2026 M L D 451

 2026 M L D 451

[Balochistan]

Before Rozi Khan Barrech and Shaukat Ali Rakhshani, JJ

JAMAL-UD-DIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 128 of 2024, decided on 26th May, 2025.

(a) Penal Code (XLV of 1860)---

----S. 364-A---Criminal Procedure Code (V of 1898), S. 164---

Kidnapping or abducting a minor---Appreciation of evidence---

Confessional statement of minor victim---Scope---Accused-appellant

was charged for kidnapping the minor granddaughter of the

complainant---Minor got her statement recorded under S.164, Cr.P.C,

before Judicial Magistrate---Minor victim in her statement recorded

under S.164, Cr.P.C, categorically nominated and indentified the

appellant to be the culprit, who had abducted her---Minor victim

stated that on 15.06.2022, when she came out of her school, the

appellant asked her to come with him, but she refused and as such

the appellant forcibly took her on his motorbike, whereafter the

Police Officials along with her grandfather in hot pursuit arrested

him and rescued her---Admittedly, minor victim was a minor, but at

the time of her examination-in-chief, Judicial Magistrate asked

several questions to her and found her mentally mature and fit to

answer the questions correctly, which established the soundness of

her mind---Minor victim, while testifying before the Court

reiterated the same story by deposing that she was abducted by the

appellant forcibly and again identified the appellant in Court to be

the culprit, who had abducted her---Minor victim was cross-

examined at length, but the prosecution failed to shatter her

testimony as victim remained firm and consistent to her

examination-in-chief---Statement of minor victim was enough to

establish the charge against the appellant, thus, nothing adverse

was on record to disbelieve her evidence---Circumstances

established that the prosecution had proved its case against the

appellant, but due to peculiar circumstances of the present case, the

sentence awarded to him was reduced from 14 years to that of 07

years---With said modification in sentence, appeal was dismissed,

accordingly.

(b) Penal Code (XLV of 1860)

S. 364-A---Kidnapping or abducting a minor---Appreciation of

evidence---Accused-appellant was charged for kidnapping the minor

granddaughter of the complainant---Complainant testified that on

15.06.2022 as usual he went to pick her granddaughter from her

school, where at 1:00 pm, the appellant forcibly kidnapped her on a

motorbike, whereof he raised commotions, but he did not stop and

upon hearing his hue and cry, the Police Officials were attracted,

whereafter they chased the appellant and arrested him red

handedly by recovering his granddaughter---Complainant was

cross-examined at length, but nothing beneficial could be extracted

by the defence as he remained firm and consistent, thus his

testimony went unshaken---Police Officer/recovery witness of the

abductee deposed that on the fateful day, he along with Police

Officials were on patrol duty and upon hearing hue and cry of

complainant, they stopped and complainant told them about

abduction of his granddaughter, whereafter a hectic effort, they

apprehended the appellant and rescued minor from his custody---

Statements of complainant, recovery witness and minor victim

were found to be confidence inspiring, truthful and trust worthy,

confirming the fact that the appellant had abducted the minor from

outside her school, which was followed by his arrest and

subsequent recovery of minor victim---Circumstances established

that the prosecution had proved its case against the appellant, but

due to peculiar circumstances of the present case, the sentence

awarded to him was reduced from 14 years to that of 07 years---

With said modification in sentence, appeal was dismissed,

accordingly.

(c) Penal Code (XLV of 1860)---

----S. 364-A---Kidnapping or abducting a minor---Appreciation of

evidence---Sentence, quantum of---Mitigating circumstances---

Accused-appellant was charged for kidnapping the minor

granddaughter of the complainant---In the present case, the motive,

had not been proved, making the case of appellant one of mitigating

circumstances, warranting lesser punishment---Circumstances

established that the prosecution had proved its case against the

appellant, but due to peculiar circumstances of the present case, the

sentence awarded to him was reduced from 14 years to that of 07

years---With said modification in sentence, appeal was dismissed,

accordingly.

Ajmal Khanzada for Applicant.

Ms. Noor Jahan Kahoor, Additional Prosecutor General ( APG ) for

the State. Date of hearing: 12th May, 2025.

JUDGMENT

SHAUKAT ALI RAKHSHANI, J.---Appellant calls in question the

veracity and legality of judgment dated 08.04.2024 ("impugned

judgment") drawn by learned Additional District and Sessions Judge,

Kuchlak ("Trial Court"), pursuant to FIR No.51 of 2022 (Ex.P/7-A)

registered with Police Station New Kuchlak, Quetta, whereby the

appellant was convicted and sentenced under section 364-A of

Pakistan Penal Code, 1860 ("P.P.C") to suffer R.I for fourteen (14) years,

inclusive of the premium of section 382-B of Cr.P.C.

