at the spot. Accused resisted his arrest by the police and in the process, he fell down and got injured. Hence the FIR.
3. After registration of the case, police investigated the matter and after completion of investigation, report under Section 173, Cr.P.C. was submitted. The learned trial court after observing all the pre-trial codal formalities, framed the charge against the appellant which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as seven witnesses during the trial.
5. On close of prosecution evidence, the appellant was examined under Section 342, Cr.P.C. The appellant neither appeared as his own witness as admissible under Section 340(2), Cr.P.C. nor produced any defence evidence.
6. After conclusion of trial, the appellant was convicted and sentenced as mentioned above by the learned trial court, hence the instant appeal.
7. During pendency of appeal, the appellant managed composition of crime through Crl. Misc. No.1-M/2021. According to the report dated 14.04.2021 submitted by learned Sessions Judge, Mianwali, Malik Ameer Nawaz and Mst.Yasmeen Bibi are the parents/Walis of minor abductee Mst. Aela Nawaz and except them, there is no other Wali of abductee and they both appeared before the learned Sessions Judge and made statements on oath to the effect that they have forgiven Muhammad Zubair Khan appellant in the name of Allah Almighty and have no objection on his acquittal. Learned Sessions Judge showed satisfaction on the genuineness of compromise arrived at between the parties.
8. The learned counsel appearing on behalf of the appellant instead of pressing the appeal on merits straightaway came forward with the prayer that the complainant, Malik Mushtaq Ahmad (PW1) as well as Mst. Yasmeen Bibi, mother of the victim have forgiven the appellant and have no objection on the acquittal of the appellant. The factum of compromise has also been endorsed by the learned Sessions Judge, Mianwali. In view of the compromise, the learned counsel has prayed for reduction of sentence of the appellant.
9. After taking into consideration the facts and circumstances of the prosecution case, it is observed that the offences with which the appellant is charged is non-compoundable, therefore, no order of acquittal can be passed merely on account of compromise. So far as the merits of the merits of the case are concerned, findings of the learned trial court are based on correct, elaborate and careful examination of the record and do not suffer from any illegality on account of misreading and non-reading of any material piece of evidence. Even the appellant has not at all dispute his conviction under section 364-A, P.P.C. but only prayed for the reduction of his sentence on the basis of compromise arrived at between the parties, therefore, the judgment of learned trial court with regard to his conviction is neither unfounded nor does it warrant any interference by this Court, but taking into consideration the factum of compromise, if a lenient view is taken, the same will help reducing the bad blood in between them. The reconciliation and repentance expressed by the appellant is treated as a mitigating circumstance. Reliance in this respect is placed on the case of Yousaf Ali, etc. v. The State (2002 SCMR 1885). By taking into account the above said facts and circumstances, the conviction of the appellant under Section 364-A, P.P.C. is maintained, however, his sentence of 14-years is reduced to 07-years and the benefit of Section 382-B, Cr.P.C. is also extended in his favour. With the above modification in the sentence, the appeal as well as miscellaneous petition are dismissed.
SA/M-123/L Sentence reduced.