Kidnapping, attempt to commit sodomy

Citation Name : 2019 YLRN 29 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : TAHIR MAQBOOL
Side Opponent : State
Ss. 12 & 18---Kidnapping, attempt to commit sodomy---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused kidnapped the victim and attempted to commit sodomy with him---Record revealed that, as per contents of FIR, accused and victim had been shown together at the spot and nobody was incorporated in FIR as eye-witness of the occurrence---After investigation, brother-in-law of the victim was mentioned as eye-witness, in the calendar of challan---Said witness had deposed that on the day of occurrence, he was grazing his goats in the land, meanwhile, he heard hue and cry, thereupon, he went towards that side and saw from the little distance that accused was attempting to commit offence with victim, who on seeing him, fled away---Said witness in his statement recorded under S.161, Cr.P.C., did not state that he was grazing the goats in the land but that he was at his home---Court statement of the said witness showed that mother of victim was told about the occurrence by wife of said witness on the day of occurrence---If said witness, who was brother-in-law of victim, had witnessed the occurrence and it was in the knowledge of complainant and his mother then why his name, as a witness, was not incorporated in FIR and why his statement under S.161, Cr.P.C. was got recorded with police, with delay of two months and twenty five days---Statement of victim revealed that he did not mention about the factum that occurrence was witnessed by him---Victim, in cross-examination, had deposed that nobody came at the spot when accused fled away---Statement of another witness recorded by police under S. 161, Cr.P.C. revealed that he mentioned name of some other witness and not that of brother-in-law of victim---Such circumstances suggested that major contradiction existed in the prosecution evidence---In view of such contradiction, prosecution evidence, in circumstances, was not trustworthy, which could not be made basis for awarding sentences to convict---First Information Report showed that accused met the victim on the way and asked him to come near and when victim went near the accused, he caught hold and took him in the brook, where he forcibly unfastened his string and attempted to commit sodomy---Accused fled away on hue and cry of victim---Statement of victim showed that accused caught hold of his hand and took him in his brook---Statement of victim transpired that he was caught hold of accused and taken him in the brook, but he did not make hue and cry until he was taken in the brook---Evidence of kidnapping or ABDUCTION was lacking in the case and thus, offence under S.12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, would not be covered when kidnapping or ABDUCTION was not satisfied---In the present case, statement of complainant as well as other witnesses, did not allege that force was used by the accused---Prosecution witnesses had deposed about oral confession of accused before jirga but there was no document on record---Circumstances established that prosecution could not succeed to establish its case against the accused without shadow of doubt---Appeal was allowed, in circumstances and accused was acquitted by setting aside the conviction and sentence recorded by the Trial Court.

Citation Name : 2019 YLR 1470 SUPREME-COURT-AZAD-KASHMIR
Side Appellant : AZKAR HUSSAIN SHAH
Side Opponent : The STATE through Advocate-General Azad Jammu and Kashmir
Ss. 377 & 506(2)---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act (V of 1985), S. 12---Kidnapping or abducting in order to subject a person to unnatural lust, sodomy, criminal intimidation---Appreciation of evidence---Benefit of doubt---Prosecution case was that the complainant along with the accused persons were coming back home after attending the annual anniversary of the saint, accused persons beat him, inflicted a blow with the butt of pistol at his temple and also pointed pistol and extended threats to do away with his life and forcibly committed sodomy with him--Allegation of the commission of sodomy had been levelled against the accused-appellant and the co-accused---Record showed that brother of the complainant was cited as a witness in the calendar of witnesses but he was not produced and examined by the court---Uncle of the victim who allegedly went to the police station along with the complainant for registration of case, was also cited as a witness in the calendar of witnesses, but he was also not produced and examined in the court---After excluding statements of said witnesses, the story narrated by the complainant could not be believed in toto---Allegedly, prior to commission of the act of sodomy, the accused beat the victim, extended the threats to do away with his life and one of the accused pointed pistol at his temple and inflicted a butt blow to him; however, in the medical report, no injury or sign of violence had been found at the body of the victim---Alleged pistol had also not been recovered from the accused, which created dent in the prosecution story---Medical evidence showed that at the time of occurrence, the victim was young man had the age of twenty years, therefore, non-resistance by him could not be ignored lightly---Record showed that report for detection of spermatozoa of the accused was negative---Reason assigned by the Medical Officer was that the sample was sent after a delay of five days, which was admittedly the negligence of the prosecution and the benefit of which would go to the accused---Statement of victim was in such a case sufficient to record conviction, but from the juxtaposed perusal of the statement of the victim and the contents of FIR, it revealed that there was a lot of contradictions in the story narrated in the FIR and the statement of the victim and improvement had been made in the statement therefore said aspect would also go in favour of accused---In the present case, after examining the statement of the victim it appeared that the provisions of S.12 of the Offences of Zina (Enforcement of Hudood) Act, 1985 were not attracted as the constituents of kidnapping/ABDUCTION were not available---Although, incident was proved from the medical report but its nexus with the convict was not proved beyond reasonable doubt as the evidence brought on record in that regard did not inspire confidence---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal was allowed and accused was acquitted , in circumstances, by setting aside the conviction and sentence recorded by the Trial Court.