2. Tersely, facts of the case in hand are that complainant Abdul

Razaq (PW-1) got lodged the FIR ibid with the averments that on

15.06.2022, he dropped his granddaughter namely Bibi Jalwa (PW-3)

aged about 8-9 years at her school and that at 1:00 pm, when he went

to pick her back, a pillion rider forcibly kidnapped his daughter on a

motorbike and took her towards Bostan, thus he started chasing him

and upon hearing his hue and cry, the police officials came and they

apprehended the appellant near Killi Mughatiyan after hectic efforts

and recovered his granddaughter.

3. After usual investigation, the appellant was put on trial, where he

entered the plea of denial, thus, the prosecution in order to bring

home the charge produced seven (7) witnesses. After closure of the

prosecution side, the appellant was examined under section 342 of

Cr.P.C, who neither got recorded his statement on oath nor produced

defence, henceforth, the Trial Court vide impugned judgment

convicted and sentenced the appellant in the terms mentioned in para

supra.

4. Learned counsel for the appellant inter alia contended that the

essential ingredients of the charge of kidnapping were missing and

that that there is no iota of evidence adduced by the prosecution

pointing out that it was a case of kidnapping of the minor girl. Further

argued that the appellant neither committed Zina-bil-Jabr with the

minor nor there was any attempt on his part to commit said offence

and that nothing has been brought on record, which may suggest the

intention of the appellant to abduct the minor. He also argued that the

reasons drawn by the Trial Court are result of misreading of evidence,

making the impugned judgment a nullity, thus requested for setting at

naught the impugned judgment, and in consequence thereof, the

appellant be acquitted of the charge. He relied on the judgments

reported as 2001 SCMR 424, PLD 1972 374 and 2024 PCr.LJ 1841.

Conversely, learned APG vigorously opposed the contentions so put-

forth by learned counsel for the appellant and urged that the appellant was shamefully attempting to satisfy his lust with the minor, but she

was saved due to her grandfather's prompt efforts and that the minor

was saved timely by the police in a hot pursuit, which resulted into

arrest of the appellant red handedly, thus urged that the judgment of

the Trial Court is based on well reasoning, which does not require to

be meddled with, and lastly prayed for dismissal of the appeal.

5. Heard. Record vetted.

6. The paramount consideration in the case in hand is that whether

minor Bibi Jalwa (PW-3) aged about 8-9 years was abducted by

appellant Jamal-ud-Din and was rightly convicted by the Trial Court

under section 364-A of P.P.C.

7. In the instant case, the appellant was arrested by the police red

handedly, while taking away minor Bibi Jalwa (PW-3). Minor Bibi

Jalwa (PW-3) got recorded her statement under section 164 of Cr.P.C

before Mr. Mohibullah (PW-4), learned Judicial Magistrate ("JM")

Kuchlak. JM (PW-4) produced sealeu envelope, Proforma of

Questionnaire, statement and certificate thereof as (Ex.P/4-A) and

(Ex.P/4-B) respectively. Bibi Jalwa (PW-3) in her statement recorded

under section 164 of Cr.P.C categorically nominated and indentified

the appellant to be the culprit, who had abducted her. She stated that

on 15.06.2022, when she came out of her school, the appellant asked

her to come with him, but she refused, and as such the appellant

forcibly took her on his motorbike, whereafter the police officials

along with her grandfather in hot pursuit arrested him and rescued

her. Admittedly, Bibi Jalwa (PW-3) is a minor, but at the time of her

examination-in-chief, JM (PW-4) asked several questions from her

and found her mentally mature and fit to answer the questions

correctly, which establishes the soundness of her mind. Bibi Jalwa

(PW-3), while testifying before the court, reiterated the above story

by deposing that she was abducted by the appellant forcibly and

again identified the appellant in court to be the culprit, who had

abducted her. She was cross-examined at length, but the prosecution

failed to shatter her testimony as Bibi Jalwa (PW-3) remained firm

and consistent to her examination-in-chief. Statement of minor Bibi

Jalwa (PW-3) is enough to establish the charge against the appellant,

thus, nothing adverse has come on record to disbelieve her evidence.

8. Complainant Abdul Razaq (PW-1) corroborated the statement of

Bibi Jalwa (PW-3), who in clear words testified that on 15.06.2022 as

usual he went to pick her granddaughter Bibi Jalwa (PW-3) from her

school, where at 1:00 pm, the appellant forcibly kidnapped her on a

motorbike, whereof he raised commotions, but he did not stop and

upon hearing his hue and cry, the police officials were attracted,

whereafter they chased the appellant and arrested him red handedly by recovering his granddaughter near Killi Mughatiyan. He was cross-

examined at length, but nothing beneficial could be extracted by the

defence as he remained firm and consistent, thus his testimony went

unshaken.

9. Gul Muhammad S.I (PW-2) is the recovery witness of the

abductee, who deposed that on the fateful day, he along with police

officials were on patrol duty on Bostan Road and upon hearing hue

and cry of complainant, they stopped and complainant Abdul Razaq

(PW-1) told them about abduction of his granddaughter, whereafter a

hectic effort, they apprehended the appellant and rescued minor Bibi

Jalwa (PW-3) from his custody. We have examined the testimony of the

afore-referred witness, which has been found by us to be truthful as

he remained firm and consistent to his examination-in-chief despite

extensive cross-examination.

10. After critical analysis of the statements of complainant Abdul

Razaq (PW-1), Gul Muhammad S.I (PW-2) and Bibi Jalwa (PW-3), we

have found their statements to be confidence inspiring, truthful and

trust worthy, confirming the fact that the appellant had abducted the

minor from outside her school, which was followed by his arrest and

subsequent recovery of Bibi Jalwa (PW-3) from him.

11. As far as disclosure of appellant (Ex.P/5-A) is concerned, it is

inadmissible as in consequence of such disclosure, no new or fresh

facts have been surfaced as the facts narrated thereof were already

known to the police officials, which amounts to confession before the

police, having no evidentiary value, as contemplated under Articles 38

and 39 of Qanun-e-Shahadat Order, 1984 ("QSO of 1984"), squaring out

of the preview of Article 40 of the QSO of 1984. In this regard, we are

fortified with the view expounded by the apex court in the case of

"Hayatullah v. The State" (2018 SCMR 2092). For ready reference, the

relevant portion of para No.4 of Hayatullah's case is reproduced

herein below;

"The main evidence which was unfortunately relied upon by the trial

court and the Federal Shariat Court was a confession before the

I.O. under the supervision of DSP Rasool Bakhsh. A memo. of

disclosure was prepared on the same day. It is astonishing that

the trial court while recording the statements of the witnesses

(police officials) regarding the confession before the police,

recorded each and every word of the appellant before the police

and also exhibited the memo. of disclosure. The said statement

before the police and the said memo. of disclosure were

absolutely inadmissible hit by Article 39 of the Oanun-e-Shahadat

Order, 1984. In order to give a cover of Article 40 of Qanun-e-

Shahadat Order, 1984, the Investigating Officer recovered a pistol on the same day and all the witnesses claimed that thereafter the

appellant pointed out the place of occurrence and the place from

where the dead-body was earlier recovered. We are conscious of

the fact that after making such disclosure before the police no

new fact was discovered because it is already in the knowledge

of the police on 11.02.2006 that the deceased had received a

bullet injury and from the place of occurrence an empty of .30

bore pistol was also recovered. So the recovery of pistol after the

said disclosure was not a new fact or not a fact which was not in

the knowledge of police. Likewise, the place of occurrence and

the place where dead-body was thrown while dragging it from

the said place, was already in the knowledge of the police and

such pointing out of the place after said disclosure is worthless,

irrelevant and inadmissible as the said place was already in the

knowledge of the police and a site plan of the same place had

already been prepared on 11.02.2006. Likewise, the memo. of

pointing out of the place from where the motorcycle was

recovered is also irrelevant as the motorcycle was recovered

much prior to the disclosure and pointing out of the said place

which was already in the knowledge of the police.

[Underline is ours]

12. We have irresistibly arrived at the conclusion that the

prosecution has successfully proved the indictment against the

appellant on the basis of evidence of complainant Abdul Razaq (PW-1),

Gul Muhammad S.I (PW-2) and Bibi Jalwa (PW-3), which has rightly

been appraised by the Trial Court, while rendering the impugned

judgment.

However, we do not concur with the quantum of punishment

awarded by the Trial Court to the appellant, which seems harsh and

unwarranted, while considering the peculiar circumstances of the

instant case, more particularly the motive, which has not been proved,

making the case of appellant one of mitigating circumstances,

warranting lesser punishment.

13. The judgments referred by the learned counsel for the appellant

do not apply in the instant case as the facts and circumstances of the

instant case are distinguishable.

14. For the forgoing reasons, the appeal is dismissed, and the

conviction and sentence awarded to the appellant by the Trial Court

vide impugned judgment dated 08.04.2024 is upheld but modified,

considering the peculiar circumstances of the instant case and as such,

the sentence awarded under section 364-A of P.P.C from fourteen (14) years R.I is reduced to that of seven (7) years R.I with the premium of

section 382-B of Cr.P.C.

JK/92/Bal. Appeal dismissed.